This was a shit year for the Supreme Court. And when I say that, I don’t just mean I don’t like the outcomes of the rulings. Process is more important than outcome in the judiciary system; otherwise justices are just using the law to push their agendas instead of staying in their lane as interpreters. (The whole point of our checks and balances system.) Usually I find myself agreeing with conservative and liberal justices about equally, depending on the case. Not this year. Read on for the details.
At the end of June 2022, SCOTUS ruled that:
(1) a federal statute requiring stiff penalties for crimes involving a gun is too strict. (7-2)
(2) it is sometimes mandatory for states to use public money to fund religious education (6-3)
(3) states may not impose strict limits on carrying guns in public (6-3)
(4) you can’t sue for money damages if your Miranda rights are violated (6-3)
(5) the Constitution does not confer a right to abortion (6-3)
(6) a public high school coach can pray at midfield following a game (6-3)
(7) a high bar is required for prosecuting doctors who prescribe pain medication (9-0)
(8) district courts are obligated to give a fair hearing to retroactive sentence reductions based on new laws (5-4)
(9) state authorities may prosecute non-Indians who commit crimes against Indians on Indian reservations (5-4)
(10) asylum seekers arriving at the southwestern border don’t have to await approval in Mexico; they can be detained in the U.S. (5-4)
(11) the Environmental Protection Agency (EPA) does not have the power to regulate carbon dioxide emissions from power plants without authorization from Congress (6-3)
(1) United States v. Taylor (6/21/22). The decision: An attempted Hobbs Act robbery does not qualify as a crime of violence. Written by Gorsuch for a 7-2 ruling. (4 conservatives + 3 liberals; dissent by 2 conservatives)
— Gorsuch is obviously right. The Hobbs Act punishes robbery that affects interstate or foreign commerce, not crimes of violence. Attempted Hobbs Act robberies don’t invariably involve the use, attempted use, or threatened use of physical force. In Taylor’s case, he agreed to sell someone pot, and then conspired with someone else to rob the man instead; the co-conspirator shot and killed the man. Taylor got a 30-year sentence: 20 for conspiracy and 10 for a crime of violence. SCOTUS ruled that he should have gotten only 20 for conspiracy, because no element of his offense required proof that he used, attempted to use, or threatened to use force during the robbery. The law can’t be used to lengthen sentences for those convicted of a Hobbs robbery offense.
— Alito and Thomas dissented, arguing that the offense for which Taylor was convicted constituted a “violent felony” (use of a gun) in the ordinary sense of the term. This ignores the whole point, that Taylor took a plea deal admitting to attempted robbery under the Hobbs Act, and that the attempted robbery statute of the Hobbs Act contains no language that makes it a crime of violence. Alito and Thomas were dissenting on the basis of what makes practical sense to them, not as jurists.
(2) Carson v. Makin (6/21/22). The decision: A state cannot exclude religious schools from tuition assistance programs that allow parents to use vouchers to send their children to public or private schools. Written by Roberts for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— I’m on the fence with this ruling. Here’s the background: In rural sparsely populated states (like Maine and Vermont), many towns aren’t large enough to operate their own public schools. So the states offer families public dollars to send their children to schools, both public and private, elsewhere. In this case the state of Maine created a tuition assistance program to help families who live in such remote regions. Under the program, parents can send their kids to certain private schools, and the state covers the cost of tuition. To qualify, these schools must give students a secular education. They may be affiliated with — or even run by — a religious organization, but their actual curricula must align with secular state standards. Two families challenged this limitation, arguing that it violated the First Amendment’s free exercise clause.
— In this ruling Roberts claims that secular schooling is a smokescreen for “discrimination against religion”, even though thirty-seven states have amendments to their constitutions that bar government from funding religious institutions, including schools. This ruling invalidates those laws and (arguably) undermines the broader constitutional basis for the nation’s public school system. In her dissent, Sotomayor said the majority opinion “dismantles the wall of separation between church and state that the Framers fought so hard to build”.
— The reason I’m on the fence with this ruling is that it only applies if a state chooses to send taxpayer dollars to private schools through vouchers, tax credits, or scholarships. So a state could avoid this whole business — that is, avoid the obligation to provide assistance to religious schools — by simply sending all its money to public schools; in that case no constitutional issue arises. In this sense Roberts stands by what he wrote in Espinoza v. Montana Department of Revenue (6/30/2020): “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.” That’s fair, but I have mixed feelings. If a state is going to be generous enough to do something it’s not obligated to do in the first place, then perhaps it should have the right to set qualifications based on appropriate academic standards and exclude religious ones.
(3) New York State Rifle & Pistol Association v. Bruen (6/23/22). The decision: States may not impose strict limits on carrying guns in public. Public possession of guns is a constitutional right under the Second Amendment. Written by Thomas for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— Background: In most of the country gun owners can easily carry their weapons in public. But that’s been harder to do in New York and other states (California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island). New York’s law, which has been in place since 1913, says that to carry a concealed handgun in public, a person applying for a license has to show “proper cause,” or a specific need to carry the weapon.
— For the majority, Thomas states: “Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.” For the dissent, Breyer states: “The primary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence.”
— The majority would be right if it was interpreting the Second Amendment correctly. As Thomas says, the idea that one must demonstrate a special need in order to exercise one’s amendment right is otherwise unheard of. But the Second Amendment doesn’t mean what many gun advocates believe that it means. The Second Amendment applies to militia; it’s not about sweeping inalienable gun rights for everyone. So I’m with the dissent on this one. It’s worth underscoring that the liberals are actually the Constitutional conservatives in this case, and the conservatives are the judiciary activists. That’s why I’m a conservative when it comes to the judiciary.
(4) Vega v. Tekoh (6/23/22). The decision: You can’t sue for monetary damages if your Miranda rights are violated. Written by Alito for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— For the majority, Alito says that a violation of the Miranda right “is not itself a violation of the Fifth Amendment,” and that “we see no justification for expanding Miranda to confer a right to sue.”
— For the dissent, Kagan says that the court’s ruling strips “individuals of the ability to seek a remedy for violations of the right recognized in Miranda. The majority here, as elsewhere, injures the right by denying the remedy.” She’s right.
— Though I believe this is the wrong ruling, the impact won’t be as dire as some are making it out to be. The ruling doesn’t strike down Miranda rights. Miranda violation is still grounds for evidence being suppressed or convictions being overturned. The ruling arguably makes Miranda harder to enforce, because you can’t sue if your Miranda rights are violated — if the case never goes to trial, or if the government never seeks to use the statement, there’s no remedy for the government’s misconduct. On the other hand, lawsuits against police seldom have impact on police behavior anyway. The police department just pays them out of the city’s treasury and individual officers don’t suffer any consequences.
(5) Dobbs v. Jackson Women’s Health Organization (6/24/22). The decision: The Constitution does not confer a right to an abortion. Roe v. Wade and Planned Parenthood v. Casey are overruled. Written by Alito for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— Alito writes for the majority: “Roe was egregiously wrong from the start. The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority.” Also: “The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line. The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allows the States less freedom to regulate abortion than the majority of western democracies enjoy.”
— Thomas concurs separately, saying that the due process clause also does not protect a right to an abortion.
— Kavanagh concurs separately, saying that the Constitution is neutral on abortion, and so the Court was wrong in Roe to weigh in and take a side.
— Roberts concurs partly, saying that he would have gotten rid of the viability line (the idea that the Constitution protects a right to an abortion until the fetus becomes viable), but he would not have decided anything else. So even though he upholds the Mississippi law’s abortion restrictions, he doesn’t share the majority’s reasoning in overturning Roe entirely. This is why it fell to the most senior justice of the majority (Thomas) to assign the writing of the opinion, rather than to Roberts as the chief justice. In actuality, Roberts’ “concurrence” reads almost as much as a dissent — chastising the court for a lack of judicial restraint in not rendering a more narrow opinion that wouldn’t have overruled Roe and Casey — but that’s an illusion, since his more narrow interpretation would have rendered Roe a dead letter anyway.
— The dissent is a joint dissent — very unusual, but not unprecedented — written by Breyer, Sotomayor, and Kagan: “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent. The majority says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. Because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”
— Who’s right? I’m strongly pro-choice and don’t like this outcome at all. But the question is whether or not Roe v. Wade is Constitutional. You can make a strong case for either side, and that’s what happened here. I’m not going to say the ruling is wrong, but if I were a justice, I would have argued much as the dissent did.
(6) Kennedy v. Bremerton School District (6/27/22). The decision: The free exercise and free speech clauses protect a coach’s right to pray at midfield following high school football games. Written by Gorsuch for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— Says Gorsuch: “the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s.” Really? “The fear of offending the Establishment Clause does not require the government to single out private religious speech for special disfavor.” But was Kennedy’s expression private? “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” Of course, but that doesn’t mean government employees can parade their religious expression in prominent ways when they’re on the clock.
— The Supreme Court has consistently rejected prayer in public schools when the prayer is officially required or part of a formal ceremony (like a high school graduation or sports game). Organized prayers led by students at high school football games were held to violate the First Amendment’s prohibition of government establishment of religion. “The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship,” wrote Justice John Paul Stevens 22 years ago (Santa Fe Independent School Dist. v. Doe, 6/19/2000)). Kennedy’s lawyers claimed that school prayers like that are irrelevant because they involve government speech, whereas Kennedy’s speech is private speech, not governmental. He insisted to the Supreme Court that he was acting on his own behalf in praying, not speaking as a mouthpiece for the school. The school district told a different story: that the students on the football team looked up to their coach and felt coerced into doing as he did. But frankly IMO it doesn’t matter if the students felt coerced or not. Kennedy was a mouthpiece for the school whether he intended to be or not. He was on the clock and engaging in a prominent public display of religiosity. The school officials have every right to tell him that such behavior is inappropriate for a government employee.
— Sotomayor dissented, joined by Breyer and Kagan, arguing that a public school is under no obligation to allow a school official to kneel, bow his head, and say a prayer at the center of a school event. “The Constitution does not authorize, let alone require, public schools to embrace this conduct.”
— The dissent is correct. The majority’s ruling will encourage government employees to express their faiths more openly while on the job. I think it’s important to note that this ruling is very different from the landmark case involving religious speech in public forums (Good News Club v. Milford Central School (6/11/01)). In that case, Clarence Thomas rightly wrote for the majority (and he was joined by the liberal Breyer, who dissented in this case) that a school district cannot prohibit the free speech rights of religious groups wanting access to a school district’s public forums. In that case, Milford Central School was trying to discriminate against religious speech by an evangelical Christian club for children, on grounds that its policy prohibited the use of school facilities for religious purposes. Thomas rightfully argued that the Establishment Clause argument didn’t carry weight because it wasn’t a mandatory classroom setting, and parents had to give permission for their children to attend the after-school meetings. Things work similarly at my public library. Religious groups are allowed to book our public meeting rooms on this very basis, as I believe they should be able to (as long as they’re non-profit). But public events involving staff who prominently express themselves religiously on the clock is another matter. It would be inappropriate for a pubic librarian to do something like that while on the job, and my library director would be fully within her rights to discipline one of her librarians for doing so.
— A note about Sotomayor: While I agree with her opinion, I wonder if she would have sung differently had this case involved a Muslim coach praying to Allah. Would she have adopted the same line — that the Constitution doesn’t require public schools to embrace such conduct — or would she have said that disciplining such a coach amounted to discrimination against Muslims? I’m confident that Kagan and Breyer’s judgment would have been the same, but Sotomayor I’m not sure about. Ditto with the majority: I have no doubts that Gorsuch would have written the same ruling on behalf of a Muslim coach (he makes a career of defending the rights of everyone under the sun, from the Native Americans, to the transgendered, to the religiously devout), but I could see any of the other five conservatives going differently in that case.
(7) Ruan v. United States (6/27/22). The decision: Prosecutors need a lot of proof to convict doctors who are accused of excessively prescribing addictive drugs. Written by Breyer for a 9-0 ruling.
— A sound ruling, saying that once doctors produce evidence that they are authorized to dispense drugs like opioids, prosecutors need to prove they knowingly or intentionally acted in an unauthorized manner.
(8) Concepcion v. United States (6/27/22). The decision: The First Step Act requires district courts to consider intervening changes of law in exercising their discretion to reduce a sentence. Written by Sotomayor, for a 5-4 ruling. (3 liberals + 2 conservatives; dissent by 4 conservatives)
— Background: In 2008, Carlos Concepcion pleaded guilty to crack cocaine charges, and in 2009 he was sentenced to 19 years in prison. While he was serving his sentence, Congress passed the Fair Sentencing Act, which reduced the statutory penalties for most federal crimes involving crack cocaine. In 2018 Congress made these changes retroactive, and Concepcion moved for resentencing. The district court denied his motion, and Concepcion appealed. The U.S. Court of Appeals affirmed, finding that the district court was not obligated to update and reevaluate the sentencing factors.
— Sotomayor wrote for the majority, joined by liberals Kagan and Breyer, and conservatives Thomas and Gorsuch. They overruled the lower courts, saying that the First Step Act requires district courts to at least consider intervening changes of law in exercising their discretion to reduce a sentence: “It follows that when deciding a First Step Act motion, district courts bear the standard obligation to explain their decisions and demonstrate that they considered the parties’ arguments. The First Step Act does not require a district court to be persuaded by the arguments raised by the parties before it, but it does require the court to consider them.”
— Kavanagh wrote for the dissent, joined by Roberts, Alito, and Barrett. “District courts have free rein either to take into account — or to completely disregard — intervening changes since the original sentencing.”
— I don’t have the competency to evaluate the First Step Act, but I’m persuaded by the majority’s reasoning.
(9) Oklahoma v. Castro-Huerta (6/29/22). The decision: State authorities may prosecute non-Indians who commit crimes against Indians on Indian reservations. Written by Kavanaugh for a 5-4 ruling. (5 conservatives; dissent by 1 conservative + 3 liberals)
— The case involves Victor Manuel Castro-Huerta, a non-Native, who was convicted in an Oklahoma state court of child neglect and sentenced to 35 years. The victim (his stepdaughter) is Native American, and the crime was committed within the Cherokee Reservation.
— In his dissent (joined by the 3 liberals), Gorsuch rightly blasts the majority: “Where this Court once stood firm, today it wilts. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another.”
— Gorsuch is referring to McGirt v. Oklahoma (7/9/2020), which held that states cannot prosecute crimes committed on Native American lands without federal approval. But this ruling left open the question of non-Natives who commit crimes on Native lands. Gorsuch wrote the opinion for McGirt two years ago, and was joined by the 4 liberal justices at the time. Today’s ruling should have gone the same way, but with Ginsburg replaced by Barrett, it was not fated to be.
— Gorsuch is also referring to the landmark ruling of Worcester v. Georgia (1823), which has persisted for over 200 years: Native tribes retain their sovereignty unless and until Congress ordains otherwise. Gorsuch indicts his “conservative” colleagues for going back on the U.S. government’s promise to respect, honor and uphold tribal sovereignty. In fact, it is Gorsuch who is the proper judiciary conservative here, along with the liberals.
(10) Biden v. Texas (6/30/22). The decision: The Biden administration can end the Trump-era immigration program that forced asylum seekers arriving at the southwestern border to await approval in Mexico. Written by Roberts for a 5-4 ruling. (2 conservatives + 3 liberals; dissent by 4 conservatives)
— In other words, the Biden administration is not obligated to continue enforcing the Migrant Protection Protocols, because the Biden Department of Homeland Security decision to end the policy has legal effect. It seems a no-brainer, since immigration policies are determined by the executive in charge. The legal question is whether immigration authorities, with far less detention capacity than needed, must send people to Mexico or whether they have discretion under federal law to release asylum-seekers into the United States while they awaited their hearings.
— Roberts was joined by Kavanaugh, Kagan, Sotomayor, and Breyer. Barrett partly agreed with the majority, but dissented on other points, joined by Thomas, Alito, and Gorsuch. It’s a complex case, but I think I’m with the majority.
(11) West Virginia v. Environmental Protection Agency. The decision: The Environmental Protection Agency (EPA) does not have the power to regulate carbon dioxide emissions from power plants without authorization from Congress. Written by Roberts for a 6-3 ruling. (6 conservatives; dissent by 3 liberals)
— Says Roberts: The EPA “must point to clear congressional authorization for the power it claims. Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution to the crisis of the day, but it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”
— The ruling means that agencies like the EPA cannot create regulations that have expansive social and economic impacts on their own, despite decades of precedent doing just that. Such rules now require Congress to specifically create laws to implement them, and given the difficulty of passing federal legislation, the EPA’s ability to regulate pollution that’s baking the planet is now seriously impaired.
— Kagan is in top form, writing for the dissent: “Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time’. The limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote. The majority says it is simply ‘not plausible’ that Congress enabled EPA to regulate power plants’ emissions through generation shifting. But that is just what Congress did when it broadly authorized EPA to select the ‘best system of emission reduction’ for power plants. The ‘best system’ full stop — no ifs, ands, or buts of any kind relevant here. The parties do not dispute that generation shifting is indeed the ‘best system’ — the most effective and efficient way to reduce power plants’ carbon dioxide emissions. And no other provision in the Clean Air Act suggests that Congress meant to foreclose EPA from selecting that system; to the contrary, the Plan’s regulatory approach fits hand-in-glove with the rest of the statute. The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms. But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases… Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”