August 11, 2022

Marching Backward

By Stephen Tuttle | July 23, 2022

Depending on your beliefs, this has either been the greatest session in U.S. Supreme Court history or a nightmare from which we will not soon recover.

Let’s review highlights of what they’ve done and look at a sample of what their next session promises. (Full credit to Mark Stern at Slate for preparing a list of 2021/2022 decisions and to Ballotpedia for the preview of coming attractions.)

The one case nearly everyone has both knowledge of and an opinion on is Dobbs v. Jackson Women’s Health Organization. In this case, the Supreme Court of the United States (SCOTUS), by a 5-4 margin, determined abortion was not a constitutional right and the initial decision which outlined that right (Roe v. Wade) was “egregiously wrong.” The decision did not outlaw abortion as many continue to claim; it turned the issue back to Congress and the states. Since the likelihood of Congress codifying legal abortion in the current political atmosphere is next to zero, it is now left to the states.

West Virginia v. Environmental Protection Agency also received its fair share of attention. SCOTUS ruled the EPA does not have the authority to establish pollution limits for coal-fired power plants because Congress did not specifically authorize them to do so by statute. Aside from likely increasing polluting emissions, this decision puts at risk nearly all rules and regulations promulgated by the EPA, a significant setback for our efforts to combat climate change.

Other decisions were less well known but have equally profound consequences.

Take Oklahoma v. Castro-Huerta, for example. For decades, crimes committed on sovereign tribal lands have been adjudicated in tribal courts. The ruling in Oklahoma reduced what had traditionally been considered tribal sovereignty and will allow both the federal government and the states to now prosecute some of those alleged crimes, regardless of their location or the tribal membership of the accused. Not a great ruling for tribal nations.

Then we have both Kennedy v. Bremerton and Carson v. Makin. They aren’t exactly birds of a feather, but both serve to further narrow the shrinking separation of church and state. In Kennedy, SCOTUS held that Christian prayer being offered by a high school football coach at the 50-yard line after a game was perfectly acceptable. The majority opinion concluded the prayer was being done quietly, was not school sponsored (though the coach was employed and paid by the school), and that it was voluntary, though some former players begged to differ. In Carson, the justices held that if taxpayer money is being given to private schools, states cannot exclude private religious schools from receiving tax dollars, too. Excluding them based on religion, the court ruled, is a First Amendment violation. So, for example, gay taxpayers could see their tax dollars going to religious schools that declare them to be evil sinners whose very lives should be illegal.

In Vega v. Tekoh, SCOTUS determined a statement offered by a detainee, including a confession, given despite no Miranda warning having been issued, is not necessarily unconstitutional and cannot be a cause of action against whoever failed to Mirandize the suspect. (As if false confessions weren’t a big enough problem already.)

The court also reduced a person’s right to appeal a conviction at the federal level until all state remedies have been exhausted, a decision that ignores whatever facts exist or level of representation was received and focuses on procedure. It’s likely more innocent folks will now remain in prison.

On the court’s agenda for the 2022/2023 session are some dandies. Chief among them is yet another case in which a business owner—in this case a graphic artist/web designer who wants to expand her business to include weddings—doesn’t want to provide services to same-sex couples due to her “closely held religious beliefs.” SCOTUS has heard such cases previously and is likely to again side with the business owner. Turns out our constitution allows discrimination against some people.

They will also be hearing an interesting and unusual case involving claims of admissions discrimination at Harvard. In this case, several highly qualified Asian applicants have been denied acceptance while less qualified (at least in terms of test results, grade-point averages, and extracurricular activities) white applicants have been accepted in the name of diversity.

Perhaps more troubling is another chance for SCOTUS to hamstring the EPA. This challenge is to the Clean Water Act (CWA). Since the enabling statute for the CWA does not specify which regulations the EPA is allowed, water polluters might well be able to join the air polluters in being relieved of their duties to the environment unless an incompetent Congress codifies rules promulgated by the EPA.

And they’re just getting started; though not currently on the court’s docket, Justice Clarence Thomas and others have indicated they would like to revisit rulings that gave constitutional protections to same-sex marriage and contraception to start…marching backward as fast as they can.


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