Sunday, July 3, 2022

At #SCOTUS, Headlong Rush to Change the Law

           Supreme Court Justice Stephen G. Breyer was unaccustomedly emotional sixteen years ago as Chief Justice John G. Roberts Jr. led a newly polarized Court in limiting the ability of local school districts to engineer a measure of racial balance in public schools. Roberts wrote and led five Republican-appointed justices in holding in Parents Involved in Community Schools v. Seattle School District No. 1 (Dec. 4,  2006) that school districts cannot assign pupils to individual schools on the basis of race even to serve the compelling interest in racial diversity in individual schools.

            Those of us in the courtroom that day recall Breyer’s recounting that he had written a seventy-seven-page dissenting opinion in the case, the longest ever in his career. He summarized the opinion by speaking animatedly from the bench for more than twenty minutes, as Linda Greenhouse noted in her next-day coverage in The New York Times. “Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion,” Greenhouse wrote.

            From the bench, Breyer included an ominous note not found in the written opinion itself. “It is not often in the law that so few have so quickly changed so much,” he remarked. Breyer had no opportunity in the 2021 term to sound a similar warning from the bench, since the justices bowed to social-distancing guidelines throughout the term by issuing decisions without ever taking the bench.

            It fell instead to headline writers and outside observers to make the point about the Court’s radically momentous 2021 term, with more than a dozen politically divided decisions that have radically reshaped American law. “High court upheaval is swift and sweeping,” the Washington Post declared in the headline atop Robert Barnes’s masterful wrap-up.

            Barnes was equally dramatic in his lead paragraph. “The avalanche of change achieved by the Supreme Court’s conservative majority this term spans the breadth of American life,” Barnes wrote. Later in his article, Barnes included an apt quote from Gregory Garre, a former acting solicitor general and frequent advocate before the Court. “Going into the term,” Garre remarked to Barnes, “the biggest question was not so much in what direction the court was headed, but how quickly it was traveling.”

            The New York Times showed with statistical evidence that the 2021 term was the Court’s most conservative since 1931. The Times’ Adam Liptak made the same point in his lead paragraph. “The Supreme Court moved relentlessly to the right in its first full term with a six-justice conservative majority,” Liptak wrote, “issuing far-reaching decisions that will transform American life.”

            Breyer might have said as much had the justices been on the bench on June 24, the day that the Court issued its precedent-smashing decision to overrule the landmark 49-year-old abortion rights decision in Roe v. Wade. The aggressive conservative majority created by President Trump’s three justices took control of the decision from Chief Justice Roberts to explicitly overrule Roe v. Wade, just as Trump had promised during his presidential campaign and as he appointed three justices in his single-term presidency.

            In a co-authored dissenting opinion that spanned sixty pages, Breyer recalled his ominous peroration from the Seattle schools case; amen, his liberal colleagues Sonia Sotomayor and Elena Kagan answered. “For all of us, in our time on this Court, that has never been more true than today,” they wrote. “In overruling Roe and Casey,” they added, “this Court betrays its guiding principles.”

            The abortion decision, Dobbs v. Jackson Women’s Health Organization, would be enough to mark the 2021 term as a disaster for the Court’s promise of “Equal Justice Under Law.” Among the other decisions crafted by the six Republican-appointed justices over the dissenting votes of the three Democratic-appointed justices was the ruling in the New York gun permit case, New York State Rifle and Pistol Association v. Bruen, that establishes a presumptive Second Amendment right to carry a weapon outside the home without any need to show an individualized reason for needing to be armed on public streets. The ruling flies in the face of the long historical tradition of local laws limiting the carrying of concealed weapons from colonial time and, indeed, even in the days of the western frontier.

The Court also split 6-3 in a decision, Kennedy v. Bremerton School District, that in effect invites public school teachers to lead religious observances in the classroom under their First Amendment right to free exercise of religion. Admittedly, the high school football coach Joe Kennedy was disciplined not for praying in the classroom, but for praying with the team on the 50-yard-line.

Among other 6-3 decisions with the same lineup, the Court in National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration threw out an OSHA rule requiring employers to require employees to be vaccinated against covid-19.  In another victory for Republican Party partisans, the Court in Federal Election Commission v. Ted Cruz for Senate threw out an FEC rule limiting a candidate’s use of post-election contributions to pay off the candidate’s personal loan to his or her campaign.

What else? The justices also divided along partisan lines by ruling in Vega v. Tekoh that a suspect has no federal civil rights claim against a police officer who fails to provide Miranda warnings during custodial interrogation. The Court’s ruling in Garland v. Gonzalez established a daunting obstacle for noncitizens detained in immigration custody to seek bond hearings while contesting removal orders.  





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