Final SCOTUS 2022 Roundup


SCOTUS (Supreme Court of the United States) 2022 Finale June 30, 2022


We should not be surprised by the Supreme Court’s latest ruling on June 27, 2022 in a second church -state religious case. As in the “Makin” Maine tuition case decided this term which allowed religious schools to participate in a tuition program, SCOTUS continues to wield a “y uu ge” sledgehammer to destroy Thomas Jefferson’s wall between church and state. This time, the issue concerned whether a high school football coach had a constitutional right to pray at the 50-yard line after his team’s games. In a 6-3 decision, with the “usual conservative suspects” in the majority, Trump-appointee Neil Gorsuch joined by Thomas, Alito, CJ (Chief Justice ) Roberts, Kavanaugh, and Coney Barrett stated that the prayers of an assistant coach, Bremerton, Washington Joseph Kennedy, were protected by the Constitution’s First Amendment. According to the majority, Kennedy’s prayers did not violate that Amendment’s clause establishing a particular religion and protected his free exercise of his faith, also part of that amendment (See nytimes.com, Liptak, A., 6/27/22). For eight years, Kennedy routinely offered prayers after games with students often joining him. He also led and participated in locker room prayers, a practice he later abandoned. A school official recommended that Kennedy’s contract not be renewed in 2016. Kennedy did not reapply for the job, but sued in court


In Gorsuch’s words, “Respect for religious expressions is indispensable to life in a free and diverse republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance (nytimes.com, Liptak).” In dissent, Justice Sonia Sotomayor, joined by Stephen Breyer, and Elana Kagan, stated that the majority had gone astray. She wrote, “Today’s decision is particularly misguided because it elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and this court has long recognized are particularly vulnerable and deserving of protection…The court sets us further down a perilous path in forcing states to entangle themselves with religion, with all of our rights hanging in the balance (nytimes.com, Liptak, 6/27/22).”


The majority and dissent offered very different accounts of what Mr. Kennedy had done. Justice Gorsuch wrote that Coach Kennedy offered “only a brief, silent, and solitary prayer, while his students were otherwise occupied.” Dissenting Justice Sotomayor gave a different account. In her words, “Kennedy consistently invited others to join his prayers and for years led student athletes in prayers. In an unusual move, the dissent included photographs showing Kennedy kneeling with his players and others (nytimes.com).“Whom do you believe, me or your lying eyes?” Sotomayor also wrote that Coach Kennedy “effectively coerced students into praying with him.” Sotomayor added, “Students look up to their teachers and coaches as role models and seek their approval… Players recognize that gaining the coach’s approval may pay dividends small and large, from extra playing time to a stronger letter of recommendation to additional support in college athletic recruiting (nytime.com, Liptak, 6/27/22). IMHO, the present SCOTUS is ignoring the First Amendment’s Establishment Clause and argues that any attempts to limit school prayer constitute a violation of the Free Exercise Clause, the only part of the First Amendment concerning religion that it pays attention to. You get the idea.


And for once, on June 29, 2022, this very reactionary SCOTUS gave a win to the “good guys” on the “good side.” This victory was a close 5-4 one, but to quote former LA Lakers coach Phil Jackson, a “W,” is a “W,” or a “Win is a Win.” In “Torres v. Texas Department of Public Safety,” SCOTUS ruled that states cannot invoke sovereign immunity to block private lawsuits by veterans who want to reclaim prior jobs with state employers. After stating that he could no longer serve as a state trooper because of his service-related disability, Le Roy Torres, a veteran and former employee with the Texas Department of Public Safety, sought a comparable job to accommodate his disability. When he was denied this job, Torres filed suit under federal law, but lost in the state courts. He appealed to SCOTUS (cnn.com, Sneed, 6/29/22, newsweek.com, bloomberglaw.com, 6/29/22, Robinson, K.). In his majority opinion, Breyer wrote, “Upon entering the Union, the States implicitly agreed that their sovereignty would yield to federal policy to build and keep a national military. States thus gave up their immunity from congressionally authorized suits pursuant to the ‘plan of the Convention,’ as part of ‘the structure of the original Constitution itself (newsweek.com, 6/29/22).’” Conservative Justices Kavanaugh and CJ Roberts joined Breyer along with liberals Sotomayor and Kagan. The dissent consisted of hardline right-wingers, Thomas, Alito, Gorsuch, and Coney Barrett. Clarence Thomas stated that the majority’s ruling rested on “contrived interpretations” of the court’s prior decisions (newsweek.com, 6/29/22). No, Justice Thomas. Justice Breyer is properly interpreting the “original intent of the Constitution’s Framers” and you are upset that for once, this original intent doctrine helped average middle class patriotic Americans, not the top 1%. The Torres ruling will strengthen work protections for thousands of state-employed veterans returning to work after service in the Reserves or National Guard (cnn.com, Sneed, 6/29/22).


June 30, 2022. The last day of SCOTUS’ 2021-2022 term. On that day, it issued its final remaining decisions in two cases, a major immigration one, and a key environmental one. Let’s look at the immigration case first. Despite some previous negative rulings on immigration matters, which I discussed earlier, the “Biden v. Texas” opinion, a 5-4 decision, is one surprising “big time” win for immigrants, the Biden administration, and those backing immigration rights. In “Biden v. Texas,” a 5-4 decision, SCOTUS upheld President Biden’s power to enforce immigration laws. In an opinion written by CJ Roberts and joined by fellow conservative Kavanaugh, as well as liberals Breyer, Sotomayor, and Kagan, the Court ruled that Biden can repeal the Trump-era “Remain in Mexico” policy. That harsh policy barred most Central American migrants from entering the U.S. to seek asylum. This case reversed lower court rulings that held that Democratic Biden’s administration must continue Trump’s strict border enforcement policy (latimes.com, Savage, D., 6/30/22). CJ Roberts wrote that the law allowed the Biden administration to return asylum seekers to Mexico, but did not require it to do so. Translation: the law did not require Biden to adopt Trump’s harsh anti-immigrant views (latimes.com). SCOTUS has effectively given Biden the green light to end Trump’s controversial anti-immigrant “Remain in Mexico” policy (cnn.com, Sneed & Alvarez,6/30/22). Since the beginning of his administration, Biden has tried to wind down Trump’s policy, initiated in 2019, which sends certain non-Mexican citizens who entered the U.S. back to Mexico, instead of detaining or releasing them in the U.S. while their immigration proceedings played out. In this opinion, SCOTUS stated that immigration law gives the federal government the discretion to end the programs, formally known as Migrant Protection Protocols. In his majority opinion, CJ Roberts wrote, “Congress conferred contiguous-territory return authority in expressly discretionary terms.” Before Trump put his “Remain in Mexico” program in place, no other administration had embraced such an approach toward non-Mexican asylum seekers that required them to stay in Mexico during the course of their immigration proceedings in the U.S. (cnn.com, Sneed & Alvarez, 6/30/22). Biden campaigned against this draconian approach and stated that it “goes against everything we stand for as a nation of immigrants (cnn.com, Sneed et al).” More than 5,000 migrants, including Nicaraguans, Cubans, Columbians, and Venezuelans have been returned to Mexico under Trump’s policies (cnn.com, Sneed et al, 6/30/22). As of 2/2021, advocacy and human rights groups had documented more than 1,500 cases of murder, rape, torture, kidnapping, and other violent assaults involving migrants who were forced to wait in Mexico as part of Trump’s program (Shoichet, C., 6/30/22, cnn.com). Lower court orders ruling against Biden should be lifted shortly. This case will now be sent back to the lower court for additional proceedings, but SCOTUS’ opinion puts Biden one step closer to ending the program (Shoichet, cnn.com, 6/30/22).


And now, the bad news. In a key environmental case, SCOTUS, once again, showed its favoritism toward big business, including major polluters. In a 6-3 decision, with only Justices Kagan, Breyer, and Sotomayor dissenting, SCOTUS limited the Environmental Protection Agency’s (EPA’s) ability to regulate carbon emissions from power plants. This opinion, “West Virginia v. EPA,” is seen as dealing a blow to the Biden administration’s efforts to address needed climate change. Writing the majority opinion, CJ Roberts, stated that Congress, not the EPA, has the authority to make decisions on fighting climate change. In Roberts’ words, “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…A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” Message to CJ Roberts--what agency is more able to deal with environmental issues than the EPA?


The dissenters aptly noted, “Today, the court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to the most environmental pressing challenge of our time (latimes.com, Savage, 6/30/22). Justice Kagan said it best in dissent, “Whatever else this court may know about, it does not have a clue about how to address climate change. The stakes are high (nytimes.com, Liptak, 6/30/22).” Notice CJ Roberts’ words, environmental problems, especially global warming, is just a “crisis of the day,” or no big deal. To the dissenters, environmental issues are, correctly, “a pressing challenge of our time.” Harvard Law Professor Richard Lazarus declared this opinion “couldn’t have come at a worse time. By insisting instead that an agency can promulgate an important and significant climate rule only by showing ‘clear congressional authorization’ at a time when the court knows that Congress is effectively dysfunctional, the court threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all: climate change (nytimes.com, Liptak, 6/30/22).”


This ruling curtailed but did not eliminate the EPA’s ability to regulate the energy sector. The EPA may still use measures like emission controls at individual power plants. However, SCOTUS ruled out more ambitious approaches like a cap-and-trade system to stop the quickening pace of global warming. GOPers, especially their leader, “I love coal” Mitch McConnell (R-KY), were thrilled with this ruling. McConnell, of course, is a key leader in making our current Congress dysfunctional, but this pro-big business ideological Court could care less about how Congress acts or how this decision will impact millions of Americans’ lives. Senate Majority Leader Chuck Schumer (D-NY) ripped SCOTUS’ latest reactionary decision. Schumer stated, “First on gun safety, then on abortion, and now on the environment—this MAGA regressive, extremist Supreme Court is intent on setting America back decades, if not centuries (latimes.com, Savage, 6/30/22).”


Fortunately, this reactionary SCOTUS, in competition with the anti-1930’s New Deal Supreme Court, has finished issuing its damaging opinions for now. It can’t do more harm until the next term starts in 10/2022. Liberal Justice Stephen Breyer has officially retired and Biden’s confirmed nominee African American female Ketanji Brown Jackson (51) has just been sworn in. Jackson’s elevation to the High Court will not change the 5-4 or often 6-3 conservative majority McConnell and Trump successfully worked to get. What can progressives do? There is talk of adding more seats to SCOTUS. However, that proposal is not popular with the public, let alone Congress. It reminds far too many people of FDR’s failed and condemned plan to “pack the Court” in the 1930’s to stop their anti-New Deal decisions. However, term limits, a concept many people endorse, should be considered. Instead of lifetime appointments, SCOTUS Justices could be limited to say 18-year terms or a similar number. Again, such legislation will be very hard to pass. President Biden has now endorsed “carving out” or making an exception to the Senate filibuster where abortion and other right to privacy issues are involved so such provisions can be codified into law. Right now, with a 50-50 divided Senate that is impossible. The House, with a very small Democratic majority, must remain “Blue” to back codifying privacy and abortion rights along with the Senate. If Democrats vote in droves plus in 11/2022, keep control of the House, and gain a net two Senate seats to override anti-filibuster Sen. Joe Manchin (D/Coal WVA) and “mavericky” Sen. Kirsten Sinema (D-AZ), progressive action can occur. The upper chamber can change the Senate rules to require just a majority, 51, not 60 votes, where privacy matters are involved, and a Democratic House will also vote to codify abortion and privacy rights. Biden called the SCOTUS abortion case “destabilizing (cnn.com, Vazquez, Klein, Mattingly, & Liptak, 6/30/22).” Far too many of the SCOTUS rulings I discussed in my last three blogposts are “destabilizing” as well. Again, what is the only solution to our congressional gridlock? Vote, vote, vote for “Team Blue” in 11/2022. Our democracy, including abortion and the composition of the Supreme Court depend on it.