SCOTUS’S (Supreme Court of the United States’s) 2024 Roundup–Part 1 July 7, 2024
“June has busted out all over.” And that means that the third branch of our national government, SCOTUS, the Supreme Court of the United States, is starting to issue its major blockbuster term-ending 2024 decisions. These SCOTUS opinions have both legal and political consequences, especially in the current election year 2024. In a unanimous 9-0 decision, issued on June 13, 2024, SCOTUS maintained access to a widely available abortion pill, mifepristone, a drug long approved by the F.D.A.,the Food and Drug Administration. In its decision, written by Trump-appointed Justice Brett Kavanaugh, SCOTUS rejected a bid by a group of anti-abortion organizations and doctors (the plaintiffs) to unravel the FDA’s approval of this drug.Those who had followed the SCOTUS oral arguments in this case saw that much of the High Court seemed to be skeptical of banning mifepristone. However, any law student or attorney knows that oral argument is not necessarily the final word. Until the written decision is issued, no result favoring the plaintiffs or the defendants is “in the bag.” This opinion by this very conservative SCOTUS, with three Trump appointees, did not take any position on the safety or morality of mifepristone. Instead, it based its decision on the legal doctrine of “standing.” In the law, “standing” means that before the plaintiffs can win a case, they have to show that they have suffered “direct and concrete injuries” in order to sue (Liptak, A., 6/13/24). In the words of the late Justice Scalia, “standing” requires the plaintiffs to answer this question: “What’s it to you (nytimes.com, Liptak, 6/13/24)?” In the mifepristone case, the anti-abortion medical doctors and associations had, in Justice Kavanaugh’s written opinion, “no good answer to that question (nytimes.com, 6/13/24).” Justice Kavanaugh’s opinion was based, in effect, on a legal technicality. Kavanaugh added, “These doctors did not prescribe or use mifepristone, and the F.D.A. has not required the plaintiffs to do anything or to refrain from doing anything.” Justice Kavanaugh additionally noted that the so-called conscience protections in federal law ensured that the plaintiffs never had to perform abortions or deal with possible complications (Lipatk, nytimes.com, 6/13/24).
Yes, this is a “victory” for the pro-choice defendants including Planned Parenthood. However, this “victory” may not be final. Anti-abortion groups indicated they will be back. In Kavanaugh’s words, “The anti-mifepristone groups can take their case against mifepristone back to the legislative and executive branches to seek greater regulatory or legislative restrictions (nytimes.com, Liptak).” Should Trump get re-elected, he can appoint an anti-choice FDA commissioner to curtail use of mifepristone. In the closely divided Senate, most GOPers recently voted against protecting contraception nationally. In fact, on the very same day that the SCOTUS mifepristone decision came down, Senate GOPers did it again. This time, they blocked by a 48-47 vote the right to guarantee in vitro fertilization nationwide.This bill, like the previous contraception one, needed 60 votes to advance and defeat any Republican filibuster (cnn.com, Foran & Barrett, 6/13/24). I repeat, the only way to insure female reproductive rights is for Biden to be re-elected, for Democrats to take back the House, and for “Team Blue” to get more Senate seats.
June 14 is celebrated in the U.S. as Flag Day. Flag Day commemorates the adoption of the flag of the United States on June 14, 1777 by the Second Continental Congress (wiki). IMHO, June 14, 2024 has been made by SCOTUS into “Gun Day.” The Roberts/Trump SCOTUS has usually tried to protect gun manufacturers and gun users, but does not seem to care that much about the fact that thousands of innocent Americans will lose their lives or be horribly wounded by use of these weapons. In a 6-3 decision, SCOTUS legal “scholar” (LOL, No, Cry on Line) Justice Clarence Thomas found that the Bureau of Alcohol, Tobacco, Firearms and Explosives had exceeded or overstepped its power by classifying bump stocks as machine guns. Thomas wrote that a “semiautomatic rifle equipped with a bump stock is not a ‘machine gun’ because it cannot fire more than one shot by a single trigger.’” He included in his opinion several diagrams of the firing mechanisms (nytimes.com, VanSickle, A., 6/14/24). SCOTUS struck down this ban on deadly bump stocks endorsed by usual gun supporter Donald Trump. Trump and many congressional GOPers favored banning bump stocks after a deranged gambler, perched on the 32nd floor of a Las Vegas, Nevada hotel, opened fire on a country music festival. He killed 60 people and injured hundreds. In his arsenal, he had a dozen AR-15-style rifles outfitted with these bump stocks. In about 11 minutes, he had fired more than 1,000 rounds of ammunition in what remains the deadliest mass shooting in modern U.S. history. Even the National Rifle Association (NRA) endorsed tighter restrictions after this carnage (nytimes.com, VanSickle). The 6-3 decision split on the usual partisan lines. Conservatives CJ (Chief Justice) Roberts, Justices Thomas, Kavanaugh, Barrett, Alito, and Gorsuch were in the majority, while the liberal Justices Sotomayor, Kagan, and Jackson dissented (nytimes.com).
This decision was not even a direct challenge to the “right to bear arms” under the Constitution’s Second Amendment. Rather, it was one of several cases this term seeking to undercut the power of administrative agencies. Right-wingers and conservative SCOTUS members are all for gutting administrative agency power.This suit, in fact, was backed by the New Civil Liberties Alliance, a group with financial ties to libertarian reactionary billionaire Charles Koch. Koch and his fellow sympathizers want gun matters and many other hot-button issues addressed in Congress. Why? Because they know that many congressmembers fear the gun lobby and that even if such gun regulation passes the House, a Senate filibuster will be successful. Kudos to dissenting Justice Sonia Sotomayor! She summarized her dissent from the bench, a practice reserved for profound disagreements and the first such announcement of this term. Justice Sotomayor aptly declared: “When I see a bird that walks like a duck, swims like a duck and quacks like a duck, I call that bird a duck. A bump stock-equipped semiautomatic rifle fires ‘automatically more than one shot, without manual reloading, by a single function of the trigger.’ Because I, like Congress, call that a machine gun, I respectfully dissent (nytimes.com, VanSickle, A., 6/14/24).”
IMHO, in the field of tax law, SCOTUS did get one right. On June 20, 2024, SCOTUS sided with the Biden administration. It held that Charles and Kathy Moore had to pay a one-time retroactive tax on undistributed income under the MRT, Mandatory Repatriation Tax.The MRT is a provision in the Trump 2017 tax cut act. Justice Kavanaugh said that this case did not decide the constitutionality of a wealth tax on billionaires. However, had he ruled in favor of the Moores, the wealth tax, which several Democratic lawmakers are pushing, would have been barred. In addition, had SCOTUS ruled for the Moores, the U.S. Government would have lost millions of dollars in income and one-third of the current tax law would have been wiped out (cnn.com, 6/20/24). Even former House GOP Speaker Paul Ryan, who just about loved any tax cuts he saw, supported this SCOTUS decision. Ultra-reactionary Clarence Thomas and hard-liner Neil Gorsuch dissented.Justice Alito had repeatedly spoken to one of the Moores’s lawyers and, therefore, should have recused himself or stayed out of the case. Of course, ethically challenged Alito didn’t do that, but at least he voted with the seven-member majority (See cnn.com, 6/20/24).
And on June 21, 2024, in a major decision, SCOTUS, in an 8-1 vote, with Justice Thomas, once again, dissenting, upheld a federal law that forbids gun possession for domestic abusers. In this opinion, SCOTUS rejected an argument pushed by gun rights advocates that this provision violates the Second Amendment’s “right to bear arms.”
Chief Justice (CJ) Roberts, in his majority opinion, declared, “Our tradition of firearm regulation allows the government to disarm individuals who present a credible threat to the physical safety of others.” In this case, a TX man, Zackey Rahimi, was convicted for violating this law following a series of shootings. In one of those shootings, police said he fired into the air at a Whataburger restaurant after a friend’s credit card had been denied (cnn.com, Fritze, 6/21/24).
In his dissent, Thomas, who had written the 2022 opinion in the “New York State Rifle & Pistol Association v. Bruen,” in which a gun regulation had been struck down, made the following argument. He stated that the Court and Government could not point to a “single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence.” Thomas claimed that the Rahimi decision put “at risk the Second Amendment rights of many people.”
The Biden administration and gun control groups,however, noted that there were founding-era laws that prohibited dangerous Americans from possessing guns.These groups correctly told SCOTUS that women who are subject to domestic abuse are five times more likely to die at the hands of their abusers if there is a gun in the home (cnn.com, Fritze, 6/21/24).
Prior to the public issuance of this opinion, conservative Justice Amy Coney Barrett accused Justice Thomas, SCOTUS’s most senior Associate Justice, of a “laser-like focus on history” that “misses the forest for the trees (cnn.com, 6/19/24, Cole & Fritze).” Justice Barrett has joined the late Justice Scalia, for whom she once clerked, in condemning Justice Thomas’s extreme ideology. Scalia, remember, also similarly criticized Thomas. Scalia once stated, “I am an originalist (interpreter of the Constitution), not a nut.”Justice Barrett, in effect, is demonstrating that there are different ways to apply the conservative legal philosophy of originalism without joining the likes of Clarence Thomas. Hopefully, Thomas’s views on SCOTUS will continue to remain outliers even among the High Court’s current conservative majority.
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