top of page

Part 2-2022-2023 SCOTUS Summary

SCOTUS (Supreme Court of the United States) Wrap Up –Part 2 June 25, 2023

And the 2022-2023 SCOTUS (Supreme Court of the United States) landmark cases from the Roberts Court just “keep on coming.” As in the Alabama redistricting/voting rights June 8, 2023 opinion, CJ (Chief Justice) John Roberts’ High Court came down with another surprisingly good decision on June 15, 2023. This case involved Native American rights. This 7-2 opinion was joined by both liberal and conservative Justices. Justice Neil Gorsuch, Trump’s first appointee, who was raised in the West, often sides with Native Americans as he did here (, deVogue & Cole, 6/15/23). Only arch hard-liners Justices Alito and Thomas dissented. The High Court upheld a law that aimed to keep Native American adoptees with their tribes and traditions. SCOTUS upheld “family values.” Conservative Trump appointee Amy Coney Barrett wrote for the majority. A white TX foster couple, Jennifer and Chad Brackeen along with other families, challenged the Indian Child Welfare Act. That 1978 legislation was meant to address the legacy of abuses of Native American children, hundreds and thousands of whom had been separated from their tribes to be raised by families with no connection to their culture. Normally, when a child’s welfare is at stake, a judge is responsible for determining the child’s best interests. However, under this law, Native American children are subject to different rules, in order to safeguard their tribal ties. This legislation enacts priorities for adoption before a child can be placed with a non-Native family. Children should first be placed in the care of a member of their extended family. If that was not possible, priority should be given to a member of their tribe. If that failed, children should go to “other Indian families.” The boy involved in this case, known as A.L.M., entered TX’s foster care system in 2016 when he was less than a year old. This child was the son of a Navajo mother and Cherokee father. He joined the Brackeens after Navajo placements fell through. The Brackeens argued that their evangelical faith, along with their comfortable living circumstances, called them to become foster parents (, VanSickle, 6/15/23). In 2018, a TX District Court federal judge struck down the 1978 law as unconstitutional. On appeal, the U.S. 5th Circuit Court of Appeals reversed that decision and both sides sought SCOTUS review. Ohio and Oklahoma backed the Brackeen family as well as the conservative AZ Goldwater Institute. However, more than three-quarters of the 574 federally recognized U.S. Indian tribes and nearly two dozen state attorneys general across the political spectrum had called on SCOTUS to uphold the 1978 Indian Child Welfare law. Medical groups, including the American Academy of Pediatrics, supported this law. They argued it is an important tool to help redress “the intergenerational pain of lost connections and the trauma of historical loss (, 6/15/23,, AP, 6/15/23).”

Justice Barrett called the case’s issues “complicated” but stated, “the bottom line is that we reject all of petitioners challenges to the statute (, AP, 6/15/23).” SCOTUS rejected the Brackeen’s arguments on the merits and stated they lacked standing to sue (, VanSickle, 6/15/23). Besides Native American groups, President Biden strongly praised this decision. In his words, “Today’s decision from the Supreme Court keeps in place a vital protection for tribal sovereignty and Native children.” Biden added, “Our Nation’s painful history looms large over today’s decision. In the not-too distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families—all with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations. The Indian Child Welfare Act was our Nation’s promise: never again (, deVogue & Cole, 6/15/23).”

However, Native Americans, even with Justice Gorsuch in their corner, don’t win all their cases in the Roberts SCOTUS. In a 5-4 decision issued on June 22, 2023, Gorsuch joined the liberal Justices, Sotomayor, Kagan, and Jackson in dissent. The majority opinion, authored by Justice Kavanaugh, ruled against the Navajo Nation. The majority stated that the federal government has no legal duty under 19th Century treaties signed with this tribe to provide them with an adequate water supply. This litigation pitted the Navajo Nation against the U.S. Government, Arizona, New Mexico, and Utah. The Navajo Nation extends across these states and lies within the drainage basin of the Colorado River. Water from the Colorado River is scarce. In 1868, the U.S. promised the Navajo a permanent homeland. Navajo spokespersons argued that water to their reservations can cost twenty times more than it does in neighboring off-Reservation communities. The Navajo argument was that these 19th Century treaties constituted “a promise or solemn duty, and the United States’ duty is to see that the (Navajo) Nation has the water it needs and the United States promised (, de Vogue, 6/22/23).” Kavanaugh and his majority did not see it that way. He stated, “In short, the 1868 treaty did not impose a duty on the United States to take affirmative steps to secure water for the Tribe, including steps requested by the Navajos. These steps included determining the water needs of the Tribe, providing an accounting, or developing a plan to secure the water.” Again, adoption of a child that involves a Tribe and a non-Tribal family is one issue. When the government and several states clash with Native Tribes, under Roberts (Court) “rules” the powerful state and national institutions win, despite long-standing treaties with Native Americans.

In a second case also handed down on June 22, 2023, the rights of criminal defendants to file post-conviction challenges lost by the 6-3 conservative majority v. liberal minority, put in place by Trump’s appointments. In the “Jones v. Hendrix” case, SCOTUS ruled against Marcus Jones who had been convicted in 2000 and sentenced to 27 years in prison for being a felon in possession of a gun. His attorneys had argued that he thought his record had been wiped clean and he was no longer prohibited from having a gun. In 2002, Jones went back to court and filed a motion to challenge his original conviction, but lost. Seventeen years later in the “Rehaif v. United States,” opinion, SCOTUS narrowed the felon in possession of a gun statute. SCOTUS held in “Rehaif” that the government had to prove that people charged with violating federal gun laws knew that they were not allowed to have a weapon (, AP, 6/22/23,, de Vogue & Cole, 6/22/23). Following the 2019 “Rehaif” ruling, Jones tried to reopen his case. He noted that the Supreme Ct. had changed the rules in “Rehaif,” but lost in lower federal courts. Justice Clarence Thomas wrote for the Court that people who have used up their appeals don’t get another day in court “based solely on a more favorable interpretation of statutory law after his conviction became final.” Thomas additionally wrote that in only two instances, that of newly discovered evidence or the court’s new interpretation of a constitutional provision, can criminal prisoners get a second bite of the apple under a 1996 law meant to limit federal appeals. Since the time of Richard Nixon, the conservative Burger, Rehnquist, and Roberts Courts have narrowed the ability of prisoners to successfully raise post-conviction collateral or habeas corpus appeals in order to appease the “law and order” forces in this country. Only the liberal Warren Court, in the 1950’s through the late 1960’s, really cared about prisoners’ rights and expanded collateral/habeas appeals. In CNN Supreme Ct. analyst Steve Vladeck’s opinion, “Because of how Justice Thomas and other conservative justices read the relevant statutes and the Constitution, there will now be a significant number of federal prisoners who are unable to bring potentially meritorious collateral challenges to their convictions and sentences once their direct appeal has ended (, de Vogue & Cole, 6/22/23).”

Immigration law also came before SCOTUS this term. In the June 23, 2023 opinion, “U.S. v. Texas,” the Biden administration won a major victory. In an 8-1 opinion with only Justice Samuel Alito dissenting, Justice Brett Kavanaugh wrote for the majority. In that case, the High Court revived the 2021 Biden administration guidelines that had set priorities for deciding which unauthorized immigrants should be arrested and detained (, Liptak, 6/23/23). In these 2021 guidelines, the Biden administration had focused on “national security, public safety and border security.” These guidelines additionally gave Immigration and Custom Enforcement (ICE) agents substantial discretion to decide whether enforcement actions were warranted. Texas and Louisiana sued to block the guidelines, which they said allowed many immigrants with criminal records to remain free while their cases moved forward. Those states argued that such action imposed burdens on the states’ justice systems and violated a federal law that they said made detentions mandatory. Last summer, a TX Federal District Court Judge, Drew Tipton, blocked the use of the Biden guidelines throughout the nation and a unanimous three-judge Fifth Circuit Court of Appeals in New Orleans refused to pause this ruling. In a separate but nearly identical case brought by three other states, Arizona, Montana, and Ohio, a Sixth Circuit Court of Appeals in Cincinnati unanimously refused to block the Biden guidelines. Chief Judge Jeffrey Sutton wrote for that panel that these guidelines were in keeping with the approaches of previous administrations. Sutton stated, “Federal law gives the national government considerable authority over immigration policy (, Liptak).” When there are such conflicts among federal circuit appellate courts, SCOTUS must resolve the law to make it uniform throughout the nation. In Kavanaugh’s opinion, he stated that TX and LA did not have “standing.” “Standing,” as any first-year law student can tell you, is the legal right to sue and one must have standing to argue a case in court.

According to Kavanaugh, there is no standing for those states to sue in this case because those challenging the Biden guidelines, TX and LA, had not suffered the kind of injury that gave them standing to sue (Liptak, 6/23/23, The Biden administration had argued that because of limited resources, they needed to prioritize who to detain and deport (, de Vogue, 6/23/23). Kavanaugh aptly stated that TX and LA “have brought an extraordinary unusual lawsuit and have cited no precedent for a lawsuit like this.” Kavanaugh declared that if the Court were to allow states to bring the lawsuit at hand, it would “open the door to more lawsuits from states that think the executive is not doing enough to enforce the law in other areas such as drug and gun regulation and obstruction of justice laws.” Kavanaugh stressed that the doctrine of standing “helps safeguard the Judiciary’s proper—and properly limited role in our constitutional system. By ensuring a party has standing to sue, federal courts prevent the judicial process from being used to usurp the powers of the political branches (, de Vogue, 6/23/23).”

Remember, in my previous blogpost, I discussed the importance of the “Allen v. Milligan” SCOTUS opinion issued on June 8, 2023. In that case, SCOTUS held, in a 5-4 decision, that Alabama had to redraw its congressional district maps to include a second majority Black district. The High Court ruled that AL had redistricted its congressional map to dilute Black voters in violation of Section 2 of the 1965 Voting Rights Act. In the “Robinson v. Ardoin” decision, issued on June 26, 2023, SCOTUS, with no dissents, allowed the Louisiana congressional map to be redrawn to add another majority-Black district to its 5 White v. 1 Black configuration. The Justices reversed plans to hear the LA case themselves. SCOTUS lifted a hold that it had placed on the lower 5th Circuit Court of Appeals which it had issued in the summer of 2022. The very conservative 5th Circuit Appeals Court, which included two circuit judges that were GOP appointees, had declined to put a Federal District Judge’s plan for adding a Black district on hold after the GOP-dominated state legislature had refused to pass a plan with a second-majority Black district themselves (, Sneed, 6/26/23). As CNN SCOTUS analyst/law professor Steve Vladeck noted, the LA voting rights/redistricting decision follows on the heels of the AL “Allen v. Milligan” recent decision. SCOTUS’ refusal to hear the LA case will allow the matter to go back to the Fifth Circuit Court of Appeals for review in advance of the 2024 congressional elections. When the 5th Circuit hears this case again, it will have to consider the strong SCOTUS implication that the holding in the “Allen v. Milligan” case of remedying Black voter dilution by adding a second Black congressional district should be followed. In AL, Blacks received a second majority-minority district in a state where they constitute 27% of the voting population. In LA, Blacks constitute at least 32.40% of the population (See, Sneed, 6/26/23, Cohen & Cook 2022 Political Almanac). As I also noted in my prior blogpost, the GOP currently controls the House with just a five-seat majority (, de Vogue, 6/08/23). Commentator Vladeck has stated that at least three and as many as six House seats, along with the entire House itself, might otherwise have been controlled by Democrats if SCOTUS had not intervened in 2022 to keep the old district maps in control before that election. In 2024, AL and LA should now have two additional Democratic seats. GA, TX, as well as NC and OH, may also be similarly affected by the “Milligan” and “Robinson” decisions which could aid the Democrats in retaking the House in 2024 (de Vogue,, 6/08/23 & Wolf, kos elections, 6/08/23).

On Tuesday, June 27, 2023, American democracy was the major winner and Demagogue Donald and his authoritarian followers, “ y uu ge” losers. In the “Moore v. Harper” decision, SCOTUS, in an opinion written by CJ Roberts, ruled 6-3 against the “independent state legislature theory.” Hard-liners Thomas, Alito, and Gorsuch dissented. This extreme reading of the Constitution Trump and his followers were pushing would have radically reshaped how federal elections are conducted. This case involved the U.S. Constitution’s Election Clause. The Election Clause states, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.” According to the advocates of this fringe “independent state legislature theory” (ISLT), no other organs of state governments,-- not courts, not governors, not election administrators, and not independent commissions—can change a legislature’s actions on federal elections (, de Vogue, 6/27/23, Liptak,, 6/27/23, Waldman, “The Supermajority,” 2023 Simon & Schuster). The “Moore v. Harper” case came from N. Carolina. The Tar Heel State GOP legislature drew a voting map that the NC Supreme Ct. initially rejected as a partisan gerrymander that in nearly evenly politically divided NC would likely yield a delegation of 10 Republicans to 4 Democrats (, Liptak). NC GOPers appealed to SCOTUS and argued that the “Independent State Legislature theory” barred the NC High Court from second-guessing the Tar Heel legislature. In oral arguments conducted in Dec., 2022, SCOTUS seemed badly divided over the limits of the ISLT doctrine. After the 11/2022 elections, the NC Supreme Ct. flipped to favoring GOPers by a 5-2 margin and the “Red” state majority reversed its previous opinion. It now said that the state legislature could draw gerrymandered voting districts as it saw fit (Liptak, Many observers had expected SCOTUS to dismiss the case after the new NC Supreme Ct. ruling. However, CJ Roberts concluded that his High Court still had jurisdiction in this case (, Liptak, 6/27/23). There was both strong liberal and conservative opposition to implementing the radical ISLT doctrine. Former Obama Atty. General Eric Holder and Democratic election lawyer Marc Elias, as well as highly respected conservative retired federal judge Michael Luttig and Federalist Society co-founder Steven Calabresi, opposed ISLT. They aptly argued that if SCOTUS adopted this theory, it could lead to a subversion of democracy and the adoption of minority rule (, 6/27/23, Blumenthal). CJ Roberts’ majority opinion stated that “the Constitution does not exempt state legislatures from the ordinary constraints imposed by state law (Liptak,, 6/27/23).” He wrote that state courts have a role to play in judging district maps drawn by state legislatures (, Blumenthal, 6/27/23). Had SCOTUS ruled in favor of ISLT, state legislatures, with no checks on them from higher courts, could have appointed fake electors like Trump and his attorney John Eastman had argued and gotten away with it. Unchecked state legislatures could also have created gerrymandered maps that ran contrary to state constitutions yet would be able to do this with no judicial checks and balances. Under the rule of the fringe ISLT doctrine, states could also have enacted numerous voting rights restrictions that could also have been racially discriminatory (Waldman, “The Supermajority,” 2023). I will wrap up my series dealing with key SCOTUS opinions in a coming third blogpost.


bottom of page