Part One SCOTUS Wrap Up

SCOTUS (Supreme Court of the United States) 2022 Summary Part 1 June 23, 2022


Many of us have been closely following the 1/06/2021 powerful congressional committee hearings. Those hearings are investigating how Demagogue Donald was working for weeks to overthrow our democracy by illegitimately keeping himself in power despite handily losing the 11, 2020 presidential election to Democrat Joe Biden. More and more bombshell information keeps coming out. Donald was repeatedly told by many of his loyal advisors like Attorney General Bill Barr and others that his claims of voter fraud and a stolen election were “BS” or completely unfounded (See nytimes.com, Schmidt & Haberman, 6/18/22). The committee heard repeated testimony of how Donald tried to pressure his VP Mike Pence to overturn the Electoral College votes and get alternate GOP electoral slates in contested states, which Pence rightly refused to do. The committee produced evidence showing that the rioters were very close to seizing Pence and he could easily have been killed by this Trump-incited mob (cnn.com). In a CNN interview on its “State of the Union” program, former Trump White House director of strategic communications, Alyssa Farah Griffin, stated that Trump “blurted out watching Joe Biden on TV, ‘Can you believe I lost to this guy (Shapero, J., axios.com, 6/19/22)?’” IMHO, with that statement, Donald privately admitted he knew that he had lost to Biden, something he repeatedly keeps denying. Griffin, in addition to many legal experts and other analysts, still believe that it will be hard to prove a case against Donald trying to overthrow the election even though he knew he had lost (See nytimes.com, Schmidt et al, axios.com, Shapero). However, Griffin noted, “I do think it’s going to inform the public about a man who lost and couldn’t do what we’ve done for the entirety of our history, which is allow a peaceful transition of power (axios.com, Shapero, 6/19/22).” However, whether or not Trump is eventually indicted and convicted of some charge/charges involving the riot, tax fraud, or obstruction of justice, he has caused much long-term damage. This is especially true with his appointments of the three ultra-conservative SCOTUS (Supreme Court of the United States) Justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. It is now that time to review the key decisions that the 6-3 dominated Trump Court has handed down.


Let’s first look at a labor relations case that SCOTUS issued on 6/15/2022, an 8-1 decision, “Viking River Cruises v. Moriana.” In that decision, the High Court gave California employers a major victory. SCOTUS sharply limited a state labor law that authorized private lawsuits on behalf of groups of workers, even if these workers had agreed to resolve their disputes through individual arbitration. SCOTUS decided that the Federal Arbitration Act preempts or overrides state law. In allowing these private suits, CA allowed employees to escape binding arbitration agreements they signed when they were hired. Binding arbitration usually favors employers. Viking sought to block a private lawsuit brought on behalf of one of its former Los Angeles sales agents. In 2004, the CA Legislature adopted the Private Attorneys General Act, PAGA. The state legislature said that it did not have enough staff to protect workers’ rights. The Legislature argued that CA’s labor laws were going unenforced, allowing employers to cheat workers out of their wages or not be paid extra for overtime work. Business leaders complained that plaintiffs’ lawyers were winning big settlements by filing claims on behalf of thousands of employees. Tom Manzo, president of the California Business Industrial Alliance, called the state’s law “a toxic policy that leaves both employers and employees with less while trial attorneys make more (latimes.com, 6/16/22, Savage, D.).” Los Angeles Attorney Jack Sholkoff aptly called this decision a huge win for employers and arbitrators and CA Democratic Attorney General Rob Bonta called the decision “disappointing.” The only dissenter was Clarence Thomas (latimes.com, Savage). He sure didn’t object as a “friend of labor.” He just argued that federal law does not apply to proceedings in state courts. We should not be surprised that the Roberts High Court, known for its strong pro-business stance, gave business a big win.


Some immigration cases were additionally decided by SCOTUS. In “Johnson v. Arteaga-Martinez,” SCOTUS ruled against requiring the government to hold a bond hearing no matter how long immigrants were being held. Liberal Justice Sonia Sotomayor wrote the Court’s decision in that case. SCOTUS left open the issue of immigrants’ ability to argue that the Constitution does not permit such indefinite detention without a hearing (kpbs.org, AP 6/13/22). However, with this SCOTUS, I would not be very optimistic about how such a case involving that issue would favor immigrants. In another immigration case, “Garland v. Aleman Gonzales,” ultra-conservative Justice Alito, in a 6-3 opinion, denied the rights of immigrants to band together. Alito stated that federal judges can only rule in the case of immigrants before them, not a class of similarly situated people. Sotomayor and liberals Stephen Breyer and Elena Kagan dissented. Sotomayor wrote that the ability to join together in a class was especially important for people who have no right to a lawyer and are “disproportionately unlikely to be familiar with the U.S. legal system or fluent in the English language (kpbs.org, AP, 6/13/22).” Sotomayor wrote that this opinion “will leave many vulnerable non-citizens unable to protect their rights (kpbs.org, AP, 6/13/22).” However, on 6/15/2022, SCOTUS ruled in “State of Arizona v. City and County of San Francisco, California,” that it was wrong to get into a dispute involving a Trump-era immigration rule that the Biden administration had abandoned. In 2/2022, SCOTUS heard oral arguments in this case brought by GOP-led states that denied green cards to immigrants who use food stamps, Medicaid, or other benefits because these immigrants were then “public charges.” The Biden administration rescinded these draconian Trump rules. Because of Biden’s actions, SCOTUS dismissed the case. A lower court ruling, therefore, remains in place favoring the Biden administration’s stance that states can’t intervene on this issue (americanindependent.com, AP, 6/16/22). Yes, immigrants won here, but this case is based on a procedural technicality, not a clear ruling on the major issues involved, as Chief Justice Roberts (CJ) noted in separate comments he wrote on this matter (See americanindependent.com). Look at the broad picture on immigration law. In recent years, SCOTUS has taken an increasingly limited view of immigrants’ access to the federal court system. Nicole Hallet, director of the immigrants’ rights clinic at the University of Chicago Law School, said that “for a while, it looked like SCOTUS would push back against extreme anti-immigrant cases and would interpret a statute to allow for as much judicial review as possible. Clearly now, the court is no longer willing to do that (kpbs.com, AP, 6/13/22). “


None of us should be surprised by the major religious decision SCOTUS issued on 6/21/2022, “Carson v. Makin.” This conservative court has from the “get-go” made no bones about its belief that the Free Exercise Clause of Religion in the Constitution’s First Amendment is superior and, frankly, overrides the Establishment of Religion Clause in that same amendment. The Establishment Clause forbids Congress and the states from favoring any religion. Whenever religious believers, especially conservative Christians, argue that their right to publicly pray, get a tax supported education, and related issues are at stake, the High Court is 1,000% in their corner. In the “Carson” case, Maine required rural communities without public secondary schools to provide for their children’s education in one of two ways. They could either sign contracts with nearby public schools or they could pay tuition at a private school chosen by the parents as long as that school is a “non-sectarian one in accordance with the First Amendment of the United States Constitution (Liptak, nytimes.com, 6/21/22).” Two Maine families challenged that state’s law saying it violated their rights to freely exercise their faith. The two religious schools involved argued that they “want to integrate biblical principles, teach children to spread Christianity, and develop a Christian worldview.” These two religious schools openly admitted that “they discriminate against homosexuals, transgender individuals, and non-Christians.” In this 6-3 ruling written by CJ (Chief Justice) Roberts and joined by Thomas, Alito, and the three Trump-appointed Justices, Gorsuch, Kavanaugh, and Coney Barrett, SCOTUS stated that Maine’s non-sectarian requirement for its otherwise generally available tuition assistance payments violates the Constitution’s Free Exercise Clause. In Roberts’ words, “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” Roberts called the ME law non-neutral, one that discriminates against religion. Translation: A small group of individuals have the right to override the majority’s view that separation of church and state is more important. This Court has basically overthrown over 70 years of case precedent upholding the separation of church and state. The wall separating church and state that Thomas Jefferson strongly talked of has, with this ruling, received a strong major crack in its foundation (cnn.com, de Vogue, et al, 6/21/22). Roberts, remember, clerked for CJ Rehnquist who also considered the “wall between church and state,” a key belief of one of our Founding Fathers, mere “talk” and irrelevant to our Constitution. In Rehnquist’s opinion, the Establishment Clause only meant not making one religion the major one in the U.S., nothing else.

Roberts has never been a strong upholder of the Establishment Clause, and neither have the other five Justices joining his opinion. We should have seen the results of this case coming for a long time. In a 2020 case, “Espinoza v. Montana,” SCOTUS ruled states must allow religious schools to participate in programs that provide scholarships to students attending private schools, because failure to do so violates the Free Exercise Clause. The MT case turned on the school’s religious status, not what was in their curricula. Roberts then wrote that “there may be a difference between an institution’s religious identity and its conduct,” but left that as an open question. In the ME “Makin” case, CJ Roberts’ 6-3 majority resolved that open question in favor of religious schools who openly indoctrinate their students with strong religious beliefs (nytimes.com, Liptak).


In dissent, liberal Justices Breyer, Kagan, and Sotomayor stated that the Court “had never previously held what the Court holds today, namely that a State must (not may) use state funds to pay for a tuition program designed to ensure the provision of free statewide public school education.” In a separate dissent of her own, Justice Sotomayor stated that this ruling and others dismantled “the wall of separation between church and state that the Framers fought to build.” Sotomayor accused the SCOTUS majority of “embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses (Establishment and Free Exercise ones).” Although only Vermont presently has a program similar to Maine’s, there is no doubt that many states in the South and Midwest will rush to pass similar programs. Governments, according to constitutional experts, will now be put in the awkward position of having to choose between directly funding religious activity or not providing funding at all (cnn.com, de Vogue et al, 6/21/22). Again, we have this 6-3 majority basically ignoring the Establishment Clause because we let Trump get elected and “pack” the Court with his Religious Right believers. Remember, all elections count.


And the reactionary “hits” on the American public just “keep on coming” from this SCOTUS. Never mind the recent horrible spate of mass shootings in Buffalo, NY and Uvalde, Texas. Even GOPers in the Senate are close to passing a bipartisan package of gun safety measures, the first one since 1994 because of such senseless massacres. In fact, 15 Senate GOPers including Minority Leader McConnell just broke a filibuster to advance this gun safety bill (cnn.com, Foran, Fox, and Zaslav, 6/22/22, Zaslav, cnn.com, 6/23/22). The 6-3 SCOTUS majority, including CJ Roberts, could care less. In this SCOTUS’ views, the Constitution’s Second Amendment “right to bear arms” is, frankly, more important to this “Gang of Six” than just about any other of the Bill of Rights’ 10 Amendments to the U.S. Constitution. What about the numerous lost lives of innocent people, including many young children? Well, that’s a necessary “price” we pay for our liberty. As liberal dissenting Justice Sonia Sotomayor has repeatedly stated, “This SCOTUS is only overruling decades of precedent because of recent changes in its membership.” Translation: Trump’s addition of hardliners Gorsuch, Kavanaugh, and Coney Barrett (See, cnn.com de Vogue, A., 6/21/22). IMHO, a 6-3 majority looks more “decisive” than a 5-4 one.


On 6/23/2022, in this landmark decision, SCOTUS struck down a NY law that placed strict limits on carrying guns outside the home saying it was at odds with the Second Amendment’s “right to bear arms (See nytimes.com, Liptak, 6/23/22).” The NY law requires that people seeking a license to carry a handgun outside their homes show a “proper cause.” California, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island have similar laws. Robert Nash and Brandon Koch were authorized to carry guns for target practice and hunting away from populated areas in NY and Mr. Koch was allowed to carry a gun to and from work. Nash and Koch sued. They said that “the state (NY) makes it virtually impossible for the ordinary law-abiding citizen to obtain a license.” Nash and Koch did not receive unrestricted licenses because neither of them demonstrated “a nonspeculative need to carry a handgun virtually anywhere in public,” NY’s solicitor general told SCOTUS in a written brief (nytimes.com, 6/23/22). In the 2008 D.C. “Heller” case, SCOTUS recognized an individual right to keep guns at home for self-defense. For several years after “Heller,” SCOTUS was almost silent on the scope of Second Amendment rights. It often turned down countless Second Amendment appeals, while lower courts generally sustained gun control laws. However, lower courts were divided on the issue raised in the present NY case—whether states can stop law-abiding citizens from carrying guns outside their homes for self-defense unless they can satisfy the authorities they have a good reason for doing so. In 2017, Justice Thomas wrote, “the treatment of the Second Amendment was a disfavored right, but that the framers (of the Constitution) made clear that all Americans have the right to bear arms for self-defense.” In 2019, several months after Kavanaugh joined SCOTUS, the High Court agreed to hear a challenge to a New York City case involving a gun regulation that allowed that city’s residents keep guns at home and take them to seven shooting ranges in the city. That regulation prohibited them from taking guns to second homes and shooting ranges outside the city. After SCOTUS granted review in that case, NY City repealed the regulation and the Court dismissed that case as moot. Justice Kavanaugh then wrote a concurring opinion that “lower courts were not sufficiently sensitive to Second Amendment rights and should address that issue soon.” At that time, the conservative SCOTUS wing feared CJ Roberts was not yet willing to vote with them. However, six months after Coney Barrett joined SCOTUS, the Court agreed to hear the NY case, “New York State Rifle & Pistol Association v. Bruen.” This time, they understood that CJ Roberts now had the “courage” to join their opinion striking down NY’s gun regulation (See nytimes.com, 6/23/22).

This anti-gun regulation case was written by the Justice many call the “de facto” CJ, Clarence Thomas. Thomas blatantly stated that NY’s State’s gun regulation “violates the Constitution.” Thomas strongly declared that the Second and Fourteenth Amendments protect and individual’s right to carry a hand-gun for self-defense outside the home.” He wrote that whether gun restrictions can stand, “must be measured by the nation’s history, not by a state’s assertion of public safety interests.” According to Thomas, the Second Amendment “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding (cnn.com, 6/23/22, Biskupic, J.) Apparently, only the views and actions of frontiersmen, hundreds of years ago, defending themselves in isolated settlements count. We have in Thomas’ gun opinion a “dead Constitution” in which the changes in our modern 21st Century mean absolutely nothing. In a dissent written by Breyer and joined by Sotomayor and Kagan, Breyer stated that after all the recent gun violence that has occurred in the U.S., the Court’s majority “severely burdens States’ efforts to curb gun violence.” According to the dissenters, “the Second Amendment allows the States to take account of the serious problems posed by gun violence. The Court’s interpretation ignores these significant dangers and leaves States without the ability to address them (cnn.com de Vogue & Sneed, 6/23/22).”


The reaction to this opinion was swift. While the NRA praised it, President Biden correctly called this ruling one that “contradicts both common sense and the Constitution, and should deeply trouble us all. In the wake of the gun violence in Buffalo and Uvalde and daily acts of gun violence that do not make national headlines, we must do more as a society, not less to protect our fellow Americans (cnn.com, de Vogue & Sneed).” Constitutional experts agreed and stated that this case will have “monumental ramifications beyond carrying firearms in public, on everything from age restrictions, to assault weapons bans (cnn.com de Vogue & Sneed, 6/23/22).” These experts believe we will be in for a “whole new slew of litigation challenging any and every gun-control measure.” This decision will, no doubt, impair sensible solutions to curbing gun violence (Vladek, de Vogue et al, cnn.com, 6/23/22).” NY City Mayor and former NYPD Captain Eric Adams called this decision “appalling” and stated his team “will immediately get together to work to protect New Yorkers.” NY Gov. Kathy Hochul called the decision “shocking, absolutely shocking.” She is preparing legislation to address this issue that will likely take place in a special legislative session in 7/2022. NY U.S. Senator Kirsten Gillibrand stated that this ruling “shows an activist court that is undermining precedent and common sense state laws that protect citizens and uphold public safety (nytimes.com, Liptak, 6/23/22 & Bromich, Ashford, & Southall, 6/23/22).”


And if “Terrible Thursday’s” gun ruling were not enough, on that very same 6/23/2022 date, SCOTUS issued two other reactionary decisions. In an 8-1 decision written by Trump appointee Gorsuch, with only Sotomayor dissenting, SCOTUS allowed two GOP North Carolina state legislative leaders to intervene in a case defending a voter photo ID law required for voting. Never mind that NC’s Atty. General, a Democrat, was already defending this law being challenged by the N. Carolina NAACP as disproportionately hurting Blacks. The NC legislators allowed to intervene, Senate president pro-tempore Philip Berger and Timothy Moore, Speaker of the state House of Representatives, brought this case. They argued that the Democratic State Atty. General Joshua Stein is not “adequately representing their interests.” Lower federal courts rejected their challenges. Gorsuch wrote that a federal court must “respect the rights of leaders of the people’s legislature to defend duly enacted state statutes against constitutional challenges.” This is the second time this year, according to Supreme Court analyst/ law professor Steve Vladeck , that “the Justices have stretched existing procedural rules to allow GOP state officials to participate in legislation where Democratic state officials had already been involved.” Earlier in this term, SCOTUS said KY’s GOP Atty. General could intervene to defend an abortion law. KY and NC have Democratic Governors but GOP state legislative majorities and elected GOP officials in their executive branches. Vladeck added, “These decisions will have strong ramifications for states with divided governments and now it’s much more likely that there will be multiple parties purporting to speak on the state’s behalf (cnn.com, Sneed & de Vogue, 6/23/22).” IMHO, this Republican-dominated SCOTUS is doing its best to give the GOP an repeated chances to get its cases heard because it doesn’t trust Democratic governors or attorney generals. “Politics at its worst.” When suppressing voter rights is involved, as well as curtailing abortion rights, the “disadvantaged” GOP needs to get “more political bites into the litigation apple.”


This reactionary SCOTUS has also cut into the Miranda criminal procedure decision. In this third “Terrible Thursday” opinion, Justice Alito authored a 6-3 decision with the usual conservative/liberal “lineup” (no criminal law pun intended). Alito wrote that suspects who are not warned about their right to remain silent cannot sue a police officer for civil damages under federal civil rights law, even if the evidence was ultimately used against them in their criminal trial. Justice Alito, joined by the five other GOP-appointed Justices, said that a violation of the Miranda right “is not itself a violation of the Fifth Amendment, and we see no justification for expanding Miranda to confer a right to sue.” Never mind that the 1960’s Warren Court strongly argued that Miranda and related cases were a clear violation of the Fifth Amendment’s right against self-incrimination. In dissent, Justice Kagan, joined by Sotomayor and Breyer, aptly said that the Court’s ruling was stripping “individuals of the ability to seek a remedy for violations of the right recognized in Miranda. The majority here, as elsewhere, injures the right by denying the remedy. (cnn.com, Sneed & de Vogue, 6/23/22).” University of Texas Law Professor/CNN analyst Steve Vladeck correctly stated, “Today’s ruling doesn’t get rid of the Miranda right. But it does make it harder to enforce. Under this ruling, the only remedy for a violation of Miranda is to suppress statements obtained from a suspect who’s not properly advised of his right to remain silent. But if the case never goes to trial, or if the government never seeks to use the statement, or if the statement is admitted notwithstanding the Miranda violation, there’s no remedy at all for the government’s misconduct (cnn.com, Sneed et al, 6/23/22). How typical of the CJ Roberts/Thomas SCOTUS. A major liberal precedent is not formally overruled, but badly gutted. In my next blogpost, I will continue the wrap up of SCOTUS’ major opinions.