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SCOTUS Wrap Up--Part 2

Supreme Court Wrap Up June, 2021 –Part Two July, 1, 2021


As I have previously stated, big business interests have one strong champion in the Roberts SCOTUS (Supreme Court of the United States). If we had any doubts about that, the 6/23/2021 opinion in “Cedar Point Nursery vs. Hassid” clearly demonstrates this High Court’s pro-business/anti-labor stance. In a 6-3 decision, written by Chief Justice (CJ) John Roberts, SCOTUS ruled in favor of Fowler Packing Company and Cedar Point Nursery against labor unions. In 1975, the CA legislature passed legislation unique to that state that allowed labor union organizers to meet with agricultural workers at work sites in the hour before and after work and during lunch breaks for as many as 120 days a year. The regulation’s drafters argued that this was the only practical way to give farmworkers, who are often nomadic, poorly educated, and lack English language skills a realistic chance to consider joining a union (nytimes.com, 6/23/21, Liptak, cnn.com, de Vogue & Stracqualursi, 6/23/21).


In 2016, Fowler Packing Company, a shipper of grapes and citrus, and Cedar Point Nursery, a grower of strawberry plants, sued CA officials in 2016. They argued that the regulation letting unions have access to their properties amounted to an unconstitutional governmental taking of private property without compensation (U.S. Const., Fifth Amendment). These companies lost in the lower courts. However, the current conservative High Court ruled the way many analysts believed they would in business/labor cases— for business. CJ Roberts was joined by the “usual conservative suspects,” Justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett. The entire liberal bloc, Breyer, Sotomayor, and Kagan, dissented. CJ Roberts wrote that “the access regulation amounted to simple appropriation of private property.” He added that the “access regulation grants labor organizations a right to invade the growers’ property. It, therefore, constitutes a ‘per se’ physical taking.” CJ Roberts suggested that this ruling would not hurt the ability of the government to come on to property for health and safety inspections because such access “is beneficial to the agricultural employees and the public (cnn.com, de Vogue & Stracqualursi).” Translation: attempts at union organizing or persuasion by free speech are “not beneficial to agricultural employees and the public.” “You’ve got to be kidding.” CA’s Solicitor General, Michael Mongan rightly defended the law. He stated it authorized only a limited number of organizers to enter the farms for the sole purpose of speaking with employees under strict time limits (cnn.com, de Vogue & Stracqualursi). In dissent, Justice Breyer stated that the access of organizers to laborers was “temporary, not permanent.” He, therefore, denied that labor organizers coming on the employers’ property was “equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain (cnn.com, de Vogue & Stracqualursi).” CNN commentator and University of Texas Law Professor Steve Vladeck noted, “Here we see the full force of the new 6-3 conservative majority embracing a broad view of property rights both in general and at the specific expense of organized labor.” Vladeck called this opinion’s party-line pro-business vote “almost certainly a harbinger of things to come (See cnn.com, de Vogue & Stracqualursi , 6/23/21).” This ruling was the latest blow to unions from a High Court that has already issued several decisions limiting the power of organized labor (nytimes. com, Liptak).

However, in two other cases, the Roberts Court surprisingly came down on the liberal side. In the first case, the Supreme Court, without intervening, left in place a lower federal court decision that was a victory for the LGBTQ community. This decision, from the 4th U.S. Circuit Court of Appeals, allowed Gavin Grimm, a transgender male, to use the men’s bathroom that corresponded to his current gender identity, male, not the female one he was assigned at birth. The late FDR SCOTUS appointee Justice Felix Frankfurter noted that denial of certiorari or SCOTUS not taking a case in general “doesn’t mean a damn.” Justice Frankfurter notwithstanding, SCOTUS’ not taking this LBGTQ case “does mean a damn.” Of course, it is a personal win for litigant Grimm. Furthermore, it is one big victory for the LGBTQ community and civil rights advocates who feared SCOTUS would take up this case and reverse the lower court decision (See cnn.com de Vogue & Duster, 6/28/21). Regressive anti-LGBTQ “bathroom laws” have been pushed by reactionary GOP state legislatures as recently occurred in N. Carolina. Only public outrage over that Tar Heel State legislation, including threats of boycotts, ultimately forced its repeal.


This bathroom gender case involves Title IX of the Health and Human Services (HHS) 1972 Education Amendments. Title IX prohibits schools from discriminating “on the basis of sex (hhs.gov).” This litigation began when transgender male Grimm, then a high school student in Gloucester County, VA challenged the local school board’s decision to require him to use either a unisex restroom or a restroom that corresponded to his sex at birth, a female facility (Liptak, nytimes.com, 6/28/21). In his 2015 lawsuit, Grimm argued that the school board’s policy violated Title IX and the Constitution’s Equal Protection Clause. The Obama Justice Department filed a “statement of interest” that accused the school board of violating Title IX. A federal appeals court deferred to the Obama interpretation, deciding in Grimm’s favor. The school board appealed to SCOTUS which then agreed to take up the case. Before SCOTUS could rule, Trump’s administration withdrew the Obama administration guidance. SCOTUS wiped away the 4th Circuit Federal Appeals Court decision. SCOTUS sent this case back for further proceedings. The case began again at the District Court level and came back to the Fourth Circuit. The 4th Circuit ruled again in Grimm’s favor. This time, the 4th Circuit cited SCOTUS’ landmark 2020 decision, “Bostock vs. Clayton County.” In that 6-3 decision, authored by conservative Justice and Scalia replacement Neil Gorsuch, SCOTUS held that federal law or Title VII of the 1964 Civil Rights Act protected LGBTQ workers (See cnn.com, de Vogue & Duster, 6/28/21). SCOTUS, as previously noted, left the second 4th Circuit decision in Grimm’s favor in place. Only ultra-hard-liners Thomas and Alito wanted to take this case up in the next SCOTUS term. Seven members of the Roberts Court, an overwhelming majority, had no problems with the 4th Circuit’s interpretation of Gorsuch’s Bostock case being applicable to Grimm’s situation. Although in his Bostock opinion, Justice Gorsuch specifically stated that this ruling did not address the issue of bathrooms, he was one of the seven-member SCOTUS majority letting the 4th Circuit’s latest ruling stand. Gorsuch, in fact, did not criticize that lower court’s citing and interpretation of Bostock (See nytimes.com, Liptak, 6/28/21).


Plaintiff Grimm was ecstatic. He stated, “I am glad my years-long fight to have my school see me for who I am is over. Being forced to use the nurse’s room, a private bathroom, and the girl’s room was humiliating for me, and having to go to out-of-the way bathrooms severely interfered with my education. Grimm aptly added, “Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials (de Vogue & Duster, 6/28/21).”



In a second case, SCOTUS revived litigation brought by parents who said that their son Nicholas Gilbert died in police custody. Gilbert died after St. Louis police officers placed their weight on his back as he was shackled face down. In this unsigned opinion from which hard-liners Justices Thomas, Alito, and Gorsuch dissented, the SCOTUS majority sent the case back down to the lower court to consider the claim of excessive force. In papers before the High Court, Gilberts’ parents compared elements of their white son’s death to the killing of black George Floyd in Minneapolis, MN. The City of St. Louis, MO was furious with the fact that Gilberts’ parents were using the death of George Floyd to “browbeat the High Court into reviewing this case.” The Gilbert case was being watched for any signal of the Justices’ willingness to step in and offer more guidance on the legal doctrine of qualified immunity. Qualified immunity shields law enforcement from liability for constitutional violations including allegations of excessive force. So far, the Roberts Court has not come out in favor of a strong doctrine of qualified immunity for law enforcement (De Vogue & Duster, 6/28/21).


And in a surprising pro-tenant move, SCOTUS voted on 6/29/2021 to leave a COVID-19 nationwide ban on evictions in place until the end of 7/2021. In this 5-4 action against landlords, conservatives CJ Roberts and Justice Kavanaugh joined liberal Justices Breyer, Sotomayor, and Kagan. Conservative Justices Alito, Coney Barrett, Gorsuch, and Thomas stated they would have ended this eviction moratorium. This eviction ban had been initially put into place in 2020 by the Centers for Disease Control and Prevention (CDC). As of 6/07/2021, roughly 3.2 million people in the U.S. faced eviction in the next two months, according to the U.S. Census Bureau (latimes.com, AP, 6/29/21). The CDC had put this ban into place to provide protection for renters. The CDC rightly feared that having families lose their homes, move into shelters, or share crowded conditions with relatives or friends during the pandemic would further spread COVID-19 (latimes.com, AP). A D.C. Judge had struck down the moratorium as exceeding the CDC’s authority, but put her ruling on hold. SCOTUS voted to keep the ban in place. In a concurring opinion, Justice Kavanaugh stated he had agreed with the trial judge’s ruling. However, he joined the 5-4 moratorium majority because it’s due to end in a month and “because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.” During the week of 6/21/2021, the U.S. Treasury Department issued new guidance encouraging states and local governments to streamline distribution of nearly $47 billion in available emergency rental assistance funding. SCOTUS indicated that it did not expect another rent moratorium extension (latimes.com, AP, 6/29/21). This pro-tenant ruling gives millions of Americans critical time to find new housing with the help of extra funding.



However, do not think that the present SCOTUS is turning liberal. Besides ruling repeatedly against labor unions, the current High Court is no friend of immigrant rights. In the 6/29/2021 opinion of “Johnson vs. Guzman,” Justice Alito, writing for the 6-3 conservative majority, strengthened the government’s power to hold in jail immigrants who face deportation. In that case, Alito held that immigrants who reenter the country illegally have no right to a bond hearing. In the “Johnson vs. Guzman” case, SCOTUS had to resolve a seeming conflict between two provisions in immigration law. One part of the law allowed those facing deportation to seek release on bond. However, a second stricter immigration law provision requires those who reenter the country illegally after having been deported to be held. Lower courts had been divided over what provision was binding. Alito wrote in “Johnson vs. Guzman” that the second, stricter provision “governs the detention of aliens subject to reinstated orders of removal, meaning those aliens are not entitled to a bond hearing while they pursue withholding of removal (latimes.com, Savage, D., 6/29/21).” This opinion is the third time in recent years that SCOTUS has overturned lower court rulings that allowed at least some immigrants facing possible deportation to seek release on bond. In the two previous cases, the SCOTUS majority reversed the Federal 9th Circuit Court of Appeals in CA. The “Johnson vs. Guzman” ruling reversed the VA-based 4th Federal Circuit Court of Appeals. In all three of these cases, Alito wrote the anti-immigrant majority opinion, while Justice Breyer was in the dissent. Writing the dissent in the “Johnson vs. Guzman” opinion, Breyer was joined by Justices Sotomayor and Kagan. Breyer’s “Johnson vs. Guzman” dissent stated, “I can find no good reason why Congress should have wanted categorically to deny bond hearings to those who, like respondents, seek to have removal withheld or deferred due to a reasonable fear of persecution and torture (latimes.com, 6/29/21, Savage, D.).”



Again, please ignore a few free speech, some criminal procedure cases, and a few civil liberties wins. Look at the big picture. With its post-Ginsburg 6-3 lineup, the Roberts Court is on the conservative/reactionary side in all the key areas that top the hard-right’s wish list. These include making religion a preferred right or removing the wall between church and state, being pro-big business/anti-labor, and, finally, never ruling in favor of voting rights. SCOTUS may have protected high school PA cheerleader Brandi Levy. However, on the last day of the 2020-2021 SCOTUS term, 7/01/2021, the Roberts SCOTUS, once again, became an unabashed political cheerleader for the GOP. This SCOTUS has never met a law that national and state GOPers enacted to keep themselves in power that it didn’t like. When Democrats challenged extreme political gerrymandering, the Roberts SCOTUS was there to uphold this practice (See “Rucho vs. Common Cause”). When Koch Brothers and their ultra-rich friends argued for nearly unimpeded spending for GOP candidates and campaign issues, SCOTUS opened the spigots for these top 1% billionaires in the awful “Citizens United v. FEC” opinion (“The Chief,” Biskupic, 2019). The Roberts SCOTUS called spending by gazillionaires a matter of “free speech.” If most people don’t have such money to advocate their causes, well, that’s too bad. And the free speech rights of Koch Brothers and their ilk must be protected, even if secrecy is involved. In a 6-3 opinion, CJ Roberts and his fellow conservatives struck down a CA rule on 7/01/2021 in the “Americans for Prosperity vs. Bonta” opinion. The three liberal Justices, Breyer, Sotomayor, and Kagan dissented. CA required that non-profit charities that solicit donations in that state identify their substantial donors to the CA Attorney General. This same information already goes to the IRS. The Koch-affiliated Americans for Prosperity Foundation and the conservative Christian public interest law firm, the Thomas More Law Center, challenged this measure. The case pitted the interests of charities to maintain the privacy of their donors against the states’ interests in policing charitable fraud. Campaign finance reform groups also hoped that upholding CA’s rule would keep more anonymous or “dark money” from entering the political sphere. CJ Roberts ruled in favor of Koch and similar “dark money” interests. We should not be at all surprised (cnn.com, de Vogue, Stracqualursi, & Schouten, 7/01/21, Liptak, 7/01/21).


IMHO, the biggest and most significant opinion in this term, “Brnovich vs. DNC,” was also issued on 7/01/2021. This case will set off pre-and post-July 4th political fireworks and have political ramifications for years. In this 6-3 opinion with the same conservative/liberal Justice breakdown as the Bonta case, the Roberts SCOTUS continued to gut the Voting Rights Act (VRA) something they have been doing since its 2013 “Shelby vs. Holder” case. In the 5-4 “Shelby” opinion, remember, CJ Roberts stated that Section 5 of the VRA was not valid anymore. Sec. 5 required pre-clearance with the Justice Department of changes in voting rights regulations in several mainly Southern states which had a history of suppressing black voters (“The Chief,” Biskupic). After Shelby, many states immediately enacted a rash of voting rights restrictions. After the 2020 election, when Demagogue Donald kept yelling falsely about “voter fraud,” other GOP-dominated states joined the voting restriction “parade.” Since 5/2021, GOP-controlled legislatures have passed more than 20 voting restriction bills in 14 states, according to the Brennan Center for Justice, with another 60 bills in the works (huffpost.com, Foley & Blumenthal, 7/01/21).


The “Brnovich” litigation involved the VRA’s Section 2. Section 2 was the only section left standing to fight voter suppression under the VRA after SCOTUS gutted Section 5 in its “Shelby” decision. Under the VRA’s Section 2, once an act that appears to involve suppression has been passed by a state, it can be challenged. “Brnovich” involved a law passed by GOP-dominated AZ involving two provisions. One of these provisions says that in-person ballots cast at the wrong precinct on Election Day must be wholly discarded. The second provision restricts a practice known as “ballot collection.” It states that only family caregivers, mail carriers, and election officials can deliver another person’s completed ballot to a polling place (cnn.com, de Vogue, Schouten, & Duster, 7/01/21). The Federal 9th Circuit Court of Appeals invalidated both AZ provisions under Section 2 of the VRA. It stressed AZ’s “long history of race-based discrimination against American Indians, Hispanic, and African citizens,” and highlighted a “pattern of discrimination against minority voters that has continued to this day (cnn. com, de Vogue et al).” The Democratic National Committee (DNC) sued AZ in 2016 to block those policies. It argued and the 9th Circuit agreed that AZ was in violation of the “results test” which is part of the VRA. The “results” of these new provisions affect non-white voters disproportionately. Non-white AZ voters were more likely than white ones to vote outside their assigned precinct. The 9th Circuit also agreed that many people of color, particularly Native Americans, live outside of regular mail service, making ballot-delivery efforts more helpful to them (huffpost.com, Foley et al).



Justice Alito writing for CJ Roberts, Coney Barrett, Thomas, Kavanaugh and Gorsuch rejected the DNC’s arguments. He found that “racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms.” Alito declared that neither the out-of-precinct policy nor AZ’s in-ballot collection law violates Sec. 2 of the VRA.” He added that “having to identify one’s own polling place and then travel there to vote does not exceed the ‘usual burdens of voting (cnn.com, de Vogue et al, 7/01/21).’” Alito called AZ’s actions “justified” in enacting the rule to preserve the integrity of election results.” Alito stated that “a state may take action to prevent election fraud without waiting for it to occur within its own borders (huffpost.com, Foley, et al).” Translation: Alito’s parroting the GOP/Trump line about voter fraud that in most cases does not exist. Alito went on to examine whether the 9th Circuit erred in finding that the AZ voting law was enacted with a “discriminatory purpose,” another violation of VRA Sec. 2. He found that despite a “racially-tinged” video and comments by one of the authors of the bill, his talk was “partisanship” and that the AZ legislature as a whole was not imbued with racial motives (“Brnovich” opinion).


Alito did not entirely wipe away Section 2 of the VRA. However, in a concurring opinion, Justices Thomas and Gorsuch wanted to do just that and totally destroy the VRA (See huffpost.com, Foley et al, 7/01/21). Although Alito’s opinion found that AZ did not intentionally discriminate against minority voters, he left in place the right to challenge voting laws under the VRA’s “intent to discriminate” standard intact. President Biden’s Justice Department, under Atty. General Merrick Garland, is suing GA for its draconian voter suppression law under the still viable post-“Brnovich” “intent to discriminate” standard. Courts will consider different factors in order to determine whether GA’s legislature intentionally discriminated against black voters (cnn.com, de Vogue, 6/26/21). But let’s not delude ourselves. Proving intentional discrimination is much harder than proving minorities were harmed under the “results test” gutted by Alito in “Brnovich.” After the “Bronvich” opinion, it will be nearly impossible for voting rights advocates and the Department of Justice to win similar cases, especially those related to “time, place, or manner for casting ballots, the usual way such suppression laws are being drafted (See huffpost.com, Foley et al, 7/01/21).” And even if several legislators made racist comments when enacting the bill, if such a case is appealed to SCOTUS under the “intent to discriminate law,” this 6-3 Trump/McConnell majority might find these comments “insignificant” or just “inflamed partisanship.” After all, voter suppression laws must be upheld to keep the Democratic base from winning states like AZ and GA.


In dissent, Justice Kagan wrote that more of these “neutral” suppression laws will be passed by GOP state legislatures. She blasted her colleagues’ interpretation of the VRA’s Sec. 2. She argued that Congress not the Court should determine whether the VRA needs to be changed. Yes, Sens. Sinema (D-AZ) who previously supported abolishing the filibuster, (See Kos, 7/01/21), and Sen. Manchin (D-WVA) must understand that this Jim Crow relic must be abolished or watered down. Voting rights are central to our democracy.


With the “Brnovich” opinion, the new 6-3 Trump- bolstered Roberts Court has shown its true colors. When Democrats didn’t vote in 2014 and 2016 we ended up with the McConnell/Trump voter suppression, pro-business SCOTUS. In 2022, our base must come out in droves plus, despite suppression efforts, to make sure we keep the House, Senate, and throw out GOP legislatures. We must make appointing our SCOTUS and lower court judges a rallying cry, along with protecting voter rights. We must get more of our Senators elected and make sure they stand for abolishing the filibuster. It’s all about preserving our democracy.