Reflecting on the Supreme Court Term in Review

I joined Joyce Vance and Cecilia Wang for a fantastic Brennan Center LIVE event

On Wednesday, the Brennan Center for Justice hosted a live-streamed event titled “Supreme Court Term in Review,” which was open to the general public. Click here to view a recording of the panel.

Speakers:

Joyce Vance, Distinguished Professor of the Practice of Law, University of Alabama School of Law; Senior Fellow, Brennan Center for Justice

Cecillia Wang, National Legal Director, ACLU

Kim Wehle, Professor of Law, University of Baltimore School of Law

Moderator: Alicia Bannon, Director, Brennan Center Judiciary Program and Kohlberg Center on the U.S. Supreme Court

The Brennan Center describes itself as “an independent, nonpartisan law and policy organization that works to reform, revitalize, and when necessary, defend our country’s systems of democracy and justice.” The Brennan Center LIVE promotes the Brennan Center’s mission by hosting virtual and in-person conversations with an array of experts discussing topics such as “democracy, justice, race, and the Constitution.”

Given that we are in a constitutional crisis and the Supreme Court holds the reins to a large degree, the full discussion is well worth your time.

Here are some of the basic points that came out:

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Why should we care about Supreme Court decisions?

Supreme Court decisions create law that impacts all of us—they do not just restate the law. And the justices often do it subjectively.

This past term, the Court ruled on a range of crucial issues, including access to healthcare, public education, political representation, and the ability of lower federal courts to keep the government in line with the rule of law. The cases include United States v. Skrmetti, Mahmoud v. Taylor, Trump v. Wilcox, Medina v. Planned Parenthood South Atlantic, Trump v. CASA, and Department of Homeland Security v. D.V.D.

What happened with birthright citizenship and nationwide injunctions (Trump v. CASA)?

First off, what is birthright citizenship, what are nationwide (or universal) injunctions, and how do they relate to each other?

Birthright citizenship is codified in the Fourteenth Amendment. The Fourteenth Amendment’s plain language states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As Cecilia Wong explained, “nationwide injunctions, or to use the Court’s term universal injunctions, are orders where a district court holds that the defendant's actions are unlawful and issues an order, a remedy, that extends beyond the plaintiffs in the case without making findings why that relief is necessary for the plaintiff in that case.” These injunctions are typically used to prevent actions that a district court judge determines to be unlawful. They have been challenged by both political parties, who think certain judges issuing injunctions are partial on political issues such as abortion access.

In this case, the Trump administration challenged three injunctions imposed by different federal district courts across the country. The orders put a temporary hold on Trump’s Executive Order ending birthright citizenship from going into effect.

The Supreme Court gave Trump a major win without directly addressing the issue of birthright citizenship. The ruling in Trump v. Casa essentially puts an end to the nationwide injunctions that federal judges have been issuing to address the wave of illegal actions coming out of the White House, including the Executive Order attempting to unlawfully override the Fourteenth Amendment’s guarantee of birthright citizenship.

So what is the impact on birthright citizenship if the Supreme Court decision did not directly address this?

Cecilia Wong contended that while this case does have an impact presently, the long-term implications will be modest because the Supreme Court left alternative means for blocking federal executive action, such as class action lawsuits.

However, as I noted in my response to the question, there are very real impacts this decision may have on birthright citizenship. The Constitution is above the Supreme Court. Because birthright citizenship is codified in the language of the Constitution, the Supreme Court—like the executive branch—does not have the authority to change it. In the 1800s, it rejected the very argument that the Trump administration is using right now to get around birthright citizenship. This should not be an issue anywhere.

Thursday morning, Judge Joseph N. Laplante of the U.S. District Court for the District of New Hampshire blocked the Trump administration from enforcing the birthright citizenship executive order by certifying a lawsuit challenging the order as a class action. This will likely return to the Supreme Court for a decision on the use of a class action to challenge a presidential policy. It’s possible—but not guaranteed—that the Court will take up the issue of whether presidents can rewrite the Fourteenth Amendment. (The fact that this statement can be made only underscores how far this Court is stretching its neck to help Trump.)

How has the Supreme Court decision in Medina v. Planned Parenthood South Atlantic impacted access to healthcare?

In this “quiet blockbuster” case, as Joyce Vance described it, the Supreme Court ruled on the “any qualified provider” provision in the Medicaid statute. This provision requires that Medicaid cover care from any qualified provider that an individual receiving Medicaid benefits selects. However, the Court determined this provision is unclear and held that it does not give private beneficiaries of Medicaid to choose their own provider.

What does this mean for healthcare providers like Planned Parenthood? This means that they do not have the ability to bring suits to enforce the “any qualified provider” provision in the Medicaid statute. The Supreme Court stripped away the ability for people to sue, which Joyce Vance described as “crazy” and “pretzel logic” to restrict women’s access to abortion and to punish providers who provide or who are historically associated with abortion access like Planned Parenthood. She sees this as “elevating culture wars to the status of law.”

Justice Jackson explained in her dissent that the majority essentially chose to unnecessarily break precedent to (1) limit abortion access, and (2) limit access to the Courts.

How have the Supreme Court decisions this term impacted LGBTQ+ rights (United States v. Skrmetti)?

Skrmetti involved a dispute over a Tennessee law that “prohibit[ed] certain medical treatments for transgender minors.” The Supreme Court found that the law should not be reviewed under heightened scrutiny under the Fourteenth Amendment’s Equal Protection Clause, which Cecilia Wong explained is the typical standard for sex discrimination cases. Instead, the majority determined that the standard of rational basis review was applicable and that the law is constitutional. It reasoned that the case was not about sex and was rather about age and medical use of the treatments in question, despite the language of the statute explicitly relating to sex.

Wong stated that the impacts of this case will be devastating on trans youth and their families in America.

However, she further noted that the Supreme Court did not rule explicitly that discrimination against trans Americans has a different standard than discrimination against other Americans. Other cases involving the rights of trans people will proceed, including one the Court will rule on related to trans people’s ability to participate in athletic events.

How did the Supreme Court decision in Mahmoud v. Taylor impact LGBTQ+ rights and religious freedom in education?

As I explained, this case involved a challenge to the Maryland Montgomery County Public Schools’ decision to eliminate a policy that allowed parents to opt their children out of class when storybooks with LGBTQ+ characters and themes were being read.

The parents argued that the books went against their religious beliefs, and without the opt-out policy, the school was forcing the children to participate in indoctrinating classroom instruction that violated their faith.

The Supreme Court majority held for the parents, reasoning that children are unable to discern that just because something has widespread approval doesn’t mean everyone should accept it. The justices found that the storybooks posed a threat because of “the potentially coercive nature of classroom instruction of this kind.” They determined this was a violation of the parents' First Amendment right to freedom of religious expression.

The dissenting justices stated that there is no constitutional right not to have your kids exposed to material you don’t like, and that this ruling can be stretched to the point of absurdity. Can parents whose religion embraces a belief that women are inferior and should stay at home raising children opt their children out of a science class that included information about a female astronaut?

The ruling now sets the stage for all sorts of classroom material to be subject to opt-out policies so long as the parents can prove that their child is exposed to content or ideas that conflict with their religious beliefs. This will impose major burdens on schools, creating a really board slippery slope when it comes to this idea of religious expression. Freedom of speech and religion are being used in a way to override other rights, such as bans on discrimination.

What is the Supreme Court shadow docket and why does it matter?

The shadow docket is not the Supreme Court’s traditional docket. As Joyce Vance explained, the shadow docket is the Supreme Court’s emergency docket for handling cases or motions or matters that require an immediate decision. It has traditionally been used for matters that require a pause button, including last-minute death penalty appeals.

However, the concern is that in darkness, the Court is deciding signficant issues without briefing or dockets with justices without issuing signed opinions or any opinion at all. When the Court does this without providing any rationale, the lower courts are left to discern without guidance what the Supreme Court wants them to do.

Department of Homeland Security v. D.V.D. is a prime example why this is a significant concern. The Supreme Court determined that a district court’s decision to prevent sending people who are deportable but cannot return to their country of origin to a “third party country,” such as South Sudan.

This is a significant blow to the protections guaranteed by the Fifth Amendment Due Process Clause, which guarantees that no person shall be deprived of life, liberty, or property, without due process of law.

How has the shadow docket been used to impact the executive's ability to remove agency heads (Trump v. Wilcox)?

In this case, the Supreme Court majority allowed the Trump administration to go forward with the firing of the heads of the National Labor Relations Board and the Merit Systems Protection Board. This ruling defies a previous Supreme Court decision Humphrey's Executor v. United States where the Court determined that when Congress creates agencies and gives the President people to appoint, it can insulate certain positions from removal, preventing the President from removing those individuals without “cause.”

There is no dispute that the current heads did not do anything worthy of removal under the statute. Nonetheless, the Supreme Court utilized the shadow docket to determine that there was a “greater risk of harm” to the government if the government officials were permitted to stay than the harm inflicted on the officials after being unlawfully fired and rendered “unable to perform [their] statutory duty.” However, they made this decision without giving a clear rationale for upending 90 years of precedent and the legitimacy of statutes passed by Congress decades ago.

As I explained, this is not only NOT a “conservative” approach to the law, but it’s radical and disturbing as a matter of coherent and honest judicial reasoning.

How are the three typically dissenting justices handling such radical rulings?

There has been a major shift in the rhetoric used by the dissent, particularly by Justice Ketanji Brown Jackson, in challenging the majority. The dissent is calling it like it is; the court is a threat to the rule of law and democracy is in peril.

In her dissent to Trump v. Casa, Justice Jackson stated that “[t]he Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” She called the majority’s rationale in the case a “smokescreen” and warned that “[e]ventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”

This forceful dissent was met with ire from the majority opinion author Justice Amy Coney Barrett who called Jackson’s statements “a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.”

We should all be concerned if this is what a sitting Supreme Court justice is saying about her colleagues and the state of our nation.

As I remarked during the panel, in Federalist No. 51, James Madison stated that “"If men were angels, no government would be necessary." But men are not angels, and neither are Supreme Court justices.

What is the key takeaway from this Supreme Court term?

In this term, the far-right majority on the Supreme Court has made rulings that show that they are a threat to the rule of law.

Cecilia Wong reminded us to “use whatever tools you have at your disposal to make your voice heard because Supreme Court litigation is just a small piece of our overall strategies in the civil rights movement.”

Joyce Vance encouraged us to use our voice to be the “counterbalance that the judiciary needs if push comes to shove to hold the executive branch in line.” The government will react to public outcry, like in the case of lack of due process for Kilmar Ábrego García, who is now home. “You have a say in the future of the country if you are willing to exercise your voice.”

I encourage everyone to open their eyes to the reality that we are in a moment where not just the executive branch but the Supreme Court is a potential threat to the rule of law. We need to be having these conversations soberly, seriously, and to have the courage to not look away because what we are fighting for is not just the rule of law and the freedoms that come with it for ourselves, but for our children and grandchildren for future generation. Feel empowered to have the kind of agency that for generations Americans who came before us fought so hard for.

Follow the facts,

KW

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