People For the American Way

Supreme Court Term 2018-2019: An Ultra-Conservative Majority

Supreme Court Term 2018-2019: An Ultra-Conservative Majority


The Supreme Court term that ended in June 2019 demonstrated the profound influence of replacing Anthony Kennedy with Brett Kavanaugh. With the Court’s fair-minded constitutionalists—Justices Ginsburg, Breyer, Sotomayor, and Kagan—in the minority, the ultra-conservatives are taking steps to cement their movement’s political power and reverse many of the advances that protect our health, our jobs, and our most basic constitutional rights.

The current majority is the product of decades of investment by wealthy interests into the creation and growth of an elaborate network of organizations established to advance radical right-wing theories about the law. This is not the Court that struck down segregated schools, recognized abortion rights, put meaning into the Bill of Rights, and protected the mechanisms of our democracy. Instead, it is the Court that consistently protects Republican interests and threatens to dismantle the New Deal.

Hard Times for Precedent and the Rule of Law

The Supreme Court has stated that adherence to precedent (i.e. stare decisis) is “a foundation stone of the rule of law.” One of the striking features of the 2018-2019 term was the ultra-conservatives’ willingness to toss precedent aside when it did not fit their ideological goals. In some cases, they overruled precedent, in others they ignored it, and in others they condemned it and signaled a future overruling. They have:

  • invited litigation allowing them to reconsider decades of precedents upholding the ability of federal agencies to adopt vital health and safety regulations (Gundy v. United States, decided 4-4);
  • tried in dissent to ignore precedent protecting abortion rights (June Medical Services v. Gee, decided 5-4);
  • rejected Establishment Clause precedent that prevents government from endorsing religion (American Legion v. American Humanist Association, decided 7-2);
  • departed from precedent in defining “cruel and unusual” punishment (Bucklew v. Precythe, decided 5-4);
  • overruled precedent allowing states to be sued in courts of other states (Franchise Tax Board of California v. Hyatt, decided 5-4);
  • overruled precedent interpreting the Takings Clause (Knick v. Township of Scott, decided 5-4);
  • sought to overrule precedent on interpreting ambiguous agency regulations (Kisor v. Wilkie, decided 5-4); and
  • reconsidered and retained precedent on the Double Jeopardy Clause (Gamble v. United States, decided 7-2).

Especially for those who opposed confirming Gorsuch and Kavanaugh, the number of precedents overruled and almost overruled comes as no surprise. In fact, that is why they were chosen. Their most prominent supporters are counting on them to overrule Roe v. Wade and weaken church-state separation, while their corporate supporters are counting on them to undo the New Deal. The narrow-minded elitists on the Court intend a significant constitutional rewrite across the board, with Roberts sometimes using his fifth vote to limit just how far they will go in a particular case.

Attacks on Democracy

Partisan Redistricting: Rucho v. Common Cause

The Supreme Court’s decision on partisan redistricting in Rucho v. Common Cause demonstrated yet again the enormous impact on our democracy of replacing Anthony Kennedy with Brett Kavanaugh. In the past, although Kennedy was the fifth vote to deny specific challenges of unconstitutional partisan gerrymandering, he was also the fifth vote to keep the door open to future challenges. On the last opinion day of the term, Kavanaugh joined his ultra-conservative colleagues and slammed that door shut.

With advances in computer technology and data collection, parties have been able to make very specific, house-by-house predictions of how people will vote and how lines can be drawn to maximize partisan advantage. As Justice Kagan wrote in dissent (joined by Ginsburg, Breyer, and Sotomayor), the new technologies:

make gerrymanders far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. These are not your grand-father’s—let alone the Framers’—gerrymanders.

As a result:

In Maryland, election in and election out, there are 7 Democrats and 1 Republican in the congressional delegation. In North Carolina, however the political winds blow, there are 10 Republicans and 3 Democrats. Is it conceivable that someday voters will be able to break out of that prefabricated box? Sure. But everything possible has been done to make that hard. To create a world in which power does not flow from the people because they do not choose their governors.

Indeed, Chief Justice Roberts’ majority opinion acknowledged that partisan gerrymanders are “incompatible with democratic principles.” But he wrote that no fair, non-political standards exist for a court to use to judge when a gerrymander is too partisan.

Justice Kagan’s dissent pointed out that:

What [the majority] says can’t be done has been done. Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims (striking down both Democratic and Republican districting plans in the process).

Nevertheless, the Court majority concluded that there is nothing the judiciary can or should do about the problem, making it a purely political question that the Constitution leaves to the political branches of government to resolve. As an example that laws can be passed to reduce or prohibit partisan redistricting, Roberts cited a bill introduced and reintroduced in every Congress since 2005. Justice Kagan pointed out the absurdity of that argument:

And [that bill] might be reintroduced until the end of time. Because what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering.

Concluding her dissent, Kagan wrote:

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.

As noted above, the shift in the court’s jurisprudence on this issue was made possible by Justice Kavanaugh replacing Justice Kennedy. But also making this 5-4 decision possible was Neil Gorsuch, who replaced Justice Scalia only because of Senate Republicans’ illegitimate blockade against Merrick Garland. Of course, there is no way to know with certainty how Garland would have come out on the issue. But Rucho’s allowing state legislatures to subvert democracy cannot be separated from Mitch McConnell’s decision to sabotage the Court to benefit his party. And with most current partisan gerrymanders benefiting Republicans, that action continues to pay off.

Weaponizing the Census: Department of Commerce v. New York

The Trump administration’s effort to sabotage the 2020 census by adding a citizenship question suffered a significant setback on the last day of the term, but it remains unclear whether this will be the last word on the subject. The case highlighted just how brazen the administration’s corruption is. Ominously, four of the ultra-conservatives exposed their own dangerous lack of principles by accepting legal arguments premised on transparent lies.

The census is an extremely important, constitutionally mandated tool used to assess communities’ needs for everything from infrastructure and schools to facilitating fair representation in Congress and in state legislatures. Before the Trump administration announced its plan, career experts at the Census Bureau had concluded that adding a completely unnecessary and untested citizenship question would likely dissuade people from accurately reporting themselves accurately and cause massive undercounts in communities of color, low-income households, and especially immigrant communities, who have good reason to fear having the information misused against them.

In announcing that it was going to add the question anyway, the Commerce Department (which the Census Bureau is part of) stated that the idea came from the Justice Department, which allegedly wanted the information to better enforce the Voting Rights Act. Secretary Wilbur Ross even gave that explanation to Congress, under oath.

In the course of litigation in the Southern District of New York, however, more and more evidence arose that the Commerce Department was lying to the public, to the Congress, and even to the court. Documents proved that the idea of adding the question came from Ross, who repeatedly agitated for someone at the Justice Department to make the request and thereby provide a public justification for the question. The district court closely examined the entire record and determined that the administration’s proffered reason was a pretext. The judge concluded that the government had violated the Administrative Procedure Act (APA), which requires the Commerce Department to explain—not to conceal—why it makes its decisions.

Citing a hard deadline of July 1 to start printing the census, the administration appealed directly to the Supreme Court. Simply skipping circuit court review is extremely rare, but the Trump administration’s urgent representations about its printing deadline persuaded the Supreme Court to hear the case. Dural oral arguments, Justice Kagan spelled out what the record showed:

[I]t did really seem like the Secretary was shopping for a need.

[Secretary Ross] goes to the Justice Department. Justice Department says we don’t need anything. Goes to DHS. DHS says they don’t need anything. Goes back to the Justice Department. Makes it clear that he’s going to put in a call to the Attorney General. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want.

So you can’t read this record without sensing that this—this need is a contrived one.

This is worth emphasizing, because many Americans have become inured to the open corruption that the Trump administration and its allies engage in on a daily basis. For the Supreme Court to accept the government’s arguments, the justices would have to pretend that the clear evidence before their eyes didn’t exist: that day is night, or that black is white. Or that War is Peace, Freedom is Slavery, and Ignorance is Strength. After oral arguments, even more evidence came out about the administration’s true motives with a “smoking gun” email from a Republican consultant stating that a citizenship question would have to be added to the census to get the data needed to enhance GOP power and weaken representation for people of color. Nevertheless, especially given the role corruption of our democracy played in elevating Gorsuch and Kavanaugh to the Court, many people still expected the worst.

Fortunately, we narrowly escaped a disaster. Chief Justice Roberts wrote the Court’s opinion, different parts of which garnered the support of different justices. Roberts and the four moderates formed a majority rejecting as a pretext the sole reason given by the Commerce Department for adding a citizenship question. This same majority ordered the case remanded to the district court for judgment based on the Department’s actual reasons. But a majority consisting of Roberts and his fellow ultra-conservatives concluded that adding the citizenship question would be permissible under other potential justifications, despite the fact that they would cause significant inaccuracies in the count, especially within certain communities. The issue, for now, is resolved with the announcement on July 2nd by the Commerce Department that it was dropping its effort to add the citizenship question to the 2020 census, and the census forms are being printed without such a question.

Racial Gerrymandering: Virginia House of Delegates v. Golden Bethune-Hill

In a result guaranteeing fairly drawn legislative districts for Virginia voters, the Supreme Court dismissed the Republican-controlled state House’s appeal of a redistricting plan ordered by a lower court. This ended years of litigation over racially gerrymandered legislative districts created by state Republicans. In an opinion authored by Justice Ginsburg (and joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch), the Court determined that the House lacks standing to appeal the lower court’s decision. The Court therefore sidestepped and did not address the substance of the GOP’s challenge, and the lower court’s lines can now be put into effect.

Corporate Power and Restrictions on Government Regulation

Threatening Agencies’ Ability to Create Health and Safety Protections: Gundy v. United States

On the surface, this was a case about registering convicted sex offenders. But the subtext was enormous: whether the arch-conservatives would begin undermining bedrock constitutional law recognizing Congress’s authority to delegate power to federal agencies to enact and enforce vital health and safety protections. While they were unable to do so in this specific case (because Justice Kavanaugh did not participate), they made their intent to do so clear. This would overrule precedents dating back to the New Deal, representing a major step toward eliminating a century of progress.

When Congress passed the Sex Offender Registration and Notification Act (SORNA), it authorized the Attorney General to determine how to apply it retroactively to people who had already been released from prison. One such person, Herman Gundy, argued that this was an unconstitutional delegation of legislative authority to the executive branch.

The Court has struck down laws under the delegation doctrine only two times in its history, both to invalidate parts of the New Deal in 1935. But since then, the Court has recognized Congress’s power under the Constitution to delegate rulemaking authority to regulatory agencies that—unlike Congress—have the expertise best-suited to address extremely complex issues. Generally, the Court simply requires that Congress provide some “intelligible principle” to guide the executive branch in exercising the authority delegated to it.

In a four-justice plurality opinion, Justice Kagan (joined by the three other moderates) upheld the law under standard constitutional analysis. Congress made its intent clear: the attorney general should require pre-SORNA sex offenders to register as soon as feasible, given the many complexities involved in the task. Feasibility is an administrative judgment left to the Justice Department as it carries out the congressionally-mandated task. As Justice Kagan wrote:

[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.

But declaring most of government unconstitutional has long been the goal of the far Right, funded by corporate interests that oppose anything getting in the way of their profits and their power. Justice Gorsuch’s dissent (joined by Chief Justice Roberts and Justice Thomas) accused the plurality of “[w]orking from an understanding of the Constitution at war with its text and history.” Justice Alito wrote a brief concurrence acknowledging the correctness of the plurality’s result under longstanding bedrock constitutional law, but also expressing his disagreement with those precedents:

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.

In other words, the only thing that got in the ultra-right justices’ way—this time—was the fact that Senate Republicans were unable to ram Brett Kavanaugh’s confirmation through in time for oral arguments in this case. Alito’s concurrence invites movement activists to send the GOP-nominated justices a case so they can severely weaken the ability of administrative agencies to effectively implement laws passed by Congress addressing the environment, workplace safety, telecommunications, food safety, and any number of other areas.

Congress’s Constitutional Authority to Address Environmental Issues: Weyerhaeuser v. Fish and Wildlife Service

This case could have led to a 5-4 ruling significantly weakening Congress’s constitutional authority to address major environmental issues. However, Justice Kavanaugh did not participate in the case, because oral arguments were held before he was confirmed and the case was not reargued. The result was a unanimous opinion authored by Chief Justice Roberts slightly narrowing the options available for the U.S. Fish and Wildlife Service (FWS) to protect species under the Endangered Species Act, but otherwise staking out no new major ground.

This was a challenge to a FWS designation of private land as a “critical habitat” for the endangered dusky gopher frog. Weyerhaeuser and other owners want to use the land for development and timber. They claim the designation violated the Endangered Species Act in part because the land is not currently inhabited—or even inhabitable—by the frog. Their challenge could have had significant implications beyond this one case, because Weyerhaueser included a constitutional argument: If the ESA allows the administrative action, then it violates the Commerce Clause. Quoting the chief justice’s opinion in NFIB v. Sebelius (the case upholding Obamacare), Weyerhaeuser argued that “[t]he power to regulate commerce presupposes the existence of commercial activity to be regulated.”

If the non-commercial frog’s absence from a place it does not and cannot live is sufficient to satisfy the Commerce Clause, nothing at all lies beyond the power of federal regulators.

The chief justice wrote an opinion based on statutory interpretation, avoiding the constitutional argument and garnering the support of all the other participating justices. The Court ruled that under the statute, an area is eligible for designation as “critical habitat” only if it is “habitat” for the species. The Court did not state whether “habitat” can include areas that would require some degree of modification to support a sustainable population of a particular species. FWS and Weyerhaeuser disagree. The Court remanded the case to the Fifth Circuit to interpret the word “habitat” in the statute and, if relevant, assess FWS factual findings regarding whether the frog could survive in the area without modifications.

Abuse of Monopoly Power: Apple Inc. v. Pepper

In a case of “unusual bedfellows,” Justice Kavanaugh served as the swing vote giving a majority to the four moderates. In his 5-4 opinion, the Court upheld the ability of app purchasers to sue Apple for monopolistic prices.

As more and more of us rely on electronic devices for work, communications, entertainment, and even health care, large tech companies gain more and more power and influence. In this case, consumers who have purchased apps from Apple’s online apps store brought a class action antitrust lawsuit for treble damages against Apple, based on the monopolistic 30 percent surcharge that Apple added to the price of all apps. That surcharge is paid directly to Apple each time that an app is purchased.

Under longstanding Supreme Court doctrine, only “direct purchasers” have standing to sue an alleged monopolist for damages. Consumers cannot sue a distributor that is simply passing along the extra cost caused by a monopolist further up the distribution chain. According to Gorsuch’s dissent (joined by Roberts, Thomas, and Alito), that is exactly what the app buyers were doing.

But the Court recognized that Apple was not a distributor passing along higher costs it was forced to pay to monopolist app developers. Consumers pay Apple directly for the apps and, in fact, cannot buy them from any other source. Therefore, they can sue Apple under Supreme Court precedent. Had Gorsuch’s dissent carried the day, it would have given large companies like Apple an easy way to make monopolistic surcharges and avoid enhanced treble damages under antitrust law.

Forced Arbitration: Lamps Plus, Henry Schein, and New Prime

In a series of 5-4 decisions over the years, the ultra-conservatives on the Court have strengthened the ability of powerful corporations to force one-on-one arbitration on employees, customers, and smaller businesses. The Court has upheld arbitration requirements in contracts that were invalid under state law, in contracts imposed through the unlawful use of monopoly power, and in contracts forcing employees to waive rights that federal labor law says cannot be waived. The effort to privatize the law to the benefit of big corporations largely continued this term.

Lamps Plus v. Varela

The two Supreme Court justices selected by President Trump made the difference in this 5-4 case in which the elitist ultra-conservatives yet again strengthened large businesses’ ability to force one-on-one arbitration on employees, customers, and smaller businesses.

Lamps Plus had revealed confidential tax information for 1,300 of its employees. This led to someone filing a fraudulent tax return for employee Frank Varela. Varela wanted to hold the company accountable for the harm done to him and his coworkers. His employment contract called for all disputes to be resolved through arbitration. It did not limit Varela to one-on-one arbitration, just to arbitration in general, a term that includes both solo and class arbitration—that is, arbitration on behalf of a class or group of individuals. Even if it were ambiguous whether Varela had intended to eliminate his ability to use the group form of arbitration, state law mandates that any ambiguity in any “take it or leave it” contract be interpreted in favor of the party that had no voice in its drafting (regardless of whether it involves arbitration).

Nevertheless, in an opinion authored by the Chief Justice, the far-right majority—bending logic and the law—managed to conclude that (1) the contract was ambiguous on whether the parties intended the term “arbitration” to be limited only to “one-on-one arbitration;” (2) class arbitration is annoyingly time-consuming, so courts should assume that parties don’t intend for it to be an option unless they specifically say so; and (3) the state law on interpreting a “take-it-or-leave-it” contract against the drafter is “flatly inconsistent with the foundational FAA [Federal Arbitration Act] principle that arbitration is a matter of consent.” So voila, Lamps Plus got to unilaterally eliminate class-arbitration redress. The big company won again.

Justice Ginsburg’s dissent accurately framed the big picture:

[I] emphasize once again how treacherously the Court has strayed from the principle that arbitration is a matter of consent, not coercion.

Congress enacted the Federal Arbitration Act (FAA) in 1925 to enable merchants of roughly equal bargaining power to enter into binding agreements to arbitrate commercial disputes. The Act was not designed to govern contracts in which one of the parties characteristically has little bargaining power [internal quotations and citations removed].

Ginsburg pointed out the irony of the majority’s claim that because “arbitration is strictly a matter of consent,” the Court was justified in imposing individual arbitration on employees who surely would not choose to proceed solo:

Shut from the Court’s sight is the Hobson’s choice employees face: accept arbitration on their employer’s terms or give up their jobs.

The addition of Gorsuch and Kavanaugh to the Court is what has made it possible for the Court to ignore the real world and create a fiction that serves the interests of the business elite. Had a fair-minded constitutionalist filled either of the vacancies left by Justices Scalia and Kennedy, this ruling would likely have come out very differently.

New Prime Inc. v. Oliveira

In an unusual and lopsided win for working people, the Court unanimously ruled against a company trying to force someone into arbitration. Dominic Oliveira worked as a trucker for New Prime (although his contract gave him the label of “independent contractor”), and he filed a class action lawsuit accusing New Prime of treating him and other truckers as employees but paying them less than the minimum wage. The company had required him to sign an arbitration agreement, which it went to court to enforce under the Federal Arbitration Act (FAA).

But because the text of the FAA states that it does not cover “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” Oliveira claimed that the FAA didn’t apply to his contract, so the district court had no authority to order arbitration. The company argued that the arbitrator is the one who should make that initial determination. Alternatively, it argued that the FAA’s exception for certain transportation workers does not include independent contractors.

The Court agreed with Oliveira that before ordering arbitration, a judge should decide the threshold legal question of whether the FAA applies. If it does not, then the court cannot order arbitration, because it is the FAA that gives the court that authority. The justices also ruled that the exception for certain transportation workers covers independent contractors such as Oliveira. On at least this one occasion, the job of interpreting congressional legislation was not put into private hands. Because this case was argued before Kavanaugh joined the Court, he did not participate.

Henry Schein, Inc. v. Archer and White Sales

This arbitration case was also unanimous, but in favor of the company seeking to impose arbitration. Archer and White sells dental equipment, and it had a contract with Henry Schein, a dental equipment manufacturer. The contract had a mandatory arbitration provision that explicitly excluded disagreements where one of the parties was seeking an injunction. That is exactly what Archer and White asked from a court when it accused Henry Schein of antitrust violations. Henry Schein asked the court to order arbitration under the contract.

Under Supreme Court precedent, their contract would be interpreted as agreeing that the question of whether a matter is subject to arbitration is up to the arbitrator, not the court. But circuit courts have developed an exception: when the grounds for requested arbitration are “wholly groundless,” the trial court judge does not need to order arbitration under the FAA.

Justice Kavanaugh authored the Court’s opinion rejecting the “wholly groundless” exception to the general rule. All the justices agreed that “when the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.” The precedents creating the presumption of such delegation were originally decided by a sharply divided Court. But once the delegation is accepted for a particular case, none of the justices accepted the idea that there is “wholly groundless” exception to it.

Liability for Securities Fraud: Lorenzo v. SEC

With Justice Kavanaugh recused, the Court by a 6-2 vote affirmed the conviction of investment banker Francis Lorenzo for securities fraud. Lorenzo had sent potential investors emails containing false statements provided and approved by the principal of the company he was seeking investors for. He claimed the statute doesn’t apply to him, based on the 5-4 corporation-friendly Janus Capital Group decision in 2011, which ruled that a Janus investment advisement company could not be liable for “making” false statements it may have put out about a Janus investment fund in that fund’s prospectus, because the fund and not the advisor has ultimate approval over the material.

Janus was all about the word “make” in Rule 10b-5(b).  Consistent with that precedent, the D.C. Circuit ruled that Lorenzo had not violated Rule 10b-5(b) because under the rule he did not “make” the statements and reversed the SEC on that score. However, since the word “make” does not appear in Rules 10b-5(a) or (c), or in the statute these rules implement, the D.C. Circuit majority upheld the SEC’s conclusion that Lorenzo had violated them. Then-judge Kavanaugh dissented, arguing that none of the rules covered Lorenzo. His participation in the case is why he was recused when it reached the Supreme Court.

Kavanaugh was recused from the case at the Supreme Court, but Justices Thomas and Gorsuch agreed with his extreme position. They would have expanded Janus to cover additional statutory provisions, allowing fraud such as committed by Lorenzo to escape liability. But in an opinion by Justice Breyer (joined by Roberts, Ginsburg, Alito, Sotomayor, and Kagan), the Court recognized that using false representations to induce the purchase of securities is a paradigmatic example of securities fraud and is clearly covered by the statutory provisions at issue. Roberts and Alito’s joining the majority highlights just how extreme Trump’s two nominees are.

The Rights of Immigrants

Indefinite Detention of Permanent Residents: Nielsen v. Preap

With the 5-4 majority made possible by Gorsuch and Kavanaugh, the Court ruled that under federal law, immigrants who have been released after committing even minor crimes should be picked up even years after their release and detained indefinitely pending possible deportation hearings. The ruling in Nielsen v. Preap applied even to immigrants who lived in the country legally who have been in this country for decades. Justice Stephen Breyer wrote a dissent joined by the Court’s moderate justices that explained that the majority had misinterpreted the law, and that such detention contradicted basic American values and could lead to constitutional problems in some cases.

The case concerned a federal law stating that immigrants who have committed crimes should be detained without bail for possible deportation “when” they are released from prison. The Ninth Circuit had ruled that “when” means shortly after their release, and that the government could not pick up and indefinitely detain immigrants who had served their sentences years or even decades ago, as has occurred in some cases under the Trump administration.

In a 5-4 opinion by Justice Alito, the Court majority reversed and held that the indefinite detention provision applied to all immigrants, even immigrants legally living in the U.S. who had committed minor crimes long ago. Alito claimed the ruling was dictated by the plain language of the law, and it was better that such detentions be carried out “late than never.”

Justice Breyer strongly disagreed. He explained that the language and structure of the law, as well as principles of statutory interpretation, mean that “when” means “at the time” or “just after” release, or “within a reasonable time,” such as six months. The majority’s indefinite interpretation, he explained, means that individuals can be detained “years” after their release and after they “have established families and put down roots in the community.” Nevertheless, under the majority’s  view, they can be imprisoned for “months, sometimes years, without the possibility of release,” even though they committed only “minor crimes” like minor drug offenses and “illegally downloading music,” and may well not be deported at all because they can receive “relief from removal.”

Breyer pointed out that these were not “mere hypotheticals” because of what has actually happened to a number of individuals, and that the majority’s view would create “serious constitutional problems” in some cases. He specifically disagreed with Kavanaugh’s claim in a concurring opinion that the opinion was “narrow,” and concluded instead that it “will work serious harm to the principles for which American law has long stood.”

Abortion Rights

TRAP Laws Targeting Abortion Providers: June Medical Services v. Gee

Louisiana has a TRAP law (targeted regulation of abortion providers) nearly identical to one in Texas the Supreme Court struck down in Whole Woman’s Heath v. Hellerstedt in 2016. That case was decided by a five-justice majority consisting of the four moderates joined by Justice Kennedy, who famously was part of the plurality decision in 1992 upholding Roe v. Wade as precedent. When the justices decided Whole Woman’s Health, they directed lower courts to examine the Louisiana law in light of the new precedent. The district court did just that, issuing a 116-page decision in June Medical Services v. Gee that closely analyzed all of the information in the record, finding that if the law were to go into effect:

  • there would be only one provider and one clinic in the entire state that could perform abortions (down from six doctors and five clinics before the law was passed);
  • 70 percent of Louisiana women who choose to seek an abortion would be unable to obtain one in the state
  • the law’s hospital privileges requirement would produce “no medical benefit,” and would increase delays and health risks to Louisiana women.

But then Kennedy announced his retirement and was replaced by Kavanaugh, and conservatives saw their chance to eliminate the constitutional right to abortion. States began passing ever more extreme restrictions, with the expectation that Kavanaugh will provide the fifth vote needed to uphold them. And far-right judges shared their enthusiasm: The Eleventh Circuit issued a bizarre ruling reversing the trial court and upholding the law. To do this, the majority completely ignored the actual facts and instead made ones up to make the case that the law would not impose an undue burden on women seeking abortion care.

When June Medical Services petitioned the Supreme Court to stay the circuit court’s rogue decision, it should have been a 9-0 decision. Instead, it was only 5-4, with Roberts (who dissented in Whole Woman’s Health) joining the moderates in ordering a stay for now. But for Thomas, Alito, Gorsuch, and Kavanaugh, Supreme Court precedent meant nothing: They would have allowed the law to go into effect while June Medical appealed the circuit court ruling. The Court is currently deciding whether to hear that appeal.

Church-State Separation and Free Exercise of Religion

Religious Favoritism by the Government: The Bladensburg Cross Case (American Legion v. American Humanist Association)

In a 7-2 ruling, the Court upheld the constitutionality of an enormous Christian cross as a state memorial for people in Maryland killed in World War One. In so doing, the Roberts Court continued its weakening of the wall between church and state. Fortunately—perhaps as a compromise to get the support of two of the moderate justices, or perhaps because the ultra-conservatives were divided among themselves on the reasoning—the majority did not give the far right anything close to what they had wanted from this case. The holding and the reasoning are limited to longstanding monuments, symbols, and practices that have become part of the community. The damage could have been far worse, and in their separate opinions, the conservatives made clear their intention to eventually make it so.

Justice Alito wrote the majority opinion, which was joined by two conservatives (Roberts and Kavanaugh) and two moderates (Breyer and Kagan). (Justices Thomas and Gorsuch concurred, but only in the result.) The five-justice majority upheld the cross essentially by draining it of much of its religious meaning. Alito wrote that symbols that begin as exclusively religious can evolve into ones that are secular. As an example, he cited the cross on the Swiss flag as having been adopted for its Christian meaning, but then becoming secular when the Red Cross adopted it to stand for Swiss-like neutrality; it was to communicate the secular message of neutrality that the Red Cross adopted a design based on the Swiss flag. This example was less than persuasive: If the cross is perceived as secular, then why isn’t there a Red Cross in predominantly Muslim nations (which instead have Red Crescent organizations) or in Israel (which instead has the Red Shield of David, aka the Star of David)?

Alito’s opinion rests on a similarly unpersuasive premise: It claims that when Americans saw photos of World War One military cemeteries, which had row upon row of white crosses on Christians’ graves, they were so struck by the image that those crosses became a secular image honoring everyone killed during the war, including non-Christians. As evidence of this transformation (and of his argument’s weakness), Alito quotes from John McCrae’s famous poem from 1919—“In Flanders Fields the poppies grow / Between the crosses, row on row”—as demonstrating that those crosses had become secular. As Justice Ginsburg wrote in her dissent (joined by Justice Sotomayor), “making a Latin cross a war memorial does not make the cross secular.”

The majority stressed that its reasoning applied to longstanding monuments, symbols, and practices that have become part of the community. The cross in this case has been part of Bladensburg for nearly a century and has the names of area residents killed in the war. Thus, the case does not open the door to cities adding Latin crosses to city halls and public school buildings.

This is not what the far right had hoped for. They had urged a wholesale abandonment of Establishment Clause precedent. In its place, they sought a ruling that government endorsement of religion is actually constitutional, as long as it does not coerce others into agreeing. They define coercion extremely narrowly, as covering only compulsion by law into a belief, observance, or financial support for a particular religion.

The far-right justices are clearly prepared to dispose of the Establishment Clause as we know it. For nearly half a century, courts have used the Supreme Court’s Lemon test, which upholds laws only if they (1) have a secular purpose; (2) have a primary effect that does not advance or inhibit religion; and (3) do not create excessive government entanglement with religion. Although not formally overruling it, five justices in the majority (excluding Kagan) sharply criticized Lemon. Kavanaugh joined the plurality’s criticism, but also wrote separately to suggest the case is no longer good law, which would mean that lower courts could ignore it. In their separate concurrences, Gorsuch called Lemon a “misadventure,” and Thomas wrote that the Court should “overrule the Lemon test in all contexts.” They both agreed that courts should not even consider cases like this, because (in their view) the plaintiffs have not established a concrete and specific injury sufficient to give them standing to sue. Thomas also repeated his view that the Establishment Clause doesn’t even apply to the states in the first place.

Only two justices held fast to the constitutional principle that government must remain neutral in matters of religion. Citing longstanding caselaw, Ginsburg (joined by Sotomayor) pointed out that:

When the government places its power, prestige, financial support behind a particular religious belief, the government’s imprimatur makes adherence to that religion relevant to a person’s standing in the political community [internal quotations and citations removed].

But that is exactly the goal of the religious right, which came to prominence in the late 1970s and 1980s on the premise that being a good American requires you to be (their version of) a good Christian. In upholding the constitutionality of the cross memorial in Maryland, the Supreme Court has taken another step away from the separation of church and state that the far right has for so long opposed. The plurality and concurrences make it clear they are far from done.

Only Christian Clergy for Someone Being Executed: Dunn v. Ray

In the typical 5-4 divide, the conservatives reversed a lower court ruling that had temporarily stayed an execution because of a strong claim that prison officials had violated the prisoner’s religious liberty. They did not explain their reasoning (at the time), but the Court’s four moderate justices explained theirs in a powerful dissent.

When Alabama puts someone to death, its practice is to have a state-employed chaplain, who is Christian, present in the room. Domeneque Ray asked that an imam be present instead, but the state refused. His lawyers pointed out that “[b]ecause he is a Muslim, he is being denied this crucial spiritual assistance in his final moments.” A three-judge panel of the Eleventh Circuit unanimously agreed to stay the execution temporarily so the issue could be reviewed on the merits, suggesting that the state was apparently discriminating against one particular religious denomination.

Alabama took the case to the Supreme Court. In an unsigned 5-4 order, the Court vacated the stay and let the execution go forward immediately without any further consideration of the religious liberty violations. The only reason provided was that Ray had waited too long to file his petition. As Justice Kagan concluded in a dissent joined by the other three moderate justices:

This Court is ordinarily reluctant to interfere with the substantial discretion Courts of Appeals have to issue stays when needed… Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.

The Court’s order garnered significant news coverage and near-universal condemnation. The following month, when a Buddhist prisoner facing the identical situation petitioned for a stay of execution, the Court granted it, creating the strong impression of a religiously-based double standard among the five right-wing justices. Apparently bothered by the criticism, Justice Gorsuch used another capital case called Bucklew v. Precythe (discussed below) to discuss the Ray decision. He condemned “last-minute” stays of execution and blamed Ray for raising his religious liberty claim too late to be considered. In fact, as the dissenters pointed out, Ray had brought his claim a mere five days after learning of the problem.

The Criminal Justice System

Ignoring Precedent on “Cruel and Unusual”: Bucklew v. Precythe

Justice Gorsuch wrote the Court’s 5-4 opinion in Bucklew v. Precythe authorizing a prisoner’s execution despite strong evidence that the method used would create serious pain and suffering due to his rare medical condition. Gorsuch’s reasoning significantly undermined the Constitution’s protections against cruel and unusual punishment. Fellow Trump justice Brett Kavanaugh provided the deciding fifth vote in a case that could well have come out differently if his predecessor Justice Kennedy were still on the Court.

Russell Bucklew had been sentenced to death by lethal injection in Ohio. He did not dispute his guilt or the death sentence, but contended that due to his rare medical condition, utilizing the method of lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment. Specifically, evidence showed that as a result of lethal injection, tumors in his throat would “rupture,’ causing him to “sputter, choke, and suffocate on his own blood for up to several minutes” before death. The lower courts had rejected Bucklew’s claims on summary judgment and without a trial. In a 5-4 ruling in 2018 with Justice Kennedy in the majority, the Supreme Court granted a stay of execution so it could consider Bucklew’s claims.

But then Kennedy left, and the Court that considered the case had Brett Kavanaugh on it instead. This sealed Bucklew’s fate. Justice Gorsuch’s opinion for the 5-4 majority maintained that, based on the “original meaning” of the Eighth Amendment and recent precedent, Bucklew had the burden to “show a feasible and readily implemented alternative” method of execution that would cause significantly less pain and that the state did not have a “legitimate penological reason” to reject. Gorsuch wrote that Bucklew did not meet that burden, and that the stay should be lifted so he could be executed by lethal injection.

In a dissent for all four moderate justices, Justice Breyer strongly disagreed and wrote that the majority’s decision “violates the clear command of the Eighth Amendment.” Even under the standard adopted by the majority, he explained, Bucklew had submitted clear evidence of an alternative method that would take 30 seconds or less and would not cause such pain and suffering; there were clearly disputed issues of material fact, so that summary judgment was improper and there should have been a full factual hearing on Bucklew’s claims.

In addition, he explained, the majority had clearly erred in imposing the heavy burden on Bucklew. Previous cases requiring such specific proof about alternatives concerned broad challenges to methods of execution for all prisoners that were “backdoor” methods to abolish the death penalty altogether in states using particular methods. Such a heavy burden was wrong, Breyer explained, when a prisoner focused on a unique challenge to a method of execution that applied only to him. Past precedent concerning challenges to methods of execution, Breyer pointed out, contradicted the majority’s ruling.

But Gorsuch’s opinion made clear he was not interested in such past precedents or in the doctrine established more than 50 years ago that the Eighth Amendment prohibits punishments that violate the “evolving standards of decency” in our society. Instead, Gorsuch applied what he considered the “original meaning” of the Eighth Amendment, and claimed that to be “unusual,” a punishment must have “long fallen out of use” at “the time of the founding,” contradicting established precedent. Indeed, the majority’s weakened interpretation of the Eighth Amendment could directly jeopardize the viability of recent cases such as Justice Kennedy’s ruling that the amendment forbids capital punishment for juvenile offenders.

Imposing Severe Pain and Needless Suffering: Dunn v. Price

In Dunn v. Price, another 5-4 ruling made possible by Justices Gorsuch and Kavanaugh, the Court reversed two lower courts and authorized the immediate execution of Christopher Price by lethal injection despite evidence that the method would cause him “severe pain and needless suffering” and that an alternative was available. The majority appeared to be in such a hurry that it even refused Justice Breyer’s request that the matter be discussed at the Court’s regular Friday conference, and instead issued its order around 3 a.m. on Friday.

In an unsigned order, the 5-4 Court majority granted the state of Alabama’s request to vacate stays of execution of Price issued by the federal district court and court of appeals and authorized his execution by lethal injection. The primary basis for the majority’s order was that when Price was allegedly given 30 days to elect execution by nitrogen gas in June 2018, he “did not do so,” and instead brought a “last-minute” claim in February.

Writing for the three other moderate justices and himself, Justice Breyer strongly disagreed. Initially, he explained that the evidence showed that Price appeared to have met the majority’s demanding standards in the recent Bucklew case because the evidence in the record showed “a severe risk of pain from lethal injection” and that the alternative of nitrogen gas was “available, feasible, and readily implemented,” and would be “substantially less painful” than lethal injection. Breyer noted that there were several jurisdictional and evidentiary issues that could be quickly and “easily remedied” by the lower courts.

As to the claim about Price’s not choosing nitrogen gas last June, Breyer pointed out that although prisoners were supposed to have 30 days to decide, the evidence showed that no prisoner received a copy of the “election form” until “June 26,” so that Price may well have had “no more than 72 hours” to decide “notwithstanding the 30-day period prescribed by state law.” Indeed, the district court had specifically found, Price was proceeding “as quickly as possible” on the issue “since before the execution date was set.” As Breyer concluded, this failed to provide a good “reason to override” the judgment of both lower courts.

As Breyer recounted, the state filed its motion with the Supreme Court “[s]hortly before 9 p.m.” on Thursday, April 11. Justice Breyer asked that the matter be discussed the very next day at the Court’s regular conference, but the 5-4 majority refused and granted the State’s motion to reverse the lower courts at around 3 a.m., thus “preventing full discussion among the Court’s Members.” Ironically, this action by the majority failed at its apparent objective of authorizing immediate execution, since the state “called off” the execution set for Thursday night as the Court considered the issue.

As Justice Breyer concluded, the majority’s determination to “proceed in this way,” in fact, “calls into question the basic principles of fairness that should underlie our criminal justice system.” The case could well have come out differently if Justice Kennedy, rather than his successor Justice Kavanaugh, were still on the Court.

Freedom of Speech

Corporate Loophole Against Free Speech: Manhattan Community Access Corp. v. Halleck

In another typical 5-4 ideological split, Justice Kavanaugh authored a decision (joined by his fellow ultra-right colleagues) in creating a loophole for free speech protection when the government hires a private company to carry out certain state functions. The case involved cable TV public access channels: When the city of New York issued a cable franchise, it kept a property interest in several channels that it required the franchisee to make available for city use. Under state law, the city had to use those channels as a public forum not subject to censorship. The city contracted the channels’ operation out to a private company called MNN.

When two program producers criticized the company, it retaliated by barring them from using the public access channels. As far as the majority was concerned, this was simply a case of a private corporation exercising its right to decide who can use its property (the channels). With that framing, the Court ruled that the ban did not violate the producers’ free speech rights, because the First Amendment only limits the power of the government, not of private entities.

Writing for the moderates, Justice Sotomayor criticized the majority for “tell[ing] a very reasonable story about a case that is not before us. I write to address the one that is.” The city controlled the public access channels and had a constitutional obligation under the First Amendment. Sotomayor explained that when the city contracted with MNN to run the channels, the company became an agent of the city in running them and, therefore, a state actor subject to the Constitution’s First Amendment prohibition of censorship.

This case would likely have turned out otherwise had Kennedy still been on the bench. In a 1996 case called Denver Area Educational Telecommunications Consortium v. FCC, he wrote a concurring opinion making it clear that “a public access channel is a public forum.” But Justice Kavanaugh has taken his place, and two corporate critics have been barred from a public forum as a result.

Other Cases Overturning or Undermining Precedent

Franchise Tax Board of California v. Hyatt

In a 5-4 ruling, the Court overruled a precedent from 1979 (Nebraska v. Hall) holding that a state can be sued in the court of another state. Quoting from the plurality opinion in Planned Parenthood refusing to overrule Roe, Justice Breyer criticized the majority for its disrespect for stare decisis:

Overruling a case always requires special justification. What could that justification be in this case? The majority does not find one.

It is one thing to overrule a case when it “defies practical workability,” when “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,” or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Casey, 505 U. S., at 854–855. It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next [emphasis added].

Knick v. Township of Scott, PA

The ultra-conservatives answered Breyer’s question just one month later: In the standard 5-4 alignment, they overruled a Takings Clause precedent from 1985 called Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.

Writing the dissent for the moderates, Justice Kagan explained how the majority had no real reason for overruling Williamson County other than that they disagreed with it. She sharply criticized the conservatives’ citation of last term’s anti-union Janus case to justify overruling precedent:

If that is the way the majority means to proceed—relying on one subversion of stare decisis to support another—we may as well not have principles about precedents at all.

Kisor v. Wilkie

The petitioner in this case had urged the Court to overrule two precedents directing courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation. Auer v. Robbins was decided in 1997, and it relied on a 1945 case called Bowles v. Seminole Rock and Sand Company. This time, Chief Justice Roberts voted with the moderates in an opinion that weakened but did not overrule precedent. Justice Kagan authored a plurality opinion explaining the precedents and why they were rightly decided. But the plurality became a 5-4 majority opinion with Roberts’ support in sections explaining that there was insufficient reason to depart from stare decisis, and also narrowing their holdings. In fact, Roberts wrote separately to state that “the distance between the majority and [overruling the cases outright] is not as great as it may initially appear.” Justice Gorsuch, writing for the other four conservatives, criticized the majority for adhering to precedent “only because of stare decisis.” For them, “[it] should have been easy for the Court to say goodbye to Auer v. Robbins.”

Gamble v. United States

In a 7-2 decision, the Court considered and chose not to overrule Abbate v. United States, a 1959 case holding that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns. In dissent, Justice Ginsburg acknowledged the importance of stare decisis and explained why it was not merited here. Among other things, she noted that there has been an enormous change in the constitutional underpinnings of the 1959 decision: At the time, the Court had not yet held that the Double Jeopardy Clause applies to states. That was among the factors cited by the other dissenter, Justice Gorsuch, in his own separate dissent.


Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Thomas have shown where they want to take the country. The term that just ended showed just how important replacing a single justice can be. We are where we are because of Donald Trump and a Republican-controlled Senate.

When Americans go to the polls in 2020, they should vote with the Court in mind.