SCOTUS Keeps Marching Right
Making sense of this term’s major rulings—from bumpstocks to regulation to the question of immunity for Trump.
DURING A SPEECH LAST MONTH, Justice Sonia Sotomayor said: “There are days that I’ve come to my office after an announcement of a case and closed my door and cried. . . . There have been those days. And there are likely to be more.” Given the blockbuster cases that remain in the hands of the right-wing Supreme Court majority this term, she probably won’t be alone in shedding tears later this month.
The rule of law has already suffered some devastating blows this term. On March 4, the Court gave Donald J. Trump and his insurrectionist enablers a cataclysmic win by deactivating the plain meaning of Section 3 of the Fourteenth Amendment, which expressly bans anyone “who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same” from holding federal office again. Not a single justice dissented.
In Alexander v. South Carolina NAACP, the 6–3 conservative majority made racial gerrymandering much easier, in defiance of longstanding legal precedent condemning race-based redistricting maps. The Court tossed out a lower court ruling—based on extensive evidence—that South Carolina had illegally used race to cement Republicans’ overwhelming majority in the state’s congressional delegations. Writing for the majority, Justice Samuel Alito manufactured a new legal presumption of “good faith” that gerrymandered legislators won’t stretch the law to their structural advantage, making it all but impossible to successfully challenge racially gerrymandered maps anymore.
Last week, in an opinion authored by Justice Clarence Thomas, the same 6-3 majority struck down an ATF regulation interpreting the term “machineguns” to include bump stocks. Congress defined “machinegun” as: “Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger” (emphasis added). A bump stock, as described by Thomas, “places a semiautomatic rifle’s stock (the back part of the rifle that rests against the shooter’s shoulder) with a plastic casing that allows every other part of the rifle to slide back and forth,” allowing the release of ammunition in rapid-fire succession. Thomas reasoned that the bumping function still produces multiple trigger-pulls, so it’s not a machine gun. The ruling is likely to make mass shootings easier in America. It also substituted the conservative justices’ firearms “expertise” for that of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Alito separately weighed in to note that Congress can always amend the statute to refine the definition of “machinegun” to include bump stocks if it wants to. Whew.
The Court is poised to do much greater damage to the relative authority of federal agencies, however. (Bear in mind that the headline-grabbing decision in FDA v. Alliance for Hippocratic Medicine, which rejected a challenge to the Food and Drug Administration’s decades-long approval of the drug Mifepristone for pregnancy terminations, was based on a finding that the plaintiffs lacked standing to sue—not that the FDA’s expertise holds.) In Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the Court is expected to ditch its landmark 1984 decision in Chevron v. Natural Resources Defense Council. Chevron held that federal agencies get the benefit of the doubt when they use their substantive expertise to interpret ambiguous statutory language that Congress tasked them with interpreting. If, as expected, the Court discards Chevron, it will be a huge deal. Conservatives who have pushed deregulation for decades will celebrate the drain on regulatory power, but such a ruling will inevitably transfer it into the hands of another group of unelected officials: Federal judges, and ultimately Supreme Court justices, who will have managed to anoint themselves the ultimate regulators, barring direct intervention by Congress, which has increasingly shown itself unwilling to take legislative responsibility for countless things that need regulating.
The Court will also issue an opinion on whether emergency rooms in states with strict abortion bans must ignore the federal Emergency Medical Treatment and Labor Act by denying pregnant women emergency abortions if they would otherwise face life-altering consequences, such as sterilization. The case has implications that stretch far beyond the severe health consequences for pregnant women, because it pits states’ power against that of the federal government under the Constitution’s Supremacy Clause—in this instance, Congress. In U.S. v. Rahimi, the Court will issue another ruling with potentially dire outcomes for American women by deciding whether a federal law banning individuals with domestic-violence restraining orders from owning guns survives the conservative majority’s new test for Second Amendment challenges, which it unveiled in June 2022 in a case striking down New York State’s century-old concealed-carry law.
This is just a smattering of the major cases looming this month, which also include whether the Biden administration is barred from contacting social media companies about misinformation and disinformation under the First Amendment, and whether to dismantle the Purdue Pharma bankruptcy settlement to immunize the wealthy Sackler family from opioid-related civil lawsuits.
And there’s one other big case waiting in the wings: the matter of whether Donald Trump, who stands convicted of 34 felonies in New York, is constitutionally immune from federal prosecution for his involvement in the bloody attempt to overthrow the U.S. government on January 6, 2021. That decision could have an enormous effect on Trump’s personal future and on this year’s presidential election. And it is further reason for Americans to remember, when they go to the polls this November, that their votes don’t just matter for the future of the presidency, but also the future of this Court.
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