The Supreme Court’s 2023-24 term: A corrupt majority on steroids

Trump’s MAGA Insurrection 

Several cases this term stemmed from Trump’s efforts to undo the 2020 election that he had lost.  

Generally, the Court’s right-wing majority, including the three justices he nominated, ruled in his favor.  In Trump v. United States, the Court majority ruled that he is absolutely immune from prosecution for most of the misconduct alleged in the indictment against him in connection with the 2020 election.  

In Fischer v. United States, the majority held that important criminal charges against many who stormed the Capitol on January 6 cannot be brought.  

And in Trump v. Anderson, the Court unanimously agreed that states do not have the authority to keep Trump off the ballot as an insurrectionist. But five justices went further: They extended the same protection to insurrectionists in Congress, and they limited how Congress can act to keep insurrectionists from office. 

Trump Immunity from Prosecution 

On the last day of its 2023-24 Term, the Supreme Court’s far-right majority issued a very troubling decision on the immunity of former presidents like Trump from criminal prosecution, in Trump v United States.  We can now be sure, unfortunately, that Trump will not face a jury trial before the election on his efforts to improperly stir up an insurrection and upset the results of the 2020 election. Both for Trump and for American democracy, moreover, the consequences of the ruling are even more far-reaching. 

What did the ruling say in general about when an ex-president is immune from criminal prosecution?  

Trump argued to the Court that as a former president, he should be absolutely immune from being prosecuted criminally for any conduct while he was in office, such as his efforts to incite a mob to storm the Capitol on January 6, 2021. In some respects, the Court’s majority ruling – written by Chief Justice John Roberts and joined by Justices Thomas and Samuel Alito, and Trump justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett (who disagreed with a small part of the ruling) – went even further than that. 

Roberts’s opinion tried to lay out general principles concerning a former president’s criminal immunity, which the Court had not previously considered. According to Roberts, presidential actions fall within three categories for purposes of immunity. A president is absolutely immune from prosecution for any acts that fall within the president’s “core” constitutional functions, such as consulting with the attorney general and making treaties with foreign governments.  

A president also has at least “presumptive” absolute immunity for any other “official” acts he takes while in office. That means the ex-president is immune unless the government can show that “applying a criminal prohibition to that act” would not create any “dangers of intrusion on the authority and functions of the Executive Branch.” An ex-president has no immunity at all for “unofficial” conduct while in office.

Roberts also set forth two procedural standards that will make it harder to prosecute an ex-president. In separating official from unofficial conduct, he wrote, a court “may not inquire into the President’s motives,” despite the clear relevance of intent and motive in criminal cases. And in a part of the opinion that Barrett disagreed with, Roberts wrote that non-public evidence concerning a president’s official acts “may not be admitted as evidence at trial.”  As Barrett wrote in dissent on this point, such evidence can be highly relevant, and the Constitution “does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”

Justice Sonia Sotomayor strongly dissented from these standards for immunity on behalf of herself and Justices Kagan and Jackson. Although much will depend on precisely how these standards are implemented in the future, she wrote that Roberts’s opinion threatens to transform the entire range of a president’s official conduct into a “law-free zone.”  No matter how criminal or corrupt, she suggested, if a President does something as part of his “official” duties, he is at least presumptively immune from possible liability. What if a President “[o]rders the Navy’s Seal Team 6 to assassinate a political rival” or “[t]akes  a bribe in exchange for a pardon,” or “[o]rganizes a military coup to hold onto power,” she asked. “Immune, immune, immune” is the majority’s answer, she suggested.  When it comes to use of official power, she concluded, the ruling makes the President “a king above the law.” 

What did the ruling say specifically about the case against Trump? 

The Court’s opinion did not resolve whether Trump is absolutely immune from all the charges in the DC federal indictment against him, but instead sent the case back to the district court to apply the Court’s ruling. It did make several important points, however, most of which will help Trump. 

Initially, the majority suggested, the allegations in the indictment against Trump concerning his consultations with the Justice Department about possible prosecution of or threats against state authorities were blocked by absolute immunity. The same is true, the majority indicated, about Trump’s alleged threats to fire the attorney general. These allegations concern the president’s “core” responsibilities over which a president has “conclusive authority,” Roberts wrote, and Trump “cannot be prosecuted” for such conduct, even if possible investigations of states were “sham[s] or proposed for an improper purpose.” 

Roberts went on to discuss the indictment’s allegations that Trump improperly sought to influence the vice president’s oversight of the certification process for electoral votes on January 6. Claiming that communications between the two are routine and an important part of their functions, Roberts wrote that there should be a presumption of absolute immunity, which the special counsel can seek to rebut before the district court. As discussed above, Roberts decreed that the prosecution must show that a prosecution involving these issues would not “pose any dangers of intrusion on the authority and function of the Executive Branch.” 

Roberts went on to discuss the parts of the indictment that cover Trump’s interactions with people outside the executive branch, including state officials, private parties and the general public. He noted the disagreement between the parties as to whether this conduct was “private” or part of Trump’s “official conduct.” The Court directed that on remand, the district court should hear arguments by both sides and make at least an initial determination as to whether and the extent to which Trump’s conduct in this area “qualified as official or unofficial.” 

What happens next in the Trump DC case? 

Once Judge Tanya Chutkan formally receives the case back from the Supreme Court by early August, she will likely proceed along the lines that the Court directed. This will involve briefing and hearings, possibly including testimony, on which parts of the Trump indictment special counsel Jack Smith can go forward on. This process will likely take on months, and could well lead to more appeals this summer and fall before any trial can possibly take place.  The Justice Department has indicated that it plans to pursue the case after the election, even if Trump wins, at least until inauguration day.

All this makes clear that what happens in November’s election will be critical to whether Trump will face accountability for his actions as charged in the DC indictment against him. If Trump is elected, he will undoubtedly end the case against him upon taking office. Just as important, he will become president with the assurance that he cannot be held liable even for significant and gross misconduct while in office. This election is truly crucial to the future of our democracy. 

Letting Insurrectionists Hold Office 

In Trump v. Anderson, five of the far-right justices showed just how eager they are to help Donald Trump and other Republicans evade the constitutional ban on insurrectionists holding office. The case involved keeping insurrectionists off the ballot. 

How did this case come before the Supreme Court? 

Colorado election officials announced the list of people who qualified to be on the ballot for the March 2024 presidential primary. That list included Donald Trump. 

But a group of Colorado voters believed that the Constitution bars Trump from being on the ballot. Specifically, Section 3 of the Fourteenth Amendment prohibits officeholders who engage in insurrection from holding any federal or state office. This protection for democracy was put into the Constitution after the Civil War. Most people had forgotten this provision even existed. 

So the Colorado voters went to a state court. They said Trump’s conduct after losing the 2020 election was an insurrection covered by the Fourteenth Amendment. They said he was barred from office, and that, therefore, Colorado officials could not include him on the ballot. 

To look into this issue, the judge held a trial that lasted five days. Trump’s attorneys argued that he had not engaged in an insurrection. They also said that Section 3 didn’t apply to the office of the president. And they argued that Section 3 couldn’t be enforced by state officials, but only by Congress.  

After weighing all the evidence, the trial judge concluded that Trump had indeed engaged in an insurrection. But the judge also ruled that even so, Section 3 does not apply to the president, so he could still be on the ballot. Both Trump and the voters appealed the decision.  

On appeal, the Colorado Supreme Court ruled that Trump had engaged in an insurrection. The state justices also concluded that Section 3 covers the president. Trump appealed this decision to the U.S. Supreme Court.  

How did the Supreme Court rule? 

The U.S. Supreme Court ruled that State officials cannot bar a presidential candidate from the ballot. All nine justices said that it would be too chaotic to have state officials coming to different conclusions about who was eligible for the national office of the presidency.  

For Justices Sotomayor, Kagan, Barrett, and Jackson, that was enough to answer the question before the Court. They would have stopped there. But the remaining five justices – Roberts, Thomas, Alito, Gorsuch, and Kavanaugh – went further. 

How did five justices help insurrectionists? 

Although the case only involved the office of the president (which is a nationwide office), the majority issued a holding affecting all federal offices. They ruled that the only way to bar an insurrectionist from federal office is by Congressional statute. Congress has to pass legislation in order for Section 3 to go into effect with regard to not only the presidency, but any federal offices. 

As an example of such a law, they cited an existing law criminalizing insurrection and making it punishable by permanent disqualification from federal office. They also cited provisions in a post-Reconstruction law called the Enforcement Act of 1870. That law had empowered federal district attorneys to go to court to have insurrectionists removed from office; but this provision was repealed in 1948.  

Justices Sotomayor, Kagan, and Jackson pointed out that it makes no sense to say that Section 3 is unenforceable until Congress passes a law saying how it would be put into effect. Nothing in the text suggests that. No other part of the Fourteenth Amendment (like the Equal Protection Clause) requires a federal law to be enforceable. And they pointed out the illogic of having a constitutional provision that Congress was free to negate simply by doing nothing.  

The progressive justices also sharply criticized the majority for “shut[ting] the door on other potential means of federal enforcement” of Section 3. They wrote: 

[The] majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.  

This is a significant accusation. The progressive justices did not say simply that insulating insurrectionists would be the result of the majority’s decision. They strongly implied that that was the goal of the majority’s decision. 

Prosecuting January 6 Insurrectionists  

The Supreme Court’s Jun 28 6-3 decision in Fischer v US narrowed the reach of one of the criminal statutes used to prosecute Trump and some of the January 6  insurrectionists. The ruling was somewhat limited, however, and should not interfere with the prosecution of the vast majority of those individuals. 

What is the background of this case?

According to the government’s indictment of him, Joseph Fischer was one of the Trump supporters who “invaded” the Capitol building on January 6, 2021, “breaking windows” and “assaulting” Capitol police officers.  After both houses of Congress recessed, Fischer “trespassed” into the Capitol and got involved in an “altercation” with Capitol police, in which he “pushed” police away from insurrectionists.

In the indictment against Fischer, one of the charges was violating 18 US Code 1512 (c)(2) providing that any conduct that “otherwise” obstructs an official proceeding violates the law. The Supreme Court decided to review the case.  

How did the Supreme Court rule and what is the significance of the decision? 

Chief Justice Roberts wrote a 6-3 decision for the Court majority, which also included Justices Thomas, Alito, Gorsuch, Kavanaugh, and Jackson. Roberts rejected the DC Circuit’s broad interpretation of the law, but did not limit it as much as Fischer argued. His opinion held that in order to prove a violation of the statute, the government must establish that an individual attempted to or did “impair[] the availability or integrity for use in an official proceeding of records, documents, objects, or” other things. The dissenters, including Justices Barrett, Kagan, and Sotomayor, maintained that the DC Circuit’s broader interpretation was correct.

Although the Court’s decision obviously has impact on the prosecution of Fischer and some other January 6 insurrectionists, it should not prevent the prosecution of Donald Trump and almost all the other January 6 defendants. Specifically:

(1)  With respect to Trump, in addition to the other criminal statutes he is charged with violating, most experts and special counsel Jack Smith believe that the Court’s interpretation of 1512 

(c)(2) allows prosecution of Trump under that law. This is because Trump’s conduct did involve documents and evidence to be used. In particular, he was charged with attempting to prevent genuine certificates of election from arriving at the Capitol and with getting false elector certificates submitted. As the court’s opinion specifically states, “it is possible to violate 

(c)(2) by creating false evidence” to be used in the proceedings. 

(2) Similarly, although more proceedings may be necessary, even those insurrectionists charged under the broader interpretation of the law may be able to be prosecuted under the narrower theory established by the Court majority. Justice Jackson’s concurrence in the opinion suggests that this may include Fischer himself. 

(3) A comprehensive analysis of the ruling and Justice Department data by Just Security concludes that the decision overall will have “minimal impact.” For example, only 24% of the January 6 defendants were charged under (c)(2), and almost all of those were also charged with violating other criminal laws.  

Overall, while many obstacles remain, the decision in Fischer should not interfere with justice and accountability for January 6 insurrectionists, including Donald Trump. As discussed earlier, however, other rulings in this area are far more troubling and significant, particularly with respect to accountability for Trump. 

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Weakening Black Electoral Power

The Supreme Court issued a harmful ruling in the racial gerrymandering case of Alexander v. South Carolina Conference of the NAACP. The 6-3 decision by the conservative majority weakened Black Americans’ people’s ability to fully participate in our democracy. 

What was this case about? 

This case was about how South Carolina Republicans drew the boundaries for a congressional district long anchored in Charleston County. They moved more than 30,000 Black voters out of the district, which made it whiter and more likely to elect a Republican. The South Carolina NAACP went to court. They said the voters were moved at least partly because of their race, which is not legal. 

But the Republican legislators claimed they didn’t take race into consideration at all. Instead, they claimed they were engaged in a purely partisan gerrymander, which – thanks to a previous decision by the conservative justices – is perfectly legal. So there was a factual dispute that had to be resolved: Was race the predominant motivation? 

What happened at the trial? 

Redistricting challenges like this are heard by a panel of three judges. In this case, the panel held an eight-day trial and heard from 42 witnesses. The judges weighed testimony and determined which witnesses were credible – and which weren’t. 

The judges unanimously ruled for the NAACP. They simply did not find the legislators’ explanations credible. It wasn’t even a close call. The judges found the evidence of a racial motivation “striking.” Based on this factual finding, the judges made the legal conclusion that this was an unconstitutional racial gerrymander. The case then went directly on appeal to the Supreme Court. 

What did the Supreme Court do? 

Justice Alito’s 6-3 majority opinion was joined in most part by the full bloc of arch-conservative justices. (There was one section that Thomas did not join.) The justices reversed the lower court and upheld South Carolina’s redistricting scheme. 

Alito paid lip service to the longstanding principle that an appeals court should only overturn a trial court’s factual findings if they are clearly erroneous. But then he gamed the system to turn that standard upside down. 

Specifically, Alito wrote that the three-judge panel’s decision was “clearly erroneous” because they should have presumed that legislators act in good faith. According to Alito, the evidence cited by the three-judge panel was not enough to overcome that presumption of good faith. 

Alito found another reason to reverse the lower court: The NAACP did not offer an alternative map of their own. According to Alito, the lower court should have interpreted that as “an implicit concession” by the NAACP that the state legislators did not act with race as the predominant factor. 

What did the dissenters say? 

Justice Kagan wrote the dissent, joined by Justices Sotomayor and Jackson. She sharply criticized not just the majority’s reasoning, but also their motivation. 

Kagan characterized the majority as “intent on changing the usual rules when it comes to addressing racial gerrymandering claims.” She called the map requirement a “new rule of evidence” never before required in cases like this. And she noted that Alito had not really followed the Court’s standard of upholding a trial court’s findings of fact unless they are “clearly erroneous.” 

Normally, an appeals court respects a trial court’s decision about which party is telling the truth unless that decision is completely implausible. That’s because trial court judges see all the evidence themselves and watch people’s testimony as it happens. That makes them better able than an appeals court judge to decide if a witness is credible. 

But, Kagan pointed out, the Supreme Court majority did not defer to the trial judges’ factual findings. Instead, they deferred to the claims of one party: the state legislators accused of violating the Constitution. 

In doing so, Kagan noted, the majority was “reworking the law” to follow Justice Alito’s dissent in a racial gerrymandering case called Cooper v. Harris from several years ago, before the Court had been transformed by Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.   

Kagan condemned the majority for being more concerned about lawsuits challenging unconstitutional racial gerrymandering than they are about the unconstitutional action itself: 

Perhaps most dispiriting is what lies behind the Court’s new approach — its special rules to specially disadvantage suits to remedy race-based redistricting. The Cooper dissent thought plaintiffs would use racial-gerrymandering actions as “weapons of political warfare.” And it lamented that courts finding gerrymanders were “accus[ing]” States of “offensive and demeaning conduct.” So the problem was more with challenging racial gerrymanders than with putting them into place. Today, that view becomes central to the majority opinion. The suspicion, and indeed derision, of suits brought to stop racial gerrymanders are self-evident; the intent to insulate States from those suits no less so. 

What is the impact of the Court’s decision? 

The Court majority’s decision has made it easier for politicians to draw unfair voting maps that reduce the political power of Black Americans. It is now harder for lower court judges to enforce the Constitution when legislators act with impermissible racial motivations. 

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Abortion Rights

In the Supreme Court’s notorious 2022 Dobbs decision, the 6-3 ultra-conservative majority took away our constitutional right to abortion care. Anti-abortion activists used this as an opportunity to try to impose even more limits on abortion rights.  In two cases that reached the Court this year, while the majority did not accept the Far Right’s invitation, it did not reject it either. Instead, it kicked the can down the road to allow consideration of the issues in the future.  In one case, the Court dismissed for now a meritless challenge to the availability of medication abortion. And in the second, they dismissed for now a challenge to a federal law providing for abortion care for patients in emergency situations.  

The Mifepristone Case

Sometimes, the far-right judges Donald Trump installed on our lower federal courts go too far even for the ultra-conservatives on the Supreme Court. That is what happened in the abortion pill case, Food and Drug Administration (FDA) v. Alliance for Hippocratic Medicine. Fortunately, the medication mifepristone remains available. But unfortunately, the resolution of this case doesn’t end the threat. 

Mifepristone is one of two medications used in the most common method for abortion in the United States. It is safe and effective. The FDA first approved its use in 2000. Since 2016, FDA has expanded its availability, based on scientific research into usage of the medicine since 2000. As a result, mifepristone can now be safely prescribed by a larger category of qualified medical professionals, obtained through the mail, and taken safely at home. 

How did the case begin? 

After Dobbs, conservatives targeted the availability of medication abortion. They created an organization called the Alliance for Hippocratic Medicine to manufacture a lawsuit against the FDA. They argued against all the evidence to the contrary that mifepristone is dangerous. According to the group, the FDA’s approvals were not supported by the evidence as required by a federal law called the Administrative Procedure Act (the law that governs most agency regulations). 

The anti-abortion forces made sure to get their case before a judge who would ignore science, facts, and the law. So they incorporated themselves in Amarillo, Texas, which has only one federal judge: Trump appointee Matthew Kacsmaryk. Before his confirmation in 2019, Kacsmaryk had been a religious right activist opposed to abortion rights. Predictably, he ruled against the FDA. The case was appealed to the extremely conservative Fifth Circuit, which upheld several of the restrictions Kacsmaryk had imposed. 

The Supreme Court stayed the lower court order so mifepristone would remain fully available while the case was in litigation. This was over the objections of Justices Thomas and Alito. 

What is “standing” and how did it affect this case? 

The lawsuit should have been dismissed even before a judge considered the merits. That’s because of a constitutional requirement called standing: In order to sue in a federal court, you have to show some kind of injury. You can’t go to federal court just because you disagree with something. You actually have to have an injury that the court can remedy. 

But the members of the Alliance for Hippocratic Medicine have never taken mifepristone or prescribed it to their patients. They are simply doctors who personally oppose abortion. Even so, they claimed an injury: Someday, one of them might find themselves in a situation where they have to provide abortion-related care to a patient experiencing a complication caused by the medication. This is a highly unlikely scenario – especially since federal law lets doctors opposed to abortion decline to give abortion care. 

How did the Supreme Court rule? 

The justices unanimously ruled that the plaintiffs lack standing to sue, and the lower court judges were wrong to have even considered their arguments. In the past, this result could have been safely assumed in advance. The fact that the result could not be predicted with confidence is a sign of how far the Supreme Court has moved under the influence of the three Trump justices. 

But in this instance, they chose to follow the law and common sense. 

Justice Kavanaugh wrote the opinion for a unanimous Court. That unanimity was a striking rebuke to Kacsmaryk and the Fifth Circuit judges. He noted that for someone to have standing to challenge a law in federal court, they can’t be “mere bystanders” who object to the law. Essentially, that is all the doctors in the group are. 

As for the organization itself, the Court rejected the circular claim that it suffered an injury because it expended resources advocating against it. The opinion states that an organization that has not experienced an actual injury “cannot spend its way into standing.” 

Why isn’t the threat over? 

Since the case was dismissed on standing, the Court did not address the actual substance of the lawsuit. Kacsmaryk and the Fifth Circuit judges may be eager to find standing for some other people or entities. If they have standing, the issue will be before the Supreme Court again, and this time they will have to address the substance of the arguments. 

There is also a potential threat from conservative judges reviving an obsolete 19^th-century law called the Comstock Act to prevent mifepristone from being delivered in the mail. As the Supreme Court noted in the 1980s, the Comstock Act was named after a prominent anti-vice crusader who believed that anything relating to sex was obscene. But the Fifth Circuit specifically declined to address the Comstock Act, so it was not part of the case before the Supreme Court. Even so, two far-right justices – Thomas and Alito – seemed interested in reviving the law during oral arguments. We can expect this to be a major issue in a future case. 

Also, if Trump becomes president again, he could use his control of the FDA and the post office to severely restrict access to mifepristone. 

Emergency Abortion Care 

A second abortion-related case this year concerned a dispute in Idaho over a federal law that calls for hospitals to provide emergency abortion care to patients who need it. The Court dismissed the case for now, leaving the issue to be litigated more completely in the future. 

What is the background of this case? 

Shortly after the Dobbs ruling overturning the right to choose abortion in Roe v Wade, controversies arose about a federal law that concerns abortion care in emergencies. The 1986 federal Emergency Medical Treatment and Labor Act (EMTALA) requires emergency rooms in hospitals that receive Medicare funding to provide “necessary stabilizing treatment” to patients who arrive with an “emergency medical condition.”  The federal government has taken the position that even in a state that generally bans abortions, EMTALA requires that abortion care be provided in an emergency situation in which the health of the mother is at stake. 

Idaho law severely restricts abortions, prohibiting them except when necessary to save the life of the mother, regardless of dangers to the mother’s health.  After Dobbs. the Biden Administration went to federal court and maintained that EMTALA supersedes Idaho’s law and authorizes abortion care in the state as necessary to protect the health of the mother. 

A federal district court agreed with the government and issued a temporary injunction to prevent Idaho from enforcing its abortion ban to the extent that it interferes with EMTALA. When the federal court of appeals declined to disturb that order, the state went to the Supreme Court, which agreed to stay the injunction and hear the two related cases on the subject, Moyle v United States and Idaho v United States.

Starting last January, therefore, the Idaho law was fully enforceable to ban abortions, even in emergency situations. News reports indicated that at least six patients had to be transported out of Idaho by helicopter to obtain necessary care due to pregnancy complications.

What did the Court decide and what does it mean? 

In an unsigned 6-3 opinion towards the end of June, the Court dismissed the writ of certiorari it had issued to hear the cases as improvidently granted. That means that from this point forward, the lower court injunction against Idaho again takes effect, and emergency abortion care is available in the state as the underlying lawsuit goes forward. The case could reach the Supreme Court again after the lower courts reach a final decision on whether EMTALA supersedes the restrictive Idaho law.

Justices Alito, Thomas, and Gorsuch dissented, arguing that the Court should rule now that the Idaho law can be enforced. The Court will likely decide that issue in the future.  

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Gun Violence

This term, the Supreme Court decided two challenges to laws seeking to stem gun violence. In United States v. Rahimi, the Court ruled that we can keep guns out of the hands of domestic abusers. But in Garland v. Cargill, the majority struck down a ban on “bump stocks,” which essentially turn semiautomatic guns into machine guns. 

Keeping Guns Away from Domestic Abusers  

What was the Rahimi case about?  

United States v. Rahimi was about whether people subject to a domestic violence restraining order have a constitutional right to firearms. The fact that such an extreme claim made it to the nation’s highest court shows just how much damage Trump judges and justices have done to our judicial system. 

The case springs from the conservative majority’s dangerous decision in 2022’s New York State Rifle & Pistol Association v. Bruen. In that case – made possible by the three Trump justices – the Court severely weakened the ability of states and cities to set reasonable restrictions on firearms. The majority created a new type of analysis for all firearms safety laws. Before, judges had balanced the individual’s right to own and carry firearms with the urgent need to prevent gun violence. But the Bruen decision told judges they can no longer consider public safety interests. Instead, they can only uphold a firearms regulation if a comparable law existed at the time the Second or Fourteenth Amendments were adopted. 

After Bruen, gun safety laws that had been upheld in the past are now subject to attack. That’s what happened in this case.  

What protections were opponents of gun safety measures challenging?  

Under the federal Violence Against Women Act, it is illegal for someone subject to a domestic violence restraining order to possess a firearm or ammunition. Zackey Rahimi was subject to a restraining order in 2019, after he assaulted and threatened his girlfriend. In 2020 and 2021, he was involved in five different shootings. When police searched his home, they found firearms. He was convicted for possessing them while subject to a domestic violence restraining order.  

Rahimi claimed this violated his Second Amendment rights. Even the extremely conservative Fifth Circuit rejected that claim. But that was before Bruen. Afterward, the court reconsidered Rahimi’s case under the new Bruen standard and ruled in his favor. The Fifth Circuit judges determined that at the time the Second Amendment was adopted, there was no historical analog to the federal law at issue here. Therefore, they concluded, the law is unconstitutional. 

How did the Supreme Court rule? 

The Supreme Court reversed the Fifth Circuit in a near-unanimous 8-1 ruling. Chief Justice Roberts wrote the majority opinion, which was joined by all but Justice Thomas, who dissented. They upheld the federal law prohibiting someone subject to a domestic violence restraining order from possessing firearms. 

The Court ruled that when someone has been found by a court to pose a credible threat to another’s physical safety, then that person may be temporarily disarmed. The majority still followed the “history and tradition” approach of Bruen. But they clarified that judges should not be asking if a current firearm restriction has a precise historical analogue. Instead, they should ask more generally if the challenged restriction “is consistent with the principles that underpin our regulatory tradition.” 

The majority noted that our country has always had laws to stop people who threaten others from misusing firearms, including at the nation’s founding. Prohibiting Rahimi from possessing guns fits within this tradition. 

Nevertheless, the majority left Bruen in place and made clear that its holding was limited to situations where a court has found that someone poses a credible threat to another person. While the Rahimi decision somewhat mitigates one particular way that Bruen has damaged the country, many reasonable gun safety laws remain at risk of being struck down. 

What did Justice Jackson say? 

In a concurring opinion, Justice Jackson – who joined the Court after Bruen – made clear that she would have voted with the dissenters in that case. She detailed many of the problems that lower court judges are having with the Bruen standard: “They say there is little method to Bruen’s madness.” 

Jackson also criticized Bruen’s requirement that courts consider history to the exclusion of all else. Among other flaws, she noted, it requires legislators, judges, attorneys, and parties to do the job of professional historians without those professionals’ specialized education, knowledge or training. 

Who was the one dissenter? 

Justice Thomas was the only dissenter. He was also the author of the Bruen opinion, and he refused to give any ground. For him, the analogous founding-era laws cited by the other eight justices were not sufficiently similar to the Violence Against Women Act provision to make the current law consistent with the Second Amendment. Justice Sotomayor characterized Thomas’s approach this way in her concurring opinion: 

[The] dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding. 

Also, even though it was not an issue in the case, Justice Thomas added a footnote suggesting the law should be struck down as exceeding congressional authority under the Commerce Clause. 

Allowing Bump Stocks, Which Turn Semiautomatics into Machine Guns 

In a 6-3 ruling made possible by the three Trump justices, the Supreme Court invalidated a federal rule that subjects semi-automatic rifles equipped with bump stocks to the same restrictions and penalties as machine guns. Garland v. Cargill could well result in more mass shootings across the United States.

What is the background of the machine gun and bump stock bans and this case? 

Since the 1930s, federal law has banned machine guns, defined as guns that shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.” More recently, manufacturers have developed bump stocks, which can effectively transform semi-automatic guns, which are not banned, into machine guns so that one pull of a trigger can produce dangerous multiple gun shots. 

In 2017, a lone gunman used semi-automatic rifles equipped with bump stocks to rapidly fire hundreds of rounds into a crowd in Las Vegas, killing 58 people and wounding 500 more. After that, the federal Bureau of Alcohol Tobacco and Firearms (ATF) proposed and then adopted a rule that serves to “clarify” that any semi-automatic gun equipped with a bump stock is a prohibited machine gun. ATF’s rule ordered bump stock owners to either destroy or turn over their bump stocks to ATF to avoid criminal prosecution. 

Michael Cargill surrendered several bump stocks to ATF under protest and filed a federal lawsuit to challenge the rule. A federal district court upheld the rule, but the full Fifth Circuit held that it was invalid. The Justice Department took the case to the Supreme Court. 

How did the Supreme Court rule and why is the decision harmful? 

In a 6-3 decision written by Justice Thomas, which was joined by all three Trump justices as well as Justice Alito and Chief Justice Roberts, the Court affirmed the Fifth Circuit and ruled that the bump stock rule is invalid under the federal machine gun law. Thomas used diagrams and mechanistic descriptions to analyze machine guns and weapons equipped with bump stocks.  

Justice Thomas did not disagree that whether the firearm is a machine gun or a semiautomatic gun with a bump stock, the shooter only has to actively pull the trigger once to cause multiple shots. But because the internal functioning differs slightly, with a machine gun’s repeated fire caused by back-and-forth movement of internal parts as opposed to back-and-forth movement of the entire forward portion of a bump stock-modified gun, he maintained that defining the bump stock-modified gun as a machine gun violated the statute. 

Justice Sotomayor wrote a dissent, joined by Justices Kagan and Jackson. As she put it, “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.” 

Instead of using that simple principle, Sotomayor suggested, the majority ruling “casts aside Congress’s definition of ‘machinegun’ and seizes upon one” based on Thomas’s complex description “that is inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose.” The majority’s “artificially narrow definition” of machine gun, she concluded, “hamstrings the Government’s efforts to keep machine guns from gunmen like the Las Vegas shooter.” 

This decision by the right-wing Court majority was based on the statute, not the Constitution, so it can be modified by Congress. In fact, just days after the decision, Senate Majority Leader Chuck Schumer called for a vote to restore the bump stock ban. However, Republicans blocked the vote, ensuring the availability and dissemination of these deadly weapons. 

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Giving a Leg Up to Management in Labor Disputes 

In Starbucks v. McKinney, the Supreme Court majority ruled against employees at Starbucks seeking to protect their rights to organize. The majority set a standard for courts to follow that will make it harder for workers in the future to get relief from unfair labor practices. 

Who are the Memphis Seven? 

A group of Starbucks employees tried to unionize one of its stores in Memphis. After news coverage of the effort, Starbucks fired them. Congress long ago made it illegal to fire people as retaliation for their effort to unionize. In legal terms, it’s called an “unfair labor practice.” So the union helping them organize filed a complaint with the National Labor Relations Board (NLRB). 

Starbucks denied it had fired the “Memphis Seven” for their union activity. Instead, the company said it fired them because they entered the store after hours and let reporters enter the store after hours, all without authorization. 

The NLRB made a preliminary finding that an unfair labor practice had occurred, and it ordered Starbucks to hire the employees back pending the Board’s final resolution of the dispute. To enforce that order, the Board went to the Sixth Circuit Court of Appeals and sought an injunction ordering Starbucks to comply. That’s the process Congress established in the National Labor Relations Act. 

What happened in the circuit court? 

The Sixth Circuit granted the NLRB’s requested injunction. The fired employees got their jobs back, at least temporarily. 

Before this case, different circuits had different standards for how much deference a court has to give the NLRB’s tentative findings. But they generally gave more deference to the NLRB’s tentative findings than a party usually gets when asking a federal court for an injunction. 

In the Sixth Circuit (which includes Tennessee), the standard had been to grant the injunction as long as (1) there is “reasonable cause” to believe that unfair labor practices have occurred and (2) the temporary relief ordered by the NLRB is “just and proper.” 

After Starbucks lost at the Sixth Circuit, it appealed to the Supreme Court. The company asked the Court to set up a nationwide standard that would be less deferential to the NLRB’s initial findings. That would give employers an enormous advantage over working people seeking to organize. 

How did the Supreme Court majority rule? 

The Court ruled for Starbucks in an 8-1 decision written by Justice Thomas, and joined by all but Justice Jackson. The majority set a national standard that will make it harder for aggrieved workers to get relief while their cases are pending before the NLRB. 

Justice Thomas wrote that courts had been misinterpreting the National Labor Relations Act provision authorizing the NLRB to go to court to get an injunction. According to Thomas, Congress did not intend for courts to treat the NLRB’s injunction requests differently from similar requests by other parties in other contexts. And in those cases, the party seeking a preliminary injunction has a very high hurdle to climb to get it. 

Importantly for this case, one of those hurdles is to demonstrate that they are likely to succeed on the merits of their claim once the court has a chance to fully consider it. Under this approach, there is no deference to the NLRB. 

How did Justice Jackson disagree with the majority? 

Justice Jackson accused the majority of failing to abide by Congress’s intent. She wrote that the proper question for the court is not on the likelihood that the court itself will eventually rule for the workers. Instead, the court should focus on how likely it is that the NLRB will eventually rule for the workers. And that requires some deference to the findings already made by the NLRB. 

She cited the history of federal labor legislation, which came after an “ignominious history of abuse” by judges who acted as allies of management. Those judges regularly issued injunctions against striking workers in order to prevent the organization and strengthening of labor unions. 

Jackson described how Congress responded to this “antidemocratic” trend: by minimizing courts’ ability to intervene in labor disputes. Instead, Congress created the NLRB as the preferred way to protect federal labor rights when they have been violated. She wrote that the majority was taking away the authority Congress gave to the Board and giving it to judges. 

This case is just an example of how even after Congress protects our rights, courts can take them away. Judges like Ketanji Brown Jackson are vital to preventing that from happening. 

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Blocking Effective Health, Safety, and Environmental  Protections 

The Far Right was looking toward three cases this term to help accomplish one of its long-term goals: undermining our ability through federal agencies to adopt important health and safety protections that may get in the way of the corporate bottom line. Big business and the right accomplished one of its key goals by persuading the Court to overturn the Chevron doctrine in Relentless v. Department of Commerce. They also convinced the Court to seriously undermine the ability of the SEC to enforce Congressional law protecting consumers in SEC v. Jarkesy. In Consumer Financial Protection Bureau v. Community Financial Services Association of America, the Court rejected an effort to limit how federal agencies can be funded. And in two other cases, the right-wing majority took further action against agencies and in favor of big business and other challengers. 

Undercutting Agency Authority to Protect Health and Safety by Eliminating the “Chevron Doctrine” 

What is the background of the Relentless case? 

In two companion cases, the Court’s far-right majority overturned the Chevron doctrine which for 40 years had supported agency authority for protecting public health and safety. The two cases were:  Relentless v Department of Commerce and Loper Bright Enterprises v Raimondo. Both involved challenges by fishing companies to a rule issued by the National Marine Fisheries Service.

Pursuant to its interpretation of federal law, the agency had required herring fisheries to pay for the cost of carrying observers on board their vessels to collect data about their catches and monitor for overfishing. The corporations claimed that the rule was not authorized by federal law, and asserted that Chevron was wrong in saying that the courts should defer to an agency’s interpretation of an ambiguous statute that it helps administer. The lower courts rejected the industry’s arguments, and the Supreme Court accepted the cases for review.  

What did the Court decide and why is it harmful?  

In a 6-3 opinion written by Chief Justice Roberts and joined by all three Trump justices as well as Thomas and Alito, the right-wing Court majority reversed the decisions in the lower courts, overturned Chevron, and sent the case back for reconsideration. Even though Chevron was 40 years old and had drawn support from conservatives like Justice Scalia, Roberts wrote that the doctrine is “fundamentally misguided.” Even with respect to statutes that raise technical issues, he concluded, interpretation of laws should be done by judges, without deferring to agencies concerning ambiguous statutes.

Justice Elena Kagan strongly dissented, joined by Justices Sotomayor and Jackson. She noted that agencies are “more likely to have technical and scientific expertise” than courts to interpret ambiguous laws, as the Court had recognized in Chevron. The courts have applied that principle in “thousands of judicial decisions,” she noted, and it has helped agencies in their efforts at “keeping air and water clean, food and drugs safe, and financial markets honest.” The majority’s judicial power grab, she predicted, will likely lead to numerous challenges to previous rules as well as edicts preventing agencies from adopting new ones.  Kym Meyer, litigation director for the Southern Environmental Law Center, called the majority’s ruling a “recipe for chaos.” 

Weakening Agency Ability to Combat Fraud  

What happened in the case about consumer fraud? 

As part of its regular activity to enforce congressional laws, the Securities and Exchange Commission (SEC) brought a civil penalty proceeding against George Jarkesy, Jr., for misleading investors and fraud in marketing hedge funds. After a full trial before an administrative law judge, the SEC found him guilty and ordered him to pay a civil penalty of $300,000 and to disgorge over $680,000 in illicit gains.

Jarkesy claimed, however, that he was entitled to a trial by jury in the case, even though it was brought by the SEC, not a victim, to enforce statutory penalties. A court of appeals agreed with him, and the SEC took the case to the Supreme Court.

What did the right-wing majority do and why is it harmful?  

In his 6-3 opinion in SEC v Jarkesy joined by Justice Alito, Justice Thomas, and the three Trump justices, Chief Justice Roberts affirmed the court of appeals decision and effectively vacated the SEC decision, requiring that a new case be brought against Jarkesy before a jury. Although he conceded that the SEC was seeking to enforce a legislative provision that specifically authorized such agency enforcement, Roberts maintained that when the agency seeks civil penalties against someone for securities fraud, the individual is entitled to a jury trial under the Seventh Amendment and that Congress could not effectively take that right away through its laws granting civil penalty authority to the SEC. The majority did not reach other issues, such as whether Congress violated the nondelegation doctrine, but Roberts did maintain that Congress had improperly “concentrate[d] the roles of prosecutor, judge and jury in the hands of the executive Branch,” violating the “separation of powers that the Constitution demands.” 

Justice Sotomayor strongly dissented on behalf of herself and Justices Kagan and Jackson. She explained that under past precedent, the Court had “blessed” Congress’s practice of enacting civil penalties like those at issue here to be enforced through administrative proceedings, not a jury trial. Indeed, she went on, it was the Court majority that was engaged in a “power grab” that violated the separation of powers and disregarded past precedent. As she wrote, the majority’s ruling means that “the constitutionality of hundreds of statutes” granting such authority to agencies “may now be in peril,” and “dozens of agencies could be stripped of their power to enforce laws enacted by Congress.” 

The future will reveal how much damage – and chaos – will result from this decision. But there   is clearly no question that the majority’s ruling will harm the ability of the SEC and other agencies to enforce laws passed by Congress to protect the public.

Constitutional Challenge to Funding a Consumer Protection Agency 

Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America was a constitutional challenge to the way the CFPB is funded. Fortunately, it did not succeed. This case had the potential of calling into question nearly everything the CFPB has done since its creation. But the fact that the lawsuit got as far as it did shows the impact of far-right lower court judges. 

What is the Consumer Financial Protection Bureau? 

Congress created the CFPB in 2010 to protect consumers from fraudulent and abusive practices by banks, mortgage companies, lending agencies, and other services and products. This was part of the landmark 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. The agency was originally the idea of then-Prof. Elizabeth Warren, before she became a senator. Because of its robust protections for consumers, it has been a target of corporate interests since its creation. 

What happened in this case? 

The CFPB adopted a Payday Lending Rule to protect people from unfair and abusive lending practices. Two associations of companies regulated by the rule went to court to have it overturned. A panel of Trump judges on the far-right Fifth Circuit ruled that the way the agency was funded was unconstitutional. 

The Constitution’s Appropriations Clause states that “no money shall be drawn from the Treasury, but in consequence of appropriations made by law.” In other words, the executive branch cannot spend money that has not been authorized by Congress. 

When Congress created the CFPB, it created a system for funding the agency under which the Federal Reserve transfers a portion of its revenue to the CFPB. The amount is capped by statute. So the agency gets its funding in a way that is mandated by Congress, as the Constitution requires. There are other agencies that Congress funds in a similar way, like the Federal Deposit Insurance Corporation and the Federal Reserve Board. 

Nevertheless, the Fifth Circuit ruled that since the funding occurs outside the regular annual appropriations process, it is constitutionally suspect. Therefore, according to that court, the rules adopted under that funding are invalid. 

What happened at the Supreme Court? 

The extremism of the Fifth Circuit was too much even for some of the conservatives on the Supreme Court, which rejected the lower court’s fringe theory in a 7-2 decision. Only Justices Alito and Gorsuch dissented. 

Justice Thomas wrote the majority opinion for seven justices. He based his opinion on what he thought the founders would have understood by the word “appropriations:” any law that authorizes expenditures from a specified source of public money for designated purposes. He concluded that the CFPB’s funding mechanism falls within that definition. He based much of his analysis on the history of England and of the United States up to when the Constitution was ratified in 1789. 

Justice Kagan (joined by Justices Sotomayor, Kavanaugh, and Barrett) wrote a concurring opinion. In addition to Thomas’s reasoning, they also found the period after 1789 relevant. They noted that the CFPB’s funding mechanism was part of a “continuing tradition” from then until now of creating a variety of mechanisms to pay for government operations. Justice Jackson also concurred. She wrote that nothing more was needed than to read the plain text of the Constitution. 

Two Other Decisions Harming Agency Authority and Helping Big Business and Others who Challenge Agency Rules 

EPA and air pollution across states 

It has long been recognized that air can and does carry pollution across state borders. As part of the Clean Air Act, therefore, Congress required that states submit State Implementation Plans (SIPs) to implement their obligations under the law that comply with the law’s “Good Neighbor Provision.” That legislation mandates that each state’s SIP prohibit emissions that would “contribute significantly to nonattainment in, or interference with maintenance by, any other State.” If an SIP fails to meet this requirement, the Environmental Protection Agency (EPA) is authorized to issue a Federal Implementation Plan (FIP) for the noncompliant state. 

In 2022, the EPA announced its intention to disapprove SIPs by a number of states because of the dangerous ozone emissions that threatened harm in neighboring states. After receiving comments from industry and the public, the EPA disapproved the SIPs and announced an FIP to produce compliance with the Good Neighbor Plan. A number of states challenged the EPA’s actions in the DC Circuit and asked the court to stay the FIP while the case went forward. The DC Circuit declined the request, and the states sought a stay from the Supreme Court as the case was pending. 

What did the Supreme Court majority do and why was it harmful? 

In an opinion by Justice Neil Gorsuch, joined by Trump justice Brett Kavanaugh and by Chief Justice Roberts along with Justices Clarence Thomas and Samuel Alito, a 5-4 majority granted the states’ request and stopped any EPA implementation of the Good Neighbor Policy until the lawsuit concludes. Gorsuch maintained that the states were likely to prevail on their claim that the EPA actions were “arbitrary and capricious.”  He maintained that the EPA’s proposed actions were not “reasonably explained” and the agency had not addressed the concern that a number of states might drop out of the plan and make it difficult to implement. 

Justice Amy Coney Barrett filed a strong dissent, which was joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. She criticized the majority for enjoining the enforcement of a “major [EPA] rule based on an underdeveloped theory that is unlikely to succeed on the merits.” She noted that the majority was again using its “shadow docket” to grant “emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record.” The majority’s theory that the EPA had not sufficiently explained its actions, she went on, contradicts “contrary record evidence.” After carefully explaining the problems in the majority’s opinion, she concluded that the result of the Court’s injunction “leaves large swaths of upwind States free to keep contributing to their downwind neighbors’ ozone problems” for at least “the next several years” while the case goes forward.  

Environmental groups have been even more critical. As Earthjustice’s Senior Vice President Sam Sankar stated, the Court has now “abandoned any pretense of neutrality” in cases concerning environmental protection and has put “thousands of lives at risk.” 

The Corner Post Decision 

In the last week of its Term, the Court issued yet another 6-3 ruling in which the far-right majority harmed regulatory agencies by making it easier to challenge regulations, even those that were promulgated long ago. In Corner Post v Board of Governors of the Federal Reserve System, the majority held that a company or others can challenge a rule within six years of when the rule began to injure the plaintiff, even if this happened many years – 13 years in Corner Post –after the agency’s action. 

Justice Ketanji Brown Jackson’s dissent for herself and Justices Sotomayor and Kagan stated that the decision could have “staggering” consequences, especially in light of the right-wing majority’s decision overturning the Chevron doctrine. Even long-settled agency rules previously upheld under Chevron can now be challenged anew by businesses or others who claim they only recently began to feel the effects of such rules. Jackson specifically noted, for example, that a recent decision by an appeals court that turned away a challenge to the FDA’s rule on abortion pills could be revisited under the majority’s new holding. Even the most “well-settled” agency rules on drug approval, workplace safety, toxic waste, and more, she noted, “can be placed on the chopping block.” The result, she feared, will be a “tsunami of lawsuits” with the potential “to devastate the functioning” of the federal government. She pointed out that Congress can help remedy this problem by changing federal laws on challenging agency action. 

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Countering Far-Right Disinformation 

Autocracy thrives on disinformation. In the past few years, the nation has experienced immense misinformation and disinformation campaigns that sabotage our faith in democracy and in the public health system. Murthy v. Missouri involved a GOP-led effort to stifle the federal government’s ability to effectively counter misinformation and disinformation. The Supreme Court took no position on the issue. Instead, it issued a 6-3 ruling joined by the three progressives that the plaintiffs did not have standing to sue. That let the administration continue its work. 

What was this case about? 

This was a challenge to the Biden administration’s efforts to inform social media companies when their sites are being used for harmful disinformation, especially about COVID-19 vaccines and the 2020 election. 

Social media companies know that their platforms have been abused to recruit terrorists, sexually exploit children, disseminate foreign disinformation, and more. The companies have content-moderation policies to limit such abuse. That includes demoting or removing content. 

The Biden administration has encouraged the companies to take action to limit the spread of dangerous disinformation. It does so by informing them of harmful and inaccurate content and urging them to take appropriate action. The Far Right, which thrives on such disinformation, has characterized these efforts as unconstitutional censorship. 

Who sued the Biden administration and what did they want? 

Two states with Republican attorneys general (Missouri and Louisiana) and five individuals who post things online sued several agencies within the Biden administration. They sued President Biden, Surgeon General Vivek Murthy, and the Center for Disease Control over their efforts to counter disinformation about COVID-19. And they sued the FBI and the Cybersecurity and Infrastructure Security Agency (CISA) for their efforts to counter disinformation about elections. 

The plaintiffs all claimed that they had been harmed by social media companies’ content moderation decisions, and they all attributed those decisions to the federal government. But they did not ask for compensation for those supposed past injuries. Instead, they asked the court to severely limit federal officials’ ability to communicate with social media companies in the future. 

What happened in the lower courts? 

The plaintiffs sued in a location in Louisiana where the case would be assigned to Trump judge Terry Doughty. He adopted the far-right framing of the case. He ruled that the Biden administration was violating the First Amendment. He barred the federal government from communicating with social media companies about false content. On appeal to the extremely conservative Fifth Circuit, the case went before a panel of two George W. Bush judges and one Trump judge. They upheld much of Doughty’s ruling. 

The Supreme agreed to hear the Biden administration’s appeal. The justices also blocked the lower court order from taking effect pending the end of the litigation. So that allowed the administration to work with social media companies as before. 

How did the Supreme Court rule? 

In a 6-3 opinion by Justice Barrett, the Court ruled that none of the complaining parties had standing to sue in federal court. In other words, the Trump judge in Louisiana should have dismissed the lawsuit without even considering the merits. Justice Barrett’s opinion was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Jackson. 

As noted elsewhere, standing is a constitutional requirement: In order to sue in a federal court, you have to show some kind of injury. More specifically to this case, the plaintiffs had to show that the agencies being sued were likely to censor their speech in the future. To do that, they presented what they claimed was evidence of past censorship. 

The Court held that the two states and the five individuals all failed to show an injury attributable to the defendants. In some cases, social media restrictions occurred before the federal government began its outreach program. In other cases, the plaintiffs did not even bother to say when the restriction occurred, which made it impossible to attribute to the federal government. Some of the complaints involved a social media company that the defendants did not contact. And others involved alleged contacts from federal agencies different from the ones the parties chose to sue. 

In addition, Justice Barrett noted that the social media companies had independent motives to moderate content. The plaintiffs failed to demonstrate that the companies were taking orders from the government rather than exercising their own judgment. 

So without past injuries caused by the defendants, the Court ruled, the plaintiffs had no evidence to support their claim that they would be censored in the future. That means they lacked standing to ask the court to prohibit the government from continuing its outreach to social media companies. 

Who dissented in the case? 

Justice Alito wrote the dissent, joined by Justices Thomas and Gorsuch. Alito agreed with how the lower courts and far-right activists had framed the case. He called the Biden administration’s actions to counter disinformation and misinformation a “successful campaign of coercion … to control what the people say, hear, and think.” He called the plaintiffs “victims” of that campaign. He wrote that this could be “one of the most important free speech cases to reach this Court in years.” 

Alito wrote that giant social media companies are much more vulnerable to government pressure than newspapers. According to the dissenters, the companies fear antitrust enforcement, fear changes in laws protecting them for liability for what people post on their sites, and fear losing the federal government’s support for their interests in other countries. As a result, according to the dissenters, the companies have a “powerful incentive” to please federal government officials. 

What does this tell us about the lower courts? 

Like the mifepristone lawsuit, this case should never have made it this far. But the right-wing plaintiffs found a way to get a Trump district court judge who, like Matthew Kacsmaryk in Texas, would put ideology over the law. And the Fifth Circuit, perhaps the most extreme in the nation, predictably signed on to the project. 

Justice Barrett’s majority opinion was sharply critical of the lower courts. For instance, the Court held that Judge Doughty’s analysis of the evidence presented to him was “clearly erroneous.” She cited numerous ways that the evidence he cited did not relate to the conclusions he drew based on that evidence. And she criticized the Fifth Circuit for “gloss[ing] over complexities in the evidence.” 

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Next Term 

The damage will continue next term. The Court has already announced cases it will be considering during the term beginning next October. They include: 

• United States v. Skrmetti: This is a constitutional challenge to Tennessee’s law banning gender-affirming medical care to minors. The Court’s decision will dramatically affect the health of transgender youth.
• Lackey v. Stinnie: This is an effort to limit when civil rights plaintiffs can have the defendant pay their attorneys’ fees.
• Garland v. VanDerStok: This is a challenge to requiring “ghost guns” to have serial numbers and be subject to background checks. 

The Supreme Court may also end up playing a central role in the presidential election.  

If President Biden wins a second term, he can continue the work he has done to seat more justices and judges like Ketanji Brown Jackson. But if Donald Trump has a second term, he will make the current Court even more harmful than it already is – and more likely to stand by while he replaces our democracy with an autocracy. For all of our rights, and our democracy, the November elections are crucial. 

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