SCOTUS marches right – Kim Wehle

WHILE SPEECHING LAST MONTH, Justice Sonia Sotomayor he said: “There are days when after the case was announced, I would come to the office, close the door and cry. . . . There were days like that. And there will probably be more.” Given the blockbuster cases that will remain in the hands of the Supreme Court’s right-wing majority this term, she probably won’t be shedding a tear alone at the end of this month.

The rule of law has already suffered several devastating blows this term. ON March 4, the Court handed Donald J. Trump and his insurgent enablers a cataclysmic victory by deactivating the plain meaning of Section 3 of the Fourteenth Amendment, which expressly prohibits anyone “who has previously taken an oath…. . . support the Constitution of the United States, has engaged in insurrection or rebellion thereunder” before again holding federal office. Not a single judge dissented.

IN Alexander v. NAACP in South Carolina, a 6-3 conservative majority made racial redistricting much easier, contrary to years of legal precedent condemning racial redistricting maps. The Court rejected a lower court’s ruling – based on extensive evidence – that South Carolina illegally used race to cement an overwhelming Republican majority in the state’s congressional delegations. Writing for the majority, Justice Samuel Alito created a new “good faith” legal assumption that gerry-gerrymandered legislators would not stretch the law to their structural advantage, making it nearly impossible to successfully challenge racially rigged maps.

Last week in opinion authored by Justice Clarence Thomas, the same 6-3 majority struck down an ATF regulation interpreting the term “machine gun” to include stocks. Congress defined “machine gun” as: “any weapon which fires, is designed to fire, or which can be readily restored to firing, automatically by more than one shot, without manual reloading, by means of single trigger function” (emphasis added). The stock, as Thomas described, “places the buttstock of a semi-automatic rifle (the rear of the rifle that rests against the shooter’s shoulder) in a plastic housing that allows all other parts of the rifle to slide back and forth,” allowing ammunition to be released in a series of rapid shots. Thomas concluded that the striking function still resulted in multiple trigger pulls, so it was not a machine gun. This ruling will likely facilitate mass shootings in America. It also replaced the firearms “expertise” of conservative judges with that of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Alito separately noted that Congress could always amend the statute to clarify the definition of “machine gun” to include stockpiles if it wanted. Phew.

But the Court is poised to do much more damage to the relative power of federal agencies. (Remember that the decision that made headlines in… FDA v. Alliance for Hippocrates Medicinewhich rejected a challenge to the Food and Drug Administration’s decades-old approval of Mifepristone for use in terminating pregnancies was based on a finding that the plaintiffs lacked standing to bring the lawsuit – which did not establish FDA expertise). Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of CommerceThe Court is ready to abandon its landmark 1984 ruling Chevron v. Natural Resources Defense Council. Chevron stated that federal agencies gain the benefit of the doubt when they use their subject matter expertise to interpret ambiguous statutory language that Congress has asked them to translate. If, as expected, the Court rejects ChevronIt will be huge agreement. Conservatives who have pushed deregulation for decades will celebrate the drain of regulatory power, but such a ruling will inevitably place enormous regulatory power in the hands of another group of unelected officials: federal judges, and ultimately Supreme Court justices, who manage to anoint themselves as the ultimate regulators, except direct intervention by a Congress that is increasingly reluctant to take legislative responsibility for the myriad things that need to be regulated.

The Court will also deliver an opinion about emergency rooms in states with strict abortion bans must ignore the federal Emergency Treatment and Labor Act by denying pregnant women emergency abortions if they would otherwise face life-altering consequences such as sterilization. The case has ramifications far beyond the serious health consequences for pregnant women because it pits state power against that of the federal government under the Supremacy Clause of the Constitution – in this case, Congress. IN USA v. RahimiThe Court will issue another ruling with potentially tragic consequences for American women as it decides whether a federal law that prohibits people with domestic violence orders from owning guns will withstand a new test from the conservative majority’s challenge to the Second Amendment, which unveiled in June 2022 in a case to repeal New York State’s century-old concealed carry law.

These are just a small portion of the top issues coming up this month, which also include whether the Biden administration is banned from contacting social media companies about misinformation and disinformation under the First Amendment, and or dismantle the Purdue Pharma bankruptcy settlement aimed at immunizing the wealthy Sackler family from opioid-related civil lawsuits.

And there is one more important issue waiting in the background: the question of whether Donald Trump, convicted in New York of 34 crimes, is constitutionally protected from federal prosecution for his participation in the bloody attempt to overthrow the US government on January 6, 2021. This decision may have a huge impact on the personal Trump’s future and this year’s presidential election. This is another reason why Americans, going to the polls this November, should remember that their votes matter not only to the future of the presidency, but also to the future of the Court.