The Supreme Court of the United States (SCOTUS) is by far and away the government entity most able to make a severe and immediate difference in our lives. It holds the power of judicial review over both the Executive branch of government (the President and bureaucracy, including the Intelligence Community, FBI, DOJ, etc.) as well as the Legislative branch of government (the US Congress). That’s serious power!
It consists of nine justices, appointed for life and is generally active from October through June of each year. This is referred to as its “term” each year. Accordingly, the 2020-21 term has just come to an end. This term was the first with all three Justices appointed by President Trump sitting on the bench (Gorsuch, Kavanaugh and Barrett), although Justice Barrett was not present for some of the earlier cases as she was not confirmed by the Senate until October 26, 2020. The upcoming 2021-22 term will truly be the first full term under the “new” court, but this year we certainly got a preview of things to come.
Below I highlight the most important six cases of the recent term and provide a brief, jargon-free summary of each. For each case I will identify the issue and summarize the case in just two paragraphs – one to outline the facts and one to explain the ruling. I will also provide a rating of the court’s opinion, from one to five stars, with five stars indicating a ruling that is most favorable to those of us on the Cultural Right. The cases are presented by date of opinion. OK? Let’s jump in…
Brownback v. King
February 25, 2021
Can federal law enforcement agents be sued for money damages by someone they had a physical altercation with while arresting them, if a court has already decided that no violation of constitutional rights had taken place during the arrest?
FACTS: FBI Special Agent Douglas Brownback and Grand Rapids Police Department Detective Todd Allen arrested James King in 2014. King was beat up pretty badly – he claims the officers used excessive force. The officers claim the use of force was justified as King was assaulting them. King sued the officers on constitutional grounds as well as under the Federal Tort Claims Act (FTCA). The federal district court found in favor of the officers, determining that King’s constitutional rights had not been violated and therefore he was barred from suing under the FTCA. King appealed the ruling and the U.S. Sixth Circuit Court of Appeals overturned the District Court’s ruling, finding in favor of King this time. The officers appealed that decision to the U.S. Supreme Court.
OUTCOME: In a unanimous 9-0 opinion, the Supreme Court found in favor of the Officers, ruling that a finding that no constitutional rights were violated during the incident does in fact bar the plaintiff from suing them under the FTCA. You may be surprised, but my reaction to this case is a bit mixed. If the court had found in favor of King, they would have created a “lane” of new cases against federal law enforcement officers, for actions that wronged the plaintiff but don’t necessarily rise to the level of constitutional violations. I recognize that this would have opened up the door to all sorts of frivolous litigation from well-funded social justice warriors fighting to make that “lane” as wide as possible; however, I’m generally a big fan of holding the federal government accountable and not creating broad restrictions on citizen’s ability to sue it. Conservative pundits have hailed this case as a victory for the right but I’m not so sure about that, hence the two star rating.
Jones v. Mississippi
April 22, 2021
Must courts hold a separate hearing to find that a juvenile offender is unable to be rehabilitated (“permanently incorrigible”) before sentencing them to life in prison without parole?
FACTS: 15-year old Brett Jones stabbed his grandfather to death in 2004. A Mississippi court found him guilty and sentenced him to life in prison without the possibility of parole. The law allows the court to sentence juveniles to life without parole if they are found to be “permanently incorrigible.” Jones claims his sentence should be overturned because the court in Mississippi did not hold a separate hearing to determine if he was “permanently incorrigible.”
OUTCOME: In a 6-3 ruling the court found in favor of Mississippi. The court believes the law requires a finding of “permanently incorrigible,” but that does not necessitate a separate hearing. This is a solid ruling. The court is demonstrating its respect for the authority of state and local courts here. The request for a separate hearing is nothing but a speed-bump designed to discourage courts from doing something that left-leaning lawmakers discourage (sentencing juveniles to ‘life without parole’)… this new Supreme Court is expected to pull the federal government’s beak out of state and local affairs over the next few years and this ruling exemplifies their intention to do just that. 4 1/2 stars.
California v. Texas
Is the the Affordable Care Act (aka “Obamacare”) unconstitutional based on it having its penalty provision pulled back to zero dollars, effectively making it ‘toothless?’
FACTS: This is the latest in a decade long string of legal challenges to the Affordable Care Act (aka “Obamacare”). I’ll save you the recap of what Obamacare is.
OUTCOME: In a 7-2 decision the Supreme Court found in favor of upholding Obamacare, much to the chagrin of the conservative talking heads. The legal theory here is that the group of individuals and states that brought the suit do not have standing to sue (i.e. they didn’t have a right to complain) because they cannot show any loss related to the legislation. In other words, if it didn’t cost you any money, what are you suing for? This is another case I have mixed feelings about; while I’m no fan of Obamacare, I’m certainly no fan of judicial activism… and that’s exactly what the court would have been doing here if they overturned Obamacare on such a flimsy case. Like it or not, the elected lawmakers passed this law in 2010 and have not passed another one to take it’s place since. All of the solid arguments against the constitutionality of Obamacare have been exhausted at this point. This is a last ditch effort at killing this legislation under a newly conservative Supreme Court. To overturn Obamacare here would have been another example of the court legislating from the bench – only it would have been in favor of the right this time. I’m glad the court remained disciplined and did not open itself up to accusations of hypocrisy. What’s good for the goose is good for the gander. A begrudging 4 stars.
Fulton v. City of Philadelphia
June 17, 2021
Can a Catholic Charitable Organization that facilitates child adoptions legally refuse to certify same-sex couples as foster parents?
FACTS: In 2018, Catholic Social Services (“CSS”), a non-profit religious charity based in Philadelphia confirmed that it would not certify same-sex couples as foster parents. The city’s Department of Human Services stopped referring foster children to the agency. CSS filed suit against the city in district court, citing violations of its rights under the First Amendment and under Pennsylvania’s Religious Freedom Protection Act.
OUTCOME: In a surprising unanimous 9-0 ruling, the Supreme Court found in favor of Catholic Social Services holding that the city of Philadelphia violated CSS’ right of free religious expression. This is a clean-cut 1st amendment case in my opinion and I’m thrilled that the court ruled unanimously. Nobody is claiming that same-sex couples cannot adopt children… the case is simply about CSS’ right to abstain from doing something that clearly violates their sincerely held religious beliefs. For the vast majority of couples (who are not same-sex) they provide a much needed and much sought after service, which in turn benefits society as a whole. To frame this as a “defeat” for the LGBTQ+ community is to fundamentally misunderstand the nature of first amendment freedoms. 5 stars!
Mahanoy Area School District v. B.L.
June 23, 2021
Do public schools have the right to punish students for speech that occurs off-campus, even if that speech specifically involves the school or school activities?
FACTS: B.L. (a juvenile) was a student at Mahanoy Area High School in Pennsylvania. She was suspended from the school’s cheerleading team after making a post on Snapchat (a social media platform) that the team coaches deemed to be in violation of team and school rules. The post specifically read, “Fuck school fuck softball fuck cheer fuck everything,” and was accompanied by a picture of the student giving the middle-finger to the camera. School officials upheld the coaches’ ruling, while stating that B.L. could try out for the team again the following school year. B.L. sued the school in federal district court, claiming that the school had violated her First Amendment rights by attempting to regulate her off-campus speech and discipline her for that speech. The District Court found in favor of the student. The school appealed… the U.S. Third Circuit Court of Appeals found in favor of the student again. The school appealed once more… this time to the U.S. Supreme Court.
OUTCOME: Three strikes and you’re out! The school lost again. In an 8-1 ruling, the U.S. Supreme Court affirmed the lower courts’ rulings, holding that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the Mahanoy Area School District were not sufficient to overcome B. L.’s first amendment right to free expression in this case. Interestingly, conservative stalwart Justice Clarence Thomas was the sole dissenting opinion here. He agreed with the majority in that the school’s interest in regulating behavior (including speech) is less compelling off-campus than it is on-campus, but he expressed reservations about a lack of clarity offered by the majority on just how limited schools actually are in the off-campus situation. I think he raises a fair point, but on the whole I agree with the majority. 4 1/2 stars.
Brnovich v. Democratic National Committee
July 1, 2021
Do Arizona’s “out of precinct” and “ballot collection” laws violate section 2 of the federal Voting Rights Act and/or were they passed with a racially discriminatory purpose?
FACTS: The State of Arizona passed legislation regarding voting. That legislation contained two changes to their voting laws: 1.) the “out of precinct” rule means that in-person votes cast in the wrong precinct (i.e. the wrong polling place) will NOT be counted, and 2.) the “ballot collections” rule prohibits a person other than the voter, a family member, the U.S. Postal Service, or election officials, from handling absentee or mail-in ballots. The Democrat National Committee sued Arizona, claiming that these provision violate federal Voting Rights Act, “by adversely and disparately impacting the electoral opportunities of Hispanic, African American, and Native American Arizonans.”
OUTCOME: In a 6-3 opinion, the U.S. Supreme Court ruled in favor of Arizona, finding that these provisions did NOT violate the federal Voting Rights Act and are not discriminatory towards any racial or ethnic group. Justice Alto stated in the majority opinion, “Arizona law generally makes it very easy to vote. All voters may vote by mail or in person for nearly a month before election day…” This is a great ruling. The Democrat party is shamelessly using race as a wedge issue for political gain here. A long-time part of the Democrat party ground game is ‘ballot harvesting,’ a practice which involves party operatives called “canvassers” knocking on doors, asking people to vote right then-and-there by absentee ballot that the canvasser provides. That canvasser will then take the completed ballot with them and submit it on behalf of the citizen. Democrats claim this is done for the convenience of the voters. Of course, that is hard to say with a straight face when they only do it in strategically advantageous areas – minority-heavy neighborhoods where much of the population are unlikely to actually show up in-person on election day. At the very least this practice places undue pressure on people to vote the way the canvasser wants them to. At the very worst, this results in a lot of flat-out ballot fraud. Arizona’s new rules are designed to maintain the public’s faith in our elections and the idea that by making it harder for Democrats to cheat somehow equates to racism is laughable. Apparently the Supreme Court agrees. 5 stars!
Sneak Peak at the 2021-22 Term
This year’s term was interesting. We had some surprise unanimous decisions and a strong 7-2 decision to uphold Obamacare; this should quiet the left down a little bit, but don’t expect that to last long. Most commentators, myself included, expect next year’s term to be an epic sea-change in American Constitutional Law. The court has already selected most of the cases it will hear and we can tell a lot just from the choices they make. I’ll leave you with two potentially earth-shattering cases to consider.
New York State Rifle & Pistol Association Inc. v. Corlett – This is the second amendment case the NRA has been chomping at the bit for. The court will consider the constitutionality of state policies, like those in New York, which make it so difficult to obtain a concealed carry permit that the practice is virtually outlawed. With one stroke of the pen, the court could force states like New York, California, Massachusetts, Illinois and the rest of the Rainbow Union of Socialist Republics to start issuing carry permits en masse to its citizens. Some pundits have gone so far as to speculate that the court may go ahead and federalize “constitutional carry,” which dispenses with permits altogether under the the radical theory that citizens do not have to request permission from the State to exercise rights already imbued to them by the constitution. Although I would love to see this happen, I think federalized constitutional carry is a bit of a pipe-dream. However; I do think states such as New York are in for a rude awakening at the Supreme Court next year – they should start getting used to the idea of an armed citizenry.
Dobbs v. Jackson Women’s Health Organization – This is the abortion case that will cause you to be bombarded with months of infuriating, left-wing political commercials. The State of Mississippi passed a law called the “Gestational Age Act,” which prohibits abortions after the fifteenth week of pregnancy except in cases of medical emergencies or fetal abnormalities. The law was found unconstitutional by both the District Court and the Fifth Circuit Court of Appeals, citing violations of the law promulgated by Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). This case is unlikely to see Roe overturned outright, but many commentators expect the Supreme Court to deal the biggest blow it has ever seen, setting up a potential direct challenge to the long-standing and controversial case law in a subsequent term. Time will tell.