Rolling back abortion rights and federal supremacy
In the 2022 landmark case Dobbs v. Jackson Women’s Health, the Supreme Court majority eliminated the constitutional right to abortion by overturning Roe v. Wade, opening the door to states banning reproductive care. For the past two years, patients and providers have been caught in the rapidly evolving litigation and policy landscape on abortion access, which has had far-reaching consequences on women’s health. This term, the court heard two cases dealing with abortion access. The first is a meritless case, brought by anti-abortion advocates, that questions the safety and effectiveness of mifepristone, which is the first medicine in a two-step regimen for a medication abortion. The second deals with whether a federal law that protects emergency abortion care as a stabilizing medical treatment under federal law overrides part of a state’s near-total abortion ban.
In FDA v. Alliance for Hippocratic Medicine, the court considered the controversial claim by anti-abortion advocates that the FDA’s approval for mifepristone in 2000 was unlawful. A unanimous court reversed the lower court rulings holding that the anti-abortion advocates did not have standing to sue because they could not show how they were harmed by the medication’s approval. Regardless, during oral argument, the Supreme Court justices themselves provided pathways for anti-abortion advocates to bring back the issue of access to medication abortion. Due to these actions and others taken by extreme right-wing anti-abortion activists, the future of medication abortion in the United States may still be vulnerable to further legal challenges.
In Idaho v. U.S., the court could issue a ruling that will end long-standing federal protections for abortion care for pregnant women in moments of severe medical emergency and also undermine the supremacy of federal laws over state laws. If the court holds that Idaho’s near-total abortion ban overrides the Emergency Medical Treatment and Labor Act (EMTALA), women will be reduced to second-class citizens and face delays or outright denial of emergency care with grave long-term health, or even fatal, consequences. It will also subject medical professionals who provide that care to severe criminal and civil sanctions. Furthermore, enabling states to carve out exceptions to EMTALA politicizes medicine. Political actors would then have the authority to decide what emergency care is available for specific populations based on their personal and political ideology, potentially impacting access to high-cost conditions, gender-affirming care, and more.
Presidential immunity and the January 6 insurrection
The Supreme Court will issue two opinions in the coming weeks directly addressing the January 6 insurrection on the U.S. Capitol. Notably, there have been calls for Justices Clarence Thomas and Justice Sam Alito to recuse themselves from both these cases due to (at a minimum) the appearance of bias in favor of insurrectionists and former President Donald Trump—but they have refused to do so.
In Trump v. U.S., the court is considering whether former President Trump’s alleged role in attempting to overturn the 2020 presidential election and helping foment the attack on the Capitol are subject to claims of presidential immunity. The court has already slow walked this case, first being asked to take it up in December 2023—denying a request for expedited consideration by a special counsel—and ultimately not hearing argument until April 25, 2024. This will make holding a federal trial prior to the November election virtually impossible. It will have been more than 48 days at the time of the publication of this piece since oral argument in the case compared to 25 days it took the court to issue its opinion in a related case, Trump v. Anderson. The concept of presidential immunity is found nowhere in the constitution—and if the court finds some requirement that it be applied in this case—it will open the door to the possibility of unaccountable, lawless actions by presidents going forward.
In Fischer v. United States, the court will decide whether to potentially upend convictions for approximately 350 January 6 rioters—a decision that could also result in reducing some election interference charges that have been brought against former President Trump. This case revolves around a specific statutory provision appearing in the Sarbanes-Oxley Act, which Congress passed after the Enron accounting scandal and generally targets people who corruptly attempt to impede an official proceeding. The court will need to decide the breadth of this statute and whether it applies to rioters’ actions that led to Congress delaying its joint session on January 6 to certify the 2020 presidential election. Because Trump is facing federal prosecution for alleged crimes that include the violation of this statutory provision, federal prosecutors could be forced to take a slightly different route in their case against him.
Freedom from gun violence
In the coming weeks, the Supreme Court will hand down two opinions that will significantly affect gun safety in the United States.
In Rahimi v. United States, the court will determine whether a lifesaving gun violence prevention law—which has effectively protected domestic violence survivors for more than 30 years—is constitutional. The only reason this law is being questioned is because the Supreme Court majority upended legal precedent and created a new legal test regarding firearm regulations in New York State Rifle & Pistol Association v. Bruen. Given the connection between gun violence and domestic violence, a negative ruling from the court will have profound and deadly implications for survivors of domestic violence and their families.
In Garland v. Cargill, the court threw out a Trump administration rule banning bump stocks—firearm attachments that effectively modify a semiautomatic gun into a fully automatic weapons—as “machine guns” must be thrown out. The rule was enacted following the 2017 Las Vegas shooting, in which the perpetrator used semiautomatic weapons equipped with bump stocks to allow them to fire over 1,000 rounds in 11 minutes into a crowd at a music festival, killing 60 and wounding more than 400 people. Justice Clarence Thomas parroted the talking points set forth in briefs by gun groups to twist the textual meaning of what constitutes a “machine gun.” This gives a greenlight to gun manufacturers to find novel workarounds to laws protecting Americans, making firearms even more deadly and everyday life less safe for all Americans.
Stripping governmental protections from Americans
There are several cases before the Supreme Court this term that could stop public agencies from protecting Americans from corporations and bad actors.
Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo both address whether the court will overturn the 40-year-old Chevron doctrine that requires courts to give experts at public agencies deference when creating regulations based on laws often written to be broad to cover unforeseen circumstances. This opinion will likely allow inexpert judges without any political accountability to substitute their own ideological and political preferences for those of nonpartisan career experts and strike down regulations that protect Americans from corporate greed and malfeasance. It also will make it even harder for to pass laws that can remain relevant and address novel and changing scientific, economic, and societal conditions.
In SEC v. Jarkesy, the court will address whether public agencies tasked with regulating sophisticated entities can enforce regulations directly if there is a similar common law statute that could be used to enforce the rule. The court could very well take a significant tool away from agencies that they use to prevent bad actors from taking advantage of the public by requiring them to go through an onerous and often years-long process seeking enforcement in the federal courts.
Corner Post v. Board of Governors of the Federal Reserve deals with whether new entrants to a regulated field can file facial challenges to long-standing regulations beyond the six-year statute of limitations. If the court eliminates the statute of limitations to file such actions, it could effectively open up any regulation that has been on the books for decades for challenge, regardless of when it was finalized. In combination with Relentless/Loper Bright, these decisions could result in decades of law being rewritten by a politically extreme judiciary.
Ohio v. EPA likewise deals with administrative law, as the court will decide whether the EPA “good neighbor plan” regulation limiting smog pollution that affects downwind states could go into effect while a challenge to the rule is litigated on the merits in lower courts. If the court prevents the rule from going into place, it will allow polluting industries to continue releasing smog particulates into the air unabated, and it will continue right-wing efforts to undercut any environmental regulation in favor of corporate interests.
Upending the First Amendment
The Supreme Court heard a set of cases that could throw application of the First Amendment into disarray. In these cases, right-wing state attorneys general and private litigants filed lawsuits arguing, on one hand, that the federal government should be prohibited from communicating with social media platforms regarding issues of national safety and importance, and, on the other hand, that the state governments of Florida and Texas should have veto authority over the content moderation practices of these same social media platforms.
In Murthy v. Missouri, the attorneys generals of Missouri and Louisiana engaged in judge shopping to identify a jurist who would likely side with their extreme assertions. Specifically, they asserted that communication between several components of the federal government—the White House, FBI, CDC, Office of the Surgeon General, and Cybersecurity and Infrastructure Security Agency—and social media platforms regarding areas of national concern—such as public health misinformation, election disinformation, and foreign malign influence efforts—violates the First Amendment. The trial court judge agreed, though the Supreme Court stayed that injunction pending argument. If the court ultimately sides with this extreme view of the law, it would be a significant blow to national security and make all Americans increasingly vulnerable to foreign threats and disinformation.
In the NetChoice cases, the Supreme Court will decide whether private actors, such as social media platforms, have a right to decide how they moderate speech on their own private networks or, instead, must live up to the much higher scrutiny of government regulation of speech under the First Amendment. If the court applies such a holding, it would be a wholly novel ruling in American jurisprudential history, as the First Amendment applies only to governmental, not private, restrictions on speech. Furthermore, it could lead to a slippery slope, allowing the government to mandate what other private companies—beyond social media—can and cannot allow their customers to say or do.
Creating status crimes in the United States
In City of Grants Pass v. Johnson, the court is considering whether status crimes—in this case, being unhoused within city limits—are constitutional. Here, the city of Grants Pass enacted ordinances that sleeping outdoors, even in cars, is illegal within city limits and punishable by fines and potentially jail time. If the court upholds these ordinances, it would overturn precedent from 1962 that held it was a constitutional violation to make a person’s status—in that instance, drug addiction without any other criminal violation—a crime. The court could very well permit cities across the country to make the mere status of having no home and being forced to sleep outside a crime while doing absolutely nothing to address the problem of homelessness.
The need to fight back against an extreme Supreme Court majority
The cases before the Supreme Court this term broadly threaten to undermine the rule of law, throw more power to corporations than ever, and treat presidents as kings—free to act with legal impunity. And they are being decided while the court is in the midst of an ethical maelstrom: Justice Thomas has received more than $4 million in gifts from right-wing special interests and benefactors and Justice Sam Alito’s homes have had flags sympathetic to January 6 insurrectionists flown outside them. Neither Justice Thomas nor Justice Alito have recused from any case, despite the appearance of their lack of impartiality being seemingly clear to any reasonable observer. There is little reason to wonder that the Supreme Court’s approval rating is at an all-time low of 34.2 percent.
To reestablish the court’s legitimacy as a trusted arbiter of the law and fair and impartial branch of government, the American people and Congress must push back. Public outcry and remonstrances are not enough—Congress must act to rein in the court’s power grab. The Center for American Progress and other groups have long called for instituting 18-year term limits on Supreme Court justices as well imposing a binding, enforceable code of ethics for their actions. Congress must also look to address judge shopping to prevent the abuse of nationwide injunctions that are at the heart of many of the politically charged cases before the court. And Congress should be reminded of its power to overturn some decisions of the court when it misinterprets laws that it has passed. If nothing else, Congress must begin by investigating justices who have seemingly placed themselves above the rule of law.
The Supreme Court appears to be careening further out of control this term, and the need for substantive reforms—to remind the justices that they are just one coequal branch of government—have never been more necessary.