On the first Monday in October, the Supreme Court, the most powerful government body controlled by conservatives, returns to work. Democrats have the White House and both chambers of Congress; Republicans, who have lost the popular vote in seven of the last eight presidential elections, are currently confined to the unelected, unaccountable branch of government.
However, because that one branch claims sole authority to nullify the actions of the other two, Republicans can do a lot of damage. Indeed, the ability to stop the actions of branches that Republicans cannot control without voter suppression is a big reason Senator Mitch McConnell spent so much energy stacking the Supreme Court. From stealing a seat from Barack Obama in 2016 to giving a third appointment to Donald Trump in 2020, McConnell has been playing the long game: wresting control of the one institution that is immune to the popular will. The former Senate majority leader never needed the MAGA coup to succeed. Instead, he had the court, which is now poised to do what a mob of white terrorists never could: Stop progress.
This term, we will see conservatives celebrate the achievement of two long-sought goals they could not accomplish through electoral politics. We will see broad conservative agreement that women should be treated as second-class citizens, reduced to the status of incubators with mouth parts, when the court hears the most direct challenge to abortion rights in a generation. And we will see broad conservative agreement that guns have more rights than children.
There will also be a bunch of cases that we don’t know about yet, conducted as part of the Supreme Court’s “shadow docket.” This consists of cases that are decided through an emergency process that allows the court to avoid holding full public hearings and issuing detailed opinions. No surprise, the conservatives have frequently employed it to decide the most controversial and partisan cases. The court is now fully owned by these conservatives—six justices to three—and they aren’t about to pass up this opportunity to win the culture wars they were sent to fight.
Many Supreme Court reporters spent an awful lot of energy at the end of the last term pushing the false narrative that the situation isn’t that dire—that the justices aren’t really broken along the partisan lines of the presidents who appointed them. They argue that the split is really 3-3-3, with the so-called moderates—Chief Justice John Roberts, alleged attempted rapist Brett Kavanaugh, and new justice Amy Coney Barrett—holding some center-like position. This analysis is flat wrong.
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Why Senate Republicans Threw an Epic Hissy Fit Yesterday
Why Senate Republicans Threw an Epic Hissy Fit Yesterday
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The “Harvard Law Review” Refused to Run This Piece About Genocide in Gaza
Roberts, Kavanaugh, and Barrett are in lockstep with their fellow conservatives on all the important issues. They all agree that organized labor should be disempowered, that voting should remain a largely white privilege, and that religious groups should be able to stop LGBTQ people from adopting children. That’s not theory; that’s the upshot of three decisions the conservatives hung together to make last term. The six conservatives agree on the outcomes; they disagree only on the best way to go about their awful work of reversing the gains of the civil rights and gay rights movements and dismantling the social safety net. A wolf and a leopard have different hunting methods, but they will both eat faces if they’re given the chance.
These six have already shifted the terms of the debate: With a supermajority of conservatives, the kinds of cases the court will consider has moved dramatically to the right. Court watchers who think the court is 3-3-3 are like sky watchers who live in the dark and tell you the moon is the brightest thing in the heavens.
To be clear, it’s not that every case will be decided 6-3; it’s that all the cases will be argued on conservative terms, over the issues conservatives care about, and decided based on what conservatives think they can get away with.
And apparently, elected Democrats, both in Congress and the White House, are cool with that. They have accepted conservative control of the courts. The Biden administration took the energy and passion of its base for court reform and sent it off to a commission of law professors to die. Congress, instead of mitigating the worst impulses of the courts by passing legislation to protect voting rights or reproductive rights, passes nothing because the Senate clings to the filibuster.
Conservatives have won their battle to control the federal judiciary. This term, the country will pay the consequences.
Dobbs v. Jackson Women’s Organization
Date of hearing: DECEMBER 1, 2021
As of this writing, I do not know how long the Supreme Court will allow Texas’s six-week abortion ban to stand. The court allowed the law to be implemented on September 1, claiming that Texas’s decision to empower private citizens to violate the constitutional rights of pregnant people somehow prevented the court from upholding 50 years of privacy precedent. But the justices have thus far declined to rule on the actual merits of the case. The Department of Justice has filed a lawsuit asking the courts to block the Texas law, but whether the Supreme Court hears that case, and when, remains an open question.
We do know that the court’s commitment to taking away reproductive rights will survive even if Texas’s bounty hunters are stopped. That’s because the Supreme Court is scheduled to hear a case about an entirely different law designed to overturn the legal standard set by Roe v. Wade. This case, Dobbs v. Jackson Women’s Health Organization, could allow the Supreme Court to accomplish a version of what Texas did this summer.
To understand how the Supreme Court will likely diminish—if not take away—the right to an abortion, you have to understand what the law is now, or at least was until Texas happened. There are two Supreme Court cases that define abortion rights in this country. Roe v. Wade (1973) held that the government cannot violate a woman’s right to terminate her pregnancy before a fetus becomes viable, at around 24 weeks. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) held that the government can restrict a woman’s right to choose before fetal viability but cannot place an “undue burden” on that choice.
From a certain point of view, Casey overturned Roe. People don’t talk about it that way, because it’s easier for Republicans running for office to fundraise off Roe and the made-up specter of “abortion on demand” than to admit that their favorite bogeyman has been neutered; and it’s easier for Democrats running for office to pretend that Roe still offers robust protection of abortion rights, and so there’s nothing else they have to do to secure the bodily autonomy of women. But in reality, Casey allows Republican state legislatures to place any number of hurdles between women and their constitutional rights, and conservative courts almost always find that those hurdles are not “undue burdens” on women.
The only thing Roe really stands for anymore is the proposition that an outright ban on abortion before a fetus can survive outside the womb is unconstitutional. Now anti-abortion forces on the Supreme Court are coming for that vestigial right as well.
At issue in Dobbs is a Mississippi law that prohibits abortions after 15 weeks, nearly 10 weeks before fetal viability. The law does have an exception for the health of the mother, but it makes no exception for rape or incest. And it’s an outright ban. After 15 weeks, Mississippi can commandeer a woman’s body and force her to bring a pregnancy to term. Since many women who aren’t trying to get pregnant may not know they’re pregnant until well into their first trimester, if not longer, and since the state of Mississippi has precisely one abortion clinic (Jackson Women’s Health), the Mississippi ban isn’t just a hurdle; it’s a wall.
The Mississippi law is a clear violation of the established precedent set by Roe and Casey. In fact, it’s such a clear violation that two lower courts, both helmed by conservatives, found the law unconstitutional. So Mississippi asked the Supreme Court to overrule Roe directly. The fact that the court took the case shows that there are at least four justices who are willing to consider revoking the standard set by Roe: that outright bans on abortions before fetal viability are unconstitutional. If I had to guess, I’d say that Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett are the four who are prepared to thumb their noses at settled law in order to control women’s bodies. So the big question is whether there is a fifth justice—either Chief Justice John Roberts or alleged attempted rapist Brett Kavanaugh—who wants to go along for the ride.
I think both of them will. Kavanaugh has sided with anti-abortion forces at least once, when he allowed the Texas law to go forward. And while Roberts dissented from that opinion, he did it in a way that focused on the procedural peculiarities of the Texas ban, not its attack on the constitutional right to choose that is embodied in the Mississippi ban.
My guess is that the court will not only uphold Mississippi’s ban but will also do it in a way that helps the Republican political agenda the most. They’ll uphold the Mississippi law under the Casey test, thereby rendering the phrase “undue burden” a cruel joke, but they won’t “overturn” Roe v. Wade. They’ll just roll it back far enough to erase the very line—pre-viability—that Roe was erected to protect. That sleight of hand will allow mainstream media pundits and Republicans like Susan Collins to say, “See, Roe is still the law!” while also allowing movement conservatives to send out letters asking for money to keep up the fight against abortion. And it will allow useless Democrats to say that Roe has been preserved and there is no reason to reform the Supreme Court or pass national legislation defending a woman’s right to choose.
But in red states, abortion rights will be seriously compromised—and in some cases, like Mississippi, they will almost cease to exist. Women with means will still travel to California or Canada to deal with unwanted pregnancies, but conservatives will move closer to their goal of turning poor women into incubators who cannot exercise their basic constitutional rights to their own bodies.
Conservatives have been fighting to get here for two generations. With their 6-3 stranglehold on the Supreme Court, they can now do everything they’ve always promised to do.
New York State Rifle & Pistol Association Inc. v. Bruen
Date of hearing: NOVEMBER 3, 2021
It’s hard to believe that despite our national epidemic of gun violence—from school shootings to domestic terrorism to suicides to intimate partner violence—conservatives want to pump additional hot lead into our society. We are covered in the blood of our children, yet Republicans insist that allowing classrooms to be turned into shooting ranges will keep us safe.
The irony (well, one of the ironies) is that the GOP pro-gun agenda is broadly unpopular. Sure, Republicans’ violent rhetoric works well in front of a white mob, but when it’s time to count votes, the ammosexuals are in the minority nationally. Indeed, public opinion is against unfettered gun-toting, with high levels of support for universal background checks, limitations on high-capacity ammunition clips, and even an assault weapons ban.
And so Republicans turn to the courts, the institution not beholden to the popular will, to advance the cause of violence. In 2008’s District of Columbia v. Heller, the Supreme Court invented a right to purchase firearms for personal self-defense; ever since, Republicans have been running to the court to try to strike down the few gun restrictions that remain.
One such case, New York State Rifle & Pistol Association Inc. v. Bruen, is up for review by the court this term, and it could blow the biggest hole in gun control regulations since Heller.
At the heart of New York State Rifle & Pistol Association is the proposition, made by the gun lobby, that licensing requirements—the simple act of needing to get a permit before you can carry a hand cannon in public—is a violation of the Second Amendment. The case comes out of New York, which, like many other states, requires gun owners to obtain a license before they can carry their weapons outside their homes; to acquire such a license, gun owners need to show that they have “proper cause” to strut around as an angel of death. The New York State Rifle & Pistol Association, a “firearms advocacy” group, argues that the need to show cause is a violation of gun owners’ constitutional rights.
This seems like a good time to mention that the opening words of the Second Amendment are: “A well regulated Militia, being necessary to the security of a free State….” These words literally spell out the proper cause for gun ownership. The suggestion that a state government, which requires a person to get a license to do everything from drive a car to sell beer, cannot license deadly weapons is bonkers. That the Supreme Court is likely to find this argument credible—and that the very same court will probably decide that the state can tell a woman what she can do with her uterus—is perverse. But that is what happens when you let conservatives control the courts.
Given that these conservatives are operating outside the bounds of constitutional text or precedent—that they are just making up gun rights as they see fit—it’s impossible to guess the precise jargon they will use to deliver victory to the gun lobby. But I do have a good idea as to how they’ll justify it.
A group of public defenders representing predominantly Black and brown clients recently submitted an amicus brief in the case, lending their support to the ammosexual cause. Their brief argues that New York’s gun licensing requirements are racist, because the police—who are in charge of issuing gun permits—use proper cause as a pretext to deny people of color their Second Amendment rights. Then law enforcement uses the possibility of unlicensed firearm possession as an excuse to harass gun owners of color, often violently.
They’re not entirely wrong. The public defenders have made a good argument but come to the wrong conclusion. They’ve accepted the conservative idea that the Second Amendment confers an individual right to gun ownership and now ask the court to extend that right to the Black and brown citizens the white gun lobby usually ignores. Instead of demanding police reform, they demand gun permissiveness. Instead of working for civil rights, they’re working for gun rights. Yet I believe their argument will be echoed by the conservative Supreme Court justices, who don’t give a damn about Black and brown people when they want to, say, vote, but will be happy to grant us the power to kill each other.
We are the only wealthy nation that can’t keep our children safe from gun violence. The Supreme Court will rule that we stay that way.
United States v. Tsarnaev
Date of hearing: OCTOBER 13, 2021
If you are going to be against the death penalty, as I am, you have to be against killing awful people who are clearly guilty of their crimes. Dzhokhar Tsarnaev is one of those awful people. He and his brother, Tamerlan, carried out the Boston Marathon bombing in 2013, which killed three people and injured hundreds. He was found guilty of his crime and sentenced to death.
But the First Circuit Court of Appeals threw out Tsarnaev’s death sentence last year. That court ruled that the trial court should have asked jurors if they were unduly biased due to the wall-to-wall coverage of the bombing, and it ruled that, at sentencing, the trial court improperly excluded evidence about Tsarnaev’s brother, who was killed while attempting to evade capture.
Bill Barr’s Justice Department, which went on a death penalty killing spree last year, appealed the ruling to the Supreme Court. The court declined to review the case during the Trump administration but agreed to hear it after the election. Trump lost the election (a point that cannot be repeated enough), and the death sentence against Tsarnaev became Merrick Garland’s and Joe Biden’s problem.
President Biden is allegedly anti–death penalty, but his Justice Department went ahead and asked the court to reinstate the death sentence against Tsarnaev. It’s not unusual for the Justice Department to continue the procedural posture in cases started by the previous administration; it’s just wrong for Garland to continue to enforce Barr’s policies out of institutional deference (a habit he seems to have embraced these past months).
There’s no real mystery about what the court is going to do. The conservative justices are all “pro-life” when that stance involves fetuses—and allows them to control women’s bodies—but pro-death from pretty much the moment a baby is born. Amy Coney Barrett has a particularly hypocritical stance here: She argued in a law review article that Catholic judges should recuse themselves from cases involving capital punishment because of the church’s stance against the death penalty. Yet during her 2017 nomination hearings, she indicated she would not recuse herself from capital cases, and she has thus far offered no indication that she will recuse herself from this live death penalty issue on her desk or that she will rule in favor of life.
As for Barrett’s conservative colleagues, they don’t even pretend to be conflicted when it comes to state-sponsored bloodlust. These justices rejected death penalty appeals in an increasingly cruel fashion last fall and winter as Barr and Trump tried to speed up the rate of killings.
Conservatives on the court want people on death row dead. We know they will use all their legal power to see them dead. I don’t know if Tsarnaev is irredeemable, but I know this court is.
Mississippi v. Tennessee
Date of hearing: OCTOBER 4, 2021
There are no huge environmental cases on the court’s docket, in part because centrist Democrats have spent more time criticizing the Green New Deal than coming up with any legislation of their own to address our myriad environmental crises. Aggressive climate legislation would almost certainly trigger immediate Supreme Court review, because entrenched oil and gas interests view the conservatives on the court as a “get out of corporate responsibility free” card. Without legislation, those interests don’t even have to bother appealing to the climate deniers on the high court.
But the climate is changing, whether politicians acknowledge it or not, and that is going to have legal consequences as we continue to destroy our planet.
One point where our changing environment will meet our legal system involves water rights. Our nation’s freshwater resources are dwindling, and each state government is trying to lap up as much of what’s left as it can. This way, it doesn’t have to tell its constituents politically unpopular truths about the massive need for water conservation.
The question of which state controls which water resources is at the heart of a long-running dispute between Mississippi and Tennessee. The Sparta-Memphis Aquifer is an immense groundwater resource spanning 70,000 square miles under eight states. Tennessee, which sits upstream of Mississippi, started tapping into that aquifer, drawing water for itself that would otherwise be bound for Mississippi.
Now, this is not the first time a state has taken or blocked off water from its downstream neighbors. In these situations, the Supreme Court (which hears disputes between states directly without their going through the lower federal courts) generally orders an “equitable apportionment” of the disputed resource—basically, it orders the states to share, nicely.
But Tennessee’s pumping method doesn’t merely draw water from underneath its own soil. Mississippi argues that the pumping method Tennessee uses draws water that has already reached Mississippi back into Tennessee. It argues that Tennessee is essentially drinking Mississippi’s milkshake, taking water that is not merely bound for Mississippi but is physically already there.
Therefore, according to Mississippi, equitable apportionment is not the correct solution. Mississippi should have sovereign rights over water already in its state, and Tennessee should stop pumping and pay a fee to Mississippi.
This is the first time the Supreme Court has heard a case like this involving groundwater, but it probably won’t be the last. Our rivers and reservoirs are running low, but the water demands from industrial farming and personal use continue unabated. States will increasingly dig for water, but aquifers do not respect state lines and political territories.
A smart future probably involves federalizing water rights and having the central government lease out water allotments while instituting a national water conservation program. But even typing that sentence will give the charlatans over at Fox News something to fearmonger about. I’ll probably get e-mails from MAGA people with pictures of them pouring gallons of water on their shrubs, saying, “Ain’t no liberal gonna take mah hedgerow.” Republicans will fight smart water conservation policies tooth and nail, confident that when the water’s almost all used up, people with guns or money will still be able to have a drink.
So instead of a real water conservation policy, we will likely continue on our destructive path, and unelected judges will dole out this dwindling resource on a state-by-state and case-by-case basis.
The Shadow Docket
Most Supreme Court previews, including this one, focus on cases scheduled to be argued before the nine justices in a hearing that is open to the press and the public. Most end-of-year Supreme Court analysis also focuses on the cases that are decided after robust debate and deliberation, after which the court explains its legal rulings in long written opinions.
But there is an entirely different process of adjudication that the conservative-controlled court has turned to with increasing frequency in recent years. Lawyers call this the “shadow docket,” and it consists of cases the court takes up in “emergency” fashion, outside the scope of its normal procedural order. In these instances, lawyers are allowed to submit expedited briefs to make their arguments, but they are not allowed to argue in person, in full view of the public and the press. Decisions are not made after months of deliberation among the justices, but quickly and through whatever informal conversations the justices make time for. And the justices often don’t bother to tell the public or the litigants the reasoning or logic behind their decrees, issuing instead a few sentences giving an order. Indeed, when operating in this shadow zone, the justices often lack the courage even to sign their names to their own rulings.
The Supreme Court’s use of the shadow docket appears to depend on who the president is. When Trump was in charge, the court used the shadow docket to authorize many of his most controversial policies, with Trump winning a “wide majority” of the cases his administration brought through emergency procedures, according to a Reuters analysis. The Biden administration has already experienced early defeats on the shadow docket.
But whether it has sided with or against the sitting president, this court has used the shadow docket approach to issue some of its most partisan and controversial decisions. Nearly all of its Covid-related rulings have come from the shadow docket; specifically, both of its rulings on the CDC eviction moratorium came through this process. And the court’s shocking August ruling, in which it ordered Biden to reinstate Trump’s “Remain in Mexico” program—despite the fact that the court has no authority over treaties with foreign governments—was also transmitted in a one-paragraph, unsigned opinion that gave no insight into the court’s logic for upending the constitutional separation of powers.
The Texas abortion ban was also authorized through the shadow docket.
I can speculate why the conservatives on the court prefer this process (they’re operating in bad faith and thus can’t be bothered to make up legal reasons for their partisan hackery), but their reasons don’t matter. The result is that, under the guise of “emergency” rulings, the court now makes up policy in real time, and the policies it concocts almost always comport with the Republican political agenda. As long as Republican lawyers can convince at least five conservative justices to rule in their favor, and to rule quickly, the GOP can advance its agenda despite being in the minority in all elected branches of government. And the court shields these debates from public view.
Because of this, the scope of power now wielded by unelected conservative justices is often overlooked by those who only follow the cases argued in public hearings. Any law passed by Congress, any executive order signed by the president, can be undone by the Supreme Court in the dead of night, and it doesn’t even have to tell us why. The refusal of Democrats to reform the court means they have given six conservative judges veto power over their entire political agenda.
It’s a veto the court has already used and will continue to use. Democrats may have won the last round of elections, but conservatives are still very much in charge. This term, the Supreme Court will prove it.