In the Federalist Papers, the Judiciary was called the “Least Dangerous Branch.” The thought was that the Supreme Court relied on the other branches to follow through on court orders. However, in our legal system, court orders are usually obeyed. And, between gerrymandering, filibusters, and the equality of the states in the Senate, it is very hard to get the types of majorities that allow real change in the “political” branches. Courts, however, simply require a majority to act. And the relentless campaign of the far right has left us with a Supreme Court that borders on being as political as any other branch of government. That is not to say that every decision is political. There are lots of legal issues that are not partisan in nature. And there are some issues that split conservatives. However, on this Court, when there is a clear partisan divide over an issue, the result is a foregone conclusion regardless of what the true facts and precedent dictate. The last week of the term gave us three cases in which Senator Mitch McConnell’s abuse of Senate rules resulted in rulings that we would not have gotten in 2015.
The first case is Kennedy v. Bremerton School District. What makes this case significant is that this case is ultimately about what version of the facts one chooses to belief. The normal rule is that appellate courts take the facts as found by the lower courts or in the light most favorable to the lower court. In this case, however, a major conflict between the two opinions is their characterization of the facts. The majority sees the practice of the petitioner — a public high school coach kneeling on the football field at the end or the game — as a private act of worship. The dissent (and the lower courts) saw the act as a public display by a government employee in the course of his employment. The normal practice when the case is this fact-dependent and the facts are unclear is to “dismiss as improvidently granted.” Instead, the majority picks and chooses the disputed evidence that supports the legal rules that it wishes to establish notwithstanding compelling evidence supporting a contrary reading of what happened. In doing so, the Supreme Court announces that the Lemon test for the Establishment Clause has been discarded (as well as other tests for an Establishment Clause violation) and replaced by (wait for it) a historical analysis of what would have been considered an establishment of religion. It should shock nobody that this approach means that very little will be a violation of the Establishment Clause. With the Establishment Clause neutered, that just leaves the Free Exercise Clause and the Free Speech Clause. Given the fact that the Supreme Court has greatly expanded the impact of these two clauses, the end result for the forces of protecting the rights of Christian Theocrats over the rights of everybody else is a foregone conclusion.
The second case Oklahoma v. Castro=Huerta. This case involves criminal jurisdiction on tribal lands in Oklahoma. Several years ago, in a 5-4 decision (with Justice Ginsburg) on the Supreme Court, Justice Gorsuch and the four liberal justices ruled that no treaty or act by Congress ever formally disestablished the native reservations in Eastern Oklahoma even as non-Natives bought the land on the reservation. As such, the lands were still legally part of those reservations. Under federal statute, crimes by natives against natives on reservations have to be tried in tribal court or federal court (depending on the offense). The new case involved crimes against natives by non-natives. With Justice Barrett instead of Justice Ginsburg, there were five votes against tribal authority and in favor of state authority. As such, the majority — thanks to a rushed confirmation by Senator McConnell in the fall of 2020 — found that Oklahoma also had the authority to try such cases in state court. Now, both this decision and the earlier decision are based on statutes. In theory, Congress could fix the laws related to the relationship between tribal authority and state authority to fix the issues brought out by cases (or actually appropriate the money to hire enough prosecutors, public defenders, and judges to handle a large number of cases on tribal lands in Oklahoma), but the deadlock in Congress makes this highly unlikely.
The last case is West Virginia v. Environmental Protection Agency. This case falls at the core of the Republican war on the regulatory state. Most regulatory grants of power are broad. Prior to the 1930s, conservatives used something called the non-delegation doctrine to limit the power of the regulatory agencies. Under this doctrine, the legislature could not delegate “legislative” power to executive branch agencies. From 1940 to 2005, the non-delegation doctrine was essentially dead. All the courts required for a valid delegation of rule-making authority was some standards guiding the agency. In support of agency authority, the courts employed what came to be known as Chevron deference — the principle that, if the agency decision was a reasonable regulation authorized by a reasonable interpretation of the statute, the courts would uphold the regulation. As noted in prior posts, the Supreme Court has been more likely in recent years to avoid applying Chevron by simply finding that the meaning of a statute could be determined and the regulation was not authorized by the only correct reading of the statute. A second, doctrine was employed to further undermine claims of agency power — the “major questions” doctrine. The major question doctrine is used to challenge a “new” use of regulatory powers by requiring that such uses be clearly authorized by statute.
For the EPA, the grant of authority is pretty broad — the ability to regulate any pollution found in the air or water. The primary authority is to reduce pollution by regulating the construction of new facilities. The EPA can require new facilities to use new technologies to reduce pollution. While there are some statutes that hint at the ability to require existing facilities to make changes to incorporate new technologies, this power has only been used in limited circumstances. When the Obama Administration was in office, some of its proposals related to climate change and greenhouse gases would have required some changes in existing power production facilities. That regulation has been repealed and replaced by a pro-business Trump era regulation (which in turn was likely to be replaced by a new regulation by the Biden Administration). Despite the fact that the regulation at issue is dead, the Supreme Court still took this case to give an advisory opinion on what type of regulation would be permissible. Given the ascendency of the “repeal the New Deal” faction of the Republican Party on the Supreme Court, the 603 result should not be a surprise. Using the major question doctrine, the majority holds that there is not clear enough authority for the EPA to impose regulations that would require changes at existing power production facilities. In short, the Supreme Court stripped the EPA of its authority to implement meaningful climate change regulations until Congress addresses the issue — which will merely require Democrats to keep the House and gain sets in the Senate to prevent Senator Joe Manchin (D-Coal) from being the deciding vote on any climate change legislation.
And this Supreme Court has made it clear that it’s not done with partisanship. This week, Louisiana joined Alabama as a state in which the Supreme Court has enjoined the lower courts from compelling these two states to obey the Voting Rights Act and enacting congressional districts that would contain two minority-majority districts. The Alabama case will be held in the fall, and the Republican majority is likely to gut the Voting Rights Act to allow these two states to deprive African Americans of fair representation in Congress. Additionally, this week, the Supreme Court decided to take the challenge of North Carolina Republicans to the finding of the state courts that the Congressional districts adopted by the North Carolina legislature violated the requirements of the North Carolina Constitution. Prior posts have noted the flaws in the “independent state legislature” theory that has emerged from the far right, and this theory has been expressly and implicitly rejected in several prior cases. But this majority does not care about precedent. It is likely that these two cases will undermine attempts to get some degree of fairness into redistricting and allow Republicans to try to hold onto power by stacking the deck even as they fail to win votes.
All of these results would have been different if there were a Justice Garland and if Justice Jackson had replaced Justice Ginsburg and the only Trump appointee was Justice Gorsuch. But that is not the case, The only good news from this week was that, upon the release of the “wrap-up” order on Thursday, Justice Breyer retired, and Justice Jackson became the first African-American woman on the Supreme Court. For the first time in history, white males are the minority on the Supreme Court.
On this Independence Day weekend, I am reminded of the quote attributed to Benjamin Franklin at the conclusion of the Constitutional Convention. According to Franklin, the Constitutional Convention gave us “a Republic, if you can keep it.” This term reminded us that the Republic is under attack — by militants willing to use force, by politicians who are willing to turn a blind eye to sedition and/or actively support an attempt to nullify elections, and by a Supreme Court that is at risk of becoming captive to those forces. While it is an overstated election year slogan that this year’s elections are very important, this year, it might just be true.
