Welcome to Part 1 of our two-part series! We’re diving into how the 2023-2024 Supreme Court term affects our freedoms, as they’re framed in NETWORK Advocates nonpartisan Equally Sacred Checklist. This part focuses on key decisions impacting democracy and government accountability. Don’t forget to check out Part 2 for more insights.

The 118^th Congress is often—and appropriately– referred to as the “do-nothing Congress.” Earlier initiatives that advanced NETWORK’s Equally Sacred freedoms through Biden Administration-led legislation came to an abrupt halt in the current Congress by the GOP House of Representatives majority.

This deadlock in our Congress’s progress toward the realization of NETWORK’s vision is cause enough for concern.  But even more troubling is the fact that—despite the stalemate in the branch of government that is charged with making new laws– law is being made in insidious ways, as the conservative majority of the Supreme Court has stepped in to advance an ideological agenda at a stunning pace.

Over the last two years, the Court has undermined our Equally Sacred freedoms over and again, sometimes with the potential for long-term harm to our democracy and to the common good.  As we think about those precious freedoms, here are some key Court actions and their potential impact on the national well-being.

FREEDOM TO PARTICIPATE IN A VIBRANT DEMOCRACY

Without a court system that protects our basic democratic institutions, all of our other Equally Sacred freedoms are at risk.  For this reason, recent Court decisions promise to disrupt the basic workings of those institutions and aggrandize power to itself and its ideological compatriots.

Presidential Immunity: The most prominent of those decisions is, of course, Trump v. U.S., the Court’s declaration that a President is largely immune from prosecution for actions during their presidency that may be deemed “official.”  This decision will almost surely shield the prior President from legal accountability for many of his most troubling around the 2020 election.  But it also raises grave concerns over the conduct of future presidents who may no longer fear liability for stark abuses of power and actual crimes while in office.

Conspiracy to Obstruct Government Proceedings: In Fischer v. U.S., the Court held that a federal statute criminalizing conduct that obstructs or impedes an official proceeding applies only to cases where the defendant tampered with physical evidence related to the proceeding.  This decision raises doubt as to some of the crimes under which many January 6 insurrection participants were charged, potentially including some of the charges against Trump in his January 6 trial.

Agency Authority: In a severe blow to our nation’s constitutional institutions, the Court’s decision in Loper Bright Enterprises v. Raimondo swept away 40 years of precedent to diminish the authority of federal agency civil servants to interpret and enforce laws, giving power instead to federal judges and, ultimately, themselves.  The Court used a narrow fishing industry dispute to discard, across the federal government, the long-standing “Chevron” doctrine that provided civil servants with expertise in complex health, safety, environmental, and other matters deference to make “reasonable” interpretations of general statutes—and instead allowed federal judges to usurp that authority, despite having no specialized knowledge and no accountability other than the Supreme Court itself.

To compound its efforts to weaken federal agencies, the Court issued two additional decisions, SEC v. Jarkesy and Corner Post v. Federal Reserve, that promise to increase the courts’ power over agency authority. NETWORK now envisions widespread litigation in which individual judges issue ill-advised and inconsistent decisions that will disrupt badly needed environmental protections, efforts to reduce health care costs, safeguards for workers, food and housing assistance programs, and other federal rules that have long advanced the public good.

Voting Rights: This year, the Court also struck a blow to the constitutional protection of voting rights from racial discrimination.  In Alexander v. South Carolina Conference of the NAACP, the Court held that a South Carolina gerrymander scheme that marginalized Black voters was constitutionally acceptable under the Equal Protection Clause of the 14^th Amendment.  The dismal rationale for their decision was based on their earlier holding that flagrant gerrymandering is constitutional if those in power argue that it was done for “partisan political” reasons.  In Alexander, the Court went further to allow it, even when the redistricting damaged Black voting rights.

This decision contrasts with an Alabama case last year, Merrill v. Milligan, in which the Court created some voting rights optimism when it overturned a similar gerrymander scheme under the Voting Rights Act.  This year the Court also overturned an appeals court decision upholding the Arkansas legislature’s redistricting plan that plaintiffs challenged as impermissible dilution of the Black vote in two Congressional districts (Simpson v. Thurston).  In Robinson v. Ardoin, the Court also blocked a lower court order in Louisiana to allow the implementation of a new redistricting plan that added a Black majority district in the 2024 election.  While both of these decisions are temporary, pending further proceedings, it is positive that the Voting Rights Act has at least survived challenges even in the current Court.

Spread of Social Media Disinformation:   Two cases before the Court this term, Moody v. Netchoice and Netchoice v. Paxton, challenged Texas and Florida laws that limit the ability of social media platforms to regulate political and journalistic content posted on their sites as violations of First Amendment freedom of speech. While the Court returned both cases to the lower courts for further proceedings, they barred their enforcement for now and, most likely, through the 2024 elections. Accordingly, social media platforms remain able in both states to remove political disinformation as needed to support an informed electorate.

 

That’s it for Part 1 of our series on the Supreme Court’s 2023-2024 term. Click here to read Part 2, in which we cover decisions affecting economic security, public safety, immigration, and environmental health. Be sure to read both parts for the full picture.

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