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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Welcome to Part 2 of our two-part blog series! We’re continuing our look at the 2023-2024 Supreme Court term, focusing on decisions that impact economic security, public safety, immigration, and environmental health. If you missed it, check out Part 1 for our discussion on democracy-related decisions.

 

FREEDOM TO CARE FOR OURSELVES AND OUR FAMILIES

In the last two years, several Supreme Court decisions have undermined our ability to gain the economic security needed to care for ourselves and our families, in both dramatic and subtle ways.

Homelessness: Last month, the conservative Court majority tragically held in Grants Pass Oregon v. Johnson that local and state governments can effectively make being unhoused a crime.  Faced with a town ordinance that criminalized sleeping on city property, the Court majority refused to apply the Eighth Amendment’s prohibition against “cruel and unusual punishment” to the arrest, fining, and jailing of the most vulnerable members of our society—even when no shelters or other options are available. We all must now fear for the safety and health of those who will be criminally punished simply because they lack shelter.

Student Debt: The Court’s conservative majority has also erected obstacles to our nation’s young people seeking to find their footing, with particular harm to Black, Brown, and other disadvantaged students.  Last year, the Court struck down the Biden-Harris administration’s plan to reduce the crushing burden of student debt on individuals who needed to borrow funds to pursue ever more costly higher education opportunities (Biden v. Nebraska).  This action deprived relief from up to 43 million individuals, especially those with low incomes.

Higher Education Diversity:  In 2023, the same Court majority also barred the consideration of race in higher education admissions decisions (Students for Fair Admission v. Harvard; Students for Fair Admission v. University of North Carolina), thwarting post-secondary educators’ efforts to provide for diversity in their student bodies. These decisions not only remove an important avenue of opportunity for Black and Brown young people, but they also have now unleashed a wave of litigation that threatens diversity initiatives nationwide in business, government funding and contracting, foundation grant-making, and other venues.

Employment Discrimination: On a rare positive note, the Court this Spring clarified the requirements of Title VII of the Civil Rights Act for challenging employment discrimination based on race and other criteria.  In Muldrow v. Cit of St. Louis, the Court overturned an appellate court decision requiring that an employee must demonstrate “significant” disadvantage in an involuntary job transfer.  The Court held that that threshold was too high and that employees must only show “some harm” concerning employment discrimination.  The decision is important because it resolves a conflict among the lower courts nationwide on this issue, and it applies not just to job transfers but to all conditions of employment.

Wealth Tax: While many were expecting this Court to decide that a wealth tax is unconstitutional, it instead provided a reprieve.  The case of Moore v. U.S., which challenged the application of a narrow, one-time tax on foreign corporations, gave the Court an opening to decide the constitutionality of any tax on “unrealized gains” (i.e., gains in an individual’s wealth that are not cashed out, but instead reinvested or retained as assets), including the legality of a wealth tax.  While the Court found the tax at issue to be constitutional and did not reach the broader issues, there is language in the opinions that clearly questions the potential legality of any future wealth tax.

 

FREEDOM FROM HARM

Gun Possession: The 2022 Court decision in New York Rifle and Pistol Association v. Bruen recklessly insisted that any measure to protect us from gun violence had to be grounded in traditional laws passed centuries ago.  Confronted this year in U.S. v. Rahimi, a shocking case in which a repeat violent offender challenged his prohibition from possessing a gun while under a domestic violence protection order, the Court scrambled to reckon with its own logic to avoid an embarrassing decision and ultimately it allowed the prohibition to stand.

Bump Stocks: Still, just days earlier, the Court discarded regulations limiting dangerous “bump stock” gun attachments and the mass violence that these weapons can produce.  They relied on tortured reasoning, insisting that guns with bump stocks could not be regulated as automatic weapons because they did not meet one element of a statutory definition of “machine gun,” despite the fact that they function in every other respect as deadly automatic weapons.

Gun rights activists continue to challenge federal and state efforts to control gun violence in the courts. Thus, until the Court reverses its decision in Bruen, we can continue to expect more muddled, inconsistent decisions that will leave our schools, homes, and streets vulnerable to relentless gun violence.

 

FREEDOM TO LIVE IN A WELCOMING COUNTRY

Due Process Rights: Sadly, U.S. laws have long deprived immigrants of the basic due process rights that citizens take for granted.  Last month, the Court chipped away further at immigrant due process rights in two decisions.  In the first decision, Campos-Chaves v. Garland, a 5-4 Court majority ignored the clear language of federal immigration law and its own precedent to rule that the government’s Notice to Appear (NTA) at a noncitizen’s removal hearing must specify the time and date of the hearing.  In Campos-Chavez, the Court instead held that a deportation order can be enforced, even when the individual did not receive a valid NTA, but was informed of the date and time of their removal hearing in a separate document.

Immigrant Families: In Department of State v. Munoz, the Court held that neither an immigrant nor their spouse can challenge an immigration officer’s denial of a visa for the spouse in federal court. Five members of the 6-3 majority went on to suggest that the fundamental constitutional right to marry does not include a right to reside with one’s spouse, raising questions about the current conservative majority’s willingness to consider other limitations on the right to marry.

 

FREEDOM TO LIVE ON A HEALTHY PLANET

Water Quality and Flood Control: In the last two years, the Court has repeatedly aligned with large corporate polluters and climate deniers.  Its 2023 5-4 decision in Sackett v. EPA held that the EPA does not have any authority under the 1972 Clean Water Act to protect many of our nation’s long-regulated wetlands.  The decision threatens to puts water quality and flood control measures, including those already in place, at substantial risk across the nation.

Air Pollution: Last month, the Court temporarily forbade the EPA from enforcing its “Good Neighbor” regulations under the Clean Air Act.  These regulations require states whose emissions drift to a downwind state that then bears the brunt of the resulting pollution, to comply with EPA plans to lessen the excess pollution. In Ohio v. EPA and other consolidated cases, the Court referred the matter back to the lower courts for further deliberation, but not before barring the rules’ enforcement until all litigation is completed.  At that time, courts ominously will be free to overturn the EPA’s regulations under Loper Bright, and its elimination of any deference to the agency’s expertise.  

 

LOOKING AHEAD

Unlike our elected officials, the Supreme Court is largely unaccountable to the U.S. public whose laws it is supposed to protect.  And while the damage that the current Court has done and likely will continue to do has long-term consequences, we are not powerless to limit its reckless advancement of the conservative majority’s agenda.

Our elected officials can correct many of the Court’s most troubling mistakes if Congress has the will to work together to enact corrective legislation.  But many officials currently in Congress plainly lack that will. At NETWORK, we constantly advocate for laws that continue to protect our freedoms, even in the face of a Court majority that does not share our values.  As multi-issue voters who care about our communities and our Equally Sacred freedoms, together we will keep the current Court majority’s recklessness in check and make our voices heard in 2024 and beyond.

Since the 2013 Supreme Court decision, Shelby v. Holder, voting rights have eroded steadily in the U.S., especially in Black, Brown, and Indigenous communities — often in southern or red states — where suppression efforts by state legislators have created obstacles to the fundamental right to vote. Making matters worse, neither Congress nor the courts have put a stop to these dangerous threats to our democracy. That is, until a recent Supreme Court decision. Allen v. Milligan is a surprise win for voting rights and our democracy.

Allen v. Milligan is a surprise win for voting rights

The Supreme Court’s decision in Allen v. Milligan stunned legal experts and voting rights advocates. In a 5-4 decision, the Court affirmed lower court rulings that the Alabama state legislature violated the Voting Rights Act (VRA) when it brazenly redistricted the state’s congressional districts in 2021. Section 2 of the VRA bars measures that result in racial minorities having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The Alabama legislature violated Section 2 with a redistricting scheme that ensured that only one Black representative would be elected in the state’s seven Congressional districts—despite the fact that Alabama’s electorate is approximately 27% Black.

Why were observers surprised? In the narrow Court finding, Chief Justice Roberts and Justice Kavanaugh (conservatives) joined more Justices Sotomayor, Kagan and Jackson (liberal). It was unexpected because Supreme Court decisions on the Voting Rights Act in the last decade have cut back harshly on the VRA’s effectiveness, and recent statements by various Justices suggested willingness to further, if not decisively, diminish its protections for voters of color.

The Erosion of the Voting Rights Act

In 2013, the Court dealt a severe blow to the VRA. In Shelby v. Holder, the Court struck down the preclearance requirement in Section 4 the VRA that required states with a history of voter discrimination to get the approval of the Justice Department or the federal court before making any election law changes. By ending this scrutiny, the Court eliminated that the VRA’s most effective tool for protecting voting rights in states with a history of voter suppression and intimidation. Later Supreme Court decisions in 2018 and 2021 allowed further state incursions into voting rights.

With the completion of the 2020 census seven years after the Shelby decision, redistricting efforts began in states across the nation. Some southern states–now freed from Justice Department scrutiny—reverted to Congressional district line drawing (gerrymandering) that dramatically diluted the influence of Black voters. Alabama was a prime example, where the legislature redistricted the State to reduce the number of districts with Black majorities from two to just one. In Louisiana, the legislature’s redistricting plan all but guarantees that the State will only have on Black member of Congress from its six districts—despite that fact that over a third of its electorate is Black.

Future Impact of Allen v. Milligan

Last week’s decision means that Alabama must now redraw its congressional map consistent with the Supreme Court’s reasoning and in a manner that almost surely establishes two majority-Black congressional districts. But the decision’s impact will not stop there. At a minimum, it will reverberate to other states with a history of voter discrimination where post-2020 census redistricting schemes have diluted Black representation. Litigation alleging violations of Section 2 of the VRA is already ongoing in Louisiana, Texas, Arkansas, and Georgia, challenging the recent redistricting of those states’ Congressional maps, and the outcomes of these cases will now be subject to the Supreme Court’s new ruling.

As a result, political forecasters predict that Black and Brown voters will now play a substantial role in electing the next Congress member in a minimum or two, and possibly four or five, districts where their votes were marginalized by Republican-controlled redistricting schemes. With control over the House of Representatives decided by narrow margins in the last two elections, the impact of even a few seats changing hands may be decisive.

The Allen v. Milligan decision will extend beyond Congressional races to state elections as well. The VRA applies to the election of state legislatures, elected judges, and even some local races. For example, there is already active litigation challenging state legislature maps under Section 2 in Georgia, Mississippi, Louisiana, North Dakota, and Alabama. Similar cases have been filed challenging:

• A redistricting plan for the Galveston County, Texas Commissioners Court
• The Georgia Public Service Commission, and
• The Mississippi and Louisiana State Supreme Courts.

While Allen v. Miller  signals renewed respect for minority voting rights, it may take time for its impact to be felt widely. It depends on the length of time it takes for cases to wind through federal courts (this can take months) and the time in which new cases are filed. Nonetheless, in a time when the erosion of voting rights has been a striking and tragic trend, the court’s decision in Allen v. Milligan is a rare but crucial victory for democracy.