Just like procrastinating teenagers, the Supreme Court has gotten in the bad habit of waiting until the very end of the term to turn in their big decisions. It’s been this way for far too long now, with everyone spending the last two weeks in June wondering which civil rights the court will undermine. Friday’s decision drop brought a lot of bad news.
So, starting with the most devastating to democracy, here we go.
Trump v. CASA
The conservative majority’s decision in Trump v. CASA is no less destructive to democracy, no less shameful, than the decision granting President Donald Trump sweeping immunity.
After every lower court ruled against Trump’s executive order purporting to end birthright citizenship, calling it unconstitutional, the Trump administration deployed its tried-and-true method for getting a favorable ruling: Run to the Supreme Court and demand emergency relief to be allowed to do unconstitutional things ASAP while litigation plays out in the lower courts.
And the court’s conservatives are more than willing to lend a helping hand, but they don’t yet want to tackle the question of whether Trump’s attempt to alter the 14th Amendment via signing a piece of paper is constitutional. Instead, they play a little game and pretend this case is about a procedural issue: Can judges issue nationwide injunctions against the government?
The majority decided that judges can’t, thereby kneecapping not just people suing the government but also the lower courts. Now any injunction a lower court may issue will be limited. They could issue a preliminary injunction preventing stripping birthright citizenship from the named plaintiffs in a lawsuit, or every member of a nonprofit group, or residents of states that brought a lawsuit. What they can’t do is stop the administration anywhere else.
Obviously, this makes everything much harder on the plaintiffs. Either people need to bring individual lawsuits to obtain relief, or plaintiffs’ lawyers need to attempt to get a class action certified, or perhaps relief could apply to everyone in a state that has sued.
Put simply, the Supreme Court has given Trump an unimaginable gift. All of his obviously criminal, obviously unconstitutional actions can go forward anywhere, against anyone, save for whatever narrow slice of people are protected by the preliminary injunction.
As far as birthright citizenship, this decision will inevitably create a patchwork of laws. Your child can be stripped of their birthright citizenship in, say, Texas, but not in Minnesota, which brought a challenge to Trump’s order. Does the protection of birthright citizenship travel from one state to another? It’s an absolute nightmare to contemplate from an infrastructural perspective, particularly given that the administration doesn’t care at all if it deports people that it has been ordered not to, and is letting Immigration and Customs Enforcement agents run wild and detain U.S. citizens.
Ending birthright citizenship is wildly unpopular: Just 28% of Americans support doing so, according to a recent NPR/Ipsos poll. And Trump knows he’d never get enough votes to overturn or amend the 14th Amendment, which would first require Congress to pass a law doing so and then three-fourths of all state legislatures to ratify it. But what the conservative justices did instead is to functionally say that Trump can behave as if his executive order is already law, until some undefined future time when the court gets around to deciding whether it’s legal.
In the meantime, the country is about to face the glee of an administration that knows that it doesn’t matter if their underlying actions are objectively unconstitutional. They get to engage in those actions anywhere, everywhere, that a lower court hasn’t yet stopped them. This is an unprecedented attack on the federal courts, waged by the highest court in the land.
Mahmoud v. Taylor
It was pretty evident from the oral argument in Mahmoud v. Taylor that the court’s conservatives were ready and willing to say that schools were required to have an opt-out policy where parents could block their children from reading such terrifyingly explicit LGBTQ+ material like “Pride Puppy!” In that book, people track down a cute puppy lost at the Pride parade, and in the oral argument for the case, Justice Neil Gorsuch said it had “the leather and things—and bondage,” and he insisted to the school district’s counsel that the puppy book also featured sex workers. (It did not).
Justice Samuel Alito wrote the majority’s decision in Mahmoud, and if you want to see what kind of books Alito thinks children need to be protected from, there’s a full-color scan of a section of the book Uncle Bobby’s Wedding as an appendix to the opinion. Normal people will realize “Uncle Bobby’s Wedding” is sweet as all get-out, but for Alito, it’s such a terror that parents must be able to shield their children.
Alito knows that requiring every public school to have an opt-out policy for all books obtained by the school is comically unworkable, especially for smaller school districts. The solution, of course, will simply be to never purchase books that religious parents might not want their children to read.
As Justice Sonia Sotomayor points out in her dissent, this ruling “threatens the very essence of public education.” Parents get “veto power over curricular choices long left to the democratic process and local administrations.”
How are schools to function in this environment?
Free Speech Coalition v. Paxton
Predictably, Free Speech Coalition v. Paxton featured another 6-3 split, with all three liberals dissenting. The majority opinion, authored by Justice Clarence Thomas, upheld a Texas law requiring all internet sites with more than one-third of their content is “sexual material harmful to minors” to verify the age of all adult users by requiring them to provide government-issued identification or credit card transactional data. It then defines “sexual material harmful to minors” to include most sexual acts, thus requiring age verification for adults as a way to protect minors from accessing the website.
The problem for Texas is that in their ostensible zeal to protect minors, they violate the First Amendment rights of non-minors. The courts can regulate obscene speech, but that is very narrowly defined, with the Supreme Court having ruled decades ago that sex and obscenity are not the same thing. The majority in Paxton hand-waved that away, a regrettable but permissible side effect of protecting the children.
As an attorney with the American Civil Liberties Union noted in a statement on the ruling, “With this decision, the court has carved out an unprincipled pornography exception to the First Amendment. The Constitution should protect adults’ rights to access information about sex online, even if the government thinks it is too inappropriate for children to see.”
It won’t stop with Texas’s law, either. The holding is a gift to states that want to restrict access to LGBTQ+ information by declaring it “harmful for minors,” allowing conservative states to continue to expand the definition. Meanwhile, the speech of adults will be chilled since there are many people who will choose to forego viewing a website if they are forced to provide identification.
It’ll also be a nightmare for websites to implement since they’ll face a patchwork of verification laws across the states. Some may solve it by just disabling access for everyone in the state, which is what Pornhub did after Texas passed this law. Pornhub now blocks access to any traffic coming from an IP address in Texas.
It may feel like this case is no big deal if you don’t view internet pornography. But attacking pornography is just the first step on the path to allowing state censorship of whatever speech it decides is too “harmful.” For example, this administration has made clear that the mere discussion of transgender issues is impermissible. It’s just a skip and a hop from there to it being “harmful to minors” to “Oh whoops, sorry, this also stops adults, but that’s just the price of protecting minors.”
Kennedy v. Braidwood
Perhaps the best thing to be said about Kennedy v. Braidwood is that it could have been worse. Here, some conservative Christian business owners were mad that the Affordable Care Act required no-cost insurance coverage of certain preventive care they found morally objectionable. You can guess which coverage they may think violated their rights: 1) coverage for PrEP, which can prevent the transmission of HIV; 2) coverage for the HPV vaccine; and 3) testing for sexually transmitted infections.
While the plaintiffs sought to remove these specific preventive-care requirements, they also had a much broader agenda, aiming for the court rule that the entire U.S. Preventive Services Task Force, which recommends the services to be included, had violated the Appointments Clause. They argued that those task force members were principal officers, and those needed to be appointed by the president, with the advice and consent of the Senate.
Since that didn’t happen, many of the recommendations would be invalidated. The Biden administration argued that the task force’s members were “inferior officers” who could be removed by the secretary of health and human services, and therefore, the Appointments Clause was not violated.
The court ruled, 6-3, that the task force members were inferior officers, which means Senate confirmation is not required. Since the task force doesn’t violate the Appointments Clause, its preventive care recommendations remain.
That’s the good part. The bad part is that this ruling means that the current health secretary, Robert F. Kennedy Jr., can remove everyone and replace them with conspiracy-minded cranks. In other words, this decision may have saved the ACA from another attack, but now the call is coming from inside the house.
FCC v. Consumers’ Research
A wonky case about the Appointments Clause, FCC v. Consumers’ Research is the only somewhat bright spot in a grim day.
In an oddly aligned majority, the court preserved a sliver of agency authority. Justice Elena Kagan wrote for the majority, joined by Justices John Roberts, Sotomayor, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson, with Gorsuch, joined by Thomas and Alito, dissenting. In other words, three conservatives and three liberals on one side, and the other three conservatives on the other. Told you it was odd.
The Federal Communications Commission requires telecommunications carriers to pay into a Universal Service Fund. That money then subsidizes access for users in rural and impoverished areas. Consumers’ Research, a carrier, argued this violated the nondelegation doctrine—i.e., Congress is not allowed to delegate its inherent authority to a different body. It is allowed to give agencies the ability to issue regulations, but cases say that Congress has to give the agency some direction—an “intelligible principle”—as to what it can do.
Like I said, wonky stuff.
Had Consumers’ Research succeeded, the FCC rule requiring contributions would have been thrown out, and any new universal service efforts would have to be passed by Congress instead. In holding that the FCC rule did not violate the nondelegation doctrine, the majority rebuffed a conservative effort to expand the scope of that rule.
If the nondelegation doctrine is read broadly, agencies are hamstrung from making rules because Congress is required to pass laws instead. It’s a convenient way to grind the administrative state to a halt and ensure no pesky regulations get issued.
By holding that the universal service fund did not violate the nondelegation doctrine, the majority preserved a bit of authority. However, given that conservatives destroyed agency deference last term, it feels a bit like all this does is let agencies hang on by the skin of their teeth. That said, we’ll take it.
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