Opinion | Supreme Court’s latest rulings could have been worse

0 35
Connect with us

Some steps are too extreme even for this Supreme Court.

As the justices conclude their work in the next week or so, the silver lining of the term might be this: It could have been worse. Red states that looked at the six-justice conservative supermajority and came to the court with go-for-broke legal arguments overplayed their hands. Maintaining the status quo counts as a win. Victory is measured by the liberal justices’ capacity for damage control.

Make no mistake: Damage there has already been, with the prospect of more in the offing. I’ve described this court as impatient, and that remains true. Just last month, the court gutted the Clean Water Act, in a case it didn’t need to take — the Biden administration was in the midst of rewriting the rules about the reach of the law — and in an opinion that ignored the statutory text.

It didn’t get much attention, but on Thursday the court held that a federal prisoner cannot claim his conduct did not amount to a criminal violation if he had already used up one challenge to his conviction — even if the court’s interpretation of the statute at issue had changed in the interim so that the argument couldn’t have been raised earlier. Call that Catch-22, habeas corpus edition, transforming the ability to seek such relief into, as Justice Ketanji Brown Jackson put it, “an aimless and chaotic exercise in futility.”

The Post’s View: The Supreme Court can save itself from the crisis the justices created

And brace yourself for rulings ending the ability of colleges and universities to take race into account in admission, upending 45 years of jurisprudence that has helped transform campuses and, therefore, workplaces. The court is also poised to give businesses that cite religious objections more leeway to discriminate against same-sex couples, continuing a line of decisions that boils down to the rule that the party claiming infringement on religious liberties always wins.

But still: could have been worse. The “independent state legislature” case, Moore v. Harper, which generated liberal anxieties about whether state legislatures would be able to meddle with the results of federal elections, seems likely to fizzle. The justices at oral argument did not seem eager to use the case as a vehicle for electoral mischief, and the North Carolina Supreme Court reversed its earlier ruling, defusing the case for the moment.

There were welcome intimations of humility. In two cases, the court waded into the tricky currents of whether or how technology platforms should be held accountable for content posted by their users. But it ended up avoiding saying much at all. In a victory for tribal sovereignty, the court, ruling 7-2, rejected a challenge to the Indian Child Welfare Act, sidestepping claims that the law unconstitutionally discriminates on the basis of race by giving Indian families preference in adoption cases.

Another little-noticed victory came in a case upholding the right to use a federal civil rights law known as Section 1983 to sue for violations of the rights of nursing-home residents. The court in recent years has been hostile to Section 1983 claims; those challenging the use of Section 1983 here urged the justices to overrule or curtail a 1980 ruling by liberal justice William J. Brennan Jr. Instead, the court refused — and not only refused but did so by a vote of 7-2.

And the “could have been worse” aspect of the term was on display this past week, as the justices rebuffed an effort by Texas and Louisiana to prevent the Biden administration from setting priorities in deportation cases. (The administration wanted to prioritize suspected terrorists, dangerous criminals and those who arrived only recently.) This time, the ruling was 8-1, with only Justice Samuel A. Alito Jr. dissenting from the majority’s ruling that the two states lacked standing.

“In sum, the States have brought an extraordinarily unusual lawsuit,” Justice Brett M. Kavanaugh wrote. “They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.” Kavanaugh wrote for a five-justice majority (the three liberals plus Chief Justice John G. Roberts Jr.).

Justice Neil M. Gorsuch, writing for himself and Justices Clarence Thomas and Amy Coney Barrett, also concluded that the states lacked standing, using a different rationale but sounding nearly as peeved by the states’ efforts to enlist the judiciary in their battle with the Biden administration. “The Constitution affords federal courts considerable power, but it does not establish ‘government by lawsuit,’” Gorsuch wrote.

Alexandra Petri: Supreme Court, consider justice sponsorship!

A bigger surprise — and an even clearer demonstration of the court’s unhappiness with red-state zealotry — came when the court rejected Alabama’s bid to junk decades of precedent interpreting Section 2 of the Voting Rights Act. “The heart of these cases is not about the law as it exists,” Roberts wrote for the five-justice majority (Kavanaugh plus the three liberals). “It is about Alabama’s attempt to remake our §2 jurisprudence anew.”

And the justices’ impatience might be not just with the red states but also with lower courts, particularly the ultraconservative U.S. Court of Appeals for the 5th Circuit, something of a vanguard in the campaign to overturn generations of liberal opinions. As University of Texas law professor Steve Vladeck noted, the 5th Circuit’s win-loss record at the Supreme Court this term so far is 2-6, with the reversals “coming in ideologically (if not politically) charged disputes — the very cases in which we’d expect more alignment.”

Last term — with rulings on abortion, guns and regulatory authority — was an unmitigated disaster for liberals. This term will look much worse in a week than it does right now. But, in the supermajority era, we are dealing with degrees of disaster, and “could have been worse” is about as good as it gets.

Leave a Reply

Your email address will not be published. Required fields are marked *