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Today is the final day of the Supreme Court’s term, and after its bizarre decision yesterday that allows states to ban the use of Medicaid funds for services other than abortion (federal funds have long been banned for that), the Court’s major decisions are almost done for now. Just six more cases are waiting for opinions that will be announced today, starting at 10 a.m. eastern, and then the justices can take nice vacations wherever wealthy Republican donors choose to fly them on private jets. (For all we know, the three liberal justices will all be teaching summer school or maybe mowing lawns.)
Let’s take a look at what fresh hell the six rightwing justices may unleash on a weary nation!
Kennedy v. Braidwood Management: The court will decide a case challenging the legitimacy of the “Preventive Services Task Force” — a panel set up as part of Obamacare to make decisions about what kinds of preventive medicine must be covered by insurers at no cost to the policyholder. You know, like your annual wellness checkup that you don’t have a co-pay for. The task force allegedly harmed a couple of companies run by fundagelical Christians, because it approved no-cost coverage for HIV prevention meds, aka PrEP. Be ready to lie down on your kitchen floor a while:
The plaintiffs believe their religious rights are violated “by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman,” according to court papers.
Ah, but the case may not even hinge on whether coverage of all that naughty sexing makes Jesus drop them on the sand, erasing all the pretty footprints. Instead, the plaintiffs say the task force members’ appointments were unconstitutional, and they all had to be presidential appointments confirmed by the Senate. At oral arguments, several justices seemed skeptical, so that’s good. Of course, if the panel survives, there’s also the possibility that RFK Jr. might then load it up with crazies, in which case we may be really sorry.
FCC v. Consumers’ Research: A rightwing “consumer advocacy” group wants the Supremes to do away with the federal program that provides underserved areas with affordable phone and internet service, but this is one of those cases where the facial issue is only partly what the case is about. The suit seeks to get rid of the Universal Service Fund, which not only helps individuals but also makes sure rural businesses, schools, libraries, and healthcare providers have affordable telecom access. But what the plaintiffs really want to do is to revive the “nondelegation doctrine,” an old old legal theory that says Congress can’t delegate its lawmaking authority to executive branch agencies like the Federal Communications Commission. But even if several conservative justices have a real boner for limiting agencies’ rulemaking authority, they didn’t seem interested in using this particular case to advance that agenda. And of course, for once the Trump administration is actively defending the law because it has its own boner for executive power.
Free Speech Coalition v. Paxton: In a big First Amendment case, the Court will decide whether to uphold Texas’s law requiring age verification to access online porn if you don’t know how to use a VPN service to make it look like your computer is in a different state or country. The Fifth Circuit upheld the Texas law, because it’s the Fifth Circuit, but at oral arguments, the justices didn’t seem likely to go along with that decision, although Sam Alito seemed eager to help Greg Abbott crack down on online naughtybits. The ACLU, supporting the plaintiffs, say that requiring proof of age — like a driver’s license — is a “content based burden” on free speech.
As so often happens, the case isn’t even so much about the porn itself, but about whether internet speech cases should be evaluated using the same “strict scrutiny” standard as other free speech cases, like whether the government has a compelling interest in limiting speech, and whether any intervention is “narrowly tailored.” The Fifth Circuit decided the case could be evaluated on the much less rigorous standard of “rational basis review,” which simply asks a few bass players what they think. (OK, fine, it simply looks at whether the government has some “rational basis” for limits on speech.)
There’s a lot of money at stake, since Pornhub and other online smut peddlers have just plain blocked their services in Texas and other states, rather than going to the expense of implementing an actual age verification system. And as we say, horny teenagers are just switching on their VPN software, the digital equivalent of wearing a fake mustache and a trenchcoat. The most likely outcome is that the case will be sent back to lower courts with an order to apply strict scrutiny and to ask the rational bassists where to score some Maui Wowie.
Mahmoud v. Taylor: This one’s the Maryland case where a group of parents and a rightwing “parents’ rights” group are suing a school district to demand that the schools provide a formal “opt out” for parents who don’t want their kids to know that LGBTQ+ people exist. Or at least not during story-time reading lessons, because such “indoctrination” would threaten their religious rights.
The parents say that it’s no different from letting families decide to opt out of sex education in junior high, although there’s exactly zero explicit content in the four storybooks — out of dozens of approved book options — at issue.
This case will inevitably get called the “Pride Puppy case,” even though the district reading program already dropped that book about a runaway puppy at a Pride parade. It’s been labeled “pornographic” although, again, there’s nothing risqué in it. But there’s a guy in boxer shorts (and a shirt), a drag queen, and OMG a furry.
Expect this one to favor the gay-panicked plaintiffs, since during oral arguments, as Law Dork Chris Geidner notes, several of the justices talked less like neutral arbiters of the law and more like they “were among the parents fighting the school board’s policy.” Depending on how the ruling goes, this could open the door to mandatory opt-outs for anything to which fundamentalists have “religiously based” objections, which seems to be nearly everything.
Louisiana v. Callais: In this one, the Supremes will finally settle a long-running Louisiana redistricting case and decide whether district maps that water down the votes of people of color are just peachy under Section 2 of the Voting Rights Act. The VRA explicitly outlaws drawing district lines that split minority voters up. But the Roberts Court is far more worried that maps that give majority-Black areas a strong chance of electing their preferred candidate actually discriminate against white people. Leah Litman lawsplains:
Voting districts are redrawn after every census, and since the last redistricting in 2010, Louisiana’s Black population increased, while the state’s white population decreased. By 2020, Black voters made up about one-third of Louisiana’s population, but Louisiana drew districts in a way that allowed districts dominated by whites to choose five members of Congress, while Black voters only had majority representation in one district.
Clear violation of the VRA, and eventually the state agreed to draw new district lines that would create a second mostly Black district — while also protecting Republican incumbents, including the seat of House Speaker Mike Johnson. Then a bunch of Republicans sued, claiming it was sooooo unfair. Obviously, that’s mostly because it would mean a new district where Democrats have a chance, but the plaintiffs claimed that district maps that reflects the actual racial makeup of the state discriminates against people of pallor.
The Supremes actually decided last year to approve Louisiana’s map with two majority-Black districts for use in the 2022 midterms, but that may not mean anything for the case’s final outcome today. During oral arguments, Chief Justice John Roberts and Justice Neil Gorsuch both remarked that one of the districts with a Black majority sure was all funny and snakey-looking, although that wasn’t so much an attempt to sneakily connect Black voters, but the result of creating a map that would achieve a second Black district while preserving white majorities for two Republican incumbents, Johnson and Rep. Julia Letlow. Litman notes that
The NAACP Legal Defense Fund had proposed a districting map with compact districts that also provided Black voters with political opportunities. The problem was that their map made Rep. Johnson and Rep. Letlow’s seats more competitive.
The state admitted as much in its briefs, but the appearance of a “racial gerrymander” — even if it was actually drawn to protect white Republicans — may be all the pretext the Roberts Court needs to gut yet another part of the Voting Rights Act, just as it did when it decided in the 2013 Shelby County v. Holder decision that there was no more racism in America, enabling all sorts of voter suppression laws.
Trump v. CASA: In probably the most-anticipated case still awaiting a decision, the Court will take up Donald Trump’s attempt to rewrite the Constitution with an executive order, in the form of his pretended ban on birthright citizenship under the 14th Amendment. Trump and other racists don’t like that children of undocumented people are citizens just because the 14th Amendment says being born in the US makes them citizens, so Trump ordered that they won’t be anymore.
But while that seems like an obvious OF COURSE HE CAN’T, are you NUTS?, the case isn’t likely to address whether Trump can do that all on his own. It still might, though.
Instead, the Court is “only” looking at at the question of whether district courts can impose nationwide injunctions on presidential actions, which is supposedly an easier question. In the case of Trump’s EO, in fact, three federal appeals courts have blocked his order from going into effect while the case is litigated.
But you can already see where that’s headed: If the Court decides that district court rulings can only apply within their districts, not nationwide, we would end up in a bizarre situation where kids born to noncitizens in one state are citizens, while those born in another are not. People do move around, after all, and as one of the plaintiffs’ attorneys explained during oral arguments in May, the 14th Amendment means — until now at least — that we have never allowed “people’s citizenship to turn on and off” simply by crossing state lines.
The only truly sane decision here would be that the 14th Amendment really does mean what it says (big important part in bold):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Even justices who might be open to limiting the power of lower courts seemed unwilling to do so in this case, where the president has such an incredibly weak constitutional claim. Crom only knows what the outcome might be. Maybe they’ll limit lower courts while also throwing out Trump’s EO on the merits anyway. Or maybe something far worse. Aren’t these interesting times?
[Law Dork / NPR / NBC News / NBC News / SCOTUSBlog / NBC News / Law Dork / Law Dork / The Preamble / Image: Victoria Pickering, Creative Commons License 2.0]
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