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Supreme Court Term 2017-18: Gorsuch Delivers for the Right

The 2017-18 Supreme Court term ended with a bang: a major decision against public sector unions, followed a few hours later by Justice Kennedy’s announcement that he is retiring July 31. But while the next term will be affected by Kennedy’s departure, the story of the term just ending is the impact of Neil Gorsuch.

There were numerous 5-4 cases with Gorsuch in the majority. We don’t know specifically how Merrick Garland would have ruled in these cases, although his judicial record and philosophy are very different from Neil Gorsuch’s. But these cases changed the law and were made possible by the decisions and actions of two people: Mitch McConnell (who engineered the theft of the seat) and Donald Trump (who installed a rubber stamp for his extreme agenda).

Below are some of the important cases decided by the Court this term. In most instances, Gorsuch and Kennedy were on the same side. But on occasion, Justice Kennedy’s influence forced the other ultra-conservatives to moderate themselves. Should President Trump replace him with any of the individuals on his list of potential nominees, even this infrequent moderation will vanish.

Religious Liberty and Speech

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Masterpiece Cakeshop v. Colorado Civil Rights Commission started when a bakery owner refused to provide a wedding cake for two men, citing his own religious beliefs. It became a vehicle for the Religious Right to falsely portray LGBTQ equality as inherently inconsistent with religious freedom. It was also an effort to advance their long-term effort to transform religious liberty from a shield designed to protect rights into a sword designed to strip others of their rights.

But while the Supreme Court ruled for the anti-equality baker in this case, it did so very narrowly, denying the Right the smashing victory they’d hoped for. In fact, the Court made clear that civil rights protections like those in Colorado can and should apply to LGBTQ individuals despite religious and free speech objections.

This case could have been a devastating weapon, undermining anti-discrimination laws that protect a population whose rights and dignity the religious right has fought against for decades. Representing baker Jack Phillips, Alliance Defending Freedom (ADF) argued that:

  • Baking wedding cakes makes Phillips an active participant in his customers’ weddings, even though he is not present and is not even invited. Therefore, requiring him to make a wedding cake for a ceremony he opposes on religious grounds forces him to engage in a religious activity in violation of his constitutional right to the free exercise of religion.
  • Designing a wedding cake is recognized as a public declaration of the baker’s support for the ceremony. Therefore, anti-discrimination laws compel speech he disagrees with in violation of his free speech rights.

The Court may very well have adopted these dangerous holdings in a 5-4 decision if a Trump justice had replaced Justice Kennedy. But Kennedy’s majority opinion for the 7-2 Court did not deliver for ADF. Instead, the five conservatives, joined by Justices Breyer and Kagan, declined to rule on ADF’s expansive arguments. In fact, Kennedy—author of all of the Court’s major cases advancing LGBTQ equality—clearly recognized the damage of the ruling ADF was seeking and cautioned judges in future cases:

[A]ny decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.

The justices noted that constitutionally protected religious activities and beliefs do not automatically trump anti-discrimination under the Constitution:

The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws.

But the Court avoided the general issues by instead focusing on the proceedings in this particular case.

The majority was especially bothered by this statement by a member of the Colorado Civil Rights Commission during administrative consideration of the discrimination complaint:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

The Court condemned this as constitutionally impermissible anti-religious bias by the state:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

This was an important part of the majority’s reasoning that led them to determine that Colorado had violated Phillips’ free exercise rights.

Significantly, this narrow, case-specific opinion reaffirmed the importance of anti-discrimination laws, including those protecting LGBTQ people from discrimination—important language that likely would not have been there but for Justice Kennedy. The majority opinion’s analysis began on that note:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.

Elsewhere in the opinion, the justices stated:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Future litigants may point to that language as supporting the argument that protecting LGBTQ people from discrimination and indignity in the marketplace is a compelling state interest. That could make it harder for equality opponents to misuse the Religious Freedom Restoration Act (and its state versions) to negate anti-discrimination laws.

Even further, the Court analogized anti-LGBTQ discrimination to the old practice of southern restaurants refusing to serve African Americans equally with whites. It cited its 1968 rejection of the argument that a restaurant owner’s religiously-based beliefs about race should affect the application of the then-recently-adopted civil rights prohibitions against racial discrimination. In a passage that the dissenters also expressed agreement with, the majority noted that:

while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica­ble public accommodations law. See Newman v. Piggy Park Enterprises, Inc., 390 U. S. 400, 402, n. 5 (1968) (per curiam) …

That is hardly the outcome the Religious Right wanted. No doubt, however, they will continue to spin the decision as a major victory, and will try to use it as a means for challenging other states’ enforcement of nondiscrimination laws. Other cases involving religious and free speech objections to nondiscrimination laws are working their way through the federal courts, which will hopefully reject them as long as religious objections are treated with respect.

People For the American Way Foundation joined with seven other organizations in filing an amicus brief in this case, which noted that anti-discrimination laws protect, rather than impede, religious freedom.

Trump v. Hawaii

During his presidential campaign, Donald Trump and many of his supporters went out of their way to denigrate Muslims, lump them together as a threat to the nation and turn them into people who were apart from the rest of America. Upon taking the powers of the presidency, he put his animus into action through his notorious Muslim ban. In a decision that horrified millions, the far-right justices gave the ban the Supreme Court’s seal of approval, finding no violation of the Establishment Clause’s prohibition against disfavoring a particular religion.

As a presidential candidate, Donald Trump vowed a “total and complete shutdown of Muslims entering the United States,” a promise that remained on his website until May 2017, well into his presidency and long after he had issued the original version of the ban. During the campaign, Trump also stated that “Islam hates us” and claimed that the U.S. was “having problems with Muslims coming into the country.” After the election, when asked about his plan to “ban Muslim immigration,” he simply responded that “you know my plans.”

And a week into his presidency, after issuing the first iteration of the ban, one of his campaign staffers acknowledged that Trump had called it a “Muslim ban” and had directed his staff to find “the right way to do it legally.” Trump complained that the second iteration of the ban was “watered down.” After the third iteration, he retweeted links to three anti-Muslim propaganda videos.

In the Court’s 5-4 ruling in Trump v. Hawaii, the five conservatives concluded that none of that mattered. The opinion authored by Chief Justice Roberts relied on the president’s broad authority over national security concerns in immigration. Accepting the administration’s claim that the current version of the ban was the result of a worldwide security review by multiple agencies, the majority looked no further. If the ban has a valid national security basis, other motivations are not relevant, they claimed. The five ultra-conservatives swept all evidence of the president’s genuine motivation under the rug. Justice Kennedy’s agreement with the Chief Justice allowed this to be the majority ruling.

PFAW Foundation was among a number of civil rights organizations filing an amicus brief explaining that:

[The ban] improperly promotes social categorization and stereotyping that endangers the lives and well-being of individuals of the Muslim faith. The Executive Order is the product of several centuries of Muslim stereotyping in this country, and harms even those who are not the direct victims of specific attacks on immigrants. Here, the evidence demonstrates that, regardless of the Government’s post-hoc explanations, the Executive Order was motivated by animus toward Muslims and improperly singled out, as a proxy, those born in the targeted majority-Muslim countries.

The four moderates dissented. Justice Sotomayor (joined by Justice Ginsburg) wrote a dissent reminding the nation of the values at stake and the tragic cost of her far-right colleague’s action:

The First Amendment stands as a bulwark against official religious prejudice and embodies our Nation’s deep commitment to religious plurality and tolerance. That constitutional promise is why, for centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Instead of vindicating those principles, today’s decision tosses them aside. In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty.

In ignoring the overt animus motivating the president of the United States, the five conservatives comprising the majority sent Muslims a clear message of exclusion. The contrast with their approach to religiously-based animus in Masterpiece Cakeshop was stark. In that case, the comments of a civil rights commissioner about a conservative Christian’s religious beliefs tainted the entire case against the Colorado bakery with impermissible bias in violation of the Establishment Clause.

The bias in the Muslim ban case was far worse. The statements were unambiguous, narrowly targeted at one religion in particular, and made repeatedly both before and after Trump took office. Moreover, they were made not by a member of a state commission, but by the president of the United States, who had sole authority over the policy. But the targets were Muslims rather than Christians, and the conservatives found the president’s statements irrelevant.

The poison of anti-Muslim bias coursing through the party controlling the White House and Congress has obtained a grasp onto the nation’s highest court, as well. But the 5-4 vote reveals that it is not yet a strong, irreversible grip. Everyone throughout the United States should keep that in mind while considering the future of the Court after Kennedy’s retirement.

NIFLA v. Becerra

This was yet another 5-4 ruling in the usual lineup made possible by the illegitimate presence of Justice Gorsuch. In this case, the ultra-right justices twisted the First Amendment in order to let anti-choice zealots continue to mislead vulnerable pregnant women, impede their ability to make knowing choices, and threaten their health

The National Institute of Family and Life Advocates is one of the many groups operating so-called “crisis pregnancy centers.” California passed laws protecting women after extensive fact-finding revealed the types of deception often used by the centers. Because unlicensed facilities use a variety of techniques to trick women into thinking they are medical offices offering licensed medical care, the law required them to post a notice informing clients and potential clients that they are not a licensed medical facility. And because licensed operations within the anti-choice movement refuse to provide any accurate information about abortion or access to abortion, California required them to have signage informing women of the variety of pregnancy-related care offered by state facilities.

But in an opinion authored by Justice Thomas, the conservatives struck down these disclosure requirements as unconstitutional compelled speech. As noted below, this is not the only time this term that the right-wing justices distorted free speech protections to promote a political agenda and reduce protections for vulnerable communities who are not their ideological allies.

Writing in dissent for himself and the other three moderates, Justice Breyer explained the fallacy and the danger of the majority’s misuse of the concept of freedom of speech:

This constitutional approach threatens to create serious problems. Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation. Virtually every disclosure law could be considered “content based,” for virtually every disclosure law requires individuals “to speak a particular message.” Thus, the majority’s view, if taken literally, could radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk, depending on how broadly its exceptions are interpreted.

The First Amendment’s protection of speech is a vital guarantee of our liberty. But as we see in NIFLA v. Becerra, it is increasingly being used by the far right to impose their political doctrines as constitutional law.

Voting Rights

Husted v. A. Philip Randolph Institute

Advancing the goals of those who gave him his stolen Supreme Court seat, Neil Gorsuch cast the deciding vote in a 5-4 decision further eroding our democracy. In Husted v. A. Philip Randolph Institute, the five ultra-conservatives upheld a voter suppression scheme in Ohio of the type that Congress has prohibited.

Ohio election boards identify registered voters who have not voted in two years (one federal election cycle), then send them confirmation notices to see if they still live at their registered addresses. If the registered voter doesn’t respond or vote within the next four years, their name will be purged. The process is triggered by a failure to vote. However, congressional legislation—the 1993 National Voter Registration Act (NVRA, or “Motor-Voter law”) as modified by the Help America Vote Act—prohibits roll maintenance processes that result in striking people from the voter rolls by reason of their not voting in past elections.

In an opinion authored by Justice Alito, the majority held that these federal laws let Ohio use non-voting as a critical factor in purging voters, as long as it isn’t the only factor.

Justice Breyer wrote the main dissent, which Justices Ginsburg, Sotomayor, and Kagan joined. He began by describing the ill that Congress was seeking to cure: In the late 1800s to early 1900s, states had adopted any number of laws and procedures—including selective voter purges—designed to keep certain groups of citizens from voting and to discourage participation. The more obvious methods of disenfranchisement were addressed in the Voting Rights Act of 1965, but Congress in 1993 passed the Motor Voter law to address other methods. Justice Breyer quoted from the legislative history:

[T]he purpose of our election process is not to test the fortitude and determination of the voter, but to discern the will of the majority.

Breyer then went through a painstakingly detailed, step-by-step textual analysis of what steps Congress has said states must take before purging a voter, and under what conditions. He then explained how Ohio’s system—in which the purge process is triggered simply by not voting—is not consistent with the statute.

Among other things, Breyer observed that most people who receive confirmation notices from the state don’t send back the return card that comes with it, regardless of whether they have moved. In other words, sending out the confirmation notices provides no useful information:

Ohio’s system adds to its non-voting-based identification system a factor that has no tendency to reveal accurately whether the registered voter has changed residences. Nothing plus one is still one. And, if that “one” consists of a failure to vote, then Ohio’s program also fails to make the requisite “reasonable effort” to comply with subsection (a)’s statutory mandate.

Justice Sotomayor, in addition to joining the main dissent, also wrote separately to emphasize how voter purge schemes like Ohio’s have a disproportionate impact on low-income voters and minority voters. This was one of the evils that Congress sought to address:

In concluding that the Supplemental Process does not violate the NVRA, the majority does more than just misconstrue the statutory text. It entirely ignores the history of voter suppression against which the NVRA was enacted and upholds a program that appears to further the very disenfranchisement of minority and low-income voters that Congress set out to eradicate.

Among other things, Sotomayor cites an amicus brief authored by Asians Americans Advancing Justice that PFAW Foundation joined noting the impact of Ohio’s process on Latinos and Asian Americans in particular.

Unfortunately, a narrow majority of the Court weakened the protections that Congress established to protect populations long targeted for disenfranchisement. Although it is impossible to know how a Justice Merrick Garland would have ruled in this or any other particular case, his approach to the law is not focused on the interests of the elite.

So this 5-4 ruling weakening our democracy came about because of the unprecedented obstruction of President Obama’s nominee.

Abbott v. Perez

In a 5-4 ruling written by Justice Alito, the conservative majority upheld Texas redistricting schemes that a three-judge lower court had unanimously found had been adopted with the intent to discriminate against people of color. The illegitimate presence of Neil Gorsuch on the court determined the outcome, to the detriment of voters in Texas and to the rule of law.

Justice Sotomayor wrote a blistering dissent, joined by the other moderate judges. She went into great detail noting parts of the factual and legal record before the Court that the majority simply ignored. Without mincing words, she called out the conservative majority for distorting the facts and the law in order to achieve the result they wanted.

The Court today goes out of its way to permit the State of Texas to use maps that the three-judge District Court unanimously found were adopted for the purpose of preserving the racial discrimination that tainted its previous maps. In reaching its desired result, the majority commits three fundamental errors along the way.

This disregard of both precedent and fact comes at serious costs to our democracy. It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will. The fundamental right to vote is too precious to be disregarded in this manner. I dissent

Elsewhere in her dissent, she invites the public to see for themselves how the conservatives ignored parts of the lower court’s orders that those five justices found inconvenient:

The majority contends in passing that its analysis takes account of all the relevant evidence in the record, apparently believing that stating it explicitly somehow makes it true. It does not. The District Court orders in these cases are part of the public record and readers can therefore judge for themselves.

Sotomayor even suggested—very strongly—that the majority opinion was written with the intent to deceive. With reference to how the conservatives distorted the meaning of a particular statement made by the lower court, she wrote:

The majority no doubt hopes that the reader will focus on the portion of the sentence in which the District Court concludes that … But the majority ignores the import of the remaining part of the sentence, in which … The majority also conveniently leaves out the sentence that immediately follows: …

Although justices regularly criticize each other for their legal reasoning, it is unusual to explain a fellow justice’s techniques for tricking the reader (i.e., the American public). But when a member of the Supreme Court sees her colleagues so clearly go out of their way to achieve a result that burdens the right to vote of a target population, she is right to call it out.

In a separate concurrence, Justice Thomas expressed his position that redistricting is not subject to challenge under Section 2 of the Voting Rights Act. Justice Gorsuch joined him, an indication of how radical the Trump Administration’s ideal Supreme Court would be. Kennedy’s eventual replacement will determine whether this extreme view is adopted by a third justice.

Gill v. Whitford

When the Supreme Court term opened last October, Gill v. Whitford was poised to be a blockbuster case. Instead, the Court has sent the case back to the Wisconsin district court for a new round of arguments.

(The Court also issued a unanimous, unsigned ruling in a case involving Maryland’s 2011 redistricting, but the ruling was strictly procedural and affirmed a decision not to grant a preliminary injunction against the plan, based in large part on timing.)

With Chief Justice Roberts writing for a unanimous Court in Gill, the justices ruled that the Democratic voters challenging Wisconsin’s partisan gerrymander hadn’t shown they have standing to go to court to argue their votes have been diluted. But rather than dismiss the case altogether, all justices but Thomas and Gorsuch agreed to give them a chance to argue a different theory of standing before a lower court, keeping the case alive for another day.

Some background: Two common vote dilution tools in partisan gerrymanders are “cracking” and “packing.” The party drawing the lines can “crack” their opponent’s supporters among many districts, where their preferred candidates tend to lose by small margins. With “packing,” lines are redrawn so that the out-of-power party’s supporters are “packed” into just a very small number of districts, where their preferred candidates win overwhelmingly.

With advances in computer technology and data collection, parties have been able to make very specific, house-by-house predictions of how people will vote and how lines can be drawn to maximize partisan advantage. That makes cracking and packing schemes far more effective, and thus far more destructive to the democratic process.

As recently as 2015, the Court made clear that partisan gerrymanders are “incompatible with democratic principles.” But the Court has never identified a specific unconstitutional partisan gerrymander. In the past, the four most conservative justices (then including Antonin Scalia) have written that the courts should stay out of the issue altogether, while the four more progressive justices have disagreed. Justice Kennedy has agreed with the conservatives that the particular redistricting plan before them should not be struck down, but he has also agreed with the moderates that in principle, the federal courts could get involved in the issue if there were some “judicially discernible and manageable standard” available to identify and measure the impact of partisanship in redistricting.

That’s exactly what was presented in Gill v. Whitford. Voters shut out of power by the state’s partisan gerrymander presented a new neutral statistical standard to identify vote dilution (called the “efficiency gap”) that analyzes election results across the state and measures “wasted” votes. Votes for winners beyond the 50 percent mark are considered wasted, as are all votes cast for the losing candidates. (The Brennan Center’s How the Efficiency Gap Works is a useful resource explaining in detail how this statistical analysis works.)

The Court noted that the efficiency gap provides a single, statewide measure of partisan advantage without providing information about a voter in a particular district. The justices held that someone who complains of vote-dilution by gerrymandering but doesn’t actually live in a gerrymandered district doesn’t have standing, because they have not shown that their vote has been diluted. And someone who does live in a gerrymandered district does not necessarily need a statewide redistricting to resolve their particular injury.

Ordinarily, without standing, the Court would dismiss the case. Instead, the majority noted that:

This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved.

Over Thomas and Gorsuch’s objections, the majority took the highly unusual step of sending the case back to the lower courts so the Democratic voters have a chance to present evidence showing they have suffered concrete, specific injuries burdening their individual votes.

Justice Kagan wrote a concurring opinion, which Ginsburg, Breyer, and Sotomayor joined. She described how the voters in this case, joined by voters in all the state’s other districts, could demonstrate standing:

The key point is that the case could go forward in much the same way it did below: Given the charges of statewide packing and cracking, affecting a slew of districts and residents, the challengers could make use of statewide evidence and seek a statewide remedy.

Kagan also noted a legal argument that the parties had touched on but which was not a focus of the litigation: violation of the voter’s First Amendment right of association (in this case, with their fellow Democrats), a theory calculated to appeal to Justice Kennedy’s interest in such First Amendment injury.

But because on remand they may well develop the associational theory, I address the standing requirement that would then apply. As I’ll explain, a plaintiff presenting such a theory would not need to show that her particular voting district was packed or cracked for standing purposes because that fact would bear no connection to her substantive claim. Indeed, everything about the litigation of that claim—from standing on down to remedy—would be statewide in nature.

She summed up the problem well:

Partisan gerrymandering jeopardizes the ordered working of our Republic, and of the democratic process. It enables a party that happens to be in power at the right time to entrench itself there for a decade or more, no matter what the voters would prefer. At its most extreme, the practice amounts to rigging elections. It thus violates the most fundamental of all democratic principles—that the voters should choose their representatives, not the other way around. (internal quotation marks and citations omitted).

This paragraph quoted from a previous concurrence by Justice Kennedy, suggesting he was the reader she most wanted to reach. He apparently had not shared his retirement plans with her at this point.

The Court could address the issue again in the Wisconsin matter, or in a case from another state. As in the past, it is likely still the case that four justices would strike down an overly partisan gerrymander, four would prohibit courts from hearing such cases—and Kennedy’s replacement will be the person who will ultimately decide whether a political majority can de facto prevent voters from removing them from office. The identity of that individual will have an enormous impact on the preservation of our democracy.

Workers' Rights / Corporate Power

Epic Systems Corp. v. Lewis

In a 5-4 ruling authored by Justice Gorsuch, the five-justice hard-right majority on the Supreme Court stripped working people of a vitally important right that Congress specifically guaranteed in the National Labor Relations Act (NLRA): the right to engage in concerted activities for mutual aid or protection (basically, class actions). The case was Epic Systems Corp. v. Lewis.

Concerted action by employees substantially reduces the inequality of bargaining power between employer and employee (or job applicant). Although Congress has specifically guaranteed this right, employers are frequently requiring their employees to sign that right away as a condition of employment—exactly what the NLRA was enacted to prevent. They do this through employment agreements requiring employees to resolve conflicts with the employer through one-on-one arbitration. With this case, the Roberts Court has given businesses the green light to use their unequal bargaining power to pressure employees into surrendering a tool Congress guaranteed in order to reduce that gap.

Justice Ruth Bader Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan. She described the history of labor relations in our country dating back to the late 1800s, detailing the problem that Congress acted to end:

Under economic conditions then prevailing, workers often had to accept employment on whatever terms employers dictated. Aiming to secure better pay, shorter workdays, and safer workplaces, workers increasingly sought to band together to make their demands effective.

Employers, in turn, engaged in a variety of tactics to hinder workers’ efforts to act in concert for their mutual benefit. Notable among such devices was the “yellow-dog contract.” Such agreements, which employers required employees to sign as a condition of employment, typically commanded employees to abstain from joining labor unions. Many of the employer-designed agreements cast an even wider net, proscribing all manner of concerted activities. As a prominent United States Senator observed, contracts of the yellow-dog genre rendered the “laboring man absolutely helpless” by “waiv[ing] his right . . . to free association” and by requiring that he “singly present any grievance he has.” (Internal quotation marks and citations removed)

As a result, Congress acted in 1935, establishing the right to collective action and, even more, prohibiting employers from coercing their employees or otherwise interfering with that right.

But the ultra-conservative majority essentially nullified those protections. They relied on a 1925 law called the Federal Arbitration Act (FAA), which directs federal courts to respect the results of out-of-court arbitration agreements, unless grounds exist to make the contract revocable. As the dissent points out, what Congress had in mind involved situations where parties of equal bargaining power reached an agreement about how to resolve disputes involving commercial transactions.

But the far right has in recent years weaponized the FAA, issuing a series of 5-4 rulings that have empowered large corporations to use arbitration agreements to prevent consumersand businesses they harm from filing class actions against them.

At the end of her powerful dissent, Ginsburg lamented that it was not Congress’s policy choice that the Court was imposing, but its own:

But the edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. The [Federal Arbitration Act] demands no such suppression of the right of workers to take concerted action for their “mutual aid or protection.”

Epic Systems was an epic loss for working people, particularly for women, people of color, and LGBTQ people, who are disproportionately in lower-paying jobs with little bargaining power. As the NAACP Legal Defense and Educational Fund warned in an amicus brief:

For civil rights, the consequences of permitting unrestrained and ubiquitous use of arbitration clauses in individual employment agreements will be profound.

Although no one can know for sure how Merrick Garland would have ruled in this case, it seems unlikely that he would have staked out a policy enabling the powerful to exempt themselves from statutory restrictions on the exercise of their power.

But with decisions like Epic Systems, the corporate secret money that went into nullifying the Garland nomination and elevating Gorsuch to the bench is an investment that will continue to bring them enormous returns.

Janus v. AFSCME

The 2017-2018 term ended with a harmful opinion against public sector unions in Janus v. AFSCME. This 5-4 ruling is another instance of conservatives getting every bang for the buck they spent stealing a Supreme Court seat and giving it to their ideological colleague Neil Gorsuch. In an opinion authored by Justice Alito, the majority overruled an important 1977 case on the rights of working people (Abood v. Detroit Board of Education). The Court struck down requirements that public sector employees who are not members of the unions that are required by law to represent them pay “fair share” fees to cover the costs of that representation. According to the majority, those requirements force non-members to pay for speech on public matters (government spending) that they disagree with.

The Court framed this as a First Amendment issue, but even some other conservatives recognized the vacuity of the legal argument. For instance, Eugene Volokh and William Baude—no allies of unions—submitted an amicus brief explaining how this reasoning has no more First Amendment basis than invalidating income tax payments by taxpayers who object to government activities.

But Volokh and Baude were exceptions. Free speech is not the ultra-conservatives’ main concern. Starving public sector unions of resources has long been a goal of the far right. For instance, when the Court granted certiorari in this case, the anti-labor Freedom Foundation sent out a fundraising letter stating that a ruling against AFSCME

should take government unions out of the game for good – yet we know the unions won’t go away without a fight. They won’t go away even with a fight. They won’t go away until we drive the proverbial stake through their hearts and finish them off for good. (emphasis in original)

The letter—made public in an amicus brief by Senators Sheldon Whitehouse and Richard Blumenthal—made clear that the goal was to affect the outcome of elections:

Unions like AFSCME will howl with outrage. No longer will their campaign contributions – which some might call a euphemism for bribes – be an overwhelming factor in so many political races.

But a First Amendment argument is a lot easier to sell to the press and the public. So just a few months after the fundraising letter, this same group submitted an amicus brief assuring the Supreme Court that it could safely overrule Abood, because unions would continue to function and labor-management relations would not be negatively affected.

The Janus majority revealed some indications that they were not exactly being sincere. For example, after deciding that Abood was wrongly decided, the majority determined that they could overrule it despite stare decisis. Part of the conservatives’ reasoning was how times have changed since Abood:

It is also significant that the Court decided Abood against a very different legal and economic backdrop. Public-sector unionism was a relatively new phenomenon in 1977. The first State to permit collective bargaining by government employees was Wisconsin in 1959, and public-sector union membership remained relatively low until a “spurt” in the late 1960’s and early 1970’s, shortly before Abood was decided. (citations and internal quotations removed)

But if the “spurt” the majority refers to occurred in the late 1960s and early 1970s, that means it occurred before Abood. So that supposedly changed circumstance isn’t as changed as a reader might be lulled into believing. The decision continued:

Since then, public-sector union membership has come to surpass private-sector union membership, even though there are nearly four times as many total private-sector employees as public-sector employees.

While this sounds like a breathtakingly enormous increase in public union membership, it fails to mention that the number of working people in private-sector unions has plummeted drastically since 1977—in part because of the same anti-worker elite whose money funds conservative political campaigns, as well as the campaign to steal a Supreme Court seat and make Janus possible.

Ominously, the majority’s use of the First Amendment against working people in Janus is part of a much larger scheme. Justice Kagan’s dissent (joined by the other three moderates) called Alito and his fellow conservatives out for weaponizing the First Amendment to impose their own policy choices on the nation:

And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way. See, e.g., National Institute of Family and Life Advocates v. Becerra, ante, p. ___ (invalidating a law requiring medical and counseling facilities to provide relevant information to users); Sorrell v. IMS Health Inc., 564 U. S. 552 (2011) (striking down a law that restricted pharmacies from selling various data). And it threatens not to be the last. Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to pro­tect democratic governance—including over the role of public-sector unions.

We examined this threat in a 2015 report entitled “The Supreme Court in the Citizens United Era,” authored by Jamie Raskin:

The critical doctrinal tool for empowering business corporations (and the class of wealthy Americans who own and run them) in this way is not the still-discredited Lochnerian concept of economic substantive due process, but rather the First Amendment, which has allowed the Court to promote this startling new corporatism in the name of free speech. Although the conceit of the age is that corporations are just winning “speech rights” that put them on an equal plane with individual citizens, the reality is that the new doctrine gives corporations essential powers and privileges over citizens in the political arena, the workplace, and the marketplace.

So make no mistake: While Janus is a disastrous ruling for working people, it is just the latest example of the ultra-right justices using free speech as a tool to empower the powerful and undermine the rights of everyday people.


Jennings v. Rodriguez

In a sharply divided ruling in Jennings v. Rodriguez, the Supreme Court overruled an appellate court decision that said that all immigrants detained by the federal government were entitled to a bond hearing every six months and could not be detained indefinitely. Over a vigorous dissent from the four moderate justices, the five extreme right-wing justices interpreted the federal Immigration and Naturalization Act to allow even people in the U.S. legally who are being held for possible deportation to be locked up indefinitely. The case now goes back to the lower courts to consider whether such indefinite detention violates the Constitution.

The case before the Court concerned Alejandro Rodriguez, who entered the U.S. as a one-year-old baby and became a permanent legal resident. Twenty four years later, after minor convictions of joyriding and drug possession, U.S. Immigrations and Customs Enforcement (ICE) took him into custody and claimed he should be removed from the U.S. due to those convictions. He then spent three years in detention, leading to the lower court’s ruling that he and other immigrants were entitled to a bond hearing concerning their detention at least every six months. More than seven years after he was first detained, the attempt to remove Rodriguez was cancelled and he was allowed to remain in the U.S.

In addition to people like Rodriguez, the Supreme Court decision affects people who enter the U.S. seeking asylum from persecution or who otherwise believe they have a right to enter the U.S., and anyone who is detained by ICE. This can include Dreamers, especially when disputes arise as to their status, as happened to a 22 year-old Dreamer who wasarrested last year and kept locked up for several weeks after speaking to the media. And it can include parents watching helplessly as their children are taken away from them.

In a powerful dissent, Justice Breyer explained that the majority’s ruling would “put thousands of people at risk of lengthy confinement” for months or years “without any hope of bail.” As the dissent pointed out, nearly two thirds of asylum seekers and 40 percent of those detained because of convictions (like Rodriguez) in fact later receive the right to stay in the U.S. after their detention, making the continued imprisonment even more unreasonable. Justices Sotomayor and Ginsburg joined the dissent, part of which Breyer delivered orally in court to emphasize his strong disagreement; Justice Kagan recused herself from the case, likely because she had been involved in it earlier while she was solicitor general.

The decision is particularly harmful in light of an administration dedicated to increasing immigration detention to record-breaking levels as part of its crackdown on immigrant communities. Indefinite detention of immigrants—including green card holders—is a gross violation of our values. Attorneys for affected people will proceed as rapidly as possible to get a lower court ruling on the issue of whether such indefinite detention violates the Constitution, a decision that likely will find its way again to the Supreme Court.

Sessions v. Dimaya

Last term, the Court was split 4-4 on this case, and the justices decided to have it reargued this term so Justice Gorsuch could determine the outcome. In an unusual (indeed unique) grouping, he reached the same conclusion as the four moderate justices.

Noncitizens can be deported if they are convicted of an “aggravated felony,” which immigration law defines as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In an opinion by Justice Kagan, the Court ruled that the phrase “aggravated felony” as used in this statute is unconstitutionally vague, meaning it is so ambiguous that a person would not know if their actions were aggravated or not.

Part of the ruling was only a plurality. Justice Gorsuch didn’t join a section citing precedent stating that at least some civil laws are subject to a more permissive “void for vagueness” standard than criminal laws. The plurality cited additional precedent that removal is such an extreme action that it warrants the same scrutiny as criminal laws. Gorsuch agreed the same standard should be used, but that the original understanding of the Constitution required all laws to be subject to the same level of scrutiny for vagueness. The other conservatives dissented, finding no unconstitutional ambiguity in the deportation provision. Justice Thomas wrote an additional dissent expressing his view that the Court’s entire line of cases striking down laws for vagueness is inconsistent with the original meaning of the Due Process Clause, disagreeing with Gorsuch.

Privacy from Police Searches

Carpenter v. United States

The Supreme Court reached the right conclusion protecting our Fourth Amendment rights (albeit narrowly, in a 5-4 ruling) in Carpenter v. United States: the police generally need a search warrant before ordering a cell phone company to hand over months of location information for a customer’s phone (and, by extension, for the customer).

In this case, Detroit police—without a warrant—had ordered two cell phone companies to turn over data on where Timothy Carpenter’s phone was over a four month period as part of several robbery investigations.

Chief Justice Roberts wrote the majority opinion ruling that a warrant was required, joined by the moderate justices: Ginsburg, Breyer, Sotomayor, and Kagan. That means John Roberts was the swing justice, which tells you just how far right the Court has moved in the past generation.

Our cell phones contain an immense amount of information about ourselves, and they track and record our location hundreds of times a day. The volume of information and its personal nature make them like no previous technology. Our cell phones play a vital part in how we carry out our lives, and the fact that records belong to the phone company does not automatically eliminate our Fourth Amendment interests in how that information is used.

The majority ruled that a person has a reasonable expectation of privacy regarding the location data collected by their cell phones and transmitted to the carrier. The company can’t just hand it over to law enforcement. To the contrary, at least with several days’ worth of location data, law enforcement needs a warrant.

While the principle laid down in this case is good, the Chief Justice stressed that the holding is narrow, limited to this specific type of data (CSLI, or call-site location information) under these circumstances. Decisions regarding other types of cyber-data and other circumstances will have to wait for another day.

Justice Kennedy (joined by Alito and Thomas) criticized the Court for “unhing[ing] Fourth Amendment doctrine from the property-based concepts that have long grounded the analytic framework that pertains in these cases.”

Customers like [Carpenter] do not own, possess, control, or use the records, and for that reason have no reasonable expectation that they cannot be disclosed pursuant to lawful compulsory process.

Justice Gorsuch did not join Kennedy’s dissent, and he wrote one of his own that no one else joined, suggesting he might have ruled for Carpenter under a different legal theory. Rejecting the judicial inquiry into an expectation of privacy, he suggested turning to legislatures. In this case, federal law significantly limits how telecom companies can use the location data they collect without the customer’s permission, suggesting there may be a sufficient ownership interest in the data to trigger Fourth Amendment protections. However, Gorsuch did not apply this approach to the case because Carpenter had not made this legal argument. Gorsuch’s proposed approach would seem to limit the courts’ ability to protect individuals’ constitutional rights by allowing Congress and state legislatures to influence what material is protected under the Fourth Amendment.


Our democracy is under assault from Donald Trump in the White House, his allies on the Hill and in the media, and a far-right Supreme Court of dubious legitimacy that repeatedly undermines our rights. The retirement of Justice Kennedy makes the assault even stronger, because as right-wing as he is, anyone President Trump would replace him with would be far, far worse.

The term that just ended is only the beginning of the next phase of the resistance.