Democracy’s in for a Fight on the Highest Court
By Sophia TonNu
Lawyers never fight alone — but individuals still loom large in the fight for justice. In October, the Senate confirmed Amy Coney Barrett to the Supreme Court after Justice Ruth Bader Ginsburg passed away from complications due to pancreatic cancer. This shift in ideology came at a precarious time in our democracy. Early indications—such as the new majority’s reversal of state limits on public gatherings in churches during COVID—are that the Court will play an outsized role in articulating the law for federal and state policymakers and for their residents. Progressive policies and rights for the next six decades are in danger.
Even before Justice Ginsburg’s death, conservatives have been laying the groundwork for an attack on progressive policies. The Trump Administration and the Senate led by Mitch McConnell have fast tracked the confirmation of over 200 judges to the federal judiciary. For the first time since 1896, the Republican majority has unilaterally confirmed judges during the lame duck period to the few remaining seats on the various Courts of Appeals. As a result, conservative litigants will bring more cases with the expectation of winning before a lower court or with the expectation of reaching the Supreme Court.
For example, the state of Texas alleges that the entirety of the Affordable Care Act and its protections for an estimated 135 million Americans with pre-existing conditions must be struck down because Congress repealed the tax penalty for individuals who opted to not buy insurance — and the state won its position before both the trial court and the Court of Appeals. The Supreme Court is currently deliberating on the case.
Once these cases reach the court, a Trump appointee will pull the ideological center of the court to the right. This is part of a long-term trend on a multitude of issues, most notably the rights of people defending themselves in criminal court. Since 1969, Democratic presidents have appointed four judges to the Supreme Court; Republicans have appointed thirteen. Let’s take a look at some specific policies that the liberal justices, particularly the late Justice Ginsburg, upheld but are jeopardized by the current conservative majority.
Civil Rights
Bostock v. Clayton County was a notable win for protecting LGBT workers last year—in this case, the Supreme Court ruled that an employer who fires an employee for being LGBTQ+ violates the Civil Rights Act. But members of the conservative wing have displayed a remarkable hostility to litigants alleging violations of housing, voting, and equal contracting rights, and to public programs such as affirmative action which make distinctions based on a historical disenfranchisement of black and brown people. The conservative majority in particular has discounted public statements by the President of the United States as demonstrating any racial animus driving the Administration’s unequal policies towards immigrants, and insulated legislatures that draw racially discriminatory congressional districts from scrutiny. These changes have made it extremely difficult, if not impossible, for millions of Americans to vindicate their right to equal treatment in court.
The SCOTUS opinion to watch this year centers on claims of “religious liberty” and efforts to carve out broad exemptions from civil rights laws. In Fulton v. City of Philadelphia, Pennsylvania, Philadelphia has antidiscrimination policies embedded in the contracts that it signs with organizations that help provide essential services. Foster care agencies, for example, cannot discriminate against same sex couples when placing children in homes. The Catholic-affiliated agency in the case claims that this requirement places an unconstitutional burden on the exercise of their religion. Based on oral argument, a few of the conservative justices are interested in reconsidering a prior case which states that governments can enforce laws that generally apply to everyone without infringing on the free exercise of religion. The conservative majority might decide the case in favor of the Catholic-affiliated agency on the narrower grounds that exempt religious organizations only from LGBT-specific protections.
Litigation over the power to expand or contract voting rights will also intensify. Due to the split between state and federal power in our political system, federal courts typically do not weigh in on interpretations of state law. But just prior to Justice Barrett’s confirmation, the Court split 4-4 on whether the Pennsylvania Supreme Court could interpret state constitutional law to count late arriving ballots postmarked by Election Day. A plurality may have endorsed a doctrine that empowers only state legislatures rather than state courts or governors to determine how votes are counted in an election. This could undermine state courts’ enforcement of voting rights protections and governors’ vetoes over gerrymandered election maps in 2021.
Federal Agencies & Regulating the Economy
The conservative wing of the Supreme Court has also expressed skepticism about federal agencies that protect consumers from fraud, enforce our environmental protections for clean air and water, and protect workers from exploitation. Generally, Congress has given these agencies broad powers of regulation in order to keep up with changing technology. It has also insulated independent agencies from political pressure, particularly from the businesses that the agency regulates. Courts have also generally deferred to agencies when they are interpreting the laws that they administer and enforce.
Selia Law v. Consumer Financial Protection Bureau, decided last year, is an early sign of how far a robust conservative majority could go in undercutting an agency. Congress created the CFPB in the wake of the Great Recession in order to have a single independent agency focused on protecting Americans from financial fraud. It specifically insulated the agency from political pressure, placing limits on a President’s ability to fire the head of the agency. However, in a close decision, a bare majority struck down those limits as unconstitutional.
Several of conservative Justices wanted to go even further — striking at the very structure of almost all agencies that regulate the economy. According to them, agencies that exercise “executive” power such as the ability to fine companies that violate environmental regulations cannot also exercise the “legislative power” to limit carbon emissions by rule. However, nearly every modern agency ranging from the Food & Drug Administration to the Securities Exchange Commission does both. At the extreme, this would eliminate many existing agencies as unconstitutional and limit future Congresses from using agencies to effectively regulate.
Right to Privacy
SCOTUS has also disfavored substantive due process rights on privacy grounds. The right to privacy undergirds a number of big-ticket rights: the right to an abortion, the right to access contraception, and in fact the right of same sex couples to have their marriages recognized by federal and state governments. The various dissents from Obergefell v. Hodges, striking down state laws that restricted marriage to opposite sex couples, characterized the decision as a “threat to American democracy.”
What should we be paying attention to in the next SCOTUS term? Unsurprisingly, cases on the right to access abortion. Several lower courts have already taken up the invitation of SCOTUS to uphold state restrictions on abortion that cannot demonstrate any medical benefit for women. The Supreme Court is also set to weigh in on whether it should reinstate a requirement that physicians prescribe abortion medications to women in person in the middle of a pandemic. In the short term, these cases hollow out the right to privacy particularly for people of color living in states hostile to abortion and contraception. In the long term, overturning a case like Roe v. Wade opens the possibility of federal legislation that would eliminate access to these rights even in liberal states.
Legislatures & Progressive Legislation
Finally, the conservative wing of the court has taken a consistently dim view of congressional power to regulate activities that have an effect on interstate commerce, and of Congress’ ability to regulate businesses. The vast majority of the legislation that Congress passes relies on the Interstate Commerce clause. However, a majority on the Supreme Court has said that requiring individuals to purchase health insurance has no impact on interstate commerce. Similarly, regulating the purchase of guns near schools has no impact either. This narrow reading of the Commerce Clause would eviscerate Congress’ power to enact national legislation on challenges like climate change and limiting companies that engage in monopolistic practices.
Before a case limiting Congress’ power to act reaches the Supreme Court, companies will use the First Amendment to make an end-run around state and federal policy. This year, a majority of SCOTUS Justices voted to dodge the question of whether the Constitution requires the government to exempt religious organizations from the requirement that employers provide cost-free contraception. But the Court blessed the broad exemption that the Trump Administration created for for-profit corporations that had a “moral” objection to providing healthcare—even when Congress explicitly created a legislative mandate with no exemptions. The First Amendment also now shields both for profit and non-profit religious organizations from having to disclose factual information about their services in connection with “controversial” topics such as abortion. Fossil fuel, tobacco, and pharmaceutical companies also now have a friendlier Supreme Court, as they have continually used variations of this argument when trying to shield themselves from litigation and regulation.
The Fight Ahead
Even with the election of President Biden, our democracy is in for a fight. The millions of people seeking justice based on the cases that upheld progressive economic and social legislation, ruled school segregation unconstitutional, and embedded gender equality into the law (with a strong assist from Justice Ginsburg) give me hope that Americans are ready for this fight. But justice can be long delayed, and even justice hard-won can be lost once more, like when the United States Supreme Court struck down federal laws protecting Black voters from political violence in 1876 and Congress failed to pass the Voting Rights Act until 1965.
After the elections for the U.S. Senate in Georgia, President Biden faces a narrow tightrope in nominating judges to the 49 vacant seats on the federal judiciary and getting them confirmed. But this only increases the urgency of using our representatives to choose a federal bench that reflects progressive priorities on economic and social justice and the importance of building a democratic movement outside the courtroom. Without all of us, as political actors and as advocates, we cannot preserve much less advance the civil rights victories of yesteryear. Democracy is not a state, but an act — the sum total of thousands of acts by every American — and the path it takes in the coming years will depend on us.
Sophia TonNu is a former Legal Fellow with Public Rights Project.