The Worst Recent SCOTUS Rulings
Counting down the top ten worst Supreme Court rulings since the conservative takeover four years ago.
Since the passing of Ruth Bader Ginsburg, America’s Supreme Court has been lopsided in favor of the conservative majority, who have irreparably damaged our rights and liberties with regressive rulings. During President Trump’s short four years in office, he was able to appoint three new conservative justices, skewing the court 6 to 3 after Senate Republicans refused to vote on President Obama’s appointee. This was in part due to strategic incompetence by liberals to protect the court but also due to Republicans taking extra-constitutional measures to ensure this outcome. Liberals were completely out-maneuvered by Mitch McConnell’s long-term strategy to lie and deceive his way to breaking the Supreme Court for good; it’s a multi-decade story that deserves a separate essay. The new justices, Gorsuch, Kavanaugh, and Barrett, join the already deeply corrupt Alito and Thomas under the lead of professed right-leaning moderate Chief Justice Roberts. While they sometimes rule outside of ideological lines, it has become blatant this year just how partisan they are as they unapologetically bend the law at their will. The primary issue with the court is that no matter how backward they rule, it’s technically not corruption because there are no structural checks or ethical standards on the court according to the Constitution. There is no binding ethics code or override in place to stop them from deliberately making illogical or unconstitutional decisions. America is the only ‘democracy’ on Earth where its highest judges rule indefinitely. The Supreme Court is supposed to apply objective reasoning based on not only technical facts but also the context and legal precedent laid out by previous decisions. We will find in many of these cases, the conservative majority uses flawed and irrational reasoning, often tying themselves in pretzels logically to pass these predetermined decisions.
Since its founding, the court has gone undisciplined because no systematic pressure exists to hold them accountable. Out of all our antiquated liberal governing systems, the Supreme Court stands out as the most undemocratic and unpopular, averaging an abysmal 34% approval rating today. Essentially, these nine people are given the power to overrule any court case or legislation it pleases with no oversight or public input. Throughout American history, appointed judges were apparently expected to have divine benevolence, allowed to serve with no term limits, and only able to be removed by impeachment. Some of the most infamously regressive policies have been legitimized by court decisions. Whether it be Dred Scott v. Stanford, which prevented black people from becoming citizens, Korematsu v. U.S., which upheld the legality of Japanese internment camps, Plessy v. Ferguson, which permitted segregation, Bush v. Gore, which handed Bush the 2000 election without investigation or recount, and with all of the decisions I’ll discuss here. Recently, the court has been less of a check on governmental power but a tool for conservatives to rewind our society decades at a time.
Let’s summarize some of the worst court decisions under this 6 to 3 majority in the past four years. I don’t claim to have any expertise in law, but the bulk of my arguments have been made by lawyers. I want to cover the cases from a panoptic view; I cover the facts of the case, critique the arguments, and then explain the implications of the rulings. Most of these rulings use some sort of absurd logic to justify such bad decisions. The conservative justices rely a lot on extreme textualism— the disregard of historical context and the application of obsolete legal philosophy. The ranking order isn’t particularly important; it is generally based on the future societal impact of the decision and how backward the conclusions are.
10. Cedar Point Nursery v. Hassid
Since 1975, California had a law that established farmworkers’ rights to unionize and collectively bargain with their employer. The law was called the California Agricultural Labor Relations Act, and it ensured the right of union members to speak to and organize laborers on agricultural property. A dispute broke out in 2015 when union workers went to Cedar Point Nursery to campaign for union support, which was done within the boundaries of the law. The nursery owner prohibited these visits and sued the organizers on the basis that the law violated their Fifth Amendment right for the government to use private property without just compensation. On June 21st, 2021, the court ruled 6 to 3 in favor of the farm, with the majority stating that it was a simple matter of private property rights. The state of California, to keep this law, must now pay ‘just compensation’ to any farms that license union organizations. The conservatives partially clarified that this case should not affect inspectors contracted by the government entering private property, but the dissenting justices expressed concern that could still be a consequence of the ruling.
For the technicalities of the case, the majority opinion exclusively acknowledged the rights of the farm to private property but not the rights of the laborers to freedom of speech. This is framed as a ‘property rights’ issue but keep in mind this is not someone’s home where the owner sleeps, this is a workplace where workers go to earn a living. The majority suggests here that a worker has no stake in the company they work for and ignores that farm workers are some of the lowest paid and work in some of the harshest conditions. The original law was created to protect laborers’ right to organize so they can collectively bargain for a better workplace if they are unfairly paid, unfairly managed, or subjected to unsafe conditions. The law allowed union members, upon notification, to talk with laborers for three non-consecutive hours per day for a maximum of 120 days in a year. It should be noted that unions were not and are physically unable to organize for that maximum amount of time. Under the Central Hardware v. NLRB ruling, union members are permitted limited access to property in a specific area during a specific time. So this isn’t “chaos,” as the owner of the nursery called it in a propaganda video. Existing laws already license specific individuals, such as meter readers, inspectors, and law enforcement, to enter private property for a particular purpose, but unions are being singled out. It also should be obvious that the union organizers do not work for the government, and they aren’t “invading”; they are simply handing out flyers and talking to workers. Under the takings clause, it wouldn’t make sense for the government to compensate the business because nothing physical is even being taken from the business. Therefore, a ‘regulatory taking’ would apply here, meaning the government does not have to issue compensation only if that regulation significantly interferes with their economic activity. However, the plaintiffs instead argued that the ‘per se taking’ applies in this case, meaning that there is permanent physical occupation or deprivation of all productive use. This ‘per se taking’ has always been used for things like demolishing homes to build freeways, not for minute, temporary losses in productivity. The conservative justices, of course, agreed with this extremely high standard.
The ruling now makes it far more difficult for unions to expand membership and lobby against workplaces that mistreat employees. Access to the workplace is essential in organizing since it’s the only place where workers reliably are located, especially as farm workers migrate and change workplaces often. Now that states must abide by this ruling, they certainly will not compensate firms for union organizing on their property. The significant problem with this is that it affirms the right of corporate entities over human beings who are fighting for worker’s rights. It shifts power in favor of the capitalist class, which has a material interest in preventing labor organization and prefers paying workers as little as possible. Not allowing workers to use their power in numbers leads to a future where corporations can strip away wages, hours, benefits, and safety conditions from workers. The people who work for a company deserve the right to organize on the property where they work and ultimately should have a material stake in the company. It’s in the corporation’s interest to diminish worker power and prevent any democratic control over the workplace. Ruling this way says to workers they are no more a part of the company than a contracted landscaper.
9. New York State Rifle & Pistol Association Inc. v. Bruen and Garland v. Cargill
Neither of these cases will drastically change the nature of gun laws, which is why they are lower on the list, but displays the gross bias of the Robert’s Court to prevent even the most common-sense gun reform from passing. It shows their application of extreme originalist arguments to justify ignoring America’s current problem of mass shootings and gun violence.
This first case was brought by the gun manufacturer’s lobbying group, the NRA, which has notoriously funded right-wing politicians who oppose common sense gun reform and have brought legal challenges against reform when it passes. In this case, the NRA is suing to oppose New York State’s Sullivan Act, a century-old law passed in 1911. This law requires citizens to get a permit for concealed firearms and provide a valid reason for why they should be able to carry that firearm in a concealed fashion. Valid reasons are hunting or target shooting, for example. The purpose of the original law was to prevent the unlicensed carry of firearms in public environments and sensitive places like cities. The plaintiffs, Robert Nash and Brandon Koch were given a license to carry but only for sporting purposes. They then requested to be able to carry at all times, so the judge expanded their usage to include traveling to work and other outdoor activities. Instead of appealing, they, with the help of the NRA, sued the judge, arguing that the state shouldn’t be able to distinguish who is given the permit based on their usage. This came after the D.C. v. Heller case, where the court decided that gun rights for the individual were valid but were not unlimited and could be restricted by the government. There is a two-part test for determining the validity of that restriction: does the restriction burden the Second Amendment and then weigh that burden with the public interest in the regulation. The court ruled 6 to 3 that the law was partially unconstitutional, preventing the government from restricting concealed carry for self-defense.
In the majority opinion, they strangely don’t seek to overturn all gun regulations but just this particular one. Justice Thomas many times contradicts himself by trying to balance old precedents with modern standards. Thomas is unable to use historical examples from the 1700s to argue an absolutist view of the Second Amendment because there existed gun laws at the time of the Founding. He also disregards modern laws that apply to our current context because ‘they can’t determine the meaning’ of the Second Amendment. Thomas has to be extremely selective with historical records, finding the Goldilocks laws that are not too old but not too modern in order to support his idea of what the Second Amendment should mean. The Constitution says nothing about the use of guns for self-defense, only in the context of a militia, making those laws too old. But current laws that regulate firearms specifically because they are now far more deadly and dangerous are too new. The majority opinion tries to justify restricting guns in sensitive areas like concerts, courtrooms, or schools but provides no way to determine whether an area is sensitive or not. They also ignore the context of today’s gun violence problem and do not explain why they think the Sullivan Act is unnecessary today when it has been untouched for over a century. When making the ruling, the conservatives did not look at the nature of licensing, how effective it was, how often licenses were granted, and for what purposes.
In the minority opinion, Justice Bryer tears into their selective reading of history and cites the reality of gun violence today; states with stricter access to guns have lower rates of gun crime, suicide, and injury. Not only is this ruling nonsensical from a technical perspective, but it flat-out denies the reality that guns have changed since the Founding of the country. Today, the nature of gun ownership, the culture around guns, the amount of guns in the country, and the efficiency of guns is infinitely different compared to 250 years ago.
The second case was brought by Michael Cargill, a gun owner who had bought two bump stock attachments for his guns, which ended up being banned by the ATF shortly after, forcing him to turn them in. The impetus for the ban on bump stock attachments was the 2017 Las Vegas Mandalay Bay concert shooting, which is the worst mass shooting in American history, killing 60 and wounding another 413 more people. Some of the weapons used were semi-automatic AR-15 rifles with bump stock attachments that effectively allowed the rifle to shoot near an automatic fire rate. This attachment was not well known in the eyes of the law, it was only known among gun enthusiasts before this event shed light on it. The ATF, in 2018, issued an amended ruling banning the attachment based on the National Firearms Act of 1934, a decision that was supported by President Trump and the NRA. The definition of an automatic weapon or ‘machine gun’ is outlined in the Firearms Act as,
“any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or a combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.”
The bump stock is an attachment that uses the rifle’s recoil to rapidly release and repress the trigger, allowing the gun to shoot faster. The Supreme Court ruled 6 to 3 that the bump stock cannot be banned under this definition of a machine gun.
This ruling is very simple, despite what strict Second Amendment gun enthusiasts want you to believe. The bump stock attachment is a way to make a semi-automatic rifle fire at a near-automatic fire rate. This cannot be over-emphasized; the only purpose of the bump stock is to make the gun shoot faster. The majority opinion said otherwise. While writing this opinion, Justice Thomas gets lost in the technicalities of how a gun works. The law clearly states that a machine gun is defined by automatically firing more than one shot with a single function of the trigger, which a bump stock does. A single function of a trigger colloquially and logically means pulling it once. Thomas tries to loophole this definition by saying that because the trigger is released, it technically isn’t firing automatically. This is very clearly false; the bump stock modified rifle can fire about ten or more times faster than without it. The bottom line is that these laws are meant to prevent the use and ownership of automatic weapons because of their increased lethality, and the majority ignored this fundamentally basic premise. Justice Sotomayor, in her dissent, said that this is not a difficult case, citing each conservative justice’s contradictory use of extreme textualism. In her scathing opinion, she writes a line that perfectly encapsulates the case: “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck” referring to the backward logic of Thomas’ opinion.
8. Carson v. Makin and Kennedy v. Bremerton School District
Both of these cases display the court’s disregard for the Constitution’s text, which is quite ironic since we just discussed how the conservatives practice such strict textualism. Here, they disregard the plain text of the First Amendment’s establishment clause, which regards the separation of religion and the state. The Establishment Clause has, for over 50 years, been the standard for constituting religious issues. It sets up the three-part Lemon test where the primary purpose of the law should be secular, the law must neither promote nor inhibit religion, and there should be no excessive entanglement between church and state. The conservative court, in recent decades, has supported religion over secularism in three distinct cases regarding the First Amendment: Zelman v. Simmons-Harris, Trinity Lutheran Church of Columbia, Inc. v. Comer, and Espinoza v. Montana Department of Revenue. Let us remember that many of the original settlers in New World America left Europe to escape religious persecution. Knowing this well, the framers explicitly placed this in the Constitution both to protect religious minorities from discrimination and to prevent the favoring of major religions. These rulings erode that principle in favor of the Christian majority.
The first case comes from Maine, where, due to the low population density, it is often difficult to get children to public schools. The state of Maine has set up a tuition assistance program to give a private school option to parents who choose. Under this program, the private school must be accredited and must be nonsectarian because of the Establishment Clause. Three families, including the Carson family, requested funding (a voucher) for their children to attend Bangor Christian School, which was sectarian. They sued the education commissioner, Pender Makin, for denying their request. In a 6 to 3 ruling, the conservative court sided with the parents, going against the plain text of the Constitution and decades of precedent.
Justice Sotomayor harshly criticized the decision, stating that it “continues to dismantle the wall of separation between church and state that the framers fought to build.” Also in her dissent, she quoted herself from the 2017 case that “the court was ‘lead[ing] us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment”, a prophecy which has come true. The fact is that the First Amendment and Establishment Clause are very clear and not complex. The government cannot endorse or prohibit a religion. Supporting an explicitly religious school with public funds is an obvious violation of that.
The second case is in Washington State, where assistant football coach Joseph Kennedy ended each game with a prayer on the field. While it began as a personal moment, over time it became more of a spectacle. Most of the team started joining in, even the opposing team, sometimes in an out-loud group prayer and speech. Kennedy is also transparent that these were explicitly Christian religious prayers and speeches. After seven years of doing this, the school board was worried about their religious minority students feeling excluded from the coach promoting Christianity during school hours. The board first negotiated with Kennedy, suggesting he limit the prayer to a private location after the spectators have left or have it be led by players. Kennedy refused, continuing the spectacle. He posted to Facebook and took many local media interviews proclaiming his right to speech, saying that he thought he was about to get fired. As the media attention ramped up, he hired a lawyer to push back against the school board. In the next game, he performed the prayer again, conflicting with the board’s order, drawing lots of media and spectators onto the field. The school board received threats, and the head coach, Nathan Gilliam, later testified he was afraid for his life at one point. The board suspended Kennedy indefinitely with paid leave. He then sued the school district, and upon reaching the Supreme Court, they ruled 6 to 3 in favor of Kennedy.
In the majority decision written by Justice Gorsuch, he essentially lies about the raw facts, calling this a ‘private prayer,’ despite photo evidence that it was very much public, out loud, and in the presence of students. Gorsuch also states that under the Establishment Clause, it was unnecessary “for government to be hostile to religion in this way,” despite the plain constitutional text being that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” If this is considered nonsectarian, according to Gorsuch, what separates what Kennedy was doing from what is expressed at a Christian school? This almost exact case came up in Engel v. Vitale, way back in 1962, where the court ruled 6 to 1 that school prayer violates the wall separating church and state. The worst consequence of the ruling is the overturning of the long-standing Lemon test mentioned earlier. It’s not a reach to predict that going forward, the court will, by default, rule in favor of intertwining religious interests with the state and schools, leading to public funding of Christian schools or even allowing religious matters to enter public school curricula.
7. Students For Fair Admissions v. Harvard
This case is brought by a conservative non-profit legal organization suing the private University Harvard for using affirmative action in their admissions process, claiming that the practice is discrimination. This is a combined ruling with Students for Fair Admissions v. University of North Carolina, which is the same controversy besides the fact that UNC is a public university. The two cases should have been litigated separately since each school uses different protocols. Since private schools receive public funding, they would have to be sued based on Title VI, whereas public schools should be sued based on the Fourteenth Amendment, a distinction that is mentioned in the concurrence but is dismissed as irrelevant. The practice of affirmative action goes back centuries, but in today’s context, it refers to the practice in education of taking into account an applicant’s race, among many other factors, to create a diverse student body. It’s important to look at the context of affirmative action throughout history, used as a way to correct past discrimination and promote more diversity in places where people of color were forbidden just 60 years ago. Affirmative action policies have been advocated by John F. Kennedy, Martin Luther King, Lyndon Johnson, Thurgood Marshall, and the NAACP as a way to correct prior discrimination where the government was unwilling or unable to directly. Initially, after the Civil Rights Act, affirmative action measures like quotas were used in employment and schooling to integrate the country and move away from segregation. The same was applied to women, who had a rather small role in society despite making up half of the population. While this concept is essentially a half measure compared to funding and eliminating the root effects of past segregation, it has worked in better integrating society, elevating more people of color to higher status positions, and has been shown to improve business efficiency.
Harvard’s admissions process, which came into question, is a three-step process. First, when all the applications are submitted, they go through an initial reader who (blindly) scores each application categorically based on their academics, athletics, extracurriculars, school support, and personal. Second, the whole admission committee votes on every application, giving each a score, and if they pass a specific threshold, they are tentatively accepted. Lastly, the remaining applicant pool’s demographics are revealed to the committee, and since there are too many to accept, the pool gets narrowed down. In the narrowing down step, the committee reviews the least qualified applicants’ financial aid eligibility, major, athletic status, race, and legacy status. As they cut out applicants, the committee balances all these demographics along with other things like their nationality, relative wealth, and locality to create a balanced, diverse body of students. Each person who is either cut or accepted is personally reviewed and examined based on a variety of factors, not just race. This way, no two students are placed against each other where one is chosen while the other isn’t. It both aims to admit only qualified students and ensure that no student can be considered excluded or included based on their race. Since this goes through a rigorous three-step process involving a personal evaluation, it is never revealed nor verifiable if a particular student was denied or accepted based on their race. According to a comprehensive study this year by Georgetown University on affirmative action, it found that affirmative action measures in applications are the best way to achieve a student body that reflects the race demographics of the total US population of high school graduates. The same study found that the best way to improve the diversity of socioeconomic status among applicants is to consider race in admissions. Despite all of this being key to understanding the nature of the case, the court ultimately ruled 6 to 3 that affirmative action is discrimination and that it must uphold a colorblind approach to applications.
In the majority opinion led by Justice Roberts, he and the concurring justices lay out the idea that the Fourteenth Amendment, in its Equal Protection Clause, is essentially race-neutral. Roberts says that “eliminating racial discrimination means eliminating all of it,” which sounds like it makes sense, but remember he is applying this standard to a case that involves better integrating minority students into schools. Justice Sotomayor, in her dissent, rebuts that based on the strict standard that all discrimination is unconstitutional, this would contradict the authors of the Fourteenth Amendment who passed the Freedmen’s Bureau Acts. These acts passed by Congress explicitly ‘discriminated’ based on race to give resources to formerly enslaved black people. In Justice Thomas’ lengthy concurrence, he carelessly tries to cover this obvious contradiction by saying,
“Importantly, however, the [Freedmen’s Bureau] Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because ‘not all blacks in the United States were former slaves’, ‘freedmen’ was a decidedly under-inclusive proxy for race.”
Here, Thomas quite literally denies reality by saying that a program made to help black people who have been immiserated by slavery is race-neutral because the program also happens to include refugees. Thomas tries to suggest that the Constitution and the amendments applying to this ruling are, in his own words, ‘colorblind.’ Throughout Thomas’ concurrence, he goes through examples where the Constitution has not been used race-neutrally for both the benefit and detriment of minorities. For each, he refutes that they were either race-neutral or somehow doesn’t apply to this situation. From a birds-eye view, it’s so obviously ahistorical to think that the law has been race-neutral in the country where minorities have been second-class citizens for the vast majority of its existence and that it is equally discriminatory to correct for that past discrimination. Integration is part of the prescription for fixing segregation. The idea that we both live in a post-racism society and that people are not currently affected by past racism is undeniably false.
Being only a year after this ruling, robust data has yet to come out showing the effects of the ruling, but universities expect to see a negative change in the racial demographics of their student body. Universities have begun implementing new measures into their admissions process, like essays, to better understand how a person’s racial background has affected their life and ability to achieve higher education. This ruling could end up having snowball effects, opening the door for scholarships and minority technical programs to be challenged by state or federal courts. What is especially infuriating is that a Yale-educated judge is refusing to understand the difference between integration and discrimination. While this ruling in and of itself may not drastically change things, it reiterated the court’s willingness to side with far-right racist lawyer Edward Blum (founder of Students for Fair Admissions), someone who waged war on racial equality since the 90s and fought to legalize racial vote dilution. Not only was the conservative court wrong on just about every ground, but they also showed how unashamed they were to do so.
6. 303 Creative LLC v. Elenis
This case is a direct response to another famous case called Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court ruled that a public business could not discriminate based on sexual orientation. A gay couple wanted to have a wedding cake made but were refused by the owner based on their religious beliefs, which was deemed discrimination. In this 2023 case, it was almost the same scenario, except the plaintiff, Lorie Smith, was a wedding website designer who allegedly got a request to create a site for a gay couple and said she had to refuse because of her Christian religious beliefs. It’s critical to note that she registered for an LLC named ‘303 Creative,’ but she never created any websites for anyone. In the court system, through many years of litigation, the story changed when it was revealed that no requests to make any websites were sent to her. In fact, the entire request was revealed to be fake. In an expose written in the New Republic, reporter Melissa Gira Grant reached out to ‘Stewart’ one of the gay men cited in the case documents. He responded with confusion since he was a straight married man and had known nothing about the case to begin with. Smith later revised her story to include that she considered posting a notice that warned of her refusal to serve gay couples, but this would’ve violated Colorado’s discrimination law, prompting her to file the pre-enforcement lawsuit. Representing Smith is the multi-million dollar Alliance Defending Freedom legal fund, a conservative Christian group that plaintiff shops for lawsuits to challenge specifically abortion and religious issues. This organization is closely associated with Justice Amy Coney Barrett, who did not recuse herself from the case and is a part of the Project 2025 advisory board. The plaintiff argued that under the distinction that her work as a business owner is ‘creative in nature,’ she could not be forced to endorse gay relationships against her religion. In a 6 to 3 decision, the conservative majority agreed with this assertion.
Justice Gorsuch wrote the concurrence that Smith cannot be compelled by the state to express her approval of gay relationships. Under the First Amendment, they cannot be prohibited from expressing their beliefs or religion. This is, of course, limited in the case of discrimination law, where someone else’s rights would be infringed if denied based on race, sex, gender identity, creed, disability, or ancestry. The cornerstone of the case is the fabricated distinction that this does not violate discrimination laws because the business is “expressive in nature.” But this is a vague definition that is never fully elaborated on in the concurrence since seemingly everything could be considered ‘expressive,’ and thus be a viable defense for discrimination under free expression. Justice Sotomayor completely annihilates this point, citing many cases, briefs, and petitions from the 20th century where the segregationists invoked their First Amendment free expression right to refuse service to minorities.
This is rather simple; the case regards someone justifying discrimination against a same-sex couple because of how they perceive their religion. The conservative justices have to walk this fine line to create this loophole; they both have to label past segregation as a violation of the Equal Protections Clause but also validate this instance of discrimination based on a person’s sexual orientation. They are more or less excluding a person’s gender identity and sexual orientation from that calculation of discrimination, thus implying that queer people are not a protected group under the Constitution. There should be no better place to discuss the healthy distinction between free expression and discrimination than the Supreme Court, but they simply do not address this. Instead, they fixate on this arbitrary distinction whether or not it is of ‘an artistic nature,’ rather than drawing a line where something is or is not discrimination. An immense flaw in the case, however, is the fact that it’s entirely theoretical; Lorie Smith was never asked to make a website for a gay couple and probably would never have anyway. The case is not being brought by a person who was discriminated against; it’s someone who sued the pre-enforcement of a law for a service they never offered. In a real scenario, if someone offered wedding photography services and declined to take a client explicitly because the couple was interracial, we would have no problem determining that the couple was being discriminated against.
On its face, this is a disgusting ruling that, at best, is nitpicking a clear-cut discrimination case and, at worst, legitimizes discrimination against queer people. The conservatives ignore basic context and side with Christian extremists who do not accept queer people as part of society. This ruling paves a path for religious zealots to do major harm to our society, and it corrodes fundamental rights of protected people.
5. West Virginia v. EPA
The role of the Supreme Court enshrined in the Constitution is to rule on “cases and controversies.” In 1911, it was clarified in Muskrat v. United States that the court only had jurisdiction over active controversies. In the ruling, an actual controversy “implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication” for the court to have jurisdiction over it. Essentially, for over a century, it has been a legal precedent that the court can only take cases that are actively relevant to current law. In this case, West Virginia v. EPA, the law in question called the Clean Power Plan, was never enacted. Towards the end of the Obama administration, the policy was proposed, but it never went into effect because the Trump administration issued an executive order repealing it. So this is a moot case, it has no controversy because the policy doesn’t exist. The case is now purely hypothetical, something that should be beyond the court’s jurisdiction. Justice Roberts defended this with a strange argument that the case is alive so long as it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” referring to the Biden administration’s defense of the plan.
The Clean Power Plan, a piece of legislation proposed by the Obama EPA in 2015, aimed to reduce carbon emissions within electricity generation to slow the effects of climate change. It set goals for each state to reduce their carbon emissions in the way that each state saw best fit, and states could coordinate to offset if a state could not achieve the standards. The result would be a reduction in carbon emissions from energy generation by 32% by 2030 if every state met its goal. These goals turned out to be drastically unambitious since a market shift caused the goal to be reached in 2019 ahead of schedule. It should be noted that while emissions did decrease, it was simply a continuation of an existing trend as natural gas took over the industry and coal power rapidly declined. Renewables continued trending up during this time but only grew 18.2% in total production compared to 25.3% with natural gas, which produces 17 times the amount of emissions as solar and 37 times that of wind. While Republicans criticized this plan at the time for being ‘too extreme,’ a more ambitious plan would have discouraged the expansion of the natural gas industry while encouraging more investment in renewables and nuclear power. If not for the existing energy market trend at the time, the natural gas lobbyists would’ve certainly pushed legislation and policy in that direction anyway. When Trump came into office and repealed this legislation, he also withdrew from the Paris Climate Accords, siding with the natural gas industry in the battle to claim the declining coal industry’s demand. The original controversy was over the EPA’s jurisdiction to set broad policies for the entire energy industry. Typically, when Congress passes these laws, it uses agencies like the EPA to carry out those bills, granting them the authority to set policies to meet the standards of the law. The Clean Air Act, passed in 1963, was enacted by Congress to control and reduce pollution. It was amended many times over the years to include things like decreasing greenhouse gasses, tasks which were then carried out by the EPA. The court ruled 6 to 3 that Congress is not able to grant the EPA the authority to set caps on emissions nationwide.
In this case, the core idea being challenged is that Congress can grant agencies authority to carry out legislation. This has been a precedent for decades, where essentially every piece of major legislation, in fact over 99% of laws passed, use agency delegation. Conservatives have been trying to undermine federal agency power for years, attempting to shift power in favor of corporations. In the dissent, Justice Kavanaugh tries to present his beheld “major questions doctrine,” which is essentially a legal nothingburger. In short, it says that for any agency that tries to regulate something deemed a ‘major question,’ the courts should strike it down unless Congress explicitly authorizes so within the law. In presenting this doctrine, the conservative justices provide no standard to judge what constitutes a major versus not-major question. The only standard Kavanaugh presents is quite bizarre; if a particular regulation “raises an eyebrow,” it would be deemed a major question. In a different example, they say that an agency would be able to make broad regulations if “one would consider” such a regulation to be a “tool” in that agency’s “toolbox.” This language is intentionally vague because it has no precedent or logic backing it, and Justice Kagan calls this out in the dissent, stating that this is the first time this doctrine was used. As someone with experience in administrative law, she points out that the justices clearly have no knowledge of climate policy, and thus, it is the EPA’s responsibility to use their expertise to create sound regulations.
The effects of this ruling will be felt for generations to come if not reversed. It diminishes the ability of agencies to make necessary regulations, especially in a crisis. For example, the CDC, during the COVID-19 pandemic, issued a regulation based on congressional authority that temporarily halted evictions, which they determined would lead to unnecessary viral transmission. Since lower courts rule in line with the Supreme Court, legitimizing the major questions doctrine means courts will have drastically more power to undermine agencies and, by extension, Congress. It utterly disregards the need of citizens to have regulatory bodies in place to protect them from, in this case, massive fossil fuel corporations who want the unfettered ability to unleash carbon emissions that drive climate change.
4. Loper Bright Enterprises v. Raimondo
This was a combined ruling along with its companion case Relentless, Inc. v. Department of Commerce, which deals with Chevron Deference. This long-accepted precedent comes from the landmark 1984 case Chevron U.S.A. v. Natural Res. Def. Council, which determined that judiciaries should refer to relevant federal agencies when deciphering ambiguous language within congressional legislation. In simple terms, when judges go over cases that contain complex topics in which they do not have expertise, they must refer to federal agencies to interpret those topics. Under that ruling, judges were not able to overrule administrative agencies. The reason this was such a cornerstone in administrative law is fairly obvious: it is the job of judges to interpret the law and the Constitution, not to be experts in every field of science and policy-making; that would be the job of the agencies. Examples that come up in the case are “When does an alpha amino acid polymer qualify as a protein” or “What makes one population segment distinct from another,” questions which the average judge would not know the answer to. Most judges do not know what air pressure a commercial airplane cabin should be kept at, and that’s to be expected, they are experts in law not science. Chevron Deference makes them refer to agencies to answer such questions. The Chevron ruling was originally championed by the conservative Reagan administration because the agencies he staffed could overrule the liberal justices at the time. Today that has flipped; the court is conservative, and the White House is liberal, which prevents conservatives from deregulating through judicial review. An analysis showed that 77% of circuit court cases between 2003 and 2013 used Chevron Deference in their regulatory disputes. Federal courts have used Chevron Deference in over 18,000 cases since the original ruling.
The cases that were brought to the court were about fishing regulations issued by the National Marine Fisheries Service, which was delegated regulatory power by Congress in 1976. Fishing boats must sometimes carry inspectors on board to monitor fishing activity to prevent overfishing, and they are required to cover the cost for these inspectors. Loper Bright was a herring fishing company that sued because they claimed that accommodating these inspectors allegedly cost up to $700 per day, which was not reimbursed by the federal agency. This case ultimately determines whether the federal agency has the power to interpret the law, which was ambiguous in whether the government or the fishing company should take on the cost of the inspector. According to Chevron Deference, the federal agency should’ve had the final say in the law’s interpretation. When it was elevated to the Supreme Court, they ruled 6 to 3 that the courts must “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous” meaning Chevron Deference is overturned.
As for how the court justified this conclusion, Justice Roberts takes an originalist approach, citing case law from the founding and Marbury v. Madison of 1803. If we recall, at that time in our country’s history, the government had very few administrative agencies and could’ve never imagined the scale to which our country would grow, requiring a robust set of agencies to carry out the will of Congress. He states that courts owe “respect” but not “deference” to agencies. In order to make this ruling in the first place, Justice Roberts has to go against the principle of judicial precedent, so he fabricates what he calls ‘lessons’ about when it is appropriate to apply stare decisis. Justice Gorsuch, at the beginning of his concurrence, writes, “Today, the Court places a tombstone on Chevron no one can miss,” a line that definitely sounded far more profound in his head than on paper. The content of the opinion almost doesn’t matter; the conservatives are not hiding their bias and corruption, they are flaunting it. The liberal justices rebut the gross contradiction where judges clearly do not have the expertise to do the job of federal agencies staffed by career experts in these fields. They also reaffirm that Chevron is a robust standard that has been used for decades, which is necessary to ensure the efficient operation of courts.
This case is radically destructive to our government as we know it. First, it will drastically slow down an already overburdened court system and encourage even more designed lawsuits targeting the government. More importantly, the conservative majority hands itself unfettered power to rule against the will of Congress and the will of the President, the two branches of government that are directly elected by the people. This essentially removes one of the only checks on the court’s power. From now on, regardless if the justices are competent in the subject matter at hand, they must rule on that subject matter anyway. In a bit of sick irony, the day before this ruling, Justice Gorsuch authored a majority opinion to a case where he confused nitrous oxide (a greenhouse gas) with nitrogen oxide (laughing gas) multiple times where the opinion had to be rewritten, demonstrating the obvious need for experts to have the final word on these issues. Even more insulting is that the plaintiff lawyers were from the Americans for Prosperity group that the Koch brothers established to wage lawfare on climate change regulation, minimum wage laws, and union protections. In the companion case, the plaintiff lawyers belonged to the New Civil Liberties Alliance, a group that is also heavily funded by the Koch brothers. The implications seem pretty obvious: now granted unchecked power, the conservative courts will seek to strip the government of regulation and protections for ordinary people. This will further bolster corporations’ unfettered power to carry out environmental harm, strip worker rights, and trample consumer protections.
3. Trump v. United States (2024)
At the time of this decision, the media began calling this one of the most important lawsuits in our country’s history. This has to do with former President Donald Trump’s ongoing federal criminal case in which he attempted to overturn the outcome of the 2020 presidential election. In the attempt, the case includes Trump trying to create a slate of fake electors, pressuring former Vice President Mike Pence to overturn the results, pressuring Georgia’s secretary of state to generate fraudulent votes, and encouraging the January 6th capitol building riot event. A motion was filed to dismiss the case on the grounds of Trump being granted presidential immunity, citing Nixon v. Fitzgerald. In that case, the court ruled that the President has absolute immunity from civil penalty for ‘official acts’ but also said that the President is not immune from criminal liability for any act, official or unofficial. A loophole existed in the case where the definition of an ‘official act’ was never clarified. Keeping in mind how corrupt the court has acted thus far, it should be no surprise that the conservatives bailed out Donald Trump, ruling 6 to 3, that all former and current presidents have absolute immunity from criminal prosecution for actions done within constitutional authority. Presidents under this ruling also have ‘presumptive’ immunity for all official acts but no immunity for unofficial acts.
Justice Roberts wrote the opinion of the court, explaining that because the framers wanted, in his words, “a vigorous and energetic executive,” the President requires broad immunity. Again, he displays the conservatives’ obsession with originalist textualism when he cites the arguments from the Federalist Papers, concluding that they justify an unrestrained executive. The sum total of his arguments essentially blurs the lines between a use of power and an abuse of power. The idea that presidents ought to be immune from accountability goes against the core principles of the Constitution that no branch can act alone without oversight. The impetus for the nation’s founding itself was to escape an autocrat who had unlimited power. Justice Roberts also provides a guideline for separating official and unofficial acts, where the courts cannot assume a president’s motives since that would somehow allow any presidential action to come into question. This means that essentially, no matter how corrupt or harmful the action is, the President is immune from prosecution so long as they use the powers assigned to them. To justify the fact that Trump pressured Vice President Pence to overturn the election results, Justice Roberts frames this as just a conversation between the executive branch members discussing their ‘official responsibilities.’ This is in spite of the content of the conversation being to commit fraud that would logically be outside their official duties. In a sharp and pointed dissent, Justice Sotomayor frankly states that the conservatives have “effectively creat[ed] a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now ‘lies about like a loaded weapon’ for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.” She continues, laying out the consequences that a President can “[Order] the Navy’s Seal Team 6 to assassinate a political rival? Immune. [Organize] a military coup to hold onto power? Immune. [Take] a bribe in exchange for a pardon? Immune. Immune, immune, immune.” Then she firmly stated, “In every use of official power, the President is now a king above the law.” in the last line, she affirms, “With fear for our democracy, I dissent.”
The court could’ve decided the case in December of 2023 after the district court ruled but sent it to the D.C. Court of Appeals first, delaying it many months. Instead of expediting it as the court does with many important cases, they sat on it until the very last possible day in the term. That was clearly no accident; it was an effort by the conservatives to buy more time for Trump so he could avoid prosecution until after the election since, if he won, he could pardon himself. The language of the ruling was likely vague on purpose so that any disputes over the meaning could be then elevated back to the Supreme Court at a later time, causing further delay. It should be mentioned again that three of the sitting conservative justices were appointed by Trump, none of whom recused themselves from this case. In this ruling, the court blatantly denies the reality that the underlying case is one where a President was attempting to hold onto power against the democratically decided will of the people. This is the same court that revoked President Biden’s authority to cancel student loan debt and require medical workers to be vaccinated before working but now says the President has nearly unlimited immunity from prosecution. They have utterly abandoned reason. Because motive is no longer a factor, the only determinant when it comes to immunity is officiality, meaning a president can quite literally use the military to overthrow the government, execute people, throw anyone they want into prison, and not be prosecuted. This is not a movie, this is the manufacturing of consent to justify an authoritarian fascist regime.
2. Dobbs v. Jackson Women’s Health Organization
In 2018, Mississippi passed a law called the Gestational Age Act which banned all abortion after the first fifteen weeks of pregnancy with an exception for rape, incest, severe fetal abnormality, or medical necessity. This law was written with the help of the conservative legal group the Alliance Defending Freedom (mentioned earlier), which, upon passing, was immediately challenged by the Jackson Women’s Health Organization. The case was eventually elevated to the Supreme Court, where the court ruled 6 to 3 in favor of the law, saying that the Constitution does not protect the right to abortion and that the authority to regulate has been issued to the state legislatures. This would overrule the fifty-year precedent of Roe v. Wade and the thirty-year precedent of Planned Parenthood v. Casey. It can’t be overstated what a bombshell ruling this was, not only because it was long anticipated by rabid abortion opponents but because of how it will shape political strategy for years to come. The ruling would have a major influence in the 2022 midterm elections as the mythological ‘red wave’ was largely reversed. This was now two years after Trump appointed Justice Barrett specifically to overturn Roe. The most conservative justices, Thomas, Alito, and Gorsuch, were rushing to get this ruling out, especially as Thomas had a health scare, being hospitalized for a week due to an infection. Two months before the ruling’s official release, the drafts of Justice Alito’s majority opinion were leaked to the press to complicate this monumental event further. To understand who was responsible for the leak, it’s believed to be Alito himself or a member of his staff after speculation that he did so to cement the other justices who had doubts about the ruling. A comprehensive New York Times report from late 2023 displays probable cause for that, revealing how divided conservative justices were on the issue. The report highlighted Justice Roberts trying to sway Justices Kavanaugh and Barrett to his written opinion, which kept Roe v. Wade intact while supporting the law’s constitutionality. Before being replaced, Justice Bryer played a major role in attempting to compromise with Roberts to save Roe. An investigation turned out inconclusive, which was highly criticized by former DOJ Inspector General Glenn Fine for lacking independence and not investigating the judges themselves. Whether the leak was carried out by Alito or not, it ultimately ‘locked in’ the five justices signing onto Alito’s majority opinion while Roberts concurred only in judgment, writing his own opinion.
When Roe v. Wade was decided, it was based on the due process clause in the Fourteenth Amendment, which ensures substantive due process. This means there exist rights that are not explicitly in the text of the Constitution that ought to be protected, most importantly, the right to privacy. The ninth amendment also supports this, indicating that the Constitution does not contain every possible right, likely included because the founders anticipated a future where more rights existed. Historically, the right to privacy has been used to uphold the right to interracial marriage in Loving v. Virginia, the right to have sex with whomever in Lawrence v. Texas, gay marriage in Obergefell v. Hodges, and the right to contraception in Griswold v. Connecticut. When Ruth Bater Ginsburg was alive she made the argument that Roe should have been decided under the Equal Protections Clause instead to give the ruling stronger legitimacy. Though she’s more or less correct, it wouldn’t have made an ounce of difference facing a six-seat majority that resulted partly from her stubbornness to resign.
The majority opinion written by Justice Alito is very blatantly results-oriented in its rationale. To broadly summarize the guts of his argument, he drafts the idea that for a right to be enumerated by the Constitution and thus be protected by due process, it must be “deeply rooted in the nation’s history and tradition.” What he is saying is that if something has been around for generations and there are “deep roots” in our history, then it is an enumerated right. The history of abortion in the United States is very complicated though. Early on, abortion itself was acceptable, at least before the ‘quickening’ stage, and there were no laws restricting early-term abortions. Often abortifacients were used to induce an abortion, which wasn’t widely criminalized until the late 1800s. When abortions were entirely outlawed, throughout the early to mid-1900s, abortions still occurred very often, just in secret or done unprofessionally. Before Roe, abortion would happen in the hundreds of thousands per year, even in ‘underground’ operations. Abortion culturally wasn’t necessarily a political issue until about three years after the Roe decision when conservatives made it a part of their platform to oppose abortion in an appeal to southern evangelical Christians. In the majority opinion, this nuance is completely lost. Alito goes back all the way to before America even existed to cite people like Sir Edward Coke from the 16th century and Sir Mattew Hale from the 17th century, who condemned abortion as a moral crime. It should go without saying that these people’s opinions on abortion should be absolutely irrelevant, seeing they came from a time when women were literally property and rape was an offense against the woman’s father or husband, not the woman herself.
This test that Alito creates is entirely made up and illogical; the idea that rights have to be founded in history does not make sense and contradicts the history of other cases that he cites as valid. Take Loving v. Virginia, which legalized interracial marriage; there was exactly zero historical precedent for it, and certainly not at the time of the Founding when African Americans were not even considered people. In some backward irony, Justice Thomas, who is interracially married, signed onto this Dobbs ruling, which spells out a justification that his marriage is not protected under the right to privacy. Justice Alito, in his written opinion, tries to walk this extremely thin tightrope, somehow singling out abortion from other rights of privacy or just any rights in general. The reason why this strict originalist view of the Constitution runs into problems is precisely because of the founder’s contradictions. The ongoing legal project in our country has been a process of amending our Constitution, an unfinished document where those founders wrote that “all men are created equal” but at the same time did not allow every human to be equal.
Justice Alito addresses the equal protection argument but does so in the most embarrassingly ignorant way possible. In saying that abortion isn’t sex-based discrimination, he cites the 1974 case General Electric Co. v. Gilbert, which ruled that pregnancy discrimination is not sex-based discrimination. The ruling was so awful and so deplored even for the time that Congress quickly amended discrimination laws to protect pregnant women from, for example, being fired for taking maternity leave.
Alito also makes the case against stare decisis. Stare decisis was ultimately the weakest legal argument in favor of Roe because the conservatives could just make up whatever reason they wanted to overturn it, and it isn’t a binding principle. Alito goes against the conservative’s own stance on court precedent, saying that Roe was such a misguided ruling that it had to be overturned. He goes so far as to say that this Dobbs decision is historically on par with Brown v. Board. But let’s be clear; Alito is equating himself taking a right away from women with a decision where the court protected rights for people of color. It’s one thing to unapologetically write intellectually lazy results-based rulings, but having the arrogance to put yourself on the pedestal for it is incredible. Another awful part of the concurrence is a footnote that cites a twenty-page decision by Justice Thomas in 2019, where he legitimizes a conspiracy that abortion is being used as a tool to perform eugenics on the black population. Not only has this been thoroughly debunked, but the theory itself is based on the racist ‘great replacement theory,’ which still persists today.
Further in the decision, Alito rejects the previously mentioned attempt by Justice Bryer to compromise and agree on a fifteen-week standard where abortion is protected. Justice Alito says that doing so would continue “the turmoil wrought by Roe and Casey” because he believes this sort of case would keep coming up. Ultimately, the Dobbs ruling abolishes the right to abortion and allows the states to outlaw or uphold abortion rights as they please. It should be noted that the ‘state’s rights’ defense of this ruling is incorrect; the same argument has been used by conservatives throughout history to justify denying people rights. It was used to legitimize slavery in the Antebellum South, argue against civil rights in the 60s, argue against same-sex marriage, and just about every other socially progressive movement. A right, by definition, is guaranteed to everyone, regardless of what state you live in.
Justice Kavanaugh writes a short opinion where the only thing of significance he says is that states prohibiting travel to get abortions would be unconstitutional. However, because his justification was not very strong and did not provide adequate precedent, some suggest that this still leaves an opportunity for states to evade this ruling and restrict the travel of pregnant women. In Texas, conservatives are working hard to find legal loopholes to restrict travel or at least incite confusion about the law. Idaho has passed a law that criminalizes ‘abortion trafficking’ for up to five years in prison, but luckily, it is stalled out in a federal court. Throughout the country, there has been an undeniable chilling effect on anyone operating in reproductive health as doctors fear legal repercussions from helping patients across state lines.
In Justice Thomas’ concurrence, he throws out the substantive due process argument entirely, completely knocking over the tower of cards that Alito built. He essentially says that the expanded right to privacy, including all the rights guaranteed by it, mentioned previously, is bad law. He cites word for word that “we should reconsider all of this Court’s substantive due process precedents,” citing Obergefell, Lawrence, and Griswold– but not Loving, which ensures he can marry who he wants while refusing privacy rights to queer couples. Even more bizarre is when he says that substantive due process is what made Dred Scott v. Sandford possible, but if we remember, that case helped incite the Civil War, and the due process clause is from the Fourteenth Amendment– which came after the Civil War. That’s right, Thomas doesn’t even know the basic history of his own argument. If it couldn’t get any worse, Thomas, at the end of his opinion, compares the deaths in the Civil War to the effects of Roe being millions of abortions. It goes without saying that Thomas is a radical evangelical zealot who is willing to abuse and weaponize the horrors of the Civil War to deny women the right to control their bodies, a right which enjoys a healthy 63% support among all Americans.
As for Justice Roberts’ opinion, he concurs only in judgment and is sort of following the compromise with Justice Bryer. He supports the fifteen-week ban but wants to keep Roe in place. Given a 5-4 court, his choice would have mattered, but because of Ginsberg’s untimely death, he is left embarrassed, having no say in likely the most consequential ruling in modern history.
In the dissent, the three liberal justices joined to issue a joint ruling with no author, a rare occasion meant to make a statement. They expose many of the logical flaws I covered before, namely the inconsistency of grounding our rights in history and not in moral calculation. They do an especially thorough job of laying out the impact of the ruling on the people. They also lay out the case for Roe itself, that abortion is firmly a right, and without it, we invite unjust government intrusion and harm into women’s lives. They argue also that Roe is part of the lengthy, ongoing history in America for women to become fully equal citizens in society.
As soon as this ruling came down, trigger laws were activated in many states, while other states got to work on implementing restrictions. Today, fourteen states outright ban abortion, and eight more states have time limits. Wherever someone’s stance may be on abortion, one thing is clear: that the policy itself of restricting access creates far more harm. Barring the extreme view that life and human rights start at conception, it is undeniable that an abortion ban would both fail in preventing abortions from happening but will likely increase the total amount of abortions. States that ban abortion are expected to see a dramatic increase in pregnancy-related deaths. Again, bans will have a chilling effect on doctors afraid to be liable for assisting a woman in getting an abortion or simply removing a stillborn pregnancy. Women in some states are even being forced to carry non-viable pregnancies to term if they cannot travel out of state. The states with full bans will see the infrastructure for all women’s care decrease, while sanctuary states will have their women’s clinics stressed even further. Though travel restriction laws have been blocked so far, future efforts may succeed in allowing states to punish people assisting women who need to travel to get this necessary care. Total bans especially have a greater effect on young women, those who experience domestic abuse, and women of color. They also result in worse economic outcomes for women since traveling to get an abortion takes a financial toll. Only two years out from the ruling, we can’t see all of the damage caused yet. The most worrisome part is that this could allow the Supreme Court to pursue a ‘fetal rights’ argument to ban abortion nationally. This Dobbs ruling will hopefully force Democrats to get serious about reforming the court to deliver on their promise to pass a national abortion rights bill. The responses to Dobbs by Democrats at the time were pathetic and weak, especially President Biden, who didn’t lay out any strategy on how to get there. The coming election matters a lot; if Democrats control all three houses, they could abolish the filibuster and pass it through Congress. If Trump and Republicans win, we could very well see a national time-based restriction or a total ban.
1. City of Grants Pass v. Johnson
What could be worse than the Supreme Court instituting a king and taking women’s rights away? All of these rulings so far involve the court blatantly ignoring logic to reach their conclusions, and it could be argued that Trump v. United States will only be a disaster if he wins. As disgusting as it is that women’s rights were ripped away from them, resulting in misery and death, the one silver lining is that Democrats, if elected, will have to do everything in their power to reverse it. If Harris is elected, there almost certainly will be Supreme Court reform and codification of abortion rights. But what happens when both parties are working to strip the rights of an underclass of people? An underclass who is ignored, forgotten about, and doesn’t have the voice of half the country advocating for them. What happens when these people are violently stripped of their humanity and made illegal? That’s when you get this case, and it will not be overturned. This case is the most tragic microcosm of the oppressive American empire: the criminalization of homeless people.
Grants Pass is a small city of 39,000 people in southern Oregon. Originally a lumber industry town, since its decline, the city has shifted to the recreational, healthcare, and marijuana industries. It is part of Josephine County, which is strongly conservative-leaning, voting overwhelmingly Republican in every election since 1940. In the city of Grants Pass itself, the individual precincts voted between 11 and 25 points in favor of Trump in the 2020 election. The housing shortage, combined with America’s general lack of adequate affordable housing, impacts this city particularly hard, as more than half of renters pay at least 30% of their income to their landlords. In 2020, it was estimated that at least 870 people were homeless in Josephine County, the highest among all counties in Oregon. According to the facts of the case, they cite the number as close to 600 homeless just in the city.
The Grants Pass city council met in March 2013 to begin discussing ways to “modify behavior” regarding its homelessness problem. The solution that was settled on was criminalization. The council president said in this meeting that “the point is to make it uncomfortable enough for them in our city so they will want to move on down the road.” The city policy prohibited sleeping on public sidewalks, in parks, and even in cars. It also banned the use of tents or ‘sleeping materials’ to maintain a shelter, and the city even went so far as to shut off water to public facilities. The homeless population often had to rely on bathing in the river because there were not enough shelters. According to one former homeless resident, the Gospel Rescue mission is the only consistent shelter in the city, with only one hundred beds. That shelter also has a strict no-drug use policy and requires sermon attendance. With a lack of adequate shelters and no safe addiction services, the homeless population was targeted with harsh punishments, making their lives even worse. The city began liberally issuing fines for public sleeping and camping. The punishment starts with a fine of $295 if a person does not move within 72 hours. Police would often issue a citation anyway, even if they did move, for what they call ‘scattering rubbish,’ and the fine increased to $537 if unpaid. After two violations, a person is given a 30-day exclusion order, which means they are liable for trespassing if they return to the park. A trespassing charge in Oregon is up to a month in prison and up to a $1,250 fine. Police in the city have also forcefully dismantled homeless people’s shelters, stole their property, and ruined their personal items. In May 2023, it was reported that vigilante members of the community began harassing homeless people, breaking up encampments, and destroying their property.
With the help of the Oregon Law Center, a class action lawsuit was filed against the city on behalf of Debra Blake, a homeless resident. Tragically, she passed away in 2021 before the case reached the Supreme Court, so residents Gloria Johnson and John Logan then took over as plaintiffs. Blake, the original plaintiff, received over $5000 in fines, and the new plaintiffs received multiple fines for sleeping in their car. In a previous Ninth Circuit Court of Appeals case called Martin v. Boise, the court determined that anti-homeless ordinances could not be enforced if there was not an adequate amount of shelter space available in that area (the Supreme Court declined to hear the case). At the time of the Grants Pass case, it was still valid to criminalize homelessness, but there had to be enough shelter space. The argument brought was that harsh fines combined with the lack of shelters violated the homeless residents’ Eighth Amendment right not to be cruelly punished. In a 6 to 3 ruling, the Supreme Court upheld the city’s ability to criminalize its homeless population, extending that principle to the entire country.
Justice Gorsuch wrote the majority opinion where he begins by dismantling the Eighth Amendment, which reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The interpretation that Justice Gorsuch tries to make is that the ‘cruel and unusual’ language is supposed to mean types of punishment, not the context or the proportionality of the punishment. He says that the amendment focuses on the method of punishment “not on the question whether a government may criminalize particular behavior in the first place.” He further argues that the punishments being issued are minor as they are fines and then a month of jail time. When Gorsuch makes this argument, he is alienating the crime from the punishment, which leads to the obvious question: would it be cruel or unusual to issue the death penalty for petty theft? Yes, that would obviously be deeply immoral and wrong. Punishment ought to fit the crime committed, and everyone instinctively understands this. Punishing a homeless person with hundreds of dollars in fines is a far harsher crime for them than it is for anyone else. The next part of this is where he addresses the existing precedent from Robinson v. California, which differentiates criminalizing a person’s status from criminalizing their actions. In that case, it was determined that the state cannot make it illegal to have a drug addiction, they are only allowed to make illegal the act of doing illicit drugs. This is an important distinction because we develop laws to punish an action that must be proven in court; it’s the difference between making it illegal for someone to have an STI versus making it illegal to knowingly transmit an STI.
Similar to this case is Powell v. Texas, which ruled that a person who is addicted to alcohol is able to be prosecuted for public intoxication. It so importantly applies in this case because part of your status as a homeless person is obviously that you have no private place to sleep, thus you have to sleep on public property. While there is some overlap in action versus status, two key things should keep that case from being analogous with homelessness in Grants Pass. First, there is a choice involved on the individual’s part, making them responsible for being drunk in public, and second, the public intoxication law distinctly criminalizes not only the status of the intoxicated person but also the action of causing disorder. To that point, Justice Gorsuch says the ordinances apply neutrally in Grants Pass because “public camping laws prohibit actions undertaken by any person, regardless of status.” he continues, “It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.” In this statement, Gorsuch is bending logic at his will. We know that the City of Grants Pass was not having a problem with backpackers or protestors— they were having a problem with homeless people; that’s the reason why the law was created, that’s the only way the law was enforced, and we know that no police officer would issue a citation to a guy in a suit sleeping on a park bench. Gorsuch is saying that homelessness is not a valid status. Not only that, he is also saying that homeless people do not exist; he is denying that there are people, for one reason or another, who do not have the means to earn enough to be able to rent temporarily or permanently. This is like saying that being black is legal, but having a lot of melanin in your skin is illegal. To cushion that negligent argument Gorsuch says that the necessity defense could be used by homeless people. But in the courtroom, it is extremely rare for that ever to be used successfully by a defendant. At the end of the majority opinion, they rule that this “varied and complex” issue should be left up to the states to deal with it how they please… allowing homelessness to be criminalized.
Justice Sotomayor writes for the dissent beginning with,
“Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is “cruel and unusual” under the Eighth Amendment.”
Remember that the action that is being criminalized in the law is sleeping, and since the conservatives avoided that simple fact, she reiterates,
“the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”
She does a particularly good job of humanizing the experience of being homeless, that often these are veterans suffering from PTSD or are escaping domestic violence, which is the case for 60% of homeless women or teenagers who aged out of the foster care system. She continues by stating that there are many different causes of homelessness, such as stagnant wages while rent prices rise, natural disasters, family crises, and medical crises. The dissent makes it very clear that the law is so obviously meant to punish homeless people using the example of Jerry Lee, who lived in his van. He was woken up six different times to be given a citation, and the night-shift cops informed the day shift to tow the vehicle if they saw it. Justice Sotomayor follows that by debunking their poor use of the Powell and Robinson case precedent, as I demonstrated previously. An important point she makes is that when a person gets out of prison for the crime of sleeping in public, they just go back to sleeping on public property. Punishing a homeless person with jail time does nothing for them and nothing for society, it is just inhumane, sick, and cruel.
What makes this case all the more frustrating and perverted is that all Grants Pass had to do was comply with the existing law and provide adequate shelter. That’s it. If there was enough shelter for the homeless population in the city, they could have charged people and dismantled encampments. New York City, despite having its own problems, does not need to rely on this obscene ruling as it shelters close to 95% of its homeless residents. In the wake of this ruling, cities got to work punishing people for the crime of having no home.
Let’s not deceive ourselves; despite this being ruled by a corrupt conservative majority in the Supreme Court, Democratic mayors and governors will use this too. Just this summer, the face of the Democratic party, California Governor Gavin Newsom, immediately ordered state officials to dismantle homeless encampments. With this action, Republican minority leader of the state’s senate, Brian Jones, egged the order on, saying, “It’s about damn time!” Newsom even went out of his way to help with the destruction of these encampments himself, as seen in pictures and videos showing him proudly destroying people’s only means of shelter. Not only did he refuse to provide adequate shelter for these people, but he passed a policy to displace them and used it as publicity to appeal to conservatives. So this case isn’t simply a reflection of how regressive the conservatives on the court are. It isn’t even a reflection on how both parties often support the same sick and grotesque policy. It’s a reflection of our country’s deeply embedded fascistic worldview where it is acceptable to make a group of people the scapegoat, make them alien to the rest of ‘civilized society,’ and deem them subhuman.
The part of the communist's plan that is side splitting, is that they kicked themselves in the balls. If you had not cheated in the 2020 election, that will be proved this coming year, Trump would be leaving January 20th, 2024. Then you could have really had the wind at your back for the next 4 years. Now you will have to watch President Trump appoint the replacements for the conservatives leaving the Supreme Court. The blue ball part of this that Justice Sotomayor has type 1 diabetes. You called for her to retire earlier this year. Now do to your games it looks like the conservatives will get another conservative justice. The sweet part is that you did it all by yourselves!!
Vincent, I spent the entire afternoon reading every word of this thoughtful recap of our SCOTUS post Trump appointments and the ridiculousness of their decisions- so infuriating- I could cry. I wish to learn more about you and your work- you definitely have a handle on the law. It's impossible to understand what's happened to us; what are your ideas about turning this around somehow? Thank you for your great and clear writing style.