Reflections on a Historical Supreme Court Term
What can one say about the SCOTUS Term 2021-2022? Yes, the U.S. Supreme Court in Biden v. Texas did find that the Biden Administration has authority to end the “Remain in Mexico” policy, a program that forced asylum seekers to live in squalid and dangerous conditions across the border as they awaited adjudication of their applications. However, this victory does not mitigate the harm and suffering of the 71,000 people who were put through that program and no date has been set for its termination as of this writing.
Prior to issuing the “Remain in Mexico” decision on the last possible day of the term, the Court issued a string of decisions depriving fundamental rights of individuals and diluting safeguards against overzealous criminal prosecution and immigration enforcement. At the same time, this Court also cinched the ability of state and federal government in regulating public safety, global warming, and corruption.
For the first time in U.S. history, the U.S. Supreme Court stripped away a longstanding fundamental right of the people. In reversing Roe v. Wade and vesting abortion decisions in state legislatures, the Court in Dobbs v. Jackson Women’s Health Organization robs individuals of their fundamental right to have autonomy over their body and to make decisions about forming families. The Court found support for this decision by referencing state laws criminalizing abortion dating back to 1828, undoing two centuries of advancements in civil liberties. The immediate impact of the Dobbs decision is that 13 states with “trigger ban” laws will proceed to ban abortion with another slate of states preparing to follow suit, leaving only 20 states that will maintain access to reproductive services. This decision will cause enormous harm to women of color, immigrant women and low-income women who already have limited access to basic healthcare. In a companion article, we outline some of the reproductive health resources that are still available despite Dobbs.
However, Dobbs is really not about abortion or morality or traditions. In Dobbs, the SCOTUS majority tossed away the fundamental judicial doctrine of stare decisis, opening up for legal challenge all settled precedents establishing fundamental rights. Justice Clarence Thomas made clear his intent of revisiting, likely reversing, other decades-old decisions establishing fundamental rights of privacy legalizing contraception, consensual sex among adults and same sex marriage should any such case come before the Court, though he curiously left out interracial marriage in his grand rights reversal scheme. Dobbs’s intent of returning abortion decision-making to state legislatures elected by the people is particularly disingenuous when this same court failed to protect voting rights, allowed rabid gerrymandering, and other state actions that decimate the voting rights of people of color.
Weeks after the catastrophic ruling by the Supreme Court in Dobbs, we continue to wonder what direction our courts, healthcare system and elected government will take next. While our federal government and healthcare systems remain gridlocked, the conservative supermajority of the Supreme Court continued its rightward shift that it has prepared for in the past half century. Discarding the incrementalism and guiding principle of stare decisis, the conservative justices moved quickly to strip down civil liberties outside of reproductive health and remove restraints on law enforcement while paradoxically weakening the government’s ability to enact regulation protecting its citizens.
The Expansion of Unaccountable Government Power
From accusation of a crime to detention on death row, the court enfeebled many protections and limitations on government power in criminal law, even to the extent of infringing on the sovereignty of native people. Oklahoma v. Castro-Huerta dealt a blow to tribal sovereignty, allowing state law enforcement to prosecute crimes on reservations, potentially causing massive disruption to Indian country criminal justice. Other cases removed deterrents to law enforcement agents. Egbert v. Boule made it much more difficult to sue federal officers engaging in misconduct while Vega v. Tekoh held that those with their Miranda rights violated could not seek civil damages against its violators.
The Hollowing Out of Habeas Relief
In Shoop v. Twyford, Brown v. Davenport and Shinn v. Martinez Ramirez, the Court instituted more hurdles for criminal defendants to obtain habeas relief in federal court. Raising deference to state sovereignty “to enforce social norms through criminal law,” and zeroing in on inmate’s failure to exhaust remedies in state court pre-conviction, the SCOTUS majority ruled to significantly narrow habeas relief for fear that its use would allow the guilty to go free. This conclusion fundamentally contradicts the intent of habeas corpus, which is to ensure that no one is convicted or executed in violation of the Constitution.
All these cases served to hollow out constitutional rights by sharply reducing the avenues in which victims of an overzealous criminal justice apparatus can seek relief from unjust punishment. Immigrants did not escape the impacts of this march to narrow availability of habeas corpus. In two companion cases, Garland v. Aleman Gonzalez and Johnson v. Arteaga-Martinez, the SCOTUS majority found that the immigration statute in question does not require the government to hold bond hearings, effectively permitting indefinite detention of individuals caught in removal proceedings. As in the criminal law realm, the conservative court worked diligently to weaken rights and protections. With cases such as affirmative action coming up in the next session, the outlook for further undermining of these protections looks bleak. Though the Court strongly supported government power in the realm of law and order, it weakened its ability to protect the community through regulation.
Weakening Protections and Rights for the Community
The conservative push by the Court weakened the government’s ability to pass regulations protecting public safety and stemming the tide of climate change. In New York State Rifle & Pistol Association Inc. v. Bruen, the Court struck down a 100-year-old New York statute requiring applicants for gun licenses to show special need. In West Virginia v. EPA, the Court removed the federal agency’s ability to regulate emissions, defanging our ability to stem global warming at a time when tens of thousands of migrants were forced to abandon their homes to come to the U.S. because of destitution and famine caused by climate change. This pair of decisions together with FEC v. Ted Cruz, in which the Court agreed politicians could use campaign funds to repay themselves, weaken the ability of government to regulate against harm and to protect the integrity of our democracy against corruption in politics.
A Portentous Supreme Court Term
It is too depressing to recount all the decisions of this SCOTUS term that divested fundamental rights, emboldened government bullies, narrowed Constitutional protections, and trampled on the vulnerable. Those who work with marginalized communities know what unaccountable government force can exact on human dignity. Immigrants have faced it with indefinite imprisonment without due process and many minority communities have horror stories of abuse by law enforcement and prosecutors with no recourse.
The conservative supermajority in the Supreme Court has loudly trumpeted their aims to continue whittling down constitutional protections or outright annihilating them. This trend promises a more inhospitable America for everyone. Today we see minorities and undocumented immigrants greatly affected by these decisions, but as the Dobbs decision showed, the ramifications of these decisions will continue expanding outward to disrupt the lives of people who never expected to have their liberties curtailed.
Like the current pandemic, this court term also laid bare the failures of a healthcare system that does little to nothing for marginalized communities. Groups such as immigrants have little to no access to healthcare due to the quarter-century-old welfare reform that predicated eligibility for healthcare on having the right kind of immigration status and lengthy work history in the U.S. Though many advocates and organizations have and continue to step in to help victims of the damage wrought by disastrous policies and jurisprudence, work remains to provide a lifeline to those in need while working towards systemic change that remains the only answer to achieve true equality in America. Organizing, advocacy, civic participation and legal challenges remain our strongest defense against the relentless rightward march toward decimating fundamental human rights and civil liberties.
~ Written by Zenobia Lai and Chris Dupree