Looking Ahead: The Supreme Court

Also, chickens

Sometimes, no matter how busy you are, you have to stop and do something nice for your friends.

On a nice hot day, the chickens love a good dust bath, and I think they especially like one that’s strewn with herbs and flowers. Ruth and Pickles seemed really delighted by this—a snack and a bath!

The same is true here. I’ve taken some time this week go down a few rabbit holes and think through some complex legal issues. It’s not just Trump, the start of the new Supreme Court term is just around the corner—first Monday in October. We’ll start tonight with a quick preview of what’s on the horizon. I offer the chicken picture to take the edge off of what’s bound to be an eventful season.

While the Court has come a long way from its earlier incarnations, with women and people of color now among its ranks, this is going to be a challenging term. It starts off with a bang, in a case called Consumer Financial Protection Bureau v. Community Financial Services Association that will be argued on Tuesday, October 3. You may recall Elizabeth Warren’s tireless work before she became a senator to create a federal agency that would protect consumers from powerful financial interests that were unregulated and under-regulated. That’s the Consumer Financial Protection Bureau (CFPB), an agency that protects students, military families, people doing business with payday lenders, and so much more.

The CFPB has been in existence for just over 12 years and has done profoundly impactful work in that time to make sure Americans are treated fairly by banks, lenders and other financial institutions. But now, powerful forces who encouraged Republican senators to deny Warren the opportunity to lead the agency she worked so hard to create—she was nominated but the Senate refused to confirm her—are trying to put an end to the CFPB altogether. The legal issue is a technical one about whether the funding mechanism used for the CFPB, which is somewhat different from the usual path than for most federal agencies, is unconstitutional. One commentator has argued that “they do so based on an interpretation of the Constitution that would invalidate Social Security, Medicaid, Medicare, and countless other federal programs.” But the CFPB is not, as the government’s briefs explain, funded in violation of Congress’ power of the purse. And the plaintiffs seem to understand that, arguing for a whole series of funding restrictions that could serve to gut the agency.

The Court doesn’t take a case like this just to say, “Rock on. you’re doing good work.” So we begin this term with concern that an agency that has come to play a big role in protecting us from predatory financial practices will suddenly go missing in action. You can be sure that if the Court requires the CFPB to be funded on an annual basis, the MAGA caucus in the House will make sure Elizabeth Warren’s brainchild is no more.

And that’s just the second case the Court will hear this term. It’s unlikely to get better as we progress. There’s a case, Rahimi, where the Court will hear argument about whether, in light of its decision in Bruen that only restrictions on gun possession that were in effect when the country was founded can be enforced today, the Court should invalidate a law that makes it a federal crime for someone subject to a domestic violence protection order to possess a firearm. Sounds like a great idea, right? Let’s give guns back to people who’ve demonstrated a propensity for violence. The research on this is clear. Access to a firearm increases the risk that an incident of domestic violence will escalate into a homicide.

There is much more, including Loper Bright Enterprises v. Raimondo, a case where some of Justice Thomas’s friends want to strip away a legal doctrine called Chevron deference that determines when a court should defer to an agency’s interpretation of a law. The endgame is to prevent federal agencies like the EPA from regulating business interests, balancing concerns like protection of the environment with the rights of those engaged in commerce. Some businesses want out from under that, free to do as they will. The tactic they’ve used in this case is to bring in sympathetic plaintiffs, who make out the case that the big bad government, what conservatives sometimes call “the nanny state” is making life impossible for the little guy.

To develop that narrative, here’s how the conservative Alliance Defending Freedom describes the case, “A National Marine Fisheries Service regulation requires that herring fishing boats allow an additional person on board their small boats to serve as a monitor, tracking compliance with federal regulations. The fishermen must also pay the monitor’s salary of around $700 per day. Overall, the regulation reduces fishing profits by about 20%. Loper Bright Enterprises, a fishing company in New England, and other fisheries sued to challenge this federal government rule, arguing that NMFS lacked statutory authority to force them to pay for these monitors.” This characterization, of course, completely ignores the rationale for monitoring the industry, but the real point is that the goal of this litigation isn’t to help out the little guy. It’s to protect big business from regulation, and it’s been a long time work in progress.

It’s not clear that there are five votes to reverse Chevron, but it’s not unlikely, either. We may well be in for another term where the Court reverses big precedent. To make things still more interesting, the plaintiffs in Loper Bright Enterprises are represented by staff attorneys for the Koch Network. Justice Thomas, whose secret participation in donor events organized by the Koch Network was revealed in a recent ProPublica story, has not taken steps to recuse himself from participating in the decision.

If there’s one glimmer of hope this term, it’s the prospect that the Court will bench-slap the Alabama legislature into compliance with the Court’s order from last term that Alabama must stop diluting the voting power of its Black citizens. The Court ordered that the legislature, consistent with Section 2 of the Voting Rights Act, must draw a map to be used for voting for members of the House of Representatives where Black voters have a realistic chance of electing candidates of their choice. Despite the surge in Black population to around 26% in the last census, Black voters were stuffed into one of Alabama’s seven Congressional districts, with no shot at electing a second member of Congress because of the way Black voters were spread out among the remaining six districts.

After the Court disallowed the existing map, the legislature adopted a new map that did…exactly what the Court said it couldn’t do. Again.

Now, a three-judge panel has appointed a special master who has come up with new maps that are consistent with the Supreme Court’s decision last term. The panel will pick one of them, and then, presumably, the state of Alabama will appeal again to the Supreme Court (that’s how this type of case works, appeals goes straight from a three-judge panel to the Supremes, cutting out the middleman, the 11th Circuit Court of Appeals) and ask them to reconsider their earlier ruling. Today, Alabama’s Attorney General gave us a taste of what that argument will be. He argued that the new maps are a “racial gerrymander” i.e., that white voters in the state of Alabama are being discriminated against.

Here’s hoping that whatever else it does this term, the Supreme Court will tell the state of Alabama it doesn’t get to flagrantly violate the rule of law. It should tell Alabama that it has no authority to tell the Court that its decisions are wrong and refuse to follow them. Anything less would be a betrayal of the rule of law and would be tantamount to the Court cutting out the legs of its own authority. One hopes that even this Court will stand up for the rule of law, which requires parties to follow decisions it renders. If the Court cedes its authority to the MAGA majority in Alabama’s legislature, we’re in deep trouble.

(But I don’t expect that to happen)

We’re in this together,

Joyce