From Portside <[email protected]>
Subject Civil Rights Are on the Chopping Block in New Supreme Court Term
Date October 18, 2019 1:25 AM
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[ As the Supreme Court moves increasingly to the right with the
recent additions of Gorsuch and Kavanaugh, we can expect the continued
evisceration of civil rights and civil liberties.]
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Marjorie Cohn
October 13, 2019
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* [[link removed]]

_ As the Supreme Court moves increasingly to the right with the
recent additions of Gorsuch and Kavanaugh, we can expect the continued
evisceration of civil rights and civil liberties. _

Protesters rally in front of the U.S. Supreme Court as arguments are
heard in a set of cases concerning the rights of LGBTQ people in the
workforce on October 8, 2019, in Washington, D.C., credit: Mark Wilson
/ Getty Images // Truthout


This term, the Supreme Court will decide whether people can be fired
for being transgender or LGBQ, if people brought to the U.S. as
children can be deported, whether states can impose restrictions on
abortion that disproportionately harm poor women, how firm the
separation between church and state is, the scope of the Second
Amendment and whether criminal defendants can be convicted by
less-than-unanimous juries.

Millions of people will be impacted by the results of these cases.
“The court’s decisions will affect 800,000 ‘dreamers,’ in the
DACA case…millions of LGBTQ workers in deciding whether federal
discrimination laws protect on the basis of gender identity and sexual
orientation, and ‘half the country’ in the abortion case,” _The
Washington Post’s _Robert Barnes wrote
[[link removed]],
summarizing an interview with ACLU legal director David Cole.

These are some of the cases the Court will decide by the end of June

Dreamers' Rights

Barack Obama instituted Deferred Action for Childhood Arrivals (DACA)
in 2012 to protect from deportation people who arrived in the United
States as children. They are known as “Dreamers,” a reference to
the Development, Relief, and Education for Alien Minors (DREAM) Act,
which Congress has failed to pass for nearly 2 decades. Donald Trump
rescinded DACA in 2017, in furtherance of his anti-immigrant,
anti-Obama agenda. The Trump administration claims that Obama’s
establishment of DACA was an “unconstitutional exercise of

In _Department of Homeland Security v. University of California_
[[link removed]]_, _the
plaintiffs — the University of California and a number of states and
DACA recipients — argue that Trump’s rescission of DACA was
illegal. Trump argues that his decision to rescind DACA is not
reviewable by the courts. The Ninth U.S. Circuit Court of
Appeals disagreed
[[link removed]] with
Trump, saying his rescission of DACA was based “solely on a
misconceived view of the law.” The appellate court found meritorious
plaintiffs’ claims that the rescission was arbitrary and capricious
and violated equal protection, due process and the Administrative
Procedures Act.

The high court has recently come to different conclusions in two
immigration-related cases. In a 5-4 decision, the Court affirmed
[[link removed]] Trump’s
Muslim Ban, holding that the president has broad authority over
national security. But Chief Justice John Roberts joined the four
liberal justices on the Court to prevent
[[link removed]] Trump
from adding a citizenship question to the census, calling the
administration’s stated reasons “contrived.”

Oral arguments in the case are set for November 12.

LGBTQ Rights

On October 8, the Court heard oral arguments in three cases that test
whether Title VII of the 1964 Civil Rights Act, which forbids
discrimination “because of … sex,” protects transgender and LGBQ
employees from being fired. _Bostock v. Clayton County_
[[link removed]] and _Altitude
Express v. Zarda_
[[link removed]] were
brought by men fired for being gay. _Harris Funeral Homes v. EEOC_
[[link removed]] was
filed by a woman fired for being transgender.

These are the first cases involving LGBTQ rights to reach the Court
since Justice Anthony Kennedy retired. Kennedy wrote the opinions in
four cases protecting gay rights and provided the fifth vote to uphold
the right to same-sex marriage.

Three U.S. appeals courts and 22 states prohibit the firing of gay and
transgender employees. It seems like a no-brainer. “Firing someone
because they identify with a sex different from their assigned sex at
birth is obviously firing them because of their sex,” ACLU lawyer
Gabriel Arkles wrote
[[link removed]] for _Truthout_.
“And firing someone because they are attracted to people of the same
sex is also obviously because of sex.”

Ironically, Justice Neil Gorsuch may cast the deciding vote. During
argument, he conceded that the text of Title VII was “close.” But
Gorsuch wondered whether the justices should consider the “massive
social upheaval” if the Court ruled for the plaintiffs.

Gorsuch will hopefully channel his mentor, Justice Antonin Scalia, who
authored the 1998 opinion for a unanimous court which held that Title
VII covers harassment between members of the same sex. Scalia wrote
[[link removed]] that although
Congress may not have anticipated such harassment when it wrote the
law in 1964, “statutory prohibitions often go beyond the principal
evil to cover reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of our
legislators by which we are governed.”

Abortion Rights

The Court will decide a case challenging a Louisiana law which, if
upheld, would permit only one doctor in one clinic in the state to
perform abortions. This law requires that in order to perform
abortions, doctors must have admitting privileges at a local hospital.
That restriction, plaintiffs in _June Medical Services v. Gee_
[[link removed]] argue,
imposes an “undue burden” on the right to abortion forbidden by
the 1992 case of _Planned Parenthood v. Casey_
[[link removed]] because
it restricts access to abortion without protecting the health of

In _June Medical Services_, the district court made extensive factual
findings that closing the other Louisiana clinics would impose a heavy
burden on low-income women. It found that those who pursue abortions
are disproportionately poor and closure of the clinics would force
them to travel long distances.

Roberts joined the four liberal justices to halt Louisiana’s law
from going into effect during the pendency of the appeal. That was a
curious move, since, in 2016, Roberts had dissented from the majority
decision in _Whole Women’s Health v. Hellerstedt_
[[link removed]] that
held unconstitutional a Texas law nearly identical to the one in

_June Medical Services _will test Roberts’s claimed devotion to
upholding precedent, as the Court could use it to overrule _Whole
Women’s Health_. In the three years since _Whole Women’s
Health_ was decided, Justice Brett Kavanaugh replaced Kennedy. “It
will reveal probably more than any case this term this emerging role
of Roberts as the swing vote,” George Washington University law
professor Jonathan Turley told
[[link removed]] _The __Washington

The Right to a Unanimous Jury

In 2016, Evangelisto Ramos was found guilty in Louisiana of
second-degree murder after 10 of the 12 jurors voted to convict him.
He was sentenced to life in prison at hard labor with no possibility
of parole. Ramos contends in _Ramos v. Louisiana_
[[link removed]] that
he had the constitutional right to a unanimous jury verdict.

All states except Louisiana and Oregon require that jury verdicts in
criminal cases be unanimous. Although Louisiana changed its law to
require unanimity in felony trials, it only applies to crimes
committed on or after January 1, 2019.

In 1972, the Court held in _Apodaca v. Oregon_
[[link removed]] that
the Sixth Amendment right to trial by an impartial jury requires that
juries in federal criminal cases be unanimous. But the Court did not
find that defendants in state cases are entitled to a unanimous jury.

The Court has used the incorporation doctrine to hold that most of the
protections of the Bill of Rights — the first 10 amendments to the
Constitution — apply to the states through the Due Process Clause of
the 14th Amendment.

Indeed, last term, a unanimous Court held
[[link removed]] that
the Eighth Amendment prohibition on excessive fines applies in state
courts via the 14th Amendment’s Due Process Clause, which forbids
the states from depriving a person of “life, liberty or property,
without due process of law.”

During the October 7 oral argument in_ Ramos_, Kavanaugh asked
[[link removed]],
“Do the racial origins of this rule have an impact on how we think
about stare decisis [following precedent] in this case?”

Louisiana adopted its non-unanimity rule to make it easier for white
jurors to convict Black defendants after it was forced to allow Black
Americans to serve on juries. The NAACP Legal Defense and Education
Fund noted
[[link removed]] in
its amicus brief in support of Ramos, “Up until 2018, when
Louisianans voted to remove the non-unanimous jury provision from
their constitution, black defendants were more likely to be convicted
by non-unanimous juries, and black jurors were more likely than white
jurors to be in the dissent.”

The Scope of the Second Amendment

For the first time in over a decade, the Court will hear a case
involving the scope of the Second Amendment’s right to bear arms.
The Court will decide in _New York State Rifle & Pistol Association.
v. City of New York_
[[link removed]] whether
New York City’s prohibition against transporting a licensed,
unloaded and locked handgun to a home or shooting range outside the
city limits violates the Second Amendment, the commerce clause and the
constitutional right to travel.

Since the five right-wing justices favor an expansive interpretation
of the Second Amendment, it would seem the result in this case is
preordained. But after the Court agreed to hear the case, New York
City amended the regulation to allow licensed gun owners to transport
handguns to their second homes or shooting ranges outside of city

New York City’s changed regulation should have made the case moot.
The justices, however, could use it as a vehicle to establish a broad
interpretation of the Second Amendment.

“The court is going to have to decide this question of mootness
against the backdrop of several recent highly-publicized episodes of
gun violence and heated debate between the two parties about solutions
to gun violence,” Irv Gornstein, executive director of the Supreme
Court Institute at Georgetown, told
[[link removed]] _The __New
York Times_. “For some, this is a reason to dig in and plunge ahead
to decide the case. For others, sitting this one out may be an
inviting prospect.”

On December 2, the high court will hear arguments in this case.

Church-State Separation

The First Amendment says, “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof.” The Court will decide in _Espinoza v. Montana_
[[link removed]] whether
a state that gives grants and scholarships to students in private
schools must also provide them to students in church schools.

Montana’s constitution, like that of many states, forbids giving tax
money to churches. The Montana Department of Revenue prevented a state
scholarship fund from providing money to students who attended
church-affiliated schools.

This case will test the limits of _Trinity Lutheran Church v. Comer_
[[link removed]]_, _the
2017 decision in which the Court held that Missouri could not prevent
religious schools from receiving funds to replace pea gravel under
playground equipment with a rubber surface. The Court found that
refusing to provide the church with an otherwise available public
benefit on account of its religious status violated the Free Exercise
Clause of the First Amendment.

Other Cases the Court Might Hear

The Court will continue to accept cases as the term proceeds. Here are
some issues the Court may agree to consider.

As Trump obstructs
[[link removed]] the
impeachment inquiry, we will see cases that measure the constitutional
impeachment process against unfettered assertions of executive power.

Trump has made unilateral changes
[[link removed]] to
asylum and immigration law, which is within the purview of Congress.
Many of those changes have been challenged and will probably be
reviewed by the high court. And a federal district judge granted an
[[link removed]] to
halt Trump’s diversion of military funds to the construction of his
border wall.

Whether Trump must turn over his tax returns and whether his
family’s financial transactions with foreign governments violate the
Emoluments Clause will also likely be decided by the Court. A federal
district judge ordered
[[link removed]] Trump
to provide his tax returns to New York state prosecutors, and a panel
of the D.C. Circuit Court of Appeals ruled
[[link removed]] that
Congress has the right to see Trump’s financial records.

The Court may also determine whether cities can prevent
[[link removed]] homeless
people from camping in public places or sleeping on sidewalks. The
Ninth Circuit ruled that if no alternative indoor sleeping areas are
available, such restrictions would constitute cruel and unusual
punishment in violation of the Eighth Amendment.

Two cases that pit religious rights against civil rights might be
reviewed by the Court. One involves a Christian florist charged with
violation of Washington’s civil rights law after refusing to sell
flowers for a same-sex wedding. The other is an appeal by Catholic
Social Services, which was excluded from the foster care system for
refusing to place foster children with same-sex couples.

And the high court may have the opportunity to gut the Voting Rights
[[link removed]] once
and for all if the Fifth U.S. Circuit Court of Appeals weakens the
standard for finding discrimination in a case pending before it.

As the Court moves increasingly to the right with the recent additions
of Gorsuch and Kavanaugh, we can expect the continued evisceration of
civil rights and civil liberties. The Court has failed to protect the
right to vote by declining to strike down partisan gerrymandering
[[link removed]]; refused to find that
Trump’s Muslim Ban
[[link removed]] violated
the First Amendment’s Establishment Clause; and held that,
notwithstanding the Due Process Clause, immigrants who have been
released from criminal custody can be detained without a hearing
[[link removed]], even
when arrested by immigration agents years after their release. The
importance of Justice Ruth Bader Ginsburg’s continued vitality
cannot be underestimated.

_[Marjorie Cohn [[link removed]] is professor emerita at
Thomas Jefferson School of Law, former president of the National
Lawyers Guild, deputy secretary general of the International
Association of Democratic Lawyers and a member of the advisory board
of Veterans for Peace. Her most recent book is Drones and Targeted
Killing: Legal, Moral, and Geopolitical Issues
[[link removed]].]_

_Copyright, Truthout [[link removed]]. Reprinted with
permission. May not be reprinted without permission._

_Truthout publishes a variety of hard-hitting news stories and
critical analysis pieces every day. To keep up-to-date, sign up for
our newsletter by clicking here
[[link removed]]!_

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