The Supreme Court in session

2

The Supreme Court, by law, began its new term on the first Monday in October. We can look forward to a bare majority of justices to continue to support actions by the federal government and corporations. Here are just a few.

Over the summer, five justices allowed the Trump administration to move $2.5 billion in the Defense Department budget to construct a wall along the southern border. And then, in September, the court agreed that the administration could enforce new rules to stop migrants from entering the U.S. if they first traveled through another country and were not granted asylum there (the “third safe country” rule). Homeland Security can now bar most Central American migrants from trying to seek asylum in the U.S.

The court’s current docket includes another immigration issue that has dogged the Trump administration: Deferred Action for Childhood Arrivals (DACA), a program the Obama administration inaugurated in 2012. Two years ago, the administration rescinded the program, and now the court will rule whether the repeal was legal.

Given the court’s two decisions this past summer, the Trump administration will likely prevail.

The justices have already heard three cases involving transgender and LGBTQ rights. The issue is whether Title VII of the Civil Rights Act of 1964 protects discrimination based on sexual identification and sexual orientation. This is known as statutory interpretation. Justice Neil Gorsuch has long argued that statutes must be read without trying to determine legislative intent, and that only the words matter. But during oral argument, he was concerned that arguments favoring expanding federal protection to transgender, gay, and lesbian individuals would cause “massive social upheaval.”

In this case, Gorsuch, along with four other conservative members of the court, will likely hold that the Civil Rights Act does not protect the petitioners.

A case involving criminal law from Kansas asks whether it can abolish the insanity defense. This has the most severe consequences in death-penalty cases. Given the long history of most justices’ unwillingness to agree that the Eighth Amendment’s prohibition against cruel and unusual punishments bars capital punishment, based on the Oct. 7 oral argument, we can be certain that a bare majority will allow Kansas and any other state to eliminate the insanity defense.

Also, on Oct. 7, the Supreme Court heard oral arguments in another criminal law case on whether a non-unanimous jury can convict a defendant of a crime (capital crimes not included). The practice is now limited to only two states, Louisiana and Oregon. States’ rights suggest that the Louisiana, whence the case derives, has the authority to experiment with this law, but the Constitution may require a different outcome.

During argument, the most interesting comment came from the newest justice, Brett Kavanaugh, who suggested that historically, defendants who suffered the most from non-unanimous juries were African American: He noted that a non-unanimity practice had its roots in racism, and reduced the voices of black jurors. The outcome may depend on him.

A third criminal law case involves the 2002 Washington Beltway sniper attacks, when John Allen Muhammad and Lee Boyd Malvo killed or injured several people in a shooting spree that covered Maryland, Virginia, and the District of Columbia. Muhammad was executed in 2009, and Malvo received a life sentence without parole, which he is now challenging. He claims the sentence ought to be reduced because he was a juvenile at the time of the killings.

Most observers, as a result of the oral argument on Oct. 16, think the outcome depends again on Justice Kavanaugh. He seemed skeptical about sentencing juveniles to life imprisonment without parole: How could a jury determine, he asked, whether a juvenile is incorrigible and not merely immature?

A Second Amendment case is also on the docket: It asks whether a New York City law that prohibits carrying an unloaded and locked pistol from a home to any place outside the city violates a fundamental right. In 2008, the court ruled that gun ownership is an individual right, and two years later, it held that the right applied to the states, which could pass reasonable gun safety laws. In most gun-related cases that come to the court, the justices overturn restrictive laws, and they may well do so here.

Most recently, the justices accepted a case to determine whether the law creating the Consumer Financial Protection Bureau (CFPB), the signature proposal of Elizabeth Warren before she became a senator, is constitutional. It is the “U.S. government agency that makes sure banks, lenders, and other financial companies treat you fairly.” The law allows the president to remove the director only “for cause,” but opponents argue that he has the authority to remove all heads of agencies for whatever reason he wants. A majority will probably give the Trump administration another victory.

We have come to rely on the court to expand individual rights and liberties. But we ought not forget that the court in the pre–Civil War years upheld slavery. Afterward, it thwarted Reconstruction efforts, supported corporations against labor organizing, and constitutionalized segregation laws. While it eventually supported New Deal legislation, it also held that Japanese Americans could be interned during World War II. 

Rights of criminal suspects and the right to privacy expanded in the 1950s through the 1970s. But the current court has generally supported corporate America, and worked to undermine the Fourth and Fifth Amendments regarding rights of criminal suspects.

In this light, in most cases, we can bank on the justices continuing to mostly take a turn rightward as they listen to the pleas of petitioners.

 

Jack Fruchtman, a seasonal Aquinnah resident, has written “American Constitutional History” and “The Supreme Court and Constitutional Law.”