[blind-democracy] Civil Rights on High Court Chopping Block in New Term

From: "Miriam Vieni" <miriamvieni@xxxxxxxxxxxxx>
To: <blind-democracy@xxxxxxxxxxxxx>
Date: Wed, 16 Oct 2019 17:48:05 -0400

Civil Rights on High Court Chopping Block in New Term

October 16, 2019

The cases concern everything from firing people who are LGBTQ, to abortion
restrictions that disproportionately affect low-income women, to
deportations, to the scope of the Second Amendment, writes Marjorie Cohn.

U.S. Supreme Court building. (Joe Ravi, CC BY-SA 3.0, via Wikimedia Commons)

By Marjorie Cohn
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,
summarizing an interview with ACLU legal director David Cole.

These are some of the cases the Court will decide by the end of June 2020:
Dreamers' Rights

President 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 two decades. President 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rescinded DACA in 2017, in furtherance of his anti-immigrant, anti-Obama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 authority."

In Department of Homeland Security v. University of California, 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 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.

Please Donate to Consortium News' Fall Fund Drive<<

The High Court has recently come to different conclusions in two
immigration-related cases. In a 5-4 decision, the Court affirmed 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 Trump from adding a citizenship question to the census,
calling the administration's stated reasons "contrived."

Oral arguments in the case are set for Nov. 12.

Protesters outside U.S. Supreme Court call for the reversal of President
Donald Trump's travel ban on refugees and immigrants from several Middle
East countries, Jan. 31, 2017. (Lorie Shaull/Flickr)

LGBTQ Rights

On Oct. 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 and Altitude Express v. Zarda were brought
by men fired for being gay. Harris Funeral Homes v. EEOC 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 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 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

Protest against the Supreme Court confirmation of Brett Kavanaugh, Seattle,
October 2018. (Ryan1783, CC BY-SA 4.0, Wikimedia Commons)

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 argue, imposes an "undue burden"
on the right to abortion forbidden by the 1992 case of Planned Parenthood v.
Casey because it restricts access to abortion without protecting the health
of women.

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 that held unconstitutional a Texas law nearly
identical to the one in Louisiana.

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 The Washington Post.
Right to a Unanimous Jury Verdict

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 that he had the constitutional right to a unanimous
jury verdict.

U.S. Supreme Court nominee Neil Gorsuch speaking at the announcement of his
selection on Jan. 31, 2017. (Screen shot from Whitehouse.gov)

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
Jan. 1, 2019.

In 1972, the Court held in Apodaca v. Oregon 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 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 Oct. 7 oral argument in Ramos, Kavanaugh asked, "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 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."
Scope of Second Amendment

Supreme Court Justice Brett Kavanaugh.

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
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 limits.

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 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 Dec. 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 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, 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 Possible Cases

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

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

Trump has made unilateral changes 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 injunction 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 Trump to provide his tax returns to New York state prosecutors, and
a panel of the D.C. Circuit Court of Appeals ruled that Congress has the
right to see Trump's financial records.

The Court may also determine whether cities can prevent 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 Act
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; refused to find
that Trump's Muslim Ban 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, 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 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."

[blind-democracy] Civil Rights on High Court Chopping Block in New Term

Other related posts: