On Friday the conservative-dominatedUS supreme courthanded down a series of important judgments on issues ranging from the power of the judiciary to religious rights in schools. Media attention generally focused on the wording of the rulings and their impact.
But the court’s liberal minority of just three justices penned dissenting opinions that were similarly potent, revealing the sharp divisions on America’s top legal body and also showed their deep concern at the declining health of American civic society and the authoritarian bent of the Trump presidency.
Justice Sonia Sotomayor delivered an acidic sermon against the court’s 6-3 decision to end lower courts’ practice of issuing nationwide injunctions to block federal executive orders, reading her dissent directly from the bench in a move meant to highlight its importance.
The decision is seen as limiting the power of judges to halt or slow presidential orders, even those whose constitutionality has not yet been tested, such as Trump’s attempt to remove the right to automatic US citizenship for anyone born inside US borders.
“No right is safe in the new legal regime the Court creates,” states Sotomayor’s dissent, joined by Justices Elena Kagan and Ketanji Brown-Jackson. “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.”
As opinion season ends in the first months of Donald Trump’s second presidency, the court’s decisions have expanded the power of the presidency and limited the power of lower courts to block Trump’s agenda.
The opinion in the birthright citizenship case,Trump v Casa Inc, in which the court was silent on the underlying question about the constitutionality of Trump’s executive order, nonetheless undermines the rule of law, Sotomayor said.
Even though defending the order’s legality is “an impossible task” given the plain language of the 14th amendment, the court’s opinion means each person must challenge the order individually in states that are not a party to the suit, unless class-action status is granted.
In a concurring dissent, Jackson explained the burden it places on people to defend their rights in court.
“Today’s ruling allows the Executive to deny people rights that the Founders plainly wrote into our Constitution, so long as those individuals have not found a lawyer or asked a court in a particular manner to have their rights protected,” Jackson’s dissent states. “This perverse burden shifting cannot coexist with the rule of law. In essence, the Court has now shoved lower court judges out of the way in cases where executive action is challenged, and has gifted the Executive with the prerogative of sometimes disregarding the law.”
Jackson added ominously, the ruling was an “existential threatto the rule of law”.
Reading from the bench has historically been an uncommon act meant to emphasize profound disapproval of a justice to a ruling. The court’s liberal wing has made it less rare lately, inveighing against profound legal changes wrought by the court’s six-judge conservative bloc.
Other decisions handed down on Friday also permit parents to opt their children out of classroom activities that depict LGBTQ+ characters in books (Mahmood v Taylor), and allow states to require age verification on pornographic web sites (Free Speech Coalition Inc, v Paxton), both decided on ideological lines.
Age verification has already begun to drive porn website operators out of Texas, given a cost estimated at $40,000 for every 100,000 verifications, Kagan noted in her acerbic dissent.
The Texas law creates a barrier between adults and first amendment-protected content that previous supreme court decisions on speech would not have permitted, she noted. Providing ID online is fundamentally different than flashing a driver’s license at a bar.
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“It is turning over information about yourself and your viewing habits – respecting speech many find repulsive – to a website operator, and then to … who knows?” she wrote. “The operator might sell the information; the operator might be hacked or subpoenaed.”
The ruling granting a religious exemption will have a chilling effect on schools, which may strip classroom material of any reference to LGBTQ+ content rather than risk costly litigation, Sotomayor wrote in dissent.
Her dissent highlights the deliberate work done by the Montgomery county school board to create an inclusive curriculum, adding “Uncle Bobby’s Wedding” to its library in 2022. The children’s book, one of five with LGBTQ+ characters, describes a same-sex couple’s wedding announcement and plans.
“Requiring schools to provide advance notice and the chance to opt out of every lesson plan or story time that might implicate a parent’s religious beliefs will impose impossible administrative burdens on schools,” she wrote. “The Court’s ruling, in effect, thus hands a subset of parents the right to veto curricular choices long left to locally elected school boards.”
In three of the five decisions handed down on Friday, that conservative bloc had the majority. But in two cases the conservative bloc split:Kennedy v Braidwood Management,which reversed lower court rulings that declared an appointed board overseeing preventive care under the Affordable Care Act unconstitutional, andFCC v Consumers’ Research,which upheld the constitutionality of fees collected for a rural broadband program.
Each of these cases split conservatives between those who support more expansive executive power – Neil Gorsuch, John Roberts, Amy Coney Barrett – and others at war with the administrative state: Brett Kavanaugh, Samuel Alito, Clarence Thomas.
But collectively, conservatives on the court have continued to upend longstanding precedent, while weakening the legal avenues of challengers to use the courts to defend their rights, the court’s remaining liberal justices lament.
“The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival,” Sotomayor wrote in dissent on the birthright citizenship case. “Today, the Court abdicates its vital role in that effort.”