The swearing in of Judge Ketanji Brown Jackson onto the U.S. Supreme Court makes two firsts for the high court: she is the first Black woman to be a justice, and the high court has four female justices for the first time in history. The 116th justice, she replaces Stephen Breyer who retired just before her being seated. Jackson was appointed in February and faced rugged confirmation hearings, rife with racism and transphobic questions and statements from Republican senators. The 53-47 vote approving her appointment was largely on party lines. Her swearing-in came immediately after the high court announced a large number of controversial rulings, many of them removing the rights of people in the U.S. [Photo: Jackson takes a judicial oath from Breyer, right, while her husband, Patrick Jackson, holds two bibles.]
On the last day of June, the activist conservative Supreme Court completed its release of opinions, promoting guns, opposing pro-choice, and supporting other pro-death positions. As the six Supremes twist the Constitution for their own purposes, they following their only rationale: they can do it.
Three of this week’s decisions:
West Virginia v. EPA: Like the multiyear strategy by GOP officials, conservative legal activists, and funders to rewrite law in Roe v. Wade, the GOP-appointed justices curbed the EPA’s ability to limit greenhouse gas emissions from existing power plants by ruling that the EPA lacks broad authority to shift energy production from coal-burning power plants to cleaner sources such as solar and and power. As Justice Elena Kagan said in her dissent, the majority didn’t even “see what the new rule says” before ruling. In fact, there was no rule after the D.C. Circuit Court rejected one from Dictator Donald Trump (DDT). Kagan also wrote:
“The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening.”
Kagan noted that the conservatives’ impositions on EPA’s authority “fly in the face of the statute Congress wrote.” The majority stated that “it is simply ‘not plausible’ that Congress enabled EPA to regulate power plants’ emissions through generation shifting. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the ‘best system of emission reduction’ for power plants.” Regarding the conservatives’ claim that they are textualists, she wrote, “The current Court is textualist only when being so suits it.”
The current court examines an executive branch policy that was never enacted and follows this court’s pattern of obstructing EPA’s efforts, beginning with staying the Obama administration’s Clean Power Plan—an unprecedented action. This rule had set a goal for each state to limit carbon emissions but permitted states to determine how to meet those goals.
The decision is dangerous not only for refusal to delay climate warming in this one respect but also denial of the EPA ability to fight the climate crisis overall. The Clean Air Act, originally signed by President Lyndon Johnson and amended by presidents of both parties, has saved “millions of lives and trillions of dollars.” According to experts, the ruling can set the U.S. back years and have deadly, costly impacts. About 25 percent of planet-warming greenhouse gas emissions come from generating electricity with coal about 20 percent of U.S. electricity.
According to Kagan, the majority isn’t following precedent but making up justifications. “The Court has never even used the term ‘major questions doctrine’ before.” This ruling states that biggest issues should be settled by Congress, not agencies, with no definition for the biggest issues. Justices assigned technical decisions to unknowledgeable lawmakers instead of experts. The activist conservative justices could also apply the “Major Questions Doctrine” to all areas such as health, safety, and consumer protections. In another area, the six Supremes could block IX regulations, such as handling sexual misconduct allegations.
Noted legal expert Rick Hasen wrote about how the self-identified “textualists” deviate from valid textual analysis, proving Kagan’s point about the new opportunist “textualists.” In West Virginia, they failed to use the words of a statute in context with surrounding text, to read punctuation and grammar, and to examine dictionaries and other literature to determine meaning. Hasen wrote, “Instead, the Justices pull a rabbit out of a hat and avoid the words of the statute almost in their entirety.” The justices’ “substantive cannon … comes from the value judgments of the conservative Justices and from nowhere else. These justices are skeptical of broad administrative power, and of executive power generally. These justices know that in a closely divided Congress, its rulings like this will stymie legislative action on issues like climate change or preventing the spread of Covid. And they are fine with that… So much for honest textualism.”
Ardoin v. Robinson: The six Supremes blocked a district court’s order requiring the Louisiana legislature to draw new congressional maps that included a second majority-Black district. The lower court found that the original map likely violates Section 2 of the federal Voting Rights Act. The justices put the challenge to the map on hold until deciding a similar dispute involving Alabama redistricting. With the oral argument on October 4, the old racist maps will obviously be used in the 2022 general election. Louisiana’s Democratic Gov. John Bel Edwards had vetoed the original map, but the legislature overrode him. Blacks comprise almost one-third of the state’s population, but the Supreme Court map has only one of six districts with a majority of Black voters.
On June 6, a federal judge agreed the challengers had a good case and told the legislature to draw a revised map for two majority-Black districts. Louisiana’s secretary of state Kyle Ardoin asked the 5th Circuit Court freeze the judge’s order, but a three-judge panel with appointments by Ronald Reagan, Barack Obama, and Donald Trump rejected the request. Ardoin appealed, and the panel set oral arguments for early July. On June 17, however, Ardoin asked the Supreme Court to put the district court’s order on hold by June 20, claiming the 5th Circuit Court’s refusal had thrown the state “into divisive electoral pandemonium” and created “confusion statewide, all of which undermines confidence in the integrity of upcoming congressional elections.” He added that the “racial gerrymander … is particularly ‘odious.’”
Early voting doesn’t begin until October, over two months away, and the original map is the one that is racially gerrymandering. Yet the six Supremes bypassed the Court of Appeals to ignore a very conservative panel of judges and violate a law. The one-page order from the six Supremes provides no explanation of why they stripped half the Black representation in the U.S. House of Representatives.
Oklahoma v. Castro-Huerta: Oklahoma—and perhaps other states—now have the authority to prosecute non-Native people committing crimes against a Native person on tribal lands. This conservative majority was only 5-4 with Neil Gorsuch joining the three “liberal” justices. Gorsuch wrote that the Cherokee were promised they would be free from state interference when they were exiled to Oklahoma:
“Where this Court once stood firm, today it wilts. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.”
In 2015, Oklahoma state prosecutors charged Victor Castro-Huerta for the malnourishment and neglect of his five-year-old disabled stepdaughter and sentenced him to 35 years in prison. Castro-Huerta is not Native, but his stepdaughter is. The abuse occurred on the Cherokee Reservation. According to the Supreme Court opinion in McGirt v. Oklahoma (2020), Castro-Huerta could be only federal prosecuted.
The new decision limits McGirt, which declared much of eastern Oklahoma an American Indian reservation and blocked the state from prosecuting Native Americans on these lands which includes much of Tulsa. Instead, offenders are prosecuted in either tribal or federal court. The state is unable to “prosecute anyone for crimes committed on tribal land if either the victim or perpetrator is Native American.” Oklahoma overturns part of McGirt with the opinion that the state can intervene when victims are tribal members.
Native American rights advocate Gentner Drummond won the June 28 GOP primary for Oklahoma AG by defeating John O’Connor, Gov. Kevin Stitt’s choice who he had appointed last year for AG. Drummond had said that he was “not in favor of ripping [away] Native Americans’ rights they have been granted by treaty.” O’Connor called for disestablishing the six recognized Indian Nations in eastern Oklahoma. Drummond also called O’Connor Stitt’s personal attorney, leaving none for Oklahoma.
The ruling applies to all states if Congress doesn’t pass a law opposing that action for a given tribe of reservation. The result is a massive disruption of Indian Country criminal justice, including tribes’ prosecuting non-Indians for intimate partner violence and child abuse. The dissent stated that Congress could easily use a quick reversal as it did in Ledbetter v. Goodyear Tire & Rubber Co. (2007).
Lobbyist Grover Norquist said:
“My goal is to cut government in half in twenty-five years, to get it down to the size where we can drown it in the bathtub.”
The six Supremes have the same goal for the Constitution, and they’ll do it in a much shorter time.
To be continued.