March 20, 2023: In yet another misuse of the shadow docket, the Supreme Court utilized a once rare and extraordinary procedural measure in Chapman v. Doe, a case touching on abortion rights. Until recently, Missouri abortion law allowed minors to avoid a parental permission requirement by obtaining a judicial bypass. While pursuing a bypass, the plaintiff in Chapman, known as Jane Doe, was incorrectly informed by Michelle Chapman, a clerk, that she must notify her parents of the hearing. As a result, Ms. Doe instead travelled to Illinois for an abortion and later sued Ms. Chapman for violating her right to an abortion under the Fourteenth Amendment by denying her access to a judicial bypass. In response, Ms. Chapman claimed that she was immune from the lawsuit. Neither the district court nor the U.S. Court of Appeals for the Eighth Circuit accepted this claim. Later, both parties agreed to dismiss the case. Still, in 2022, Ms. Chapman appealed to the Supreme Court, challenging whether, after Dobbs, Ms. Doe had a right to an abortion.
Using a Munsingwear vacatur, the Supreme Court issued a procedural order to vacate a circuit court decision denying immunity and sent the case back to the district court with orders to dismiss it as moot. Through this procedure, Ms. Chapman is still able to appeal. While the procedural outcome doesn’t impact access to abortion in Missouri, which currently only allows abortion to save the pregnant person’s life or prevent severe health complications, it is no coincidence that the same court that issued Dobbs has now undermined lower courts who ruled in favor of a minor seeking abortion. In a scathing dissent, Justice Jackson pointed out that judicial decisions are valuable and should not be lightly cast aside through the misuse of procedural decisions. Justice Jackson’s dissent emphasizes that this procedural order is only meant to be used in extraordinary cases to avoid the injustice that could occur if a losing party is unable to appeal a decision that has become moot. Further, she argued that because Ms. Chapman agreed to dismiss the case, this was not an appropriate case for a Munsingwear vacatur. She points out that her fellow justices are too willing to grant requests to nullify rulings issued by lower courts. By doing so, they weaken the strength and respect of lower court decisions, undermining justice.
July 21, 2022: In United States v. Texas, the Supreme Court voted 5-4 to leave in place a Texas district court’s nationwide injunction nullifying the Biden administration’s authority to set immigration policy priorities. The district court decision, handed down by Trump-appointee Drew Tipton, blocks a Department of Homeland Security (DHS) policy dictating how U.S. Immigration and Customs Enforcement (ICE) should use its limited resources. The Supreme Court will hear full arguments in late November, but its vote to keep the injunction in place undermines the longstanding authority of the executive branch to set immigration policy priorities. The decision effectively allows a single Trump-appointed judge to have authority over the entire nation’s immigration policy, creating chaos and difficulty for DHS operations.
This decision marks Justice Ketanji Brown Jackson’s first vote as a member of the Supreme Court; she joined the other three women on the Court in voting to stay the district court’s judgment and allow the Biden administration to implement its policy priorities until the arguments can be heard in full. This decision is a stark reminder of how entrenched the conservative supermajority is and how it will continue to make unfounded and unjust decisions despite Justice Jackson’s presence on the bench.
June 30, 2022: In West Virginia v. EPA, a 6-3 majority formed exclusively by Republican-appointed justices found that the Environmental Protection Agency (EPA) does not have independent authority to cap carbon emissions. The Supreme Court reasoned that imposing carbon dioxide caps was a “major question” and that under the “major questions doctrine,” if the agency does not have clear statutory authorization, then the presumption is that the regulation is impermissible. The Court found that under the Clean Air Act, the EPA does not have clear authorization to impose carbon caps and that the authority to cap carbon emissions is a “decision that rests with Congress itself.” The three liberal justices, dissenting, reiterated the dangers posed by climate change and argued that there is statutory authority for broad EPA regulation under section 111.
This decision is a crucial setback in the fight against climate change and may limit other agencies’ ability to address pressing health and environmental issues. Stripping administrative agencies of the power to regulate carbon dioxide gives Congress, a notoriously slow and gridlocked body, authority to deal with climate change.
June 29, 2022: In a stark example of how the Trump justices have reshaped the judicial landscape, the Supreme Court ruled in Oklahoma v. Castro-Huerta that along with the federal government and tribes, states can prosecute crimes committed by non-Native Americans against Native Americans on tribal lands. The 5-4 decision, written by Justice Kavanaugh, narrowed the Court’s recent decision in McGirt v. Oklahoma (2020) that land in Oklahoma granted to Creek Nation by treaty remains “Indian country” and therefore fully under tribal control. The 5-4 majority in McGirt included Justice Ginsburg while her replacement on the Court, Justice Coney Barrett, joined the Castro-Huerta majority to limit it just two years later.
In his dissent, Justice Gorsuch protested the majority for walking back McGirt. Noting that the federal government promised that tribal land would remain forever free from interference by state authorities, he wrote that “one can only hope the political branches and future courts will do their duty to honor this Nation’s promises even as we have failed today to do our own.”
Kennedy builds on the Court’s recent decision in Carson v. Makin, which compels states to put taxpayer dollars toward religious schools that may discriminate against students. The decision will exclude students whose teachers or coaches decide to lead religious exercises based in faiths different from their own. In the words of Justice Sotomayor, Kennedy “elevates one individual’s interest in personal religious exercise … over society’s interest in protecting the separation between church and state.”
June 28, 2022: In a 6-3 shadow docket decision, a Supreme Court majority composed of exclusively Republican appointed judges reinstated Louisiana’s racially gerrymandered congressional maps. Both the district court, and the Fifth Circuit, the most conservative federal court in the country, found Louisiana’s congressional maps, which created just one Black majority district, to be illegitimate. The Fifth Circuit, following precedent from Gingles, found that Louisiana’s Black population was “sufficiently large and compact” to warrant creating a second predominantly Black district.
Now the Supreme Court, with no explanation, dismissed the Fifth Circuit opinion. The Supreme Court’s use of the shadow docket to circumvent important deliberative mechanisms such as oral arguments and briefings is part of an alarming anti-democratic trend. By granting a motion to stay, the Court’s conservative majority continues to chip away at our most fundamental political rights. The three liberal justices dissented, arguing that the application for stay should not be granted.
June 27, 2022: In Kennedy v. Bremerton, the Trump-appointed justices furthered the Supreme Court’s assault on the separation of church and state by overturning Lemon v. Kurtzman (1971), a decades-old precedent governing the Establishment Clause, and opening the door to government-sponsored prayer in public schools. In Kennedy, a high school football coach refused to stop praying on the 50-yard line after football games, causing his school district to decline to renew his annual contract. Despite a clear violation of the First Amendment’s Establishment Clause, the majority misstated the facts of the case to justify a finding that public school officials have a constitutional right to pray publicly and lead students in prayer during school events. In her dissent joined by the other two liberal justices, Justice Sotomayor noted that the majority is once again ignoring the Court’s precedent without admitting it and giving “short shrift” to the Establishment Clause.
Kennedy builds on the Court’s recent decision in Carson v. Makin, which compels states to put taxpayer dollars toward religious schools that may discriminate against students. The decision will exclude students whose teachers or coaches decide to lead religious exercises based in faiths different from their own. In the words of Justice Sotomayor, Kennedy “elevates one individual’s interest in personal religious exercise … over society’s interest in protecting the separation between church and state.” June 24, 2022: The Supreme Court issued a devastating decision in Dobbs v. Jackson Women’s Health Organization, eliminating the federal constitutional right to abortion. The Court’s ruling overturned Roe v. Wade and Planned Parenthood v. Casey, legal precedents that people have relied on for nearly 50 years. With Roe and Casey no longer in effect, abortion bans and restrictions will immediately take effect in nearly half the states, disproportionately impacting Black and brown women, LGBTQ+ individuals, and other marginalized communities. By decimating Roe, the Court is also opening the door for state legislatures eager to further restrict and ban abortion.
President Trump appointed three of the five justices who made today’s opinion possible: Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. During their confirmation hearings, each of these justices promised to respect the Court’s longstanding precedents protecting the right to have an abortion. They lied. Unfortunately, it’s clear the Court’s ultra-conservative majority won’t stop at reproductive rights. In a concurrence, Justice Clarence Thomas said the Court should reconsider rulings that protect the right to contraception (Griswold v. Connecticut, 1965); the right to same-sex intimacy (Lawrence v. Texas, 2003); and the right to same-sex marriage (Obergefell v. Hodges, 2015).
As the three Democratic-appointed justices wrote in a joint dissent, “ ‘Power, not reason, is the new currency of this Court’s decisionmaking.’” The Court’s conservative justices did this because they could. Justices Breyer, Sotomayor, and Kagan added: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
June 23, 2022: Justice Alito, joined by the Court’s five other conservatives, held in Vega v. Tekoh that individuals cannot sue when police officers violate their Miranda rights. Terrence Tekoh sued a Los Angeles County Sheriff for violating his Fifth Amendment rights by obtaining a written confession, admitted in trial, without informing Tekoh of his Miranda rights. The Ninth Circuit held that the admission of the confession violated Tekoh’s Fifth Amendment rights and that Tekoh could move forward with a §1983 civil rights suit against the officer. Despite Dickerson v. United States (2000) clearly establishing that Miranda is a “constitutional rule,” the Supreme Court majority reversed the Ninth Circuit’s decision. The Court held that “a violation of Miranda is not itself a violation of the Fifth Amendment,” and that people cannot sue officers under §1983 for failing to provide a Miranda warning.
Justice Kagan’s dissent, joined by Justices Breyer and Sotomayor, highlights how the majority departs from precedent. Dickinson refers to Miranda as a “constitutional decision” that cannot “be overruled” by “an Act of Congress,” making it clear that violations of one’s Miranda rights should give rise to a constitutional claim. The majority’s treatment of Miranda, Justice Kagan writes, “injures the right by denying the remedy.”
June 23, 2022: In NYSRPA v. Bruen, the Supreme Court, in a 6-3 majority formed exclusively by Republican appointed nominees, expanded the scope of gun rights by overturning New York’s handgun licensing regime. The century-old regulation made it illegal for those over the age of 16 to carry any handgun without a written license. To receive a handgun license, the individual must demonstrate some “special need for self-defense distinguishable from that of the general community.” The conservative court refused to adhere to a two-step test developed from Heller and McDonald, opting for a one-step test that only asks whether the regulation on firearms is consistent with the Nation’s historical tradition of firearm regulation. The Court concluded that an individual has a right to public, armed self-defense and that New York’s regulation failed the new historical test and was therefore unconstitutional.
The three liberal judges, in a dissenting opinion authored by Justice Breyer, criticized the majority’s exclusive reliance on history and urged the Court to reformulate the constitutional standard to consider the drastic rise in gun violence. This decision significantly limits legislator’s ability to protect our public spaces by restricting a state’s ability to regulate firearms. By changing the future of Second amendment jurisprudence, this decision makes future gun regulations a constitutional uncertainty.
June 21, 2022: In Shoop v. Twyford, a 5-4 decision with Trump-appointed Justices Kavanaugh and Barrett joining the majority, the Court further limited the ability of death row prisoners to challenge their convictions or sentences. In the case, Raymond Twyford sought neuroimaging to show that a traumatic childhood brain injury impaired his cognitive abilities and rendered him “unable to make rational and voluntary choices.” He wanted to use this evidence to challenge his state court conviction and subsequent death sentence. A federal district court ordered the state to transport Mr. Twyford to a medical facility for the imaging, and the U.S. Court of Appeals for the Sixth Circuit affirmed.
Departing from the lower courts, the Supreme Court reversed, finding that federal courts have limited jurisdiction under the All Writs Act to order states to transport prisoners. Chief Justice Roberts ruled that the transport order was not “necessary or appropriate” because Mr. Twyford did not demonstrate that the evidence would be admissible in court— even though the evidence did not yet exist. The three liberal justices dissented on procedural grounds, and Justice Gorsuch wrote a separate dissent based on jurisdiction. This decision makes it more difficult for incarcerated individuals to access resources and challenge their convictions. This is especially alarming considering that approximately six percent of state incarcerated individuals are wrongfully imprisoned.
June 21, 2022: In Carson v. Makin, a 6-3 decision along ideological lines, the Supreme Court eviscerated the constitutional separation of church and state by effectively requiring Maine to use taxpayer money to pay for the religious education of children at parochial schools. Parents of high school students sued the Commissioner of the Maine Department of Education, alleging that the nonsectarian requirement of Maine’s tuition assistance program violated the First and Fourteenth Amendments. In an opinion authored by Chief Justice Roberts, the majority held that Maine’s nonsectarian requirement — intended to ensure the constitutionally-required separation of church and state — in fact violated the Constitution by discriminating based on religion. This decision will have major implications even beyond compelling the state to fund religious institutions, as schools that are openly discriminatory can now receive public funds. The two schools at issue in the case expel students and teachers who do not adhere to evangelical Christianity and do not welcome LGBTQ+ students or teachers, nor straight children of same-sex couples.
Justices Breyer, Kagan, and Sotomayor dissented. First, Justice Breyer criticized the majority for “paying almost no attention” to the words of the Establishment Clause, which prohibits the government from “establishing” a religion. In a separate dissent, Justice Sotomayor highlighted how the conservatives on the Court have turned our nation’s longstanding commitment to separation of church and state into a constitutional violation, noting that the Court has consistently “upended constitutional doctrine” since the addition of the Trump justices.
June 8, 2022: In Egbert v. Boule, a U.S. Border Patrol agent, Erik Egbert, entered Robert Boule’s property without a warrant, then threw him against his car and onto the ground. After Boule complained to the agent’s supervisors, Egbert allegedly retaliated by prompting the Internal Revenue Service and other agencies to audit him. Boule sued Egbert for violations of his First and Fourth Amendment rights. In a 6-3 decision, with two Trump justices in the majority and Justice Gorsuch writing a concurring opinion that advocated for an even more extreme holding, the Court ruled that individuals cannot bring lawsuits against Border Patrol agents because their work inherently implicates national security; therefore, the Court determined causes of action against these agents can only be created by Congress. In a dissenting opinion, the three liberal justices agreed that Boule’s First Amendment claim should be barred but railed against the majority for providing Border Patrol agents with blanket immunity from constitutional claims. Justice Sotomayor observed that “a restless and newly constituted Court” ignores recent jurisprudence and rewrites the law to ensure that victims of violence and constitutional violations by federal agents have no redress.
The implications of this decision are enormous, as the roughly 20,000 U.S. Border Patrol agents across the country can now violate the Constitution, including the Fourth Amendment’s prohibition against excessive force, without fear of a lawsuit. The language of the opinion comes close to preventing lawsuits against other federal officers who defy the Constitution as well.
May 23, 2022: In Shinn v. Martinez Ramirez, the Trump-appointed justices on the Supreme Court continued their crusade to gut important constitutional rights — this time, limiting the Sixth Amendment right to counsel. The case involved two men, David Ramirez and Barry Lee Jones, who were convicted of capital crimes in Arizona state court and sentenced to death. The men appealed their cases in federal court, claiming that ineffective assistance of counsel led to their convictions. Ramirez argued his lawyer failed to present evidence of his low IQ, developmental issues, and a history of abuse, sexual assault, and neglect; Jones argued his lawyer failed to present potentially exculpatory evidence. In a 6-3 decision along ideological lines, the Court ruled that death row individuals cannot present new evidence in their appeals in federal court if previous counsel did not “timely” raise the issue in state court.
This decision makes it more likely that innocent people will remain imprisoned or even face execution, simply because they received inadequate legal representation. As Justice Sotomayor noted in dissent, “The decision is perverse. It is illogical … To put it bluntly: Two men whose trial attorneys did not provide even the bare minimum level of representation required by the Constitution may be executed because forces outside of their control prevented them from vindicating their constitutional right to counsel.” May 16, 2022: In FEC v. Cruz, a 6-3 decision along ideological lines, the U.S. Supreme Court struck down a campaign finance law that limited how much money a candidate could loan his own campaign and later solicit donations to pay back after the election. Sen. Ted Cruz of Texas challenged the law after he had loaned his campaign $260,000 during his 2018 Senate race but was unable to recoup the full amount after his reelection. Chief Justice Robert’s majority opinion, joined by his conservative colleagues, found that the law violated a candidate’s right to engage in political speech. The court held that it is only permissible to restrict political speech, including limitations on fundraising and spending, in order to prevent quid pro quo corruption. Because the government could not point to specific instances of quid pro quo corruption around this law, the Court invalidated the restriction as merely conjectural and not enough to burden the constitution’s protection of political speech.
In dissent, Justice Kagan cautioned that this law protected against a special kind of corruption. By repaying a candidate’s loan after the election, a donor is not simply supporting a candidate’s election, but is in effect directly lining the candidate’s bank account. Further, the restriction limits loan repayments after the election is concluded and thus cannot impact the outcome. Justice Kagan warned that “today’s decision can only bring this country’s political system into further disrepute.”
In Patel v. Garland, the U.S. Supreme Court held the federal courts cannot review the factual findings of an immigration court, even when a resident is deported based on a factual error by that court. The plaintiff, Pankajkumar Patel, had lived in the U.S. for 30 years with his wife and three sons. The U.S. government sought to remove Mr. Patel from the country after he accidentally checked a box affirming citizenship on a Georgia driver’s license renewal form when in fact he was in the process of receiving a green card. The Immigration Judge reviewing his case incorrectly held that Mr. Patel could not have received a driver’s license in Georgia as neither a citizen nor a permanent resident, when in fact state law allows individuals like Mr. Patel to receive a license. The Judge, using this incorrect information, found that Mr. Patel had sought to deceive state officials which made him eligible for deportation.
Justice Barrett’s majority opinion, joined by Chief Justice Roberts and Justices Alito, Kavanaugh and Thomas, held that Congress had barred judicial review of deportation cases such as Mr. Patel’s. In dissent, Justice Gorsuch, joined by Justices Breyer, Kagan, and Sotomayor, noted the majority’s narrow reading of a statute would harm thousands of immigrants seeking lawful residency and “turn an agency once accountable to the rule of law into an authority unto itself.” April 28, 2022: In Cummings v. Premier Rehab Keller, P.L.L.C., a deaf and legally blind woman sued a federally-funded healthcare provider for emotional distress after she was denied a sign-language interpreter. The provider told the plaintiff she could instead communicate by written notes, lipreading, gesturing, or by bringing her own interpreter. In a 6-3 decision, with all three Trump justices in the majority, the Court ruled that emotional distress damages are not available in private lawsuits alleging discrimination under the Rehabilitation Act of 1973 or Affordable Care Act. This ruling means that people who are being discriminated against when they receive medical services from a federally-funded provider will frequently be unable to recover damages, as discriminators often inflict humiliation and stigma rather than purely economic losses. As Justice Breyer noted in a dissent joined by Justices Sotomayor and Kagan, “It is difficult to square the Court’s holding with the basic purposes that antidiscrimination laws seek to serve.”
April 21, 2022: In a 6-3 decision, the Supreme Court reversed a Sixth Circuit ruling granting habeas relief to Ervine Davenport, who was unconstitutionally shackled during his criminal trial. Habeas relief is granted when an incarcerated person proves that their imprisonment is illegal because their arrest, trial, or sentence violated federal law. The Sixth Circuit ordered Michigan to either release or retry Mr. Davenport. The Supreme Court majority, including Justices Barrett, Gorsuch, and Kavanaugh, disagreed. The Trump-appointed justices found that in order to obtain habeas relief, an incarcerated person needs to satisfy both the Brecht test, which the Sixth Circuit applied, and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Justice Kagan dissented, writing that earlier Court habeas rulings had made it “crystal-clear” that because Brecht was more stringent than AEDPA, only the Brecht analysis was required. The decision, Kagan wrote, will create unnecessary work – and confusion – for courts, and could lay the groundwork for a narrowing of habeas review in cases to come.April 6, 2022: In a 5-4 “shadow docket” order, the Supreme Court reinstated a Trump administration rule that undermines the Clean Water Act by limiting the ability of states and tribes to protect their waters. This decision flouts decades of precedent and will harm communities by allowing dangerous projects to get approved without full evaluation of the environmental risks they pose. All three Trump-appointed justices voted to revive the rule, despite there being no evidence that emergency relief was needed. Just days earlier, Justice Barrett said in a speech that Americans should “read the opinion” before making judgments. However, the majority did not even bother to issue a single sentence of explanation. Justice Kagan issued a dissent joined by Chief Justice Roberts, Justice Breyer, and Justice Sotomayor, once again sounding the alarm on the Court’s use of the “emergency docket not for emergencies at all,” but instead to radically change the law without briefing, argument, or justification.March 25, 2022: In January, District Court Judge Reed O’Connor ordered the U.S. Navy to deploy unvaccinated Navy Seals into active duty, a move that commandeers the President’s authority over military matters. On Friday, March 25th, the U.S. Supreme Court blocked this extraordinary order from taking effect. Justice Brett Kavanaugh wrote that it was a “bedrock constitutional principle” that “the President of the United States, not any federal judge, is the Commander-in-Chief of the Armed Forces.” However, fellow Donald Trump appointee Justice Neil Gorsuch joined a dissent by Justice Samuel Alito that would have allowed a limited order to go into effect. If a majority of the justices had agreed with Alito and Gorsuch, the Supreme Court would have put anti-vaccination conspiracy theories above the health and welfare of the nation’s armed forces and usurped the control of troop deployments from the President of the United States to the unelected federal judiciary.
March 23, 2022: In yet another shadow docket decision, the U.S. Supreme Court voided Wisconsin’s newly drawn legislative maps. This ruling continues the Court’s problematic trend of making important rulings with little briefing and no oral argument, via a court mechanism typically used for emergencies. By intervening in the case, the Court’s conservative majority further limited what is left of the Voting Rights Act. After the Wisconsin state supreme court put in place legislative maps preferred by the Democratic governor that added an additional majority black legislative district, Republican legislators asked the U.S. Supreme Court to put their preferred maps in place instead.
In a ruling that offered little explanation or guidance for other legislatures attempting to redraw their own maps, the Supreme Court asserted that the Wisconsin court had failed to justify why drawing an additional black-majority district was necessary under the Voting Rights Act. Justices Sotomayor and Kagan in dissent wrote that the Court’s decision was “unprecedented” and “unnecessary,” noting that their colleagues abruptly intervened to stop Wisconsin from enacting these new maps without full consideration of the case, thereby “further complicating [Wisconsin redistricting] with legal confusion.” After the decision, renowned election law expert Prof. Rick Hasen wrote that “[the Court] continues to chip away at the Voting Rights Act without acknowledging that it is killing off the last major protection for minority voters from discriminatory districting plans.”
March 7, 2022: In a pair of orders, the Supreme Court declined to review challenges by Republican legislators in North Carolina and Pennsylvania to new congressional maps drawn under judicial supervision. In both states, Republican legislators approved congressional maps that heavily benefited Republican candidates. In both cases, the state supreme courts blocked the gerrymandered maps, replacing them with maps drawn by non-partisan redistricting experts. The U.S. Supreme Court’s decision not to intervene allows the states 2022 elections to go ahead using the court-drawn maps.
Concerningly, Justice Neil Gorsuch joined an opinion by Justice Samuel Alito that would have used a dangerous, undemocratic legal doctrine known as the “independent state legislature doctrine” to reinstate the gerrymandered maps. The theory, first elucidated in a concurring opinion in the controversial Bush v. Gore decision, posits that the U.S. Constitution gives state legislatures the sole authority to set rules for federal elections in their states. It suggests that state and federal courts cannot intervene, even if the legislatures pass maps or election rules that violate state constitutions. For now, this radical theory has only been endorsed by four justices on the Court: Justices Alito, Gorsuch, Kavanaugh, and Thomas. However, if Chief Justice Roberts or Justice Barrett side with their fellow conservative justices in future cases on this issue, state legislatures will be left unaccountable regarding election laws, further endangering the voting rights across the nation, and subverting the system of checks and balances that is fundamental to American government.
February 7, 2022: Black Americans make up 27% of Alabama’s population, yet the Republican-controlled legislature packed many of the state’s Black voters into just one of its seven congressional districts. A three-judge district court panel (which included two judges appointed by President Trump) ruled that the map violated Section 2 of the Voting Rights Act and ordered the state to redraw its map with a second majority-Black district. In a 5-4 “shadow docket” decision in Merrill v. Milligan, a Supreme Court majority including all three Trump-appointed justices blocked the lower court order, reinstating the racially gerrymandered map for the upcoming 2022 election. The order itself is a single paragraph with no explanation. The Court’s intervention in this case was so egregious that Chief Justice Roberts — the architect of the Court’s decades-long attack on voting rights — joined the three liberals in dissent. He commended the lower court for having “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
January 27, 2022: In a 5-4 order, Justice Gorsuch and Kavanaugh joined the majority to reverse a decision by the U.S. District Court for the Middle District of Alabama. The January 7 lower court decision granted an injunction to halt the execution of Mathew Reeves, a man on death row with an intellectual disability. The injunction was granted because Reeves’ disability prevented him from understanding that he could have opted-in to a less painful method of execution; because drug companies do not want their products used to execute people, states have turned to unreliable, and more painful, methods. Justice Barrett joined Justices Breyer, Kagan, and Sotomayor to vote to keep the lower court ruling in place. In a dissent, Justice Kagan wrote that “the Court today disregards the well-supported findings made below, consigning Reeves to a method of execution he would not have chosen if properly informed of the alternatives.” Reeves was executed by lethal injection soon after the decision was handed down.
January 13, 2022: In National Federation of Independent Business v. Department of Labor, the Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA) vaccinate-or-test rule for businesses with 100 or more employees. In an unsigned 6–3 opinion, the Court’s conservatives concluded that OSHA, the very agency Congress designed to ensure safe and healthful working conditions for all Americans, cannot require large employers to take steps to protect their own workers because COVID-19 is not an “occupational hazard.” This decision comes amidst a surging pandemic that has killed 850,000 Americans and counting. All three liberal justices dissented, noting that “[u]nderlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?” OSHA estimated the rule would have saved 6,500 lives and prevented 250,000 hospitalizations over six months. Instead, with this ruling the Supreme Court prioritizes conservative ideology over public health and the rule of law.
January 13, 2022: In Biden v. Missouri, the Supreme Court narrowly upheld a rule imposed by the Department of Health and Human Services (HHS) requiring health care workers at facilities receiving federal funding to be fully vaccinated against COVID-19, unless they qualify for a medical or religious exemption. The 5–4 majority held that HHS’s rule “fits neatly within the language of the statute” that allows the agency to protect the “health and safety” of patients at these care facilities. This decision will compel more than 10 million health care employees to get vaccinated, helping protect millions of Americans from the deadly COVID-19 pandemic. Justice Clarence Thomas filed a dissenting opinion that was joined by Justice Alito, as well as Trump-appointed justices Neil Gorsuch and Amy Coney Barrett.
December 10, 2021: In Whole Woman’s Health v. Jackson, the conservative majority refused to halt Texas’s S.B. 8 law and gutted the scope of the abortion providers’ suit. S.B. 8 essentially bans abortion and delegates enforcement to private citizens. Abortion providers sued Texas government officials in August to prevent S.B. 8 from taking effect. In a 5-4 decision, the conservative majority held that providers could not sue most of the state officials, including judges and clerks, who enforce the law; in a separate 8-1 section, the justices held that the providers could only sue medical licensing officials. However, suing medical officials will not provide relief because this will not prevent bounty-hunter lawsuits from being filed. In its decision, the Court made clear that it will not protect the constitutional right to abortion and opened the door for S.B. 8 copycat laws that obstruct other sacred constitutional protections.
December 10, 2021: In United States v. Texas, the Department of Justice sued Texas directly to halt the state’s unconstitutional, anti-abortion S.B. 8 law. In a per curiam decision, with Justice Sotomayor dissenting, the Supreme Court dismissed the suit, ruling that the federal government could not pursue its case to defend the constitutional right to abortion. By allowing the law to remain in effect, the Court is allowing people to pursue bounties on their neighbors’ medical decisions and has effectively ended abortion access in Texas.
November 1, 2021: In Dignity Health v. Minton, the Court upheld a lower court ruling in favor of Evan Minton, a trans man who was denied medically necessary care due to his gender identity. Minton was scheduled to have a medical procedure at Dignity Health but had his appointment canceled after the hospital learned that he was transgender. The ruling allowed Minton’s claim of discrimination under California law to go forward. Dignity Health, a Catholic hospital, claimed that treating Minton would have violated the First Amendment’s Free Exercise Clause. Justices Thomas, Alito, and Gorsuch disagreed and would have granted the petition for a writ of certiorari.
November 1, 2021: The Supreme Court’s six-justice conservative majority upheld a capital punishment in Coonce v. United States, despite the United States government urging the Court to grant certiorari, vacate the judgment below, and remand (GVR). The defendant argued that his execution would violate the Eighth Amendment’s prohibition against cruel and unusual punishment because he has an intellectual disability, and the government conceded that the defendant deserves the chance to demonstrate his disability. Justices Sotomayor, Breyer, and Kagan dissented, with Sotomayor writing that a “GVR was the least the Court could have done to protect this life-or-death interest.”
October 29, 2021: The Supreme Court in Does v. Mills allowed a vaccine mandate for Maine healthcare workers to remain in effect, rejecting an emergency request from workers who argued the mandate violated their constitutional right to the free exercise of religion. In a concurrence joined by Justice Kavanaugh, Justice Barrett wrote that she declined to block the vaccine mandate in part because it came to the Court on the shadow docket, highlighting the fact that she might reach a different result if the case were on the merits. Justice Gorsuch authored a dissent, which was joined by Justices Thomas and Alito. Gorsuch argued that Maine’s mandate unconstitutionally discriminates against healthcare workers with religious objections and that “it borders on the irrational.” The dissent downplayed the threat of the COVID-19 pandemic, which continues to kill over a thousand people in the United States every day.
October 18, 2021: In Rivas-Villegas v. Cortesluna, officers in California shot a man with a “bean bag round” twice at close range because he had a knife protruding from his pants pocket. The officers then kneeled down on the man’s back for eight seconds before handcuffing and arresting him. The plaintiff accused the officers of violating the Fourth Amendment’s prohibition against excessive force, and the officers sought dismissal by asserting qualified immunity. A Supreme Court majority including Justices Gorsuch, Kavanaugh, and Barrett sided with law enforcement, overturning the lower court ruling that had allowed the plaintiff to sue the officers for civil rights violations. The Court’s ruling signals that it remains committed to a very strong shield of qualified immunity for officers accused of police brutality.
October 18, 2021: In Tahlequah v. Bond, a unanimous Court granted qualified immunity to police officers in Oklahoma who fatally shot a man after he allegedly raised a hammer at them. The Supreme Court ruled that the officers’ conduct did not violate the suspect’s constitutional rights, reversing the lower court decision that would have allowed the case to go to a jury. In doing so, the Court raised the bar even higher for victims of unconstitutional conduct to overcome the defense of qualified immunity.
September 1, 2021: In an unsigned one paragraph order, Justices Gorsuch, Kavanaugh, and Barrett denied a request to enjoin enforcement of a Texas law banning abortions after six weeks. Rather than being enforced by public officials, the law is enforced by private citizens who can sue providers or those who “aid and abet” people seeking abortions. Because 85% to 90% of abortions performed in Texas occur after six weeks, the law virtually bans abortions for the over 7 million people of reproductive age in the state. In its order, the Court’s ultraconservative majority claimed that it could not rule on the constitutionality of the law or grant an injunction because of the novel private-citizen enforcement mechanism. Justices Roberts, Breyer, Kagan, and Sotomayor dissented. In her dissent, Sotomayor contended that “presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.” Calling attention to the Court’s use of the shadow docket, Justice Kagan wrote that the decision was “emblematic of too much of this Court’s shadow-docket decisionmaking – which every day becomes more unreasoned, inconsistent, and impossible to defend.”
August 26, 2021: In a per curiumorder, a majority including Justices Gorsuch, Kavanaugh, and Barrett ruled to end the nationwide eviction moratorium enacted during the COIVD-19 pandemic. Because of this decision, the Biden administration will be unable to protect between 6 and 17 million people — mostly in communities of color — who are behind on rent and in danger of eviction. The majority wrote that the Centers for Disease Control and Prevention exceeded its authority by enacting the moratorium and argued that a continuing moratorium would cause irreparable financial harm to landlords. Dissenting, Justice Breyer argued that given the rise of the Delta variant, spiking cases, and the risk of transmission during evictions, ending the moratorium poses the far greater harm.
August 24, 2021: In an unsigned one-paragraph order, a majority including Justices Gorsuch, Kavanaugh, and Barrett refused to prevent a Texas district court from reinstating former President Trump’s “remain in Mexico” policy. The remain in Mexico policy requires migrants seeking asylum in the United States to wait in Mexico for the duration of their legal cases. The decision means that thousands of migrants fleeing gang violence, abuse, and human rights violations will be forced to stay in dangerous encampments at great personal risk. It also forces the United States government to renegotiate the implementation of the policy with Mexico. The district court’s injunction along with the majority’s decision to let the injunction stay in place constitute a significant intrusion on the President’s exclusive power to craft and implement foreign policy.
July 2, 2021: In a 6–3 per curium opinion, Justices Gorsuch, Kavanaugh, and Barrett joined the majority to reverse an Eleventh Circuit decision granting habeus relief to Matthew Reeves, a death-row prisoner who claimed ineffective assistance of counsel. Reeves’s claim was based on his trial attorneys’ failure to hire an expert during sentencing to assess whether he had an intellectual disability. The majority argued that the Eleventh Circuit was incorrect in its lack of deference to Reeves’ trial attorneys and its categorization of the Alabama state court decision. Dissenting, Sotomayor argued that both the Alabama state court and the majority erred in applying the ineffective assistance of counsel standard. Further, Sotomayor wrote that the majority’s decision “continues a troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution.”
July 1, 2021: In Brnovich v. DNC, Gorsuch, Kavanaugh, and Barrett joined a majority of the Court to uphold voter suppression laws in Arizona in an opinion that significantly weakened the Voting Rights Act. Arizona law requires elections officials to throw out ballots, even from eligible voters, if they are cast at the wrong precinct, and prohibits delivering someone else’s ballot if they are unable to do so themselves—provisions that, in their application, have the effect of discriminating against nonwhite voters. The majority of the Court held that such burdens on voting—even if discriminatory—are legal if the impact of that discrimination remains below a certain level, which Justice Kagan noted in dissent “undermines [the Voting Rights Act] and the right it provides.” Taking an even more radical step, Gorsuch also authored a separate concurring opinion to imply his belief that the Voting Rights Act does not even provide a cause of action for voters who face discrimination to sue and protect their rights.
June 29, 2021: Justices Gorsuch and Kavanaugh would have voted to end the federal moratorium on evictions during the Covid-19 pandemic. A majority of the Court denied the Alabama Association of Realtors application for a stay on the moratorium. This decision comes as millions of households are behind on rent payments and alongside scientific evidence that evictions increase the spread of the virus.
June 29, 2021: Justices Gorsuch, Kavanaugh, and Barrett joined a majority of the Court to hold that asylum seekers who re-enter the United States after deportation may be held in detention indefinitely, without potential for release on bond, for the duration of their asylum hearings. In dissent, Justice Breyer argued that the majority misinterprets the relevant statutes as Congress did not intend to “categorically to deny bond hearings to those who, like respondents, seek to have removal withheld or deferred due to a reasonable fear of persecution or torture.”
June 25, 2021: Justice Kavanaugh authored a 5-4 opinion, joined by Gorsuch and Barrett, stripping Congress of its authority to create rights that individuals can have enforced in federal court and gutting consumer protections in the process. Specifically, the ruling significantly limited the class of people with standing to sue TransUnion for inaccurately labeling them as potential terrorists and drug traffickers on their credit reports. As Justice Thomas noted in his dissent, this ruling suggests that the harms suffered by these consumers are “so insignificant that the Constitution prohibits [them] from vindicating their rights in federal court.” In her own dissent, Justice Sotomayor emphasized that this judgment not only harms these particular claimants but threatens the principle of separation of powers in favor of “judicial aggrandizement.”
June 23, 2021: In Cedar Point Nursery v. Hassid, Gorsuch, Kavanaugh, and Barrett joined a majority of the Court to hold that a state law allowing union organizers to talk to employees about unionization on an employer’s property is unconstitutional unless the state financially compensates the employer. This decision penalizes states that make it easier for workers to unionize and discourages the implementation of pro-union statutes and regulations. The decision as a radical deviation from over a century of property law precedent and will threaten dozens of regulations protecting consumers and workers across the country.
June 21, 2021: In Goldman Sachs v. Arkansas Teacher Retirement System, Gorsuch would have held that consumers are required to prove that a corporation’s false statements affected the price of its stock in order to succeed in a securities fraud class action lawsuit. The majority disagreed with his view, and instead held that a corporation’s false statements create a presumption of impact on stock price, with the burden on the corporation to prove otherwise.
June 17, 2021: In Fulton v. City of Philadelphia, the Supreme Court struck down Philadelphia’s requirement that Catholic Social Services certify same-sex couples as foster parents in order to contract with the City as a foster care agency. Justice Gorsuch wrote a separate concurrence to note that he would have taken the opinion further and overruled Employment Division v. Smith, an earlier Supreme Court case which held that neutral and generally applicable laws which incidentally burden religion do not necessarily violate the First Amendment.
June 17, 2021: In California v. Texas, the Supreme Court ruled 7-2 that Texas and its other plaintiff states could not be harmed by the Affordable Care Act’s $0 penalty for individuals failing to obtain health insurance, and therefore lacked standing to sue to overturn the law. Justice Gorsuch joined Alito’s dissent arguing to ignore well-established principles of standing to strip millions of Americans of healthcare.
June 10, 2021: Kavanaugh and Barrett dissented from a 5-4 decision that crimes involving recklessness do not constitute “violent felonies” for the purpose of enhanced sentencing under the Armed Career Criminal Act (ACCA). Kavanaugh’s lengthy dissent wholly disregards the Court’s reasoning that not all crimes are “violent felonies,” and had his view prevailed, mandatory minimum sentences would continue to be imposed for a broad range of conduct less dangerous than the ACCA intended to punish.
May 17, 2021: In Edwards v. Vannoy, Kavanaugh, Gorsuch, and Barrett voted with a majority of the Court to narrowly interpret the retroactivity of the jury unanimity rule established in Ramos v. Louisiana. Kavanaugh wrote that the unanimous jury requirement did not apply retroactively to direct appeals that have already been completed, the retroactivity of Ramos did not apply. Kavanaugh, overturning Supreme Court precedent, also wrote that procedural rules generally do not apply retroactively to a case like Edwards’. As Justice Kagan noted in dissent, this rolled back criminal justice rights, with little legal justification, even though neither party had argued for the position Kavanaugh took.
April 9, 2021: In Tandon v. Newsom, Justices Gorsuch, Kavanaugh, and Barrett joined a majority of the Court to strike down a California order that prohibited or restricted large at-home gatherings to stop the spread of COVID-19. The majority wrote that the order discriminated against religious worship, despite the fact that it applied equally to religious and secular home gatherings. They wrote that because completely unrelated secular activities, like retail shopping and dining, were not subject to the order, it was unconstitutional. As Justice Kagan noted in a scathing dissent, comparing at-home worship to retail businesses, rather than the “obvious comparator” of at-home secular gatherings, the Justices “disregard[ed] the law and facts alike” and “require[d] that the state equally treat apples and watermelons.”
March 25, 2021: In Torres v. Madrid, police officers approached Roxeanne Torres while she was in her vehicle and, mistaking her for a person of interest to a criminal investigation, told her to get out of her car. Since it was nighttime and the officers were wearing dark clothing, Torres thought the officers were carjackers and attempted to drive away; in response, the officers shot Torres multiple times as she fled. A majority of the Supreme Court ruled that the officers use of force against Torres constituted an unlawful seizure, regardless of whether they successfully detained her, but Gorsuch dissented. Relying on a case from 1870, he argued that unless the police take a person “into [their] actual custody,” there is no seizure, and Torres could not sue the officers for violating her Fourth Amendment rights. As the majority noted, Gorsuch’s view contradicts 30-year precedent finding that using force to restrain someone, regardless of whether it is successful, constitutes a seizure.
March 4, 2021: In Pereida v. Wilkinson, Justices Gorsuch and Kavanaugh joined a majority of the Court to rule that an immigrant challenging deportation can be denied relief based on ambiguous or inconclusive records that make it unclear whether the person has committed a “disqualifying crime.” Gorsuch authored the majority opinion and wrote that when the record is inconclusive, it is the immigrant who has the burden of proving that their conviction was for a non-disqualifying crime—even though government entities create and maintain court records and are much more likely to be at fault for errors or ambiguities. This decision reverses precedent in four judicial circuits and makes it substantially more difficult for immigrants to challenge unwarranted deportation.
February 5, 2021: In South Bay United Pentecostal Church v. Newsom, Barrett, Kavanaugh, and Gorsuch joined a majority of the court to block a California law closing indoor worship services in areas with severe COVID-19 infection rates. The decision contradicted the Court’s own ruling from just last year, before the confirmation of Amy Coney Barrett, when a majority upheld similar restrictions in California and other states. Justice Gorsuch would have gone even farther, preventing the state from placing any limitations on capacity or on activities like singing that have been scientifically proven to spread the virus. Even though Gorsuch admitted California has a “compelling interest” in such limitations, he argued that they were unlawful unless they also applied to unrelated secular activities that do not pose the same risks as indoor worship services.
February 3, 2021: Gorsuch and Barrett dissented from a 5-4 decision of the Court allowing a former railroad employee to appeal the denial of his application for disability benefits in federal court. Although the former railroad worker was seriously injured on the job twice during his 15 years of service, his disability claim was denied by the federal agency responsible for allocating benefits to retired or disabled railway workers. Gorsuch and Barrett would have ruled that the agency’s decision to deny and close the employee’s application was not final and, thus, not entitled to judicial review.
January 15, 2021: Gorsuch, Kavanaugh, and Barrett joined a majority of the Court in clearing the way for the Trump Administration to execute the thirteenth person in six months. Dustin Higgins argued that his recent Covid-19 infection had left his lungs so damaged that a lethal injection would cause him to experience “a sensation of drowning akin to waterboarding.” Higgins also challenged the government’s efforts to hastily execute him without following all applicable federal law. As Justices Sotomayor and Breyer explained in their dissents, the majority’s choice to invoke a rarely-used procedure to decide the case before the lower court had even heard arguments reflects a “hurry up, hurry up” judicial approach especially ill-suited for capital cases.
January 12, 2021: Gorsuch, Kavanaugh, and Barrett joined a majority of the Court in denying requests for a stay of the execution of a woman so severely mentally-ill that she couldn’t understand that she was sentenced to die. Lisa Montgomery’s attorneys argued that the execution should be postponed because the Department of Justice failed to give her the required advanced notice of the scheduled execution date and because her bipolar disorder, brain damage, and the effects of her childhood abuse render her so mentally incompetent that to execute her violates the Eighth Amendment prohibition on cruel and unusual punishment. The Supreme Court’s orders make Lisa Montgomery the eleventh person executed by the Trump Administration, her death rushed in the last week before the inauguration of President-Elect Biden, who has pledged to end federal capital punishment.
November 25, 2020: Gorsuch, Kavanaugh, and Barrett joined a majority of the Court to enjoin New York from enforcing numerical capacity restrictions for churches and synagogues that were meant to slow the spread of the COVID-19. In a concurring opinion, Gorsuch even went so far as to suggest that, regardless of the medical evidence, there is “no world” where churches can be subject to capacity limits if essential businesses remain open – seemingly ignoring the fact that New York applied similar or more restrictive limitations on comparable secular activities like concerts, theaters, and sporting events. Chief Justice Roberts criticized Gorsuch’s opinion as “reach[ing] beyond the words” of his colleagues to improperly accuse other Justices of “cutting the Constitution loose.” Justice Breyer’s dissenting opinion further noted that the majority’s logic served to block regulations “crafted based on science and for epidemiological purposes,” placing Justices’ personal assessments of COVID-19 risks over that of medical experts.
November 19, 2020: Gorsuch, Kavanaugh, and Barrett joined a majority of the Court in issuing a one-sentence order allowing the Department of Justice to execute Orlando Hall. The Court lifted a district court’s stay of execution, based on that court’s finding that the government’s proposed method of execution violated its own policies against using pentoarbital, a drug which can cause severe pain before death, without a prescription. Also without discussion, the Court denied Hall’s separate emergency requests for stays of execution which argued first that he, a black man, was improperly convicted by an all-white jury selected in part by a prosecutor who discriminatorily dismissed black jurors in another case; and second, that the DOJ’s decision to shorten the period of time that capital defendants have to prepare clemency applications from 90 to 50 days hampered his attorneys ability to provide effective counsel. Orlando Hall was executed on November 19, 2020, the first federal inmate put to death during a lame duck presidency in over a century.
November 16, 2020: Gorsuch, Kavanaugh, and Barrett refused to reinstate a trial judge’s order requiring a Texas prison for the elderly and disabled to implement basic cleaning and health safety measures to prevent the spread of COVID-19 amongst inmates at the facility. A federal district court found that more than 40% of the prison’s population has tested positive for the coronavirus since April 2020 and 20 inmates have died of the disease. Testimony at trial revealed that prison officials refused to wear masks, provide inmates with hand sanitizer, or even clean living quarters for paralyzed, blind, or otherwise disabled inmates. In dissent, Justice Sotomayor stressed that the conservative majority’s decision to allow prison officials to continue to deprive elderly and disabled inmates of minimum safety supplies and procedures may result in many more lives lost.
October 27, 2020: Gorsuch and Kavanaugh joined a 5-3 majority of the Court, siding with Republicans, to refuse to restore a trial court ruling that would have extended Wisconsin’s deadline for receiving absentee ballots because of the coronavirus if postmarked by election day. Justice Kavanaugh, concurring, emphasized the strong interest in ensuring ballots are received by election day, not just mailed by election day “to avoid the chaos and suspicions of impropriety that can ensure if thousands of ballots flow in after election day and potentially flip the results of an election. Justice Kagan, dissenting, pointed out “there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicious]’ or ‘improp[er] than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”
October 21, 2020: Gorsuch and Kavanaugh joined a majority of the court in siding with Alabama officials who banned curbside voting intended to accommodate people with disabilities and those at risk from the coronavirus. The decision, issued without written opinion and over a dissent from Justices Sotomayor, Kagan and Breyer, blocked a lower court order that sought to make these accommodations available.
October 19, 2020: A deadlocked Supreme Court let stand a Pennsylvania State Supreme Court ruling that requires election officials to count absentee ballots received within three days after Election Day. Gorsuch and Kavanaugh joined Thomas and Alito in indicating they would have granted the Republicans’ request to hear the case.
October 5, 2020: Gorsuch and Kavanaugh joined a majority of the Court, siding with Republicans, to restore a South Carolina requirement that absentee ballots be signed by a witness. A lower court that ruled that the legislature was wrong to retain the requirement during the pandemic. A majority of the Court held that those ballots already cast would be counted, but Gorsuch, joining Thomas and Alito, would have permitted the state to reject even those ballots already cast.
August 13, 2020: Gorsuch dissented from an order of the Court that rejected Republican Party efforts to block a consent decree in Rhode Island waiving requirements that a voter gets two witnesses, or a notary public, to sign their absentee ballot.
August 11, 2020: Gorsuch and Kavanaugh joined a majority of the court in staying a trial judge’s order that extended, due to the pandemic, the deadline for a reform group to collect enough signatures to add an initiative to the November ballot. The initiative at issue would establish an independent commission for redistricting.
August 5, 2020: Gorsuch and Kavanaugh joined a 5-4 order staying a trial judge’s order that had required the Orange County Jail to take health measures to address a coronavirus outbreak. Justice Sotomayor, dissenting, noted that recently the jail reported 15 new cases in a single week and the jail, which housed more than 3,000 pretrial detainees at the time of the lower court injunction, had witnessed an increase of more than 300 cases in a little over a month. She said local officials “failed to safeguard the health of the inmates in its care.”
July 31, 2020: Gorsuch and Kavanaugh joined a 5-4 order that allowed the Trump Administration to continue to spend federal funds on a border wall while a legal challenge to the wall continues; even though a lower court had found that the Administration illegally diverted money to the project that was not authorized by Congress.
July 14, 2020: Gorsuch and Kavanaugh joined a 5–4 unsigned opinion allowing the Trump Administration to resume federal executions for the first time in 17 years. The opinion was issued at 2:00 AM, just hours after the D.C. Circuit had denied the Trump Administration’s request to reverse a district court order staying the execution and expediting briefing. Shortly after the Supreme Court’s opinion, Daniel Lewis Lee was executed. As Justice Sotomayor noted in dissent, “The Court hastily disposes of respondents’ Eighth Amendment challenge to the use of pentobarbital in the Federal Government’s single-drug execution protocol.” She added, “because of the Court’s rush to dispose of this litigation in an emergency posture, there will be no meaningful judicial review of the grave, fact-heavy challenges respondents bring to the way in which the Government plans to execute them.”
July 9, 2020: Kavanaugh dissented from a 5-4 decision of the Court that upheld the sovereignty of the Muscogee (Creek) Nation over land in Oklahoma that had been given to the tribe by Congress pursuant to a Treaty in 1833. Kavanaugh joined Roberts’ dissent, which argued that the state of Oklahoma has jurisdiction over the land, even though, as Gorsuch pointed out in the majority opinion, only Congress has the power to disestablish a reservation, and it has not done so.
July 8, 2020: Kavanaugh and Gorsuch joined a decision of the Court that ruled that employment nondiscrimination laws do not apply to religious organizations when it comes to any employee they might deem a “minister,” including teachers who provide religious instruction. The decision upheld the firing of two Catholic elementary school teachers, one for her age and the other for seeking treatment for breast cancer. This ruling clears the way for religious organizations to discriminate against employees in ways that are prohibited by federal law.
July 8, 2020: Kavanaugh and Gorsuch joined a decision of the Court that upheld the Trump administration’s guidelines allowing employers to refuse to cover employees’ contraception if they have a religious or moral objection. This vastly expands a previous exception made by the Court, which allowed religious groups to opt out of contraception coverage. As a result of this ruling, 70,000 to 126,000 people could lose contraception coverage from their employers.
July 2, 2020: Kavanaugh and Gorsuch joined a 5–4 order of the Court blocking a lower court ruling allowing curbside voting and waiving absentee ballot requirements during the COVID-19 pandemic in Alabama. U.S. District Judge Abdul Kallon had issued a preliminary injunction after finding that Alabama’s election rules will cause sick or elderly voters to “likely face a painful and difficult choice between exercising their fundamental right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections.”
June 30, 2020: Kavanaugh and Gorsuch joined a 5–4 decision of the Court that held that if a state funds private schools or education programs, it must also fund religious school programs. The decision effectively overturns 37 states’ constitutions prohibiting state funding to sectarian institutions. This decision not only undermines the Constitution’s Establishment Clause, but further endangers public school funding. Gorsuch also joined a concurrence by Justice Thomas suggesting that the Establishment Clause does not apply to states.
June 29, 2020: Kavanaugh and Gorsuch dissented from a 5-4 decision of the Court that struck down a Louisiana law that would require abortion providers to have admitting privileges at local hospitals. Despite the fact that the law was identical to a Texas law that the Supreme Court struck down in 2016, Kavanaugh and Gorsuch argued that the law did not violate the constitutional right to an abortion. Had Kavanaugh and Gorsuch’s view prevailed, all but one abortion clinic in Louisiana would have closed.
June 29, 2020: Kavanaugh and Gorsuch joined a 5-4 majority to rule that the structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional. This clears way for the president to fire the director of the CFPB with or without cause, vastly expanding presidential power over an independent agency that was established to protect consumers in the financial marketplace from unfair, deceptive, or abusive practices in the wake of the 2008 financial crisis.
June 25, 2020: Gorsuch and Kavanaugh joined the majority of the court in ruling that asylum seekers cannot seek judicial review if their asylum claims are denied. This allows the Trump administration to speed up the deportation of asylum seekers who fear persecution in their home country. In dissent, Justice Sotomayor wrote that the ruling “handcuffs the judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers.”
June 18, 2020: Gorsuch and Kavanaugh dissented from an opinion by Chief Justice Roberts, in which the Court, 5-4, ruled that the Trump Administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedure Act. The majority held that, before deciding to end the program, the Administration should have at least considered the hardships rescission would impose on DACA recipients, their families, and employers; and whether the families and businesses impacted by the decision had legitimately relied on the program’s assurances. If Gorsuch’s and Kavanaugh’s views had succeeded, Trump would have been able to deport 700,000 Dreamers, young undocumented immigrants who came to the U.S. as children.
June 15, 2020: Kavanaugh dissented from a 6-3 decision of the Court holding that an employer who fires, refuses to hire, or otherwise discriminates against an employee for being lesbian, gay, bisexual, transgender, or queer (LGBTQ) engages in sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964. As the majority noted, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Contrary to the plain terms of the statute, however, Kavanaugh would have interpreted Title VII’s prohibition of sex-based discrimination to allow discrimination based on sexual orientation and gender identity. He called the majority opinion “not just a mistake of language and psychology, but also a mistake of history and sociology.” Had Kavanaugh prevailed, millions of LGBTQ people across the country could have been legally discriminated against by their employers.
June 15, 2020: Kavanaugh joined Thomas’s dissent arguing that the Supreme Court should hear a constitutional challenge to New Jersey’s handgun permit requirements. The dissent referred to New Jersey’s law as a “near total prohibition,” and stated that the case was an opportunity for the Supreme Court to “acknowledge that the Second Amendment protects the right to carry in public.” In joining the dissent, Kavanaugh once again made clear his desire to constrain the ability of states and localities to protect its residents from gun violence.
June 15, 2020: Gorsuch joined Alito’s dissent from a ruling that found that Terence Andrus, a death row inmate in Texas, had received ineffective assistance from counsel after his lawyer had failed to review and present an “abundant” amount of mitigating evidence. The omissions included evidence about his mother’s drug addiction and prostitution, his troubled childhood, and his own struggles with addiction and serious mental health issues. The majority wrote that it was “unclear” if the Texas Court of Criminal Appeals (“CCA”) had properly reviewed Andrus’ claim of ineffective counsel in light of this compelling evidence. According to Gorsuch and Alito, however, the CCA had “clearly” decided the issue of prejudice. The dissent also argued that the CCA’s rejection of Andrus’ claim was proper because the mitigating evidence did not create a “substantial likelihood” that “one of the jurors who unanimously agreed on his sentence would not have done so if his trial counsel had presented more mitigation evidence.”
June 1, 2020: In an opinion by Kavanaugh and joined by Gorsuch, the Court, 5-4, held that participants in a defined-benefit retirement plan lacked standing to sue the plan for mismanagement. As a result, James Thole and Sherry Smith, retirees from U.S. Bank, could not sue U.S. Bank for breaching their duties of loyalty and care, which caused the plan to lose more than $748 million. As Justice Sotomayor wrote in dissent, “The Court holds that the Constitution prevents millions of pensioners from enforcing their rights to prudent and loyal management of their retirement trusts. Indeed, the Court determines that pensioners may not bring a federal lawsuit to stop or cure retirement-plan mismanagement until their pensions are on the verge of default. This conclusion conflicts with common sense and longstanding precedent.
June 1, 2020: A dissent written by Kavanaugh and joined by Gorsuch argued in favor of allowing a California church to be exempt from public health restrictions mandated in response to the COVID-19 pandemic. Kavanaugh argued that it was “indisputably clear” that the states requirement that churches be limited to 25% capacity was a violation of the First Amendment because it didn’t apply to “comparable” secular businesses, including “supermarkets,” “retail stores,” “bookstores,” and “cannabis dispensaries.” As the majority explained, the restrictions were justified by “a highly contagious and often fatal disease for which there presently is no known cure,” and “[s]imilar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances[.]”
April 27, 2020: In New York State Rifle & Pistol Assoc. Inc. v. City of New York, the Court, 6-3, dismissed as moot a challenge to a New York City law that severely restricted the transport of firearms outside the home. After the Supreme Court agreed to hear the appeal, the City had repealed the law. Gorsuch, along with Alito and Thomas, would have found the lawsuit not moot, and invalidated the law. Kavanaugh concurred that the suit was moot, but made clear (as he had previously while on the D.C. Circuit) that he is prepared to constrain the ability of states and localities to protect its residents from gun violence.
April 23, 2020: In an opinion written by Kavanaugh and joined by Gorsuch, the Supreme Court issued a decision that makes it easier for the Trump administration to deport permanent legal residents who have committed minor crimes in the U.S. The case involved Andre Martello Barton, a 42-year-old repair shop manager and father of four, who the government detained and sought to deport because he had been convicted for drug possession ten years earlier. Kavanaugh and Gorsuch ruled that he could not apply for cancellation of deportation.
April 23, 2020: Gorsuch dissented from a 6-3 decision of the Court holding that the Clean Water Act’s safeguards against facilities releasing pollutants into bodies of water like rivers, lakes, and oceans also applies to groundwater if the groundwater carries the pollutants to those same locations. Gorsuch would have created a massive loophole that would have permitted dangerous contamination of the nation’s water.
April 6, 2020: On the eve of the Wisconsin primary, Gorsuch and Kavanaugh joined a 5-4 majority to reverse two lower courts that had ruled to extend the deadline for absentee ballot submission in order to allow thousands of people to vote by mail during the COVID-19 pandemic. As a result of the last minute change, thousands of people that had submitted their absentee ballots in reliance on the lower court rulings were disenfranchised, and others were forced to risk their health and safety to go the polls.
March 23, 2020: In an opinion written by Gorsuch and joined by Kavanaugh, the Supreme Court issued a decision weakening Section 1981, enacted after the Civil War in 1866, that prohibits discrimination on the basis of race, color and ethnicity when making and enforcing contracts. Gorsuch’s decision imposes a burdensome pleading standard that will make it more difficult for victims of discrimination to enforce the law.
February 25, 2020: Gorsuch and Kavanaugh joined the 5-4 majority and held that the family of a Mexican teenager playing with friends along the U.S. Mexico border could not pursue claims for damages after a U.S. patrol agent, in violation of instructions controlling his office and situated on the U.S. side of the border, shot and killed the youth on the Mexican side. At the time of the incident, the officer did not know whether the boy he shot was a U. S. national or a citizen of another country.
Gorsuch also joined Thomas’s concurrence and argued that “the time has come to consider discarding” a 1971 decision – Bivens v. Six Unknown Named Agents – that held that injured plaintiffs could pursue claims for damages against U.S. officers for violating the Constitution.
February, 24, 2020: Justice Gorsuch joined Justices Alito and Thomas in calling on the Court to reverse a 1977 decision to require businesses to accommodate religious employees who refuse to perform certain duties because of religious beliefs.
February 21, 2020: Justices Gorsuch and Kavanaugh joined a 5-4 Court majority to allow an immigrant wealth test to go into effect, reversing an injunction put in place by a lower court while litigation proceeded. Justice Sotomayor, joined by Justices Ginsburg, Breyer and Kagan, dissented. Justice Sotomayor argued that cases have repeatedly been rushed to the Court without “being ventilated fully in the lower courts,” and that the Court majority was too often “putting a thumb on the scale in favor” of the federal government.
December 6, 2019: Justices Gorsuch and Kavanaugh joined Alito’s statement arguing that the Trump Administration “has shown that it is very likely to prevail” in its attempt to execute four federal prisoners. While they joined the rest of the Court in denying the DOJ’s attempt to quickly bypass review at the Appeals Court level, they still made clear their belief that the Trump DOJ should win on the merits and ultimately proceed with the execution of these four men.
November 25, 2019: Kavanaugh wrote that Gorsuch’s decision in Gundy v. U.S., “may warrant further consideration in future cases,” signaling his support for reviving the non-delegation doctrine. Reviving the doctrine would deprive Congress of the essential authority to empower agencies to effectively implement and enforce critical statutes that protect everyday Americans, from ensuring financial stability to protecting clean air and water. The doctrine was last used successfully in 1935 by a famously reactionary Court majority bent on invalidating the New Deal.
September 11, 2019: Gorsuch and Kavanaugh joined a majority of the Court to allow nationwide enforcement of a Trump Administration rule that prevents Central American immigrants from seeking asylum in the United States.
June 27, 2019: Contrary to a majority of the Court, Gorsuch and Kavanaugh would have allowed the Trump Administration to proceed with its citizenship question on the Census, justified by what Chief Justice Roberts called a “contrived” reason, that would result in a severe undercount of minorities and deprivation of resources and political representation for many marginalized communities.
June 27, 2019: Gorsuch and Kavanaugh joined the other Republican nominated justices to hold that political gerrymandering cases can never be challenged in federal court, handing a significant victory to Republicans who have manipulated gerrymandering to entrench themselves in power, often contrary to the clear desires of voters, and dilute the vote of Democrats, persons of color and Latinos.
June 21, 2019, Gorsuch and Kavanaugh joined a 5-4 majority of the Court to overturn a 34 year old precedent that had required property owners to go through state courts before taking claims for compensation, challenging land use, zoning and local regulations, to federal court under the Fifth Amendment. Justice Kagan wrote in dissent that “If that is the way the majority means to proceed—relying on one subversion of stare decisis to support another—we may as well not have principles about precedents at all.
June 21, 2019, Gorsuch alone joined Justice Thomas’s dissent from the Court’s decision reversing Curtis Flowers’ conviction and holding that prosecutors improperly excluded African-Americans from the jury. In a combined six trials, Mississippi had used peremptory challenges to strike 41 of the 42 prospective African Americans jurors that it could have struck.
June 20, 2019: Gorsuch, dissenting in a challenge to the Sex Offender Registration and Notification Act, made clear he would reinvigorate the non-delegation doctrine – last used successfully in 1935 by a reactionary Supreme Court majority bent on invalidating the New Deal. Gorsuch would deprive Congress of authority essential to empower agencies to effectively implement and enforce critical statutes that protect the public in countless areas.
June 20, 2019: Gorsuch, in a concurrence to the Court’s decision that a Peace Cross memorial on government land does not violate the Constitution, argued that for public displays of religion, Americans should be prohibited from suing the government to enforce the Establishment Clause of the First Amendment.
May 13, 2019: Gorsuch and Kavanaugh joined a 5-4 majority of the Court holding that states cannot be sued in courts of other states without their consent. In doing so, the Court overturned a 40 year old precedent. Justice Breyer, in his dissent, noted: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
April 24, 2019: Gorsuch and Kavanaugh joined a 5-4 majority of the court to give businesses more power to force workers and consumers into individual arbitration proceedings, rejecting the ability of 1,300 employees pressing their common claims in arbitration together as a class, even though the arbitration agreement the workers signed did not explicitly ban class actions.
March 29, 2019: Gorsuch was just one of two justices to dissent from an order of the Court staying the execution of a Buddhist prisoner after Texas officials refused to let his Buddhist priest be present in the execution chamber at the moment of his death.
March 27, 2019: Gorsuch dissented from a 6-2 ruling in favor of an SEC enforcement action against investment banker Francis Lorenzo over false and misleading statements Lorenzo disseminated to potential investors in a company. The e-mails Lorenzo sent described the company as having assets of $10 million when Lorenzo knew the real figure was $400,000. Justice Kavanaugh did not participate in the Court’s decision because he had previously ruled against the SEC in the matter when serving on the D.C. Circuit.
March 19, 2019 – Gorsuch and Kavanaugh held that the government could detain immigrants awaiting deportation indefinitely (even for years), after they are released from criminal custody, without a bail hearing.
February 27, 2019 – Gorsuch joined Justice Thomas in urging the Court to reconsider Gideon v. Wainwright, the 1963 ruling that guarantees criminal defendants a lawyer even if they can’t afford it.
February 27, 2019 – Gorsuch dissented when the Court held that an inmate suffering from dementia may not be executed if his disease is so severe that he is unable to understand the reason for his punishment.
February 7, 2019: Neil Gorsuch and Brett Kavanaugh voted to allow Louisiana’s law, identical to the law in Texas declared unconstitutional in Whole Woman’s Health v. Hellerstedt, that would close some of the last three abortion clinics in the state, to go forward. A majority of the court stayed the law pending appeal. Kavanaugh wrote a dissent explaining why the law should be allowed to move forward, “an opinion” one author wrote, that should not be taken as anything less than a declaration of war on Roe v. Wade.”
February 7, 2019: Neil Gorsuch and Brett Kavanaugh voted to allow the execution of a Muslim inmate in Alabama to take place even though the state refused to let an imam be present in the death chamber.
January 22, 2019: Gorsuch and Kavanaugh voted to allow President Trump’s ban on transgender people serving in the military to go into effect while the policy was challenged in court.
December 10, 2018: Neil Gorsuch joined Justices Alito and Thomas in dissenting from the Court’s decision not to hear a lower court case that had invalidated state actions that defunded Planned Parenthood.
October 9, 2018: Neil Gorsuch voted to allow North Dakota to make it harder for Native Americans to vote if they used a PO Box, which is mandated by the US Post Office.
June 27, 2018: Neil Gorsuch, in Janus v. AFSCME, voted to overturn 40 years of precedent in order to weaken labor unions.
June 26, 2018: Neil Gorsuch joined the other conservative Supreme Court justices in striking down California’s disclosure laws for fraudulent “crisis pregnancy centers” as unconstitutional compelled speech. Justice Breyer, in his dissent, pointed out how the decision “radically change[d] prior law.”
June 26, 2018: Neil Gorsuch voted to uphold President Trump’s Muslim Ban.
June 25, 2018: Neil Gorsuch, in Abbott v. Perez, rejected attacks on Texas’s racially discriminatory redistricting. Gorsuch joined Justice Thomas’s concurrence saying that the Voting Rights Act “does not apply to redistricting,” despite numerous cases that hold otherwise. Without briefing or argument, Gorsuch would have gutted the Voting Rights Act’s protections against racial discrimination.
June 11, 2018: Neil Gorsuch joined conservative majority, in Husted v. A. Philip Randolph Institute, to allow Ohio to target infrequent voters for removal from the voter rolls and to deprive them of the fundamental right to vote.
June 4, 2018: Neil Gorsuch ruled against the rights of LGBTQ Americans in Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission.
May 21, 2018: Neil Gorsuch, in Epic Systems v. Lewis, made it harder for victims of wage theft to hold their employer accountable under the National Labor Relations Act.
October 3, 2017: Neil Gorsuch, in an oral argument, questioned the essential democratic principle of “one man, one vote.”
June 26, 2017: Neil Gorsuch dissented in Paven v. Smith, in which the Court struck down an Arkansas law that treated same-sex couples differently from opposite-sex couples on their children’s birth certificate.
