Confirming fears progressive critics shared ahead of the confirmations of all three U.S. Supreme Court Justices appointed by former President Donald Trump, an analysis published Friday details the devastating impact of having a GOP supermajority on the nation’s highest court.
“The 2020-2021 term that just ended shows that our rights are not safe at the Supreme Court, and that we must work to change the makeup of the court,” warns the progressive advocacy group People For the American Way (PFAW) in its latest annual report.
This is the first term that includes Justice Amy Coney Barrett, who Trump appointed after the death of Justice Ruth Bader Ginsburg last year. The other two Trump appointees are Justices Brett Kavanaugh and Neil Gorsuch.
“This Supreme Court is dominated by Trump-appointed justices, with predictably disastrous results for voting rights as well as workers, consumers, and immigrants this term,” said PFAW president Ben Jealous in a statement Friday.
“The harmful rulings coming out of this court make it critical that Congress pass legislation to protect voting rights and shore up our democracy,” Jealous added. “We also have to build a strategy to reinforce the importance of fair courts and fair-minded judges, so we can counter the decades-long efforts by the far right to pack our courts, including our Supreme Court, with ultraconservative judges.”
PFAW’s analysis came just a day after a pair of 6-3 SCOTUS rulings on Arizona’s voting restrictions and California’s dark money disclosure rules that led Senate Majority Chuck Schumer (D-N.Y.) to dub Thursday “one of the darkest days in all of the Supreme Court’s history.”
As Paul Gordon, PFAW senior legislative counsel and the main author of the report, put it: “This Supreme Court term wrapped up with a one-two punch to voting rights and our democracy.”
Those cases—Brnovich v. Democratic National Committee and Americans for Prosperity Foundation v. Bonta—are just two of several that PFAW highlights as examples of the six right-wing justices harming the American public and democracy.
According to PFAW:
In this term, the court in some cases bypassed controversial issues and reached surprising compromises. For instance, the justices avoided ruling on the merits of the challenge to the Affordable Care Act, and they issued a narrow ruling in a case that had threatened to let religious liberty be used as a license to discriminate against LGBTQ+ people.
Yet in other cases, the ultraconservatives are clearly taking full advantage of their ill-gained majority. They have continued to abet Republican efforts to make it harder for popular majorities to vote them out of office through free and fair elections; let racial injustice fester in the criminal justice system; continued to give special rights to religious organizations far beyond what the Constitution contemplates; made life harder for undocumented immigrants trying to exercise their legal rights; advanced their agenda to weaken Congress and undo the New Deal; and reinterpreted the Constitution to give corporations a new weapon to neutralize ordinary health and safety regulations.
The report’s criminal justice section points out that in Edwards v. Vannoy, “the far-right justices made it easier for states to keep people in prison even when the procedures used to convict them are later deemed unconstitutional.”
The 6-3 right-wing majority also “abandoned two recent precedents that protected minors from unconstitutionally excessive prison sentences” in Jones v. Mississippi.
In Johnson v. Guzman Chavez, Barrett, Gorsuch, and Kavanaugh “cast deciding votes in a 6-3 decision to reverse a lower court and ruled that the government can indefinitely detain refugees, who are seeking through sometimes lengthy proceedings to avoid being returned to their home countries because of a reasonable fear of torture or persecution, without even a bond hearing.”
The trio of Trump justices also “cast deciding votes to invalidate part of a congressional law that provides for the appointment of independent patent judges in cases concerning the reconsideration of patents.” That case, United States v. Arthrex, was a 5-4 split.
TransUnion LLC v. Ramirez was another 5-4 decision enabled by the Trump justices. The court’s majority “made it much harder for victims of corporate malfeasance to use class action lawsuits to hold companies accountable when they violate the rights of vast numbers of people.”
That’s not the only recent ruling favoring corporate interests. PFAW notes that in Cedar Point v. Hassid, “the far-right majority made possible by the Trump justices expanded the meaning of the Takings Clause in a way that limits organized labor in this particular case, and that threatens any number of government protections that affect monied interests.”
The analysis concludes by looking ahead to the next term, warning about the potential impact of the six right-wing justices weighing in on abortion restrictions, gun violence, and constitutional rights for Puerto Ricans. The court has already agreed to hear cases on all three.
“While there were some bright spots, including the failure of the right once again to destroy the Affordable Care Act,” said Gordon, reflecting on the term that just ended, “the court’s rightward tilt is very pronounced and raises serious concerns about risks to our rights.”
“We believe that as Republican-appointed justices and judges do more and more harm to people and to the country, the long-term movement to improve our courts will only get stronger,” the report author added.
One proposal is to expand the court. Sen. Ed Markey (D-Mass.) joined with Reps. Jerry Nadler (D-N.Y.), Hank Johnson (D-Ga.), and Mondaire Jones (D-N.Y.) earlier this year to introduce the Judiciary Act of 2021, which would increase the number of justices from nine to 13.
“We must pass my Judiciary Act of 2021 to expand the Supreme Court and restore balance to our top court,” Markey said Thursday. “If we fail to do so, it is a near-certainty that the court’s conservative majority will continue to rule in favor of the far-right interests of those that orchestrated the theft of these seats.”