U.S. Supreme Court Takes Aim at Liberal America

This article was first published in the Detroit Legal News on July 21, 2022.

The month of June proved to be the most contentious in U.S. Supreme Court history. Some opinion writers have even referred to it as the “calendar of shame.” Regardless of where you fall on the issues, the impact of the Supreme Court’s recent string of rulings is undeniable. Expectedly, cases were decided along political ideologic lines. However, what did come as a surprise was the dogmatic views brazenly expressed by the conservatives on the bench. While the overturning of Roe garnered the most attention (and anger) it is impossible to ignore the importance of some of the other decisions handed down last month.

Thursday, June 23, 2022 — the Supreme Court struck down a New York handgun-licensing law that required New Yorkers to demonstrate a “special need” to defend themselves in order to carry a handgun in public. New York State Rifle & Pistol Assc. v Bruen, 597 U.S. __, 2022 U.S. LEXIS 3055 (2022) The 6-3 conservative majority decision authored by Clarence Thomas is the first significant ruling on gun rights since Columbia v Heller in 2008 where the Supreme Court first recognized an individual right to own a gun. The Bruen ruling made it clear that the Second Amendment constitutional right to “bear arms” protects a broad right to carry a handgun in public for “self-defense” purposes. Thomas’ opinion is telling on the future of gun rights laws in America, as he explained that restrictions on these rights should only be enforced where there is a tradition of such regulation in U.S. history, to which there is not. In researching the centuries that pre-dated the right to carry, Thomas determined that there was “no historical requirement that law-abiding citizens show a special need for self-defense to carry a gun in public, leading him to reject the notion there is a legitimate public interest in adopting restrictive gun legislation. Sadly, the ruling comes in the wake of deadly mass shootings at a supermarket in Buffalo, New York, killing 10 people, and Uvalde, Texas, where 19 children and two educators were shot to death — and, as I write this, six dead and dozens injured at a parade in Highland Park, Illinois. The opinion is expected to serve as a significant obstacle to states’ efforts to curb gun violence by passing laws that limit the purchase, carry and use of firearms.

A day later, the Supreme Court held true to its current form and rejected 50 years of precedent by overturning Roe in Dobbs v Jackson Women’s Health Organization, 597 U.S. ___, 2022 U.S. LEXIS 3057 (2022). The majority opinion, authored by Justice Samuel Alito, held that the Constitution does not confer a right to abortion. As troubling the opinion was to the dissenters and public at large for the court’s “abandonment of stare decisis,” of equal concern were the remarks of Justice Thomas in his concurring opinion. Thomas wrote, “substantive due process is an oxymoron that lacks any basis in the Constitution.” Thomas further wrote, rather ominously, that while the court declined to disturb the guarantees of substantive due process in general, it should review the doctrine in other specific contexts; including, right of married persons to obtain contraceptives, right to engage in private, consensual sexual acts and right to same-sex marriages. The justice further encouraged the court to reconsider all of [its] substantive due process precedents. Pundits fear, while the remarks are merely dicta, they should be read as an all-out assault on civil liberties as a whole.

In its last opinion of the term, West Virginia v Environmental Protection Agency, 597 U.S. ___, 2022 US LEXIS 3268 (2022), the Court limited the authority of the EPA under the Clean Air Act and determined that while capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution to the crisis, Congress did not confer upon the EPA the right to adopt such a regulatory scheme under the Act. Recognizing the importance of clean air regulations, Justice Elena Kagan lamented the Court should not be the decision-maker on climate policy; instead, should rely upon the EPA’s expertise on these issues. The opinion deals a decisive blow to the EPA and will likely hamper the Biden administration’s efforts to cut-down on super-pollutants and ramp up on more climate-friendly energy alternatives.
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In October the court will hear oral argument in the case of Merrill v Milligan, a challenge to the congressional redistricting plan that Alabama adopted after the 2020 census. In January, a federal court ordered that the state draw a new map with two majority-Black districts, concluding that the state’s original plan – containing only 1 district – likely violated section 2 of the Voting Rights Act, that prohibits discrimination in voting. A divided Supreme Court put a hold on the order in February, allowing the state to implement its original plan for the 2022 elections and set the consolidated cases for oral argument in the fall.

Based upon its aforementioned June rulings, I fear minority voting rights may also be in jeopardy.
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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.

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