Yesterday, the Supreme Court issued a half-dozen more decisions of their 2017-2018 term, most notably the “Masterpiece Cake” case, where a baker, citing religious freedom, sued the state of Colorado because he didn’t want to make a wedding cake for a gay couple. The Court ruled in favor of the baker, but only in a narrow sense: The justices, in a 7-2 majority, found that the Colorado civil rights commissioners (which heard the man’s case) had shown him “hostility” and ridiculed his faith. To be fair, they did: They compared the baker’s beliefs to the Holocaust and slavery. The Supreme Court held that this hostile treatment violated the first-amendment right to freedom of expression of religion.
But this ruling by itself isn’t exactly bad news for the LGBTQ community. Justice Anthony Kennedy, who wrote the decision (and who also wrote the decision legalizing gay marriage), didn’t take up the question of whether people can discriminate based on religious faith. The Court also didn’t rule on whether the baker had a free-speech right to refuse to make the cake. They only said the Colorado civil rights commission didn’t handle this one correctly. This is known as a “narrow” decision, one that applies only to the specific case at hand. Not, as the son of the President of the United States tweeted, a narrow vote margin.
The larger civil rights dispute will likely percolate in one form or other through the appeals system again, but it seems the Court is unwilling right now to take the issue straight on.
Our ruling: This wasn’t a good call, but it actually wasn’t one of the five worst decisions of this Supreme Court’s term. We’ll give it “honorable mention” status. Plus, they’ve still got 29 decisions to issue in the next few weeks, including major cases about cellphone data privacy, voting rights, union fees, and Trump’s travel ban. So before we get slammed with all that, let’s take a look back at the worst of what the non-Garlanded court has given us so far this year, from the death penalty to immigrant rights to abortion to immigrant abortion rights.
1. Ban on medication abortions
On May 29 the Supreme Court declined to hear a case on whether an Arkansas law that restricts access to medication-induced abortions places an unconstitutional burden on access to abortion services. An Arkansas federal judge had previously blocked the law from being enforced, but the Supreme Court’s choice allowed that order to expire.
Why it sucks: Now a bunch of right-wing nitwits can return to their normal business of making life more difficult for women. Arkansas is now the first state to ban medication abortion.
For those not familiar with medication abortions, they’re an alternative to surgical procedures. A doctor gives a patient one pill to take on the spot, and a second one to take on her own a few days later. The regressive Arkansas law, which passed in 2015, required the prescribing doctor to have a contract with another doctor, and that second doctor must have hospital admitting privileges. This makes it harder for women to access care, and the federal judge who blocked the law’s enforcement cited a similar law in Texas that the Supreme Court had ruled unconstitutional. That law required abortion providers in every instance to have hospital admitting privileges.
Planned Parenthood had sued to block the law, claiming that Arkansas doctors weren’t willing to enter into a contract with physicians affiliated with Planned Parenthood.
2. A less perfect union
In a 5-4 ruling that dealt a serious blow to unionized workers across the country, the Supreme Court decided May 21 that employers can prevent workers from banding together in class action suits. The Court said that a business can force contracted employees to go through individual arbitration to complain and resolve disputes about union matters such as fair pay, benefits, or working conditions.
Why it sucks: Often, individual employees can’t afford the fees necessary to see a complaint through arbitration. In these instances they’ve been able to band together so they can share the cost burden. This decision gives businesses a sizable advantage over work-a-day Americans in labor disputes.
The Court has another labor-issue case in the chamber, this one on whether unions have the right to charge all workers (not just union members) for their work on issues that affect all workers (not just union members). This will substantially weaken union finances, and it will have negative effects on collective bargaining power. The Court has until now been split 4-4 on this issue, but now Merrick Garland will finally cast the deciding vote. Wait. Shit.
On February 27 the Court decided that immigrants facing deportation can be detained indefinitely without bail hearings. The ruling applies to all immigrants who face deportation, including those here legally. An appeals court had ruled that detained immigrants have the right to bond hearings every six months. The law gives immigration authorities time to determine whether an immigrant presents a danger “without running the risk of the alien’s either absconding or engaging in criminal activity before a final decision can be made.”
Why it sucks: If it’s not obvious, Justice Steven Breyer summed it up well in his dissent, writing, “Liberty has included the right of a confined, unconvicted person to seek release on bail.”
The plaintiff in the case was a man named Alejandro Rodriguez, an immigrant from Mexico who had been held for three years without a bond hearing while the government considered deporting him because of convictions for joyriding and drug possession. Rodriguez’s story ended well — he was released and allowed to stay in the country — but thousands of people are reported to be held without bond. Immigrant detention centers look and function like jails.
The Supreme Court kicked the case back down to the lower court to decide whether the relevant statutes were constitutional. The Supreme Court, for reasons unclear, didn’t take up that question.
4. Undocumented immigrants don’t have abortion rights
Last year a pregnant teenager crossed the border into Texas unaccompanied by a family. While she was detained she said she wanted an abortion, and the ACLU helped her sue for the right. A federal court ruled that immigrant women in custody have the same rights to access abortions as American citizens do, and after a few hang-ups in court the unidentified woman received her abortion late last October. Yesterday the Supreme Court threw out that ruling.
Why it sucks: Though the ruling, coming several months after the abortion, has no bearing on the woman’s case now, SCOTUS, by throwing the case out, nullified any precedent that the lower court’s earlier decision might have set for other undocumented women in federal custody.
5. Give us liberty and give us the death penalty
On March 19, the SCOTUS refused to hear a case on whether Arizona’s death penalty law was too broad. The same decision deferred the chance to decide whether there should be a federal ban on capital punishment.
Why it sucks: The most developed democracy on the planet shouldn’t kill its own citizens. The U.S. is the only developed Western nation that hasn’t abolished the death penalty.
What’s interesting here is that the Supreme Court put a halt to executions back in 1972, finding that the death penalty was being applied all over the place for capricious and vague reasons. States responded to the ruling by requiring juries in capital punishment cases to consider whether specific circumstances in the crime warranted the death penalty. The plaintiff in this year’s case — a man named Abel Hidalgo (that’s right: a murderer named Abel) — argued that Arizona had included so many extenuating circumstances in murder cases that practically anyone convicted of murder could be sentenced to death.
Justices Ruth Bader Ginsburg and Steven Breyer have advocated that the Court should take another look at the death penalty, but no one else has voiced interest.
It’s about time, though: We executed 23 prisoners last year, which, together with 2016, are the second-lowest and lowest totals since 1991. According to a Gallup poll, 55 percent of respondents approve of the death penalty today, but in 1994 that number was at 80 percent.