Supreme Court term ends with win for Trump, first amendment rights

The Supreme Court’s 2023-24 term will be remembered for one case above all: Trump against the United Stateswhere the court granted former President Donald Trump immunity from criminal liability for attempting to use his office to obstruct the peaceful transition of power after he lost the 2020 election.

At the ACLU, we filed a friend-of-the-court brief in the case urging the justices to affirm that no person—including presidents—is above the law. Yet the court’s six Republican-appointed justices abandoned the Constitution and its original meaning, voting instead to create an immunity that effectively turning presidents into kings.

The judges’ apparent justification for granting such immunity is baseless. They surmised that without knowing that they can commit crimes with impunity, presidents will be discouraged from energetically doing their job. Yet, until this decision, every president faced the risk of prosecution if they committed crimes and there is no evidence that American presidents have been shy about exercising their authority. The court’s decision underscores the absolute necessity for organizations like ours to conduct constitutional checks on presidents while they are in office—and for voters to vote because their rights depend on it to hold presidents accountable.

While the presidential immunity case has rightfully dominated public attention, the Supreme Court’s recent term also involved many other important decisions. It issued landmark decisions protecting First Amendment rights, turned back a challenge to medication abortion, and raised Second Amendment rights in a challenge to a law banning gun possession by people subject to domestic violence protection orders. The court also dealt several blows to our rights, denying constitutional protection to homeless people punished for sleeping in public, to black voters facing discrimination in South Carolina, and to a US citizen whose non-citizen spouse was denied a visa without explanation.

A review of the term’s civil rights and civil liberties decisions paints a mixed picture, but make no mistake: This is a court ready to create a whole new constitutional protection for former President Trump, while rejecting the claims of the powerless.

In a pair of high-profile cases involving reproductive health, the court upheld access to abortion without addressing the merits of the dispute. In one case, FDA v. Alliance for Hippocratic Medicine, doctors opposed to abortion sued to challenge FDA rules that facilitated access to medication abortion, the most common form of abortion. The lower courts ruled against the FDA, but the Supreme Court unanimously rejected the challenge, ruling that the doctors lacked “standing” to challenge the FDA’s rules because they were not personally harmed by those rules. While this is a win for access to medication and abortion, the fight is far from over. Politicians have vowed to continue efforts to limit access to abortion across the country.

The second abortion case, Moyle v. United States, asked whether a federal law requiring emergency rooms to provide stabilizing treatment to all patients experiencing an emergency required those hospitals to provide abortions where that is the necessary treatment — even though state law prohibits abortions in those circumstances. The case originated in Idaho, where state law prohibits abortion except where it is necessary to save the life of the mother. After a federal district court correctly ruled that the federal law overrides the state ban in emergency situations, the Supreme Court intervened prematurely and stayed the lower court’s ruling until it could weigh in. However, after hearing arguments, the court ultimately dismissed the case, thereby reviving the case. lower court rulings protecting access to emergency abortion. For the time being, the case continues in the lower courts.

This term, the Court focused on civil liberties involving the First Amendment. In National Rifle Association v. Vullo, the ACLU represented the NRA in a case alleging that New York’s top financial regulator had violated the NRA’s First Amendment when it targeted it for its political views and tried to force banks and insurance companies to blacklist the group. The court ruled unanimously in our favor. Although the ACLU often disagrees with what the NRA advocates, we defended their rights before the Supreme Court because of the First Amendment principles at stake. Had we lost this case, governors in red states would have been free to use similar tactics against immigrant rights groups, gay rights groups, or the ACLU itself. The case holds that, while government officials are free to express their opinions, they may not use their official authority to compel others to punish a group for its political ideas.

The court also issued important decisions protecting freedom of expression online. Although the Internet is far from new, decades after its inception, the nation is still grappling with how to approach our online speech rights. In two cases challenging laws in Texas and Florida governing the terms on which major social media platforms moderate the content they display, the court explained, as the ACLU argued in a friend of the court brief, that social media platforms, like newspapers and bookstores, have a First Amendment right to choose how they must curate the content that they display, sell or publish. In another pair of online speech cases, the court ruled that where government officials speak in their official government capacity on their personal online profiles, citizens blocked from those profiles can sue to challenge their exclusion.

The only voting rights case of the term saw the six Republican-appointed justices join forces to overturn a unanimous lower court ruling that found South Carolina had engaged in racist practices. In this case, in which the ACLU was counsel, along with the Legal Defense Fund and Arnold & Porter, the court sided with Republican lawmakers, flouting its own precedent and making it much more difficult to face racial challenges going forward.

After a lengthy trial, a three-judge court unanimously found that South Carolina had impermissibly used race to draw the boundaries between two contiguous districts, to the detriment of black voters. The mapmakers had moved over 100,00 more voters than necessary to equalize the population of the districts. They had disproportionately moved heavily black neighborhoods, and the mapmakers had programmed their computers to show the racial impact of every line-drawing choice. Ultimately, they ensured that the black voter turnout did not rise above 17 percent, a ratio they believed was critical to cementing a Republican advantage. The trial court found that the South Carolina legislature used race for partisan purposes in drawing its map, which the Supreme Court has long held is unconstitutional discrimination. However, in an opinion by Attorney General Samuel Alito, the court held that politics and race are both potential explanations for a legislature’s redistricting, and that reviewing courts must proceed in “good faith” even where trial courts have found that legislatures relied on race.

In a landmark immigration case, the court ruled that U.S. citizens have no constitutional right to challenge the denial of visas to their non-citizens — even if the denial means they will not be able to live together in this country. IN Dept. of State v. Munoz, Luis Asencio-Cordero, a long-term partner of a US citizen, sought to become a permanent resident through marriage. Under our byzantine immigration laws, he had to leave the country and obtain a visa to re-enter as an immigrant. When he did, a State Department consular official denied his visa without any factual explanation. His partner, Sandra Muñoz, sued, saying that in light of the burden on her marriage, she had a right to know the basis for the denial so they could respond.

This was not an unreasonable or unprecedented claim. The court had previously ruled that when a visa denial violates the constitutional rights of US citizens, the government’s visa denial must at least be based on a “facially legitimate and bona fide” reason. Muñoz argued that a citizen’s right to live with their spouse in their home country should be a basis for protection. But in another 6-3 ruling, the court ruled that she had no right whatsoever.

In a unanimous 6-3 vote, the court ruled that the Eighth Amendment’s ban on “cruel and unusual punishment” does not prevent homeless people from being punished for sleeping in public, even when they have nowhere else to go. IN Grants Pass, Oregon v. Johnson, the US Court of Appeals for the Ninth Circuit reasoned that punishing someone without a home for sleeping outside was “cruel and unusual” because it punished them for the status of being homeless. Justice Neil Gorsuch, writing for his conservative colleagues, rejected that claim, concluding that the Grants Pass law punishes the behavior of sleeping in public, not the status of being homeless. But being homeless is having nowhere to sleep. As Justice Sonia Sotomayor wrote in dissent, “Sleep is a biological necessity, not a crime.”

Even as this term ends, the court has already agreed to hear two important cases next term in which the ACLU is counsel. The first, USA v. Skrmetti, is a constitutional challenge to Tennessee’s ban on gender-affirming care for minors. Tennessee is one of several states that in recent years has infringed on the medical autonomy of parents, children and their doctors by banning gender-affirming care, specifically because it is designed to deviate from, rather than conform to, the individual’s sex assigned at birth . The ACLU has challenged these laws, arguing that they violate equal protection by discriminating on the basis of gender and gender identity. They also infringe on parents’ right to decide what is best for their children. In the second case, Free Speech Coalition v. Paxton, the court has agreed to hear whether the First Amendment prevents Texas from requiring adults to submit digital identification to access websites that contain constitutionally protected sexual speech.

Today’s Supreme Court is a challenging forum. That’s why the ACLU has launched our state Supreme Court Initiative to promote and protect civil rights and civil liberties under state constitutions, which may be more protective than the United States Constitution. But as this term illustrates, we can still win important victories in the federal courts – including the Supreme Court. One thing should remain clear: The ACLU will never stop fighting, in every forum available, for your rights and freedoms and for a more just America.

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