IN YOUR INBOX
Her words sounded ominous, like a warning.
U.S. Supreme Court Justice Sonia Sotomayor, the bench’s most senior liberal member, recently recalled that, on some days, she returns to her office after the announcement of a gut-wrenching decision, closes her door — and cries: “There have been those days,” she lamented. “And there are likely to be more.”
And there are likely to be more. The conservative-majority high court has already issued decisions this term that will have major ramifications for Black communities. On May 23, the day before Sotomayor made her remark, the court ruled 6-3 along conservative-liberal lines that a Republican-redrawn congressional map isn’t racist. This was despite the fact that a lower-court panel concluded last year that the map bleaches Black voters out of a South Carolina district and strips away their ability to elect someone who has their interests at heart. Sotomayor seemed to hint that similarly destabilizing decisions are just around the corner — that the attack on Black equality is far from over.
In contrast, to attempt to justify the court’s ruling, Justice Clarence Thomas criticized the unanimous 1954 Brown v. Board of Education decision in a concurring opinion. In Thomas’ view, the historic decision that deemed segregation in public schools unconstitutional was judicial overreach, with the court taking a “boundless view of equitable remedies.”
Read More: Revisiting Brown v. Board of Education’s Legacy in a New Era of Massive Resistance
Within the next several weeks, the court will weigh in on a variety of ferociously fraught issues, from a challenge to a crucial medication used in most abortions to ordinances that effectively turn homelessness into a crime.
Read on to learn about which cases Capital B is watching and what the stakes could be for you as the country gears up for the 2024 presidential election. This piece will be updated as decisions are handed down.
Abortion Pill Access on the Line
Case: Food and Drug Administration v. Alliance for Hippocratic Medicine
Decision: 9-0
Overview: The battle over the right to abortion has become one of the most hot-button issues since 2022, when the court laid siege to decades of precedent and struck down Roe v. Wade. Just last week, Senate Republicans blocked a reproductive rights-oriented bill to guarantee access to contraception.
The court unanimously upheld guidelines from the Food and Drug Administration for the distribution of medication abortion, saying that the anti-abortion plaintiffs lacked standing to bring the lawsuit.
Stakes: The case could have dramatically limited access to a commonly used abortion pill across the U.S. — including in states where abortion is already legally protected — and also curb federal authority. At oral argument earlier this year, the justices seemed prepared to reject the challenge to medication abortion. But observers caution that the court’s Republican-nominated justices and anti-abortion activists might be playing the long game, intending to revive the Comstock Act, a 151-year-old law that could be used to ban abortion-related medications and materials.
As previous Capital B reporting has made plain over the past few months, restrictions on the right to abortion — which in some red states have expanded to include attacks on access to in vitro fertilization — “could be catastrophic for Black reproductive health, exacerbating existing disparities in access to care and alarming rates of maternal mortality.” Black women receive about a third of all abortions nationwide and are at least three times as likely as their white counterparts to die from issues relating to pregnancy, research shows.
Emergency Abortions: Required?
Case: Moyle v. United States
Overview: In this other abortion-related case, the court will decide whether the federal government has the authority to penalize hospitals that refuse to provide stabilizing care — including abortions — in emergency situations.
The Biden administration argues that hospitals must provide this care under the 1986 Emergency Medical Treatment and Labor Act, and that this law overrides abortion restrictions that Republican-controlled states have enacted since the court overturned Roe v. Wade.
Stakes: The case could have a major impact on the 14 states — according to a recent CNN tracker — that have near-total abortion bans.
Notably, most of these states are in the South, which has the highest concentration of Black Americans. This means that if the court finds that hospitals aren’t obligated to provide potentially life-saving abortions, Black Americans, already disproportionately burdened by barriers to quality health care, would bear the brunt of that decision.
Criminalizing Homelessness
Case: City of Grants Pass v. Johnson
Overview: The court will decide whether public sleeping and camping ordinances in Oregon restricting homelessness violate the Eighth Amendment’s ban on cruel and unusual punishment.
The homeless plaintiffs’ argument leans on Robinson v. California, a landmark 1962 decision in which the court said that the Eighth Amendment prevents states from criminalizing addiction to narcotics. The plaintiffs contend that homelessness is like drug addiction in that it’s a status rather than an act or a behavior and, in consequence, protected against punishment.
Stakes: The case could profoundly shape how cities across the U.S. address homelessness at a moment when the affordable housing crisis isn’t only skyrocketing — but disproportionately pushing Black Americans onto streets.
It’s also important to think of this case in terms of the racial wealth gap, which is fueled at least partly by the gap in homeownership. My colleague Adam Mahoney put it succinctly earlier this year: “Black Americans are the most likely racial group to be renters, as rental prices nationwide have grown nearly 30% higher than inflation since 2000,” he wrote. “As a result, Black people face the greatest burden to access housing and have the highest rate of evictions nationwide.”
The Perils of Presidential Immunity
Case: Trump v. United States
Overview: The court will decide whether former President Donald Trump is immune from federal prosecution in a case that includes charges that he schemed to thwart the 2020 election on Jan. 6, 2021. More Black Americans cast a ballot in that contest than in any since 2012.
The case has touched a raw nerve among many, in large part because of Justice Samuel Alito’s involvement. He has refused to recuse himself from this and another case tied to Jan. 6 (more on that below), despite calls for him to do so after reports revealed that pro-insurrectionist flags billowed at the conservative justice’s properties.
Stakes: If the court decides in Trump’s favor, it could send a disturbing message to Black Americans — that it doesn’t care all that much about threats to the country’s fragile multiracial democracy, forged only six decades ago through the Voting Rights Act.
Additionally, the court could lay the groundwork for excusing a future president who abuses the powers of office. Or as Kimberly Wehle, a law professor at the University of Baltimore, put it, “the immunity decision could set the stage for an Oval Office crime spree the likes of which we’ve never seen before.”
Holding Insurrectionists to Account
Case: Fischer v. United States
Overview: The case centers on charges brought against hundreds of participants in the Jan. 6, 2021, riot. Federal prosecutors have indicted the insurrectionists for their role in obstructing the certification of the 2020 presidential election that Joe Biden won.
Defendants argue that the law in question, which came about as a result of the destruction of important documents during the 2001 Enron accounting scandal, ought to apply to evidence tampering, not to the attempted overthrow of the U.S. government.
Stakes: If the justices interpret the law narrowly, the case could make it difficult to complete the hundreds of Jan. 6 prosecutions. On top of that, it could wipe out around half of the federal charges that former President Donald Trump faces for his own efforts to subvert the 2020 contest.
Like the other Jan. 6 case, this one illuminates the deeper question of accountability — of whether the justices will demonstrate that in no corner of our criminal legal system is anyone, including rioters who acted on the lie that Black votes are illegitimate, above the law.