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What’s At Stake?

On October 5, 2020, just one week after Justice Ruth Bader Ginsburg was laid to rest, the US Supreme Court began its new term. Despite the fact that the election was only weeks away and the country was reeling in the midst of an unprecedented global pandemic, the Senate majority rushed through the confirmation of Amy Coney Barrett, who was sworn in on October 26, 2020. This term, the Supreme Court heard cases involving the future of health care, voting rights, and the separation of religion and state, among other issues. Below are the cases NCJW watched closely during the 2020-2021 term. 

 

Health Care California v. Texas 

In this case, consolidated with Texas v. California, the Supreme Court will revisit the Affordable Care Act (ACA). In 2012, the Supreme Court narrowly upheld the individual mandate of the ACA as a tax that Congress had the constitutional power to impose. In 2017, Congress reduced the penalty for not having health insurance to zero. Seizing on this change, Texas and 19 states — along with some individuals — sued to overturn the ACA’s individual mandate, claiming that a penalty of zero dollars could not be a tax. California and other states sued in defense of the mandate. A federal district court ruled that the individual mandate, and hence the entire ACA, was unconstitutional. On appeal, the Fifth Circuit invalidated the individual mandate but sent the case back down to the district court to decide if the rest of the ACA would survive. Now, both Texas’ and California’s cases have been combined in a single case before the Supreme Court, which will determine if the zeroed-out mandate is unconstitutional and, if so if the rest of the ACA will remain the law of the land. The fate of the Affordable Care Act is on the line in this case.

Oral Argument: November 10, 2020 

Why We’re Watching: NCJW helped enact the Affordable Care Act which had a transformative impact on health care by increasing the scope of benefits and improving access to coverage for millions of Americans. Destroying the entire law would lead to chaos for the tens of millions of Americans who will directly lose coverage and those who will lose vital protections and critical health benefits.  

Decided: June 17, 2021 

In a 7-2 decision authored by Justice Stephen Breyer and joined by Chief Justice John Roberts and Justices Elena Kagan, Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett, and Clarence Thomas, the Court ruled that the plaintiff states did not have standing, meaning that they had not suffered the type of direct injury that is required to file a lawsuit. Although the majority threw out the case and did not decide on the constitutionality of the individual mandate, the Court effectively upheld the Affordable Care Act for the third time and ensured that millions of people retained their health coverage. Justice Thomas wrote a concurrence agreeing that the states did not have standing but opining that the Court had erred in its previous decisions on the Affordable Care Act. Justice Samuel Alito wrote the dissent joined by Justice Neil Gorsuch. 

 

Criminal Justice 

Edwards v. Vannoy 

In April 2020, the Supreme Court ruled in the case Ramos v. Louisiana that the Sixth Amendment establishes the right to a unanimous jury verdict in both federal and state court cases. Prior to this ruling, Louisiana was one of only two states that did not require unanimous jury verdicts for conviction. In 2010, Thedrick Edwards, an African American defendant, was sentenced to life in prison without parole even though the lone African American juror voted against conviction. It is noteworthy that the state used all of its juror challenges to exclude all but one African American individual from the jury. On appeal, the state court upheld his conviction and the Louisiana Supreme Court refused to review the case. After the Ramos decision, the US Supreme Court agreed to hear Mr. Edwards’ appeal to determine whether Ramos is retroactive to cases like his.  

Oral Argument: December 2, 2020 

Why We’re Watching: NCJW supports comprehensive, humane, and equitable criminal justice reform. This case has the potential to be a small step towards racial justice in a carceral system that disproportionately impacts Black and brown people. 

Decided: May 17, 2021 

Justice Brett Kavanaugh wrote the majority decision in this 6-3 ruling, which stated that the requirement for a unanimous jury — asserted by the Ramos v. Louisiana decision in 2020 — was not retroactive. This means those incarcerated by non-unanimous juries cannot challenge their convictions. Writing the dissent, Justice Elena Kagan blasted the majority opinion, saying it “resists explanation” and that the Ramos ruling was a “watershed” ruling. 

 

 Jones v. Mississippi 

When Brett Jones was 15, he was convicted of murder and given a mandatory life sentence. Mississippi law made him ineligible for parole. On appeal this sentence was upheld but, in a post-conviction relief hearing, the Supreme Court of Mississippi ordered that Mr. Jones be resentenced after a hearing was held to determine whether he was eligible for parole. In the meantime, the Supreme Court ruled that sentencing juveniles to life imprisonment without the possibility of parole violated the Eighth Amendment’s cruel and unusual punishment prohibition. This 2012 Supreme Court case was modified by a 2016 ruling that excepted rare cases where juveniles are deemed permanently “incorrigible” based on their crime. Brett Jones’ lawyers argue that the Court did not find him permanently incorrigible or even address the issue at all. This case will essentially decide whether courts need to give special consideration before sentencing juveniles to life without parole. 

Oral Argument: November 3, 2020

Why We’re Watching: NCJW supports the recognition and protection of all children and youth by the legal system and the provision for their unique needs. We believe that children should not be sentenced to life in prison without parole.  

Decided: April 22, 2021 

In a 6-3 opinion, authored by Justice Brett Kavanaugh, the Court reversed precedent and said that the sentencing need only “consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence,” abandoning the determination of incorrigibility. This means that minors can once again be sentenced to life in prison without the possibility of parole and without a separate factual finding that their behavior is irredeemable. Justice Sonia Sotomayor wrote a sharply worded dissent, joined by Justices Elena Kagan and Stephen Breyer. 

 

Civil Rights and Religious Liberty 

Fulton v. City of Philadelphia 

The City of Philadelphia has a non-discrimination policy that applies across the board. In 2018, the city barred Catholic Social Services (CSS) from placing children in foster homes because of CSS’ policy of not placing children with same-sex couples or non-married heterosexual couples. CSS sued, asking the court to force the city to renew their contract to place foster children. CSS argued that its free speech and free exercise rights under the First Amendment allowed them to reject otherwise qualified placements with same-sex couples due to CSS’ religious beliefs. The district court and the Third Circuit Court sided with the City of Philadelphia because their non-discrimination policy was neutral and generally applicable and did not target CSS because of their religious beliefs. This case involves the Religious Freedom Restoration Act and has the potential to totally revise religious liberty protections in the Free Exercise Clause of the First Amendment.  

Oral Argument: November 4, 2020 

Why We’re Watching: NCJW works to eliminate all forms of discrimination, including those undertaken in the name of “religious liberty,” and supports laws, policies, and programs that protect every person’s right to make decisions about whether to have or not have children and to birth, adopt, and parent with dignity.   

Decided: June 17, 2021 

 In a unanimous decision written by Chief Justice John Roberts, the Court overturned the Third Circuit and held that Philadelphia’s refusal to contract with CSS unless they agreed to certify same-sex couples as foster parents violated the Free Exercise Clause of the First Amendment. The Court took specific issue with the wording of the city’s nondiscrimination requirement, which permits exceptions at the “sole discretion” of the Commissioner of the Department of Human Services. As such, the Justices reasoned that the inclusion of a mechanism for entirely discretionary exceptions renders the nondiscrimination requirement not generally applicable in violation of Court precedent set in Employment Division v. Smith. This ruling thankfully did not recognize a general right to discriminate under the guise of religious freedom and was tied to the narrow circumstances of this case and the Philadelphia ordinance. Several justices wrote separate concurrences.  

 

Tanzin v. Tanvir 

Three Muslim men — Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari — were placed on the nation’s “no fly list” despite the fact that they posed no threat. They claimed that the move was in retaliation for their refusal to act as informants on other Muslims for the Federal Bureau of Investigation, violating their religious tenets and interfering with the free exercise of their religion protected by the Religious Freedom Restoration Act (RFRA). The suit was brought against both the agency and the individual agents. The district court dismissed the claims against the agents, but a three-judge panel of the Second Circuit reversed the lower court. One of the agents moved for an en banc hearing of the full circuit court which was denied. The Supreme Court will decide if RFRA’s provision that allows litigants to receive “appropriate relief against the government” authorizes monetary damages against individual government agents sued as individuals.  

Oral Argument: October 6, 2020 

Why We’re Watching: Despite continued misuse and manipulation of RFRA, NCJW supports the use of this statute to fulfill its original intention: to protect religious liberty by shielding religious minorities like Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari from historical discrimination. 

Decided: December 10, 2020  

In an 8-0 decision, the Court ruled that the Religious Freedom Restoration Act’s (RFRA) provision allowing for “appropriate relief against a government” included individual officials and therefore permitted lawsuits seeking monetary damages against individual agents of the government. 

 

Immigration 

Johnson v. Guzman Chavez 

This case examines whether immigrants applying for an asylum-like form of protection called “withholding of removal” are eligible to seek bond while their cases are pending or whether they have to spend the entire duration of their cases (which could be years, including appeals) in detention. The group of immigrants bringing the case are being detained in the US by ICE pending deportation. They are challenging the deportation order on the basis of their fear of persecution and torture if they are returned to their native countries. Withholding of removal is an important option for many immigrants who once would have been allowed to apply for asylum but are now blocked under the Trump administration’s various asylum bans. In this case, the government has relied on a provision of immigration law that imposes mandatory detention prior to deportation while the immigrants’ lawyers are citing another law which allows for discretionary release on bond. The district court and the Fourth Circuit ruled that the latter provision held and that the immigrants could be given individual bond hearings. On appeal, the Supreme Court’s decision will help determine whether immigrants are forced to stay in detention or can seek release on bond while awaiting their cases.  

Oral Argument: January 11, 2021 

Why We’re Watching: NCJW opposes immigration detention, including indefinite detention, and believes that immigrants are entitled to due process prior to deportation. 

Decided: June 29, 2021 

In a 6-3 decision authored by Justice Samuel Alito, the Court asserted that the Fourth Circuit had erred in its decision to allow a particular subset of asylum seekers to apply for bond while they appealed deportation. Instead, these asylum seekers will have to spend the duration of their appeals, which could stretch to years, in detention. Justice Stephen Breyer wrote the dissent joined by Justices Sonia Sotomayor and Elena Kagan.  

 

Biden v. Sierra Club  

In 2019, the Sierra Club and the Southern Border Communities Coalition sued the Trump administration to stop construction of a massive border wall along the US-Mexico border — a key element of the administration’s immigration policy. They cited the federal government’s lack of authority to spend more on the wall than Congress had allocated for border security, highlighting funds being diverted from the Department of Defense budget. In a 5-4 vote, the Supreme Court in 2019 allowed the funds to be used while the case continued. In 2020, the Court rejected a request to stop construction altogether while appeals continued. Now, the Supreme Court will hear a case brought by the Trump administration asserting that the parties did not have the right to bring the lawsuit and that the transfer of funds did not violate federal funding laws.  

Why We’re Watching: Diverting funds for an unnecessary border wall earmarked for other efforts is shortsighted and misguided, and NCJW believes it is no substitution for a humane immigration and refugee policy. 

 *Policy reversed by Biden administration; case removed from the calendar. 

 

Mayorkas v. Innovation Law Lab 

At the end of 2018, the Trump administration announced a new policy — officially known as Migrant Protection Protocols (MPP) but more commonly referred to as Remain in Mexico — which requires asylum seekers from Central America who travel through Mexico on their way to the US to stay in Mexico during their asylum proceedings. Since the policy was adopted, more than 60,000 people have been forced to wait in dangerous Mexican border communities despite overwhelming evidence that this policy has resulted in barriers to legal representation at best, and kidnappings, torture, trafficking, sexual assaults, and murders at worst. Lower courts, including the Ninth Circuit Court of Appeals, originally blocked the policy but, in March, the Supreme Court allowed the government to continue enforcement while its appeals moved forward. However, with the onset of the COVID pandemic, the administration began citing public health concerns when turning away asylum seekers, often returning them within hours to Mexico without even providing the opportunity to go through the application process. Eleven asylum seekers from Central America, represented by the ACLU, urged the Supreme Court to deny review in the case given that this effective closure of the border to asylum seekers during the pandemic has rendered the dispute moot for the time being.  

Why We’re Watching: NCJW supports comprehensive, humane, and equitable immigration, refugee, and asylum laws, policies, and practices. The Remain in Mexico policy puts asylum seekers in dangerous situations and denies them due process.  

*Policy reversed by Biden administration; case removed from the calendar. 

Sanchez v. Mayorkas 

Salvadoran citizens Jose Sanchez and his wife Sonia Gonzalez were granted and then re-granted Temporary Protective Status (TPS) in the United States. TPS allows immigrants from countries facing war or natural disaster to live and work legally in the United States. The couple later filed for lawful permanent residence (LPR) status, contending that their TPS status gave them eligibility for admission. The US Citizenship and Immigration Service (USCIS) denied their application, stating that TPS did not grant them admission to the United States. Jose Sanchez sued and won in district court in New Jersey, after which the Court of Appeals for the Third Circuit overturned the ruling. The US Supreme Court has agreed to hear the appeal and will determine whether people with TPS who did not enter the country legally are eligible to apply for LPR status. In earlier cases, both the Sixth and Ninth Circuits ruled that TPS recipients could apply for LPR status, but the Third Circuit ruled they cannot. This ruling could impact hundreds of thousands of people. 

Oral Argument: April 19, 2021 

Why We’re Watching: NCJW believes that the US should welcome immigrants and value their contributions to our communities. NCJW supports comprehensive, humane, and equitable immigration, refugee, and asylum laws, policies, and practices. 

Decided: June 7, 2021 

In a unanimous decision, the Court affirmed the Third Circuit ruling that immigrants with Temporary Protected Status (TPS) who entered the US illegally are not eligible to apply for permanent status based on their TPS. This decision could potentially impact tens of thousands of individuals and families seeking stability and security in the US. 

 

Voting Rights 

 Brnovich v. Democratic National Committee 

This consolidated voting rights case from Arizona (Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee) concerns two state election practices. One requires that ballots cast in the wrong precinct be discarded. The other practice bans what’s known as ballot harvesting which is when campaign workers, activists, and others — with the exception of family members, caregivers, or election officials — collect ballots from voters to deliver to polling places. The Ninth Circuit Court of Appeals found that both laws violated the Voting Rights Act because they disproportionately harmed minority voters who were twice as likely to cast ballots in the wrong precinct due to confusing changes in polling places, among other issues, and were more likely to use ballot collectors because they were often poorer, older, homebound or disabled, and disadvantaged by a lack of child care, transportation, or reliable mail service. The Ninth Circuit judge cited a dearth of evidence that Arizona’s long history of third-party ballot collection led to fraud. However, Arizona Attorney General Mark Brnovich obtained a stay in the Ninth Circuit allowing these restrictive laws to remain in place for the November election, and Democrats chose not to appeal fearing a decision that could further weaken the Voting Rights Act. The Supreme Court decision, in this case, could further erode Voting Rights Act protections against laws that disadvantage minority voters. 

Oral Argument: March 2, 2021 

Why We’re Watching: NCJW has played a role in the passage of voting rights legislation through the decades and is deeply concerned about the steady erosion of the Voting Rights Act by state legislatures and the courts.  

Decided: July 1, 2021 

In a 6-3 decision authored by Justice Samuel Alito, the Court ruled that the two Arizona voter suppression laws in question did not violate Section 2 of the Voting Rights Act.  Although the opinion expressly did not offer a test for future cases, it did weaken Section 2 of the Voting Rights Act, the landmark law already eroded by the Court’s 2013 decision in Shelby v. Holder which eliminated the protections found in Section 5 of the law. In a fiery dissent, Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, wrote that “[b]y declaring some racially discriminatory burdens inconsequential, […] the majority enables voting discrimination.”  

 

Access to Justice 

United States v. Briggs 

This case, one of several postponed from March when the pandemic lockdown began, concerns the 2014 Air Force court martial of Col. Michael Briggs who admitted to and was found guilty of a rape in 2005. During the trial, Col. Briggs was not informed that the statute of limitations could have been used to dismiss his case. The Uniform Code of Military Justice allowed prosecution of a rape that was committed between 1986 and 2006 only if it was discovered and charged within five years. That law was changed in 2006 to end the statute of limitations. Col. Briggs only raised the statute of limitations when he appealed his conviction. The appeals court rejected his appeal because he had not raised the statute in his original case, a ruling that the Court of Appeals for the Armed Forces reversed because they contended that the judge in the first trial should have informed Col. Briggs of the statute of limitations initially. The United States government appealed to the US Supreme Court. The Supreme Court will decide if the court of appeals made a mistake, despite its longstanding precedent, by going back to the statute of limitations as it was in 2006.  

 Oral Argument: October 13, 2020 

Why We Are Watching: NCJW believes that statutes of limitations on rape cases usually disadvantages the survivor and that rape survivors deserve justice regardless of when the crime and perpetrator are discovered. 

Decided: December 10, 2020 

In a unanimous 8-0 decision authored by Justice Samuel Alito, the Court ruled that the five-year statute of limitations did not apply to the prosecution of rape cases in the military. The decision reinstated the rape convictions of three former servicemen in the consolidated cases. 

 

Census 

Trump v. New York 

The 2020 Census has been before the Supreme Court several times in recent years. In 2019, the Court ruled in Department of Commerce v. New York that the Commerce Secretary’s decision to add a citizenship question to the 2020 Census was subject to administrative review, eventually leading the White House to drop its insistence on adding the question. In October 2020, the Court allowed the Department of Commerce, which conducts the constitutionally-mandated enumeration every ten years, to end the Census early on October 15. Now, the Census will be before the Court again as the justices must decide whether President Trump can exclude undocumented residents from the count used to apportion congressional districts in all 50 states. The president asked the Commerce Department to subtract undocumented residents from the count provided to the White House at the end of the year and, since there was no citizenship question, to use other data sources to do so. A coalition of states, cities, and others have sued, arguing that the Fourteenth Amendment requires “the counting of the whole number of persons in each state.” The Southern District of New York court agreed. In an appeal, the Supreme Court will determine whether the Executive Branch has discretion to determine who counts as an inhabitant — a decision that could change the balance of power in Congress by moving House of Representatives seats to less diverse states. 

Oral Argument: November 30, 2020 

Why We’re Watching: NCJW understands that decisions based on the US Census not only determine the balance of power in the House of Representatives but also the way important human needs funding is appropriated. It is essential the Census be a true accounting of every person residing in a community. 

Decided: December 18, 2020 

In a 6-3 unsigned opinion, the Court ruled that the plaintiffs who brought the case did not have standing (meaning that they had not suffered the type of direct injury that is required to file a lawsuit), overturning the decision by the Southern District of New York. The justices, however, did not rule on the merits of the case. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, writing that the challengers had a right to sue. 

 

Civil Rights and Workers Rights 

Cedar Point Nursery v. Hassid 

A California law set up an Agricultural Labor Relations Board and gave union organizers access to workplaces under specific circumstances. In 2015, the United Farm Workers (UFW) entered the Cedar Point Nursery in Dorris, California, to organize the workers without providing the required advance written notice which they later provided. The nursery filed a charge with the state board, and the UFW countered complaining of unfair labor practices. Cedar Point sued the board in federal district court, alleging that the access policy was a “taking” of their property without compensation in violation of their Fifth Amendment right to exclude unwanted visitors. In contrast, the board and its supporters argue that such temporary visits for the purposes of inspection do not constitute a “taking;” business owners expect and even welcome the long-standing public safeguards that require periodic onsite inspection, in agriculture and food production and to many premises-based worksites like hospitals and nursing homes, construction sites, retail, restaurants, and hotels. A district court and, on appeal, the Ninth Circuit agreed with the board and dismissed the nursery’s claim. The Supreme Court will now decide the case, which has broad implications not only for union organizing but for enforcement of civil rights laws as applied to private entities.  

Oral Argument: March 22, 2021 

Why We’re Watching: Inspection by government and third-party experts is vitally important for the health and safety of workers and the broader public, and are necessary to protect and enforce workers’ civil rights and promote long-standing policies against discriminatory exclusions. NCJW is committed to the enactment, enforcement, and preservation of laws and regulations that protect civil rights and individual liberties for all. 

Decided: June 23, 2021 

A 6-3 decision, written by Chief Justice John Roberts and joined by Justices Samuel Alito, Clarence Thomas, Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch, called the California regulation giving union organizers access to workplaces an “unlawful taking” that allowed union organizers to physically “invade” the grower’s property. The minority opinion by Justice Stephen Breyer and joined by Justices Elena Kagan and Sonia Sotomayor disputed this conclusion and expressed concern that it could be construed broadly to allow a landowner to block access by government inspectors. The decision could have harmful consequences on workers’ safety and right to organize.  

 

 

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