Today, the Supreme Court issued a unanimous decision in Food and Drug Administration v. Alliance for Hippocratic Medicine (consolidated with Danco Laboratories v. Alliance for Hippocratic Medicine). The case had the potential to fundamentally redefine not only how medication abortion is accessed throughout the country but also how the FDA approves and regulates drugs. The Court held that the Alliance for Hippocratic Medicine and the individual doctors who challenged the FDA’s actions lacked standing under Article III.
What You Need to Know
- What Was Before the Court: Whether anti-abortion doctors and organizations have Article III standing to bring their challenge to the FDA’s initial 2000 approval of mifepristone, one of two drugs most commonly used in medication abortion, and subsequent changes to how the drug may be prescribed in 2016 and 2021, whether the FDA’s 2016 and 2021 actions were arbitrary and capricious, and whether the district court erred in granting preliminary relief that would have pulled mifepristone from the market entirely.
- What Happened at Oral Argument: A significant amount of time was dedicated to a discussion on standing, particularly whether the purported injury to this set of doctors and organizations was specific and direct enough to allow them to challenge the FDA’s decisions. Justice Samuel Alito asked a series of questions on whether the FDA decisions could be challenged by any party and whether the agency was “infallible” and the advocates and several justices highlighted the role tort law can play in serving as a check to the agency’s actions and drug companies’ sale of approved drugs. Justice Ketanji Brown Jackson voiced the concern that “there is a significant mismatch in this case between the claimed injury and the remedy that’s being sought.” A majority of the justices seemed skeptical that this group of plaintiffs could challenge the FDA’s actions in such a way that would result in access to mifepristone being rolled back nationwide.
- What Did the Court Decide: In a 9-0 decision, the Court held that the plaintiffs lack standing to challenge the FDA’s actions. Justice Kavanaugh, writing for the Court, noted that “legal, moral, ideological and policy objections …. alone do not establish a justiciable case or controversy in federal court.” Notably, no justice chose to write a concurrence focused on the Comstock Act, despite several questions that arose during oral argument. Justice Thomas did pen a concurrence questioning the constitutionality of associational standing.
- Practical Effect: With today’s decision, the status quo of mifepristone access is preserved. If you or someone you know is seeking access to mifepristone or other abortion care, you can visit INeedAnA.com to receive up-to-date information on access options.
Today, the Supreme Court issued a 6-3 decision in Alexander v. South Carolina State Conference of the NAACP. This case focused on a claim that South Carolina racially gerrymandered their congressional map in the wake of the 2020 census.
What You Need to Know
- Question before the Court: Did South Carolina unconstitutionally racially gerrymander their congressional map?
- What happened during oral argument: Justice Kagan aptly noted that it is because of the Supreme Court’s 2019 decision in Rucho v. Common Cause that South Carolina can publicly claim partisan gerrymandering as a defense for its racial gerrymandering. The oral argument highlighted this conundrum of the Court’s own making, with some time spent debating whether race could lawfully be used as a proxy in a self-professed partisan gerrymander, but the majority of the discussion focused on how plaintiffs in cases where alleged racial gerrymandering has taken place should be required to prove that race was the motivating factor as opposed to political advantage.
- What did the Court decide: In a 6-3 decision along ideological lines, the Court overturned a lower court’s holding that South Carolina violated the Equal Protection Clause of the Constitution when it racially gerrymandered its congressional map following the 2020 census. Writing for the majority, Justice Alito articulated a new rule for such claims: that federal courts begin with “a presumption that the legislature acted in good faith.” And in spite of an assertion that the Court was reviewing for clear error, Justice Alito then engaged in a thorough review of the expert reports submitted below, taking issue with their methodology and, as Justice Kagan noted in her dissent, eventually declaring that the majority “knows better than the District Court what happened in a South Carolina map-drawing room.” The majority went further, requiring that plaintiffs in this type of racial gerrymandering case produce an acceptable alternative map and finding that the plaintiffs’ failure to do so in Alexander “should be interpreted […] as an implicit concession that the plaintiff cannot draw a map that undermines the legislature’s defense that the districting lines were ‘based on a permissible, rather than a prohibited, ground,’” despite the Court’s own ruling in 2017 that no such map was required.
- Take Away: The Court’s decision in Alexander will open the door wide to racial gerrymandering. As Justice Kagan noted in dissent, parties challenging racially gerrymandered maps as violative of the Equal Protection Clause will almost always lose, “because the State had a ‘possible’ story to tell about not considering race—even if the opposite story was the more credible.”
Today, the Supreme Court heard the final oral arguments scheduled for this term, in the presidential immunity case Trump v. United States. The events of January 6, 2021, and the resulting litigation have been thoroughly reported on. These oral arguments were extra-ordinary and require special attention be paid, not only because they involve an historical first–the criminal prosecution of a former U.S. president–but because of how the hearing proceeded.
What You Need to Know
- Question Presented: Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
- What Happened at Oral Arguments: There were a few unusual moments, including two of the justices engaging with and questioning each other directly and former president Donald Trump’s legal team forgoing a rebuttal altogether. Not to mention that Justice Thomas, whose wife has been credibly accused of participating in the same events that Trump is accused of in the underlying case here, not only did not recuse himself, but asked the first question to each side’s advocate. But what made the two-and-a-half hour hearing most worthy of note were the dangerous arguments being advanced by a former president’s legal team, which seemed to find a warm reception by several members of the Court. The Court spent precious little time on the actual conduct of the former president central to this case, with Justice Kavanaugh noting to the government’s lawyer, “I’m not focused on the here and now of this case, I’m very concerned about the future.” This posture led to a series of hypotheticals, as several of the justices attempted to find the boundaries of what might constitute an “official act.” In response to one such hypothetical, Trump’s advocate made the assertion that an ordered assassination of a political rival might be considered an official act depending on the circumstances involved. At another point, he asserted that the president calling for a coup to remain in power “may well be an official act.” As Professor Ruth Ben-Ghiat, a noted historian and expert on authoritarianism, commented “whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war . . . . Authoritarians specialize in normalizing extreme ideas and involves giving them a respected platform.”
- What Happens Next? Several justices indicated a desire to send this case back to the lower court to suss out what exactly constituted an official act in the underlying charges against Trump. After arguably unnecessarily delaying consideration of this case in the first place, to return it to the lower court without resolving the central issues would be to further delay the trial until after the election this November, potentially putting accountability for Trump’s alleged crimes out of reach entirely.
We cannot allow what happened at the Court today to be normalized. In moments when our country appears to lurch toward authoritarianism, we will call it out. It will take all of us to defeat authoritarianism.
Read more analysis on today’s oral argument via Vox.
Today, the Supreme Court issued its decision in Muldrow v. City of St. Louis, Missouri, a case that asked the Court to decide what level of harm an employee must show when challenging a transfer under Title VII. Recognizing that no heightened-harm requirement appears in Title VII’s text, the Court ruled that a discriminatory transfer claim requires the employee to show some harm but does not require the employee to show that the harm was significant.
What You Need to Know
- Question presented in this case: Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage to the employee.
- What does Title VII say? Title VII of the Civil Rights Act of 1964 prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
- Background: Jatonya Clayborn Muldrow, a sergeant with the St. Louis Metropolitan Police Department, was working in the Department’s Intelligence Division when she was transferred against her wishes to the Department’s Fifth District, where her rank and pay remained the same. However, Muldrow alleged that other aspects of her job changed after her transfer, including her job responsibilities, perks, and work schedule. She sued the City of St. Louis (City), alleging that it violated Title VII by transferring her out of the Intelligence Division because of her sex. The federal district court granted the City summary judgment as to Muldrow’s Title VII discriminatory transfer claim, explaining that Muldrow failed to show that her transfer caused a “significant” change that produced a “material employment disadvantage.” The Eighth Circuit affirmed, concluding that Muldrow failed to show that the transfer caused her to suffer a “materially significant disadvantage.”
- What did the Court decide? The Court held that a Title VII discriminatory transfer claim requires an employee to show that the transfer brought about “some harm respecting an identifiable term or condition of employment.” However, the transferee need not show that the harm was “significant,” “serious,” or “substantial.” The Court explained that imposing a heightened-harm requirement would be to add words to Title VII’s text. The Court accordingly vacated the judgment of the Eighth Circuit and remanded the case.
- Take away? In a footnote, the majority made clear that “this decision changes the legal standard used in any circuit that has previously required ‘significant,’ ‘material,’ or ‘serious’ injury” and “lowers the bar Title VII plaintiffs must meet.” The Court’s decision will increase employees’ access to justice and strengthen protections against workplace discrimination.
Today, the Supreme Court issued unanimous decisions in Lindke v. Freed and O’Connor-Ratcliff v. Garnier. These two cases focus on public officials’ use of social media and were both sent back to lower courts for further proceedings with a new test to apply.
What you need to know
- Question before the Court: Whether a public official violates the First Amendment by deleting comments and/or blocking an individual from the official’s personal social media account when the account is sometimes used to communicate job-related matters but arguably not as part of any governmental authority or duty.
- What happened during oral arguments: There was extensive discussion in the oral arguments of both cases about what the test should be for determining when a state official’s use of a social media account is personal versus when it is a part of their job. Several justices referenced the reality of how many people use social media to speak to personal interests intermingled with messages about their work. The Court engaged in a long discussion trying to tease out how public officials, both elected and unelected, might use and/or limit access to their platforms and where to draw the line when it comes to determining “state action” for the purposes of determining violations of constituents’ First Amendment rights.
- What did the Court decide: In Lindke v. Freed, Justice Amy Coney Barrett wrote a narrow opinion for a unanimous Court laying out a test for determining when a government official’s social media posts are state action and thus potentially violative of a private citizen’s First Amendment rights. That test requires the individual(s) bringing such a claim to show that the government official “(1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.” Both Lindke and O’Connor-Ratcliff were remanded for further proceedings under this new test.
- Take Away: In a key passage, the Court notes “An act is not attributable to a State unless it is traceable to the State’s power or authority. Private action—no matter how ‘official’ it looks—lacks the necessary lineage.” Online communications from public officials often appear to blur the lines, with officials sharing personal photos of family on their official pages and reposting public announcements on their private pages. The clarity the Court attempts to provide for courts on this issue is one of actual power lying behind the appearances. The Court notes that a “views expressed are strictly my own” disclaimer would help public officials protect themselves by providing clear context to their page, so expect such disclaimers to become the norm moving forward.
- Anything else: While the two cases remanded today involved local officials, former President Trump’s tweets loomed large in the background. Justice Elena Kagan noted during oral argument that Trump conducted an extensive amount of government business on his Twitter account. In today’s Lindke opinion, the Court does not shut the door on challenges to public officials’ blocking private citizens from their pages but rather seeks to provide clarity on when, and against whom, such challenges can be brought.
