Welcome to the annual U.S. Supreme Court round up of civil rights cases from the Legal Defense and Educational Fund, Inc. (LDF). Our 2021 Term Roundup provides a snapshot of the issue in each case, the outcome, and its impact on our rights. This easy to digest summary—without too much legal jargon—underscores the importance of the U.S. Supreme Court (and other courts) to our lives and the future of our democracy. Only the government has argued more civil rights cases before the Supreme Court.
Of the cases it considered during the 2021 Term, beginning October 1, 2021 and ending June 30, 2022, LDF filed or joined an amicus brief in six cases that affect civil rights: Whole Woman’s Health v. Jackson; Thompson v. Clark; Cummings v. Premier Rehab Keller; New York State Rifle & Pistol Association, Inc., et al. v. Bruen; Dobbs v. Jackson Women’s Health Organization; and Merrill v. Milligan.
The question in Whole Woman’s Health v. Jackson was whether federal courts could consider a pre-enforcement lawsuit by abortion care providers challenging Texas’ Senate Bill 8 (“SB 8”), a law that banned abortions after about six weeks of pregnancy and therefore clearly conflicted with then-existing Supreme Court precedent. As Chief Justice Roberts recognized in his opinion in the case, Texas “employed an array of stratagems designed to shield its unconstitutional law from judicial review,” including creating what was essentially a system of private bounty hunters, in which any person other than a government official could sue anyone who “‘aid or abets,’ or intends to aid or abet, an abortion performed after roughly six weeks.”
Nonetheless, in a fractured decision issued December 10, 2021, the Court largely allowed this circumvention of judicial review. The Court held that abortion care providers could not bring a pre-enforcement lawsuit against state judges and clerks to prevent them from enforcing SB 8. The Court allowed only the portion of the abortion providers’ suit against four state licensing officials with specific disciplinary authority over medical licensees to proceed past the motion to dismiss stage.
The majority opinion authored by Justice Gorsuch reasoned that state court judges and clerks are not “adverse litigants” within the meaning of Article III of the Constitution so a lawsuit naming them as defendants would not satisfy the requirement under Article III that federal courts only have the power to resolve “actual controversies arising between adverse litigants.” The majority also concluded that the Ex parte Young exception to sovereign immunity—a doctrine that generally bars litigants from suing states—applied only to permit suits against state licensing officials, and not state court judges or clerks.
Chief Justice Roberts authored an opinion concurring in the judgment in part and dissenting in part; he would have held that under the circumstances of this case, state court clerks were proper defendants. Justice Roberts emphasized the lengths to which Texas went to evade federal judicial review and expressed concern about the consequences of such maneuvers going forward:
“Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
Chief Justice Roberts’ opinion was joined by Justices Breyer, Sotomayor, and Kagan.
Justice Sotomayor wrote a separate opinion concurring in the judgment in part and dissenting in part, which was joined by Justices Breyer and Kagan. Justice Sotomayor raised similar concerns as Chief Justice Roberts, and she contrasted its decision with the Court’s “finest moments”—rulings during the Jim Crow era that had refused to permit such evasions of constitutional rights.
“Today’s fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.”
LDF has compiled an FAQ on reproductive rights, and how the dismantling of the constitutional right to abortion will impact people of color.
Thompson v. Clark concerns the scope of 42 U.S.C. § 1983, a federal civil rights statute that allows plaintiffs to sue for money damages when state officials violate their constitutional rights, in malicious prosecution claims. To maintain a claim for malicious prosecution—meaning the government violated the Fourth Amendment by invoking some legal process for an unreasonable seizure—plaintiffs must first show that the underlying criminal charges against them were favorably terminated. The Second Circuit Court of Appeals had put a restrictive gloss on this standard, barring such suits unless the underlying prosecution ended with an affirmative indication of innocence. In Thompson v. Clark, the Supreme Court rejected the Second Circuit’s restrictive standard, thereby providing plaintiffs subject to such unreasonable seizures an opportunity to vindicate their rights.
Larry Thompson was arrested after officers entered his home over his objections and without a warrant following an unsubstantiated allegation of child abuse. Though medical professionals found no evidence of abuse, and despite their lack of a warrant, the officers arrested Mr. Thompson for resisting entry into his apartment. Mr. Thompson spent two days in police custody and faced prosecution for three months, before the charges were summarily dismissed. He then filed a civil suit under Section 1983, seeking remedy for the violation of his right to be free from unjustified seizure pursuant to legal process, or malicious prosecution. Bound by Second Circuit precedent, the district court determined that Mr. Thompson had no federal remedy, since the charges against him were dismissed without explanation—as is common practice in New York City criminal courts—and thus without an affirmative showing of innocence.
In June of 2021, LDF filed an amicus brief arguing that the Second Circuit’s rule posed an often insurmountable bar to recovery for even the most egregious constitutional violations, given that criminal charges are routinely dropped or dismissed with minimal explanation and that criminal defendants generally have little or no voice in making that record. The brief also emphasized that such a restrictive precedent would have a racially discriminatory impact, as Black and brown people are disproportionately subject to unjustifiable arrest and detainment by law enforcement.
In keeping with the broad remedial purposes of Section 1983, the Supreme Court rejected the Second Circuit’s requirement that victims of unconstitutional seizures point to an affirmative indication of innocence in the dismissal of their underlying prosecution. In so holding, the Court held that a plaintiff bringing a malicious prosecution claim “need only show that the criminal prosecution ended without a conviction.” This 6-3 decision represents a step toward accountability for law enforcement officers who detain people without probable cause.
Jane Cummings, who is deaf and legally blind, communicates primarily in American Sign Language (ASL) and requested an ASL interpreter for her physical therapy treatment at Premier Rehab, a treatment center in Keller, Texas. Premier Rehab rejected the request and Ms. Cummings filed suit, alleging Premier Rehab violated the Rehabilitation Act of 1973 and the Affordable Care Act which prohibit discrimination on the basis of disability by entities receiving federal funding.
The question before the Court in Cummings v. Premier Rehab Keller was whether emotional distress damages are available under these statutes and by extension, whether such damages are available under other antidiscrimination statutes, including Title VI of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972, which forbid federally funded entities from discriminating based on race, color, national origin, and sex. The Court considered whether entities accepting federal funds are “on notice” that, as a condition of accepting federal funds, they may be liable for emotional distress damages for violations of these statutes.
LDF filed an amicus brief with the ACLU and the National Women’s Law Center explaining that courts have long awarded damages for emotional distress and other dignitary harms to compensate plaintiffs in race and sex discrimination cases and thus Title VI and Title IX recipients are “on notice” of their potential liability for these types of harms. LDF also emphasized that emotional damages are sometimes the only means of redressing discrimination, and categorically rejecting such damages would leave victims of discrimination without relief.
Notwithstanding these points, in a 6-3 decision, the Court held that because emotional distress damages are generally not available in contract cases, recipients of federal funding were not on fair notice that they would be subject to such liability as a condition of accepting federal funds. The Court’s decision weakens these antidiscrimination statutes by denying victims of race, sex, and disability discrimination the ability to recover for the humiliation and degradation caused by discriminatory treatment.
For over 100 years, the State of New York has required persons to show “proper cause,” or a special need for self-protection, to carry a concealed firearm outside their home. Two plaintiffs in New York State Rifle & Pistol Association, Inc., et al. v. Bruen applied for an unrestricted concealed-carry license—that would permit them to carry concealed handguns anywhere in the state—even though they could not show any special need for self-protection. Their applications were denied, and they brought suit challenging the law. Their challenges were rejected by the district court and the Second Circuit, which upheld New York’s law as a reasonable restriction on firearms consistent with Supreme Court precedent.
In a 6-3 decision, the Supreme Court reversed the lower courts’ decisions and struck down the New York law, holding that the proper cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Second Amendment, which applies to the states as a result of the Fourteenth Amendment. The majority of the court rejected the framework employed by the Second Circuit and every other Court of Appeals for analyzing the Second Amendment, which permitted consideration of the strength of the state’s interest supporting a firearms regulation. Under the Supreme Court’s new test, the only relevant consideration in analyzing the constitutionality of a gun control regulation is whether the regulation is consistent with historical regulations of firearms.
The dissenting justices pointed out that the Court’s decision “demonstrates the practical problems with its history-only approach” and that “[o]nly by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York’s law is ‘not consistent with the Nation’s historical tradition of firearm regulation.’” The dissent also stressed that the Court’s refusal to consider the government interests that justify a challenged gun regulation is justified neither by the Constitution nor the Court’s precedents. Instead, “when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms.”
As seen so tragically in Buffalo, New York, Uvalde, Texas, and countless other communities, gun violence continues to inflict terror and pain across the country. Concealed-carry restrictions and other limitations on the public carrying of firearms have been effective measures for reducing firearm violence, and studies demonstrate that the fewer guns there are on the street, the less likely someone will be killed by a gun in public. As detailed in an amicus brief filed by LDF and the National Urban League, the lifesaving impact of concealed carry restrictions is especially important for Black people who are disproportionately likely to die from gun violence. Black people are targets of white supremacist violence, and are at risk from gun violence at the hands of white people carrying concealed weapons who may act on fears rooted in anti-Black bias. The Court’s decision in Bruen is therefore likely to further burden the people and communities most harmed by gun violence by making it more difficult for states to enact and maintain lifesaving gun control measures.
In the amicus brief, LDF also recognized serious concerns about the racially discriminatory application of firearms regulations and emphasized our commitment to eradicating such discrimination. But these concerns, which were not the basis of the Supreme Court’s decision in Bruen, do not justify the wholesale invalidation of reasonable gun control laws under the Second Amendment.
In a decision issued on June 24, 2022, the Supreme Court upheld a Mississippi law banning abortion care after 15 weeks of pregnancy and overturned Roe v. Wade, 410 U. S. 113 (1973), the case in which the Court first recognized an individual’s constitutional right to obtain abortion care and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), in which the Court affirmed the recognition of that right. Justice Alito wrote the opinion for the majority, which was joined by Justices Thomas, Gorsuch, Barrett, and Kavanaugh. Chief Justice Roberts agreed with the Court’s judgment upholding Mississippi’s law but did not join its opinion overturning Roe and Casey. Justices Breyer, Sotomayor, and Kagan issued a join dissent, explaining that the majority’s decision was fundamentally inconsistent with the rule of law, would undermine the Court’s legitimacy, and would have a devastating impact on the lives of people who can get pregnant. In their words: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
In overruling Roe and Casey, the majority noted that the text of the Constitution does not include an explicit reference to such a right and then concluded that the right to abortion care is not a liberty interest implicitly protected under the due process of the Fourteenth Amendment because it is not a right sufficiently deeply rooted in American history and tradition, and in particular was not widely recognized as a fundamental right at the time the Amendment was adopted in 1868. As the dissent pointed out, the majority’s approach to constitutional adjudication was foreclosed by decades of precedent recognizing that the “liberty” protected by the Fourteenth Amendment is not limited by laws and practices of 150 years ago. As the dissenters further explained: “of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.’”
“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
Justice Thomas wrote a concurrence in which he identified each of the Court’s prior decisions recognizing rights based in substantive due process—the doctrine underlying Roe—as “demonstrably erroneous,” and invited the Court to fulfill “a duty to ‘correct the error’” by reconsidering the decisions in Obergefell v. Hodges, 576 U.S. 644 (2015) (recognizing a right to same-sex marriage), Lawrence v. Texas, 539 US 558 (2003), (recognizing a right to engage in same-sex intimate relationships), and Griswold v. Connecticut, 381 US 479 (1965) (recognizing the right to contraception and the right to privacy more generally). In this respect, Justice Thomas appeared to undermine the majority opinion’s assertion that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” The majority had suggested that abortion was unique because it implicates “potential life.” In a separate concurring opinion, Justice Kavanaugh likewise stated that “overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
Justice Kavanaugh addressed several questions implicated by the parties’ arguments about the right to abortion care but not directly addressed in the majority opinion. He also noted that the constitutional right to interstate travel should guarantee that a resident of one state remains free to travel to other states to obtain abortion care and that the Due Process Clause and the Ex Post Facto clause would prevent states from retroactively imposing liability for abortion care obtained or provided before the Dobbs decision.
The consequences of Dobbs are grave. As aptly summarized by the joint dissent: “Now a new and bare majority of this Court . . . overrules Roe and Casey. . . . It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”
In five of the six redistricting cycles since 1960, the U.S. Department of Justice or federal courts have found that Alabama’s legislative districts—congressional, state, or both—violate the rights of voters under the U.S. Constitution or the Voting Rights Act (VRA). The districts Alabama enacted after the 2020 census continued this pattern: while Black people comprise 27% of Alabama’s population, they have an opportunity to elect candidates of choice in only one of seven (14%) congressional districts. Additionally, in this latest round of drawing political districts, legislative leaders drew political maps in secret, and at the 11th hour, presented the maps without an opportunity for meaningful public input.
On November 15, 2021, LDF filed a lawsuit in federal court on behalf of Black voters, challenging Alabama’s congressional redistricting map because, among other things, it denies Black residents equal opportunity to participate in the political process and elect candidates of choice, in violation of Section 2 of the Voting Rights Act of 1965. Plaintiffs requested the federal court step in to enjoin—or halt—the maps’ implementation to prevent harms to Black Alabamians. On January 24, 2022, a unanimous three-judge federal court, two of whom were appointed by President Trump, recognized that Plaintiffs were likely to succeed on their claim and granted the Plaintiffs’ request. The court ordered the state Legislature to draft a new congressional map that complies with the Voting Rights Act by including two districts where Black voters have the opportunity to elect candidates of their choice. The state appealed this ruling to the Supreme Court, asking the Court to temporarily halt the district court’s ruling and allow its discriminatory redistricting plan to remain in effect through the 2022 elections. On February 7, 2022, the Supreme Court granted Alabama’s request in a 5-4 vote, staying the district court’s order and noting probable jurisdiction in our case. Oral argument is set for the October Term.
By taking up Merrill v. Milligan, the Supreme Court may be poised to issue a major new decision about the scope of the Voting Rights Act. Congress enacted the VRA under its authority to enforce the Fifteenth Amendment to the U.S. Constitution, after nearly a century of overt and subtle acts of discrimination had rendered that Amendment—and its promise of equal voting rights—illusory in much of the country. The VRA has been one of the nation’s most effective civil rights laws, and it has evolved through a series of amendments in 1970, 1975, 1982, 1992, and 2006. In its appeal, Alabama has offered an interpretation of Section 2 that would contort the VRA from a law that seeks to remedy persisting racism in American politics, to one that ignores the effects of race on how Alabamians vote, where they live, and their access to electoral opportunities. This case therefore is likely to be one of the most momentous decisions of the 2022 Term.
LDF has been closely monitoring the redistricting process in key states to ensure that the process is transparent and communities have a say in how electoral lines will be drawn.