As the Supreme Court’s 2020 term draws to a close, Harvard Law faculty weigh in on the latest major decisions.
An op-ed by Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer: The Voting Rights Act regime as we knew it is gone, and it’s not coming back. Once thought of as the crown jewel of the Second Reconstruction, the VRA has lost its luster. For the past decade or so, the Supreme Court has systematically reduced the scope and reach of the law. The Court’s decision last week in Brnovich v. Democratic National Committee is only the latest case, and certainly will not be the last, to interpret the act in a manner that will sideline it—permanently.
On June 23, the Supreme Court dealt a blow to organized labor. In Cedar Point Nursery v. Hassid, the court ruled that a California regulation that enabled labor organizers to meet with workers on large farms violated farm owners’ property rights. … Legal academics like Niko Bowie of Harvard Law School point out that the Supreme Court’s reasoning could compromise anti-discrimination laws, fair housing laws and health and safety regulations of businesses. Bowie shows how White segregationists in the 1960s used the same legal reasoning the Supreme Court does in Cedar Point Nursery.
In other news, we spoke with Harvard Law Professor Benjamin Sachs on a recent Supreme Court ruling that puts property rights above farmworkers’ rights and Elizabeth Lalasz about the Chicago nurses strike last week. And we discuss Black TikTok withholding their labor and a bill to protect workers from ageism, with recommended reading on a radical union on the high seas and socialism at Buffalo’s grassroots.
The Supreme Court delivered their two final rulings of the term today: in a case examining Arizona voting restrictions, the six conservative justices found that two laws relating to provisional and absentee ballots did not violate the federal Voting Rights Act, and the court also struck down a California law requiring non-profits to file a list of their large donors with the state, arguing that identifying large donors limits their free speech protections by exposing them to potential harassment. We talk about the significance of these rulings with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR Legal Analyst, and Michael Curry, head of the Massachusetts League of Community Health Centers, former president of the Boston branch of NAACP, and a member of the NAACP’s board of directors.
An op-ed by Nicholas Stephanopoulos: Today’s conservative judges pride themselves on being textualists. When interpreting a statute, they always start with the law’s text. Unless the law is ambiguous, they end with the text, too. As Justice Samuel A. Alito Jr. put it just last year, the courts’ focus must never waver from what a statute’s “words were understood to mean at the time of enactment.” Any other approach, even one that “sails under a textualist flag,” Alito lectured, is “like a pirate ship” — inappropriate and illegitimate. So it was a shock to see the Supreme Court, in an opinion authored by none other than Alito, stacking one extra-textual constraint after another onto Section 2 of the Voting Rights Act. That provision prohibits any “standard, practice, or procedure” that makes it disproportionately harder for minority citizens to vote. In that situation, voting isn’t “equally open” to citizens of all races, and minority citizens “have less opportunity” to vote.
Legal experts clashed on Wednesday over the wisdom of proposals to reduce the Supreme Court’s power to strike down democratically enacted laws, as President Biden’s commission on judicial branch overhauls held its first public hearing with witnesses. … Nikolas Bowie, a Harvard Law School professor, denounced the power of the Supreme Court to strike down laws enacted by Congress as an “antidemocratic superweapon” and said, “I encourage you to advocate for reforms that will abolish the practice.” … But Noah Feldman, another Harvard Law professor, warned against reducing the Supreme Court’s power of judicial review. While he agreed that the court had sometimes issued bad decisions, he argued that reducing judicial checks on the legislative and executive branches would pose greater risks.
In the 1960s, the United Farm Workers began demanding better pay and working conditions for California’s agricultural workers, who were subject to egregious exploitation and abuse. Led by César Chávez and Dolores Huerta, the union’s campaign culminated in the passage of the California Agricultural Labor Relations Act. …To avoid answering this question, Roberts invented exceptions to Cedar Point’s new rule, including “a business generally open to the public.” As Harvard Law professor Niko Bowie wrote on Wednesday, however, the chief justice’s improvised exceptions won’t actually prevent businesses from refashioning typical regulations as a “taking.” Nondiscrimination laws “take” a club’s right to exclude women, religious minorities, and other disfavored groups.
In a 6-3 ruling along ideological lines, the Supreme Court struck down a California law that gave union organizers access to farm sites. The decision means people seeking out farm workers for unionization purposes going forward will be violating the property rights of agricultural landowners and food processors, who can now legally keep them off their land.
Critics lamented the result. Niko Bowie, a professor at Harvard Law, wrote that the regulation “was the product of a years-long campaign by César Chávez” and the United Farm Workers “to force agribusiness to respect the dignity and workplace rights of agricultural workers.”
An op-ed by Noah Feldman: The Supreme Court’s decision in the shareholders’ suit against Goldman Sachs over the bank’s transparency was extremely subtle, leaving enough room for both sides to say that they were happy with it. And it did very little, if anything, to make new law.
So what were the justices doing, exactly? The answer is that, in a high-profile case, they were assuring themselves that they had a say in pushing the lower courts toward what they consider common sense.
An op-ed by Noah Feldman: In an important 9-0 opinion, the Supreme Court upheld a lower court decision saying that the NCAA is violating the antitrust laws by denying educational benefits to student athletes. The court didn’t say it’s unlawful for the NCAA to stop member schools from paying athletes outright — but only because that issue wasn’t before the court. The opinion hints that, in a future decision, the justices could hold that antitrust law requires the NCAA to let colleges pay salaries to athletes. And in a separate concurrence, Justice Brett Kavanaugh said exactly that.
An op-ed by Noah Feldman: The Supreme Court almost put an end to the extended litigation about the takeover of Fannie Mae and Freddie Mac by a conservator — but it didn’t destroy shareholders’ hopes altogether.
In an opinion that was nearly unanimous, the justices definitively rejected the companies’ shareholders’ claim that the Federal Housing Finance Agency had gone beyond its powers as conservator when it agreed to a Treasury Department takeover of the federally backed home mortgage companies and conducted the “net worth sweep” that transferred the companies’ assets to Treasury in 2012.
An op-ed by Noah Feldman: In a landmark First Amendment opinion, the Supreme Court has limited schools’ ability to punish students for off-campus speech. In a case involving a cheerleader who was suspended from her team after criticizing her coaches and the cheer program in a profane Snapchat post, the court held that the school had gone too far. While the court said that some off-campus speech — like bullying and harassment — could still be regulated by schools, it laid out general guidelines that were intended to protect students from having their online speech monitored and regulated 24-7 by the schools they attend.
An op-ed by Noah Feldman: In a 5-4 decision with important implications for class actions and for Congress’s ability to authorize lawsuits of all kinds, the Supreme Court has rejected the idea that violation of a statute can ever be enough grounds for a lawsuit unless it comes with a more concrete “injury in fact” to potential plaintiffs. Corporate defendants and the corporate bar will rejoice over the outcome, even as the plaintiffs’ bar and progressives will decry it. Somewhat remarkably, Justice Clarence Thomas joined the court’s three liberals in dissent.
An op-ed by Noah Feldman: So far, most of the Supreme Court’s opinions this term have featured a high degree of consensus. The conservative majority has mostly avoided making new law that would be partially rejected by the three liberal justices.
The exception that proves the rule is a striking decision issued on Thursday involving a California law that gives union organizers physical access to farms in order to try to unionize workers. In the 6-3 decision, with the court divided along ideological lines, the conservatives held that the law amounted to a taking of private property that requires compensation under the Fifth Amendment to the Constitution. Although the court did not go so far as to say so, the strong implication is that the law will now no longer be operative.