Illustration: Maliha Abidi / Adobe Stock Artist Development Fund

By Felipe De La Hoz

Let’s turn to the subject of the moment: the Supreme Court. At this point, you probably don’t need us to tell you that the nation’s highest court has overruled Roe v. Wade, the nearly 50-year-old precedent decision that established a federal right to abortion. You’ve seen the headlines, watched the protests, maybe joined in on some.

What you might not know is that this was just one of a series of consequential decisions this month that are shifting the spectrum of your rights and the government’s relationship to the public. Given that SCOTUS is functionally now a major policy-making actor at the federal level, we thought it would be good for our Civics reporter, Felipe De La Hoz, to break down not only what some of these decisions were but what they mean in terms of the court’s approach and the broader significance to law and society, in a way that’s understandable to non-lawyers.

An increase in state power over the individual

Let’s take it in two sections, the first of which I’ll call an increase in state power over the individual. There are a few cases that are representative of this, including two that directly strip away your ability to hold federal officials responsible for violating your constitutional rights. In Egbert v. Boule, the court ruled that an innkeeper and sometimes federal informant in Washington State, along the Canadian border, could not sue an agent who had come onto his property and confronted him over the questioning of a guest, eventually pushing him to the ground at his own inn. The agent then allegedly retaliated further by having state and IRS investigations launched into the innkeeper.

While the court doesn’t dispute this version of events, it ruled that because Congress hadn’t explicitly created an avenue for recourse, the innkeeper could not sue the agent for violating his constitutional rights, narrowing an earlier precedent known as Bivens, which had held that in some circumstances, individuals could sue federal agents for such violations even if they were acting on behalf of the government. The justices pointed out that there was an internal process to punish officers who overstepped constitutional bounds, though it’s one where the victim has no real input and gets no restitution.

It turns out Miranda warnings are not a constitutional right. Photo: Rawpixel / iStock

Your so-called Miranda rights

In Vega v. Tekoh, the court ruled that a man who was interrogated by LA County sheriff’s deputies who had not read him his so-called Miranda rights — the famous declarations officers make when taking someone into custody, including a statement of the right to remain silent, which appear in almost every cop show or movie — could not sue for civil damages because the Miranda warning was not itself a constitutional right, but a mechanism to safeguard a Fifth Amendment right against self-incrimination.

What both rulings have in common is that they acknowledge the existence of certain constitutional protections but severely limit a person’s ability to actually seek restitution for government agents violating these protections. Effectively, they acknowledge that you have inalienable rights but foreclose most avenues to assert these rights in court, which for most people is the only place to assert your rights. In doing so, it effectively lessens the government’s burden to comply with these rights as its agents cannot be held responsible for violating them. They draw a vision for a country where rights exist on paper but are substantively inaccessible.

Constraints on government regulation and action for the public good

The other section is what I’ll call constraints on government regulation and action for the public good. The most well-known of these is, of course, the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe. SCOTUS’ underlying legal mechanism here was deciding that there was no deeply rooted historical right to abortion, and therefore the earlier decision had essentially manufactured one through finding it protected under a general right to privacy. In doing so, they handed authority over abortion to states, many of which had already moved or are moving quickly toward full or partial bans.

The Environmental Protection Agency no longer has the authority to cap greenhouse gas emissions. Photo: Landon Parenteau / Unsplash

Environmental impacts 

Just earlier today, the court also ruled in West Virginia v. Environmental Protection Agency that the Environmental Protection Agency did not have the authority to cap greenhouse gas emissions via an approach known as “generation shifting,” or having power grids transition to cleaner energy sources, because that was an interpretation of regulatory authority that was not explicitly granted by Congress. This ruling more broadly relates to the concept of the administrative state, i.e. the idea that, since Congress cannot possibly legislate the details of every program and government regulation, executive officials and agencies make discretionary determinations around how to best carry out Congress’ wishes.

For example, Congress might say that food cannot be sold unless it is free of food-borne illnesses, and then it is up to the FDA and USDA to use their particular expertise to come up with specific standards to, say, test the food and processes to recall food that’s noncompliant. While this ruling did not completely terminate this ability to regulate, as some had feared, it used the so-called major questions doctrine, which allows courts to step in and override agency determinations on significant policies, to strike down the EPA’s ability to regulate emissions. This could have major impacts on the government’s ability to regulate all sorts of things, from food to medicine to water.

The throughline throughout has been a dropping of a principle known as stare decisis, which fundamentally holds that precedents should be respected, and a turn toward the courts imposing justices’ conservative political preferences in ways that seem generally inconsistent. In another recent ruling finding that New York’s gun licensing process is illegal, SCOTUS argued that there is no deep history of states regulating gun rights despite the fact that this was a century-old law. In the abortion decision, it found practically the exact opposite.

The collective impact of all this is a radical shift in civil society conducted over just one month, whose impact we’ll only really be feeling in the next few years. It is a paradigm of less ability to hold government officials accountable while the government itself is constrained in its ability to take broad action in the name of the public and public health.

Felipe De La Hoz is an immigration-focused journalist who has written investigative and analytic articles, explainers, essays, and columns for the New Republic, The Washington Post, New York Mag, Slate,...

Leave a comment

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.