Supreme Court keeps comforting the comfortable and afflicting the afflicted

We’re nearing the end of June, and you know what that means: It’s time for the Supreme Court to drop its most important decisions. And with a conservative supermajority, that means it’s just a bunch of punching down. 

Justice Ketanji Brown Jackson’s dissent in Diamond Alternative v. EPA offers the best and most damning explanation of the Supreme Court’s current philosophy.

Factually, Diamond Alternative is about California’s ability to regulate automobile pollution in the state by requiring more stringent emission standards than those of the federal Clean Air Act. California began regulating emissions before the passage of the Clean Air Act, making it the only state that can set its own emissions standards—as long as the Environmental Protection Agency approves. 

You’ve probably figured out that Diamond Alternative Energy is not a car company, so why are we here? The plaintiff is a fuel producer that’s not regulated by this law at all. But it came up with a genius theory: California’s requirement that 15% of the state’s automobiles must be electric hurts Diamond Alternative because, if fewer gas-powered cars are sold, demand for its fuel decreases. 

This is an issue of standing, or who gets to bring a case. You can’t bring a lawsuit over something that doesn’t affect you, even if it makes you really sad. And you can’t claim something affects you by hypothesizing about it might someday trickle down and hurt you. 

Fuel producers don’t have a dog in this fight, but they wanted to. And the conservatives on the Supreme Court—and Justice Elena Kagan, who should really know better—wanted them to as well. 

Justice Jackson’s dissent calls this what it is: a giveaway to corporate fuel interests. When regular people come before the court, it isn’t nearly as eager to find a way to let them pursue a case. But apparently powerful petrochemical companies need their day in court, even if they can’t show any harm.

Things really aren’t any better in McLaughlin Chiropractic v. McKesson, in which a health care company sent unsolicited faxes to McLaughlin Chiropractic, who then sued under the Telephone Consumer Protection Act, which prohibits unsolicited intrusive telemarketing. 

The Hobbs Act, gives the federal appellate courts exclusive jurisdiction to determine the validity of a challenged agency rule in what is known as pre-enforcement judicial review. There, a party asks the court of appeals to interpret the rule before the agency brings any enforcement actions against it. And if a party violates the rule, it’s not supposed to go to the federal district court to challenge it. 

This is weedy, so let’s have Justice Kagan explain: 

Imagine the Nuclear Regulatory Commission (NRC) issues a rule to ensure the safe handling of nuclear material—for example, by prohibiting the shipment of (radioactive) plutonium by air [...] And imagine, too, that a regulated party thinks the rule exceeds the NRC’s statutory authority. Must the party challenge the rule right away—before putting plutonium on a plane— by bringing its arguments to a court of appeals? Or can the party send plutonium through the skies without regard to the rule, and contest its validity only when (really, if ) the NRC initiates an enforcement action? Today, the Court picks the second option: ship first, litigate later.

That doesn’t sound safe, but is anyone surprised the court found another way to let companies ignore regulations without consequences?

How about a case where the majority ignores the plain text of the Americans with Disabilities Act? 

Meet Stanley v. City of Sanford. During the time the plaintiff, Karyn Stanley, was employed as a firefighter in Sanford, Florida, the city changed its firefighter retirement benefits. When Stanley began working with the city, it paid for post-retirement health insurance until age 65 for firefighters with 25 years of service or who retired earlier due to a disability. In 2003, it changed the benefit for the latter group only, capping health insurance payments at 24 months. 

Justice Jackson, again came in hot with a dissent, pointing out that the ADA is pretty clear that this is illegal. It prohibits disability discrimination not just in terms of employee pay, but also “other terms, conditions, and privileges of employment.” 

But the Supreme Court majority invented a new interpretation that doesn’t protect a retiree who was once in the workforce. It’s a go-ahead for employers to slash benefits for disabled people as long as they do it post-retirement. Somehow, that doesn’t seem like what Congress intended. 

Saving the worst for last, there’s the heartbreaking decision in  United States v. Skremetti, where the majority upheld Tennessee’s ban on gender-affirming care—at least for trans kids. 

Need puberty blockers because of gender dysphoria? Nope, not even if your parents agree. Want puberty blockers for any other reason, like early onset puberty? Well, that’s totally cool. 

This is open and obvious discrimination on the basis of sex. 

“Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl,” Justice Sonia Sotomayor wrote in her dissent.

The court’s conservatives twist themselves in knots trying to get around this, settling on an argument that the Tennessee law doesn’t ban gender-affirming care based on sex, but instead for certain medical uses regardless of sex. So it’s totally fine and cool and good to criminalize the same medical care for trans kids. 

So last week’s winners? Fuel companies, scofflaw telemarketers, employers that discriminate against people with disabilities, and transphobic bigots. Last week’s losers? Everyone else. All of us.