The Supreme Court’s 2023-2024 term will be remembered above all for one case: Trump v. United States, in which the court absolved former President Donald Trump of criminal liability for using the power of his office to disrupt the peaceful transition of power after he lost the 2020 election.
The ACLU filed an amicus brief in the case, urging the justices to declare that no person, including the president, is above the law. But the Supreme Court’s six Republican-appointed justices voted to abandon the Constitution and its original meaning, creating immunity that effectively turns the president into a king.
The judges’ seeming justification for granting this immunity is baseless. They speculated that a president would be less motivated to perform his duties vigorously if he did not know he could be impunity for crimes. But before this ruling, every president faced the risk of prosecution if he committed a crime, and there is no evidence that American presidents have hesitated to exercise their powers. This ruling underscores the imperative for institutions like ours to pursue constitutional checks on presidents while in office, and for voters to vote as if their rights depended on it to hold presidents accountable.
While the presidential immunity case has rightfully garnered much of the public attention, the Supreme Court’s most recent term has seen many other important decisions handed down. It has issued landmark decisions protecting First Amendment rights, dismissing challenges to medication abortions, and upholding Second Amendment rights in challenges to laws banning gun ownership for those subject to domestic violence protective orders. The Court has also dealt several blows to our rights, denying constitutional protections to a homeless person punished for sleeping in public, a black voter discriminated against in South Carolina, and a U.S. citizen whose foreign husband was denied a visa without explanation.
A look back at civil rights and civil liberties decisions during this term paints a complicated picture, but to be clear, this court was prepared to create new constitutional protections for former President Trump while rejecting the claims of the powerless.
In two high-profile cases on reproductive health, the courts upheld access to abortion without addressing the substance of the issues at stake. In FDA v. Hippocratic Medical Union, anti-abortion doctors sued to challenge FDA rules that would have made it easier to access medication abortions, the most common form of abortion. Lower courts ruled against the FDA, but the Supreme Court unanimously dismissed the challenge, ruling that the doctors had no “standing” to challenge the FDA rules because they had not been personally harmed by these rules. This is a victory for access to medication abortions, but the fight is far from over. Politicians have vowed to continue their efforts to restrict abortion access nationwide.
The second abortion case, Moyle v. United States, asked whether a federal law requiring emergency rooms to provide stabilizing care to all patients in an emergency requires hospitals to provide abortions when it is a necessary treatment, even if state law prohibits abortion under such circumstances. The case began in Idaho, where state law prohibits abortion unless it is necessary to save the mother’s life. After a federal district court properly ruled that federal law takes precedence over state bans in emergency situations, the Supreme Court prematurely stepped in and suspended the lower court’s decision so it could make its ruling. But after hearing arguments, the court ultimately dismissed the case and reinstated the lower court’s decision protecting the right to abortion in emergency situations. For now, the case will continue in the lower courts.
This term, the Supreme Court focused on First Amendment civil rights. In National Rifle Association v. Varro, the ACLU represented the NRA, arguing that New York’s top financial regulator violated the First Amendment by targeting the organization because of its political views and trying to force banks and insurance companies to blacklist it. The Supreme Court ruled unanimously in our favor. While the ACLU often disagrees with the NRA’s arguments, we defended their rights before the Supreme Court because First Amendment principles were at stake. Had we lost the case, Republican governors in states would have been free to use similar tactics against immigrant rights groups, gay rights groups, or the ACLU itself. This case establishes that while government officials are free to express their views, they cannot use their public power to force others to punish organizations for their political ideology.
The Court also issued important decisions protecting free speech online. The Internet is not new, but decades after its inception, countries are still trying to figure out how to address online speech rights. In two cases challenging Texas and Florida laws that regulated the terms under which major social media platforms could moderate the content they display, the Court declared that social media platforms, like newspapers and bookstores, have a First Amendment right to choose how they curate the content they display, sell, or make public, as the ACLU argued in its amicus brief. In two other online speech cases, the Court ruled that if government officials speak in their official government capacity on their personal online profiles, citizens who are blocked from those profiles may sue to challenge the exclusion.
In the only voting rights case this term, six Republican-appointed justices united to overturn a unanimous lower court decision that South Carolina had engaged in racially unfair redistricting. The ACLU, along with the Legal Defense Fund and Arnold & Porter, represented the case, but the court ignored its own precedent by siding with Republican lawmakers, making it much harder to challenge racially unfair redistricting in the future.
After a lengthy trial, the three-judge court unanimously ruled that South Carolina had unfairly used race to draw the boundaries of two adjacent congressional districts, to the detriment of black voters. The mapmakers transferred more than 100,000 more voters than would have been necessary to equalize the districts’ populations. By disproportionately moving predominantly black neighborhoods, the mapmakers had programmed their computers to display the racial impact of every line-drawing choice. They ultimately ensured that the black voting population did not exceed 17%, a ratio they considered crucial to solidifying Republican dominance. The court found that the South Carolina legislature had used race for partisan purposes in drawing the maps, a practice the Supreme Court has long held to be unconstitutional discrimination. However, in an opinion by Justice Samuel Alito, the court ruled that both politics and race could be potential explanations for congressional redistricting, and that reviewing courts must assume “good faith” even when lower courts have found that lawmakers made decisions based on race.
In an important immigration case, the Court ruled that U.S. citizens have no constitutional right to challenge the denial of a visa to their foreign spouse, even if the denial would prevent them from living together in the United States. In Department of State v. Muñoz, Luis Asensio Cordero, the longtime partner of a U.S. citizen, sought to obtain permanent residency through marriage. Under the complex U.S. immigration laws, he had to leave the country and obtain a visa to re-enter as an immigrant. When he did so, a State Department consular officer denied him a visa without any explanation of the facts. His partner, Sandra Muñoz, sued, arguing that, given the strain it would place on their marriage, she had a right to know the basis for the denial so she could address it.
This is not an unreasonable or unprecedented claim. The Court has previously ruled that if a visa denial violates a U.S. citizen’s constitutional rights, the government’s denial must be based on reasons that are at least “facially legitimate and bona fide.” Muñoz argued that a citizen’s right to live in her home country with her spouse should be a basis for protection. But in another 6-3 decision, the Court ruled that she had no right.
The court also ruled, by a 6-3 vote, that the Eighth Amendment’s prohibition on “cruel and unusual punishment” does not prohibit punishing homeless people for sleeping in public, even when they have nowhere else to go. In Grants Pass, Oregon v. Johnson, the Ninth Circuit found that punishing homeless people for sleeping outdoors is “cruel and unusual” because it punishes them for being homeless. Justice Neil Gorsuch, speaking for his conservative colleagues, rejected that argument, concluding that the Grants Pass law punishes the act of sleeping in public, not for being homeless. But being homeless means having no place to sleep. As Justice Sonia Sotomayor wrote in her dissent, “sleeping is a biological necessity, not a crime.”
With the current term now over, the Court has already agreed to hear two important cases in the next term, with the ACLU representing the bench. The first, United States v. Scrummetti, is a constitutional challenge to Tennessee’s ban on gender-affirming medical treatment for minors. Tennessee is one of many states that have banned gender-affirming medical treatment in recent years, infringing on the medical autonomy of parents, children, and doctors, for the express reason that gender-affirming medical treatment is designed to differ from, rather than conform to, an individual’s sex assigned at birth. The ACLU is challenging these laws, arguing that they violate equal protection by discriminating on the basis of sex and gender identity, and that they infringe on parents’ rights to decide what is best for their children. The second case, Free Speech Coalition v. Paxton, is in which the Court has agreed to hear whether the First Amendment prohibits the state of Texas from requiring adults to submit digital IDs to access websites that contain constitutionally protected sexually explicit material.
Today’s Supreme Court is a tough place to be. That’s why the ACLU launched the State Supreme Court Initiative to advance and protect civil rights and civil freedoms under state constitutions, which are more protective than the U.S. Constitution. But as this term has shown, important victories can be won in federal courts, especially on the Supreme Court. Let’s make one thing clear: The ACLU will never stop fighting for your rights and freedoms, and for a more just America, wherever we are.