The court will hear Carson v. Maine, which asks whether the Constitution requires that states spend public money on explicitly religious education. This is a First Amendment case that should be clear cut—that whole establishment clause business of prohibiting government from “unduly preferring religion over non-religion, or non-religion over religion.” Plaintiffs are challenging Maine’s ban on using state-provided financial aid—public funding from taxpayers—for students to attend religious schools.
It’s also going to take up American Hospital Association v. Becerra. This one is a challenge to federal regulations that reduced Medicare reimbursement rates to hospitals for certain prescription drugs. It’s another run at the government’s ability to make regulation and could weaken or overturn the Chevron deference, or Chevron doctrine. That’s an administrative law principle dating back to 1984, and the Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. decision. It compels federal courts to defer to a federal agency’s interpretation and implementation of laws delegated to them to administer in the case of an ambiguous statute or when it lacks direct language on specific points.
This is all about the ability of the government, of an administration, to implement the laws Congress passes. In this case, how the government calculates Medicare reimbursements to hospitals for prescription drugs. The larger implication here, though, is the court taking on the ability of the Biden administration to make and implement rules. It could set up all sorts of conservative challenges to environmental regulations stemming from Biden’s infrastructure plan, for example. It could cripple all future efforts to combat climate change, or expand health care. Or enforce voting rights.
Then there’re the threats. They didn’t take up Berisha v. Lawson, a defamation case that would reconsider New York Times v. Sullivan, which established the principle that the First Amendment that guarantees of freedom of speech and press may protect libelous words about a public official in order to foster vigorous debate about government and public affairs. Clarence Thomas and Neil Gorsuch wrote in dissent that they really wanted to take the case up, and to overturn Sullivan, and in the most wing-nutty way possible.
That’s Thomas and Gorsuch demonstrating just how extreme they want to be. Thomas even invoked the QAnon Pizzagate conspiracy in his dissent, as a reasons to overturn Sullivan. Just to make sure he got “the home of a Satanic child sex abuse ring involving top Democrats such as Hillary Clinton” into the Supreme Court annals.
E.J. Dionne writes—of Thursday’s decision on the Voting Rights Act as well as the Americans for Prosperity decision allowing for more secrecy in the dark money pouring into politics—that the “decisions in both cases could have been written by the Republican National Committee, attorneys for the Koch brothers and advocates of voter suppression.” They essentially were. There’s no daylight between the court’s six-justice majority and the Republican Party. Which is owned by the Kochs and which embraces voter suppression as straight-up policy.
He also writes that two things have to happen now, and he’s absolutely right: The filibuster has to go so that the For the People Act and the John Lewis Voting Rights reauthorization can pass; and the court has to be expanded. Republicans have already packed the court—they’ve done so with three illegitimate Trump justices.
Now President Biden and Democrats have a chance to, well, unpack it. To dilute the Trump/RNC/Koch/Federalist Society’s malign influence and balance it out with four or six or however many additional justices. It is imperative. It is existential.