Rule of Law

June 2024 Newsletter: Fighting for the Constitution’s Progressive Promise at the Supreme Court

As we enter June, all eyes are on the Supreme Court, and there will be a lot of discussion in the press about whether the justices are taking an “originalist” approach to constitutional interpretation. But too many of these analyses of the Court may assume that turning to history necessarily leads to conservative outcomes. At the Constitutional Accountability Center, we believe that the text, history, and values of the Constitution, as amended over time by We the People, lead to progressive outcomes.

This Term has also already shown that when the Court meaningfully engages with the text and history of statutes and the Constitution, it can reach outcomes that may seem surprising given this conservative Court. In Consumer Financial Protection Bureau v. Community Financial Services Association, Justice Thomas wrote the majority opinion upholding the CFPB’s funding structure, echoing historical arguments CAC made in our brief on behalf of professors of history and constitutional law. And in Cantero v. Bank of America, the Supreme Court delivered a win for honest textualism and for consumers, rejecting an argument that could have undermined states’ ability to regulate banks. These victories demonstrate how, when the Court seriously grapples with the text and history presented in CAC’s briefs, everyday Americans benefit.

Of course, as we unfortunately know all too well, sometimes even compelling arguments grounded in text and history aren’t enough. For example, this Term, the Court’s conservative wing turned its back on key elements of the Constitution’s promise in Alexander v. South Carolina Conference of the NAACP. As CAC’s David Gans wrote in reaction to the ruling, by making it more difficult for voters of color to challenge racial gerrymandering, “the conservative majority turns a blind eye to a long history of racial gerrymanders that have weakened Black voting strength; our Constitution’s text and history that demand racial equality at the polls; and the proper role of appellate courts.” In doing so, the conservative supermajority struck a severe blow to our Constitution’s promise of a multiracial democracy. Miriam Becker-Cohen and David Gans explained in a recent Mother Jones article that many of the cases the Court is deciding this summer go to the very heart of our democracy. In every one of them, CAC has filed a brief showing why faithful adherence to text and history leads to progressive outcomes.

As CAC’s Chief Counsel Brianne Gorod explained in a National Law Journal story highlighting CAC’s work, “It can be true that there are cases in which even the self-professed originalists on the court either ignore history or distort history to reach the results that they want. That’s certainly the case. And there are, unfortunately, many examples of that, but I don’t think that’s a reason for progressives not to make arguments showing what the text [and] history of the Constitution truly means and what it truly requires.”

CAC’s approach, focused on text and history, counters ahistoric conservative legal movement extremism and offers a valuable perspective on our Constitution. We’ll continue offering the Court that approach in a wide array of cases, just as we’ve been doing since our founding in 2008. The Court may currently be conservative, but we remain committed, day in and day out, to showing that the Constitution isn’t.

  • Tahirih Justice Center v. Gaynor — The United States District Court for the District of Columbia is considering a challenge to the Trump Administration’s effort to dramatically restrict eligibility for asylum through a regulation that was approved by an illegally serving Acting Secretary of Homeland Security. In 2021, CAC filed a lawsuit against the Department of Homeland Security on behalf of the Tahirih Justice Center and Ayuda, Inc., arguing that the regulation is invalid because the purported Acting Secretary who approved the regulation on behalf of DHS had no authority to be the Acting Secretary. CAC filed a motion for partial summary judgment asking the court to vacate the asylum regulation. D.C. District Court, motion for partial summary judgment filed May 31.
  • Cantero v. Bank of AmericaCAC WIN — In a unanimous ruling, the Court held that the Second Circuit had not appropriately assessed whether a New York State law that protects homeowners “prevents or significantly interferes with” national banks’ performance of public functions. The Supreme Court vacated the lower court’s judgment and remanded the case for further proceedings. Supreme Court, decision rendered May 30.
  • Villarreal v. Alaniz — The Supreme Court is being asked to consider whether the Fifth Circuit erred in granting qualified immunity to officials who arrested and prosecuted a journalist simply for asking a police officer a question. CAC filed a brief in support of the petition that urged the Court to summarily reverse the Fifth Circuit’s ruling. Our brief explains that 42 U.S.C. § 1983 was enacted, in part, to make real the First Amendment’s promise to protect the speech of all people, even those who criticize authorities. Supreme Court, filed May 24.
  • Alexander v. The South Carolina Conference of the NAACP — In a 6-3 decision, the Supreme Court ruled that South Carolina’s District 1 is not a racial gerrymander in violation of the Fourteenth Amendment. Supreme Court, decision rendered May 23.
  • Oklahoma v. United States Department of Health and Human Services — The United States Court of Appeals for the Tenth Circuit is considering whether Title X reproductive healthcare clinics in Oklahoma can defy the federal requirement to offer counseling and referral for abortion when requested by a patient. Oklahoma claims that under the Spending Clause, it was never obligated to comply with the counseling and referral requirement in the first place because the requirement was set forth in a regulation, as opposed to a statute. CAC’s brief in support of the Department of Health and Human services explains why this is wrong. Tenth Circuit, May 23.
  • Consumer Financial Protection Bureau v. Community Financial Services Association of AmericaCAC WIN — The Supreme Court upheld the funding structure of the CFPB, reversing the judgment of the Fifth Circuit. The Court held that the statute that authorizes the Bureau to draw money from the Federal Reserve System satisfies the requirements of the Appropriations Clause. Supreme Court, decision rendered May 16.
  • Culley v. Marshall — In a 6-3 decision, the Court held that vehicle owners are not immediately entitled to a preliminary hearing when their vehicles are seized but must instead wait until the forfeiture proceeding to assert their rights. In a concurrence, however, two Justices wrote to highlight that other aspects of modern civil forfeiture may violate due process. Supreme Court, decision rendered May 9.

  • June 5: CAC Chief Counsel Brianne Gorod was quoted in an article in discussing why the right to a trial by jury in criminal court proceedings was so important to the Framers. “Why Americans Have a Right to Trial by Jury.”
  • May 24: CAC Appellate Counsel Miriam Becker-Cohen and Civil and Human Rights Director David Gans were quoted in another article in Mother Jones discussing how central American democracy is to many of the cases being decided by the Supreme Court this Term. “This Supreme Court Term Was All About Undoing Democracy.”
  • May 15: CAC’s research on the Chamber of Commerce and its wins at the Supreme Court in the 2020-2021 Term was cited in an article in Balls and Strikes that discusses the Fifth Circuit’s tendency toward pro-corporate rulings. “The Fifth Circuit Is In the Tank For Corporate Power.”

CAC Welcomes Our Summer Interns, Zach, Harith, Indu, and Alex!

We are excited to welcome this year’s class of legal interns to CAC! Joining us for this summer are Zach Brown (Yale, ‘26), Harith Khawaja (Stanford, ‘25), Indu Pandey (Yale, ‘26), and Alex Siegal (Harvard, ‘26). Thank you to all our interns for helping us with our important work!