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    I Couldn’t Believe My Ears: Today’s Surreal Supreme Court

    By John Lewis–

    Two weeks ago, it was already way past time to yank up the invasive weeds that had overrun our backyard after the winter rains. Instead of just enjoying the springtime sunshine as I tended the garden, I came up with what I thought was a great idea: Why not catch up on that week’s U.S. Supreme Court oral arguments at the same time?

    Six hours and 57 minutes of oral arguments later, I had taken in all that the Justices and attorneys had to say about three critical issues before the Court: 1) whether simply being homeless could be criminalized; 2) whether pregnant women (and trans people) could be denied emergency medical care if something went wrong in their pregnancy, and the treatment involved abortion; and 3) whether the President of the United States could commit crimes in office with impunity.

    It all seemed a bit surreal, my hands caked with the earth’s soil as my earbuds transmitted disembodied voices recorded thousands of miles away to me. What was even more surreal was what I heard as I listened.

    The first case addressed whether the city of Grants Pass, Oregon, could make it a crime for an unhoused person to sleep outside in public with a blanket literally anywhere within the city limits day or night. The core issue was whether the city was, in essence, making the status of homelessness a crime. Justice Sonia Sotomayor pointed out how the law singled out unhoused people for prosecution because police had testified that they would not arrest “a stargazer [who] … take[s] a blanket or a sleeping bag out at night to watch the stars and falls asleep,” sleeping “babies who have blankets over them,” or people who fall asleep with a blanket while they lay out in the afternoon sun.

    I was really struck when Justice Elena Kagan reminded the city’s attorney that sleeping is “a biological necessity,” adding that it is “sort of like breathing” and “presumably, you would not think that it’s okay to criminalize breathing in public.” At another point, the attorney alluded to the possibility that, if local shelters were full, unhoused people could simply leave Grants Pass and go somewhere else, whereupon Sotomayor asked that if the shelter beds are full and every city passed such a law: “Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”

    The second case pertained to Idaho’s ban on abortion except to save the life of a pregnant person. Federal law requires hospitals that receive federal funds to stabilize all patients who show up to their emergency room with whatever treatment is needed, including abortion. But as U.S. Solicitor General Elizabeth Prelogar explained to the Court: “In Idaho, doctors have to shut their eyes to everything except death.” She explained that a woman whose pregnancy has medical complications such as “her uterus [is] going to become incredibly scarred because of the bleeding … [or is] about to undergo the possibility of kidney failure” is prohibited from receiving the necessary medical treatment of an abortion in Idaho.

    I was moved when Justice Sotomayor described a real-life example of a pregnant woman living in another state with very strict abortion limitations who, early in her second trimester, went “to the ER because she felt a gush of fluid leave her body … and doctors believe[d] that a medical intervention to terminate her pregnancy [was] needed to reduce the real medical possibility of experiencing sepsis and uncontrolled hemorrhage from the broken sac.” Even though the hospital knew that there were “going to be serious medical complications,” it discharged the woman without providing her the needed abortion because a fetal heartbeat could still be detected and the doctors “couldn’t say she would die.” 

    Sotomayor then recounted that the woman “was horrified [and] went home. The next day, she bled. She passed out. Thankfully [she was] taken to the hospital,” and finally was able to “receive an abortion because she was about to die.” After hearing the Idaho attorney’s equivocating response to Sotomayor’s comments, even very conservative Trump nominee Amy Coney Barrett revealed, “I’m kind of shocked.”   

    The final case dealt with whether Donald Trump or any other president has immunity from criminal prosecution for whatever they do in office as long as it in some way involved an “official act.” Trump’s attorney argued that a president could face criminal prosecution only if Congress first impeached and convicted the president for such an act, and the law clearly indicated that it applied to the president. Under questioning from Justice Kagan, Trump’s attorney argued that, depending on circumstances, a president might be immune from prosecution even if they “sell nuclear secrets to a foreign adversary” or “order the military to stage a coup.”

    Justice Sotomayor asked: “If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?” I was astonished when Trump’s attorney responded that “we can see that could well be an official act,” depending on the circumstances.

    The United Nation’s 1948 Universal Declaration of Human Rights recognizes the right of all people to “food, clothing, housing and medical care.” Even monastic codes over two millennia ago entitled Buddhist renunciants to shelter and medicine. When physicians take the Hippocratic Oath, versions of which date back as early as the third century CE, they swear to its widely understood meaning to “do no harm.” And as Justice Kagan reminded everyone about the purpose of the American war for independence: “Wasn’t the whole point that the president was not a monarch, and the president was not supposed to be above the law?”

    We’ll find out by the end of June what the Supreme Court with its supermajority of conservative, Republican-nominated Justices decides. I hope we’re not faced with a reality as surreal as it sounded it could be through my earbuds two weeks ago.

    John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.

    6/26 and Beyond
    Published on May 9, 2024