Roe Wasn't The Only Thing SCOTUS Overturned Last Year

By , Vice President, Policy & Community Engagement

 The year that just ended was, frankly, disastrous for civil rights in the United States. The Roberts-led Supreme Court, a hyper-partisan body with an extremist rightwing majority, spent 2022 dismantling critical civil rights protections, refusing to introduce urgently needed safeguards, and signaling clearly that it had only just gotten started. 

As we look back on catastrophic rulings that stripped half the country of their reproductive autonomy, further eroded the separation of church and state, and violated tribal sovereignty, we must be prepared for more setbacks in 2023—not least because some of the Court's less well-reported rulings have already laid the necessary groundwork.

Twenty-four hours before we learned of SCOTUS's ruling in Dobbs v. Jackson, the Court issued a ruling in what may have seemed entirely unrelated: Vega v. Tekoh. Largely unnoticed in the furor around Dobbs, Vega quietly gutted one of the few remedies available to anyone whose civil rights are violated by law enforcement officers who detain them—what is better known as our "Miranda rights."

The verbal Miranda Warning emerged from the Court's 1963 ruling in Miranda v. Arizona. It provided an imperfect but critical tool for helping to protect people from law enforcement's more capricious abuses, particularly in vulnerable Black and Brown communities. Under Vega, however, if an individual is interrogated by police without being informed of their Constitutional right to not incriminate themselves, they can ask a court to exclude those un-Mirandized statements, but will not be able to hold the officers legally accountable. This changed reality creates new perils for anyone having to navigate an increasingly hostile legal landscape, not least, pregnant people seeking reproductive healthcare. 

This ignominious end to accountability for officers who fail to deliver the Miranda Warning comes against a backdrop of many other deeply troubling national developments. The right to an equal education, for instance, is under attack by extremists working to remove the history of slavery, Jim Crow, and the Civil Rights Movement from schools—schools that are today more racially segregated than they were in 1954, when Brown v. Board of Education was settled. Similarly, equal voting rights, established by the 14th Amendment during Reconstruction and bolstered in 1965 by the Voting Rights Act, continue to be actively sabotaged by Supreme Court rulings, state laws, and local regulations that serve collectively to threaten that right for millions, mostly Black and Brown people.

Though the right to sue police was not established as a specific remedy for racially inequitable policing, it has its roots in both Reconstruction and the Civil Rights Movement. Passed in 1871 as part of the Third Enforcement Act (also known as the Ku Klux Klan Act), Law 42 USC s1983 came in response to attacks on the voting rights of Black men and provided a mechanism for suing government actors over violations of constitutional rights. The 1963 Miranda ruling built on and advanced the KKK Act.

In the decades since, however, the right to sue law enforcement has been steadily eroded. The Court has significantly expanded the shield that the doctrine of qualified immunity provides for officers, and recently narrowed the right to sue federal law enforcement over constitutional violations. With Vega, the Court is further eroding the right to sue by effectively positing that Miranda rights are not, in fact, rights at all.

It's important to note that, had these civil rights protections been built to last, we might not be facing the onslaught we face today—but each was made intentionally weak. The 13th Amendment, for instance, codified the abolition of chattel slavery in 1865 but came with a loophole allowing structures of anti-Black state violence to remain, replacing slavery with a system of criminalization that plagues Black and Brown communities to this day.

Miranda didn't specifically cover non-White people with its protection and Vega didn't specifically target non-White people with the removal of that protection, but our criminal legal systems have always disproportionately focused the application of state violence on Black and Brown communities. Indeed, today's policing systems have their roots in slave patrols. The decision to gut Miranda will compound the harms, community damage, and intergenerational traumas that burdensome policing already causes within these communities. 

No matter the injustice perpetuated by this country on its people, it inevitably falls heaviest on those communities with the fewest protections—Black and Brown communities, the disabled, LGBTQ+ folks, the poor, and all those whose identities straddle any of those lines. The evisceration of Miranda will serve to compound these injustices exponentially.

And the current Supreme Court is just getting started—the decision to hear the equally obscure case of Moore v. Harper indicates as much. The petitioners in Moore rely on the so-called “independent state legislature doctrine,” which, at its most extreme, maintains that governors lack the authority to veto election laws passed by their own state legislatures, and that, furthermore, state supreme courts lack the authority to strike such laws down. The doctrine has been repeatedly rejected by the Court in the past, but the current Court has demonstrated that it is unlikely to be constrained by such precedence. Should it rule in favor of the petitioners, Moore will open the door to an unprecedented concentration of power in the hands of conservative state legislators, create the circumstances to allow minority Republican rule to become permanent, and potentially finish the work that rioters started on Jan 6, 2021.

Far too often, public safety is treated as a privilege to be earned rather than an inalienable right that serves as the foundation of the entire democratic experiment. From racially disparate policing, to the removal of bodily autonomy protections, to relentless attacks on Black and Brown voters, vulnerable communities have long suffered from egregious onslaughts on both their public safety and their participation in our incomplete democracy. In the coming year, we will have to remain vigilant regarding all these threats, as we have no reason to think they will do anything but grow.