News & Commentary

On election night, voters in Boulder, Colorado delivered a critical win in the fight for housing justice. By a margin of 59-41 percent, voters passed No Eviction Without Representation (NEWR) — a critical measure that will ensure all Boulder tenants who are facing the terrifying, complex process that is an eviction proceeding will be provided with free legal representation. NEWR also establishes a rental assistance fund and an education process that will notify Boulder renters of their housing rights. Protections like those afforded by NEWR are always important, but they are particularly crucial in the midst of a devastating global pandemic. The economic consequences of the pandemic have cost millions of people across the country their jobs and the ability to pay the rent — leaving millions of renters with the added threat of eviction and losing their homes. The odds are stacked heavily against tenants who are taken to  eviction court. Less than 2 percent of renters in Boulder who are summoned to court are able to find or afford legal representation. This is not surprising considering many are facing eviction because of unforeseen circumstances or financial stress that prevents them from being able to afford their rent. Meanwhile, the vast majority of landlords are armed with legal representation and the protection of professional organizations that lobby on their behalf. Many renters don’t even get to the courthouse because of the severe financial burdens they already bear. With the passage of NEWR, Boulder becomes the seventh city in the country with a right to counsel program. Other cities that have adopted right to counsel measures in eviction proceedings — including New York City and San Francisco — have seen reductions in evictions. In securing a universal right to counsel in eviction proceedings, NEWR will ensure that renters have the tools and knowledge they need to safeguard their housing rights and help balance power between landlords and tenants. Where does the fight for housing justice in the form of right to counsel head now? On Tuesday, the Baltimore City Council will hold a hearing on a right to counsel bill. Passage of this legislation is critically important. Baltimore currently has one of the highest eviction rates in the United States. Approximately 70,000 eviction orders are issued in Baltimore every year, resulting in thousands of evictions. Unsurprisingly, 96 percent of landlords are represented by a lawyer in eviction cases in the city while the same is true for just 1 percent of renters. A recent report found that a right to counsel program like NEWR in Baltimore could cut evictions by 92 percent. Furthermore, the report estimates that every dollar Baltimore spends on providing free legal representation in eviction cases would result in more than $3 in savings on social safety net resources. Ending mass evictions is a key racial and gender justice priority. Due to decades of inequalities in our housing system, communities of color and low-income women feel the impacts of eviction the most — Black women in particular. The numbers say it all:

Ask a dozen civil rights lawyers to name the great civil rights laws of the last 100 years, and you’ll get a dozen answers. Some might name the Civil Rights Act of 1964, the landmark law which ended segregation in public places and barred discrimination on the basis of race, sex, color, religion, or national origin at work and in other public places. Others might point to the Fair Housing Act, which took aim at dismantling entrenched residential segregation and fighting housing discrimination. Still others might highlight the Americans with Disabilities Act, which paved the way for a more accessible world. What few people might include in the list, but should, is the Affordable Care Act of 2010, the law that made health insurance — and with it, health care itself — accessible to millions for the first time. It earns its place as a great civil rights law for several reasons: It bars certain forms of discrimination; it begins to address effects of longstanding discrimination; and by providing coverage for the health care all people need, it enables the freedoms other civil rights laws aim to protect. Simply put, it is not possible to fully participate in the economic, social, and civic life of our nation without stable health coverage.  But the Affordable Care Act is now imperiled. This week, the Supreme Court will hear arguments in California v. Texas — a case that puts this critical law in jeopardy of being struck down in its entirety. While most legal scholars think such a ruling unlikely, any decision striking the law would have devastating ramifications for the civil liberties advancements that the ACA has provided. And it would have particularly cruel and deadly consequences in the midst of a pandemic and recession. Dismantling the ACA now would exacerbate the longstanding, systemic disparities in access to health care, economic opportunities, and other resources faced by Black, Latinx, and disabled people in this country — disparities that are now approaching epic proportions in light of the pandemic.    The Affordable Care Act made huge advancements for many groups of people to whom stable health insurance and health care were often denied, whether because of express discrimination or the effects of discrimination.   Women: The ACA bars sex discrimination, full stop. This means, for example, that at long last insurers may no longer charge women higher rates. The ACA as implemented covers care long excluded from insurance coverage that was seen as exclusively women’s care: mammograms, screenings for cervical cancer, contraception coverage and counseling, lactation support, and prenatal care. These forms of discrimination had material consequences. Before passage of the Affordable Care Act, women were estimated to spend 68 percent more than men in out of pocket health care costs. The ACA takes aim at discrimination that perpetuates gender inequity, including the discrimination in health care that perpetuates gender disparities in wealth. LGBTQ people: The ACA’s bar on sex discrimination also means that LGBTQ people can’t be subject to discrimination in federally funded institutions, public health care programs, or by insurance companies. The ACA eliminates barriers that many LGBTQ people previously faced in receiving health care — a crucial step toward ensuring health care is accessible to all — regardless of gender identity or sexual orientation.   People of color: The ACA makes important strides to address racial injustice in health care as well. It bars discrimination based on preexisting conditions, a provision critical to ensuring that those who are sick — and thus most in need of health insurance — aren’t effectively barred from accessing it. While this provision is important to people of all races, it is also an essential part of beginning to redress the health disparities that reflect the legacy of race discrimination in the country. This is evident in  the higher rates of hypertension among Black people, for example, and the disproportionate rates of COVID-19 infections and deaths among Black and Latinx communities.  The data is striking: Because of the ACA, between 2013 and 2017, the coverage gap between Black and white Americans declined from 11 to 5.3 percentage points. Similarly, during the same period, the coverage gap between Hispanics and non-Hispanic whites dropped from 25.4 to 16.6 percentage points. Additionally, the ACA expanded Medicaid for people whose income is below 138 percent of the federal poverty level. In short, the ACA has helped make important strides in reducing racial, ethnic and economic disparities in in access to health care and coverage.  People with disabilities: The ACA has been a life saver for people with disabilities. It protects against coverage limitations based on preexisting conditions or lifetime limits, and guarantees coverage of services for mental illnesses and developmental disabilities. It provides access to long-term, home-based health care, which can mean the difference between institutionalization and independence for people with disabilities. And it expressly precludes discrimination in access to health care based on disability. People experiencing poverty: The ACA also expanded Medicaid for people up to 138 percent of the federal poverty level — although not every state availed itself of the option, despite its literal life-giving opportunities. Prior to the ACA’s passage, Medicaid eligibility for parents was limited to those with very low incomes (often below 50 percent of the poverty level), and adults without dependent children were ineligible under federal rules, regardless of their income level, according to a report from the Kaiser Family Foundation. The ACA is part of the path to equity — remedying systems of oppression and discrimination — that runs to the core of living or dying, particularly during the time of COVID-19. As we said in our 2012 brief, the ACA “advances the twin goals of liberty and equal protection.” The ACA is worth fighting for. Our civil liberties and civil rights are worth fighting for.

If song lyrics could be used as evidence in criminal trials, many of the most famous artists in history would be in serious trouble. Bob Marley sings “I Shot the Sheriff.” The Talking Heads’ biggest hit is “Psycho Killer.” The opening lines to Queen’s “Bohemian Rhapsody” are “Mama, just killed a man.” Fortunately for these artists, artistic expression is protected as free speech under the First Amendment.  However, some art forms are seen differently by many courts. Rap music, in trial after trial, has been treated as inherently incriminating. In Tennessee, an aspiring Knoxville rapper, Christopher Bassett, was convicted of the 2015 murder of Zaevion Dobson. At trial, the state showed the jury a rap video featuring Bassett as evidence against him, despite the fact that the videos were recorded months before the murder and make no mention of the victim. Prosecutors argued that Bassett’s sometimes violent and graphic imagery was a confession in song.  “Double O,” the song they claim indicated the defendant’s gang affiliation and appetite for violent retribution, includes lyrics like: “We all gon’ blow / Till we all ten toes / To the sky.” To understand lyrics like these, they must be put in context. Bassett’s music is “drill rap,” a genre characterized by themes of gun violence, maintenance of neighborhood boundaries, and the tragedy of lives lost or taken. Nobody familiar with drill rap would raise an eyebrow at Bassett’s lyrics — they reflect the genre and its frequent use of the trope of a protagonist engaged in criminal activity. The actions described in the lyrics may sound violent, but the lyrics themselves are protected by the First Amendment.  The Supreme Court has ruled that it is unconstitutional to use protected speech as evidence when that speech is irrelevant to the case. This precedent was established in the 2013 case Dawson v. Delaware, in which the state tried to introduce the defendant’s Aryan Brotherhood tattoo as evidence in a murder trial. But because both the defendant and the victim were white, the tattoo — artistic expression protected by the First Amendment — was irrelevant. Dawson set a heightened evidentiary standard when it comes to art forms and other protected speech, whether a tattoo or a song. “Double O” does not meet this standard. The state claims that Bassett’s lyrics prove gang affiliation, and they proposed a theory that the murder was gang-related. But it was never proven that either the victim or Bassett were actually in gangs. This accusation hasn’t been proven, and nor is it relevant. And Bassett was not charged with any gang-related offenses. The music video was entirely irrelevant to any issue before the court. Rap is not the only genre of music with lyrics about crimes. Country music in particular frequently features lyrics glorifying criminal behavior. We see it in Nashville “outlaw” musicians like Johnny Cash, who sang he “shot a man in Reno just to watch him die.” We see it in Appalachian “murder ballads,” like Dolly Parton’s “Banks of the Ohio,” which is about a jilted lover stabbing a victim in the heart. But country lyrics are understood to be fiction, not criminal evidence. In almost every case that used music lyrics as evidence, the defendant has been Black or Latinx. Bias against rap is merely thinly-veiled bias against Black and Latinx people.  Tennessee’s use of “Double O” lyrics as evidence at trial is not only an illegal violation of constitutional free speech and free association rights, but would discourage artistic expression in the future. This is why we filed an amicus brief last week in Bassett’s appeal, challenging the admission of the rap video as evidence and asserting his right to free speech. If this precedent is allowed to stand, no one who has ever spit a rhyme is safe.

Today we turn a page from one of the darkest moments in civil liberties and civil rights. Over the last four years, we weathered an all-out attack on immigrants; withstood racist dog whistles as loud as bull-horns; and witnessed presidential back-slapping of white supremacists. For his anti-civil rights and civil liberties agenda, Donald Trump was democratically and ceremoniously removed from the Oval Office by his employer: the American people.  Our nation’s electoral systems have withstood record turnout, an avalanche of mail-in ballots in a pandemic, and the attacks of a president who would rather tear down democratic norms and institutions than admit he is a loser in a national election. It may have been slow — at times excruciating — but our democracy worked as it should have: Every vote will be counted. And the people will choose their leader — rather than leaders choosing the voters. Throughout our history as a nation, some presidents have tested this country’s dedication to democratic values more than others. Against Trump’s administration, we’ve filed over 400 legal actions and brought thousands of people to airports, courthouses, and mass mobilizations. Together, we won victories to stop LGBTQ employment discrimination, protected and expanded voting rights, blocked state-level abortion bans, and battled Trump’s Muslim ban in court three times. With his policies and rhetoric, this president tried to make us a nation of us versus them. He pitted citizens against immigrants. He encouraged white supremacists while Black people are being murdered by police. And he waged war against our free press. Yet in spite of that, our staff and supporters poured their hearts and souls into fighting to ensure that the promise of America withstands Trump’s assaults on our values — as we have repeatedly done throughout our history.  After 100 years, we know that the ACLU will fight to advance freedoms where we can and defend them where we must regardless of whomever resides in the White House. As we did with President Trump, we are determined to hold President-elect Biden and Vice President-elect Harris accountable to the promise of our Constitution. And thanks to our supporters and members, we now have the strongest ACLU our nation has ever known.  And while Trump’s relentless attacks on our civil liberties will soon be over, there is work to do to create a more perfect union. And we at ACLU are here to do it. Right now, we are looking for the families of 545 children who were separated at the border. We are representing LGBTQ rights and defending the census at the Supreme Court. There are more battles just around the corner to preserve the rights many have fought and won.  We will forge a pathway to citizenship for the 11 million undocumented and stateless people living in the United States — without caveats or compromise.  We will join the chorus calling for this nation’s long overdue racial reckoning.  “We the people” won’t rest until we live in an America where equality and justice are a lived reality for all of us. Now is not the moment to sit back. We are still fighting and we are more resolute than ever to ensure that in our United States of America, the Constitution’s promise to “we the people” means all of us. We will continue that fight, no matter who occupies the White House, and we will prevail.

Criminal justice reform was a key issue in Tuesday night’s elections, from the presidential race all the way down to municipal ballot initiatives.   One exciting indication of just how far the movement to end mass incarceration has come? On Election Day it used to be possible to round up all reform-related electoral results in a few bullet points, but this week, there were so many criminal justice victories that it is impossible to summarize them all in a few paragraphs.   Below are some of the highlights we were tracked most closely on election night. These results show a vibrant movement growing in strength and pushing into unchartered and difficult territory.

It’s time for the main event: Election Day. Are you ready to vote?  Election Day is finally here, and we at the ACLU are here to ensure you Know Your Rights when you head to the polls. Listen to this week’s episode of At the Polls to get the rundown to make sure you’re ready to cast your ballot.

Oklahoma is a study in the contradictions of criminal justice reform. While the state is the world’s leading incarcerator, it is also a criminal justice reform success story. That paradox is mirrored in State Question 805 — on the ballot this November — which is both a modest criminal sentencing reform, and is precipitating transformative political and cultural change in Oklahoma’s reform movement.   Four years ago, as the state’s incarceration crisis reached new peaks, voters passed a ballot initiative that shortened prison sentences for property and drug-related crimes. Since that time, Oklahoma has seen prison populations decline by about 20 percent while crime has also steadily decreased by about 5.5 percent.   In response, a small but politically powerful group of prosecutors and other tough-on-crime truthers have aggressively tried to roll back reforms year-after-year, grinding the legislative progress to a crawl. The near stalemate has left thousands of people languishing in Oklahoma’s prisons with decades-long prison sentences — including world-leading rates of women who are incarcerated — while costing the state half a billion dollars on prisons every year.   Against this backdrop, conservative and progressive supporters formed a new coalition, even larger and more diverse than the coalition formed in 2016, to put State Question 805 on the ballot this November. That initiative is a limited roll-back of a form of extreme incarceration called “enhanced” sentencing, which would save the state about $200 million and shorten sentences for nonviolent crimes.   Enhanced sentencing is tough-on-crime snake oil sold alongside the mandatory minimums and three strikes laws that proliferated in the 1990s. These policies were pushed on states through political fear mongering with no underlying evidence they would improve safety.   When an enhanced sentence is triggered by a single previous conviction, decades or even life in prison is automatically stacked on top of already-long maximum prison sentences. This practice” resulted in severely punitive, dehumanizing, and outrageously expensive sentences for minor things like selling small amounts of marijuana or stealing a pair of hedge clippers. Fast forward to the present, and many other states have since repealed or rolled back these policies, recognizing them as wasteful failures.   Narrowing the practice of enhanced sentencing to only violent crimes — the goal of State Question 805 — may seem like a no-brainer. But the fight over 805 has been fierce. Opponents are engaged in ugly, fear-mongering messaging that would make even the architect of the Willie Horton ad blush. Some domestic violence survivors and advocates, failed by the criminal justice system for decades and offered little but incarceration in response, have expressed concern about ending enhanced sentencing for a few crimes related to domestic violence. (The most serious crimes related to domestic violence are unaffected by the initiative.)   As Election Day draws near, an unprecedented conversation is unfolding in Oklahoma. It’s a deeper dialogue about criminal justice that has never occurred in the state before. It is happening directly with Oklahoma voters at Rotary Clubs, editorial boards, sorority events, campaign rallies, and in TV debates.   By the end of this pandemic-inflected campaign, Yes on 805 campaign staff and volunteers will have had nearly two million conversations with voters over the phone and by text. This includes hundreds of thousands of conversations with voters who were initially skeptical about 805 — sometimes deeply so — and we have changed their perspectives and their vote.   We are going farther than conversations about criminal justice reform that just skim the surface. We are talking about why decades-long sentences are ineffective and unjust, even for more complex cases.   For weeks, we have been having conversations with voters every day about why and how we can still hold people accountable without sending them to prison for decades. We’ve pointed voters to the growing number of Oklahoma police chiefs, prosecutors, and judges who have pulled back the veil on the not-so-well-kept secret that extremely long prison sentences do not improve safety.   We’ve talked to voters about the power of redemption and second chances for people who are incarcerated and their loved ones, who are disproportionately from Oklahoma’s Black communities. We’ve told voters about the domestic violence survivors that support the ballot initiative and who know that we cannot incarcerate our way out of domestic violence.   Of course, we don’t convince everyone we speak with to vote yes. The plain truth is that the fearful, scary, and outright dishonest messages from those defending the status quo are powerful. But every conversation is another chance to expand thinking and change culture and we are doing it, inch-by-inch. That is a shift that will last well beyond Election Day, win or lose.   If Oklahoma is ever going to permanently shed the title of world’s leading incarcerator, it will have to go beyond minimal, less controversial reforms and permanently close the book on tough-on-crime dogma. State Question 805 has already achieved success by opening up an entirely new chapter in Oklahoma’s long journey toward ending mass incarceration.    

As the COVID-19 crisis takes its devastating toll, the need for scientific collaboration is self-evident. After the first outbreaks, scientists in China sequenced the viral genome and released that data, permitting laboratories globally to develop their own tests to diagnose patients for COVID.  Yet, members of Congress, led by Sen. Thom Tillis (R-N.C.), have pointed to the pandemic as a reason to radically change patent law. The changes would allow corporations to have exclusive rights over genes, connections between genomes and disease, and other products and laws of nature, inhibiting scientific innovation. Contrary to the arguments offered by Sen. Tillis and his allies in Congress, changing patent law to permit exclusivity on natural phenomena would give companies the ability to charge excessive fees for genetic testing to detect increased risk for diseases such as breast cancer, drive up patient costs for coronavirus testing, and inhibit scientific progress. That is why the American Civil Liberties Union and the ACLU of North Carolina have launched a campaign to educate people about the dangers these changes to Section 101 of the Patent Act pose, and to ask Sen. Tillis to abandon these efforts. The current ongoing public health crisis is an excellent example of what’s at risk if these patent law changes move forward. Today, scientists around the world are contributing information about the thousands of new strains of coronavirus they have sequenced, data that is vital to understanding the virus and developing testing and treatments. While there have certainly been serious problems with sufficient access to tests in the United States, the issue is not that laboratories lack patent protection to develop them. Dozens of laboratories have created and are offering diagnostic tests. Imagine an alternate scenario: The first laboratory to sequence the COVID-19 genome immediately files for patent protection on the genome and its connection to disease, threatens other labs that want to test for the virus with patent infringement suits, and seeks to monopolize testing. Other labs follow their example, and soon different strains of the novel coronavirus are subject to competing patent claims, impeding the ability of the scientific and medical communities to freely investigate the virus and its evolution. This scenario is not fantastical. The U.S. Patent & Trademark Office adopted a policy in 2001 authorizing patents on genes once they were “isolated” or removed from their natural environment. Patents covering many thousands of genes and their connections to health conditions were issued, and patent holders exercised their rights to stop others from sequencing those genes, even when the other laboratories were using different, more comprehensive, or less costly methods.  The ACLU represented 20 leading medical professional associations, geneticists, breast and ovarian cancer patients, and women’s health advocacy groups to challenge the Patent Office’s policy. In 2013, we won a unanimous ruling from the U.S. Supreme Court, which drew on over 150 years of precedent prohibiting patents on laws of nature, products of nature, and abstract ideas. By invalidating patents on two genes connected to hereditary risk for breast, ovarian, and other cancers, the court broke the monopoly controlled by the patentholder on all testing that could be conducted in the United States.      Outraged by the Supreme Court’s decisions in our case and two others, the patent bar unleashed a major lobbying campaign to overturn them. Their efforts gained steam during the summer of 2019, when a group of senators and representatives, led by Sen. Thom Tillis as the chair of the Senate Judiciary Subcommittee on Intellectual Property, jointly issued a draft bill that would explicitly retract all of the Supreme Court case law barring patents on laws of nature, products of nature, and abstract ideas. Over 160 medical, scientific, patient advocacy and civil rights organizations as well as over 80 biomedical scientists led by Drs. Harold Varmus and David Baltimore opposed the proposal. We highlighted that allowing patents on natural materials, natural processes, and ideas could “hamstring basic science and slow discovery, thereby compromising the nation’s ability to enhance the quality of health care and foster economic progress.”    Shockingly, patent proponents are seizing on the COVID-19 crisis to renew their calls to expand what is eligible to be patented. They assert that companies were slow to develop diagnostic tests for the novel coronavirus because they lacked certainty that they could obtain patents. They are, in effect, asking for the ability to charge monopoly prices for testing of a new disease that is causing a global public health crisis. And they are pushing for permanent changes to patent law that will undermine medical practice and scientific research well after this crisis ends. Since the outbreak, the ACLU has emphasized the need to respect the expertise of public health officials and scientists while preserving our civil rights and civil liberties. Our advice for Congress and patent policymakers is no different when it comes to patents. Many in the medical and scientific communities already have recognized how over-reaching patents would only hinder progress, calling for open science partnerships or adoption of the “Open COVID Pledge” – which commits to making intellectual property available for use in ending the pandemic and minimizing the impact of the disease, free of charge. As the COVID-19 crisis makes clear, we all have a stake in how far patents reach. Patents dictate who has access to scientific breakthroughs, when, and at what cost. Granting exclusive rights over what belongs to the public impedes, rather than fosters, innovation and discovery. There will be many different ways we must mobilize to address the pandemic. Drastically expanding what can be patented should not be one of them.

Four years ago, an election altered the reality of Muslims in America and all over the globe. As president, Donald Trump made real his promise to ban Muslims by abusing his authority under the Immigration and Nationality Act (INA). Once that ban was legitimized by the Supreme Court, he used the same authority to issue ban after ban, discriminating against Black and Brown people in furtherance of his white supremacist agenda.   As we round the corner on this presidential term, it is critical that these discriminatory bans and all the related policies, including social media vetting, are rescinded and a more stringent standard is put in place to protect against these abuses of authority by future presidents. Every executive order and proclamation using authority INA 212(f) must be rescinded immediately and the original National Origin-Based Antidiscrimination for Nonimmigrants Act (NO BAN Act) must be signed into law to protect the American people from such discrimination and abuse moving forward.   Throughout his campaign, Trump promised to ban Muslims from the United States with naked vitriol that disregarded the Constitution and the American ideal of equality. In the days and weeks that followed, people from all walks of life preemptively promised to register with Muslims if Trump created a registry, and safety pins became a symbol to express silent solidarity for all who might be attacked. In an attempt to prevent harm to Muslims in its final days, the Obama administration dismantled the framework for the original post-9/11 registration program, National Security Entry-Exit Registration System (NSEERS). Few realized the forthcoming reality, and instead many hoped that Trump’s campaign was an attempt to garner the votes with his base and would not manifest in discriminatory policies.   That hope was short-lived. Just one week into his presidency, Trump issued his Muslim ban, sending his own administration into disarray and our country into chaos. But this time it was different. Instead of the public silence that followed NSEERS, as people were disappeared from our country, many were outraged and ready to act. In hours, airports nationwide were flooded with protesters demanding that Muslims be let into the country. Members of Congress, including Rep. John Lewis, showed up and waited for every person at the airport to be released.   It was a defining moment in American history: an uprising that made our collective resistance to oppression and discrimination clear.   However, the will of the people is not always immediately reflected in the outcomes of our government or our systems. Though numerous courts rejected Trump’s ban and cited its naked discrimination and animus, the administration repeatedly re-enacted it — and even claimed that the third version of the ban was the result of a secret process that was disconnected from the President’s promise to ban Muslims from the United States. Ultimately, the Supreme Court decided that claim gave it just enough cover to uphold the third Muslim ban, in a 5-4 ruling that is one of the court’s historic failures.   It was not the first time the Supreme Court failed, and it likely won’t be the last. One of the most infamous Supreme Court failures was allowing the incarceration of Japanese people in America through so-called internment camps. It was 40 years after Fred Korematsu refused to submit to Japanese incarceration camps that his conviction was finally overturned in federal court, though the Supreme Court decision still stood. A few years later, a bill was passed and signed into law providing redress and reparations for those who were incarcerated. A few months after that, Fred Korematsu was awarded a Medal of Freedom. Indeed, he spent his life fighting for these freedoms and recognition alongside numerous advocacy organizations and people all over the country. It’s no surprise that his daughter, Karen Korematsu, founded the Korematsu Institute and has played a critical role in defending the rights of Muslims.   Much like Japanese incarceration, the Trump administration used fear-mongering under the veil of “national security” to further its discriminatory agenda — this time by suspending visas under INA 212(f) to repeatedly ban Black and Brown people. It began with the Muslim and refugee bans, and once legitimized by the Supreme Court, it