Supreme Court starts new term in political spotlight, tilted right
Justices will consider affirmative action, the use of race in congressional redistricting and more in term beginning Monday
An empowered conservative majority of the Supreme Court begins a new term next week replete with cases that could reshape how the country considers social issues such as race in elections and higher education, after decisions from the last term brought the justices to the forefront of the nation’s politics.
The justices will hear arguments Monday in a courthouse open to the public for the first time since the start of the coronavirus pandemic. Gone is the protective fencing that went up in May when it became public that the conservative wing would vote to wipe out the landmark 1973 ruling in Roe v. Wade.
Leading up to the term, Chief Justice John G. Roberts Jr. was among justices who expressed concern in public comments about damage to the court’s reputation from controversial decisions, as polls show Americans increasingly view the court as a political entity pulling the country to the right.
Justice Ketanji Brown Jackson joined the court as the nation’s first Black woman justice, but experts do not believe her addition to the court this term will temper the momentum of the 6-3 conservative majority.
Neither will the political fallout from last term’s decisions overturning the constitutional right to an abortion or expanding gun rights, Supreme Court experts say.
‘Not inclined to act modestly’
David Cole, the legal director of the ACLU, said the slate of cases the court chose to hear this term “shows that the court is not likely to act modestly, or at least is not inclined to act modestly” on hot-button issues like race, elections and free speech.
In October and November, the justices will hear cases to reconsider the constitutionality of affirmative action admissions to colleges and universities; look at what the Voting Rights Act requires for racial representation when drawing congressional districts; and weigh the ability of state courts to rein in legislatures on federal elections.
Supreme Court experts said the court has set itself up to deliver on those issues championed by the conservative legal movement, and the main question is what legal conclusions will garner votes from at least five of the six conservatives.
Irv Gornstein, executive director of the Georgetown Law School’s Supreme Court Institute, said last week that “we’ve known for some time that the court was headed in a rightward direction, with the only questions being how far and how fast.”
“There's no reason to think this coming term, or any term in the foreseeable future, will be any different on things that matter most,” Gornstein said. “Get ready for a lot of 6-to-3’s.”
Roman Martinez, a Supreme Court litigator at Latham and Watkins, said there’s “a lot of play in the joints” of the cases, as differences between the justices’ approaches could increase or tamp down on the sweep of the opinions.
“With this court in particular, it's not just who wins or who loses, right versus left, but some of the nuances and the distinctions between the six on the conservative side can really drive a lot of the outcomes,” Martinez said at a Federalist Society event last week.
Affirmative action approaches
In the two cases concerning affirmative action, for example, Roberts and other conservatives could decide the case in a limited way, or in a broader way that might cast doubt on other nondiscrimination provisions of civil rights legislation, such as Title VII employment law.
Gornstein and others noted that Roberts has stated a preference for a “color blind” view of the Constitution that may not allow for the challenged policies that consider race in admissions decisions at Harvard and the University of North Carolina.
Amanda Shanor, a professor of legal studies at the University of Pennsylvania, said at a Federalist Society event last week that a broad ruling for a “color blind” Constitution in affirmative action could put employment discrimination law in the cross hairs “in part because it requires employers to think about race in deciding how they're going to mitigate potential inequalities.”
In a case set for Tuesday, Alabama will argue it should not be forced to draw a second minority-majority congressional district, and the decision could further restrict a Voting Rights Act that conservatives on the court have already curtailed.
Alabama appealed a lower court ruling that ordered a new congressional map to be drawn this year and that suggested the state likely violated that law when it packed many Black voters into one district and scattered the rest among other districts in the state.
Leah Litman, a professor at the University of Michigan Law School, argued that those previous rulings on the VRA are an indicator of its likely outcome in the case. On top of that, conservative justices voted together earlier this year to keep Alabama’s map in place for the November election while the Supreme Court considers the issue.
“It's clear there are at least five votes for some cockamamie theory to limit the reach of the Voting Rights Act,” Litman said. “I don't know what theory they will arrive at, but it's clear they already know where they're going to end up.”
Federal and state issues
The Supreme Court this term will decide several cases on issues that reverberate in politics. The justices are hearing arguments Monday in a case about the definition of the nation’s navigable waters that could further restrict the ability of federal agencies such as the Environmental Protection Agency to interpret federal statutes.
In another case, the owner of a website design company argues a Colorado anti-discrimination law violates her constitutional rights because it requires her to design websites for same-sex couples’ weddings in addition to opposite-sex ones.
The justices there could carve out a free speech exception to public accommodations law, experts said, which could allow businesses to only serve customers based on their viewpoints.
And the justices will also decide whether the Biden administration can use nationwide guidance to prioritize immigration enforcement decisions. Lower courts stopped implementation of the guidance.
Alan Morrison, an associate dean at George Washington University's law school, said that “every administration uses guidance” and a decision in the case could allow courts to restrict everyday administrative decisions.
“So the government is now in a position where it can't actually do anything because it doesn't know what priorities you can have and what priority you can't have,” Morrison said.
The docket also includes cases on the power states have over commerce beyond their borders, and decisions could curtail, or expand, states’ powers over interstate commerce as states such as Texas and California seek to regulate guns, abortion and social media, experts said.
‘All personal preference’
Rulings from the Supreme Court last term rocked public approval of the institution, which numerous polls show declined sharply after the release of the opinion in June that overturned Roe v. Wade, which first established a nationwide right to abortion.
A Pew Research survey released earlier this month showed that for the first time since 1987 more people had an unfavorable opinion of the court than a favorable one.
Justice Elena Kagan, in a speech earlier this month, noted that the change in public perception was tied to recent changes in the court’s makeup. President Donald Trump appointed three justices who sided with Republican priorities in major cases last term.
“You know, that just doesn’t seem a lot like law if it can depend so much on which particular person is on the court,” Kagan said. “It just seems at that point like all personal preference.”
Roberts sought to staunch those concerns at an event earlier this month with attorneys and judges in Colorado, where he sought to divorce the court’s rulings in high-profile cases from its public perception.
“Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court,” Roberts told the crowd.
Congressional Democrats, reacting to the court’s broad exercise of authority in past terms, have pushed bills to strengthen the Voting Rights Act, or codify abortion access and same-sex marriage. But Republican opposition to proposals that would overturn conservative wins in the Supreme Court have so far stymied Democratic ambitions in the closely divided Congress.
President Joe Biden made reaction to the Supreme Court’s abortion decision a part of his campaign pitch for the midterm elections in November that will determine which party controls the House and Senate. At an event earlier this month, he exhorted voters to elect two more Democrats who may support changes to filibuster rules to pass legislation legalizing abortion access.
“If you give me two more senators in the United States Senate, I promise you, I promise you, we’re going to codify Roe and once again make Roe the law of the land,” Biden said.