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Election rulings temper Supreme Court’s conservative streak

Justices often divided along ideological lines in major cases, but election law decisions ultimately may benefit Democrats

Storm clouds hang over the Supreme Court building in Washington.
Storm clouds hang over the Supreme Court building in Washington. (Bill Clark/CQ Roll Call file photo)

The Supreme Court shrugged off partisan criticism this term and again delivered conservative decisions in major cases about race and religious rights, but the justices declined a chance to do the same in some key election cases that could end up benefiting Democrats.

The conservative majority, over sharp criticism from the court’s liberal justices, upended decades of precedent to restrict how colleges can use race in admissions decisions and sided with the owner of a company who refused to build websites for same-sex weddings because of her religious beliefs.

The decisions drew praise from Republicans for backing individual constitutional rights and limited government and condemnations from President Joe Biden and Democrats over concerns that the rulings could harm minority educational opportunities and weaken anti-discrimination laws nationwide.

But the Supreme Court also turned aside a legal theory backed by Republican lawmakers in North Carolina that could have given state legislatures more sway over congressional districts and federal elections and paved the way for additional Black opportunity congressional districts in Alabama and Louisiana that could mean additional seats held by Democrats.

David Cole, the legal director of the American Civil Liberties Union, said the court’s decisions this term did not go as far as in the previous term that ended a year ago, when the newly expanded conservative majority backed long-standing Republican priorities and overturned the constitutional right to an abortion and expanded Second Amendment gun rights.

While the justices still divided along ideological lines in decisions such as those that curbed affirmative action and limited the reach of the federal government to combat water pollution, Cole said the court “seems to be settling into its saddle” and acted “less like a group of individuals who had gained newfound power and want to use it.”

The court’s majority turned away a challenge from Republican-led states to federal immigration enforcement decisions, rejected a challenge to a law governing Native American adoptions and allowed nursing home patients to sue when their rights were violated — cases Cole said could have easily gone the other way. A decision that came down against labor unions was not as sweeping as it could have been, Cole said.

“There are obviously exceptions, but I think at the beginning of this term many people felt like, ‘Oh, my God, all precedent is up for grabs, that five of these conservative justices at least will stop at nothing to put their policy preferences in place,’” Cole said. “I think this court term looks pretty different from the court last term.”

The court, with a solid 6-3 conservative majority, will decide major cases in the next term starting in October that could split along ideological lines again. Those include gun rights, a dispute over South Carolina’s congressional map, a question about Congress’ tax powers and a challenge to long-standing precedent on the rule-making power of federal agencies.

Voting rights affirmed

Throughout a term in which outside critics have put the court under the microscope, Chief Justice John G. Roberts Jr. chose to write some of the most consequential cases, in which he either sided with the court’s conservatives or joined the liberal justices along with other conservative justices.

Roberts wrote the opinions that paved the way for additional Black opportunity congressional districts in Alabama and Louisiana and preserved state court review of federal election rules. He also wrote the majority opinions in cases rejecting affirmative action in state college admissions and blocking the Biden administration’s student loan forgiveness program.

In a Voting Rights Act case, Allen v. Milligan, a 5-4 majority of the court upheld that Alabama lawmakers may be required to draw a second congressional district where Black voters could elect candidates of their choice before the 2024 election. Kathay Feng, vice president of programs at Common Cause, said the case has massive consequences for minority voters nationwide.

“Even though people have been very worried about the Supreme Court upending precedent in high-profile cases, in Allen v. Milligan, where the court said the Voting Rights Act still serves an important function in protecting minority voting rights, the court chose to affirm, and that is a very big deal,” Feng said.

Feng noted that was one of several major cases in which conservative justices bucked colleagues such as Clarence Thomas and Samuel A. Alito Jr. to rule alongside the Democratic appointees.

She said those “shifting sands” could be important in major cases going forward, including where the court will hear a dispute over South Carolina’s congressional map next term.

“I think we should be watching very closely to see a potential realignment, some common cause between some unusual partners on the court,” Feng said.

Ben Ginsberg, a longtime election lawyer at Jones Day and Squire Patton Boggs, noted that the court’s decision in Moore v. Harper kept decades of precedent in place in the face of a Republican-backed challenge to the North Carolina Supreme Court’s authority to say a GOP-drawn congressional map violated the state constitution.

The decision backed the power of state courts to review laws that states pass to govern federal elections and largely turned down a theory that could have given legislatures more sway over federal elections.

Experts and challengers to the map had said if the Supreme Court had sided with the theory put forward by the North Carolina lawmakers, it could throw into doubt hundreds of election rules across the nation, such as congressional maps or the locations of polling places.

“I think the court basically said this is the way we have done business the last 240 years and we will continue to do business that way,” Ginsberg said. “There are always checks and balances for state legislatures.”

Legitimacy questioned

After railing against the court’s rulings in the previous term that expanded gun rights and overturned abortion rights, Democrats reacted to this latest term with new criticism of the court’s legitimacy, partly focused on reporting about the justices’ behavior outside the courtroom.

Those calling for changes to the court have pointed to reports in ProPublica and other outlets that alleged Alito and Thomas accepted undisclosed travel and other gifts from billionaire Republican donors.

Senate Majority Leader Charles E. Schumer, D-N.Y., and other Democrats have tied the court’s decisions to justices’ behavior outside the courtroom. In a statement about the court’s term, Schumer accused the “MAGA-captured” justices of ruling in favor of conservative backers.

“After a multi-decade, special interest-funded effort to reshape the federal judiciary, the fanatical MAGA right have captured the Supreme Court and achieved dangerous, regressive policies that they could never attain at the ballot box,” Schumer’s statement said.

The president himself said that “this is not a normal court” after the justices ruled against the use of affirmative action in college admissions. In an interview with MSNBC last week, Biden said the court has gone out of its way to unravel individual rights.

“I think that some of the court are beginning to realize their legitimacy is being questioned in ways that it hadn’t been questioned in the past,” Biden said.

Meanwhile, Republicans have taken to defending the court. South Carolina Sen. Lindsey Graham, the ranking member of the Senate Judiciary Committee, said he has “never been prouder” of the Roberts-led court.

“The Supreme Court is truly standing up for individual constitutional rights and limited government. Unfortunately, we should prepare for and get ready to witness accelerated attacks on the Supreme Court by radical liberal Democrats angry about these decisions,” Graham tweeted.

Some of the criticism of the court’s decisions has come from within the building. Dissenting from the majority that tossed Biden’s student loan forgiveness program, Justice Elena Kagan wrote that the six justices’ decision “blows through a constitutional guardrail intended to keep courts acting like courts.”

Kagan, joined by the court’s other two Democratic appointees, accused the majority of acting as legislators who used the case as an excuse to enact their policy preferences. Kagan wrote that by taking the case at all the court “exercises authority it does not have. It violates the Constitution.”

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