Supreme Court: A new term, a new justice, a blockbuster docket
The United States Supreme Court begins a new term today with one new justice, the same 6-3 ideological divide, historically low public approval ratings, and another docket littered with blockbuster cases.
Justice Ketanji Brown Jackson is the first Black woman to sit on the high court, which has a conservative supermajority in its second full term together.聽After taking a sharp rightward turn in the law 鈥� including overturning the right to abortion, expanding gun rights, strengthening religious freedom, and empowering courts to curb federal regulations 鈥� the court is again poised to hear a slate of cases with the potential to transform American life.
There are cases concerning the Clean Water Act and a Native American child-welfare law, as well as immigration enforcement. But the most high-profile cases this term concern race and elections.
Why We Wrote This
Often between extremes lies a more moderate option. In a number of cases this term, where the U.S. Supreme Court lands on that spectrum could transform American life.
鈥淲hat we haven鈥檛 had yet with this new court really are cases about race, or the kind of deeply structural cases about how we govern ourselves,鈥� says Linda Greenhouse, a longtime Supreme Court reporter for The New York Times who now teaches at Yale Law School.聽
鈥淲e鈥檙e going to have both of those in this coming term,鈥� she adds. 鈥淐ombined with the term we just lived through, we鈥檙e going to be living in a new constitutional landscape by the end of it.鈥�
Many of those high-profile cases have 鈥渙ff-ramps鈥� the justices can take to issue narrower, moderate rulings. But the justices have to agree to take them, says Steven Schwinn, a professor at the University of Illinois Chicago Law School.
鈥淭here was an off-ramp in Dobbs [the abortion case], there was an off-ramp in Bruen [the gun rights case], there was an off-ramp in West Virginia v. EPA,鈥� the federal regulations case, he adds. 鈥淎nd the court just did not take them.鈥�
303 Creative LLC v. Elenis
One case will see the court revisit a narrow decision it made in 2018, adjudicating a now-familiar conflict between gay rights and First Amendment protections.
The 2018 case saw a cake baker claim that having to make wedding cakes for same-sex couples聽violated his rights to free speech and free exercise of his religious beliefs. This case 鈥� 303 Creative LLC v. Elenis 鈥� involves a website designer, Lorie Smith, arguing that the same Colorado anti-discrimination law violates her free speech rights by forcing her to create websites with messages that contradict her beliefs about marriage.聽
The Supreme Court avoided ruling on the central questions in the earlier case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. Instead, a fractured seven-justice majority opinion sided with the baker on procedural grounds.
303 Creative 鈥渨ill force the court to confront and really wrestle with [that central] conflict,鈥� said Paul Clement, a solicitor general for former President George W. Bush, at a Heritage Foundation panel last week.
鈥淥ne thing it won鈥檛 do is give the court the out it had in Masterpiece,鈥� he added.
Before a court with a long record of expanding religious protections, Ms. Smith is expected to prevail. What the decision could mean for state anti-discrimination laws more generally 鈥� the more significant question 鈥� is less clear.
Merrill v. Milligan
One reason the court is unlikely to take a modest approach to this term鈥檚 major cases is that one of the court鈥檚 more modest members, Chief Justice John Roberts, has a long-running personal interest in several of them.
One of those is Merrill v. Milligan. Scheduled for oral argument this week, the case asks the justices to revisit a key section of the Voting Rights Act, a 1965 law that the chief justice has for most of his career.
He wrote the majority opinion in Shelby County v. Holder, a 2013 case that gutted Section 4 of the Voting Rights Act, which required certain states with a history of racially discriminatory voting practices to get federal approval for changes to their voting laws. And last year, in Brnovich v. Democratic National Committee, he joined the court鈥檚 conservative majority in a ruling that an Arizona law placing new restrictions on voting and ballot collection didn鈥檛 violate Section 2 of the Voting Rights Act, which prohibits the use of discriminatory voting practices.
Section 2 is at issue again in Milligan, this time regarding racial gerrymandering. About 27% of Alabama鈥檚 voting-age population is Black, but in the state鈥檚 new congressional district map only one of seven districts is majority-Black. Local officials and activists sued, claiming the map violates Section 2, and, after a seven-day hearing in January, a three-judge district court ruled that it did, ordering Alabama to create a second majority-Black district.
Alabama鈥檚 argument to the Supreme Court is that the Voting Rights Act is requiring them to segregate Black voters, and that courts shouldn鈥檛 consider race in evaluating Section 2 challenges.聽
If the court rules in Alabama鈥檚 favor, 鈥渢hat would be a pretty significant change in the way Section 2 cases get litigated,鈥� said Jeff Wall, an acting solicitor general under former President Donald Trump, at the Heritage Foundation panel last week 鈥� though it would depend 鈥渙n what the court says,鈥� he added.
The consequences could be even more significant than that, some experts believe, effectively weaponizing Section 2 against its intended purpose.聽
鈥淚t would severely curtail minority voters鈥� ability to choose candidates of their choice,鈥� said Jonathan Diaz, senior legal counsel at the Campaign Legal Center, during an American Constitution Society panel last month.
鈥淚 don鈥檛 know how you remedy problems of historic race discrimination by saying race doesn鈥檛 exist,鈥� he added.
Affirmative action
The justices will confront another racial issue in two cases being argued in late October. They concern affirmative action programs that Harvard University and the University of North Carolina use in their admissions processes.
The court has wrestled with affirmative action for decades 鈥� and it鈥檚 another issue about which Chief Justice Roberts has long been skeptical. 鈥淭he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,鈥� he wrote in a 2007 affirmative action .
So while the chief justice has often played a mediating role on the court in recent years, in the two affirmative action cases 鈥渉e might actually be leading the court,鈥� said Roman Martinez, a partner at Latham & Watkins and a former Roberts clerk, during a Georgetown University last month.
鈥淓ven if the court is willing to strike down Grutter鈥� 鈥� a 2003 decision upholding university affirmative action programs 鈥� 鈥渢here are options about how it does so,鈥� he added.
An extreme ruling would bar universities from considering any kind of racial or ethnic diversity in admissions; a more moderate ruling would leave schools some leeway to promote diversity without considering race as a specific factor.
But on the current court 鈥渢here are more votes that are skeptical [of affirmative action] than ever before,鈥� said Mr. Martinez. 鈥淚t鈥檚 not clear that that middle ground will prevail here.鈥�
The independent state legislature theory聽
No single case has generated more pre-term attention than what鈥檚 officially known as Moore v. Harper, but better known as 鈥渢he independent state legislature theory鈥� case 鈥� or 鈥渢he ISL鈥� case, for short.
It concerns another congressional map, drawn by the North Carolina Assembly, that the state supreme court struck down as a partisan gerrymander. (Despite the state being divided about equally between Republicans and Democrats, the map would make Republicans likely to win congressional seats.)
The North Carolina Assembly鈥檚 appeal to the Supreme Court centers on the fringe independent state legislature theory. The theory holds that the word 鈥淟egislature鈥� in the elections clause of the Constitution means that only the state legislature has the power to set the rules for congressional elections in the state. State courts, governors, even statewide ballot initiatives would have no say.
Moore is a complicated case, and as with other high-profile cases this term, the court could rule in various ways. Three members of the conservative majority have expressed support for the theory, but other justices 鈥� likely including, in this case, Chief Justice Roberts 鈥� may be hesitant to rule that state courts have no say over federal elections in their states. The chief justice鈥檚 majority opinion in a 2018 partisan gerrymandering case implicitly left these questions for states to tackle individually.
鈥淭here鈥檚 been a lot of talk about this case as involving the end of democracy and things like that, and I think that鈥檚 a bit overblown,鈥� said Hashim Mooppan, a lawyer at the firm Jones Day, during the Georgetown panel last month.
Yet, 鈥渋t is quite important in terms of the rules of the road governing congressional elections,鈥� he added. And 鈥渢here鈥檚 a whole suite of things the court can do.鈥�
Other court watchers believe those fears aren鈥檛 overblown.
鈥淚f they hold that state legislatures cannot be limited by state supreme courts or state governors in how elections are conducted, that鈥檚 just monumental,鈥� says Eric Segall, a professor at Georgia State University College of Law.
The ruling 鈥渃ould potentially be quite modest,鈥� says Professor Schwinn. But 鈥淚 don鈥檛 think the court is going to make it modest because I don鈥檛 think that鈥檚 this court鈥檚 MO.鈥�
