Washington – The Supreme Court is set to convene Monday to begin its new nine-month term, a term expected to bring another round of divisive decisions on issues such as affirmative action, voting rights, elections and LGBTQ discrimination, cases that will they could highlight the authority of the court’s six-judge conservative majority.
But as the justices prepare to take the bench — before the public for the first time since the start of the COVID-19 pandemic — the court is also facing historically low levels of public trust, which plummeted before and after the June ruling. the constitutional right to abortion.
The last term of the supreme court gave no shortage of blockbuster decisions expanding gun rights, reversing Roe v. Wade, limiting the authority of the Environmental Protection Agency to combat climate change and protection of religious freedomand judges hardly steer clear of politically charged cases.
Already on the docket is a challenge racial admissions policies at selective universities, a controversy contradicting the rights of free speech of an anti-discrimination website designer for LGBTQ people and election controversy which could limit the power of state courts to review election rules adopted by state legislatures under state constitutions.
“I don’t think it’s going to be a sleepy term on the Supreme Court,” Alison Orr Larsen, a professor at William & Mary Law School, told CBS News. “The cases they’ve taken are ideologically charged, and there will likely be even more divisive questions to answer about the Second Amendment and abortion after their big decisions last term. There’s no sign yet that this court is going to put the brakes on decision-making on high-profile, divisive issues soon.”
The justices were also asked to weigh disputes over the Bureau of Alcohol, Tobacco, Firearms and Explosives’ ban, a Florida law that regulates how social media companies moderate their content, and whether the unborn are entitled to constitutional protection. The cases the court decides not to hear can be illuminating about whether conservative justices want to keep up the fast pace of law reform.
“One question is going to be whether there’s some sense on the court that after Dobbs, they need to turn the temperature down a bit, and that might be either in the decisions they’re going to make or the cases they’re going to take,” said Sean Marotta, appellate judge. solicitor at Hogan Lovells. “The limitation may be not in cases where they decide, but in cases where they decide not to decide.”
Among the legal battles that judges watch most closely are a couple of cases challenging the admissions policies of Harvard College, a private school, and the University of North Carolina, a public institution, to be upheld on October 31.
Students for Fair Admissions, the organization that filed the lawsuit, argues that the schools are violating the 14th Amendment and federal law through their admissions programs, which have been used to promote diversity among university entities.
Students for Fair Admissions is asking the justices to overturn their 2003 decision in Grutter v. Bollinger, which upheld the University of Michigan Law School’s use of race as a factor in admitting students.
Court watchers have been expecting the Supreme Court to overturn its nearly 20-year ruling, particularly since the court’s makeup has changed since its 2016 decision in Fisher v. University of Texas, when the court last said the race-conscious admissions programs jurist.
“Chief Justice Roberts, his vote is not really in question on race-based affirmative action. For the most part, he’s been a race-based affirmative action skeptic, and there are no surprises there,” Larsen said. “I can’t count to five any way that would sustain Grutter or Fisher. I think it’s a safe bet that these cases will be overturned.”
The court in January consolidated the two cases for oral argument, but severed them in July after Judge Ketanji Brown Jackson was confirmed, as she withdrew from the controversy surrounding Harvard over her role on the school’s Board of Overseers. Jackson may participate in the University of North Carolina’s review of the case.
Devon Westhill, president and general counsel of the Center for Equal Opportunity, said he believed it was important that Jackson, the first black woman to serve in the field, expressed her views on race consciousness in American life.
“I think as we continue to think about the concerns about the legitimacy of the field, it would really be a black mark on the field if the first black woman didn’t just have the opportunity to weigh in on an important race like positive energy,” she said during a preview of the court term hosted by the Federal Corporation.
Free speech and LGBTQ rights clash
The justices will also consider whether anti-discrimination laws protecting LGBTQ people can require a business owner to express a message they do not wish to convey under the First Amendment.
The case, involving a Colorado web designer, comes four years after judges heard a similar dispute involving a Colorado baker who refused to make a cake for a same-sex wedding. But in her 2018 ruling, the justices left central free speech issues unaddressed.
“These big First Amendment questions are now back up before the court, but before a new court,” Amanda Shanor, an assistant professor at the University of Pennsylvania’s Wharton School who focuses on constitutional law, said at the Federalist Society preview.
The case, 303 Creative v. Elenis, “has to do with both the scope of speech and economic life protections, particularly for business owners, but also the extent to which businesses can refuse to serve customers,” he said.
The web designer embroiled in the controversy, Lorie Smith, does not want to design websites for same-sex marriage and has asked a federal court in Colorado not to enforce the state’s anti-discrimination law against her. Lower courts, however, sided with the state.
While Shanor said there is “good money” in the Supreme Court’s ruling in Smith’s favor, the details of the decision will be key.
“How it does so, or whether it does so, could have huge implications for expressive and associational rights in other economic settings and other anti-discrimination laws more broadly,” he said. “And part of the question is how on earth are you going to fix such an exception?”
Elections and voting rights
In the first week of their oral arguments, the court will Hear an argument about the Voting Rights Act involved Alabama’s Republican-drawn congressional map, which a lower court said violated a 1965 law by having a single district where black voters make up the majority of the district.
Then, in the coming weeks, he will examine an election law dispute from North Carolina involving the congressional map created by a state court for the 2022 midterm elections. That legal fight invokes the so-called independent state legislative theory, which says that under the US Constitution, only state legislatures have the power to set federal election rules, removing oversight from state courts to ensure they comply with state constitutions.
One version of the theory was proposed by then-Chief Justice William Rehnquist in his 2000 concurrence in Bush v. Gore, and four of the current justices — Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — wrote or joined opinions in March, said the Supreme Court would soon have to consider the extent of state courts’ authority to review election rules adopted by state legislatures.
The case has attracted the attention of a wide range of constituencies, including the Conference of Chief Justices, an organization made up of the nation’s top judicial officials.
In a friend-of-the-court brief filed in support of neither party, the group told the Supreme Court that the U.S. Constitution “does not derogate from the power of state courts to decide what a state’s election law is, including whether it is consistent with the State and the Constitutions of the United States.”
A new term begins with a new justice
In addition to the start of his new term, the judges also welcome a new member with the addition of Jacksonwho replaced the now-retired Justice Stephen Breyer.
Jackson’s appointment is historic as she is the first black woman to serve on the high court and also brings the Supreme Court closer to gender equality.
While she doesn’t change the court’s ideological makeup — Republican appointees still hold six of the nine seats — she offers a new edge given her eight years as a federal judge on the Washington trial court.
“That perspective can be really valuable — the types of tests the court is going to announce or the amount of difference it gives to questions of fact or the willingness to leave open questions, those are more subtle issues, but I suspect she’ll be interested a lot for them,” Larsen said. “In the boardroom, it can make all the difference for a colleague to say, ‘I have real-world experience in court, and here are the practical implications of what you’re going to decide.’
Marotta, meanwhile, noted that as the court’s makeup has changed and its ideological leanings have shifted to the right, fueled by former President Donald Trump’s appointment of three members, debates about its center have shifted from justice to average justice.
“The increasers don’t have the majority they once had. A lot of it is the eyes on Justices Kavanaugh and Barrett, because they decide how much to push the gas,” he said. “In some cases, they’re willing to be more incremental and more cautious, and in others, they’re more in favor of change.”