US Supreme Court to decide cases with ‘monumental’ impact on democracy | United States Supreme Court

ISLANDOn Monday, the nine justices of the U.S. Supreme Court will take their seats at the start of a new judicial year, even as the shock waves from the panel’s earlier seismic term continue to reverberate across America.

In their first full term, which ended in June, the court’s new six-to-three hard-right supermajority stunned the nation by tearing up decades of settled law. They removed the right to abortion, loosened America’s already lax gun laws, erected roadblocks to combat the climate crisis, and granted religious groups greater influence in public life.

The fallout from the wave of far-right rulings has shaken public confidence in the court’s political neutrality. A Gallup poll this week found that fewer than half of American adults trust it — a 20-point drop in just two years and the lowest rating since Gallup began tracking the trend in 1972.

Courts have begun to respond to the pressure by sparring openly in public. The Wall Street Journal reported that in recent speeches, liberal Justice Elena Kagan has accused her conservative peers of damaging the court’s credibility by embracing Republican cases.

Samuel Alito, who wrote the decision overturning the right to abortion in Roe v Wade, counter-accused Kagan (whom he did not name) of crossing “an important line” by suggesting the right was becoming illegitimate.

To add insult to injury, Ginni Thomas, the extreme conservative activist married to Justice Clarence Thomas, was questioned on Thursday by the House Committee investigating Donald Trump’s attempt to undermine the outcome of the 2020 presidential election, which she eagerly encouraged.

With so much dissent in sight, you might have expected the new supermajority created under Trump to opt for a quieter year ahead. No chance.

The selection of cases to be decided in the new period is full steam ahead. “I don’t see any signs that they’re slowing down,” said Tara Groves, a law professor at the University of Texas at Austin.

The US Supreme Court must rule on issues ranging from affirmative action to racist violence.
The US Supreme Court must rule on issues ranging from affirmative action to racist violence. Photo: Jim Lo Scalzo/EPA

“The Supreme Court has chosen to take cases in this period that raise a lot of hot-button issues — right after they’ve decided a lot of cases that raised a lot of hot-button issues.”

From fundamental aspects of American democracy to LGBTQ+ equality and racial minority voting power to protecting the environment, the conservative justices have selected a whole new set of goals that fall squarely within Republican priorities. The schedule for the first two days of oral arguments this week tells the story.

On Monday morning, the court will dive into the thick of the environmental controversy in the latest case that threatens the federal government’s ability to deal with pollution. After curtailing in June the Environmental Protection Agency’s (EPA) ability to limit emissions that cause global warming, the court will now hear arguments in Sackett v EPA, which has the potential to curtail the agency’s authority to maintain clean water standards.

On Tuesday, the court then enters blockbuster territory with Merrill v Milligan. That case could topple the last remaining pillar of the Voting Rights Act, which has secured the democratic rights of African-Americans and other minority citizens for the past 57 years.

As Michael Waldman, president of the Brennan Center for Justice, put it in a briefing this week, the case adds to the court’s upcoming docket “the raw question of race in America.”

Merrill v Milligan concerns Alabama, where Republican lawmakers want to draw congressional district maps that would give black voters the power to send only one African-American member to Congress out of a total of seven representatives, even though black Alabamans make up a quarter of the state’s population. The map was blocked by three federal judges, who ruled that it was racially discriminatory and that the state had engaged in racial gerrymandering.

In its brief to the Supreme Court, Alabama is effectively urging the conservative justices to make it virtually impossible to challenge racial gerrymandering. Should the state’s view prevail, the challengers would have to show that racial discrimination was the primary intent behind how the district lines were drawn.

“It’s a very difficult standard to prove,” said Paul Smith, senior vice president of the Campaign Legal Center. Should the Supreme Court side with Alabama, Smith added, “it would allow legislatures to undo black and Latino-majority districts and do away with people’s ability to elect their own representatives.”

The Alabama controversy epitomizes two visceral themes that run through several of the blockbusters this term: race and democracy. The race theme is central to one of the hottest issues of all – the challenge to affirmative action at universities.

During this period, the Supreme Court will rule on two cases on positive discrimination.
During this period, the Supreme Court will rule on two cases on positive discrimination. Photo: Kevin Lamarque/Reuters

On Oct. 31, the court will hear oral arguments in two parallel cases, both filed by Students for Fair Admissions, which describes its mission as “restoring colorblind principles” to colleges and universities. The first suit confronts Harvard’s race-conscious admissions policy, alleging that it discriminates against Asian Americans; the other focuses on the University of North Carolina, which is accused of favoring black, Hispanic and Native American applicants at the expense of white and Asian students.

There is a chilling echo in the concerted assault on affirmative action that is playing out with what happened to Roe and Casey, the landmark abortion rulings that the Supreme Court overturned in June. In both arenas—abortion and affirmative action—the legal precedent stood firm for half a century.

“It’s been the law of the land now for 50 years that universities can take into account all aspects of a person’s background, including their race,” Smith said. “Schools have set up their entire systems based on trust that it is the law, as confirmed multiple times by the Supreme Court, although it certainly seems likely that they will change course this time.”

Such a racialized term would clash with another defining moment for the Supreme Court — the arrival on the bench of the first black woman in the court’s 233-year history. When Ketanji Brown Jackson takes her place among the nine justices on Monday, she will be powerless to touch the unassailable dominance of the conservatives.

But like any new judge, she will be able to make her mark on the court during a tenure that, at 52, could last decades. Jackson may be unlikely to write inflammatory dissents in his first term along the lines of those penned last term by liberal Justice Sonia Sotomayor, who joined the court in 2009.

But Jackson, whose parents fled south to escape Jim Crow segregation, is equally unlikely to stand aside on issues as basic as affirmative action and racial gerrymandering. How she handles such intense controversy as a rookie judge could reveal much about her future presence on the bench.

Justice Ketanji Brown Jackson will arrive at a time when the court is hearing blockbuster cases about affirmative action, democracy and race.
Justice Ketanji Brown Jackson will arrive at a time when the court is hearing blockbuster cases about affirmative action, democracy and race. Photo: Fred Schilling/AP

The other major theme for the upcoming election period is democracy. In addition to the Alabama race’s racism case, the court has agreed to take on the highly polarized issue of the role of state legislatures in federal elections.

Moore v. Harper could have “monumental implications for American democracy,” Groves believes. At the heart of the case is the debunked “independent state legislature theory,” which has been embraced in recent years by radical Republicans who argue that the Constitution gives state legislatures the ultimate power to regulate federal elections.

Although legal scholars have largely rejected the doctrine, four of the nine justices — Alito, Neil Gorsuch, Brett Kavanaugh and Thomas — have paid lip service to some aspect of it. Should they command majorities, they could give Republican-controlled state legislatures even more firepower to seize what is effectively minority rule through extreme partisan gerrymandering, with very little possible oversight from state courts.

At its most dystopian, an extreme ruling in Moore v. Harper could wreak havoc in the 2024 presidential election and beyond. John Eastman, the conservative law professor embroiled in legal jeopardy over the central role he played in trying to overturn Joe Biden’s Jan. 6 victory, put the theory of the independent state legislature at the heart of his infamous memo laying out the roadmap for an election coup.

Smith explained that the Supreme Court could encourage state legislatures to dictate who wins the presidential election in their state according to political whim. “It may be unconstitutional under state law, but under this doctrine the state courts would be powerless to prevent them.”

As if race and the future of American democracy weren’t enough, the conservative justices are also striking down once again the right to equal treatment for same-sex couples. They have taken a case asking whether a graphic design firm, 303 Creative LLC, should be able to reject gay couples who request help creating wedding websites for religious reasons.

The supermajority also wants to revisit the Indian Child Protection Act, which for the past 44 years has protected Native American children from being forcibly separated from their families and tribes and placed in non-Native homes. The ACLU has warned that if the court overturns the action, it could put “the very existence of the tribes at risk.”

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