Michael Swartz / October 4, 2022

A New Supreme Court Term Means More Controversy

While this term is unlikely to be as dramatic as the one just concluded, the Court’s conservative majority will make plenty of consequential rulings.

The first Monday in October used to feature a genteel meeting of the minds that kicked off the annual term of the Supreme Court. Now it’s treated more like the opening of the NFL season, with instant analysis of the players and potential rulings. It wouldn’t be surprising to find an early Vegas line on the decisions to come over the next few months, with the conservative majority giving points, or an over-under on the final tally of the vote.

Kidding aside, while the conventional wisdom states the 2022-23 session won’t be as explosive as the one that concluded this past summer, there are still a number of cases that have the potential to redirect policy in a conservative direction, especially in the areas of elections, affirmative action, and the ongoing tug-of-war between “LGBTQ” rights and religious freedom.

Two redistricting cases, one in Alabama and one in North Carolina, provide the major election docket. The contention in Alabama centers on the Voting Rights Act and how race can be factored in while drawing congressional districts. The High Court is familiar with Merrill v. Milligan because it ruled back in March that Alabama would have to proceed with its districts as drawn in 2022, pending a future ruling on the case for future elections. While the state is about 29% black, only one of the seven congressional districts is drawn as a majority-minority district. The state contends that its 2020 map is based on previous maps that had already passed legal muster.

Meanwhile, the North Carolina case, Moore v. Harper, revolves around the extent of the legislature’s role in creating congressional districts. In this case, the districts originally drawn by the GOP-controlled state legislature were tossed out by the Democrat majority on the state Supreme Court, which selected its own panel to draw the districts. Legislators who objected to this approach sued, and the case is now before the Supremes.

North Carolina also factors in one of a pair of important affirmative action cases, which once were joined but were split back apart so the newest justice, Ketanji Brown Jackson, could at least hear the one involving the University of North Carolina, a public school. (She has to recuse herself from another similar case involving a private school, Harvard, as she is a Harvard alumnus.) At question in both instances is revisiting a landmark 2003 case from the University of Michigan, Grutter v. Bollinger, which upheld race-conscious admission policies. In her majority opinion, then-Justice Sandra Day O'Connor stated the policy should “be limited in time,” and the contention among the plaintiffs is that time has long been up for these discriminatory policies. As Chief Justice John Roberts pithily put it in another affirmative action case from 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Finally, SCOTUS will circle back to a religious discrimination case being compared to its 2018 Masterpiece Cakeshop case. However, 303 Creative, LLC v. Elenis falls into a slightly different free speech category, as the plaintiff is a website designer whose religious objection to creating a website for a same-sex wedding ran afoul of Colorado law. “Under [the decision] lies another essential question: the definition of liberty,” writes political analyst Adam Carrington. “Americans hold liberty as one of our highest principles, including the securing of its blessings as a goal stated in our Constitution’s preamble. To what degree is religious liberty at stake here? To what degree are the rights of gay people violated? The Court will say much on that point going forward.”

It’s also amusing to see leftists brace themselves for more bad news from what they consider an activist Supreme Court. Since the Dobbs decision, which overturned Roe v. Wade, they’ve told us that the Court has lost its credibility, with Washington Post columnist E.J. Dionne going so far as saying the Court, as a GOP “incumbent,” will be a midterm issue. “How this election turns out,” Dionne writes, “will depend in large part on which of the two incumbents draws the most voter anger. As a result, the beginning of the Court’s new term on Monday has more electoral significance than usual. The more the Court is in the news, the better it is for Democrats.”

Dionne’s Post cohort Ruth Marcus was even more loquacious, churning out more than 4,000 words to complain: “The cataclysmic Supreme Court term that included the unprecedented leak of a draft opinion and the end of constitutional protection for abortion would, in the normal ebb and flow, be followed by a period of quiet, to let internal wounds heal and public opinion settle. That doesn’t appear likely in the term [that started yesterday]. Nothing in the behavior of the Court’s emboldened majority suggests any inclination to pull back on the throttle.”

As Harvard Law School professor Richard Lazarus told Marcus, the conservative majority is impatient: “They’ve spent a lot of time waiting for this majority to happen, and they don’t plan to waste it.” That assessment sounds somewhat nefarious, like a presidential administration that’s abusing its executive power in order to knock out its wish list, but there’s nothing illegitimate about this Supreme Court majority.

Now all that’s left is the hard work — the heavy lifting of upholding the Constitution.


Image credit: Joe Ravi, CC BY-SA 3.0, via Wikimedia Commons.

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