As New Term Starts, Supreme Court Poised to Resume Rightward Push
"The justices return to the bench on Monday to start a term that will include major cases on affirmative action, voting and discrimination against gay couples. Several will take on questions about race.
WASHINGTON — The last Supreme Court term ended with a series of judicial bombshells in June that eliminated the right to abortion, established a right to carry guns outside the home and limited efforts to address climate change. As the justices return to the bench on Monday, there are few signs that the court’s race to the right is slowing.
The new term will feature major disputes on affirmative action, voting, religion, free speech and gay rights. And the court’s six-justice conservative supermajority seems poised to dominate the new term as it did the earlier one.
“On things that matter most,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law, “get ready for a lot of 6-3’s.”
Several of the biggest cases concern race, in settings as varied as education, voting and adoptions.
They include challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. As in last term’s abortion case, Dobbs v. Jackson Women’s Health Organization, longstanding precedents are at risk.
The court has repeatedly upheld affirmative-action programs meant to ensure educational diversity at colleges and universities, most recently in 2016. In an interview that year, Justice Ruth Bader Ginsburg said the issue had been permanently settled.
“I don’t expect that we’re going to see another affirmative action case,” she said, “at least in education.”
In that same interview, though, she said she feared what would happen were Donald J. Trump, then on the campaign trail, to become president.
“For the country, it could be four years,” she said. “For the court, it could be — I don’t even want to contemplate that.”
Mr. Trump went on to name three members of the Supreme Court, including Justice Amy Coney Barrett, who succeeded Justice Ginsburg after her death in 2020.
Those changes put more than 40 years of affirmative action precedents at risk, including Grutter v. Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”
The court seems poised to say that the time for change has arrived several years early in the two new cases, Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707. They are set to be argued on Oct. 31.
The role race may play in government decision-making also figures in a voting rights case to be argued Tuesday, Merrill v. Milligan, No. 21-1086. The case is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters.
In earlier decisions, the Supreme Court effectively gutted Section 5 of the Voting Rights Act, which had required federal approval of changes to state and local voting laws in parts of the country with a history of racial discrimination, and cut back on Section 2 of the law, limiting the ability of minority groups to challenge voting restrictions. The Alabama case also concerns Section 2, but in the context of redistricting.
A challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it hard for non-Native Americans to adopt Native children, may also turn on whether the court views those safeguards as based on race, making them vulnerable to constitutional review. The law at issue in the case, Haaland v. Brackeen, No. 21-376, was a response to a history of children being removed from their tribes and heritage; arguments will be heard on Nov. 9.
Kate Shaw, a professor at the Benjamin N. Cardozo School of Law, said the justices may conclude that these cases all present variations on the same question. “The court could announce a set of rules that, together, read the Constitution to allow virtually no consideration of race, regardless of the purposes or goals,” she said.
A second election case, Moore v. Harper, No. 21-1271, has the potential to reshape federal elections by amplifying the power of state legislatures to draw voting districts and set voting rules. It has not yet been scheduled for argument.
Nor has 303 Creative LLC v. Elenis, No. 21-476, which will return the court to a battleground in the culture wars: whether some businesses open to the public may refuse to provide services to potential customers based on religious or other convictions.
The case concerns Lorie Smith, who owns a website design company that says it serves gay customers but intends to limit its wedding-related services to celebrations of heterosexual unions. She argues that requiring her to provide those services to gay and lesbian couples violates her right to free speech.
The court last considered the issue in 2018, when a similar dispute between a Colorado baker and a gay couple failed to yield a definitive ruling.
In the Dobbs decision, the justices in the majority disagreed about whether the logic of that ruling should require reconsideration of other landmark decisions, including one establishing a constitutional right to same-sex marriage. The new case does not squarely present that question, but the court’s ruling may provide hints about the justices’ commitment to protecting gay rights and, more generally, how fast it means to move to the right.
The court’s recent run of conservative decisions led its approval ratings to plummet. In a Gallup poll released Thursday, 58 percent of Americans said they disapproved of the job the Supreme Court was doing, the highest rate since 2000, when Gallup first posed the question.
Public dissatisfaction has spread to the federal judiciary as a whole, with just 47 percent of Americans saying they had “a great deal” or “a fair amount” of trust in the judicial branch. That is a drop of 20 percentage points from two years ago, and the lowest since the question was first asked in 1972.
The responses were split along partisan lines, with Republicans generally approving of the work of both the Supreme Court and the federal judiciary. Still, the overall findings demonstrate that the court has moved to the right of the median voter, notably on issues like abortion, shortly after changes in the court’s membership.
In an extraordinary series of public appearances over the summer, several justices discussed whether unpopular decisions and falling approval ratings threatened the court’s legitimacy.
“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate,” Chief Justice John G. Roberts Jr. said at a judicial conference in September. But he added, “I don’t understand the connection between opinions that people disagree with and the legitimacy of the court.”
Chief Justice Roberts, whose middle-ground approach in the abortion decision attracted not a single colleague’s vote, said the court’s role in the constitutional structure must be respected.
“If the court doesn’t retain its legitimate function of interpreting the Constitution, I’m not sure who would take up that mantle,” he said. “You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is.”
David A. Strauss, a law professor at the University of Chicago, said the chief justice’s failed effort to broker a compromise in the abortion case presented him with an opportunity.
“The reaction to Dobbs would give the chief justice a chance to tell his conservative colleagues ‘I told you so’ — when you go too far, too fast, people will see the court as nothing more than the judicial wing of the conservative political movement,” Professor Strauss said. “But I doubt his colleagues would listen.”
Justice Elena Kagan, part of the court’s three-member liberal wing, spoke frequently over the summer, if in general terms, about ways courts can undermine their own authority.
That could happen, she said in New York in September, when it looks as if judges are “an extension of the political process or when they’re imposing their own personal preferences,” adding that the public has a right to expect “that changes in personnel don’t send the entire legal system up for grabs.”
Justice Sonia Sotomayor, another liberal, has echoed the point.
The court has near-total power to decide which cases it will hear, and it often uses that discretion to resolve disputes among lower courts. The court agreed to hear many of the major cases in the coming term despite a lack of such conflicts, an indication that the new majority is pursuing an agenda and setting the pace of change.
Lawyers who appear before the court have adjusted their arguments to this new reality.
“I think we’ve learned as litigants to go bold,” said Lisa Blatt, a lawyer with Williams & Connolly who has argued more Supreme Court cases than any other woman.
“This court isn’t insisting on baby steps,” she said. “I don’t see this court as an incremental one.”
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