US Supreme Court begins potentially tumultuous term

Fresh from a difficult period in which it ended the constitutional right to abortion, the US Supreme Court is embarking on another potentially tumultuous phase of important cases.

The new term begins Monday, with Justice Ketanji Brown Jackson joining her eight colleagues as the first black woman to sit on the bench.

But the period will likely be remembered for more than just Jackson’s historic debut. Tackling issues like voting rights and affirmative action, the new term introduces some high-profile cases that are likely to be decided along ideological lines.

“On the things that matter most, be prepared for a lot of 6-3s,” Irving Gornstein, executive director of the Supreme Court Institute and professor at the Georgetown Law Center, said at a recent news event.

The high court’s decision to reverse its 1973 abortion ruling known as Roe v. Wade followed an unprecedented leak of the majority opinion draft that sparked weeks of protests.

Last term featured several other 6-3 rulings, including one that held that Americans have the right to carry firearms outside the home for self-defense.

But not every case is likely to result in a conservative majority opinion this term, Gornstein said.

He noted that Chief Justice John Roberts and Justice Brett Kavanaugh joined the court’s three liberals last term in producing at least five 5-4 cases.

Kavanaugh, one of former President Donald Trump’s three nominees on the court, has developed a penchant for writing concurring opinions that “declare the limits of majority right-wing decisions,” Gornstein said.

“This is Judge Kavanaugh’s court,” Gornstein said.

The Supreme Court hears 60 to 70 cases a year of the more than 7,000 petitions it receives. To date, it has agreed to review 27 cases during the next term.

Here’s a look at five important cases.

Two Voting Rights Cases

The two voting rights cases, Merrill v. Milligan and Moore v. Harper, involve controversial plans by state legislatures to redraw their congressional maps and may have far-reaching implications for how elections are conducted.

Merrill vs. Milligan

Merrill v. Milligan is about the southern state of Alabama’s congressional redistricting plan created after the 2020 census.

For decades, Alabama’s seven-member congressional delegation has included only one African American. But with the state’s growing black population, civil rights advocates say Alabama should have at least two.

Arguing that the redistricting map includes black Alabama residents largely in a single congressional district, a group of voters and rights advocates challenged the plan in federal court.

A three-judge panel agreed that the plan violated Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race or color.

The judicial panel ordered a new map. But the US Supreme Court overturned the ruling, agreeing to review the case during its 2022-23 term while keeping the congressional map in place.

Alabama says it seeks a racially neutral redistricting process. But voting rights advocates say maintaining the state’s redistricting plan will undermine the ability of minority voters to elect the candidates of their choice.

Moore vs. Harper

The second case, Moore v. Harper, involves the new North Carolina Congressional map and has potentially even bigger consequences for the way federal elections are conducted.

It centers on a controversial legal doctrine known as the “independent state legislature theory,” which holds that the United States Constitution gives state legislatures almost total authority to regulate federal elections.

After the state gained an additional congressional seat due to the 2020 census, the GOP-controlled Legislature drew a map that would give GOP candidates a 10-4 lead, even though state voters are evenly split between Democrats, Republicans and independents.

Voting rights advocates, suspecting illegal partisan gerrymandering, went to state court.

The state Supreme Court, with four Democrats and three Republicans, voted along party lines to declare the map violated the state constitution and ordered a new draft.

The US Supreme Court rejected the state Legislature’s motion to stay the state court’s ruling, but agreed to hear the case. As a result, the court-drawn map will remain in place during the midterm elections.

The case will be among the most followed of the next term, and not only because of its long-term implications.

Voting rights advocates say a sweeping ruling in the case would give state legislatures near total authority to enact voter suppression laws and affect the outcome of elections.

Hashim Mooppan, a former counsel to the attorney general during the Trump administration, said fears that the case could spell “the end of democracy” are overblown.

Both sides in the case have presented the Supreme Court with “a menu of options,” and it is far from clear whether the justices will adopt the most extreme version, Mooppan said at the Georgetown court preview.

But even if the justices adopt the “broadest possible theory,” state legislatures could not “nullify the outcome of the election after it happens,” he said.

Legal challenges to affirmative action

Two cases, Students for Fair Admissions Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions Inc. v. University of North Carolina, present legal challenges to affirmative action.

A ruling against Harvard and UNC, some legal experts warn, could spell the end of affirmative action, a policy that American colleges and universities have followed for more than half a century to boost the admission of minority students.

Americans are divided on affirmative action. Advocates say the policy has promoted campus diversity by providing opportunities for disadvantaged students. Opponents say it gives preferential treatment to blacks, Hispanics and other minorities at the expense of white and Asian applicants, undermining the goal of a “colorblind” society.

In 2014, Students for Fair Admissions, a group headed by conservative legal activist and opponent of affirmative action Edward Jay Blum, sued Harvard and UNC, accusing the former of discriminating against Asian applicants and the latter of disfavoring white students. .

In their defense, Harvard and UNC said race is one of many factors they consider in admitting students, citing previous Supreme Court decisions in the past two decades that uphold the practice.

The lower courts sided with the two universities. But Students for Fair Admissions appealed to the Supreme Court, asking it to overturn a 2003 ruling that upheld the use of race in college admissions to benefit diversity.

The court could choose to uphold or restrict affirmative action rather than prohibit it. But with a six-judge conservative supermajority in control, the judicial tides seem to have turned against politics, experts say.

“If you were just trying to count noses, I think you would think that there are now more votes to be skeptical of these programs than ever before,” said Roman Martinez, a Supreme Court litigator at Latham & Watkins in Georgetown.

Speaking at a virtual event hosted by the American Constitution Society earlier this month, Deborah Archer, president of the American Civil Liberties Union, said black and Hispanic students continue to be underrepresented at America’s top colleges and that ending affirmative action would make “the system less equitable.”

Right to refuse service

The question of whether a business owner can refuse to serve a customer based on the seller’s religious beliefs returns to superior court with a new case in Colorado.

In 2018, the court considered the case of a Colorado baker who refused to make a cake for a same-sex couple in violation of the state’s anti-discrimination laws.

Siding with the baker, the court concluded that the so-called public accommodation law itself violated his right to freedom of religion, but declined to rule on the broader question of whether forcing the baker to design a cake would violate his right to freedom of religion. freedom of expression. .

With the new case, the judges will opine on that issue.

The case was brought by Lorie Smith, owner of a Colorado graphic design company called 303 Creative LLC, who says she wants to create wedding websites for opposite-sex couples but not same-sex couples because she opposes gay marriage for religious reasons. reasons.

You want to post a message on your website explaining your opposition to designing wedding sites for same-sex couples. But because of Colorado law, she hasn’t been able to.

Smith sought an exemption from the law in federal court on the grounds that it would force her to “speak messages” that violated her deepest beliefs.

Earlier this year, the Supreme Court agreed to hear his case during the new term, but limited the review to his free speech claim.

Colorado says the case is not about free speech, but about whether a business can refuse service based on a customer’s race or other protected characteristics.

But with the conservative Supreme Court increasingly siding with religious groups in recent years, the state is unlikely to find a sympathetic court, experts say.

“The court is broadening both its understanding of what speech is and its protection,” Kent Greenfield, a Boston College law professor, said during the American Constitution Society event.

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