Mr. and Mrs. Supreme Douchebag

 

 

The Supreme Court Is Broken. Where’s Biden?

By Jeff Shesol

Mr. Shesol, a historian, has written several books about American politics, including “Supreme Power,” the story of Franklin Roosevelt’s failed attempt to pack the Supreme Court in 1937.

• Sept. 30, 2022

In a recent speech at Independence Hall, President Biden called on Americans to stand against an assault on democracy — the ongoing assault waged by insurrectionists and would-be patriots, by election deniers and other extremists. “We are not powerless in the face of these threats,” he insisted. “We are not bystanders.”

Yet that role — bystander — is exactly the one Mr. Biden seems to have assigned himself when it comes to the Supreme Court, which is posing a more profound challenge to the American system of self-government than any violent mob has managed. The court’s conservative justices have issued a run of rulings that make it harder for many Americans, particularly citizens of color, to vote; make it easier for partisans to grab power by distorting the shape of legislative districts; and make it nearly impossible to counter the corrupting influence of money in politics. This is only a partial list — and is, most likely, only the beginning. In the term that starts on Oct. 3, the conservative bloc, six justices strong and feeling its oats, will decide whether an Alabama congressional map discriminates against Black voters and will consider a novel theory that state legislatures should have a free hand, unconstrained by state courts, in setting rules for federal elections.

After the court, in Dobbs v. Jackson Women’s Health Organization, eliminated the constitutional right to abortion, Mr. Biden stood in the White House and decried the decision as “the culmination of a deliberate effort over decades to upset the balance of our law.” He hit the same refrain the next week, warning that an “extremist court” was “committed to moving America backwards.” Yet he has had little, if anything, to say about other consequential cases. In response to the court’s ruling in New York State Rifle & Pistol Association v. Bruen, a death knell for many efforts to keep guns out of public places, Mr. Biden issued a statement that he was “deeply disappointed” — less a protest than a sigh. Likewise for West Virginia v. E.P.A., in which the conservative justices blocked the Environmental Protection Agency from regulating the emission of greenhouse gases. “Another devastating decision,” the president observed in a press release. (Since then, he has found other means to keep up the fight against climate change — executive actions and, notably, the provisions of the Inflation Reduction Act.)

It is a strange non-reaction, given the stakes. While Mr. Biden promises to “build back better,” the court’s majority is a demolition crew, razing or gutting legislative landmarks — the Voting Rights Act, the Clean Air Act — by means of sweeping opinions. The problem is not simply that Mr. Biden says too little about these retrograde rulings, it is that he treats them as discrete events rather than the defining project of the court’s conservatives: to lay waste to the welfare state and the administrative state, the civil rights revolution, the underpinnings of an accountable, workable government. He has said little to suggest that the court’s majority is dangerously, defiantly out of step with what Chief Justice Charles Evans Hughes, in the 1930s, called “the plainest facts of our national life.” And he is silent on the subject of what, if anything, is to be done when justices slip the bonds of self-restraint to chase their ideological dreams.

In Philadelphia and on the hustings, Mr. Biden has begun to acknowledge the tribal warfare that consumes this country. Yet the Roberts court is both a product and a sponsor of that conflict, and the president should say so. He needs to “take the country to school,” as Felix Frankfurter, who would later become a Supreme Court justice himself, urged Franklin D. Roosevelt in 1937, when another ideologically driven court had put democracy on the docket.

During the 2020 presidential campaign, Mr. Biden’s ambitious agenda invited comparisons to that of F.D.R., and he leaned into the analogy, citing Roosevelt as proof that “we can restore our soul and save our country.” That analogy has worn rather poorly, but Mr. Biden would do well to emulate the clarity and energy that Roosevelt brought to the issues of the court and the Constitution.

Roosevelt, like Mr. Biden, briefly practiced law before seeking public office. He was only ever an indifferent lawyer and not remotely a legal scholar, but he loved to talk about the Constitution. He firmly believed, as he dictated for a magazine article, that “the Constitution was never meant to be a ‘dead hand’ … the founding fathers conceived it as a living force for the expression of the national will with respect to national needs.” This wasn’t a platitude. It was an indictment — aimed directly at the court’s blinkered, backward-looking conservatives. F.D.R.’s Constitution was “a layman’s document, not a lawyer’s contract,” and he felt certain that the public, with his help, could comprehend what the justices were doing and why it was wrong. To that end, he did not deal in abstractions. When the court issued obscurant opinions, cloaked in legal incantations that read like magic spells, Roosevelt translated them into plain, urgent English, spelling out their effects.

And the public responded. On May 27, 1935, the court struck down the National Industrial Recovery Act, the centerpiece of the early New Deal, resting its opinion in part on a preindustrial, 19th-century notion of interstate commerce. Four days later, Roosevelt called reporters into the Oval Office and talked — without notes — for 90 minutes, dissecting the decision and the “perfectly ridiculous and impossible situation” it created. The Great Depression notwithstanding, the court, as Roosevelt put it, had ruled that “the United States government has no control over any national economic problem” and had thrown the nation back to “the horse-and-buggy age.”

Roosevelt’s remarks drew howls from the conservative press, but it quickly became clear that the president had reshaped the public discussion. A flood of telegrams hit Capitol Hill, many calling for a new commerce clause. Overnight, The New York Times reported, once reluctant senators concluded that amending the Constitution for this purpose “was not such a bad idea.” Ultimately, Roosevelt would reach for a blunter instrument. His attempt to pack the court, to increase the number of justices from nine to as many as 15, was the costliest political mistake of his presidency. It wrenched wide the splits in the Democratic Party, re-energized the G.O.P. and stalled his second-term agenda right out of the gate. All the same, by the late 1930s, Roosevelt had helped build a consensus that constitutional interpretation should keep pace with the realities of modern life. That shift in public sentiment would endure for decades.

Absent a vacancy to fill, presidents have little ability to change the direction of the court. That is as it should be. But as Roosevelt showed, they can change the conversation — and with it, over time, public opinion. In a similar spirit, Mr. Biden should view adverse rulings as opportunities to deliver his own dissents — to expose the designs of majority opinions, demystify them, debunk them, show whose interests they serve and whose they do not, and provide a countervailing view of the Constitution.

Take New York State Rifle v. Bruen, the 6-3 decision striking down a century-old requirement of “proper cause” to carry a handgun in public. Instead of expressing disappointment and moving on, Mr. Biden should have identified the central — and novel — contention of Justice Clarence Thomas’s opinion: that “history and tradition,” rather than public safety, is the principal basis for gun regulations. And speaking of history, Mr. Biden should have challenged the opinion’s willful misreading of it, not least its disregard for the tradition, dating back to the nation’s founding, of regulating the concealed carriage of firearms. Above all, he should have called out the fallacy that the Second Amendment envisions an individual rather than a collective right to bear arms. He should have said all this even though Justice Stephen Breyer covered much of it in his dissent. Mr. Biden has the bully pulpit. With it comes a greater opportunity and, for that reason, a greater obligation to be heard.

So why is the president sitting this out?

It cannot be indifference. Few can doubt Mr. Biden’s empathy for the families who will lose loved ones to gun violence, the women who will be denied lifesaving abortions, the voters who will be purged from the rolls because of this court. Nor can he imagine that Congress will expediently undo what the court has wrought. From time to time, Congress does find the will: In 2009, for example, the Lilly Ledbetter Fair Pay Act extended the statute of limitations for wage discrimination lawsuits, reversing a narrow-minded 5-4 decision. More than 12 years have passed since Citizens United v. Federal Election Commission opened the floodgates to undisclosed political spending. That decision is still the law of the land. So, nine years on, is Shelby County v. Holder, which hobbled the Voting Rights Act of 1965. A voting rights bill named for the late John Lewis, which passed the House last year but sputtered in the Senate, was one of many failed attempts to reverse the effects of Shelby County. Mr. Biden is all too aware that Congress is rarely roused to act. When the court issued its decision in Dobbs, he urged Congress to “restore the protections of Roe v. Wade as federal law” — and hastened to note how unlikely that was. (A pre-emptive effort had already failed.)

What, then, explains his reserve? Perhaps he is simply afraid of the blowback — whether from Republicans, who would eagerly paint any criticism of the court as “radical leftism,” or from moderate Democrats, who share his disdain for decisions like Dobbs but would likely back away from confronting or reforming the court. Senators Joe Manchin and Kyrsten Sinema are already on the record as opponents of court packing, and at a time when Mr. Biden has to beg and barter for their votes, he is surely disinclined to provoke them.

And provocation has never been his style. Mr. Biden has long been taken by the notion of the Senate as a “saucer” in which political passions cool, and appears to see himself in the same light. While he is moved at times with righteous indignation, he seems most comfortable as America’s balm, its salve, its anti-inflammatory. It would most likely not offend him to be told he is having a dampening effect on the debate about the court.

Indeed, he has been hostile to the idea of court expansion since at least the 1980s, when he served as chairman of the Senate Committee on the Judiciary. In 1987, in a speech to the American Bar Association, Mr. Biden spoke admiringly of the senators who had stood in the way of Roosevelt’s court-packing proposal: “In their minds,” he said, “the integrity of the court meant more than the agenda of the president.”

In 2020, as a candidate for president himself, Mr. Biden was forceful in his rejection of court packing. If Democrats expanded the number of justices, he said, they would “live to rue [the] day.” He painted a picture — just as Roosevelt’s critics did — of an endless cycle of retribution, with each round of court packing sparking another by the opposing party until “we begin to lose any credibility the court has at all.” It is a reasonable concern. Yet Mr. Biden has made clear his animus extends to other reforms, including term limits for justices. “It’s a lifetime appointment,” he said in 2020. “I’m not going to attempt to change that at all.”

He has been true to his word. Upon taking office, he created a commission to review proposals for court reform and then removed its teeth, asking the group to write a report containing no recommendations. When “staggered term limits” — the idea of setting an 18-year term for justices and mandating that two (and only two) appointments would be made during each four-year presidency — emerged as something close to a consensus solution, Mr. Biden shrugged it off without comment, leaving a bitter taste for many who had dedicated their time and insights to the effort.

Mr. Biden, the explanation goes, is an institutionalist. During his many years on the Judiciary Committee, he spoke of the Supreme Court with respect, even reverence. It has proved a hard habit to break, even as the court’s entrenched, amped-up supermajority wages its campaign against the 21st century (and much of the 20th). “His admiration for the court as an institution has been overtaken by reality,” Harvard Law School’s Laurence Tribe, who also served on the commission, told Politico last summer. “And I think it’s time to wake up.” Sometimes an institution must be saved from itself.

Popular discontent with the court is growing, for good reason, and will seek outlets for its expression. Mr. Biden might worry that by discussing the court, he will politicize the court. But as Justice Elena Kagan has pointed out, the court itself has already done that. And absent the president’s engagement, the loudest, angriest voices will fill the void. He has a window, for now, in which he might set the terms for a productive, not destructive, discussion about remedies — a discussion that will outlast his own time in office. Court reform is a long game. Ending life tenure for justices, for example, would likely require a constitutional amendment — a daunting prospect, but far from impossible if Mr. Biden gets to work in laying the groundwork. “The presidency,” Barack Obama has written, “is a relay race.”

Consider how we arrived at this moment. The radicalization of the Supreme Court seems to have hit like a sudden storm: In just four years, Donald Trump installed three new justices. But the right’s takeover of American law was set in motion in the late 1960s by Richard Nixon, who attacked the “creeping permissiveness” of liberal judges and expounded “strict constructionism.” Later Ronald Reagan, an even truer believer, carried the crusade into the 1980s — transforming the judiciary through his appointments and changing public attitudes by insisting that the framers’ “original intent” ran unerringly in the direction of smaller government. The path from Nixon to Reagan to Dobbs was half a century long.

“No matter how long the road,” Mr. Biden promised in Philadelphia, “progress does come.” Yet it will not come unless every American of conscience — including the one in the White House — steps off the sidelines. Until then, the assault on democracy he described will continue. It will be waged in state legislatures and in Congress, and on the first Monday of October it will recommence in the conference room of the Supreme Court.

 

Have we forgotten what a public library is for?

 

Have we forgotten what a public library is for?

By Deborah E. Mikula

 and 

Loren Khogali

September 30, 2022 at 12:18 p.m. EDT

Imagine a town without a library.

In August, people in Jamestown, Mich., just outside Grand Rapids, signaled with their votes that they would rather defund — and possibly shutter — their only public library than keep books with LGBTQ themes on the shelves.

The impact of such a vote is deeply concerning. And the place from which it stems — a small but vocal minority trying to dictate what others can and cannot read — is even more troubling.

A Mich. library refused to remove an LGBTQ book. The town defunded it.

Libraries fill a role central to any functioning democracy: upholding the rights of citizens to read, to seek information, to speak freely. As champions of access, librarians are committed to curating collections that allow everyone who enters the library to see themselves in the books and resources the library provides. It is especially crucial to serve people who belong to traditionally marginalized groups — such as the LGBTQ community — which have historically been underrepresented in the publishing industry.

Distressingly, the episode in Jamestown is not an isolated incident.

Across the United States, there has been a rising tide of efforts to undermine fundamental tenets of the First Amendment by suppressing intellectual inquiry and the right to read. As of August, the American Library Association (ALA) had documented 681 challenges to books this year, involving 1,651 different titles; in all of 2021, the ALA listed 729 challenges, directed at 1,597 books. Most of those challenges targeted non-White or LGBTQ authors or subjects. And because the ALA relies on media accounts and reports from libraries, the actual number of challenges is probably far higher, the library association believes.

A chilling indicator of just how extreme these would-be censors can be is found in their willingness to go far beyond accepted norms — political or social — to get what they want. In Jamestown, the library director resigned earlier this year because of online harassment she had been subjected to by a small, well-coordinated group. The interim director who replaced her also resigned, citing harassment.

Azar Nafisi: Book bans signal the dangerous direction society is moving

Describing an “alarming increase in acts of aggression toward library workers and patrons,” the ALA in June issued a statement condemning “violence, threats of violence and other acts of intimidation increasingly taking place in America’s libraries.”

This is what the censors refuse to grasp: Librarians are not trying to force your children to read material you don’t want them to read. They are fulfilling their role as information professionals tasked with upholding the constitutional promise of access to information for all.

Fortunately, the vast majority of Americans understand this. A March survey by Hart Research Associates and North Star Opinion Research on behalf of the ALA found that 71 percent of voters “oppose efforts to have books removed from their local public libraries,” adding: “Most voters and parents hold librarians in high regard, have confidence in their libraries to make good decisions about what books to include in their collections, and agree that libraries in their communities do a good job offering books that represent a variety of viewpoints.”

Also encouraging is the nationwide support library board members in Jamestown received for refusing to compromise their ethical principles and, frankly, their humanity.

A GoFundMe campaign, started soon after the aforementioned vote, has already exceeded its goal of raising $245,000, an amount equal to the library’s annual budget. This outpouring of donations is a heartening indicator of the value Americans place in protecting First Amendment rights. But funding a local library through crowdsourcing is not sustainable in the long term.

Alexandra Petri: All these book bans are like something out of, uh… ‘Goodnight Moon’?

It is important to note the precedent set by the U.S. Supreme Court on this topic. In 1982, the court determined that removing books from a school library because certain people simply disliked the ideas contained in those books violated the First Amendment rights of students. Simply put, if a board decides to remove materials from a library’s collection based on subject matter, they are putting the library at risk of lawsuits alleging unconstitutionality.

Thankfully, library board members in Jamestown have refused to succumb to the intimidation. Rather than remove the roughly 90 books with LGBTQ themes from a collection that numbers some 67,000 items, they have decided to provide their community with a second chance to do the right thing, by putting the funding question in front of voters again this November.

It is up to all of us who support free speech to resist book banning. Attend meetings and voice support for intellectual freedom and inclusion. Write letters to your local news organization supporting officials who refuse to concede to censors. Run for local office. Join and become active in groups supporting the First Amendment.

The way to combat vocal attacks on free speech is with even more free speech.

 Otherwise, the censors win. And we all lose.

 

THE SUPREME COURT KEEPS GETTING WORSE

 

You thought the Supreme Court’s last term was bad? Brace yourself.

 

By Ruth Marcus

Deputy editorial page editor

September 30, 2022 at 9:00 a.m. EDT

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 set to start Monday. Nothing in the behavior of the court’s emboldened majority suggests any inclination to pull back on the throttle. The Supreme Court is master of its docket, which means that it controls what cases it will hear, subject to the agreement of four justices. Already, with its calendar only partly filled, the justices have once again piled onto their agenda cases that embroil the court in some of the most inflammatory issues confronting the nation — and more are on the way.

Last term, in addition to overruling Roe v. Wade, the conservative majority expanded gun rights, imposed severe new constraints on the power of regulatory agencies and further dismantled the wall of separation between church and state.

If there was a question, at the start of that term, about how far and how fast a court with six conservatives would move, it was answered resoundingly by the time it recessed for the summer: “Very far, very fast,” said Donald B. Verrilli Jr., who served as solicitor general under President Barack Obama. “I hope the majority takes a step back and considers the risk that half the country may completely lose faith in the court as an institution.”

Maybe it will, but for now, the court is marching on toward fresh territory, taking on race, gay rights and the fundamental structures of democracy — this even as the shock waves of the abortion ruling reverberate through our politics and lower courts grapple with a transformed legal regime. And there’s every indication that the court intends to adopt changes nearly as substantial — and as long-sought by conservatives — as those of last term.

Of course, blockbuster cases can fizzle. Even if four justices vote to hear a case, the need to secure a fifth vote for an eventual majority can force incremental rulings over bold proclamations. But a six-justice supermajority means that Chief Justice John G. Roberts Jr., the most moderate of the conservatives, can’t apply the brakes alone, even in the relatively few instances where he might be so disposed. Justice Brett M. Kavanaugh is the justice most likely to join Roberts in defecting from the conservative fold, but Kavanaugh’s approach has more often been to put a comforting gloss on the majority’s version — and then sign on to it anyway. 

In assembling its cases for the term, the conservative wing has at times displayed an unseemly haste — prodded by conservative activists who have seized on the opportunities presented by a court open to their efforts to reshape the law. The court reached out to decide a dispute about when the Clean Water Act applies to wetlands, even as the Environmental Protection Agency rewrites its rules on that very issue. It agreed to hear a wedding website designer’s complaint that Colorado’s law barring discrimination on the basis of sexual orientation violates her free speech rights to oppose same-sex marriage, even though Colorado authorities have not filed any complaint against her. It took the marquee case of the term — the constitutionality of affirmative action programs at colleges and universities — although the law in this area has been settled and there is no division among the lower courts.

“They’re impatient,” Harvard Law School professor Richard Lazarus said of the conservative justices, especially the longest-serving, Clarence Thomas and Samuel A. Alito Jr. “They’ve spent a lot of time waiting for this majority to happen and they don’t plan to waste it.”

If so, that is a perilous course for an institution whose very authority is grounded on the presumption of stability. If the majority insists on its current and hurried path, it risks deepening the very questions about the court’s legitimacy that have tormented the justices — divisions reflected in the bellicosity of their written work and that have erupted, in recent weeks, into their public debate. At a moment of extreme and increasing national division, change of such velocity and breadth is unhealthy not only for the court but also for a nation being asked to abide by its rulings.

Nearly 80 years ago, Judge Learned Hand observed that “the spirit of liberty is the spirit which is not too sure that it is right.” By contrast, “This is a court that is very convinced of its righteousness,” said Stanford Law School professor Pamela S. Karlan. “This is a court on which there are a number of justices who are very eager to push the law in directions they prefer, and they don’t think to themselves ‘We should go slow on these things.’ ”

 

As much as the previous term was dominated by the decision to overrule Roe, the overriding theme of the coming term will be race — with one major case on the constitutionality of weighing race as a factor in college admission and another on the fate of the remaining shreds of the Voting Rights Act.

Both implicate the same fundamental question: Does the Constitution and federal law impose an unyielding insistence on colorblindness? Or should the nation’s history of racial discrimination and its lingering pernicious effects permit some flexibility to allow consideration of race?

This majority is certain it knows the answer. Race is a triggering issue for the conservative justices, one that rivals abortion in the intensity of response that it evokes. They have made a near fetish of Justice John Marshall Harlan’s famous 1896 admonition in Plessy v. Ferguson that “our Constitution is colorblind” — somehow forgetting that statement came in the context of arguing against state-compelled segregation of rail cars, what Harlan termed “a badge of servitude wholly inconsistent with ... the equality before the law established by the Constitution.” These justices are offended by the notion of allowing any consideration of race, whether the motive is malign or benevolent.

And no justice is more hostile to that idea than Roberts. His much-vaunted incrementalism has rarely manifested itself in race-related cases. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he declared in a 2007 case rejecting a school district’s effort to achieve racially balanced classrooms. “It is a sordid business, this divvying us up by race,” he wrote in a 2006 Voting Rights Act case.

The affirmative action case, to be argued Oct. 31, involves the constitutionality of race-conscious admissions programs at Harvard University and the University of North Carolina; the court, with considerable discomfort, has narrowly allowed the practice. In a 2003 case, Grutter v. Bollinger, the court voted, 5-4, to uphold a University of Michigan law school admissions program.

“Student body diversity is a compelling state interest that can justify the use of race in university admissions,” Justice Sandra Day O’Connor wrote for the majority, echoing the position of Justice Lewis F. Powell Jr. in the 1978 Regents of the University of California v. Bakke ruling. None of the five justices in the Grutter majority remain on the court. Justice Thomas, who dissented in Grutter, has since been joined by five new colleagues who are apt to support his view.

Just as lawyers for Mississippi, after the death of Justice Ruth Bader Ginsburg, urged the newly constituted court to use Dobbs v. Jackson Women’s Health Organization to overturn Roe, those challenging the Harvard and UNC admissions programs have taken direct aim at Grutter. Their brief invokes Brown v. Board of Education, the landmark school desegregation case, as support for invalidating efforts to assure diversity in higher education. “Because Brown is our law, Grutter cannot be,” the brief asserts. “Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution, this Court should overrule Grutter’s.”

This is jawdroppingly offensive. One case was designed to undo Jim Crow-era segregation; the other to promote racial diversity. As with the paeans to “colorblindness” in Harlan’s Plessy dissent, the invocation of Brown ignores that fundamental difference.

Go back to Chief Justice Earl Warren’s language for a unanimous court in Brown: “To separate them [schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” That is not what happens to applicants rejected by Harvard, however aggrieved they might feel.

The conservative justices are no doubt inclined to take up the invitation to overrule Grutter — it’s fair to surmise that’s why they accepted the cases. But in doing so, they’ll have to confront the tension between their insistence on colorblindness and their asserted adherence to an originalist judicial philosophy.

The 14th Amendment, ratified in 1868, guarantees to every person the “equal protection of the laws.” During that very period, however, those defending race-conscious admissions point out, Congress and states also enacted special programs to help newly freed enslaved people and other Black citizens.

Don’t count on that swaying this court. “One of the striking things in this area is that originalists do not bring their usual apparatus to bear on these questions,” said Yale Law School professor Justin Driver.

The second race case, to be argued Oct. 4, concerns Section 2 of the Voting Rights Act. It, too, demonstrates how newly aggressive conservative states and other parties are pushing the majority to deploy the equal protection clause not as a weapon for assuring minority rights but as a guise for retrenching on them.

Over the past decade, the court has put the Voting Rights Act through the shredder. In 2013, in Shelby County v. Holder, the court eviscerated the law’s central mechanism, known as Section 5, which required jurisdictions with a history of voting discrimination to obtain advance federal approval before changing voting rules. Roberts, who wrote the opinion, offered assurances then it in “no way affects the permanent, nationwide ban on racial discrimination in voting” in Section 2 of the law.

But Section 2, which prohibits any voting practices that result in the “denial or abridgment” of the right to vote on account of race, hasn’t fared much better. Two years ago, the court made it much more difficult to use the law to go after voting restrictions, such as limits on absentee ballots, that disproportionately harm minorities.

This term, the court is turning its focus to what has been the main use of Section 2, to ensure that state legislative and congressional district lines are drawn fairly. The case, Merrill v. Milligan, involves a congressional redistricting plan in Alabama. The state’s population is 27 percent Black, but Blacks constitute a majority in just one of its seven congressional districts. A lower court, citing Alabama’s “extensive history of repugnant racial and voting-related discrimination,” ruled that the state had to create another majority Black district to comply with Section 2.

Applying the approach set out in a 1986 case, the lower court found that voting in Alabama is so racially polarized that Black voters don’t have a decent chance of electing their preferred candidate unless they are in a district that is at least close to majority Black. In addition, it concluded, Blacks in the state are numerous enough and clustered sufficiently compactly to make it feasible to create a second such district.

Alabama argues that it can’t be required to draw a second district — but not because it contests the factual findings by the three-judge lower court, which included two Donald Trump appointees. Instead, the state is urging the court to discard decades of precedent and simply rewrite the “existing framework.”

Even though Congress amended Section 2 in 1982 to make clear that it wanted to prevent voting practices with discriminatory effects (as well as discriminatory intentions), Alabama insists, those challenging existing district lines must prove that “can be explained only by racial discrimination.”

At the same time, it argues, plaintiffs trying to show that a majority-Black district is possible can’t take race into account in drawing that district. The illustrative maps must, the state says, be created in a way that is “race-blind.” Otherwise, Alabama says, Section 2 would violate the 14th Amendment by taking race into account.

This is simply head-spinning. As the Biden administration explained in its brief, “it would be extraordinary to hold that the Fourteenth Amendment, which itself empowers Congress to combat racial discrimination, disables Congress from adopting Section 2’s limited measures” to ensure equal participation by minority voters.

The implications of Alabama’s logic would be enormous, especially in the Deep South, at a moment when minority representation in elected office generally lags below the minority share of the vote. “For those who care about Black or Latino representation … this is the most disruptive case to minority representation in several decades, more so than Shelby County,” said Harvard Law School professor Nicholas Stephanopoulos, who filed a brief in the case on the side of those arguing for the second majority-Black district.

If past is prologue when it comes to this court and the Voting Rights Act, that won’t make much difference.

 

But race isn’t the only issue on which the court is poised to usher in dramatic change. Some of the cases the justices are set to hear — including one that is hurtling its way toward a receptive court — involve the tension between religious liberties and gay rights. The buttressed conservative majority has moved cautiously but inexorably in a single direction: in the clash, religious rights prevail.

Five years ago, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court punted in a case involving a Christian baker, Jack Phillips, who said his religious beliefs prevented him from creating a custom cake for a same-sex wedding. Colorado authorities said Phillips’s refusal violated the state’s anti-discrimination law.

The court in Masterpiece Cakeshop said it was a “general rule” that religious and philosophical objections “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” But the court kicked the case back to the lower courts because it said there was evidence that Colorado authorities were hostile to Phillips because of his religion.

Now, a different court — Kavanaugh replaced Anthony M. Kennedy and Amy Coney Barrett succeeded Ginsburg — has decided to plunge back into the contentious issue. The case again comes from Colorado, this time brought by Lorie Smith, a graphic artist and website designer who wants to create custom wedding websites that “express what she believes is the beauty of God’s design for marriage,” as her lawyers told the court.

The case, 303 Creative LLC v. Elenis, has been brought as a restriction on Smith’s free speech rights as an artist, not as an infringement of her religious liberties. (Masterpiece Cakeshop originally raised both issues.) Still, given this court’s solicitude for freedom of religion, it is hard to see how such concerns will not end up influencing the outcome. At the same time, the First Amendment focus opens up a whole new can of worms: Given the array of businesses that could claim their activities deserve free speech protections, what would the limiting principle be?

“If 303 Creative is correct, could a bakery that opposed celebrating Black families refuse to sell a birthday cake to a Black mother?” the American Civil Liberties Union asked in its friend-of-the-court brief. “Could an architecture firm that serves the public refuse to design homes for Muslims because it opposes their religion? … Could a restauranteur opposed to ‘mixed marriage’ put up a sign in its window saying, ‘No inter-racial or inter-faith couples served’?”

The second case presents the religious freedom issue even more starkly. It pits Yeshiva University, an Orthodox Jewish institution whose beliefs oppose homosexuality, against a group of gay students seeking official recognition as a campus organization. In September, the justices, in a 5-4 split, rebuffed Yeshiva’s plea for emergency intervention, saying it should continue to make its case in New York state courts; Roberts and Kavanaugh joined with the three liberal justices — Sonia Sotomayor, Elena Kagan and the newly arrived Ketanji Brown Jackson.

Unless the New York courts change course, this appears to be a mere stay of execution for the gay student group — and perhaps not for very long. The four dissenters, in an opinion by Alito, predicted flatly: “At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us.”

Indeed, Yeshiva is pressing the court to use the opportunity — one it ducked two years ago — to overrule Employment Division v. Smith, a 1990 opinion by Justice Antonin Scalia that has long been a target of religious rights advocates who say laws and regulations should have to give way if they burden religious freedom.

Finally, democracy is on the court’s docket in the form of a case called Moore v. Harper, a dispute over gerrymandering in North Carolina — this time partisan, not racial, gerrymandering. The case raises what conservatives call the “independent state legislature theory.” Some background: The Constitution’s elections clause provides that “the Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” subject to congressional action. (A parallel provision applies to appointing presidential electors.)

In Moore, the question is whether, notwithstanding the elections clause, the state Supreme Court retains the power to supervise the actions of the state legislature to make certain they comply with the requirements of the state constitution.

This case matters for democracy on two levels — one immensely important, the other potentially revolutionary.

The first concerns the precise issue in this case: the increasingly common and, with the help of powerful computers, increasingly effective practice of partisan gerrymandering. In 2019, after toying with the notion for years, the justices declared that federal courts had no business involving themselves in supervising such manipulation.

Even as it did so, the majority insisted that its withdrawal from the field did not “condemn complaints about districting to echo into a void.” State courts could remain active in the area and police excessive gerrymandering, the court noted.

That’s just what happened in North Carolina. The state Supreme Court struck down a redistricting map that would lock in 10 of 14 congressional districts for Republicans, calling the map an “egregious and intentional partisan gerrymander” that violated the state constitution. Republican state legislators, invoking the independent state legislature theory, appealed to the Supreme Court, claiming that the North Carolina courts had usurped their authority and intruded on the exclusive domain of the state legislature.

The case will be closely watched, but not only because of redistricting. Much as the Christian website designer’s case could usher in a new era of line-drawing about when discrimination must be tolerated, the North Carolina case could create new limits on state courts’ oversight of state legislators.

The independent state legislature theory, if validated in Moore, could be used as a tool for election subversion, letting state legislatures interfere with election results they don’t like. What if state election officials determine that certain ballots should be counted — say, from absentee voters postmarked by a certain day — but the state legislature doesn’t agree?

An even more extreme scenario, though not one directly implicated by this case: What if a state legislature disapproves of the slate of presidential electors certified by a governor? Could it step in to undo election results? This was the theory being peddled by lawyer John Eastman as he tried to upend the 2020 election results and have Trump declared the winner.

But letting legislatures change the rules after Election Day could be a step too far, even for this court. Moore might be the one case this term where apocalyptic predictions have been overblown.

Still, three justices have already signaled where they stand, at least on the narrower issue. Alito, joined by Thomas and Justice Neil M. Gorsuch, dissented earlier this year when the court refused to stop the North Carolina map from taking effect. “If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito observed.

Kavanaugh chimed in, calling the independent state legislature issue an “important” question. And Roberts, dissenting in a 2015 case upholding Arizona’s independent redistricting commission adopted by voter referendum, termed it a “deliberate constitutional evasion” to read the term “legislature” so broadly as to include an independent redistricting commission.

The state lawmakers present the issue as a simple one: Legislature means legislature. “The text of the Constitution directly answers the question presented in this case,” they write in their brief.

Not so fast, perhaps. Former acting solicitor general Neal Katyal, representing Common Cause in the case, told the court the opponents’ arguments “hang on a hyper-literal reading of the word ‘Legislature’ that ignores that word’s context, constitutional structure, and precedent,” adding, “the original understanding of ‘Legislature’ … contemplated a governing body defined and bounded by state constitutional limits.” It’s hard to have much confidence that such originalist arguments will persuade the court’s self-described originalists.

“Fearless.” That’s the adjective that University of Chicago law professor William Baude applies to this court, and in his view, that’s not a bad thing. “The court’s not sitting out the hard cases now,” he said. “Change happens. New justices were put on the court by politics, and that’s how the court’s supposed to work. Everybody understands that putting new justices on the court who are different from the old justices has consequences. That’s never been something the court could or should try to immunize itself from.”

Fair enough — to a point. Other new courts — the dramatic expansion of civil rights and civil liberties under the Warren court of the 1950s and ’60s comes to mind — have ushered in periods of major, even radical, change, and there is an element of turnabout is fair play in the changes being wrought by the court’s new supermajority.

But Baude’s phrase — justices “put on the court by politics” — omits the ugly reality of how they arrived: Gorsuch after Senate Republican leader Mitch McConnell (Ky.) blocked action on Obama’s nominee, Merrick Garland, for nine months; Barrett after McConnell rushed through her confirmation in 30 days, just ahead of the 2020 election.

It ignores the uncomfortable fact that never before in the court’s history has the ideological alignment of the justices tilted so heavily to one extreme — the intended consequence of the conservative legal movement’s 40-year drive to ensure like-minded nominees. “This kind of partisan correlation, where you can plausibly portray the court as an arm of the Republican Party, which is what I think it is, you’ve never seen that before, and that’s obviously a very dangerous situation,” said Harvard Law School professor Michael J. Klarman.

And Baude’s assessment fails to take into account — although he would disagree — that the conservative majority has demonstrated a consistent willingness to employ decidedly unconservative means to achieve its desired result.

Forget the years of Republican railing about activist judges legislating from the bench. This majority is perfectly willing to rewrite laws it doesn’t like (see its work on the Voting Rights Act) and ignore statutory text when that is inconvenient (see last term’s climate change case). It insists that constitutional interpretation must be constrained by history, but it cherry-picks that history (see last term’s gun case) in a predictable direction. It is willing to ignore its own rules about lightly discarding precedents when it has amassed enough votes to do so (see Dobbs).

Such behavior has consequences. It produces charged moments, such as Sotomayor, at the oral argument in Dobbs, asking, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” It produces dissents of astonishing ferocity, such as the statement by the three liberals in Dobbs, “Today, the proclivities of individuals rule.”

And it contributes, much as Roberts might like to believe otherwise, to the court’s precipitous decline in public esteem. Echoing the fierce debate between the majority and dissent in Dobbs, Roberts and Kagan have engaged in an unusual public back and forth, polite but pointed, about the genesis of the court’s legitimacy problem. Roberts casts it as a matter of the public misunderstanding the court’s role. “Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court,” he told a judicial conference in September.

To Kagan, that misses the point. Of course, the court must issue unpopular decisions — its role is telling “the majority when the majority has transgressed the Constitution, and those decisions are often going to be unpopular,” she said. But the court needs to accumulate a “reservoir of public confidence and good will” — through abiding by precedent, applying its methods consistently and not straining to decide things unnecessarily — to sustain the confidence and faith of the public when handing down unpopular opinions.

“When the court gets involved in things that it doesn’t have to, especially if those things are very contested in the society, it just looks like it’s just spoiling for trouble,” Kagan said in an appearance at Northwestern Law School. “That makes people, again, rightly suspicious that the court is doing something not particularly court-like and law-like.”

Which brings me back to Baude’s description of this majority: fearless. I would choose a different word: heedless. Heedless of any constraints on its power or the effects on the judiciary. Heedless of the real-world consequences of its actions — on women, on minorities, on public safety and, most worrisome, on democracy itself. 

As October Term 2022 gets underway, I search in vain for signs of this heedlessness abating. Seeing few, I worry, for the court and for the country whose future it will shape.