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.
