Washington- The Supreme Court will meet Monday to kick off its new nine-month term, one that is expected to bring another round of divisive decisions on hot-button issues like affirmative action, voting rights, elections and LGBTQ discrimination, cases that they could show the power of the court’s six-judge conservative majority.
But as the justices prepare to take office, before members of the public for the first time since the start of the COVID-19 pandemic, the court is also facing historically low levels of public trust, which plummeted before and after the ruling. June. the constitutional right to abortion.
The latest high court mandate offered no shortage of blockbuster rulings., , to combat climate change and and judges are barely backing away from politically charged cases.
Already in the file there is a challenge toin selective colleges, a dispute of a website designer against anti-discrimination protections for LGBTQ people and a that could limit the authority of state courts to review election rules passed by state legislatures under state constitutions.
“I don’t think it’s going to be a sleepy tenure on the Supreme Court,” Allison Orr Larsen, a professor at William & Mary School of Law, told CBS News. “The cases they have taken are ideologically charged, and there will likely be even more divisive questions they will have to answer about the Second Amendment and anti-abortion struggles, all in the wake of their big decisions last term. There is no evidence yet that this court is going to hit the brakes to decide high-profile and divisive issues in the short term.
Judges have also been asked to weigh in on disputes over the Bureau of Alcohol, Tobacco, Firearms and Explosives’ ban on firearm accelerants, a Florida law that regulates how social media companies moderate its content and whether the unborn are entitled to constitutional protections. . The cases the court decides not to hear could be illuminating as to whether conservative justices want to keep up their rapid pace of reshaping the law.
“One question will be whether there is any feeling in the court that after Dobbs they need to cool down a little bit, and that may be in the decisions they make or the cases they may take,” said Sean Marotta, an appellate judge. Hogan Lovells attorney. “Moderation can be not in the cases that they decide, but in the cases that they decide not to decide.”
Among the most closely watched legal battles judges will hear is achallenging race-conscious admissions policies at Harvard College, a private school, and the University of North Carolina, a public institution, to be discussed on October 31.
Students for Fair Admissions, the organization that brought the lawsuit, argues that the schools violate the 14th Amendment and federal law through their admissions programs, which have been used to encourage diversity among university student bodies.
Students for Fair Admissions is asking the justices to overturn their 2003 decision in Grutter v. Bollinger, who confirmed the use of race as a factor in student admissions by the University of Michigan Law School.
Court watchers expect the Supreme Court to reverse its nearly 20-year-old ruling, particularly as court members have changed since its 2016 decision in Fisher v. University of Texas, when the court last said race-aware admissions programs are legal.
“Chief Justice Roberts, your vote is not really in question on race-based affirmative action. Most of the time, you’ve been a skeptic of race-based affirmative action and there are no surprises there,” Larsen said. . “I can’t count to five in any way that preserves Grutter or Fisher. I think the safe bet is that those cases will be dismissed.”
In January, the court consolidated the two cases for oral arguments, but unlinked them in July after Judge Ketanji Brown Jackson was, as he recused himself from the dispute involving Harvard due to his role on the school’s Board of Supervisors. Jackson may participate in the University of North Carolina’s consideration of the case.
Devon Westhill, president and general counsel of the Center for Equal Opportunity, said he thinks it’s important for Jackson, the first black woman to serve on the court, to express her views on racial consciousness in American life.
“I think as we continue to think about concerns about the legitimacy of the court, it would really be a black mark on the court if the first black woman just didn’t get a chance to weigh in on a major racial issue as affirmative action,” she said during a preview of the court mandate organized by the Federalist Society.
A clash of free speech and LGBTQ rights
The judges will also consider whether anti-discrimination laws that protect LGBTQ people can require a business owner to express a message that they do not wish to convey under the First Amendment.
The case, involving a Colorado website designer, comes four years after judges heard a similar dispute involving a Colorado baker who refused to make a cake for a same-sex wedding. But in their 2018 decision, the justices failed to address core free speech issues.
“Those big First Amendment questions are now back before the court, but before a new court,” said Amanda Shanor, an assistant professor at the Wharton School of the University of Pennsylvania who focuses on constitutional law, during the preview of the Federalist Society.
The case, 303 Creative v. Elenis, “relates both to the extent of protections of speech and economic life, particularly for business owners, and the degree to which businesses can refuse to serve customers,” he said.
The website designer involved in the dispute, Lorie Smith, doesn’t want to design same-sex wedding websites, and she asked a federal court in Colorado not to apply the state’s anti-discrimination law against her. The lower courts, however, sided with the state.
While Shanor said there is “good money” in the Supreme Court’s ruling in favor of Smith, the details of the decision will be key.
“How it does it, or if it does it, can have huge implications for the rights of expression and association in other economic settings and for other anti-discrimination laws in general,” he said. “And part of the question is how the hell are you going to host an exception like that?”
Elections and voting rights
In its first week of oral arguments, the courtinvolving the map of Congress drawn by Alabama Republicans, which a lower court said violated the 1965 law by having a single district where black voters make up the majority of the district.
Then, in the coming weeks, it will consider a North Carolina election law dispute involving a state court-created map of Congress for the 2022 midterm elections. That legal fight invokes the so-called independent state legislature theory, which says that under the US Constitution, only the state legislature has the authority to set federal election rules, taking oversight out of state courts to ensure they comply with state constitutions.
Then-Chief Justice William Rehnquist proposed a version of the theory in his concurring opinion in the 2000 case Bush v. Gore, and four of the current judges, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh.in March saying the Supreme Court will soon have to address the extent of state court authority to review election rules adopted by state legislatures.
The case has attracted the attention of a wide range of voting groups, including the Conference of Chief Justices, an organization made up of the highest judicial officials in the country.
In a friend-of-the-court brief filed in support of neither side, the group told the Supreme Court that the United States Constitution “does not abrogate the authority of state courts to decide what is state election law, even if it conforms to the constitutions of the United States.”
A new mandate begins with a new justice
In addition to launching their new term, the judges also welcome a new member with thewho replaced now-retired Judge Stephen Breyer.
Jackson’s appointment is historic as she is the first black woman to serve on the high court and also brings the Supreme Court closer to gender parity.
While it doesn’t alter the ideological makeup of the court (Republican-appointed justices still hold six of the nine seats), it does offer a new vantage point given her eight years as a federal trial court judge in Washington.
“That perspective can be really valuable: the kinds of evidence the court is going to announce or the amount of deference it gives on matters of fact, or the willingness to leave questions open, those are more subtle issues, but I suspect she will matter.” a lot about them,” Larsen said. “In the conference room, it can make all the difference if a colleague says, ‘I have real-world experience in trial court and these are the practical implications of what you’re about to do. to decide'”.
Meanwhile, Marotta noted that as the court’s composition has changed and its ideological leanings have shifted to the right, spurred by former President Donald Trump’s appointment of three members, discussions of its center have shifted from the oscillating fairness to medium fairness.
“Incrementalists don’t have the majority they once did. A lot of that is put on Justices Kavanaugh and Barrett, because they get to decide how much they spend,” she said. “In some cases, they are willing to be more incremental and more cautious, and in others, they are more pro-change.”