Politics

The Supreme Court’s new term could be even more consequential than its last one

The headline of this piece is likely to turn a few heads. The Supreme Court’s last term, after all, was an orgy of conservative excess unlike any since the Court’s Great Depression-era attacks on the New Deal. And it culminated in the demise of Roe v. Wade, arguably the most closely watched Supreme Court decision since the justices declared school segregation unconstitutional in 1954.

But this term, a potentially even more consequential issue than the right to an abortion is on the Court’s docket: democracy itself. A single case, Moore v. Harper, threatens to fundamentally rewrite the rules governing federal elections, potentially giving state legislatures (some of which are highly gerrymandered themselves) nearly limitless power to skew those elections.

A second case in the Court’s new term — which officially opens on Monday, October 3 — also places free and fair elections in the United States in grave peril. That case, Merrill v. Milligan, could usher in a new era of racial gerrymandering where states have more freedom to undercut Black and brown political power than they’ve had since President Lyndon Johnson signed the Voting Rights Act in 1965 — a law that the Roberts Court has spent the last decade dismantling piece by piece.

If both these cases go badly, it’s not that America will stop having elections. But the power to decide how elections are conducted — which ballots are counted, where district lines are drawn, and potentially even who is certified as the winner of an election — could rest with increasingly partisan officials, including the justices themselves.

And even if the Court were not hearing what could be two of the most significant election cases of the modern era, this would still be a term with enormous policy stakes.

A protester holds a sign at a rally outside the US Capitol to urge the Senate to pass voting rights legislation on January 19, 2022.
Tom Williams/CQ-Roll Call via Getty Images

Just in October, the Court plans to hear two different cases that could significantly undercut US efforts to protect the environment — building on a decision from last June that weakened the EPA’s power to fight climate change. In its November session, the Court will hear a pair of cases that are widely expected to forbid universities from considering race when deciding which students to admit, effectively ending race-based affirmative action programs at those schools.

Other cases on the Court’s docket could undercut Medicaid and erase legal safeguards intended to halt the cultural genocide of Indigenous people.

Bear in mind, moreover, that the Court has only begun to fill up its docket for the upcoming term. As the year progresses, the Court will agree to hear additional cases, some of which could be no less harrowing for liberal democracy than Moore, Merrill, and others that the justices have already agreed to take up.

With that said, here are nine cases that are already on the Court’s docket, and that could each shift US policy dramatically to the right.

1) The single biggest threat to US democracy since the January 6 attack

It’s difficult to exaggerate the stakes in Moore, which could neutralize the parts of state constitutions that protect the right to vote and give an unprecedented amount of power to state legislatures, some of which are heavily gerrymandered.

Moore involves the “independent state legislature doctrine,” a theory that the Supreme Court has rejected many times over the course of more than a century, but that at least four members of the current Court have signed on to in one form or another.

Two provisions of the Constitution state that the rules governing federal elections shall be determined by each state’s “legislature.” For more than a century, the Court has understood this word, at least when used in this context, to refer to whatever body within that state has the power to make laws — what the Court has referred to as the “legislative power.” So if a state ordinarily permits its governor to veto legislation, or if the people of a state can ordinarily enact laws via a ballot initiative, state laws governing federal elections are made in the same way.

Under the independent state legislature theory, however, the word “legislature” must be understood to mean the body of elected representatives which make up a state’s legislative branch of government. Indeed, under the strongest version of this theory, state governors are forbidden from vetoing bills governing federal elections (because the governor is not the “legislature”). And state courts are forbidden from striking down election laws that violate the state constitution (because courts are not the “legislature”).

It’s unclear if the Court will go that far, but even a less aggressive decision in Moore would fundamentally alter the balance of power between the states and the Supreme Court, and potentially give the Court’s GOP-appointed majority an unprecedented amount of say over how federal elections are conducted.

The ultimate power to interpret a state law, for example, rests with state courts, not federal judges. But even a relatively narrow reading of the independent state legislature doctrine would give the same Supreme Court that’s recently shown such hostility to voting rights laws the power to overrule a state supreme court’s interpretation of that state’s election law — on the theory that the state supreme court somehow misinterpreted an act of the state legislature, and this error must be corrected by the US Supreme Court.

Even if the Court does not issue a maximalist decision in Moore, in other words, it could still centralize authority over all presidential and congressional elections within itself — empowering the justices to read state election laws in ways that benefit their preferred party or candidates.

And, in the worst-case scenario for democracy, Republicans in key swing states like Michigan, Pennsylvania, and Wisconsin, where the GOP controls highly gerrymandered state legislatures, could gain an unlimited ability to decide how congressional elections are conducted, and who wins their state’s electoral votes.

2) A new age of racial gerrymandering

Last year, Alabama’s Republican legislature enacted congressional maps that give Black Alabamans far less US House representation than their numbers suggest they should receive.

African Americans make up about 27 percent of Alabama’s population. But, under the gerrymandered maps, Black voters only have a real shot of electing their candidate of choice in one of the state’s seven congressional districts — so Black voters will only control 14 percent of the state’s congressional delegation.

A panel of three federal judges — two appointed by former President Donald Trump — ordered the state to redraw the maps, arguing that they violate the Voting Rights Act, the landmark 1965 law prohibiting race discrimination in elections.

Nevertheless, the Court voted 5-4 last February to reinstate Alabama’s map, at least for the 2022 election cycle. And, in Merrill v. Milligan, the Court will decide whether to make that decision permanent, effectively permitting the maps to remain in effect until the next redistricting cycle in 2031.

In fairness, the mere fact that Alabama’s maps give Black voters significantly less representation than their share of the state’s population suggests that they should have is not sufficient for the Merrill plaintiffs to prevail. Rather, under the Supreme Court’s decision in Thornburg v. Gingles (1986), these plaintiffs have to demonstrate that other factors are present; among other things, they need to show that enough Black voters live in close enough proximity that it would be possible to draw a second majority-Black district, and that white Alabamans tend to vote as a bloc for candidates opposed by Black voters.

The Supreme Court’s new term could be even more consequential than its last one

Marchers dance and gather during the Black Voters Matter’s 57th Selma to Montgomery March, on March 9, 2022.
Brandon Bell/Getty Images

The Supreme Court’s new term could be even more consequential than its last one

People and social justice organizations marched in 2022 to commemorate “Bloody Sunday,” when Rep. John Lewis and other civil rights leaders marched 11 miles on March 7, 1965, during the height of the civil rights movement.
Brandon Bell/Getty Images

The lower court found that these factors were met in Merrill, although Alabama makes a plausible argument in its brief that Black voters in Alabama may not live sufficiently close together to justify a second majority-Black district.

But Alabama’s brief does not so much seek a narrow decision holding that it complied with Gingles, as it asks the Court to overrule Gingles and replace it with a new rule that would make it virtually impossible for voting rights plaintiffs to challenge any racial gerrymander. Under Alabama’s proposed test, a map may be struck down only if its configuration “can be explained only by racial discrimination.”

But that is not what Gingles held, and it is not what the text of the Voting Rights Act provides — the Act provides that any state law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” is illegal, even if the law was not motivated by racist intent.

But, given this Court’s long record of hostility to voting rights plaintiffs, there is a very real risk that its Republican-appointed majority will accept Alabama’s proposal to effectively legalize most racial gerrymanders.

3) The end of affirmative action in university admissions

As a general rule, race-conscious policies are not allowed. The Constitution places strict limits on the government’s ability to consider race, and federal anti-discrimination laws impose similar restrictions on private universities.

In Grutter v. Bollinger (2003), however, the Court held that universities may take limited account of race when deciding which students to admit, because ignoring racial diversity would lead to an inferior educational experience for all students. “Numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals,’” the Court explained in Grutter.

Nevertheless, two closely related cases — Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina — are widely expected to overrule Grutter and forbid universities from considering race even if that will lead to worse outcomes for all of the university’s students.

Affirmative action has already had one close call before the Supreme Court and survived. In Fisher v. University of Texas (2016), Justice Anthony Kennedy, who dissented in Grutter, surprised most Court observers by voting to weaken Grutter, but not to overrule it altogether.

But Grutter was decided by just one vote, and Kennedy and liberal Justice Ruth Bader Ginsburg have since been replaced by archconservative justices appointed by Trump. So the likelihood that Grutter will survive contact with the current Court is quite small.

4) Gutting protections for Medicaid patients

Current Medicaid law offers states a bargain. The federal government picks up a significant share of the cost of providing health care to poor people. In return, states and health providers that participate in state Medicaid programs must comply with certain rules intended to protect patients the federal government is helping pay for. State Medicaid plans, for example, must provide coverage to certain individuals, including children and pregnant patients who meet certain income criteria.

That brings us to Health and Hospital Corporation of Marion County, Indiana v. Talevski, a lawsuit that could render much of this bargain unenforceable.

Under current law, the rules governing when individual plaintiffs may sue to enforce federal Medicaid law are quite complicated, but such suits are allowed when states and health providers violate at least some of Medicaid’s requirements. The defendants in Talevski ask the Court to overrule longstanding precedents that permit these suits. If this position prevails, many of these rules could cease to function in Republican presidential administrations, as the federal government would become the only body capable of enforcing them.

Even in Democratic administrations, moreover, the government would likely struggle to keep Medicaid operating as it currently does, because the federal government only has limited resources to police violations of federal Medicaid law. And the ordinary remedy when a state does not comply with the conditions attached to a federal grant is to cut off those funds — something that a pro-Medicaid administration would be reluctant to do because it would mean punishing low-income patients for the sins of a state or health provider.

In a post-Talevski world, in other words, the only way to enforce Medicaid law may be to cut off federal health care funds to the states — which would lead to even more people losing health coverage.

It’s worth noting the immediate stakes in Talevski as well. The plaintiff alleges that her husband, who had dementia, experienced horrid abuse while he was living in a nursing home. Among other things, she claims that the home violated a federal law that prohibited this home from giving her husband “powerful and unnecessary psychotropic medications for purposes of chemical restraint.”

Now, however, the Supreme Court could render this federal law and many others a virtual nullity. And even if the Court finds a middle ground that only neutralizes some of these lawsuits, that would still mean many Americans would be helpless if they are denied care, or given care that falls far below the standard set by federal law.

5) Who is in charge of ICE?

Federal law provides that the secretary of Homeland Security — currently Alejandro Mayorkas — “shall be responsible” for “establishing national immigration enforcement policies and priorities.” Under this authority, Mayorkas issued a memo instructing Immigration and Customs Enforcement (ICE) agents to prioritize enforcement efforts against removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being” — and, implicitly, to give a lower priority to enforcement against other immigrants.

Nevertheless, Judge Drew Tipton, a Trump appointee with a history of handing down legally dubious orders undercutting the Biden administration’s immigration policies, declared this memo unlawful. Tipton’s order is at odds with the text of federal law, with Supreme Court decisions giving immigration officials broad authority to decide when to enforce the law, and with the basic liberal democratic notion that law enforcement must be under the command and control of political officials who are themselves accountable to someone who is elected.

The US Department of Homeland Security on a window in which is reflected a crowd of protesters.

A view of the Department of Homeland Security Immigration Field Office, in Philadelphia, in June 2018.
Bastiaan Slabbers/NurPhoto via Getty Images

In July, the Supreme Court announced that it would nonetheless permit Tipton’s order to remain in effect while the justices consider the case.

If the Court acts as it did in another recent immigration case, it’s likely a majority of justices will eventually reverse Tipton and restore Mayorkas’s lawful authority over immigration enforcement. But a decision in this case, United States v. Texas, may not come until late June of 2023.

In other words, Tipton is still likely to unlawfully wield many of the powers of the Secretary of Homeland Security for nearly a year.

6) New limits on the federal government’s power to fight water pollution

The Clean Water Act is not the most precisely drafted statute. It prohibits anyone from discharging a wide range of pollutants into the “waters of the United States,” but does not define what this term means.

While there is broad consensus that oceans, rivers, and lakes qualify, what of creeks or human-made drainage ditches that empty into major waterways? What of wetlands that border a river or lake, or that might be connected to one via creeks or drainage ditches? The Clean Water Act has long been understood to cover at least some of these relatively minor bodies of water, because of the reality that toxic chemicals dumped into a wetland miles away from a navigable waterway do not become less toxic simply because they take some time to make their way into that waterway.

Sackett v. EPA involves a difficult question of whether a wetland, which drains into a tributary, which itself drains into a creek, which in turn empties into a lake, is subject to the Clean Water Act. And it is likely that this Supreme Court will use Sackett to significantly reduce that act’s scope.

The last time the Supreme Court considered which waters constitute “waters of the United States,” in Rapanos v. United States (2006), the Court’s conservative bloc split on how best to define that term, and the Court as a whole split 4-1-4 on how to resolve the case — there was no majority opinion.

Justice Antonin Scalia wrote an opinion for the four most conservative justices, claiming that the phrase “does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Scalia added that wetlands are only subject to the act if they have a “continuous surface connection” with a “relatively permanent body of water” that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Justice Kennedy applied a different test, arguing that wetlands can qualify as “waters of the United States” if they “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” The federal appeals court that heard Sackett determined that it should apply Kennedy’s test, rather than Scalia’s.

Since Rapanos, however, both Scalia and Kennedy have been replaced by more conservative Trump appointees — as was Justice Ruth Bader Ginsburg, who joined a more liberal dissent in Rapanos. It is fairly likely, in other words, that whatever emerges from this Court in Sackett will be at least as restrictive as the test Scalia announced in Rapanos.

7) The fight over whether religious conservatives have a constitutional right to discriminate

Religious conservatives have twice sought a sweeping decision from the Supreme Court, holding that they have a constitutional right to discriminate against LGBTQ people. They’ve thus far had mixed success. While the Court has twice ruled in favor of conservative litigants claiming a right to discriminate, it has done so on narrow grounds.

One problem with these litigants’ previous lawsuits is that they presented difficult line-drawing problems. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), for example, the plaintiffs’ lawyers tried to reframe a baker who refused to bake a cake for a same-sex couple as an “artist” who was dragooned into producing a work of art celebrating a marriage he rejects on religious grounds.

Ultimately, the Supreme Court dodged this question, with Justice Elena Kagan noting that this same argument that “artists” have a right to discriminate could permit discrimination by hairstylists, makeup artists, jewelers, and, indeed, pretty much anyone whose job requires a degree of creativity.

Which brings us to 303 Creative v. Elenis, the case currently before the Supreme Court. Unlike a baker, who can only make a tenuous claim that they are engaged in First Amendment protected speech when they bake a wedding cake, 303 Creative involves someone who wishes to design wedding websites — but only for straight couples.

While the exact details of 303 Creative’s website design process might affect how this case should be decided, generally, a website is a medium that uses words to convey meaning, and thus the plaintiffs in 303 Creative present a much stronger case that their business is engaged in First Amendment protected speech than the plaintiffs in Masterpiece Cakeshop. Moreover, the current Court, with its 6-3 Republican-appointed majority, rarely rules against religious conservatives — even when they present much weaker arguments than the ones presented by the 303 Creative plaintiffs. So it’s not hard to guess who will prevail in this case.

A more uncertain question is whether the Court will hand down a sweeping decision giving many religious conservatives a broad right to discriminate, or whether the Court’s decision will be more limited to the facts of this particular case.

8) When can states pass laws that impact other states?

As a general rule, states may ban certain products within their borders, and different states can have different rules about which products are banned. Currently, recreational marijuana is legal in Virginia, but illegal just across the border in North Carolina. As a constitutional matter, that’s perfectly fine.

In 2018, California’s voters enacted Proposition 12, which bans the sale of pork produced from hogs confined in a manner that the state law considers to be inhumane. On the surface, this is no different from North Carolina’s marijuana ban. California voters wished to prohibit a certain product from being sold within their state, and they did so.

Nevertheless, in National Pork Producers v. Ross, trade organizations representing the pork industry, allege that Prop 12 violates constitutional safeguards against state laws that burden commerce in other states. The idea is that pork producers in other states will have to either produce all pork in compliance with California’s standards, even if that pork will never enter California, or they will incur significant expense from segregating pork that is destined for the California market from the rest of their operation.

Under existing precedents, a state law’s impact on other state markets needs to be pretty extreme before it becomes unconstitutional. Indeed, a right-leaning appeals court panel rejected the pork producers’ argument, explaining that “laws that increase compliance costs, without more, do not constitute a significant burden on interstate commerce.”

Should the Supreme Court disturb that holding, it could have sweeping implications not just for pork producers and consumers, but for many state laws that impose restrictions on commercial products that go beyond restrictions in other states.

As legal scholars Heather Gerken and James Dawson explained in a 2015 article, states frequently enact such laws. For example, Vermont “required food producers that use genetic modification to disclose this fact on the label of any food sold in that state, even if the producer has no facilities in Vermont. Minnesota has prohibited the purchase of electricity that was generated at new coal-fired power plants, even if those power plants are located outside Minnesota,” they wrote.

One surprising development in this case is that the Biden administration weighed in on the pork producers’ side — although they argue for a narrow ruling that California’s pork law is unconstitutional because it “is aimed at ‘cruelty’ to animals that occurs entirely outside California and has no impact within California.” It’s possible that this is an effort to convince the Supreme Court not to hand down a more consequential decision.

9) A truly massive case about the legacy of cultural genocide against Native Americans

Finally, the Court will hear a case questioning several foundational principles of US law related to American Indians, and targeting a landmark law enacted in response to many decades of attacks on Indigenous culture.

Since the Washington administration, the Constitution has been understood to give the federal government authority over relations with American Indians. (Federal law and legal opinions often use the word “Indian” to refer to Indigenous nations and their citizens; this piece includes quotes using that terminology.)

For much of its history, the United States used this authority to, as one federal judge described it, “‘Christianize’ the supposedly heathen Native peoples.” Beginning in the 1800s, for example, the federal government forcibly removed many American Indian children from their homes and enrolled them in boarding schools intended to eradicate their connection to their culture.

The Supreme Court’s new term could be even more consequential than its last one

A group of Native Americans sits on the steps of the US Capitol in protest of discriminatory laws and inaction from Congress on July 17, 1978.
Bettmann Collection via Getty Images

To prevent this and similar attacks on tribal culture, Congress enacted the Indian Child Welfare Act (ICWA) in 1978. Among other things, this law says if a state court determines that a child who is either “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe” must be removed from their home, that the child should be placed with an American Indian family — and, if possible, a member of the child’s extended family or, at least, their own tribe.

The plaintiffs in Haaland v. Brackeen include non-Native American families who have adopted Native American children, and three red states that do not wish to comply with the ICWA’s requirements. They raise several constitutional challenges to the ICWA — challenges that call for a fundamental rethinking of the federal government’s relationship with tribes and with the states, and that could even potentially undercut the government’s ability to regulate the national economy.

All of these claims are at odds with existing law. Again, the ICWA was enacted in 1978, so it’s existed for more than four decades without falling to a constitutional challenge. But the Court’s current majority often treats following established precedents as merely optional, so there’s no guarantee that the ICWA will survive past the end of the Supreme Court’s term next summer.

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