Curtain lifts on another historic Supreme Court term in the new normal
By Ariane de Vogue, CNN Supreme Court Reporter
Chief Justice John Roberts is looking forward to the start of the Supreme Court’s new term on Monday, especially now that the public will be able to attend oral arguments in person and the metal barricades erected to ward off protestors on the plaza have been removed.
“I think the more normal the better,” the chief told an audience in Colorado last month.
Others are wondering what exactly “normal” means anymore, after last term when the court’s reversal of near 50-year-old precedent changed the landscape of women’s reproductive health, it cut back on the power of federal agencies, it cleared the way for new Second Amendment challenges and it inserted itself into the upcoming midterm elections.
Critics say the court is unrecognizable because an aggressive conservative majority is moving the country backwards and, in some instances, erasing long-held rights.
“I understand the chief justice’s desire to get back to ‘normal,'” former Attorney General Eric Holder, who served during the Obama administration, said in an interview with CNN. “But what the court has done in the last term and what — I fear — in the term to come, is anything other than that which is normal.”
Pointing to the abortion case — Dobbs v. Jackson — Holder said it was an example of the court “not acting in a normal, appropriate way,” which he said would have entailed following precedent and taking into consideration that people had ordered their lives around Roe v. Wade for a half century.
“It was the court acting in an ideological way to get a result that these justices wanted to get” Holder said.
Conservatives, on the other hand, are celebrating the manifestation of former President Donald Trump’s promise to reshape the judiciary. They believe the right side of the bench is correcting errors of the past, lawfully returning the court’s focus to the text and history of the founding era and interpreting the Constitution in accordance with its original public meaning.
They look forward to making new headway as part of a new normal where conservatives expand the free exercise clause, work toward a so-called color blind society, and diminish the administrative state.
The left “had its way for a very, very long time,” John Malcolm of the conservative Heritage Foundation said on Wednesday — dating back to the Warren Court era known for its progressive rulings. He says liberals are reacting to the conservative majority now by questioning the legitimacy of the court itself.
“If they don’t get their way, they have to tear the court down,” Malcolm said.
It’s unknown whether the public dynamic of recent months — plummeting approval ratings and nationwide protests — will impact the decision-making process of the court. All eyes are on three justices in particular: Roberts, Brett Kavanaugh and Amy Coney Barrett. Although each is a solid conservative, they’ve emerged as median justices in certain areas of the law. Whether those justices tap the brakes in the coming months will be the story of the new term.
Last month, Roberts referred to the court’s current docket as a “nice batch” of cases but went into little detail. A closer look reveals that a common thread runs through some of the most highly anticipated disputes: race.
Two cases, for instance, concern the role of race in college admissions programs. Another challenge takes aim at a key section of the Voting Rights Act that was put in place to combat racial discrimination.
All eyes will be on Roberts when the voting rights case is argued because back in 2013, he wrote an opinion that essentially invalidated a separate section of the law that required states with a history of discrimination to get any changes to voting rights pre-cleared in advance. As a part of the opinion Roberts wrote, “Our country has changed.”
Here’s a look at some of the historic cases coming up:
Voting Rights Act
On Tuesday, the court will hear the challenge to Section 2 of the historic Voting Rights Act that bars voting rules that discriminate on the basis of race.
The court will review a lower court opinion that invalidated Alabama’s congressional map as a likely violation of the law. The state has seven congressional districts, and despite the fact that Black voters account for 27% of the state’s voting age population, there is only one majority Black district.
The lower court ordered another majority Black district to be drawn that would have led to Democrats gaining another seat in the House in the fall. That court said that the map likely violates Section 2 because Black voters have “less opportunity than other Alabamians to elect candidates of their choice to Congress.”
Alabama went to the Supreme Court, asking the justices to put that ruling on hold. The court agreed.
Supporters of voting rights are on edge — cognizant of the fact that since Roberts’ 2013 decision challengers have relied more heavily relied upon Section 2, which may now be in jeopardy.
When the Supreme Court in February froze the lower court ruling and said that the map in question could be used while the legal proceedings play out, Roberts was in dissent. He said that the lower court had “properly applied existing law” and there were no errors for immediate correction. But critically, he agreed that the Supreme Court should take up the case due to “considerable disagreement and uncertainty” regarding the challengers’ vote dilution claim.
Steve Marshall, Alabama’s attorney general, told the court in briefs that for “decades” the state has only had one minority black district, and that in 2021, when the state enacted new maps, it “largely followed existing district lines” making “race-neutral adjustments for small shifts in population over the last decade.”
Marshall argued that the lower court deemed the plan unlawful because it interpreted Section 2 to require the state to “trade its neutrally drawn districts” in order to draw a second majority black district.
Such a requirement, Marshall argued, puts the state at “loggerheads” with the Constitution because the state would have to “prioritize race always in redistricting.” For the challengers to succeed in adding another district, he said, the state would have to “intentionally sort Alabamians by skin color.”
Challengers to the current map — including registered voters, voting rights groups — urged the Supreme Court to uphold the lower court opinion and say that the “mere consideration of race” to remedy a Section 2 violation does not inevitably lead to equal protection concerns under the Constitution.
“As uncomfortable as the political reality in Alabama might be — and as strong the temptation to shut our eyes to the tenacity of racial discrimination in voting — the courts must not blink,” attorney Abha Khanna, representing Black voters argued in court papers.
Khanna said that plans drawn up by experts for her side show that a second district could be drawn up that complies with traditional redistricting principles that take into consideration compactness, population equality, contiguity, and respect for communities of interest where race was not the predominant factor.
“Black residents in Mobile, Montgomery and the greater Black Belt share deep historical, cultural and political connections,” Khanna wrote.
“They could easily elect their preferred candidates in a compact congressional district drawn consistent with traditional redistricting criteria,” Khanna said. Instead, the state plan “divides the Black voters within this well-established community of interest across several districts, and as a result, Black Alabamians have no chance to elect their preferred candidates outside of “the one black majority district.
Affirmative action in college admissions
Race will also be a central theme when the court considers whether institutions of higher education can take race into consideration as a factor when considering admissions.
“Ignoring race as one of many factors to be considered in admissions policies perpetuates racial inequalities and the unfair advantages that have always fallen along racial lines — in and out of education,” Janai Nelson of the NAACP Legal Defense Fund told CNN. “It also denies all Americans the ability to leverage our greatest strength as a country — our diversity.”
The court will hear separate disputes over admissions programs at the University of North Carolina and Harvard.
Students for Fair Admissions — a group that says it is dedicated to the right of racial equality in college admissions — is behind both challenges. William Consovoy, a lawyer for the group says that the schools’ policies violate the 14th Amendment and Title VI of the Civil Rights Act of 1964.
They want the Supreme Court to overturn a 2003 case called Grutter v. Bollinger. In that case, the court held that schools could consider race as a factor in admissions to pursue student body diversity.
“Grutter was wrong the day it was decided” Consovoy argued, because it “departs from the Constitution’s original meaning, contradicts other precedents, has eroded over time and has no true defenders.”
“Both universities award mammoth racial preferences to African Americans and Hispanics,” he said and added that Harvard “uses race against Asian Americans.”
In the North Carolina case a lower court upheld UNC’s use of race calling it “narrowly tailored,” while emphasizing that race is considered simply as a “plus” factor. The lower court also said that UNC did not have a viable race-neutral alternative that would allow it to achieve the educational benefits of diversity.
Independent state legislature theory
Another case with voting rights implications is Moore v. Harper, which has yet to be scheduled for argument.
On the surface, the case presents a redistricting dispute out of North Carolina involving a lower court decision that invalidated the state’s congressional map. That court struck the map — calling it an illegal partisan gerrymander — and replaced it with a court-drawn map that was more favorable to Democrats.
Republican legislators from North Carolina are asking the justices to reverse the lower court and adopt a legal theory called the independent state legislature doctrine. They point to the Elections Clause of the Constitution which provides that rules governing the “manner of elections” must be prescribed in each state legislature.
That provision means, they argue, that state legislatures should be able to set rules in federal elections without being held in check by state constitutions either through interpretation by state courts or by the functioning of commissions created under state constitutional reforms. Traditionally, legislatures have set ground rules for conducting an election, but have not acted alone or had the final word. Processes set in place have been subject to intervention by election administrators and state courts.
The majority of the North Carolina state Supreme Court, in ruling against the lawmakers, said that legislators do not have unlimited power to draw electoral maps. The state court acknowledged that redistricting is primarily delegated to the legislature but said it must be performed in “conformity with the State Constitution.”
The Republican lawmakers appealed to the US Supreme Court, arguing in court papers that the “text of the Constitution directly answers the question presented in this case.” The Elections Clause provides “unambiguous language” concerning the manner of federal elections and makes clear that the rules will be drawn by state legislatures.
Voters in the state and voting rights groups urged the justices to stay out of the dispute and let the lower court ruling stand.
“The text, history and structure of the federal Constitution reject the notion that state legislatures are unbound by their state constitutions as interpreted by state supreme courts when redistricting under the Elections Clause,” Allison Riggs, co-executive director and chief counsel for Voting Rights at the Southern Coalition for Social Justice, wrote in legal briefs.
At an earlier stage of the case, three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, expressed some sympathy for the theory and said the case presented an “exceptionally important and recurring question of constitutional law.”
Same-sex marriage website
Another case on the court’s docket is a follow-up to a case the court decided back in 2018.
That case was brought by a baker who declined to make cakes to celebrate same sex marriages. The Supreme Court ruled in favor of the baker, but the ruling was tied specifically to the facts of that particular case and the justices left a decision concerning whether business in general could decline services to same sex couples nationwide for another day.
Now a graphic designer in Colorado named Lorie Smith, who runs a company called 303 Creative, seeks to expand her business to create websites designs for weddings. Critically, however, she does not want to work with same-sex couples because she has religious objections to same-sex marriage. She has written a webpage explaining why she won’t create such websites, but under a Colorado public accommodations law, Smith says she cannot post the statement because the state considers it illegal.
The justices agreed to consider whether the state law violates he Free Speech clause of the First Amendment.
“This case asks whether governments may use public-accommodation laws to compel artists to speak or stay silent when they enter the marketplace,” Kristen Waggoner of the Alliance Defending Freedom, a group representing Smith, said in court papers. Waggoner argued that artists like painters, photographers, writers, musicians cannot be forced to “speak messages” that violate their deeply held religious beliefs.
Colorado Attorney General Phil Weiser defends the state’s Anti-Discrimination Act in court papers arguing that it protects Coloradans who buy goods from businesses that are open to the public.
“These customers do not look, love or worship the same way,” Weiser said “but they all expect to participate in the public marketplace as equals.” He said that the law does not target Smith’s message and does not aim to suppress any message that a company might express.
“Businesses are free to decide what services to offer,” he said. “The Act requires only that the Company sell whatever product or service it offers to all regardless of its customers protected characteristics.”
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