The Supreme Court Is Back and Ready to Do More Damage

The new term could provide fresh impetus to protests, unfortunately. Photo: Andrew Lichtenstein/Corbis via Getty Images

It is generally accepted that the 2021–22 term of the U.S. Supreme Court was the most consequential — and, for progressives, the most damaging — in living memory. During their summer recess, the justices heatedly raised and angrily rebutted charges that the Court’s radically conservative major-decisions binge had risked its legitimacy. Now the Court is back for a new term in which it will have multiple opportunities to further the idea that it’s little more than an extension of the Republican Party — or to mitigate that reputation.

It’s unlikely that any pending case will produce a result as explosive as the 6-3 decision in Dobbs v. Jackson Women’s Health Organization, which swept away any federal constitutional right to abortion. But there will be plenty of opportunities in the 2022–23 term for the right-wing majority that reversed Roe v. Wade to upset additional progressive precedents and carve out new areas of constitutional law that could strengthen privileges for white people, conservative Christians, private-property interests, and red-state lawmakers. What we don’t know is whether any of the six conservative justices will want to slow down the constitutional counterrevolution that’s underway in order to alleviate the backlash that has been threatening their political clients since Dobbs. Even if the Court pulls a few punches, you can expect to see a lot of protesters outside the building before and after the justices hear oral arguments and release decisions (which are typically back-loaded toward the end of the term next spring).

If reproductive freedom was the major casualty of the 2021–22 term, racial justice could be the target of a radical Court in the current term. In two key areas — voting rights and affirmative action in college admissions — the Court majority could make major strides toward the long-standing conservative goal of interpreting constitutional sanctions against racial discrimination as requiring “color blindness.”

Here’s what to expect from some of the biggest cases this term.

Affirmative Action on the ropes

After decades of precedents in which colleges were allowed to treat diversity as one, if not the only, factor in admissions decisions, two cases that will be argued on October 31 (Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina) could lead to a Court prohibition on the use of race as an admissions criterion. The cases are similar but not identical, and because new justice Ketanji Jackson Brown has recused herself from the Harvard case, only eight justices will hear those oral arguments. CNN notes that the plaintiffs’ legal reasoning largely relies on venerable anti-discrimination laws:

The Harvard challenge is brought under Title VI of the 1964 Civil Rights Act, which prohibits schools receiving federal funds from discriminating based on race. The UNC lawsuit similarly claims Title VI grounds, as well as a violation of the 14th Amendment’s guarantee of equal protection of the law, which covers state institutions.

A case that is not directly about affirmative action may nonetheless affect the constitutionality of race-conscious remedies for alleged discrimination by ruling out a long-sanctioned policy preference favoring Native Americans. Haaland v. Brackeen, to be heard by the Court on November 9, tests whether a statute protecting Native American children from potentially coercive adoptions by non-Native families may violate equal-protection guarantees.

Voting rights at risk

Two other cases could continue the Court’s recent erosion of the Voting Rights Act. First up for oral argument on October 4 is Merrill v. Milligan, a case in which a Republican redistricting plan in Alabama was deemed by a lower court to violate Section 2 of the VRA, which prohibits state actions that dilute minority voting influence. The Alabama plan limited the state’s Black voters (27 percent of its population) to just one majority-Black district out of seven available. In a 5-4 vote early this year, the Court put aside the case on grounds that it involved federal courts in politically sensitive decisions too close to an actual election, which meant the 2022 elections in Alabama would be able to proceed using the districts under challenge. Now the Court will hear the case on the merits, and voting-rights advocates fear a majority will uphold Alabama’s argument that the state cannot utilize race-conscious criteria in redistricting. If that’s the outcome, the VRA will lose any relevance in crucial redistricting decisions; such a verdict would decisively short-circuit challenges to Republican gerrymanders in Louisiana, South Carolina, and Georgia.

Another pending voting and election-rights case (for which arguments have not been scheduled) is Moore v. Harper, in which the Court may embrace a radical constitutional theory known as the independent state-legislature doctrine, whereby the federal constitutional right of legislatures to regulate federal elections is all but absolute and cannot be overruled by state courts interpreting state laws and constitutions or even delegated to governors or election officials. In recent litigation, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch expressed sympathy for this doctrine, and Justice Brett Kavanaugh has suggested the Court review it. Many progressives fear that if the Court embraces this theory, Republican-controlled legislatures will act to restrict voting rights and may even in 2024 execute the kind of electoral-vote coup Donald Trump tried to encourage in 2020. And it would eliminate one of the few remaining judicial options for stopping extreme political gerrymanders.

A new twist on a right to discriminate

A fresh effort by a conservative Christian to short-circuit Colorado’s anti-discrimination laws will be heard at some point this term: 303 Creative LLC v. Elenis involves a web designer who claims she can exercise her creative powers in wedding announcements only if the wedding in question comports with her understanding of biblical marriage rules. So she is challenging the law as a violation of her First Amendment right to free expression, rather than an explicit religious-liberty right. If she succeeds, there will be a new avenue for sanctioned defiance of laws prohibiting anti-LGBTQ discrimination.

A long-dreaded blow to environmental protection laws

On October 3, the Court held oral arguments in Sackett v. EPA, a long-standing case that could lead to a major restriction on the scope of enforcement for the Clean Water Act, one of the country’s principal anti-pollution laws. It’s likely the conservative majority will embrace the position set out in 2006 by Justice Antonin Scalia and three other justices, which held that any property subject to regulation under the Clean Water Act had to be adjacent to a river, lake, or other waterway. The precedent set by the divided Court then, as articulated by Justice Anthony Kennedy, extended the jurisdiction to wetlands with a “significant nexus” to such waterways. But in the most recent term, the Court deployed the “major-questions doctrine” in West Virginia v. EPA to significantly reduce federal-agency power to deal with climate change absent an explicit grant of authority from Congress. Now it may use the same doctrine to strike down agency efforts to protect wetlands. Monday’s arguments didn’t point to any obvious outcome, as the Washington Post reported:

Several of the court’s conservative justices expressed concern about the unpredictability and broad reach of the landmark Clean Water Act for property owners seeking to develop their land, while the court’s liberals seemed to seek a compromise that would retain the government’s authority to regulate wetlands adjacent to lakes, rivers, and other waterways.

Even if this one doesn’t end in a complete conservative victory, there will be no shortage of those this term.