The justices will soon hear major cases on voting rights, affirmative action and partisan gerrymandering. Here’s a preview.
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The Supreme Court began its new term on Monday. “There are few signs that the court’s race to the right is slowing,” Adam Liptak reported in The Times.
“May the tongues of burning red flame purify us!”
As Chief Justice John Roberts and Justice Amy Coney Barrett looked on impassively, Bishop John O. Barres asked the Holy Spirit to infuse America’s judges with what he called “the gifts of wisdom, understanding and counsel.”
None of the other seven justices were present, although Stephen Breyer, despite being half-Jewish and fully retired, sat near Barrett in the front pew of the Cathedral of St. Matthew the Apostle in Washington, a few feet from where President John F. Kennedy’s coffin once lay.
Clad in scarlet, Barres was delivering the homily on Sunday at the annual Red Mass, a Catholic tradition dating to the 13th century that is held in Washington by a Catholic legal group called the John Carroll Society. The Mass, which the group says is meant to convey “blessings on those responsible for the administration of justice as well as on all public officials,” is often attended by some of the nation’s leading judicial and political figures.
Barres invoked the spirit of Sir Thomas More, who was beheaded in 1535 after running afoul of Henry VIII, the sybaritic king of England whose quest for a male heir forced a schism between London and Rome, nearly half a millennium before Pope John Paul II named More the patron saint of “statesmen and politicians.”
Martyrs like More, Barres said, focused on “the will of God rather than on transitory human honors” like “power, prestige, wealth and influence.”
There’s no sign that Roberts has martyrdom in mind, metaphorical or otherwise. But he will need all the divine wisdom he can muster as he steers a course between his oft-expressed concern for the court’s public image and the conservative majority’s sense that the moment has come to reverse decades of liberal decisions. That majority includes five Catholics, as well as Justice Neil Gorsuch, who was raised Catholic but attends an Episcopal church.
The most recent term demonstrated just how little sway Roberts now has. His attempt to carve a middle path on abortion — he floated allowing states to ban the procedure after 15 weeks — ran headlong into Justice Samuel Alito’s stark ruling for the majority in June, in which he declared that Roe v. Wade was “egregiously wrong from the start.”
Since then, the court has reached the lowest public approval rating Gallup has ever recorded — just 25 percent.
And yet, as my colleague Adam Liptak writes in a curtain-raiser on the session of oral arguments that began on Monday, “there are few signs that the court’s race to the right is slowing.” Here, drawing on Adam’s reporting, is a preview of three politically charged cases from the consequential term ahead.
Voting rights
On Tuesday, the court will hear Merrill v. Milligan, a case involving redistricting in Alabama.
The question at issue is whether Alabama’s 2021 redistricting plan for its seven seats in the House of Representatives violated Section 2 of the Voting Rights Act, which bars “voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.”
Understand the Supreme Court’s New Term
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A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Election laws. The court will hear arguments in a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions. In a rare plea, state chief justices urged the court to reject that approach.
Discrimination against gay couples. The justices will hear an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
Voting rights groups argue that the court’s decision could gut what is left of the Voting Rights Act, a civil rights-era law that they say remains necessary to remedy the legacy of slavery and Jim Crow and to keep states from discriminating against people of color.
Alabama’s redrawn House map contained just one predominantly Black district, even though Black people make up about a quarter of the state’s population.
When a group of Alabama voters challenged the map in federal court, arguing that it diluted the votes of Black people, a three-judge panel that included two appointees of Donald Trump agreed, invoking the state’s “extensive history of repugnant racial and voting-related discrimination.”
The court ordered the state to create a second predominantly Black district, but Alabama filed an emergency appeal. The challengers, which include the N.A.A.C.P., replied that if the Supreme Court reversed the lower court’s ruling, it could “decimate minority representation across the country.”
With three liberals dissenting, the Supreme Court ruled in February that Alabama could conduct its House elections on its preferred map, and agreed to hear the case later in full.
Roberts filed his own dissent, affirming the lower court’s decision but noting that past court decisions on the dilution of votes had “engendered considerable disagreement and uncertainty.”
Affirmative action
On. Oct. 31, the court is set to hear two cases that “put more than 40 years of affirmative action precedents at risk,” Liptak writes.
Those cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, raise the question of whether universities’ attempts to atone for past injustices, chiefly against Black Americans, have unfairly discriminated against Asian Americans.
The man behind the group Students for Fair Admissions, a financial adviser named Edward Blum, has proved skilled at finding soft spots in the country’s affirmative-action practices. A New York Times profile in 2017 called him a “one-man legal factory with a growing record of finding plaintiffs who match his causes, winning big victories and trying above all to erase racial preferences from American life.”
The main precedent in danger is Grutter v. Bollinger, a 2003 decision in which the court allowed universities to weigh race among other factors in their admissions programs, recognizing educational diversity as a valid goal.
Blum has lost before. In 2016, a 4-to-3 majority of the court, made possible by Justice Antonin Scalia’s death and a surprising change of heart from Justice Anthony Kennedy, upheld a program at the University of Texas at Austin that incorporated race into its admissions process.
“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” Kennedy wrote. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
Alito dissented vigorously, calling the Texas program “affirmative action gone berserk.”
Roberts has been an outspoken critic of affirmative action, writing in a 2007 opinion, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In the Texas case, he was in the minority along with Alito and Clarence Thomas, a fierce critic of the practice.
What has changed since then, of course, is Kennedy’s retirement, Justice Ruth Bader Ginsburg’s death and the arrival of three conservative justices appointed by Trump: Barrett, Gorsuch and Brett Kavanaugh.
ImageJustice Ketanji Brown Jackson and Chief Justice John Roberts at the court on Friday.Credit…Erin Schaff/The New York Times
Partisan gerrymandering and power over elections
A yet-to-be scheduled case over partisan gerrymandering in North Carolina, Moore v. Harper, is likely to raise a once-fringe legal doctrine that has gained traction on the right since the 2020 presidential election.
The Supreme Court’s decision could drastically alter the balance of power in federal elections. A partisan miasma hangs over the case, given that Republicans control the legislatures in many swing states.
Known as the independent state legislature theory, the doctrine holds that state legislatures — not state courts or secretaries of state — hold the final say over the rules of federal elections.
Trump’s allies invoked an extreme version of the doctrine to challenge the 2020 results, claiming that certain voting accommodations made by states during the pandemic, like expanding mail-in voting and adding drop boxes, were unlawful — and therefore so was Joe Biden’s victory.
But a more mainstream interpretation has gained purchase on the right, as a flood of supporting briefs from official Republican Party organs makes clear.
Republican state legislators in North Carolina explicitly invoked the theory in appealing the case to the Supreme Court. They argued that judges had seized on “vague and abstract state constitutional language requiring ‘free’ or ‘fair’ elections to essentially create their own election code.”
Some on the court appear hungry to rule on the matter.
Thomas, for one, has seemed open to some version of the independent state legislature theory since at least the Bush v. Gore ruling in 2000, in which the doctrine appeared in a concurring opinion. So have Alito and Gorsuch.
Court-watchers are paying especially rapt attention to Kavanaugh, whose musings in other cases have indicated his eagerness to resolve the question for good, and who has said sympathetic things about the doctrine.
As always, Roberts could play a decisive role. Often a cipher, he signaled in 2015 that he took a dim view of liberal arguments on the subject. Dissenting in a case that upheld an independent redistricting commission in Arizona, Roberts called the majority’s broad definition of the term “legislature” a “deliberate constitutional evasion.”
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What to read
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Democrats in Nevada are facing potential losses up and down the ballot in November, with Senator Catherine Cortez Masto, Gov. Steve Sisolak and three House Democrats all appearing vulnerable, Jennifer Medina and Jonathan Weisman report.
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David Leonhardt spoke with Maggie Haberman about what she has learned covering Donald Trump. When he talks, Haberman said, “he is often both all over the place and yet somewhat careful not to cross certain lines.”
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Stuart Thompson looked at how a tiny election software company in Michigan became a target of conspiracy theorists.
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Source: nytimes.com
