Supreme Court's new term brings fresh opportunity for conservative majority to flex its muscle
Washington — The Supreme Court is set to gather 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 could showcase the power of the court's six-justice conservative majority.
But as the justices prepare to take the bench — before members of the public for the first time since the start of the COVID-19 pandemic — the court is also confronting historically low levels of public confidence, which plummeted before and after the June decision unwinding the constitutional right to an abortion.
The high court's last term offered no shortage of blockbuster rulings expanding gun rights, reversing Roe v. Wade, curtailing the Environmental Protection Agency's power to combat climate change and protecting religious freedom, and the justices are hardly steering away from politically charged cases.
Already on the docket is a challenge to race-conscious admissions policies at selective universities, a dispute pitting the free speech rights of a website designer against anti-discrimination protections for LGBTQ people and an elections dispute that could limit state courts' authority to review elections rules approved by state legislatures under state constitutions.
"I don't think it's going to be a sleepy sort of Supreme Court term," Allison Orr Larsen, a professor at William & Mary Law School, told CBS News. "The cases they've taken are ideologically charged, and there's probably going to be even more divisive questions they have to answer about the Second Amendment and abortion fights all in the wake of their big decisions last term. There's no evidence yet that this court is going to pump the brakes on deciding high-profile, divisive issues anytime soon."
The justices have also been asked to weigh in on disputes over the Bureau of Alcohol, Tobacco, Firearms and Explosives' ban on bump stocks for firearms, a Florida law regulating how social media companies moderate their content and whether the unborn are entitled to constitutional protections. The cases the court decides not to hear could be illuminating as to whether the conservative justices want to maintain their fast pace of reshaping the law.
"One question will be whether there is any feeling on the court that after Dobbs, they need to cool the temperature down somewhat, and that may either be in the decisions they make or the cases they may take," said Sean Marotta, an appellate attorney at Hogan Lovells. "Restraint may be not in the cases they decide, but in the cases they decide not to decide."
Affirmative action
Among the most closely watched legal battles the justices will hear is a pair of cases challenging the race-conscious admissions policies at Harvard College, a private school, and the University of North Carolina, a public institution, which are set to be argued Oct. 31.
The Students for Fair Admissions, the organization that brought the suit, argues the schools violate the 14th Amendment and federal law through their admissions programs, which have been used to foster diversity among university student bodies.
Students for Fair Admissions is asking the justices to scrap its 2003 decision in Grutter v. Bollinger, which upheld the use of race as a factor in student admissions by the University of Michigan Law School.
Court watchers expect the Supreme Court to overturn its nearly 20-year ruling, particularly given that the membership of the court has changed since its 2016 decision in the case Fisher v. University of Texas, when the court last said race-conscious admissions programs are legal.
"Chief Justice Roberts, his vote is not really in question on race-based affirmative action. The majority of times, he's been a skeptic of race-based affirmative action and there's no surprises there," Larsen said. "I can't count to five in any way that would preserve Grutter or Fisher. I think the safe bet is that those cases will be overturned."
The court in January consolidated the two cases for oral argument, but unlinked them in July after Justice Ketanji Brown Jackson was confirmed, as she recused herself from the dispute involving Harvard due to her role on the school's Board of Overseers. Jackson can participate in the consideration of the University of North Carolina case.
Devon Westhill, president and general counsel for the Center for Equal Opportunity, said he believes it's important for Jackson, the first Black woman to serve on the court, to express her views on race-consciousness in American life.
"I do think as we continue to think about concerns about the legitimacy of the court, that it would be really a black mark on the court if the first Black female just didn't have an opportunity to weigh in on a major race issue like affirmative action," he said during a preview of the court's term hosted by the Federalist Society.
A clash of free speech and LGBTQ rights
The justices will also consider whether anti-discrimination laws protecting LGBTQ people can require a business owner to express a message they don't wish to convey under the First Amendment.
The case, which involves a website designer in Colorado, comes four years after the justices heard a similar dispute involving a Colorado baker who declined to make a cake for a same-sex wedding. But in its 2018 decision, the justices left unaddressed the central free speech issues.
"Those big First Amendment questions are now back up 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 Federalist Society preview.
The case, 303 Creative v. Elenis, "bears both on the scope of speech protections and economic life, particularly for business owners, but also the degree to which businesses can refuse to serve customers," she said.
The website designer involved in the dispute, Lorie Smith, does not want to design websites for same-sex weddings, and she asked a federal court in Colorado not to enforce the the state's anti-discrimination law against her. The lower courts, however, sided with the state.
While Shanor said there's "good money" on the Supreme Court ruling in favor of Smith, the details of the decision will be key.
"How it does so, or if it does so, may have enormous implications for expressive and associational rights in other economic settings and for other anti-discrimination laws more broadly," she said. "And part of the question is how on earth are you going to cabin such an exception?"
Elections and voting rights
In their first week of oral arguments, the court will hear a Voting Rights Act dispute involving Alabama's Republican-drawn congressional map, which a lower court said violated the 1965 law by having a single district where Black voters make up a majority of the district.
Then, in the coming weeks, it will consider an election law dispute from North Carolina that involves the congressional map created by a state court for the 2022 midterm elections. That legal fight invokes the so-called independent state legislature theory, which says that under the U.S. Constitution, only the state legislature has the authority to set federal election rules, ousting oversight from state courts to ensure they comply with state constitutions.
A version of the theory was proposed by then-Chief Justice William Rehnquist in his concurring opinion in the 2000 case Bush v. Gore, and four of the current justices — Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — wrote or joined opinions in March that said the Supreme Court will soon have to address the extent of state courts' authority to review elections rules adopted by state legislatures.
The case has attracted the attention of a wide range of voting groups, among them the Conference of Chief Justices, an organization composed of the country's highest judicial officers.
In a friend-of-the-court brief filed in support of neither party, the group told the Supreme Court that the U.S. Constitution "does not derogate from state courts' authority to decide what state election law is, including whether it comports with state and U.S. Constitutions."
A new term begins with a new justice
In addition to launching its new term, the justices are also welcoming a new member with the addition of Jackson, who replaced now-retired Justice Stephen Breyer.
Jackson's appointment is historic, as she is the first Black woman to serve on the high court, and she also brings the Supreme Court closer to gender parity.
While she doesn't alter the court's ideological composition — Republican-appointed justices still hold six of the nine seats — she does offer a new vantage point given her eight years as a federal judge on the trial court in Washington.
"That perspective can be really valuable — the types of tests that the court is going to announce or amount of deference it gives on questions of facts, or the willingness to leave questions open, those are more subtle issues, but I suspect she will care a lot about them," Larsen said. "In the conference room, it can make a difference to have a colleague say, 'I have real-world experience on the trial court and here's the practical implications of what you're about to decide.'"
Marotta, meanwhile, noted that as the court's makeup has changed and its ideological leanings shifted rightward, fueled by former President Donald Trump's appointment of three members, discussions about its center have shifted from the swing justice to the median justice.
"The incrementalists don't have the majority they once did. A lot of it is eyes on Justices Kavanaugh and Barrett, because they get to decide how much they lay on the gas," he said. "In some cases, they're willing to be more incrementalist and more cautious, and in others, they're more in favor of change."