Supreme Court set to start new term with more opportunities to overturn precedent
Embarking on new term, justices are preparing to hear cases on affirmative action, voting rights & free speech
The Supreme Court will embark on its new term with public approval at an all-time low and questions of legitimacy dominating headlines. As the country contends with the fallout from blockbuster rulings upending years of precedent, the justices are preparing to put more long-established rulings on the chopping block.
“We saw last term the court aggressively exercising its newfound conservative power to upend long-established precedents, most dramatically in Dobbs, of course, but also with respect to religion, public schools, public carrying of guns, and the EPA’s ability to regulate the environment,” David Cole, legal director at the American Civil Liberties Union, said. “The court appears ready to do so again.”
Legal experts have noticed an emerging trend from the last term bleeding into the court’s next act. As the justices show they are willing to make dramatic changes to established law, litigants are increasingly asking the court to challenge more precedents. The court’s willingness to add these cases to their docket this term signals an interest in continuing that trend.
“Litigants are much more aggressively inviting the court to reconsider and rewrite established precedent,” Cole said. “They see what the court did last term, and they're asking for more. The very fact that the court took cert on many of these cases in which the litigants are asking for overturning precedent shows that the court is not likely to act modestly, or at least is not inclined to act modest.”
One case on the court’s chopping block this term is Grutter v. Bollinger, which upheld affirmative action admissions policies. Students are challenging affirmative action policies at Harvard and the University of North Carolina in an attempt to overturn Grutter. Students for Fair Admissions — the group bringing these challenges — claims Grutter is not consistent with Brown v. Board of Education, which said racial segregation in public schools is unconstitutional.
Like Roe v. Wade, Grutter has been reaffirmed multiple times — most recently in 2016 — however, the court’s willingness to hear the case has caused some experts to speculate that the conservative supermajority will take another swing at overturning the almost two-decade-old precedent.
Justice Sonia Sotomayor is the only justice still on the court who voted to uphold affirmative action in Fisher v. University of Texas at Austin. Justice Elena Kagan recused herself from the case. This is the first time Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett will hear challenges to affirmative action. Justice Ketanji Brown Jackson — the first Black woman on the court — has recused from the Harvard case but will sit for the UNC challenge.
Experts say the court’s ruling in these cases will be impactful because race continues to matter in this country.
“Race continues to matter,” said Deborah Archer, president of the ACLU and a professor of clinical law and co-faculty director of the Center on Race, Inequality, and the Law at New York University School of Law. “It continues to constrain the outcomes for some life opportunities for some and to expand opportunities and outcomes for others.
Archer said schools are still grappling with racial inequality and the nation is facing a backlash to moving toward equality.
“Our nation now is really in the midst of an ongoing and significant backlash against the decades of work to move toward greater racial equity, and the fight against the systems and the forces of white supremacy has combined with this underlying fear of what a racially just world looks like, and has led to a wave of attacks across issues,” Archer said. “I think that these cases are a part of that wave of attack on even small efforts toward racial equality.”
Race is not only present in challenges to affirmative action on the court’s docket, but also in challenges to the Voting Rights Act. In a redistricting battle playing out in Alabama, the creation of a second Black congressional district has brought the justices an opportunity to strike down much of what is left of Section Two of the VRA.
Alabama’s new congressional map was challenged by voting rights groups for diluting the votes of Black Alabamians. A trial court found that the new map violated Section Two of the VRA — which prohibits voting practices or procedures that discriminate on the basis of race. Alabama challenged that ruling, arguing that creating majority-minority districts was unconstitutional race discrimination.
The Supreme Court gutted what some considered the VRA’s most effective provision — the preclearance regime — almost a decade ago in Shelby County v. Holder. This new challenge could zero out the act’s last remaining tool.
“If the court adopts the state's position, it would really severely curtail Section Two's ability to ensure that minority voters can elect representatives of their choice,” according to Jonathan Diaz, senior legal counsel at the Campaign Legal Center. “It would severely limit one of our last remaining tools to prevent vote dilution in the redistricting process, and it would be the latest blow from the court to the Voting Rights Act, continuing the trend that really began in earnest with the Shelby County decision in 2013.”
Another case before the court this term isn’t garnering attention for the precedent it would overturn but rather the one it would create. In another redistricting challenge, this time in North Carolina, the court has agreed to weigh in on a congressional map that was struck down for partisan gerrymandering. Fighting to keep the gerrymandered map, Republican lawmakers claim state courts shouldn’t get to overrule the legislature's determinations on rules for elections.
Lawmakers are using a controversial theory to advance their case known as the independent state legislature theory. The premise is the Constitution’s Electors Clause gives the legislature primacy over election rules that can only be overruled by Congress.
“If the Supreme Court sides with lawmakers in Moore, the results could have far-reaching consequences for democracy, including dramatically changing how federal elections are conducted and giving state legislatures broad unchecked power over future elections,” Sophia Lin Lakin, interim co-director of the ACLU Voting Rights Project, said.
A broad embrace of this theory could take veto authority away from state governors.
“An extreme interpretation of the U.S. Constitution by the Supreme Court in this case will make it even easier for state legislators to suppress the vote, draw gerrymandered election districts, and potentially sabotage election results, among many other concerns,” Lakin said.
The high court’s willingness to take up the theory — and some justices' apparent endorsement of it — has caused many organizations to weigh in on the case. Notably, the Conference of Chief Justices —a leading national voice on the role of state courts — urged the justices not to embrace the theory.
In a case that may give some court watchers deja vu, the court will hear a case concerning a website designer claiming a public accommodation law violates her rights by forcing her to cater to same-sex couples. This is a follow on case from the court’s 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In Masterpiece, the court found that the commission violated the Free Exercise Clause of the First Amendment. However, the court failed to offer an expansive ruling, creating a carve-out of the First Amendment and an exception to public accommodation laws.
A theme noted by legal experts in cases next term is an effort by litigants to use the Constitution to block efforts to level the playing field for disadvantaged groups.
“Litigants are asking the court to invoke the Constitution to block efforts by the political branches, by other institutions, to advance equality interests of disadvantaged groups,” Cole said. “Not to say the Constitution doesn't protect this group, as the court did with respect to Dobbs, but to say the Constitution blocks the efforts of other branches to seek to extend rights to disadvantaged groups.”
If the court were to take advantage of this opportunity, experts say it would upend arguments for allowing the justices to review these matters.
“If the court here invokes the Constitution to make it harder for the political process to protect minorities, it will really be upending the very purpose of judicial review,” Cole said.
The Supreme Court will begin hearing arguments for the next term on Oct. 3.