Supreme Court Poised to Upend Everything

The term that kicks off today could undermine our entire system of government.

Mark Sherman and Jessica Gresko, reporting for AP (“Supreme Court poised to keep marching to right in new term“):

With public confidence diminished and justices sparring openly over the institution’s legitimacy, the Supreme Court on Monday will begin a new term that could push American law to the right on issues of race, voting and the environment.

Following June’s momentous overturning of nearly 50 years of constitutional protections for abortion rights, the court is diving back in with an aggressive agenda that seems likely to split its six conservative justices from its three liberals. “It’s not going to be a sleepy term,” said Allison Orr Larsen, a William and Mary law professor. “Cases the court already has agreed to hear really have the potential to bring some pretty significant changes to the law.”

Into this swirling mix steps new Justice Ketanji Brown Jackson, the court’s first Black woman. Jackson took the seat of Justice Stephen Breyer, a member of the court’s liberal wing, who retired in June. She’s not expected to alter the liberal-conservative divide on the court, but for the first time the court has four women as justices and white men no longer hold a majority.

The court, with three appointees of President Donald Trump, could discard decades of decisions that allow colleges to take account of race in admissions and again weaken the federal Voting Rights Act of 1965, the crown jewel of the civil rights movement.

In a separate elections case, a Republican-led appeal could dramatically change the way elections for Congress and the presidency are conducted by handing more power to state legislatures and taking it away from state courts.

Also on the agenda is a clash over the rights of a business owner with a religious objection to working with same-sex couples on their weddings.

In the term’s first arguments Monday, the justices are being asked to limit the reach of the Clean Water Act, nation’s main law to combat water pollution. The case involves an Idaho couple who won an earlier high court round in their bid to build a house on property near a lake without getting a permit under that law. The outcome could change the rules for millions of acres of property that contain wetlands. A Supreme Court decision for the couple could strip environmental protections from 45 million acres and threaten water quality for millions of people, said Sam Sankar, senior vice president of the Earthjustice environmental group. “It’s going to help a lot of industries. It’s going to hurt real people,” Sankar said.

But Damien Schiff, representing the couple, said a favorable court ruling could free ordinary property owners from worrying about large fines and years of delays. “You don’t have to be a large industrial company or large property owner to have a problem,” Schiff said.

There’s little expectation that the outcomes in the highest-profile cases will be anything other than conservative victories, following last term’s outcomes. In their first full term together, the conservatives ruled not only on abortion, but expanded gun rights, enhanced religious rights, reined in the government’s ability to fight climate change and limited Biden administration efforts to combat COVID-19.

Deborah Archer, president of the American Civil Liberties Union, underscored the long odds facing defenders of affirmative action in college admissions. “It is most certainly an uphill climb. We’re in a scary place where we are relying on Justice Roberts,” Archer said.

Her assessment stems from Chief Justice John Roberts’ long-standing support, both as a judge and a White House lawyer in the 1980s, for limits on considerations of race in education and voting. “It’s a sordid business, this divvying us up by race,” Roberts wrote in a 2006 redistricting case from Texas.

Last term’s epic decisions might have produced bruised feelings among the justices anyway. But the leak of the abortion decision in early May, seven weeks before it was released, exacerbated tensions on the court, several justices have said. The court has apparently not identified the source of the leak, Breyer said in a recent interview on CNN.

They end with several paragraphs rehashing recent back-and-forths among the Justices on the legitimacy of the institution itself. NPR’s Nina Totenberg (“The Supreme Court will begin a new term with more contentious cases on its docket“) starts there and then continues:

The question of precedent will rear its head again this term in a case challenging the affirmative action programs at Harvard and the University of North Carolina. For more than four decades, the court has ruled that race may be one of many factors considered in college admissions. But the issue is back this term before a very different court. The starkest question is whether the previous decisions were grievously wrong, the same rationale the court majority used last term in overturning Roe v. Wade.

In the affirmative action case, the challengers’ case rests heavily on the Supreme Court’s 1954 decision outlawing segregation in public schools. In other words, affirmative action, they say, is a form of discrimination.

Race is also at the heart of a new challenge to a provision of the Voting Right Act. Since 2013, the court has struck down or neutered key provisions of the landmark 1965 law. And it appears poised to do it again in a case that involves allegations that Alabama engaged in racial gerrymandering to limit the influence of African American voters.

Race is also central in a challenge to the 1978 Indian Child Welfare Act. Texas and a group of white adoptive parents are challenging the law because it mandates that where at all possible, Indian children are to be adopted or fostered in Indian homes.

There are two other huge cases before the court that will garner lots of attention. One is a test of civil rights laws that exist in most states requiring that when a commercial entity offers products or services to the public, the business may not discriminate based on race, religion, national origin, or gender.

Challenging these laws is Lori Smith, a web designer in Colorado who doesn’t want to make designs for same-sex couples because she asserts that would violate her religious principles. But the Supreme Court is not hearing the challenge on the basis of Smith’s claim to the free exercise of religion. Instead, the court has limited the case to Smith’s claim that the law violates her right to free expression.

As Georgetown University’s Kelsi Corkran puts it, because the court has limited the argument, “if Smith is correct that there’s a free speech right to selectively choose her customers based on the messages she wants to endorse,” the law would also permit a white supremacist to deny services to people of color because that, too, “would be a message of endorsement.”

Last but certainly not least, the court will hear a major election law case involving the so-called Independent State Legislature theory.

In the current case, the North Carolina Supreme Court struck down a congressional redistricting plan on the grounds that it was an unconstitutional racial gerrymander barred by the state constitution. The Republican leaders of the state legislature challenged the state court decision. They contend it violates Article I of the U.S. Constitution, which states that “the times, places, and manner” of congressional elections “shall be prescribed in each the state by the [state] legislature.”

That argument, in its most extreme form, would mean that that no state court and no state agency could interfere with the state legislature’s version of election rules, regardless of the rules set down in the state constitution.

Opponents contend that would mean that state legislatures would be free to do almost anything they want, without any supervision by state courts, and without being able to delegate to local officials rules on how to run elections.

While state judges across the country frequently disagree, in this case the national Conference of Chief Justices, representing all the chief legal officers in the 50 states, has filed a brief opposing much of North Carolina’s argument. State judges, they say, do have the power under the U.S. Constitution to review state election laws.

That the state legislature has primacy in setting election laws in not a novel concept; it’s written right into the Constitution. But the notion that legislatures operate independently of other branches of government is, to use political science jargon, absolutely fucking nuts. States have constitutions, too, after all. Legislation has to be signed into law by a governor and enforced by the state’s executive branch. And, surely, state courts have to be able to resolve disputes over legislation.

Oddly, neither the AP nor NPR coverage mention what’s potentially even a bigger question that the Court seems ready to answer: the constitutionality of legislative delegation of rulemaking power. While early thinkers like John Locke argued that Congress could not delegate its authority, doing so has been part and parcel of our governance for more than 200 years. Chief Justice Marshall, he of Marbury v Madison fame, distinguished between “important subjects” and “mere detail” way back in 1825 and we’ve been haggling over the distinction ever since. Over the last couple of terms, though, several conservative Justices have signaled sympathy for an extreme interpretation. If Congress can’t delegate the details to federal agencies, we can’t function as a modern state.

So . . . buckle up.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Flat Earth Luddite says:

    absolutely fucking nuts

    Completely fwking true. Dawg, but this is looking ugly. The lunatics are driving the car, and we gave them the keys.

    5
  2. Mikey says:

    If Congress can’t delegate the details to federal agencies, we can’t function as a modern state.

    Well, that would certainly accomplish the Trumpist goal of the deconstruction of the administrative state, wouldn’t it?

    As to whether the conservative majority would pitch 200 years of precedent into the toilet, I’d like to think that would be to far a reach even for them…but I am not convinced it is.

    4
  3. Scott says:

    But the notion that legislatures operate independently of other branches of government is, to use political science jargon, absolutely fucking nuts.

    When has that ever stopped anyone?

    Coincidentally, I just sent this Letter to the Editor in to the San Antonio Express-News this morning:

    Today, Oct 3rd, begins a new Supreme Court term. After last year’s controversial term, especially involving the Dobbs decision, the Court is under public scrutiny for its deliberation process. I just want to point out that the Supreme Court selects the cases which it wants to review and decide upon. I don’t believe that the selection process is based on some random process or on academic topics that the Justices find interesting. They select the cases because they want to steer a specific outcome. I believe most Justices already know how they are going to vote. All the arguments and pros and cons presented are just cover and justification for their own preexisting opinions. And the Justices wring their hands and wonder why they are not viewed as legitimate actors.

    16
  4. gVOR08 says:

    @Mikey:

    Well, that would certainly accomplish the Trumpist goal of the deconstruction of the administrative state

    Trumpists? That’s Koch and the Billionaire Boys Club. It’s Trumpist only to the extent the BBC has manipulated them.

    2
  5. Beth says:

    If Congress can’t delegate the details to federal agencies, we can’t function as a modern state.

    There is a very nihilistic streak in me that wants these idiots to finally get all they want. I truly believe that the Conservative wing of the court specifically and Republicans generally think they will somehow magically thrive if they finally get what they want. Ban abortion, write a huge exception from anti-discrimination laws for Christians into the Constitution, dismantle the admirative state, what happens?

    I’ll tell you what happens, nothing for about two days. That’s about how long it will take wall st. to realize the Republicans put a gun to the country’s head and pulled the trigger. How much of the Federal workforce just lost their jobs. How many very important pieces of legislation, clean water, clean air, RESPA, FIRPTA, all sorts of weird niche laws suddenly unenforceable. Oh and now the entire federal judiciary has to spend every second of every day figuring out what laws and regulations can be enforced and which can’t. A spacefaring nation, one that populated another planet with robots, suddenly reduced to Somalia.

    Look at Truss’ UK. Look at Brownback’s Kansas. Conservatives don’t learn. Reality is much more complicated than their simplistic nonsense and will be all too glad to teach them.

    22
  6. Jen says:

    *Opens OTB*

    *Reads Dr. Joyner’s column on Supreme Court*

    *Closes browser, shuts off internet, considers what having a whisky at 11 a.m. means in the overall scheme of things.*

    26
  7. Kathy says:

    @Scott:

    I wonder whether the Supreme Court, or any other really, should be allowed to pick and choose cases. I can see cases being rejected due to lack of a need to review, or lack of standing, or other technical/legal reasons. Otherwise, every other case, and more important every person involved in a case, should be able to exhaust all appeals.

    Naturally, nine people couldn’t handle all that. therefore the Supreme Court should be expanded, and cases could be reviewed as needed by panels of, say, no less than five justices.

    4
  8. Flat Earth Luddite says:

    @Jen:

    I’m contemplating my second. And I just finished my cigar. And it’s 8.34 am.

    4
  9. Modulo Myself says:

    This is the plaintiff in the Clean Water Act case.

    The federal appeals court in San Francisco upheld the EPA’s determination in August, finding that the agency was right to conclude that swampy areas on the Sacketts’ property were 300 feet from the lake and 30 feet from an unnamed waterway that flows into the lake.

    The Sacketts’ own consultant had similarly advised them years ago that their property contains wetlands.

    The U.S. Chamber of Commerce and the National Association of Homebuilders are supporting the Sacketts at the Supreme Court.

    Separately, in 2015 Michael Sackett pleaded guilty to coercion and enticement of an underage girl and served less than a year in prison.

    It is all Trump all the way down for these people. Sexual predators who won’t listen to anyone’s advice supported by the US Chamber of Commerce–just weird fucked-up pathetic individuals who the judiciary is going to use to wage war against the tyranny of the wetlands.

    4
  10. Scott F. says:

    There’s little expectation that the outcomes in the highest-profile cases will be anything other than conservative victories, following last term’s outcomes. In their first full term together, the conservatives ruled not only on abortion, but expanded gun rights, enhanced religious rights, reined in the government’s ability to fight climate change and limited Biden administration efforts to combat COVID-19.

    That doesn’t sound proper. Thank goodness Justice Alito has assured me that there is nothing illegitimate going on with SCOTUS.

    3
  11. Stormy Dragon says:

    enhanced religious rights

    I’d argue “enhanced religious power” is a more accurate description

    4
  12. Sleeping Dog says:

    @Jen:

    It’s 5 O’clock somewhere 🙂

    I’m sort of with @Beth:, it will be interesting to see what happens.

    2
  13. Scott says:

    @Kathy: Not only do they choose cases for their term but they also intervene throughout the year in cases. Clearly, this points to a specific activist agenda.

    2
  14. just nutha says:

    @Flat Earth Luddite: And look at the topics:

    Affirmative Action programs at Harvard and UNC
    Further challenges to the voting rights act
    Indian Child Welfare Act
    Right to refuse work from same sex rights advocacy clients
    Rights of state to gerrymander districts

    [CRT TRIGGER WARNING!!!!]
    Wow! It’s almost as if race, and as a consequence bigotry, still colors and shapes most discusions of policy in America.

    4
  15. just nutha says:

    @Beth: I wish I shared your confidence in Wall Streets desire to have a government that functions to the benefit of citizens. 🙁

    3
  16. just nutha says:

    @Jen: Imagine my problem reading this at 6 AM PDT.

    “Care for a drink, Dex? After all, it’s bound to be 9 AM somewhere in the world, rjght?”

    2
  17. Flat Earth Luddite says:

    @Jen:
    @just nutha:
    @Flat Earth Luddite:

    As we’ve discussed before, Cracker, we’re not drinking or smoking NEARLY enough.

    https://youtu.be/VmW-ScmGRMA

    1
  18. just nutha says:

    @Sleeping Dog: I wish I thought “interesting” was the correct word. I’m leaning more toward “tragic.”

    2
  19. Beth says:

    @just nutha:

    Oh, I don’t think Wall St. cares one way or another about government functioning for the average citizen. What I do think it cares about is how it functions for them. Imagine a world in which the SEC is thrown out the window. How about RESPA*? How do you think they will act when they figure out that any transaction they engage in may not be based in any sort of reality because the other side has decided that they can lie and get away with it. Now each and every transaction has to go under the microscope. Now, they won’t care about retail investors, they’ll eat them (what happens when retail investors simultaneously get blown out of the water due to institutional cheating).

    What happens when banks realize that they can’t trust any residential mortgage transactions because no one is there to enforce RESPA*. The FL real estate market is already a hub of fraud, imagine how bad it could get.

    Now, to be clear, many of these laws won’t necessarily go away, they’ll just either be unenforceable, or have no one able to enforce them.

    @Flat Earth Luddite:

    You can always start sniffing glue?

    4
  20. Kathy says:

    @just nutha:

    Just corporate citizens, and large shareholders.

    1
  21. just nutha says:

    @Beth: I suspect–much the same as yesterday’s discussion of disasters/being left the hell alone–that large numbers of Wall Street types imagine themselves to be comfortable with laissez-faire capitalism and caveat emptor markets. The learning curves may be really steep, and some will function in the new order quite well. Rebuilding a regulations system that took a hundred years or so to build (and is still very much a work in progress) will be formidable. I’m not optimistic for you.

    1
  22. Kurtz says:

    @Beth:

    You can always start sniffing glue?

    Looks like I picked the wrong week to quit doing that.

    8
  23. Gustopher says:

    @Kurtz: There’s a movie Zero Hour, which Airplane! is based on. It has the same story beats, much of the same dialogue, and is entirely serious.

    It is also one of the funniest things I have ever seen. I was anticipating jokes that just never happened, and were never resolved…

    If you can quote half of Airplane! from memory, I highly recommend it.

    (If you cannot, then it is a terrible movie, and weirdly there are multiple versions, as it was a remake of a tv play or something)

    2
  24. Beth says:

    @just nutha:

    I’m not optimistic for you.

    The nice thing about being a lawyer is that it doesn’t really matter what the law is. As long as there are people who will pay, there will always be messes to clean up. Chaos is expensive and there are plenty of mercenary janitors out there.

    Personally, as in not in a professional capacity, we’re all screwed.

    3
  25. Gustopher says:

    It would be very nice if Clarence Thomas were to drop dead.

    It wouldn’t solve everything, as the court would still be 5-4 Republican, and 4-1-4 Radical-Conservative-MediumLiberal, but it would help.

    7
  26. gVOR08 says:

    @Stormy Dragon:

    I’d argue “enhanced religious power” is a more accurate description

    A concise and entirely correct description. The only “right” they might lose is their ability to impose their beliefs on the rest of us. Which wounds them deeply.

    4
  27. Flat Earth Luddite says:

    @Beth:
    Well, it means that my retirement may have been premature. But in my defense, the chemo career sounded sooooo appealing. And I’ve skipped gigs like this…

    https://portland.craigslist.org/clk/lgl/d/ft-legal-assistant-paralegal/7533938267.html

  28. just nutha says:

    @Flat Earth Luddite: Of course, the real problem is that $18-23/hr. actually is competitive in this market. (And for the record, I make more than $23/hour substitute teaching. And would get an increase in pay of ~$3/hr if I moved to Portland.)

  29. Kathy says:

    @Gustopher:

    It may be Thomas is not capable of doing that without help.

    1
  30. Flat Earth Luddite says:

    @just nutha:
    Yeah, but I’m not willing to take a cut in pay from what I made a decade ago. And as we both know, Vancouver isn’t any cheaper than Portland.

    1
  31. gVOR08 says:

    @Kathy: What the hey, Republicans have talked about “second amendment solutions” regularly for years. And after Heller and Bruen for whom would it be more appropriate?

    1