Conservative Supreme Court heats up
In addition to overturning a nearly half-century-old federal abortion right, the court struck down gun licensing laws in the most populous states, expanded public funding for religious schools , expanded the rights of public school employees to publicly pray at work, and halted lower court orders requiring two states to redraw congressional boundaries to give minority voters a better chance of electing the candidates they want.
“What the court has done just on abortion, guns and the power of Congress in the last eight days – that alone is momentous [but] if these judges stay together for the next few years, I don’t even think the first shoe has fallen,” said Rick Hasen, a law professor at the University of California, Irvine. « There is so much more the Supreme Court could do to change American society. »
On Thursday, minutes after dealing a severe blow to President Joe Biden’s plan to cut emissions from power plants to fight climate change, the High Court announced it would take up a North Carolina case in next term that could give state legislatures sweeping power to draw district lines and set election rules even if courts, commissions or state executive officials disagree.
The so-called Independent States Legislature theory has lingered on the fringes of election law debates for years, but was seized upon by former President Donald Trump in 2020 in his failed efforts to overturn Biden’s victory. .
« It’s kind of uncharted territory, » Hasen said. « This could have significant and unintended consequences. »
A sweeping Supreme Court ruling on the issue of the state legislature could give state lawmakers the power to appoint presidential electors, regardless of what state courts say or how the majority of voters in a state vote.
In the 30 states with Republican legislatures, a ruling upholding the theory could give the GOP a leg up in more routine House and Senate elections. But the effect in Democratic-led states could also be polarizing, with a redistricting commission in California bankrupted and New York courts’ efforts to limit gerrymandering reversed.
This case will join other polarizing issues already on the docket for the next term: a new challenge to Alabama’s voting rights law, a pair of cases challenging race-based affirmative action programs in higher education and a case brought by a web designer claiming she should be able to ignore a Colorado law prohibiting discrimination against same-sex couples.
As with many cases the Supreme Court has decided in recent weeks, each of these cases could be considered the most important of an ordinary term in court, but the justices decided to hear them all.
Conservatives are nearly stunned by the results of the first full term with six conservative justices since the court struck down much of President Franklin Roosevelt’s New Deal in the 1930s.
“This was the most successful tenure in my memory for the Constitution and the rule of law,” said Carrie Severino, president of the Judicial Crisis Network and former legal assistant to Justice Clarence Thomas. « We now have a clear majority on the court that is prepared to apply the Constitution as written, even in the face of unprecedented outside pressure, threats and intimidation, even an assassination attempt. »
A statistical analysis by Adam Feldman of the Empirical SCOTUS website revealed conservative victories in close cases at the highest level since the 2017 term. Feldman said the arrival of Justice Amy Coney Barrett has also allowed conservatives to easier to get the four votes needed to take a case.
“I think the big story is that the court was able to seize cases that could push politics in a much more right-wing direction now,” he said.
The series of sweeping and far-reaching decisions this term has led many Democrats to accuse the court of losing legitimacy with the public, but former Senate Judiciary Committee counsel Mike Davis said those were just sour grapes on the result.
« The Supreme Court is not meant to be democratically representative by design, » said Davis, former nominating attorney for Sen. Chuck Grassley (R-Iowa). « They’re supposed to protect minority rights and protect us from government, whether it’s tyranny or lawlessness… The Democrats, the left, are trying to delegitimize the Supreme Court because they’ve lost it. control. »
Many on the left seized on Thomas’ thoughts in the abortion case about the court revisiting same-sex marriage or birth control rights, opponents of abortion rights said they didn’t see the court want to look into these issues any time soon.
James Bopp Jr, general counsel for National Right to Life and a prominent litigator on life and campaign finance issues, said he was pleased with the abortion ruling.
“I couldn’t be more thrilled that this is the culmination of a lifetime’s work. I’ve been waiting for this day since I was a senior in law school,” Bopp said.
However, the Tory lawyer said he believed Thomas’s thoughts on same-sex marriage and birth control precedents did not indicate these were issues the court was planning to delve into.
“I learned a long time ago that it takes five votes. You’ll notice no other judges joined in on his deal,” Bopp said.
Severino agreed, saying she expects big legal battles over abortion at the state level, while the Supreme Court remains focused on other issues such as expanding speech rights. religious. The court did exactly that term in the so-called out-of-state Washington prayer coach case and is set to grapple with similar issues this fall in the religious web designer case. of Colorado claiming the right to refuse to serve same- sex couples.
« Freedom of conscience is an area that should continue to be very important, » she said.
The High Court and the Conservative legal movement also seem determined to keep up the pressure to reduce the power of federal agencies to regulate everything from automobiles to marketing to pollution.
One of the Supreme Court’s final rulings on Thursday, handed down 6-3 along usual ideological lines, rejected the Biden administration’s plan to try to limit climate change by reducing greenhouse gas emissions from power plants. electrical. The decision was not as hostile to the agency’s authority as some expected, but still left little leeway for the administration to implement carbon emissions limits without Congress.
Other cases that could be more damaging to the power of federal agencies are looming. A case decided last month by the New Orleans-based 5th Circuit could upend the Securities and Exchange Commission’s enforcement efforts by requiring all such cases to be brought in federal district courts, rather than in administrative judges. That ruling could end up before the Supreme Court within a year or two, prompting justices to question whether Congress went too far in delegating powers to the SEC.
« Anything based on a very broad congressional mandate is at risk, » said Fordham University law professor Jed Shugerman.
As more pitched battles loom, Severino also vowed that the conservative legal movement’s huge victory on the abortion case after decades of strategy, litigation, fundraising and organizing doesn’t mean not that these defenders are going to declare victory and go home.
“This is not the only case. This is a judgmental approach,” she said. « No one is going to give up and say, ‘OK, we’re done. « »