The U.S. Supreme Court building in Washington, D.C. (Daniel Slim/AFP/Getty Images/TNS)
As the Supreme Court begins its new term, it’s clear that the court’s majority is determined to move the law much further to the right. The last term ended with the court overruling Roe v. Wade, dramatically expanding gun rights, rejecting the separation of church and state, and limiting the power of administrative agencies.
About half the docket for the new term is set, and what is striking is how the court is reaching out to take and decide cases to further its conservative vision of the Constitution. Traditionally the justices have focused on granting review in cases where there is a disagreement among the lower courts — with the Supreme Court’s role being to resolve these conflicts. Often in the past, the justices have stressed that they want to wait until many lower courts have ruled — until the issue has “percolated,” before weighing in.
But in many of the high-profile cases for this coming term, the court has stepped in even though there is no disagreement among the lower courts.
For example, on Oct. 31, the Supreme Court will hear two cases about whether to end affirmative action by colleges and universities, Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard College. In decisions in 1978, 2003 and 2016, the court held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor in admissions decisions in carrying out their educational mission.
This is settled law. Affirmative action, like abortion, has long been a target of conservatives. The widespread expectation is that here, too, the activist conservatives on the court will overrule more than 40 years of precedents they oppose politically.
Two voting cases of potentially great significance also are before the court. Merrill v. Milligan, which will be argued on Tuesday, involves the application of the Voting Rights Act of 1965 to racial discrimination in the drawing of congressional districts. A three-judge court in Alabama — with two judges who were appointed by President Donald Trump and one by President Bill Clinton — found that the districts drawn in Alabama were racially discriminatory. Black individuals make up 27% of the population in Alabama, but only 1 out of 7 congressional districts in Alabama had a likelihood of electing a Black representative.
The three-judge court ordered new districts be drawn, but the Supreme Court, by a 5-4 vote, stopped this in an emergency order and chose to hear the case.
The court, in its prior rulings over the last decade, has already greatly weakened the Voting Rights Act. There is good reason to fear that the conservative justices will make it harder to prove that election districts are drawn in a racially discriminatory manner — or perhaps even rule that considering the race of the people in the district in detecting discrimination is unconstitutional.
Some observers worry that the court might go so far as to rule that any law that prohibits racially discriminatory effects is unconstitutional. Such a ruling would eviscerate many civil rights laws that create liability on proof of disparate impact in employment, housing and voting.
This will be the first term for Justice Ketanji Brown Jackson, the first African American woman on the court, a milestone in American history. Her voice will be greatly valued, but there remain six staunchly conservative justices who are willing to change the course of constitutional law as it has developed over the past five decades. Voting rights, racial equity and the power of states to ban discrimination are all on the line, and this is with less than half the docket set for the new term.
Erwin Chemerinsky is a contributing writer to the Los Angeles Times and dean of the UC Berkeley School of Law. ©2022 Los Angeles Times. Distributed by Tribune Content Agency.
Originally published at Erwin Chemerinsky