Manuel Balce Ceneta/AP Photo
Supporters of the Clean Water Act gather in front of the Supreme Court building as the Court begins its new term with arguments in a case challenging the EPA’s authority to regulate wetlands under the act, October 3, 2022, in Washington.
Today is the first Monday in October, the official start of the Supreme Court’s annual term. It’s usually a day I look forward to with interest and anticipation. This year, however, my emotions range from fear to terror.
In its last term, the newly energized 6-3 unelected extremist Republican supermajority did more to shred the Constitution and destroy the rights of American citizens than any Court since before the Civil War. In just a few months last spring, the Court overturned a half-century of precedent to take away women’s right to control their bodies and their health; made almost all gun regulations unconstitutional; shredded the separation of church and state; undermined enforcement of Miranda warnings; blocked the Environmental Protection Agency from doing anything major to regulate greenhouse gasses, and handed courts the power to overturn just about any important regulation by federal agencies that the courts don’t like.
But the last term was just the beginning. Here are some of the upcoming issues in which the Supreme Court is likely to further shred our rights as American citizens:
Independent State Legislature Doctrine
The so-called “independent state legislature doctrine” is a formerly fringe legal theory which posits that only state legislatures—not state courts, governors, election officials, or state constitutions—have the right to set or interpret rules for federal elections, draw or gerrymander congressional districts, restrict voting rights, or even to choose presidential electors. It’s based on an absurdly literalist interpretation of the Constitution’s designation of the “Legislature” as the arbiter of elections; throughout American history, this has been interpreted to mean a state’s general lawmaking processes.
Trump lawyers John Eastman and Rudy Giuliani attempted to use this doctrine to overturn the 2020 presidential election by having state legislatures submit their own electors for Trump, even when a majority of their state’s voters chose Joe Biden.
Last term, three justices—Samuel Alito, Neil Gorsuch, and Clarence Thomas—endorsed the doctrine. Brett Kavanaugh endorsed it in principle but wrote in a concurrence that it was premature for the Court to consider until the case was fully briefed and argued in the upcoming term.
Now a case that meets Kavanaugh’s wishes, Harper v. Moore, is on the docket this term. After the 2020 census, North Carolina’s legislature gerrymandered the state’s congressional districts so radically that a 50/50 popular vote would lead to Republicans winning ten seats and Democrats only four. The state Supreme Court found that this was “an egregious and intentional partisan gerrymander … designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.” Members of the state General Assembly appealed to the Supreme Court, demanding that the gerrymandered maps be restored based on the independent state legislature doctrine.
If Kavanaugh, Alito, Thomas, and Gorsuch pick up one more vote, then the doctrine will become the law of the land, not only in North Carolina but in every other state.
As conservative Republican legal lion J. Michael Luttig wrote in an op-ed, “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine … [T]he Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people: poetic, though tragic, irony for America’s democracy.”
Will SCOTUS Overturn the Rest of the Voting Rights Act?
Section 4 of the Voting Rights Act of 1965, the most consequential protection of voting rights in American history, has already been eviscerated by a 5-4 decision authored by Chief Justice John Roberts in Shelby County v. Holder. Roberts claimed that Justice Department preclearance of voting laws under Section 4 in states with histories of racial discrimination was outdated since the racial discrimination it was meant to protect against was allegedly no longer occurring, even though Congress disagreed.
Today, the Supreme Court will hear oral arguments in Merrill v. Milligan, in which it is likely to strike down Section 2, effectively making the rest of the Voting Rights Act that millions fought and died for a dead letter.
In 2020, Alabama created a redistricting plan for its seven congressional seats with only one majority-Black district, despite the fact that Alabama is more than one-quarter Black. This was done by “packing” most Black voters into a single district while “cracking” the remaining Black voters across multiple districts, where their votes would have little or no impact. Section 2 of the Voting Rights Act bans state or local governments from diluting voting rights based on race, including by packing and/or cracking.
A coalition of civil rights organizations and Black voters sued, arguing that the voting maps were drawn to dilute Black political power. Last January, a three-judge panel in district court ordered the state to redraw the map to create a second majority-Black district.
But the Supreme Court used its unbriefed, unargued “shadow docket” to stay the lower-court order and restore the original Alabama map for the 2022 elections.
Alabama, using the post–Civil War Reconstruction amendments, argues that Section 2 is unconstitutional because it “racially segregates Alabama’s congressional districts,” and because “race-based redistricting” effectively discriminates against white people. It also argues that the plaintiffs have failed to prove that Alabama affirmatively intended to discriminate against Black voters. Having to prove intent, in contradiction to 40 years of precedent, is an overwhelming burden that would make it nearly impossible to prove a violation of Section 2, neutering the Voting Rights Act almost entirely.
Will Affirmative Action in College Admissions Be Outlawed?
Affirmative action was designed to make up for years of discrimination against students of color and increase diversity on campuses. President Lyndon Johnson argued, “It is not enough to just open the gates of opportunity. All our citizens must have the ability to walk through those gates.” Republican President Richard Nixon actually expanded affirmative action.
On October 31, the Court will hear oral arguments in two cases aimed at outlawing any affirmative action in college admissions, one against the University of North Carolina and the other against Harvard.
This would overturn 40 years of precedent, including as recently as 2016, that race and ethnicity can be one of many factors in college admissions to improve equity and diversity. In the 2016 case, three conservative justices—Roberts, Thomas, and Alito—dissented. They’ve since been joined on the Court by three ultra-right-wing Trump justices who have shown no hesitation at overturning precedent.
The plaintiffs in the North Carolina case argue that any consideration of race discriminates against white and Asian American students. (Asian Americans have been divided on the issue. Asian Americans Advancing Justice argued that affirmative action is necessary because “race continues to unfairly limit educational opportunities for students of color.” The Silicon Valley Chinese Association Foundation said that high-performing Asian Americans are passed over because of their Asian descent.) The defendant universities argue that affirmative action has increased the admission of qualified Blacks and Hispanics and studies show that its elimination would decrease it.
Dozens of corporations have filed amicus briefs supporting the continuation of affirmative action, arguing that businesses “depend on universities to recruit, admit and train highly qualified, racially and ethnically diverse students to become the employees and business leaders of the future.”
In a possible preview of the ruling, Roberts has written that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” But this ignores the fact that Congress, which enacted the 14th Amendment, also enacted many affirmative measures to assist Black former slaves in overcoming racial animus.
Will SCOTUS Block the EPA From Regulating Pollution of Many Wetlands?
Today, the Court will also be hearing oral arguments in Sackett v. EPA, which will decide whether nearly half the nation’s wetlands qualify for EPA protection against pollution.
The case has a long and complicated history and turns on technical definitions, which don’t leave room for detailed discussion in this article. Suffice it to say that this could be a dramatic follow-up to last term’s West Virginia v. EPA decision, which barred the EPA from enacting major regulations limiting carbon emissions from coal-fired power plants.
Will Courts Enjoin Biden From Granting Student Debt Relief?
As most readers know, President Biden recently announced a Department of Education order to cancel up to $10,000 in student loan debt for individuals making less than $125,000 a year and up to $20,000 for eligible borrowers who are also Pell grant recipients.
This has infuriated Republicans who are determined, if they can, to use the courts to block President Biden’s action.
The legal basis is likely to be the so-called “major questions doctrine” promulgated by West Virginia v. EPA. Under that decision, any federal regulation which the Court decides addresses a “major question” is presumptively unconstitutional unless Congress specifically authorized the regulation in the specific text of the law. This doctrine flew in the face of decades of precedent called the “Chevron doctrine,” asserting that a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency.
As I wrote in these pages, the precedent set by West Virginia v. EPA could effectively cripple the federal government, giving the courts the power to block any regulation that they politically disagree with.
This is the legal doctrine on which the conservative legal movement is trying to block student debt relief. As a Wall Street Journal editorial argued, “The Supreme Court recently underscored in West Virginia v. EPA that Congress must provide clear authorization to agencies taking action on major questions. Canceling so much debt is beyond major to a mega-ultra-super question.”
The legal impediment for conservatives to bring a case is “standing.” A citizen can’t challenge a law in court simply because she disagrees with it, or because it will cost taxpayers money. To have standing, she must suffer specific harm.
It’s difficult to find a party with standing to bring a lawsuit against student debt relief because it helps people. Last week, six states filed suit against the Biden plan, claiming three separate entities have standing: a student loan company that services public and private loans, two state-based funds invested in private student loan securities, and several states that allege they will receive lower tax revenue because student loan forgiveness was made exempt from taxation.
Because of this legal pressure, the Biden administration changed the program to disallow debt relief for private loans consolidated into a federal loan after last week. That would prevent servicers or investors in private loans from establishing standing, and the states’ argument for standing is based on a law exempting loan forgiveness from taxation that was part of the American Rescue Plan, not the Biden order.
But as Mark Joseph Stern argues in Slate, “certain key circuit courts and the Supreme Court seem to follow one standing rule: When a majority wants to decide a case on the merits, they find some justification to grant standing; when it doesn’t, they don’t.”
My own cynical guess is that the conservative legal movement will forum-shop for a right-wing judge who will find standing and enjoin Biden’s debt forgiveness. This Supreme Court will agree. Americans expecting to reduce their student debt will be outraged, just as women denied their right to bodily autonomy are outraged by the reversal of Roe v. Wade.
What Can Be Done?
Republicans and their billionaire donors have spent over 30 years packing the courts with right-wing Federalist Society judges. Meanwhile, Democrats have taken a laissez-faire attitude to the courts that virtually amounts to malpractice. Twelve Democrats, including Dianne Feinstein, even voted to confirm Trump judge Aileen Cannon, who has unlawfully screwed up the investigation of Trump’s theft of government documents.
Outrage at Republican court-packing and its resultant anti-democratic decisions could fuel a mass movement to reform the courts. As Eric Alterman recently wrote in these pages, “There is only one solution to this problem and it’s simple and obvious, though ‘responsible’ Democrats and pundits continue to rule it out: Abolish the filibuster, expand the Senate (to the District of Columbia and Puerto Rico), and most importantly, expand the Supreme Court and the rest of the federal courts.”
The Supreme Court has the lowest approval ratings in the history of polling. A new Marquette Law School poll finds that 60 percent of adults disapprove of the job the Supreme Court is doing. Even more extraordinary, buried in the crosstabs of the poll, 51 percent of Americans either strongly or somewhat support increasing the number of Supreme Court justices, including 60 percent of women, 72 percent of Democrats, and even 51 percent of independents.
This remarkable level of support has come without any major national Democratic politician campaigning for Court expansion. Imagine the level of support if that changed.
