The Supreme Court, joined by a history-making new Justice but deeply immersed in controversy that has put its future in serious question, begins a new term on Monday.
With the public allowed back into the Court’s hearings for the first time in two and a half years, the spectators will see the first black woman ever to serve there – new Justice Ketanji Brown Jackson. And they will also see on the bench for the first time Justice Amy Coney Barrett, who has been on the Court for nearly two years but has never taken part in a public hearing there because the building has been closed during the covid pandemic crisis.
In the midst of the Court’s opening weeks, America’s voters could render a political verdict on the Court when they go to the polls in national elections. The Court itself has been at the very center of the two biggest campaign issues this year, abortion rights and the durability of America’s democracy. (Early voting has already begun in some states ahead of the November 8 election.)
Over the Court’s summer recess, some of the Justices have been making public speeches, engaging in something resembling an unpleasant debate over whether it is forfeiting its legitimacy because of a series of very controversial decisions last term – especially its ruling in June ending abortion rights. For historic comparison, the Court’s reputation is now being assailed in ways last seen in the 1950s. Then, the complaint was about the liberal decisions of the Court headed by Chief Justice Earl Warren. Now, it is about major rulings by the Court’s six dominant conservatives.
Near the end of its last term, the Court – for the first time in history – took away a constitutional right that it had recognized, when it struck down its 1973 abortion precedent, Roe v. Wade. That ruling came down in the midst of this year’s election campaign, and Democratic candidates across the country have put that at the front of their pleas to voters, with partisan control of Congress at stake.
If Democrats retain control of both houses of Congress, and especially if their party gains more seats, there is a chance that the lawmakers will take up one or more of a variety of proposals to change the Court’s structure or its powers – adding more seats to the Court, setting term limits for Justices, curbing the Court’s jurisdiction, or giving Congress new powers to override Court rulings.
On the future of democracy, the Court and one of its Justices have been a part of the historic national conversation over how American elections are conducted, in the wake of former President Donald Trump’s attempt to stay in office despite his loss in the 2020 election. With the Court itself drawn into the legal side of that conversation, Justice Clarence Thomas has generated controversy by taking part even as his wife, Ginni Thomas, was directly involved in the Trump maneuvering. (His wife was questioned on Thursday by the special congressional committee investigating the violent assault on the U.S. Capitol in the waning days of the Trump Administration.)
Moreover, the Court has agreed to rule, in its new term, on the constitutionality of one of the main strategies Trump’s associates tried to use to keep him in the White House – that is, giving state legislatures the constitutional authority to have the last word on who wins federal elections, perhaps even setting aside the choices made by the voters. That issue will come up when the Court hears a case from North Carolina over election districts for choosing that state’s members of the U.S. House of Representatives. (That hearing has not yet been scheduled, but is expected to occur after the November election.)
Other legal and constitutional questions about Donald Trump’s legal woes and maybe even his political future could reach the Court, arising out of a lengthy list of official investigations now going on, including the Justice Department criminal probe into his handling of secret documents at his Mar a Lago resort. The timing of any such developments is uncertain.
The Court may be pulled back into the abortion controversy, to review new lower court decisions on laws, old and new, that restrict the procedure or ban it altogether. The sequels could even involve the core question of whether the Court will recognize broad new constitutional rights for the fetus; several cases are developing over state attempts to create a right of fetal “personhood,” with the effect of forbidding any abortion after the moment of conception. Those cases would come before a Court with a strong new majority of Justices in favor of religious rights; many Americans who press for new abortion restrictions are doing so because of religious views on when life begins.
Other constitutional controversies over religion are scheduled to be heard in the new term, or are likely to arise during the term. The Justices have already agreed to return to the same-sex marriage issue, in a case involving a Colorado designer of computer software who refuses – based on her faith — to design websites for gay or lesbian couples as part of their marriage celebration. The Court also is likely to be asked to examine further a controversy that it has recently acted on in a preliminary way: a move by Yeshiva University, the nation’s largest Jewish educational institution, to ban an on-campus student gay rights organization.
Issues over race, always a central part of the Court’s work, will again arise. In fact, one of the hearings in the opening week will involve an Alabama case testing the power of federal courts to order the drawing of new congressional districts with majorities of black voters, under the Voting Rights Act of 1965. The Court, with Chief Justice John G. Roberts, Jr., leading the way for several years, has issued a string of decisions significantly weakening the 1965 law.
And, in a pair of hearings set for October 31, the Court will consider whether to put an end to the decades-long practice of public colleges and universities taking race into account in selecting their entering students. One of those cases involves admissions policy at Harvard College, with Justice Jackson not taking part because she has been an officer on the college board there. The other case involves the University of North Carolina; Jackson will take part in that one. The so-called “affirmative action” policies at both institutions have been upheld by lower federal courts.
Soon, the Court is expected to consider whether to overrule a series of its own decisions, made during the first decade of the 20th Century, limiting the Constitution’s protections to people in the U.S. territories. Those are the so-called Insular Cases. The new case tests whether persons born in American Samoa have a constitutional right to U.S. citizenship at birth, under the Fourteenth Amendment.
Those old decisions have long been denounced as racially driven, because they withheld constitutional protection based on perceptions that the people in the territories were uncivilized and primitive. Two of the current Justices, Neil M. Gorsuch and Sonya Sotomayor, have recently called for the Court to consider casting aside those precedents. The Biden Administration, however, is urging the Court to stay out of that dispute, using convoluted reasoning to avoid endorsing the racist tone of those old rulings.
The new term is also likely to give the Justices further opportunities to spell out further a new doctrine that they have fashioned to test whether federal government agencies are adopting policies or rules that go beyond the authority Congress has given them. The doctrine poses a serious and continuing threat to the vast federal bureaucracy in America’s administrative state.
The so-called “major questions doctrine” was the basis for the Court’s decisions last term nullifying three major government initiatives: the Biden Administration’s plan to require big companies to vaccinate or test their workers for covid virus, the Biden Administration plan to curb home evictions during the covid pandemic, and a major clean air policy developed by the Environmental Protection Agency.
Under this new doctrine, if an agency adopts a policy or program that has wide economic, social or political impact, and that is challenged in court, the agency must show strong proof that Congress has explicitly and clearly given regulators the power to take that action. The doctrine has caused an upheaval in the whole field of government regulatory law.
It seems highly likely that the sometimes bitter sparring between the Court’s two ideological wings, the conservatives holding a commanding six votes and the liberals holding a mere three votes, will continue. Some of this may now be on display as the Court again holds its hearings in public for the first time since early March 2020.
In the new term, the public will be admitted to the courthouse, but only to attend hearings in the chamber. With some exceptions, the Court holds six or more hearings in each weekly sitting, with two sittings each month. As it did when it was closed to the public during the pandemic, the Court will continue to broadcast those hearings in a “live” audio feed on its own homepage, supremecourt.gov There will be no video. C-Span TV also will broadcast the audio at c-span.org/supreme court
(NOTE TO READERS: Each of the cases being heard by the Court will be described in this space, in advance of each hearing. The first of those reports will appear here this Sunday.)