At a conference in Colorado Springs last month, US Chief Justice John Roberts reflected on what he said had been an “unlucky” year for the Supreme Court. He hadn’t liked driving to work past “barricades.” he said he, alluding to the angry marches and rallies that accompanied various court cases last term. Much of the protest was directed at Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Calf. And he didn’t like hearing people say that the Court, with its radical drift to the right, had somehow undermined his legitimacy. “You’re certainly free to criticize the Supreme Court if you want to,” he said, which is good to know. “But I don’t understand the connection between opinions that people don’t agree with and the legitimacy of the Court. If the Court does not retain its legitimate role of interpreting the Constitution, I am not sure who would take up that mantle.”
There is an element of denial to Roberts’ words that does not bode well for the Court’s new term, which begins Monday and includes another set of potential landmark cases. You are correct that, in our system, the Court is the institution designed to ensure that our laws align with our rights. But the lack of alternatives just shows how much is at stake: we could end up with no referee deemed legitimate at all. Fears about the Court’s direction are not irrational and are widely shared. Every year since 1972, Gallup has asked Americans if they trust “the judiciary headed by the Supreme Court of the United States.” In the latest poll, released last week, the share he does is at an all-time low: 47 percent. Only forty percent approve of the work that the Court itself is doing. To Associated Press/NORC The Center’s poll this summer found that two-thirds of Americans think judges should have term limits rather than lifetime appointments, a measure of discontent with the Court.
If Roberts is still confused, he might, for guidance, look to the comments that Justices Sonia Sotomayor and, especially, Elena Kagan have made since Dobbs’ ruling. At the Save Regina University in Rhode Island in late September, Kagan noted that people are right to worry that “the entire legal system is at stake” after a change in the composition of the Court, with decisions that seem driven by ideology and divorced from legal principles. “It just doesn’t seem like law when, you know, new judges appointed by a new president come in and just start throwing out the old stuff,” she said.
Those new judges were presumably Donald Trump’s three nominees: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. They form a radical-conservative majority with Justices Clarence Thomas and Samuel Alito, and a large majority when Roberts joins them, as he often does. One of the main issues before the Court this term is affirmative action; oral arguments in two related cases, Students for Fair Admissions v. Harvard and SFFA vs. University of North Carolina, will be heard on October 31. Roberts has opposed affirmative action in the past. At a minimum, he and the other conservative justices are expected to rule that the current use of race as a factor in college admissions is unconstitutional. It seems possible that they will also find a way to ban many race-based hiring initiatives in private companies. With this Court, it is difficult to predict how far decisions can go. It is likely that the rulings will not arrive for several months. (Ketanji Brown Jackson, the newest judge, recused herself from the Harvard case because she served on the university’s Board of Supervisors.)
However, there is a feeling that conservative justices could make a landmark ruling in almost any case. Sackett v. Environmental Protection Agency, the first instance of the term, may appear to address a narrow question, the definition of “navigable waters,” but it could become a vehicle for dismantling a wide range of regulations. Haaland v. Brackeen, a challenge to the Indian Child Welfare Act of 1978, could upset relations between the government and federally recognized tribes. The Court will also adjudicate a lawsuit, brought by Texas and Louisiana, alleging that the Biden Administration has, in effect, broken the law by focusing its border control efforts only on certain categories of migrants, such as those deemed a “threat to the public.” . security.” In particular, some Republicans have raised the possibility that, if the GOP takes control of the House after the midterm elections, they may impeach President Biden on similar grounds.
The most explosive cases, however, may be those in which the Court rules on how elections work. One of them, Merrill v. Milligan, will be heard on Tuesday. After the 2020 census, Alabama redrew its congressional districts; the new map, like the old one, has only one majority black district out of seven, in a state that is more than a quarter black. Local civil rights groups are challenging the map under the Voting Rights Act, but their chances look slim. In 2013, Roberts wrote the majority opinion in Shelby County v. Holder, a case that significantly weakened the law, and there is concern that Merrill could finish it off. In Save Regina, Kagan said of the judges’ mandate to protect voting rights, “I don’t think the Court has done this job particularly well.”
Merrill may be the prelude to a case that could be even more destabilizing for American democracy: Moore v. Harper, for which oral arguments have not yet been scheduled. Moore also involves congressional district maps, this time for North Carolina. After the state’s supreme court threw out a doctored map, Republican lawmakers appealed. The Supreme Court ultimately took up the case, agreeing to consider a version of what is known as the “independent state legislature” theory, which holds that the power the Constitution gives state legislatures to hold elections cannot be limited by the judiciary or the constitution of a state, or perhaps for much of nothing. A sweeping decision in the case could make it much easier for state legislatures to engage in voter rigging or suppression, or to intervene even more directly in the electoral process.
After the 2020 election, the Trump team tried to pressure state lawmakers to send lists of “alternate” voters to Congress. In 2024, some lawmakers may be convinced that most judges have given them license to do so. A repeat of January 6 is not that hard to imagine. If Roberts then finds himself, once again, running through roadblocks, they may be roadblocks that the Court helped build. ♦