In the week that marked the first anniversary of the US Supreme Court’s reversal of the federally enshrined right to abortion, a series of rulings from the court has delivered hope and concern: hope for better protection of American electoral processes, concern that long-established protections for disadvantaged groups could be swept away.
Thanks to three Trump-era appointments, the nine-member court is dominated by six conservative justices. While it has repudiated aggressive conservative litigation on immigration, tribal rights and the ability of states to control elections, in each case with the three Democratic appointees as part of the majority, it has also responded to the conservative agenda in decisions on affirmative action, gay rights and student loans. Divided along partisan lines — with the court’s three Democratic appointees in strong dissent — those decisions will have a significant impact on the rights of protected population groups in the United States.
The dominant news, and a cause for progressive celebration, is the court’s decision to reject the radical independent state legislature theory in Moore v. Harper, a case brought by a group of Republican lawmakers from North Carolina. The theory rests on a relatively recent interpretation of the US constitution’s elections clause, which says that state legislatures can set the rules for national congressional elections in their states.
According to proponents of the strongest form of the theory, no other organs of state government — courts, governors, election administrators or independent commissions — can alter a legislature’s decisions about how federal elections are run. Trump lawyers used this theory in 2020 to argue, unsuccessfully, that Joe Biden’s victories in key states were illegitimate and that state legislatures could unilaterally reverse the outcome.
In the latest case, the court ruled that state legislatures can’t make decisions that ignore their state’s supreme court or violate their state’s constitution. This six–three judgement, which applies to all states, is being hailed as a major win for democracy and voting rights.
But the tireless efforts of hardline conservatives will mean further attempts to challenge the court’s ruling and invoke the independent state legislature theory are likely in 2024. And the decision will not change the commitment of the Republican-dominated North Carolina legislature to the undermining of federal election processes and voting rights.
The genesis of the case was a gerrymandered electoral map drawn by the Republican-dominated North Carolina legislature after the 2020 census. After it was rejected by the state’s supreme court, Republicans passed an emergency application in February 2022 asking the US Supreme Court to intervene. That court rejected the request for immediate intervention, and the election last November was conducted under a map drawn by experts appointed by a state court.
The result was a fourteen-member congressional delegation evenly split between Republicans and Democrats — a reasonable result in a state where 34 per cent of voters are registered Democrat, 30 per cent are registered Republican and 36 per cent are unaffiliated.
But the 2022 election changed the composition of the North Carolina supreme court, which is now dominated by Republicans with a five-to-two margin. The new court’s majority reversed course, saying the legislature is free to draw gerrymandered voting districts as it sees fit — as it is already doing. A political fight is developing in North Carolina over voting rights and what has been described as “headline-grabbing confrontations over nearly every lever of the electoral apparatus.”
Moreover, the US Supreme Court’s decision contains what some see as a time bomb. In his majority opinion, chief justice John Roberts reaffirmed his court’s capacity to overrule state courts when it so chooses. Importantly, he persuaded the three liberal justices, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, to go along with a version of judicial review that some experts fear could allow the court to meddle in future elections.
It is interesting to note that the justices pointed to Bush v. Gore, the 2000 Supreme Court opinion that stopped Florida’s recount and confirmed George W. Bush’s presidential victory, as a template for resolving election disputes, despite the fact that the court’s opinion in Bush v. Gore explicitly stated that it was not intended to create precedent.
A series of other just-released decisions reflect the court’s conservative leanings and seem part of a broader effort to overthrow long-supported rights and benefits for minority groups. Two decisions saw the six conservative members of the court invalidate admissions programs at Harvard and the University of North Carolina that use race as a criterion, effectively ended race-oriented affirmative action admissions programs at public and private colleges and universities across the country and tossing aside yet another well-established federal right.
It is ironic that the justices ruled that the admissions policies violated the equal protection clause of the fourteenth amendment to the constitution — an amendment that was ratified in 1868 to enable the federal government to deal with the profound racial discrimination against Black Americans that continued after the Civil war.
The majority decision was written by Roberts, a long-time critic of affirmative action programs. At both Harvard and the University of North Carolina, he wrote, the programs “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”
As if to acknowledge these programs’ importance to ensuring greater diversity, though, Roberts stressed in a footnote that military academies are exempted from the decision. “No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context,” he wrote. “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”
The only two Black members of the Supreme Court — Clarence Thomas and Ketanji Brown Jackson — openly traded barbs in their widely divergent opinions.
“As [Jackson] sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today,” wrote Thomas, himself a beneficiary of academic affirmative action. “The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to ‘level the playing field,’ all as judged by racial metrics. I strongly disagree.”
Thomas also accused Brown Jackson of ignoring the oppression of other groups, including Asian Americans and “white communities that have faced historic barriers.” (It’s worth noting that Thomas and his conservative colleagues don’t take issue with the legacy programs that perpetuate elite access to Ivy League universities.)
Justice Brown Jackson, who led the liberal dissent, didn’t mince words either, calling the decision “a tragedy for us all.” She defended the use of race-conscious programs to ameliorate the pervasive, present-day effects of America’s history of state-sponsored racism. “Gulf-sized race-based gaps exist with respect to the health, wealth, and wellbeing of American citizens,” her dissent began, and went on to argue that allowing colleges to consider applicants’ race has “universal benefits” because it helps to close those gaps and thereby promotes equality.
Not surprisingly, these US Supreme Court decisions have generated strong condemnation. Critics are concerned about the impact on Black Americans and on the diversity that is so needed in the healthcare workforce.
More is at stake than affirmative action in university admissions, including the central question of whether the law can be used to fix longstanding racial inequalities. As Justice Sotomayor wrote in her strong dissent, “The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”
Conservatives, long wary of race-based programs designed to benefit minorities, will be emboldened to leverage these decisions into attacks on affirmative action programs in other areas such as corporate diversity. “In the broadest sense,” wrote political analyst Ron Brownstein in the Atlantic, “the Republican-appointed justices have moved to buttress the affluence and status that allow white people to wield the most influence in society, and to diminish the possibility that accelerating demographic change will force a renegotiation of that balance of power.”
Disadvantaged students will also be affected by the court’s decision, in Nebraska v. Biden, to strike down President Biden’s student debt relief plan. This was a 2020 election campaign promise to deliver financial relief to up to forty-three million student loan-holders, including cancelling the full remaining balance for roughly twenty million, with these relief dollars targeted to low- and middle-income borrowers. Advocates argue that both student loan forgiveness and affirmative action are racial justice issues.
In a major win for Republicans, who had vehemently opposed the plan, the court’s six conservatives ruled that the Biden administration lacked the power to forgive loans for more than forty million borrowers. Facing Republican opposition to legislation to implement this commitment, Biden had used the HEROES Act, which was authorised in 2003 after the 9/11 attacks as a means of giving loan relief during times of war and other emergencies.
The plan’s hefty price tag also meant it had major economic implications. In striking down the plan the court thus relied on the “major questions doctrine,” which says that Congress must give direct authorisation for the executive branch to implement a policy that has major economic and political impacts on the country. The doctrine was first invoked in 2022 in a decision about the extent to which the Environmental Protection Agency could regulate greenhouse gas emissions.
Republicans and advocates of limiting the power of the federal bureaucracy cheered this most recent court decision, but the liberal justices and many legal experts are concerned it could prevent the government from taking decisive action on climate change, healthcare and other urgent problems.
“The Court, by deciding this case, exercises authority it does not have,” Justice Kagan wrote in her dissent. “It violates the Constitution.” Norman Ornstein of the American Enterprise Institute was even blunter: “They created out of whole cloth a bogus, major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the Court.”
Another recent decision puts a question mark over the court’s decade-old judgement establishing the constitutional right to same-sex marriage. In this latest case, the court decided that Colorado’s anti-discrimination law violated a web designer’s free speech rights under the first amendment, raising fears that the right of LGBTQI+ Americans to non-discrimination (including the right to marry) is being eroded.
The case, 303 Creative v. Elenis, rests on several hypotheticals. Web designer 303 Creative is owned by Lorie Smith, who opposes same-sex marriage on religious grounds. But the company has never been asked to create a website for a same-sex wedding, and Colorado has never tried to force it to design such a website. In fact, Smith didn’t design wedding websites for anyone at all when the suit was filed.
Justice Neil Gorsuch, who wrote the majority opinion for the conservative justices, called the message conveyed by any websites Ms Smith designs “pure speech,” as if no services were being provided and the primary point of the websites would be to express the designer’s views on matrimony. The court’s three liberal justices disagreed. “Today,” Justice Sotomayor wrote, “the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
The decision came at a time when Republican legislators in many conservative-leaning states are targeting the rights of transgender and other LGBTQI+ people. In strongly criticising the decision, President Biden expressed a fear that the ruling could invite more discrimination. “In America, no person should face discrimination simply because of who they are or who they love,” he said in a media statement. “More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations — including people of color, people with disabilities, people of faith, and women.”
Not only do these recent decisions highlight the impact of the three conservative justices appointed by Donald Trump; the majority and minority opinions also highlight how divided the US Supreme Court has become. Observers have detected a new contentiousness during oral arguments and within justices’ opinions. The highly personal attacks in the affirmative action rulings are a far cry from the expected dispassionate legal interpretation.
In dissenting from the decision to strike down the student debt plan, for instance, Justice Kagan wrote that “in every respect, the court today exceeds its proper, limited role in our nation’s governance.” Chief Justice Roberts retorted: “It has become a disturbing feature of some recent opinions to criticise the decisions with which they disagree as going beyond the proper role of the judiciary.”
Moreover, when court decisions continually divide along the same lines as the divergence of political opinions — as has happened in most of these big cases — it is very hard for the public to see the distinction between law and politics.
A growing number of critics worry the court is losing its legitimacy by overturning abortion rights and using disingenuous legal reasoning to advance a reactionary political agenda. At the same time, public revelations of the close ties between Justices Samuel Alito, Gorsuch and Thomas and wealthy benefactors with business before the court have met with official indifference from the chief justice. Small wonder the court’s popularity has plunged to record lows as the public increasingly sees the court as a political body.
Biden is facing increasing pressure from Democrats to embrace far-reaching reforms to the nation’s highest court, including expanding the number of justices and imposing term limits and mandatory retirement. While he has harshly criticised the court’s sharp pivot to the right, calling it “not a normal court,” he has declined to endorse any of proposed reforms.
Together with abortion, these most recent decisions will be an ideological divide along which Republicans and Democrats — and voters — will line up for next year’s elections. The conservative push to erode rights for women and minority groups will galvanise both those who agree and those affected.
Biden is signalling he will run against the court and Republican lawmakers on a host of judgements, including abortions rights and student loans, hoping to appeal to women, people of colour and young voters. For this to be a winning strategy, he must get voters who are disappointed by the lack of action on these and other issues — including stricter gun rights and more liberal immigration laws — to see that their only hope of remedy lies with him and the Democrats.
Trump will certainly tout his success in stacking the US Supreme Court, and his Republican presidential rivals will presumably claim they will do more. This approach has deep appeal for the rusted-on Make America Great Again base but is unlikely to garner sufficient votes to gain a victory in the general election.
It is no accident that Trump, even as he takes credit for the decision to abolish legal abortion, has been dodging questions about whether he would sign a federal abortion bill into law — something many within the conservative movement see as the next frontier in this fight. Florida governor Ron DeSantis, his chief rival in the Republican presidential primary, has sought to outflank him on the issue by embracing it as a key feature of his campaign, as has former vice-president Mike Pence.
What the United States is seeing in 2023 — in Supreme Court decisions, state actions and the failure of Congress to enact any meaningful legislation — is a clawing back of the rights of Americans, especially those in minority groups, in a way previously unseen in modern times. This must surely be a key election driver next year. •