FASTEN YOUR SEASTBELTS - ITS GOING TO BE A BUMPY TERM

This past Monday, Associate Justice Elena Kagan said of the Supreme Court’s current reputation in the wake of the most recent term:

“The very worst moments [in the court’s history] have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions. The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process. Judges create legitimacy problems for themselves when they don’t act like courts, when they instead stray into places that looks like they are an extension of the political process or where they are imposing their own personal preferences. If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”

On Tuesday, Samuel Alito, author of the Dobbs decision overturning Roe v Wade, retorted, telling the Wall Street Journal that, “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

It is rare for a justice to issue such a statement when asked for comment about an ongoing controversy, but the justices on the court now are unlike those who have been there before, with three that would never have been there had it not been for The Federalist Society, Mitch McConnell and the willingness of Donald Trump to go along with anything that “sticks it” to the people who refuse to recognize him for the “stable genius” he truly is.

A new Monmouth University poll finds that nearly 60% of Americans think the Supreme Court is out of touch, and two-thirds (66%) of the public would support creating term limits for Supreme Court justices. This includes clear majorities of Democrats (86%) and independents (63%) and just over half of Republicans (51%).

I’ve never felt toward the court the way I do now, not even with the conservative makeup of the court as it was prior to 2016.

But now...

Hey, Sammy boy, why don’t you go FUCK OFF? And when you’re done, go over there and FUCK OFF. And when you’re done, go over there and FUCK OFF. And then come over here and FUCK OFF. And keep FUCKING OFF, you fucking fuckwitted fucker.

And if you thought last term was bad, this one that started today has the potential to make that one look like the proverbial Sunday morning walk in the park.

“Fasten your seatbelts. It’s going to be a bumpy term.”

It’s laughable that conservatives, including the justices, are shocked their precedent-bursting use of the confirmation process and judicial power should inspire such fury from Democrats. Ever since Brown v Board of Education, it’s been conservatives who ran against liberal courts and “judicial activism” and judges who “legislate from the bench.”

It’s a different matter when they have the votes.

Proof of how radically the new conservativet majority has polarized opinion along partisan lines lies in the polling. Beginning in 1987, the Pew Research Center has asked Americans their views of the court. Then, 80 percent of Republicans and R-leaning independents had a favorable view, as did 75 percent of Democrats and Democratic leaners.

1994 saw the high point in bipartisan comity and sympathy, when 83 percent of those inclined toward Democrats and 79 percent of those disposed toward Republicans had favorable views of the court.

That’s bipartisan legitimacy. It’s gone.

This summer, Pew found that “ratings of the Supreme Court are now as negative as — and more politically polarized than — at any point in more than three decades of polling.”

Only 28 percent of Democrats and Democratic-leaning independents view the court favorably. For Republicans and Republican leaners, the favorable rating is 73 percent. Pew noted the 45 percentage-point partisan gap “is wider by far than at any point in 35 years of polling on the court.”

As with many other issues, we are witnessing a profound reshaping of American politics. The two parties have switched sides on the importance of the judiciary as a voting issue. While the court was a motivator for many Republicans, particularly opponents of abortion, the court now is driving Democratic energy.

As Roe created the right-to-life movement 50 years ago, Dobbs v. Jackson Women’s Health Organization has unleashed an equal and opposite effect on supporters of abortion rights. They happen to constitute a majority of the electorate, and have already affected the outcome of three votes over the summer that were expected to go in favor of Republicans.

The conservative court’s expected aggressiveness this coming term on issues from voting, labor and LGBTQ rights, to environmental and firearms regulation, to affirmative action and church-state questions will likely to set off clashes between the elected branches of government and the judiciary not seen since the New Deal era. Perhaps not since the Northern backlash against the Dred Scott decision that preceded the Civil War.

In a series of recent appearances, Kagan – without directly addressing the blockbuster cases last term – spoke about how courts can damage its legitimacy.

“I think judges create legitimacy problems for themselves – undermine their legitimacy – when they don’t act so much like courts and when they don’t do things that are recognizably law, and when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences,” she said in New York in early September.

She reiterated that, in general, judges should abide by precedent – echoing sentiments the liberal justices made in a fiery joint dissent after the court reversed Roe.

That doesn’t appear likely in this coming term. Nothing in the behavior of the court’s emboldened majority suggests any inclination to pull back on the throttle. The Supreme Court is master of its docket, which means that it controls what cases it will hear, subject to the agreement of four justices. Already, with its calendar only partly filled, the justices have once again piled onto their agenda cases that embroil the court in some of the most inflammatory issues confronting the nation — and more are on the way.

Last term, in addition to overruling Roe v. Wade, the illegitimate conservative majority expanded gun rights, imposed severe new constraints on the power of regulatory agencies and further dismantled the wall of separation between church and state. If there was a question, at the start of that term, about how far and how fast a court with six conservatives would move, it was answered resoundingly by the time it recessed for the summer.

Now, the court is marching toward fresh territory, taking on race, gay rights and the fundamental structures of democracy. And there’s every indication the court intends to adopt changes nearly as substantial as those of last term.

In assembling its cases for the term, the conservatives have displayed an unseemly haste. The court reached out to decide a dispute about when the Clean Water Act applies to wetlands, even as the Environmental Protection Agency rewrites its rules on that very issue.

It agreed to hear a wedding website designer’s complaint that Colorado’s law barring discrimination on the basis of sexual orientation violates her free speech rights to oppose same-sex marriage, even though Colorado authorities have not filed any complaint against her.

It took the marquee case of the term: the constitutionality of affirmative action programs at colleges and universities, although the law in this area has been settled and there is no division among the lower courts.

They are impatient to use their majority to do what they have wanted to do for 50 years. That is a perilous course for an institution whose very authority is grounded on the presumption of stability. If the majority insists on its current hurried path, it risks deepening the very questions about the court’s legitimacy that have tormented the justices and have erupted into their public debate. At a moment of extreme and increasing national division, change of such velocity and breadth is unhealthy not only for the court but also for a nation being asked to abide by its rulings.

Nearly 80 years ago, Judge Learned Hand observed that “the spirit of liberty is the spirit which is not too sure that it is right.” By contrast, “this is a court that is very convinced of its righteousness,” said Stanford Law School professor Pamela S. Karlan. “This is a court on which there are a number of justices who are very eager to push the law in directions they prefer, and they don’t think to themselves, ‘We should go slow on these things.’ ”

As much as the previous term was dominated by the decision to overrule Roe, the overriding theme of the coming term will be race, with one major case on the constitutionality of weighing race as a factor in college admission and another on the fate what remains of the Voting Rights Act.

Race is a triggering issue for the conservative justices that rivals abortion in the intensity of response. They have made a fetish of Justice John Marshall Harlan’s famous 1896 admonition in Plessy v. Ferguson that “our Constitution is colorblind,” forgetting that statement came in the context of arguing against state-compelled segregation of rail cars, what Harlan termed “a badge of servitude wholly inconsistent with ... the equality before the law established by the Constitution.” These justices are offended by the notion of allowing any consideration of race, whether the motive is malign or benevolent.

The affirmative action case, to be argued October 31, involves the constitutionality of race-conscious admissions programs at Harvard University and the University of North Carolina; the court, with considerable discomfort, has narrowly allowed the practice. In a 2003 case, Grutter v. Bollinger, the court voted, 5-4, to uphold a University of Michigan law school admissions program. None of the five justices in the Grutter majority remain on the court. Justice Thomas, who dissented in Grutter, has since been joined by five new colleagues who are apt to support his view.

Those challenging the Harvard and UNC admissions programs have taken direct aim at Grutter. Their brief invokes Brown v. Board of Education as support for invalidating efforts to assure diversity in higher education. “Because Brown is our law, Grutter cannot be,” the brief asserts. “Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution, this Court should overrule Grutter.”

This is flat-out offensive. One case was designed to undo Jim Crow-era segregation; the other to promote racial diversity. As with the paeans to “colorblindness” in Harlan’s Plessy dissent, the invocation of Brown ignores that fundamental difference.

The conservative justices are no doubt inclined to take up the invitation to overrule Grutter; it’s fair to surmise that’s why they accepted the cases. But in doing so, they’ll have to confront the tension between their insistence on colorblindness and their asserted adherence to an originalist judicial philosophy.

The 14th Amendment, ratified in 1868, guarantees to every person the “equal protection of the laws.” During that very period, however, those defending race-conscious admissions point out, Congress and states also enacted special programs to help newly freed enslaved people and other Black citizens. Court observers say that we should not count on that history swaying this court..

The second race case, to be argued October 4, concerns Section 2 of the Voting Rights Act. This case also demonstrates how newly aggressive conservative states and other anti-democratic parties are pushing the conservative majority to deploy the equal protection clause not as a weapon to protect and assure minority rights but as a way to reduce them. This is essentially an attempt to take the court back to the pre-Warren court interpretation of the 14th Amendment.

During the past ten years, the Voting Rights Act has been shredded by the court. In 2013, the Shelby County v. Holder decision eviscerated the central mechanism of enforcement, Section 5, which required jurisdictions with a history of voting discrimination to obtain advance federal approval before changing voting rules. Chief Justice Roberts, who wrote the opinion, made assurances that it in “no way affects the permanent, nationwide ban on racial discrimination in voting” in Section 2 of the law. We have seen, beginning the next year after that decision, the very state legislatures that were under Section 5 take action to limit and restrict voting rights.

Section 2, which prohibits voting practices that result in the “denial or abridgment” of the right to vote on account of race, has also been under attack. Two years ago, the court made it much more difficult to use the law to go after voting restrictions, such as limits on absentee ballots, that disproportionately harm minorities.

This term, the court will focus on what has been the main use of Section 2, ensuring that state legislative and congressional district lines are drawn fairly. The case, Merrill v. Milligan, involves a congressional redistricting plan in Alabama. The state’s population is 27 percent Black, but Blacks constitute a majority in just one of its seven congressional districts. A lower court, citing Alabama’s “extensive history of repugnant racial and voting-related discrimination,” ruled that the state had to create another majority Black district to comply with Section 2.

Applying the approach set out in a 1986 case, the lower court found voting in Alabama is so racially polarized Black voters don’t have a decent chance of electing their preferred candidate unless they are in a district that is at least close to majority Black. In addition, it concluded, Blacks in the state are numerous enough and clustered sufficiently compactly to make it feasible to create a second such district.

Alabama argues that it can’t be required to draw a second district, not because it contests the factual findings by the three-judge lower court, which included two Trump appointees. Instead, the state is urging the court to discard decades of precedent and simply rewrite the “existing framework.”

Even though Congress amended Section 2 in 1982 to make clear that it wanted to prevent voting practices with discriminatory effects, as well as discriminatory intentions, Alabama insists, those challenging existing district lines must prove that the restriction “can be explained only by racial discrimination.”

At the same time, it argues that plaintiffs trying to show a majority-Black district is possible can’t take race into account in drawing that district. The illustrative maps must, the state says, be created in a way that is “race-blind.” Otherwise, Alabama says, Section 2 would violate the 14th Amendment by taking race into account.

Yes, your head should be spinning after you read that. The Biden administration explained in its brief, “it would be extraordinary to hold that the Fourteenth Amendment, which itself empowers Congress to combat racial discrimination, disables Congress from adopting Section 2’s limited measures” to ensure equal participation by minority voters.

The case is crucially important because the implications of Alabama’s logic would be enormous, especially in the Deep South, at a moment when minority representation in elected office generally lags below the minority share of the vote. “For those who care about Black or Latino representation … this is the most disruptive case to minority representation in several decades, more so than Shelby County,” said Harvard Law School professor Nicholas Stephanopoulos, who filed a brief in the case on the side of those arguing for the second majority-Black district.

If this court’s past dealings with the Voting Rights Act are any indication, that argument won’t carry the day.

Race isn’t everything this court is looking to change. The battle between religious liberties and gay rights is still be an issue.

Five years ago, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court said it was a “general rule” that religious and philosophical objections “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” The court then kicked the case back to the lower courts because it said there was evidence that Colorado authorities were hostile to Christian baker Jack Phillips, who said his religious beliefs prevented him from creating a custom cake for a same-sex wedding. Colorado authorities said Phillips’s refusal violated the state’s anti-discrimination law.

With Kavanaugh replacing Anthony M. Kennedy, and Amy Coney Barrett replacing Ruth Bader Ginsburg the court is returning to the issue, again with a case from Colorado, brought by Lorie Smith, a graphic artist and website designer who wants to create custom wedding websites that “express what she believes is the beauty of God’s design for marriage.” 303 Creative LLC v. Elenis, contends the Colorado law is a restriction on Smith’s free speech rights as an artist, not as an infringement of her religious liberties. The First Amendment focus opens up a whole new area of contention. In its friend-of-court brief, the ACLU asks “If 303 Creative is correct, could a bakery that opposed celebrating Black families refuse to sell a birthday cake to a Black mother? Could an architecture firm that serves the public refuse to design homes for Muslims because it opposes their religion? Could a restauranteur opposed to ‘mixed marriage’ put up a sign in its window saying, ‘No inter-racial or inter-faith couples served’?”

Democracy is on the docket in Moore v. Harper, a dispute over partisan rather than racial gerrymandering in North Carolina. The case raises what conservatives call the “independent state legislature theory.” In Moore, the question is whether, notwithstanding the elections clause of he constitution, the state Supreme Court retains the power to supervise the actions of the state legislature to make certain they comply with the requirements of the state constitution.

This case matters for democracy on two levels, one immensely important, the other potentially revolutionary. The first concerns the increasingly common and, with the help of powerful computers, increasingly effective practice of partisan gerrymandering. In 2019 the justices declared federal courts had no business involving themselves in supervising such manipulation.

Even as it did so, the majority insisted state courts could remain active in the area and police excessive gerrymandering.

In North Carolina, the state Supreme Court struck down a redistricting map that would lock in 10 of 14 congressional districts for Republicans, calling the map an “egregious and intentional partisan gerrymander” that violated the state constitution. Republican state legislators, invoking the independent state legislature theory, appealed to the Supreme Court, claiming that the North Carolina courts had usurped their authority and intruded on the exclusive domain of the state legislature.

This case will be closely watched, since - much as the Christian website designer’s case could usher in a new era of line-drawing about when discrimination must be tolerated - the North Carolina case could create new limits on state courts’ oversight of state legislators.

If the independent state legislature theory is validated by the court in Moore, it could be used as a tool for election subversion, allowing state legislatures interfere with election results they don’t like. What if a state legislature disapproves of the slate of presidential electors certified by a governor? Could it step in to undo election results? This was the theory being peddled by lawyer John Eastman when he tried to upend the 2020 election results and have Trump declared the winner.

Letting legislatures change the rules after Election Day could be a reversal too far, even for this court. Moore might be the one case this term where apocalyptic predictions have been overblown.

However, Alito, joined by Thomas and Gorsuch, dissented earlier this year when the court refused to stop the North Carolina map from taking effect. Alito wrote, “If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.” Kavanaugh called the independent state legislature issue an “important” question. Roberts, dissenting in a 2015 case that upheld Arizona’s independent redistricting commission adopted by voter referendum, termed it a “deliberate constitutional evasion” to read the term “legislature” so broadly as to include an independent redistricting commission.

Neal Katyal, representing Common Cause in the case, told the court the opponents’ arguments “hang on a hyper-literal reading of the word ‘Legislature’ that ignores that word’s context, constitutional structure, and precedent,” adding, “the original understanding of ‘Legislature’ … contemplated a governing body defined and bounded by state constitutional limits.” It’s hard to have much confidence that such originalist arguments will persuade the court’s self-described originalists.

This “First Monday in October” is perhaps the most momentous in modern court history. If the six conservatives continue to make decisions based on their political orientations and beliefs rather than the law, we could see the final unraveling of the Rule of Law in this country.

Fasten your seatbelts. It’s going to be a bumpy term.

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