Op-Ed: As a new Supreme Court term begins, prepare for the law to move even more to the right

Op-Ed: As a new Supreme Court term begins, prepare for the law to move even more to the right

As the Supreme Court begins its new term on Monday, it’s clear that the court’s majority is determined to move the law much further to the right. The last term ended with the court overruling Roe vs. Wade, dramatically expanding gun rights, rejecting the separation of church and state and limiting the power of administrative agencies.

About half the docket for the new term is set, and what is striking is how the court is reaching out to take and decide cases to further its conservative vision of the Constitution. Traditionally the justices have focused on granting review in cases where there is a disagreement among the lower courts — with the Supreme Court’s role being to resolve these conflicts. Often in the past, the justices have stressed that they want to wait until many lower courts have ruled — until the issue has “percolated,” before weighing in.

But in many of the high-profile cases for this coming term, the court has stepped in even though there is no disagreement among the lower courts.

For example, on Oct. 31, the Supreme Court will hear two cases about whether to end affirmative action by colleges and universities, Students for Fair Admissions vs. University of North Carolina and Students for Fair Admissions vs. Harvard College. In decisions in 1978, 2003 and 2016, the court held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor in admissions decisions in carrying out their educational mission.

This is settled law. Affirmative action, like abortion, has long been a target of conservatives. The widespread expectation is that here, too, the activist conservatives on the court will overrule more than 40 years of precedents they oppose politically.

Nothing about the law in this area or how it has been interpreted by the lower courts calls for reopening this issue. All that has changed since 2016 is that three Trump-appointed justices — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — have joined the court.

Two voting cases of potentially great significance also are before the court. Merrill vs. Milligan, which will be argued on Tuesday, involves the application of the Voting Rights Act of 1965 to racial discrimination in the drawing of congressional districts. A three-judge court in Alabama — with two judges who were appointed by President Trump and one by President Clinton — found that the districts drawn in Alabama were racially discriminatory. Black individuals make up 27% of the population in Alabama, but only one out of seven congressional districts in Alabama had a likelihood of electing a Black representative.

The three-judge court ordered new districts be drawn, but the Supreme Court, by a 5-4 vote, stopped this in an emergency order and chose to hear the case.

The court, in its prior rulings over the last decade, has already greatly weakened the Voting Rights Act. There is good reason to fear that the conservative justices will make it harder to prove that election districts are drawn in a racially discriminatory manner — or perhaps even rule that considering the race of the people in the district in detecting discrimination is unconstitutional.

Some observers worry that the court might go so far as to rule that any law that prohibits racially discriminatory effects is unconstitutional. Such a ruling would eviscerate many civil rights laws that create liability on proof of disparate impact in employment, housing and voting.

The other election case, expected to be argued in November, is Moore vs. Harper. The North Carolina Supreme Court found that the state Legislature violated the North Carolina Constitution by engaging in partisan gerrymandering to ensure that Republicans win 10 of 14 congressional seats even though the state is almost evenly split between the two parties.

That court decision was rooted in law and good sense. Yet the Roberts court took review of the case even though there was no special or unusual action by the North Carolina court. The GOP challengers argue that under the U.S. Constitution only the state legislature can decide matters concerning congressional elections. This stance has never been validated and would eliminate any form of state judicial review in such cases.

If the court embraces this bizarre argument, known as the “independent state legislature” theory (Justices Clarence Thomas, Samuel A. Alito Jr. and Gorsuch have already indicated their support), then state courts would be powerless to stop even the most egregious violations of the law.

Even more frightening, if the justices accept this theory regarding congressional elections, they could well apply the same reasoning to another constitutional provision — Article II, Section 1 — which addresses state legislatures’ role in the selection of presidential electors. That provision is not relevant to the gerrymandering dispute and is not before the Supreme Court. But if the court adopts the “independent state legislature” theory, a state legislature would have the power to award the state’s presidential electors to the candidate that lost the popular vote — even in violation of state law — and change the outcome of the presidential election.

303 Creative LLC vs. Elenis is another discrimination case that will be heard by the Supreme Court even though there is no controversy among the appeals courts. The issue in this case is whether a business owner may violate state anti-discrimination law on account of her religious beliefs. Lorie Smith has a business in Colorado designing websites and wants to do that for weddings, but she says she won’t do it for same-sex weddings, even though such discrimination violates Colorado law. The question is whether she can use free speech as a defense against the state law. If the justices rule in her favor, they could open the door to discrimination by business based on sexual orientation, sex and even race simply by claiming their discrimination is protected by the 1st Amendment.

This will be the first term for Justice Ketanji Brown Jackson, the first African American woman on the court, a milestone in American history. Her voice will be greatly valued, but there remain six staunchly conservative justices who are willing to change the course of constitutional law as it has developed over the past five decades. Voting rights, racial equity and the power of states to ban discrimination are all on the line, and this is with less than half the docket set for the new term.

Erwin Chemerinsky is a contributing writer to Opinion and dean of the UC Berkeley School of Law. His latest book is “Worse than Nothing: The Dangerous Fallacy of Originalism.”

News Related

OTHER NEWS

Anti-US protest in German city of Leipzig runs into large counterdemonstrations

Police in the eastern German city of Leipzig said on Saturday that far fewer people than expected turned out for a demonstration against the remaining US military presence in Germany. ... Read more »

Judge denies 19-year-old's ask to attend father's execution

FILE – This photo provided by the Missouri Department of Corrections shows Kevin Johnson. A federal judge has denied a request from a 19-year-old woman to allow her to watch ... Read more »

France Becomes First Team to Advance to Knockout Stage With Win Over Denmark

France now leads Group D in the standings as they seek to become the first team to win back-to-back champions since 1962 Read more »

FIFA World Cup: Serbia charged for hanging political banner in locker room

The Serbian soccer federation was charged by FIFA on Saturday for hanging a political banner about neighboring independent state Kosovo in the locker room before playing Brazil at the World ... Read more »

The world’s largest T. rex, held in Regina, may have relatives 70 per cent bigger

For many years now, Saskatchewan has been the proud home of the world’s largest Tyrannosaurus rex. Nicknamed Scotty, this once huge animal used to roam the earth some 66 million ... Read more »

Entire Virginia football team will attend funerals of all three teammates

The entire Virginia Cavaliers football team will attend the funeral service of D’Sean Perry on Saturday in Miami. The memorial is the first of three services for their late teammates. ... Read more »

FOX's World Cup coverage illustrates how not to televise soccer

FOX’s World Cup coverage illustrates how not to televise soccer Never before in the history of soccer in the United States was a single game hyped so much. It was ... Read more »

Attacking variety leaves France capable of defending World Cup crown as Kylian Mbappe shines in Denmark win

mbappe.jpg Kylian Mbappe scored twice as France beat Denmark to become the first side to confirm their place in the last-16 in another statement from the holders. The 2-1 win ... Read more »

Mike McCarthy Reacts To Giants Player's "Dirty" Play

FOXBOROUGH, MASSACHUSETTS – OCTOBER 17: Head coach Mike McCarthy of the Dallas Cowboys looks on during the second half against the New England Patriots at Gillette Stadium on October 17, ... Read more »

Former Dynamo and USMNT star DaMarcus Beasley voted to National Soccer Hall of Fame

The former Houston Dynamo defender and U.S. Soccer star became the first American to play in four World Cups. Read more »

Iran leader praises force tasked with quashing dissent

In this picture released by the official website of the office of the Iranian supreme leader, Supreme Leader Ayatollah Ali Khamenei speaks during a meeting with a group of Basij ... Read more »

Black Friday sales rake in a record $9.12 billion from online shoppers

A picture taken in Liverpool, north west England on November 22, 2018 shows Black Friday sales branding on shopping websites displayed on smartphone and laptop screens. Paul Ellis/AFP via Getty ... Read more »

Death toll tops 300 in Indonesian earthquake as search for victims continue

The death toll from a powerful Indonesian earthquake topped 300 as the search for victims continued Saturday. Monday’s 5.6 magnitude quake, which was centered in the Cianjur region of the ... Read more »

'He doesn't have the votes': House GOPer serves notice to McCarthy he won't be elected speaker

Kevin McCarthy (Photo by Nicholas Kamm for AFP) According to one high-profile member of the Republican House Freedom Caucus, current House Minority Leader Kevin McCarthy (R-CA) is getting ahead of ... Read more »

Up to dozen missing as Italian island hit by destructive landslides

As many as 12 people are missing on the south Italian island of Ischia Saturday, after heavy rainfall caused landslides in the area. The landslides created a muddy environment through ... Read more »

Hula was once banned in Hawaii, this competition fosters the next generation of dancers

MAUI — Clipped into hair and strung into leis, fresh plumerias fill the banquet hall with a sweet scent. Soon, the dim stage lights brighten and the audience quiets. A ... Read more »

Today in Apple History: Bill Gates hails Mac as the future of computing

Bill Gates offered high praise for the Mac in 1984. Image: Fulvio Obregon November 26, 1984: “The next generation of interesting software will be done on the Macintosh, not the ... Read more »

France v Denmark moments missed: Fan attempts to jump into the pitch, Mbappe electric and mexican wave

Two goals from Kylian Mbappe shot France to a 2-1 win against a very good Denmark side who at some point looked like they would get something from the game. ... Read more »

Black Friday vs. Cyber Monday: Retailers extend deals as Canadians shift shopping habits

When Shopify Inc.’s Harley Finkelstein surveys November’s retail landscape, he finds it hard to see where Black Friday stops and Cyber Monday begins. The annual pre-holiday sales blitzes meant to ... Read more »

Bensalem teen charged in homicide after showing body on Instagram video call, police say

File picture of police crime-scene tape. Bensalem police charged a 16-year-old Bensalem resident with homicide after the teen allegedly told an acquaintance on an Instagram video chat that he killed ... Read more »

Cold Front Arrives Overnight, Bringing Snow Tuesday: MN Weather

“A cold front will arrive tonight, bringing clouds and cooler weather,” the National Weather Service said. “Snow likely on Tuesday, although uncertainty remains with regards to amounts and which locations ... Read more »

Security guard fires gunshot inside a Des Moines bar

POLICE LIGHTS A gunshot was fired inside a bar on Locust Street in Des Moines late Friday night. Des Moines police say two people were fighting inside Ricochet gaming bar ... Read more »

A generation refuses to forgive a deliberately misleading fantasy that reduced them to emotional rubble

It’s rare for any movie to reduce an entire generational to a smoldering pile of emotional rubble, never mind a modestly-budgeted $17 million fantasy backed by the might of the ... Read more »

Heavy rain will cause travel troubles on Sunday

PHILADELPHIA (CBS) — Saturday’s sunshine will give way to clouds overnight and downpours on Sunday as a storm system from Texas arrives. Roads will be busy with travelers heading home ... Read more »

Biden Family Attends Christmas Tree Lighting Ceremony In Nantucket

NANTUCKET, Mass. (AP) — The Biden family’s tradition of eating lunch, shopping and watching a Christmas tree lighting in downtown Nantucket on Friday became mostly about keeping the president’s 2-year-old ... Read more »

Disney inked $10M deal with Bob Iger to consult his replacement despite icy relationship: report

Bob Iger and successor Bob Chapek rarely spoke after change in Disney leadership Read more »

Entire Virginia team to be at funerals of 3 teammates

Entire Virginia team to be at funerals of 3 teammates The entire Virginia football team will attend the funeral service for D'Sean Perry on Saturday in Miami, the first of three ... Read more »

Michigan's Blake Corum plays vs. Ohio State with knee injury

Michigan's Blake Corum plays vs. Ohio State with knee injury Michigan star tailback Blake Corum, with an air of ambiguity hanging over his potential effectiveness because of a knee injury, is playing at ... Read more »

Lane Kiffin agrees to new contract to remain at Ole Miss

Lane Kiffin agrees to new contract to remain at Ole Miss Lane Kiffin will return as Ole Miss' coach next season and is signing a new contract extension with the ... Read more »

USPS: Grant a child's Christmas wishes by adopting their letter to Santa

It's a program that has run for 110 years, giving a little extra magic to those in need during the holiday season. Read more »

3 people injured in Hawthorne shooting

Police are searching for suspects involved in a shooting in Hawthorne on Friday night that injured three people, police said. Officers responded to a report of 10 gunshots near Rosecrans ... Read more »

Minuto a Minuto del Argentina vs. México EN VIVO desde el Lusail Iconic Stadium de Qatar 2022

Lusail, Qatar —  Argentina necesita el triunfo… México también. Así de simple es el argumento de esta noche en el Lusail Iconic Stadium en el que ambas escuadras necesitan salir con ... Read more »

Serbia Charged Over Locker Room Kosovo Flag at 2022 World Cup

The flag was found in Serbia's banner ahead of the Brazil game on Thursday Read more »

France through to World Cup knockout stage after Kylian Mbappe punishes Denmark

France secured their place in the World Cup knockout stage after a brace from Kylian Mbappe led them to a 2-1 win over Denmark. Read more »

Black Friday bloodshed: Teen stabbed in Staten Island mall during busy shopping day

As Black Friday bargain hunters searched for deals in the Staten Island Mall, a 16-year-old boy was stabbed in the stomach, police said Saturday. Two teens were arguing in the ... Read more »

Toronto outdoor public ice-skating rinks open

Despite blue skies and temperatures close to 10 degrees,  and the date on the calendar, the signs that winter has arrived in Toronto are growing. On Saturday, the City of ... Read more »

Kevin Johnson execution: Daughter denied request to watch father die by lethal injection

Corionsa "Khorry" Ramey, 19, says she is "heartbroken" she can't be with her father, Kevin Johnson, when he is due to be executed next week over the shooting of a police officer in Missouri in 2005. Read more »

Joy Behar Reveals Wild Location Of 'Goodbye' Party After Being Fired From 'Good Morning America'

Joy Behar Reveals Wild Location Of ‘Goodbye’ Party After Being Fired From ‘Good Morning America’ Joy Behar has a long history cohosting The View, but on the Friday, November 25, ... Read more »

Sean Payton explains ‘right fit’ he’s looking for in potential coaching return

Former Super Bowl-winning Saints coach Sean Payton, whose name emerges regarding virtually every NFL coaching opening, takes a timeout to huddle with Post columnist Steve Serby. Q: What do you ... Read more »

Climb Hire CEO Nitzan Perlman refused to hire ‘white people’: lawsuit

Climb Hire is a California company dedicated to supporting minorities entering the workforce. Shutterstock A black executive was canned after he warned his boss that she couldn’t refuse to hire ... Read more »
Breaking thailand news, thai news, thailand news Verified News Story Network