From affirmative action to Andy Warhol: Buckle up for a wild Supreme Court term
Category: News & Politics
Via: vic-eldred • 2 years ago • 25 commentsBy: Jonathan Turley (The Hill)
S E E D E D C O N T E N T
Justice Ruth Bader Ginsburg once said, "It's hard not to have a big year at the Supreme Court." That is, of course, manifestly true for the highest court in the land.
Some years are bigger than others, however. That certainly was the case in 2021-22, with historic decisions on abortion, gun rights, climate change and other issues.
On Monday, the new term will begin with a lineup that promises another historic series of rulings — and even greater levels of rage directed at the court.
The last term showed that a stable 6-3 majority has taken hold on the court. Even with the addition this term of Justice Ketanji Onyika Brown Jackson, and possible swing votes from Chief Justice John Roberts or others, there are five conservative justices who have brought clarity to long-contested areas characterized by 5-4 divisions. That is likely to continue this term.
Here are just two of the "matinee" cases that could have a huge impact on both precedent and politics:
Students for Fair Admissions v. President & Fellows of Harvard College
This case on the use of race in college admissions will be heard with a similar case in Students for Fair Admissions v. University of North Carolina.
Since declaring affirmative action in admissions to be unconstitutional in 1978 in Regents of the University of California v. Bakke, the court has never achieved clarity on the constitutional use of race beyond barring any preference "for no reason other than race or ethnic origin." Then-Justice Lewis Powell declared, "This the Constitution forbids," but the court has been unable to say with any coherence and consistency what else it forbids in a line of conflicting and vague 5-4 rulings.
These cases involving alleged discrimination against Asian applicants to gain greater diversity for other minorities could produce that long-sought clarity.
In 2003, in Grutter v. Bollinger, the court divided 5-4 on upholding race admissions criteria used to achieve "diversity" in a class at Michigan Law School. (On the same day, the court ruled 6-3 to declare Michigan's undergraduate admissions unconstitutional in the use of race in Gratz v. Bollinger.)
In Grutter, then-Justice Sandra Day O'Connor stressed that the court "expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That was 21 years ago, and the question is whether time has run out for race-based admissions. Justice Jackson, who served on Harvard's board of directors, has recused herself from the Harvard case but is expected to vote in the North Carolina case.
303 Creative v. Elenis
There often are cases that generate exhaustive coverage over a potential major shift in precedent that only peter out as justices divide and the majority takes an exit ramp. That was the case in the Masterpiece Cakeshop case in 2018, in which a baker was found to be in violation of the Colorado Anti-Discrimination Act for refusing to make a wedding cake for a same-sex couple due to his religious objections.
303 Creative has the makings of not just Masterpiece Cakeshop 2.0 but everything that the earlier case failed to achieve. For years, I have argued that these conflicts between discrimination laws and religious values should not be resolved under the religious clauses but under the free speech clause. Notably, this case involving Lori Smith, a graphic artist who declined on religious grounds to provide services to couples celebrating same-sex marriages, was brought to the court under both the religious and free speech clauses. However, the court accepted the case only to argue the free speech grounds — raising the likelihood of a major free speech case in the making.
The court's new docket also is populated with other major cases that are standouts:
- Moore v. Harper involves a challenge to the authority of state courts to set aside congressional maps in North Carolina. Some have argued that such judicial review is unconstitutional under the elections and electors clauses because it refers solely to "legislatures" in setting such rules or districts.
- Sackett v. Environmental Protection Agency. In 2012, the Court allowed the Sacketts to challenge an EPA compliance order concerning navigable waters on their property in Idaho under the Clean Water Act. A new challenge to the Ninth Circuit test could redefine the key meaning of "waters of the United States."
- Andy Warhol Foundation v. Goldsmith will ask the court to decide whether a work of art is considered "transformative" for the purposes of the fair-use doctrine when it expresses a dissimilar meaning or message from the original source. The case involves Lynn Goldsmith's photo of the musician Prince.
- In Haaland v. Brackeen, the court must decide whether placement preferences based on race under the Indian Child Welfare Act of 1978 violate the Constitution.
Some of these cases are unlikely to track the common narrative of a rigidly ideological court. Indeed, media coverage often exaggerates that narrative. While Chief Justice Roberts is often called "the swing vote" on the court, Justice Neil Gorsuch may be more unpredictable and impactful. Last term, he dissented in key cases, often writing vigorous dissents with his more liberal colleagues.
The liberal justices prevailed in major cases last term with support from conservative colleagues on issues ranging from upholding a Biden administration policy ending the "Remain in Mexico" decision to upholding Health and Human Services' mandatory vaccine rule for health care workers.
Moreover, 29 percent of the cases were decided unanimously. While that is a decline from other years, it still reflects almost a third of the cases brought before the court. While Roberts and Justice Brett Kavanaugh voted most often together (95 percent of the time), Justice Elena Kagan voted almost half of the time (48 percent) with Roberts.
That does not mean familiar ideological divides will not continue to define key cases — or fuel some anger. Last term's decisions led Erwin Chemerinsky, dean of the UC Berkeley School of Law, to denounce the conservative justices as "partisan hacks." Yet, the six conservatives are no less partisan than the three liberal justices voting predictably together in dissent on such cases. They are all maintaining views of jurisprudence that fulfill their oaths to faithfully follow the Constitution.
None of that is likely to quell hate directed at the justices, rage that led to an attempted assassination of Justice Kavanaugh in June. As a new majority brings its own clarity to long-disputed areas, additional cases will be overturned. Such shifts have occurred on changing courts in the past with rejections of long-standing precedent. Yet, every overturned precedent likely will be treated as sacrosanct and inviolate despite years of conflicted rulings. It will not be the interpretations but the integrity of the justices that most likely will be attacked.
When it comes to the court and the overturning of precedents, we have learned to hate the way described by Queen Margaret in Shakespeare's "Richard III" — "Think that thy babes were sweeter than they were; And he that slew them fouler than he is."
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
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The Court will also be welcoming a new justice: Justice Ketanji Brown Jackson.
Among the cases listed above awaiting the Court will be a dispute that returns the issue of free speech and LGBTQ rights to the court.
So Jackson recused herself from sitting on a case involving Harvard, but Barrett didn't recuse herself from a case involving abortion. Ah, the integrity of the SCOTUS.... .
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A long time ago John Kennedy made the case for loyalty to the Constitution over loyalty to religion.
[deleted]
And he kept that promise. Sadly, the recent conservative Supreme Court justices cannot say the same. They stick to what they're best at, lie, lie, lie, deny, deny, deny.
Deny, Deny, Deny: Joey Bishop/Imagene Coca - YouTube
Oh, but they have. You would have been one to question Kennedy's ability to leave his religion out of his presidential duties. In those days it was the Protestant majority. Today it's the anti-religious left. In post 1 I featured our newest member on the Court. I'm sure you prefer her...she's so woke that she couldn't define what a woman was.
Try and think that through. I trust you can figure out the difference.
That is not what a supreme court justice should do, they are to deal with whatever comes before them, debate it and give opinions not sit out, if she feels she can't be impartial then decline a final opinion.
Barrett didn't recuse herself from a case involving abortion
So Jackson should also recuse herself being pro abortion.
This recusing oneself, as a supreme court justice, is setting a terrible precedent. Is she doing this to force, by public opinion, other justices to recuse themselves in future cases?
She was on the Harvard Board when it implemented the policies being litigated. She’s practically a party in the matter. Hard for anyone to be impartial in that situation.
I have no idea what you mean.
Barrett should have recused herself because she claimed during her confirmation hearing that Roe was settled law, it was precedent and only activist judges would try and overturn precedent based on their own personal ideology. Of course, anyone who knows rightwing conservatives should also know that they don't give a fuck about lying as long as they get their desired outcome. So, shame on any Democratic lawmakers who believed her, though I doubt there were many if any. Sadly, they didn't have the numbers at the time to stop such a lying sack of rightwing religious conservative filth from being confirmed by rightwing religious conservative Republicans.
“Lovely lady, what do you expect? I’m a snake. Snakes bite. That’s what snakes do. It’s our nature. You knew I was a snake when you picked me up.” - Giggling, ecstatic rightwing conservatives everywhere laughing at the gullible liberals who actually believed their lies.
I understand that, but this doesn't just involve Harvard.
If she is trying to set the stage in the future, that any conflict of interest in a supreme court justice should mean automatic recusal, then wouldn't that be also considered a backdoor attempt at packing the court.
I'm not for justices recusing themselves no matter what their leaning, but we have several here that have already made the comparison and would likely demand justices recuse themselves just on which way they lean.
And it's statements like this which reveals that you really know nothing about how the law actually works...
As a lower level judge what she said is the absolute truth... (too bad liberal lower court judges don't believe that way but that's another story)
Once she became a supreme court justice, there is NO precedent she is bound by...
That goes for all of them including Jackson... (of course Jackson clearly displayed her unwillingness to follow precedent during her term as a US District Judge)
So either you have no understanding of the courts, or you do, and have different allowable standards of how a judge should rule based upon your opinions of the political position of the judge... (conservatives justices are all bad - liberal justices are all good)
There can be no other answer...
You mean a case that was unconstitutional and wrongly argued to begin with?
Why should ACB recuse herself?
probably because some think they know how she will rule and don't like it, thus making her illegitimate.
I dunno.
I just don't want to assume.
Because of her strong anti-abortion history and the things she "forgot" to expose at her vetting.
A Rachel Maddow report that even admits she made the disclosure anyway?
don't hurt yourself reaching.
But since you aren't a massive hypocrite, I'm sure you can point to your calls for Ginsburg to recuse herself because of her strong pro abortion rights history, right?
Wow! A compliment from Sean. "But since you aren't a massive hypocrite...." You mean, of course that I'm just a smaller hypocrite. Gee, thank you so much, you're so gracious.
What I don't believe in is a Supreme Court that wants to turn the clock back to the 19th century. What's next on the backward facing agenda?
So you didn't call for Ginsburg to recuse herself and were just playing the partisan? Who would have thought that?
ieve in is a Supreme Court that wants to turn the clock back to the 19th century
Last time I looked, 1973 isn't the 19th century, so I'm really confused how allowing people to vote on the laws they live under constitutes "turning the clock back to the 19th century? " Better than turning it back to the mid 20th century and allowing unelected judges impose their morals on the entire country I guess. But as we know from our debates, I believe in democracy and you support authoritarianism, so I guess it's not a surprise we disagree.
I'm capable of TOLERATING authoritarianism as practised in China because I live here quite happily since I neither fear nor hate communism or communists (even though I am NOT a communist), but I SUPPORT the form of democracy as practised in the country of my birth and citizenship (which I will not give up), Canada. You can have YOUR American form of democracy - I've been watching how it's been going.
By the way, I understand that the SCOTUS decision to scrap Roe v Wade has triggered some 19th century laws on abortion in some States.
Judge Jackson protested at Harvard against flying the Confederate Flag. Should she recuse herself from any case regarding it?
The article says she disclosed it.
I'm not sure they're actually that old.
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