The massive jolt the new conservative Supreme Court supermajority delivered to the political system last week by overturning Roe v. Wade could just be the beginning.
The next targets could include voting rights, state courts’ power over elections, affirmative action and laws banning discrimination against LGBTQ people.
Even as the justices wrapped up their work and began their summer break Thursday following an unusually rocky term, the court signaled that its poor standing with the public won’t deter justices from taking up ideologically-charged disputes that could sow havoc in American politics.
In addition to overturning a nearly half-century-long federal right to an abortion, the court struck down gun-licensing laws in the most populous states, expanded state funding for religious schools, broadened the rights of public-school employees to pray publicly at work and halted lower court orders requiring two states to redraw congressional boundaries to give minority voters a better chance of electing candidates of their choice.
“What the court did just on abortion, guns and congressional power in the last eight days—that alone is momentous [but] if these justices stay together over the next few years, I don’t even think the first shoe has dropped,” University of California at Irvine Law Professor Rick Hasen said. “There’s so much more the Supreme Court could do to change American society.”
On Thursday, minutes after dealing a severe blow to President Joe Biden’s plan to reduce power-plant emissions to combat climate change, the high court announced it will take up a case from North Carolina next term that could give state legislatures vast power to draw district lines and set election rules even if state courts, commissions or executive officials disagree.
The so-called independent state legislature theory has lingered at the fringes of election-law debates for years, but was seized upon by former President Donald Trump in 2020 in his unsuccessful efforts to overturn Biden’s win.
“It’s kind of uncharted territory,” Hasen said. “It could have some far-reaching and unintended consequences.”
A sweeping Supreme Court ruling on the state-legislature issue might give state lawmakers the authority to appoint presidential electors, regardless of what state courts say or how a majority of a state’s voters cast their ballots.
In the 30 states with Republican legislatures, a ruling upholding the theory could give the GOP a big leg up in more routine House and Senate elections. But the effect in Democratic-run states could also be polarizing, with a redistricting commission in California put out of business and efforts by New York courts to limit gerrymandering reversed.
That case will join other polarizing issues already on the docket for next term: a new Voting Rights Act challenge from Alabama, a pair of cases challenging race-based affirmative action programs in higher education and a case brought by a web designer claiming that she should be able to ignore a Colorado law barring discrimination against same-sex couples.
As with many of the cases the Supreme Court decided in recent weeks, any of those cases could qualify as the most significant of an ordinary court term, but the justices have decided to hear them all.
Conservatives are almost giddy with the results of the first full court-term with six conservative justices since the court struck down much of President Franklin Roosevelt’s New Deal in the 1930s.
“This was the most successful term in my memory for the Constitution and the rule of law,” said Carrie Severino, president of the Judicial Crisis Network and a former law clerk to Justice Clarence Thomas. “We now clearly have a majority of the court that’s willing to enforce the Constitution as written, even when under unprecedented outside pressure, threats and intimidation—even an attempted assassination.”
A statistical analysis by Adam Feldman of the Empirical SCOTUS website found conservative victories in close cases at the highest level since the 2017 term. Feldman said the arrival of Justice Amy Coney Barrett has also made it easier for conservatives to get the four votes needed to take a case.
“I think the big story is that the court was able to pick up cases that could push policy in a much more rightward direction now,” he said.
The string of sweeping, far-reaching decisions this term has led many Democrats to charge that the court is losing its legitimacy with the public, but a former Senate Judiciary Committee counsel Mike Davis said that is simply sour grapes over the outcome.
“The Supreme Court is not supposed to be democratically representative by design,” said Davis, former nominations counsel to Sen. Chuck Grassley (R-Iowa). “They’re supposed to protect minority rights and us from government, whether it’s tyranny or anarchy….The Democrats, the left, are trying to delegitimize the Supreme Court because they lost control of it.”
Many on the left have seized on Thomas’ musings in the abortion case about the court revisiting rights to same-sex marriage or contraception, abortion-rights opponents said they don’t see the court having the appetite to delve into those issues anytime soon.
James Bopp Jr, general counsel for National Right to Life and a prominent litigator on life and campaign finance issues, said he was elated about the abortion ruling.
“I couldn’t be more thrilled this was culmination of the life’s work. I’ve been waiting for this day since I was a senior in law school,” Bopp said.
However, the conservative lawyer said he thinks Thomas’ thoughts about same-sex marriage and contraception precedents are no indication that those are issues the court plans to dive into.
“I learned a long time ago it takes five votes. You will notice that no other justice joined his concurrence,” Bopp said.
Severino agreed, saying she expects major legal battles over abortion at the state level, while the Supreme Court remains focused on other issues like expanding rights to religious expression. The court did just that this term in the so-called praying coach case out of Washington state and is poised to grapple with similar questions this fall in the case about the religious, Colorado web designer who is asserting a right to refuse to serve same-sex couples.
“Freedom of conscience is an area that is likely to continue to be really significant,” she said.
The high court and the conservative legal movement also seem intent on keeping up pressure to chop back the power of federal agencies to regulate everything from automobiles to marketing to pollution.
One of the Supreme Court’s final rulings Thursday, delivered 6-3 along the usual ideological lines, rejected the Biden administration’s plan to try to limit climate change by reducing greenhouse cases from power plants. The ruling was not as hostile to agency authority as some expected, but still left little leeway for the administration to implement carbon-emission limits without Congress.
Other cases that could be more damaging to federal agency power are looming. One case decided last month by the New Orleans-based 5th Circuit could upend the Securities and Exchange Commission’s enforcement efforts by requiring all such cases be brought in federal district courts, rather than in front of administrative law judges. That decision could wind up at the Supreme Court within a year or two, prompting the justices to consider whether Congress went too far in delegating power to the SEC.
“Anything that relies on a very general mandate from Congress is at risk,” Fordham University Law Professor Jed Shugerman said.
As more pitched battles loom, Severino also vowed that the enormous victory for the conservative legal movement in the abortion case after decades of strategizing, litigating, fundraising and organizing doesn’t mean that those advocates are going to declare victory and go home.
“It’s not about that one case. It’s about an approach to judging,” she said. “No one’s going to throw up their hands and say, ‘OK, we’re done.’”
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