Brace yourself

Opinion You thought the Supreme Court’s last term was bad? Brace yourself.
By Ruth Marcus
Deputy editorial page editor
September 30, 2022 at 9:00 a.m. EDT

The cataclysmic Supreme Court term that included the unprecedented leak of a draft opinion and the end of constitutional protection for abortion would, in the normal ebb and flow, be followed by a period of quiet, to let internal wounds heal and public opinion settle.

That doesn’t appear likely in the term set to start Monday. 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 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: “Very far, very fast,” said Donald B. Verrilli Jr., who served as solicitor general under President Barack Obama. “I hope the majority takes a step back and considers the risk that half the country may completely lose faith in the court as an institution.”

Maybe it will, but for now, the court is marching on toward fresh territory, taking on race, gay rights and the fundamental structures of democracy — this even as the shock waves of the abortion ruling reverberate through our politics and lower courts grapple with a transformed legal regime. And there’s every indication that the court intends to adopt changes nearly as substantial — and as long sought by conservatives — as those of last term.


Of course, blockbuster cases can fizzle. Even if four justices vote to hear a case, the need to secure a fifth vote for an eventual majority can force incremental rulings over bold proclamations. But a six-justice supermajority means that Chief Justice John G. Roberts Jr., the most moderate of the conservatives, can’t apply the brakes alone, even in the relatively few instances where he might be so disposed. Justice Brett M. Kavanaugh is the justice most likely to join Roberts in defecting from the conservative fold, but Kavanaugh’s approach has more often been to put a comforting gloss on the majority’s version — and then sign on to it anyway.

In assembling its cases for the term, the conservative wing has at times displayed an unseemly haste — prodded by conservative activists who have seized on the opportunities presented by a court open to their efforts to reshape the law. 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’re impatient,” Harvard Law School professor Richard Lazarus said of the conservative justices, especially the longest-serving, Clarence Thomas and Samuel A. Alito Jr. “They’ve spent a lot of time waiting for this majority to happen, and they don’t plan to waste it.”

If so, 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 and hurried path, it risks deepening the very questions about the court’s legitimacy that have tormented the justices — divisions reflected in the bellicosity of their written work and that have erupted, in recent weeks, 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 of the remaining shreds of the Voting Rights Act.

Both implicate the same fundamental question: Does the Constitution and federal law impose an unyielding insistence on colorblindness? Or should the nation’s history of racial discrimination and its lingering pernicious effects permit some flexibility to allow consideration of race?

This majority is certain it knows the answer. Race is a triggering issue for the conservative justices, one that rivals abortion in the intensity of response that it evokes. They have made a near fetish of Justice John Marshall Harlan’s famous 1896 admonition in Plessy v. Ferguson that “our Constitution is colorblind” — somehow 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.

And no justice is more hostile to that idea than Roberts. His much-vaunted incrementalism has rarely manifested itself in race-related cases. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he declared in a 2007 case rejecting a school district’s effort to achieve racially balanced classrooms. “It is a sordid business, this divvying us up by race,” he wrote in a 2006 Voting Rights Act case.

The affirmative action case, to be argued Oct. 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.

“Student body diversity is a compelling state interest that can justify the use of race in university admissions,” Justice Sandra Day O’Connor wrote for the majority, echoing the position of Justice Lewis F. Powell Jr. in the 1978 Regents of the University of California v. Bakke ruling. 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.

Just as lawyers for Mississippi, after the death of Justice Ruth Bader Ginsburg, urged the newly constituted court to use Dobbs v. Jackson Women’s Health Organization to overturn Roe, those challenging the Harvard and UNC admissions programs have taken direct aim at Grutter. Their brief invokes Brown v. Board of Education, the landmark school desegregation case, 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’s.”

This is jawdroppingly 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.

Go back to Chief Justice Earl Warren’s language for a unanimous court in Brown: “To separate them [schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” That is not what happens to applicants rejected by Harvard, however aggrieved they might feel.

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.

Don’t count on that swaying this court. “One of the striking things in this area is that originalists do not bring their usual apparatus to bear on these questions,” said Yale Law School professor Justin Driver.

The second race case, to be argued Oct. 4, concerns Section 2 of the Voting Rights Act. It, too, demonstrates how newly aggressive conservative states and other parties are pushing the majority to deploy the equal protection clause not as a weapon for assuring minority rights but as a guise for retrenching on them.

Over the past decade, the court has put the Voting Rights Act through the shredder. In 2013, in Shelby County v. Holder, the court eviscerated the law’s central mechanism, known as Section 5, which required jurisdictions with a history of voting discrimination to obtain advance federal approval before changing voting rules. Roberts, who wrote the opinion, offered assurances that it in “no way affects the permanent, nationwide ban on racial discrimination in voting” in Section 2 of the law.

But Section 2, which prohibits any voting practices that result in the “denial or abridgment” of the right to vote on account of race, hasn’t fared much better. 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.


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