US supreme court end

Mar 15, 2023

Consequential decisions regarding affirmative action, LGBTQ+ equality and the future of Native American tribes are expected

The US supreme court is gearing itself up for the final nail-biting month of its 2022-3 term in which it will deliver decisions that could transform critical areas of public life, from affirmative action in colleges to voting rights, LGBTQ+ equality and the future of Native American tribes.

As the court enters the traditional June climax to its judicial year, it is already being battered by ethics scandals and plummeting public confidence. Yet over the next four weeks the six rightwing justices who command a supermajority on the nine-seat bench are still expected to push at the limits of constitutional law in the pursuit of their ideological goals.

For the first time since the pandemic struck in 2020 the justices, dressed in their customary black robes, will appear in person to read out the opinions – as well as potentially some blistering dissents from the three liberal members.

It will be a stark contrast from last year, when the pillared chamber was empty amid Covid measures while the building was entirely walled off with security fences as a defense against protesters.

Those metal barriers were a visible indication of how polarizing the nation's highest court had become, with the devastating leak of the draft ruling in Dobbs v Jackson followed in June by the ruling itself which abolished the right to an abortion. Twelve months later, the dust from that eruption has barely settled over the court as the country finds itself bracing once again for another epic month of seismic judicial interventions.

Seasoned observers of the court have been taken aback by how determined the rightwing justices appear to crack on with their radical agenda. The pattern in previous courts has been for historic years to be followed by a period of relative calm before the next jolt strikes.

Yet for the second year running, the new six-to-three rightwing supermajority – forged by Donald Trump with his appointments of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – appears to be preparing for another volcanic June.

"I’m surprised that the supreme court is doing so much so quickly – in the past there have been institutionalists at the court who have put the brakes on," said Tara Grove, a law professor at the University of Texas at Austin.

Top of the pile of decisions being awaited with bated breath relates to the pair of challenges to the race-conscious admissions policies of Harvard and the University of North Carolina. Should the supermajority strike down affirmative action it would overturn 50 years of established practice – a chilling echo of its evisceration of half a century of settled law on abortion.

The challenges were brought by the conservative group Students for Fair Admissions, which says it wants to restore "color-blind principles" in how student bodies are chosen. Past affirmative action challenges have tended to focus on state universities and colleges, but this time private ones are also under the spotlight.

In this case, Harvard, a private university, has been challenged under the remit of Title VI of the 1964 Civil Rights Act which outlaws employment discrimination based on race and other factors.

"All institutions that receive federal funding – and that's all of them – are implicated," Grove said. "So the supreme court ruling could obliterate the consideration of race in admissions for every single higher education institution in the country."

The six conservative justices will drop their affirmative action bombshell at a time when the supreme court is already struggling to hold on to public trust. The court has been battered recently by ethics scandals over Clarence Thomas's acceptance of luxury holidays from a billionaire real estate developer and Gorsuch's sale of a property to the head of a law firm that has business before the court.

Even before those stories broke, surveys show that confidence in the justices was falling sharply.

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Despite the court's shaky hold on public opinion, the conservatives show no sign of letting up. A taste of what may be to come was given last week when, for the second time in a year, the rightwing justices delivered a blow to the ability of the Environmental Protection Agency (EPA) to combat pollution.

The two rulings restricting the EPA's authority, taken together, prompted the liberal justice Elena Kagan to remark caustically that the majority had appointed itself "the national decision maker on environmental policy".

The supermajority could similarly appoint itself decision maker over race in voting and equality for LGBTQ+ and Native American communities, all of which await decisions in June. In Allen v Milligan, the court appears poised to destroy one of the last critical vestiges of the 1965 Voting Rights Act, a crown jewel of the civil rights movement.

The case emerges from Alabama, the southern state where electoral maps are drawn in such a way that Black political representation is stymied and where no Black candidate has ever been sent to Congress from a majority-white district. Should the court side with Alabama, it would in effect be sweeping away protections against racial discrimination in elections and legalizing racial gerrymandering.

Other bone-jarring decisions could come in cases dealing with the right to equal treatment for same-sex couples and how children are handled in Native American families. The court will rule on whether the Colorado graphic design firm 303 Creative can withhold services on religious grounds from gay couples wanting to post wedding websites.

Brackeen v Haaland reviews whether Native American children can be forcibly removed from their families by child welfare agencies and placed in non-Native homes. That practice has a long, dark history in the US of being used to sap the strength of tribes.

In any other court, Moore v Harper would stand out as a blockbuster, though this June it seems just one among many such cases. It will test the debunked "independent state legislature theory" that has become a rallying cry for radical Republicans who believe that it gives state lawmakers almost total control over electoral maps and administration – including in federal elections.

The highest court of North Carolina, where the case originates, recently reversed its earlier decision on redistricting, which could render the supreme court's consideration of the case moot. Whatever the justices decide to do will be very closely watched by jurists and politicians alike, as it could have profound implications for the workings of US democracy, including next year's presidential race.