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John Roberts skewers Harvard attorney's comparison of race and music skills as qualities in applicants
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Editor’s Note: This story originally published on June 5, 2023. It has been updated to reflect additional developments.
CNN —
As the Supreme Court races to issue all outstanding opinions by a self-imposed early July deadline, there is little doubt that the conservative majority is prepared to continue the right-ward trajectory on areas of the law.
The real question is just how far and how fast the 6-3 majority wants to go.
As is the case every term, there have already been some unanimous opinions. And there have been decisions that scrambled usual vote patterns leading to odd bedfellows.
In one closely watched elections case, Chief Justice John Roberts penned a decision that surprised court watchers who believed he was poised to significantly cut back a key provision of the Voting Rights Act. He did not. In another case, a 7-2 court rejected a challenge to a federal law that prioritizes the placement of Native American children with Native American families in child custody provisions. Only conservative Justices Samuel Alito and Clarence Thomas dissented.
But some of the cases that most capture the public’s attention have yet to be decided and they are likely to lead to fiery opinions and dissents read from the bench. In addition, they will come down as the court finds itself in the center of a spotlight usually reserved for members of the political branches.
“There is little question that this court will ignore its past precedent and undermine protections for the LGBTQ community, racial minorities and voters,” said Jessica Levinson, who teaches at Loyola Law School in Los Angeles. “The question is whether the court takes a knife or an assault rifle to those protections.”
The rulings this spring will continue the ultimate realization of former President Donald Trump’s success in adding three appointees to the bench and cementing a conservative majority that could last decades.
But the fact that the votes of Justice Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have contributed to a hard right turn on the court has led critics to accuse the justices of trading the stability of the law in favor of policy preferences.
Last year, after Trump’s new nominees voted with the majority to overturn some 50-year-old abortion precedent, liberal Justice Elena Kagan launched a warning before an audience in Montana.
“I think people are rightly suspicious if one justice leaves the court or dies and another justice takes his or her place and all of a sudden the law changes,” Kagan said. “It’s like: what’s going on here? That doesn’t seem like law.”
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Supreme Court Justice Samuel Alito discusses leaked draft opinion ahead of controversial ruling that overturned Roe v. Wade
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Accusations of the politicization of the court have only intensified. Protestors continue demonstrating at the justices’ doorstops and reporters have uncovered links of potential ethics violations of justices. Democrats in Congress are also threatening to inject themselves into the internal affairs of the court to push for ethics reform.
The liberal justices, behind the scenes, are undoubtedly trying to figure out how to best utilize their fire power in dissent. They could also be working feverishly to pick off a conservative vote or at least narrow the legal scope of an opinion. Last month, for instance, in a closely watched environmental case, Kavanaugh sided with the liberals arguing that the majority had acted too broadly in curbing the reach of the Clean Water Act.
But that dispute laid bare the current reality for the liberals: Even if they succeed in getting a conservative to side with them, there are still five solid votes to the right to carry the day.
Here are some of the remaining cases to be decided:
Affirmative action in college admissions
The court is considering whether colleges and universities can continue to take race into consideration as a factor in admissions, a decision that could overturn long standing precedent that has benefited Black and Latino students.
At issue are programs at Harvard and the University of North Carolina that the schools say help them to achieve diversity on campus.
During oral arguments, the right side of the bench appeared ready to rule against the schools. Such an opinion would deliver a long-sought victory for opponents of affirmative action in higher education who have argued for decades that taking race into consideration – even in a limited manner – thwarts the goal of achieving a color-blind society.
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Hear from the activists fighting to end affirmative action
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Can businesses deny services to LGBTQ customers
At the center of another case is a graphic designer, Lorie Smith, who seeks to expand her business and create custom websites to celebrate weddings – but does not want to work with gay couples out of religious objections to same-sex marriage.
Smith has not yet moved forward with her new business venture because of Colorado’s public accommodations law. Under the law, a business may not refuse to serve individuals because of their sexual orientation. Smith, whose company is called 303 Creative LLC, said that she is willing to work with all people, regardless of their sexual orientation, but she draws the line at creating websites that celebrate same-sex marriage because expressing such a message would be inconsistent with her beliefs.
The state, and supporters of LGBTQ rights, argued that Smith is simply seeking a license to discriminate.
The conservatives on the court seemed sympathetic at oral arguments to those put forward by Smith’s lawyer. They viewed the case through the lens of free speech and suggested that an artist or someone creating a customized product could not be forced by the government to express a message that violates her religious beliefs.
Giving state lawmakers unchecked power over federal elections
Moore v. Harper has captured the nation’s attention because Republican lawmakers in North Carolina are asking the justices to adopt a long dormant legal theory and hold that state courts and other state entities have a limited role in reviewing election rules established by state legislatures when it comes to federal elections.
The doctrine – called the Independent State Legislature theory – was pushed by conservatives and supporters of Trump after the 2020 presidential election.
The North Carolina controversy arose after the state Supreme Court struck down the state’s 2022 congressional map as an illegal partisan gerrymander, replacing it with court-drawn maps that favored Democrats. GOP lawmakers appealed the decision to the US Supreme Court, arguing that the North Carolina Supreme Court had exceeded its authority.
They relied upon the Elections Clause of the Constitution that provides that rules governing the “manner of holding Elections for Senators and Representatives” must be prescribed in “each state by the legislature thereof.”
Under the independent state legislature theory, the lawmakers argued, state legislatures should be able to set rules with little to no interference from the state courts.
The justices heard oral arguments in the case last winter and some of them appeared to express some support for a version of the doctrine. The justices could, however, ultimately dismiss the dispute due to new partisan developments in North Carolina.
After the last election, the North Carolina Supreme Court flipped its majority to Republican. In April, the newly composed state Supreme Court reversed its earlier decision and held that the state constitution gives states no role to play in policing partisan gerrymandering. After that decision was issued, the justices signaled they may dismiss the case.
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Biden’s student loan program
The Supreme Court is also considering two challenges to President Joe Biden’s student loan forgiveness program, an initiative aimed at providing targeted debt relief to millions of student-loan borrowers that has so far been stalled by legal challenges.
Republican-led states and conservatives challenging the program say it amounts to an unlawful attempt to erase an estimated $430 billion of federal student loan debt under the guise of the pandemic.
At the heart of the case is the Department of Education’s authority to forgive the loans. Several of the conservative justices have signaled in recent years that agencies – with no direct accountability to the public – have become too powerful, upsetting the separation of powers. They have moved to cut back on the so-called administrative state.
In court, Roberts as well as some other conservatives seemed deeply skeptical of the Biden administration’s plan.
Biden’s immigration enforcement priorities
Like other presidents before him, Biden sought to put in place immigration guidelines that prioritize which non-citizens to detain and deport because there are not enough funds to deal with the number of removable non-citizens in the country.
But in the latest battle between the Biden administration and conservative states on immigration, two Republican attorneys general in Texas and Louisiana challenged Biden, arguing that the policies conflict with immigration law.
Even if the justices rule against the administration, it may not change that much on the ground. That’s because the federal government does not have the resources to deal with some 11 million people in the states illegally.
Religious accommodation for postal worker
A former mail carrier, an evangelical Christian, seeks to sue the US Postal Service because it failed to accommodate his request not to work on Sundays.
A lower court had ruled against the worker, Gerald Groff, holding that his request would cause an “undue burden” on the USPS and lead to low morale at the workplace when other employees had to pick up his shifts.
There appeared to be consensus, after almost two hours of oral arguments, that the appeals court had been too quick to rule against Groff.
Already decided
In a surprise decision on June 8, the Supreme Court ordered Alabama officials to redraw the state’s congressional map to allow an additional Black majority district to account for the fact that the state is 27% Black.
The decision affords additional opportunities for minority voters to elect the candidate of their choice. Alabama currently has seven congressional districts, with six represented by Republicans.
The court had previously cut back on other parts of the law, considered the crown jewel of the Civil Rights Era, which was passed to provide equal opportunities regardless of race.
On June 15, the court rejected challenges to the law that was passed in part to correct the country’s past treatment of Indians and the separation of their families. The federal law requires state courts to abide by an adoption preference scheme – minimum federal standards – when considering child custody proceedings involving a child defined by law as an “Indian child.”
The preferences require state courts to first look at the child’s family, then other members of the tribe, and then other tribes when considering placement opportunities. Congress justified the law under Article 1 of the Constitution, which grants the federal government authority to regulate commerce with Native American tribes.
Non-Native couples seeking to adopt challenged the law on multiple fronts. The tribes feared the court could gut their sovereignty depending on how it rules. The justices, at oral arguments, seemed closely divided but did not seem inclined to strike the entire law.
