The reversal of the Supreme Court and the role of the judiciary in the era of changing the law, and what the public perceives about it
The public will be able to view oral arguments in person on Monday, and the metal barricades put up to keep demonstrators out of the plaza have been removed, which is good news for the Supreme Court.
The reversal of a 50-year-old precedent by the court changed the way women’s health is seen, and other people are confused about what normal means now.
Critics say the court is unrecognizable because an aggressive conservative majority is moving the country backwards and, in some instances, erasing long-held rights.
Pointing to the abortion case – Dobbs v. Jackson – Holder said it was an example of the court “not acting in a normal, appropriate way,” which he said would have entailed following precedent and taking into consideration that people had ordered their lives around Roe v. Wade for a half century.
Conservatives are celebrating the example of Donald Trump’s promise to change the judiciary. They believe the right side of the bench is correcting errors of the past, lawfully returning the court’s focus to the text and history of the founding era and interpreting the Constitution in accordance with its original public meaning.
Conservatives expect to make new headway as a result of a new normal where they are allowed to expand the free exercise clause, work towards a color blind society and diminish the administrative state.
John Malcolm of the Heritage Foundation told reporters that the left had its way for a long time. He says liberals are questioning whether the legitimacy of the court is legit.
The decision-making process of the court is unknown because of the public dynamic in recent months. All eyes are on three justices in particular: Roberts, Brett Kavanaugh and Amy Coney Barrett. They have emerged as the median justices in certain areas of the law, despite being conservative. The story of the new term will be whether justices tap the brakes in the coming months.
Last month, Roberts referred to the court’s current docket as a “nice batch” of cases but went into little detail. A closer look shows that the issue of race runs through a number of the most anticipated disputes.
The court was focused on the basic aspects of the Voting Rights Act while liberals were facing tough odds. Their forceful, if defensive, position may foreshadow arguments later this month over racial affirmative action in higher education.
The Supreme Court voted to block a lower court ruling that would have ordered a new map for the election in just nine months. That was too much for Chief Justice John Roberts, a longtime critic of the Voting Rights Act, but who this time dissented along with the court’s three liberals. He said he could find “no apparent errors” in the way the lower court applied existing precedents.
“Black voters and white voters alike vote for different candidates, particularly when Black candidates are on the ballot, because voting is racially polarized in Alabama,” says election law expert Richard Pildes. He says that it “triggers the Voting Rights Act.”
Now supporters of voting rights are fearful that the justices are poised to make it much more difficult for plaintiffs to challenge maps under Section 2.
The case has a dispute over the state of North Carolina’s congressional map, which a lower court invalidated. The court replaced the map that was illegal with one that was more favorable to Democrats.
Attorneys representing Black voters argued in court papers that the courts should not blink in the face of race discrimination in voting, as it might be uncomfortable.
The Supreme Court Sets a Sky-High Standard before Overruling State counterparts: A Comment on Justice Alito, Gorsuch, Thomas, Katyal
The experts for her side drew up plans that complied with the traditional principles of drawing districts, namely compactness, population equality, contiguity, and respect for communities of interest where race was not the main factor.
The NAACP Legal Defense Fund said that ignoring race is one of the ways admissions policies perpetuate racial inequalities and the unjust advantages that have always fallen along racial lines. “It also denies all Americans the ability to leverage our greatest strength as a country – our diversity.”
Going into this week’s oral arguments, at least three justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, had expressed sympathy for the Republican Party’s position, but the views of the court’s three others conservatives were less clear. So on Wednesday, Neal Katyal, a former acting solicitor general representing groups who oppose the doctrine, proposed a compromise: that the Supreme Court set a “sky-high” standard before overruling its state counterparts. He said that it was the ultimate insult to state sovereignty to say its own court got things wrong.
He said that the universities award large racial preferences to African Americans and Hispanics.
The Colorado State Supreme Court Rules Discriminating Between Artisans and Commerce Using the Laws of the Same-Sex Marriages Case
At Wednesday’s argument, Justice Samuel Alito appeared to reject that premise. He accused elected state court judges, like those in North Carolina, of being political actors themselves. “There’s been a lot of talk about the impact of this decision on democracy,” said Justice Alito, who has given openly partisan speeches to outside groups and voted consistently in alignment with Republican policy priorities. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”
The baker refused to make cakes to celebrate same sex marriages and brought the case. The Supreme Court ruled in favor of the baker, but the ruling was tied specifically to the facts of that particular case and the justices left a decision concerning whether business in general could decline services to same sex couples nationwide for another day.
Now a graphic designer in Colorado named Lorie Smith, who runs a company called 303 Creative, seeks to expand her business to create websites designs for weddings. She does not want to work with same-sex couples because of her religious objections. She has written a webpage explaining why she won’t create such websites, but under a Colorado public accommodations law, Smith says she cannot post the statement because the state considers it illegal.
According to court papers, the case asks if governments can force artists to speak or stay silent when they enter the marketplace. Artists like painters, photographers, writers, and musicians can’t be forced to speak messages that violate their religious beliefs according to Waggoner.
The Colorado Attorney General argued in court papers that the state’s Anti-Discrimination Act protects Coloradans who buy goods from businesses open to the public.
“Businesses are free to decide what services to offer,” he said. The Act only requires the company to sell whatever product or service it has to offer to all regardless of customers’ protected characteristics.
Section 2 Voting Dilutions: The Case for Integrity and Disparity in the Era of White Voting, a Call to the Supreme Court
They say that Section 2 has been instrumental in paving the way for minority voters to more fully participate in the political process and that it represents a safeguard against maps that appear to be neutral but actually entrench racial polarization.
He thinks that if a challenged practice can be explained by race, then it must be established as an irregular practice.
“Black residents in Mobile, Montgomery and the greater Black Belt share deep historical, cultural and political connections,” Khanna wrote. “They could easily elect their preferred candidates in a compact congressional district drawn consistent with traditional redistricting criteria,” Khanna said.
“Adopting a purportedly ‘race-neutral’ redistricting baseline would serve only to submerge long-oppressed minority groups into districts where they are consistently outvoted by the very majorities that have discriminated against them for centuries,” Khanna said.
The challengers are supported by the Biden administration, which noted in briefs that the current framework governing Section 2 vote dilutions has stood for more than 35 years.
After the Supreme Court ruled in 1980 that voting rights advocates had to prove intentional discrimination in order to invalidate an electoral system, Congress amended the law to make clear that minority voters only have to prove a discriminatory result — a considerably easier thing to do than proving intentional discrimination. Discriminatory result has been the standard since then, upheld by the Supreme Court and enforced by the lower courts.
Alabama’s arguments range from narrow to more extreme about interpreting the 1982 amendments to the Voting Right Act.
One extreme argument, Pildes says, is that the Voting Rights Act doesn’t apply at all to legislative redistricting plans, even though the court has historically applied the act to those plans. “Or,” he says, “even more dramatically, that if [the Voting Rights Act] does apply in the way the lower court held here, then the act is unconstitutional.”
Countering that argument, Black voters contend that the state’s argument boils down to a topsy-turvy, inside-out proposition: that any effort to eradicate racial discrimination is unconstitutional because it has to emphasize considerations of race.
The Supreme Court’s three liberal justices – Latina, White and Black women – sought during voting-rights arguments Tuesday to wrench the narrative of a colorblind America from the conservatives who currently dominate the bench.
Section 2 of the VRA forbids electoral practices which deny a person the right to vote on basis of race and Alabama drew its congressional map after the 2020 census in the case of Tuesday.
“They were, in fact, trying to ensure that people who had been discriminated against, the freedmen during the Reconstruction period, were actually brought equal to everyone else in society. … That’s not a race-neutral or race-blind idea, in terms of the remedy,” she said.
The Case for a New State Constitution in the U.S. Supreme Court: Justice Neil Gorsuch vs Justice Clarence Thomas and a Democratic State Senator Veronica Klinefelt
The conservatives of the high court did not attack each other. Justice Neil Gorsuch didn’t ask a single question. Justice Clarence Thomas posed two relatively modest queries to Alabama Solicitor General Edmund LaCour and no questions to the lawyers challenging the Alabama plan, Deuel Ross and Abha Khanna, or to US Solicitor General Elizabeth Prelogar, also asking the justices to affirm the lower court.
Thomas, who is black, has argued that the rights of minorities are violated by racial remedies.
Jackson countered that notion. She said that the law was meant to ensure that no particular class of citizens had less opportunity than others. She said that Congress seems to be authorizing the consideration of race.
Veronica Klinefelt, a Democratic candidate for State Senate in suburban Detroit, was out knocking on doors as she tries to win a seat her party sees as critical for taking back the chamber. “I am tired of seeing cuts in aging communities like ours,” she told one voter, gesturing to a cul-de-sac pocked with cracks and crevasses. “We need to reinvest here.”
The struggle for the Michigan Senate and other battles for control of narrowly divided chambers in states that are battlegrounds has taken on greater importance at a time when state legislatures are more powerful. States increasingly move the direction of voting laws, abortion access, gun policy and other issues because Congress is often deadlocked and conservatives are dominating the Supreme Court.
The revised Electoral Count Act appears to have a majority that is impervious to the Senate’s ability to block it. But if the act passes, the danger does not end there. The Supreme Court can give state legislatures the power to run roughshod over the will of the people even if Congress closes the electoral vote certification loopholes.
Why, in other words, would the framers and ratifiers of the Constitution essentially reinscribe the fundamental assumption of the Articles of Confederation — the exclusive sovereignty of the states — in a document designed to supersede them? There is absolutely no support for the Constitution in the US Court of Appeals for the Fourth Circuit, as written by J. Michael Luttig in a recent essay for The Atlantic.
Arizona, Nevada, Michigan, Pennsylvania and other states have election deniers who are running. If the election deniers in any state win, then the United States would be on a glide path to a constitutional crisis. State officials and lawmakers have the ability to make a choice if the voters of Nevada or Wisconsin want Biden or another Democrat for president but they want Trump.
American democracy – and the evolving way in which it is executed – is facing a series of fundamental questions beyond former Donald Trump’s election denialism.
Is There an Alternative Way to State Courts? Sensitivity to the Electors Clause as a Question of State Legislatures
Alito believes that the worst thing we could do would be to state that there is a limit on state court action. It doesn’t mean anything as we have a standard.
“I’d like to step back a bit and think about consequences,” liberal Justice Elena Kagan said, “because this is a theory with big consequences. If the court finds that the legislature is engaging in the most extreme forms of gerrymander, there is no remedy for that. It would say that legislatures could enact all manner of restrictions on voting.”
Kagan added: “It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated.”
It sounded to me like six justices were skeptical of the argument that state legislatures can’t be bound by state courts when it comes to federal elections. Basically, everybody but Alito, Gorsuch and Thomas. Does that sound right?
Their sentiment emerged in cases two years ago from Pennsylvania and Wisconsin, as well as in preliminary action in the pending North Carolina case earlier this year. They were joined at times by another person.
Alito wrote in March of last year that it was likely the North Carolina legislators would prevail after the justices heard their petition. They all signed onto his opinion.
Referring for support to Rehnquist’s view of the Electors Clause in Bush v. Gore, Alito added, “There must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”
Rehnquist wrote a separate opinion going further, as he interpreted the Constitution’s Electors Clause, which says, “Each State shall appoint, in such Manner as the Legislature thereof may direct,” electors for president and vice president. That provision, Rehnquist said, “leaves it to the legislature exclusively to determine the method” for appointing presidential electors.
Thomas is the only member of the 2000 bench still sitting, and he was one of only two justices who signed onto Rehnquist’s opinion (the other was Antonin Scalia).
He stood by his view in Wednesday’s case despite a personal appeal by one of the lawyers who stood at the lectern to reject the state independent legislature theory.
“Justice Thomas, if I may, in two decades of arguing before you,” Katyal said, “I have waited for this precise case because it speaks to your method of interpretation, which is history.”
State court judges would end up being better off with Thomas’ alternative view of constitutional history.
Thomas also pointed to the political backdrop of the case, which began with the spurning of the Republican legislature’s congressional redistricting map. If the North Carolina court had taken a different approach, would he be defending it?
Last session, he authored the New York State Rifle & Pistol Association v. Bruen decision, based on a historical reading of the Second Amendment. The court declared for the first time a right to carry a weapon outside of the home.
Thomas was joined by five other justices on the right wing and they agreed that a state’s gun control measures must be based on the nation’s history. The second amendment requires courts to assess whether modern firearms regulations are in keeping with the original text and understanding of the law from the late 18th century.
Lawyer David Thompson, representing members of the North Carolina legislature before the justices on Wednesday, invoked Bruen for historical view of legislative power.
“We think the way to think about this is consistent with the court’s opinion in Bruen last term, where it looked very focused on the time of the founding,” Thompson said.
At the outset of his arguments, Thompson told the justices, “As Alexander Hamilton wrote in Federalist 78, the scope of legislative authority is governed by the commission under which it is exercised. The commission is contained in the United States constitution and federal law alone puts restrictions on the state legislature doing the work assigned to them.
Alito addressed larger concerns raised by the legal scholars who are against the independent state legislature approach as his questions reflected that sentiment.
Alito noted that many of the state supreme courts are elected. “And some states allow partisan elections. So there’s been a lot of talk about the impact of this decision on democracy. Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts … ?”
Gorsuch, a 2017 appointee of former President Donald Trump, similarly took a page from his past views regarding the constitutional muscle of legislatures.
The former president’s call to end the Constitution for a 2020 election redo has rightly been met with ridicule and eyerolls (although less condemnation from GOP leaders). But even with Trump still a top contender for a major party’s presidential nomination, there are plenty of other forces circulating with the potential to destabilize American democracy.
In order to vote they had to endure rain, cold, and all sorts of tricks, but that doesn’t mean voter suppression isn’t there. It simply means that you and the people have decided that your voice is worth fighting for.
In a rare bright spot for democracy in the wake of the US Capitol insurrection, Walker – unlike Trump after 2020 – conceded his loss. His defeat follows that of many of Trump’s election-denying candidates last month.
But looking to the next election, there’s a brewing fight over which states should have the first say in the presidential primary process. Democrats like President Joe Biden, for example, have argued they’re trying to democratize the process by giving more diverse states more influence. But the looming changes are primed to create another nuts-and-bolts dispute between the parties and raise questions for everyone else about why the parties should control the system in the first place.
The most core question raised this week is being put to Supreme Court justices. They dug into 3 hours of arguments to find out if everyone has been reading the Constitution the wrong way for two hundred years.
When the Supreme Court decided the 2000 presidential election for George W. Bush, a minority opinion from William Rehnquist popularized the theory.
“The way our democracy is supposed to work is people are supposed to choose the representatives, not the other way around,” said North Carolina Attorney General Josh Stein, who appeared on CNN’s “The Lead” with Jake Tapper Wednesday.
Stein said that if the legislature drew a congressional map differently, Republicans would have a 10-4 seat advantage over Democrats. The new Congress will be seated in January under the recently approved map as the delegation will be an even 7-7.
The Secretaries of State of Georgia and Their Implications for Early Voting: After the 2016 Iowa Caucus, Sen. Rick Santorum’s Campaign for Election Reform
The secretary of state of Georgia disagreed with that idea when he spoke to CNN on Wednesday.
Georgia’s results followed a disappointing finish for the GOP in Senate races in 2021 so it isn’t clear if this will force Republicans to reconsider their early voting efforts.
The Iowa caucuses, in addition to primaries in New Hampshire and South Carolina, are the first states to have their say ahead of the next presidential election in twenty years.
Biden wants South Carolina, the first primary he won in 2020, to go first and to move the primary in the increasingly purple state of Georgia much higher on the calendar.
Iowa Republicans oversaw delayed caucus results in 2012 that saw former Pennsylvania Sen. Rick Santorum robbed of momentum from his narrow win after it appeared, wrongly, that ultimate GOP nominee Mitt Romney had won the caucuses.
We need to get buy-in from both sides of the aisle, regardless of what we do. “They need to start doing some talking to each other.”
In this system, which has evolved over two hundred years but only offers voters two real choices, there’s a lot that happens before the people get to decide.
The theory was based on bad legal interpretation. The power to regulate federal elections is referred to as Legislature in the Constitution. Because of this word, the theory’s supporters claim, state legislatures have nearly unlimited power in that realm. But as Judge Luttig has noted, the theory has “literally no support” in the Constitution. The framers were worried that the state legislatures had too much power. The text was written so that it made references to the powers of the legislature, but it never implied that it was immune to review by the judicial branch.
Second, the theory is based on bad history. The best evidence its supporters offer is a two-century-old document that has long been known to be fraudulent. The plan for government that Charles Pinckney introduced at the Constitutional Convention is said to be a replica of the one he wrote in 1818. There was not a real deal in what he submitted. James Madison suspected this right away, and virtually all historians have examined it in the years since.
When the theory’s supporters sought to argue that the practices of early state legislatures proved that the side that won should be victorious, Justice Sotomayor said yes. If you rewrite history, it’s very easy to do.”
Another way to appreciate the absurdity of the theory is to consider who has come out for and against it. On one side, a large and bipartisan group of judges, government officials, former lawmakers, leading historians and constitutional scholars from across the political spectrum have rejected it. The chief justices of all fifty states, multiple Republican former governors and secretaries of state and civil rights organizations are included.
It is not safe to guess what the Supreme Court will do. But as Adam Liptak, the chief legal correspondent for The New York Times, noted in our discussion, a majority of justices might be ready to make some big changes to the way American democracy works.
But a majority of the court did seem prepared to take what would still be a big step: to let federal courts second-guess state rulings on state law in at least some cases where federal elections are at issue.
A lot of liberal groups were panicked that the Supreme Court took up this case. They were concerned that a conservative majority would throw out decades of election law and strip state courts of their ability to check the validity of Republican laws that they found to be undemocratic. Is there still any reason for them to be worried? Or was that fear exaggerated?