SEPTEMBER 28 (Portal) – The US Supreme Court last March dismissed an emergency motion by North Carolina Republicans to allow the use of a voting card they signed in November’s congressional elections, which a lower court has ruled invalid for unlawfully biasing Democrats had explained.
It was a short-term setback for North Carolina Republicans, but they will soon have a chance to win a major legal victory. Conservative Judge Brett Kavanaugh suggested at the time that judges should address the underlying litigation, which could give state legislatures across the country the ability to enact electoral policy with less judicial oversight — a Republican goal.
The Supreme Court announced in June that it would hear the case in its new term, which begins on Monday. This showed the increasing willingness of her conservative 6-3 majority to embrace divisive issues while steering the court down the right path.
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After a term in which his Conservatives issued blockbuster rulings restricting access to abortion and expanding gun rights, the court is returning from a summer recess and is poised to tackle more major cases. Potential verdicts in pending cases could end affirmative action policies used by colleges and universities to increase racial diversity on campuses, hamper a federal law called the Voting Rights Act, and make it easier for businesses to vote for LGBT people on the basis of the right to to deny free speech services.
“Judges take things that cause real conflict across the country, they take problems even if there’s a lot of media attention, even if it’s a hot topic — and they’re going to decide it anyway,” he told attorney Megan Wold and former legal clerk to conservative judge Samuel Alito.
The addition of three judges appointed by former Republican President Donald Trump — Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020 — gave the court its current conservative supermajority.
According to Irv Gornstein, executive director of the Georgetown University Law Center’s Supreme Court Institute, Kavanaugh now exerts outsized influence over the speed and limits of the court’s shift to the right. Gornstein called Kavanaugh “intermediate justice”.
He doesn’t appear as far to the right as Justices Clarence Thomas, Alito, Gorsuch and Barrett, while Chief Justice John Roberts — an incrementalist conservative — and Liberal Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson are to Kavanaugh’s left.
Gornstein noted during a recent panel discussion in Washington that Kavanaugh has begun to comment on the limits of majority voting. In the abortion decision, for example, he issued a separate opinion noting that interstate travel to obtain the procedure is constitutional.
“Make no mistake, for now and for the foreseeable future, this is Judge Kavanaugh’s court,” Gornstein said.
In the last term in office, 14 judgments were decided 6:3 between the conservative judges on the one hand and the liberals on the other. In strictly ideological terms, that’s an increase from 10 in the previous term, according to legal scholar Adam Feldman, who tracks court data on a website called Empirical Scotus.
In the abortion ruling, the court ruled 6-3 to uphold the restrictive Mississippi statute, although Roberts strongly opposed using the landmark 1973 Roe v. pick up calf. Similarly decided by a 6-3 vote were gun rights expansion, Maine and Washington state cases favoring religious rights, and another case that made it difficult for the US Environmental Protection Agency to legislate to combat climate change.
The court appears likely to continue to take up cases that are particularly important to conservatives, Feldman said.
“You can look for more ideological cases because even the weakest link on the right is still pretty far to the right,” Feldman added.
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A further transformation of US law seems likely in this context. Two cases could have profound implications for elections in 2024 and beyond.
In the case of North Carolina, which involves the Republican-drawn map of the 14 U.S. House districts, Republican lawmakers are arguing for a legal theory that’s gaining popularity among conservatives that could limit the power of state courts to act by state legislatures to review in relation to federal elections. Endorsing the theory would undermine democratic norms, critics say, even if Republicans at the state level have restrictive electoral policies and voting cards are skewed in their favor.
Alabama, in another case, is defending its Republican-drawn map of the state’s seven U.S. House districts, which a lower court struck down as discriminatory against black voters in violation of the 1965 Voting Rights Act.
Also closely watched are instances of racially aware student admissions programs used by Harvard University and the University of North Carolina to promote racial diversity on campus. A group led by an Anti-Affirmative Action activist objected to the policies as unlawfully discriminatory against Asian American and white applicants.
The court will hear an evangelical Christian web designer’s free speech statement that she cannot be compelled to create same-sex marriage websites under a Colorado antidiscrimination law. The court failed to resolve that issue in a 2018 ruling in favor of a Denver-area Christian baker who refused to bake a wedding cake for a gay couple on religious grounds.
Other significant cases could make it easier to build on land designated as wetlands without requiring a permit under the federal Clean Water Act, or in one case where taser maker Axon Enterprise Inc (AXON.O) involved in challenging the authority of federal regulators without first being subject to enforcement action.
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reporting by Andrew Chung in New York; Editing by Will Dunham
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