The Hypersonic Supreme Court

Buckle your seat belt. Change has come to American government.” – The Lonely Realist

With Presidential power subject to increasing legislative and judicial constraints and with a post-midterm Congress certain to be deadlocked, a newly-empowered Supreme Court is increasingly holding the reins of government power. Its decisions will change America.

Those who believe that America’s laws and legal processes are durable and apolitical have had those beliefs shattered by the Supreme Court’s recent decisions (particularly Dobbs v. Jackson Women’s Health Organization (overturning Roe v. Wade)). America’s judiciary today is very much an instrument of partisan policymaking. The Federal courts were once regarded as a Constitutional stabilizer, a source of constancy with judges appointed serially and for life by consensus among successive Presidents and successive Senates, minimizing the influence of one political party over the other. Extreme partisanship and electoral vagaries have changed that. A fractured Congress and polarized Presidents proved unsuccessful at consensus-building. Justices consequently have been selected based on their partisan policy loyalty rather than their legal expertise. The 2016-2020 combination of a Republican President and a Republican Senate (that for 294 days refused to consider President Obama’s proposed Supreme Court nominee) led to the appointment by President Trump of three Justices and the creation of a distinctly partisan Supreme Court majority. The Court now has 5 originalist Republican-appointed Justices (who often vote together with Republican-appointed Chief Justice Roberts). With Congress and the President under the control of neither political party, the Supreme Court suddenly has achieved hypersonic speed, ascending to a “truly supreme” height in American government. It no longer is merely enforcing laws. It’s making new laws. It no longer is bound by existing precedent. It’s establishing wholly-new precedents. With Congress and the President divided, the Supreme Court has the final say on every law and every Constitutional question … and what it is saying mirrors the policy goals of those responsible for the appointment of its majority. Some have labeled it “The Mitch McConnell Court,” which is not the Supreme Court of the prior 70 years. Former (and soon again to be the next?) Senate Majority Leader McConnell transformed the judicial appointment process. As a result, President Trump appointed 28% of all currently-sitting Federal judges, in effect redefining 21st Century American democracy. The consequence is that both parties now follow the Mitch McConnell Rule: Control of the Senate means controlling judicial appointments. Doing so controls America’s democracy.

There are at least six notable cases on the Supreme Court’s docket this term (out of ~55) that have the potential for effecting major change.

Perhaps the most prominent are a trio questioning whether race may be a factor in university admissions and in drawing voting districts (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina; Merrill v. Milligan). The expectation is that the Court in all three will say “No, race no longer can be a consideration.” As Justice Samuel Alito said during oral argument in the Harvard and UNC cases, “College admissions are a zero-sum game and if you give a ‘plus’ to a person who falls within the category of under-represented minority, but not to somebody else, then you are disadvantaging the other student.” The same Supreme Court majority also is likely to hold in favor of Alabama in Merrill v. Milligan, validating Alabama’s 2021 redistricting of its 7 seats in the House of Representatives, a redistricting that packed black voters, who constitute ~27% of registered voters, into a single black-majority district. Upholding the redistricting would permit State legislatures in all 50 States to gerrymander electoral maps with no Federal limitations of any kind.

A further application of the Federalism vs. States’ Rights tension is Moore v. Harper, where the Court is being asked to allow State legislatures to set the rules for Federal elections even if those rules violate State constitutions, relying on an interpretation of Article 1 of the Constitution that says that “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” Consider the potential for electoral chaos should the Supreme Court decide that, in addition to allowing States to use different criteria to draw disparate voting maps (the potential outcome in Merrill v. Milligan), each of the 50 States’ governments can freely violate their own constitutions both in deciding voting rules and in gerrymandering electoral maps.

A fifth case (303 Creative v. Elenis) questions whether a business owner’s alleged First Amendment free speech right in denying services to same-sex couples ought to prevail over Colorado’s anti-discrimination laws (the Supreme Court having previously ruled in Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission et al. that religious beliefs are Constitutionally prioritized over anti-discrimination laws).

A sixth case, Sackett v. Environmental Protection Agency, raises the question of whether wetlands are “waters of the United States” under the Clean Water Act of 1972, which addresses the extent to which Congress can delegate powers – here, environmental protection powers – to Federal agencies. Oddsmakers are betting that a Supreme Court majority will limit the EPA’s authority by substituting a narrower test of Federal rulemaking (one previously advocated by Justice Scalia) over the broader one used by the Ninth Circuit Court of Appeals in holding in favor of the EPA’s interpretation of the CWA.

Historically, the Supreme Court has not been an activist law-maker. It instead has been a law-interpreter, choosing to docket those cases least likely to be disruptive of established precedent and, in those cases where it has chosen to re-address a prior decision, doing so sparingly. Today’s Court is taking a different approach. It is actively seeking to reverse a number of prior precedents with which its Justices disagree (as Chief Justice Roberts noted in his concurring opinion in Dobbs when he stated that he would have taken “a more measured course”). Prior Supreme Courts generally chose to hear only those cases that were “ripe” for Supreme Court consideration, for which there was no prior Supreme Court precedent, and after Courts of Appeals had had an opportunity to wrestle with the issue. Cases that have found their way to this Court’s docket over the past two years have been more blatantly activist and political. The politicization of the Supreme Court and its processes (highlighted by the leak of the Dobbs opinion) has at once undercut the Court’s legitimacy and empowered it to the pinnacle of American government. Change indeed has come to America. More change is likely to follow.

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Finally (from a good friend)

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