A new SCOTUS term
At 10 a.m. today, the Supreme Court justices return to the bench. Be warned.
After a summer away, and with Justice Ketanji Brown Jackson now one of the nine, the Supreme Court of the United States is due to start its new term today.
At 9:30 a.m., the court will release the orders from what is referred to as the “long conference” — the justices’ private conference where they consider which of the many petitions presented to the justices over the summer months they will actually take for review. The court has only granted 27 cases for this term so far, so there likely will be at least that many more cases granted now and in the months to come. To give an idea of what we’re talking about here, SCOTUSblog’s list of “Petitions We’re Watching” — is currently at nearly 150 cases — and that represents a small portion of the cases the justices actually reviewed. They’re likely to take somewhere around five to 10 of the cases.
Then, at 10 a.m., the justices will take the bench. For the first time in the nation’s history, when they hear arguments, white men will not be a majority on the court. A majority of the people on a court that regularly conditions the exercise of rights today on the historical practices around the time of the nation’s founding (or Civil War) will be people who were not even treated as full citizens at the start of our nation.
Despite Jackson’s presence, though, the court will have the same 6-3 conservative and, at times, reactionary — and, yes, partisan — majority that brought down Roe v. Wade last term.
One of the questions this week is what role Jackson — nominated to the court earlier this year by President Biden and confirmed by the Senate to replace retired Justice Stephen Breyer — will play on the court. Already, because of shadow docket votes over the summer, we’ve seen that she has generally voted in alignment with Justices Sonia Sotomayor and Elena Kagan, the two other Democratic appointees. Twice thus far, they’ve been joined on the losing side of 5-4 votes by Justice Amy Coney Barrett, a Republican appointee and the fourth woman on the court — setting up an interesting possible gender divide on the court to watch in the months and years ahead.
Oftentimes, a justice’s first year is more of a time to get up to speed and learn the ropes at their new job. For example, Jackson has not yet written anything in public orders from the court, even where she dissented from the court’s decision. Taking time makes sense: This is now likely Jackson’s job for the rest of her career — or even life. She will be working with these eight people (and, slowly over the years, by those who replace them) in conferences like the one they held last week and at arguments like the ones they’ll sit for later today likely for decades. The desire doubtless is to jump right in, but there are incentives for a new justice to move more slowly and intentionally — to find a path that will stand the test of time and help create the most success for their positions during their time on the court.
Nonetheless, Jackson and her Democratic colleagues are in a tough position with lopsided losing votes likely ahead of them on most ideologically divided cases. Republican appointees like Chief Justice John Roberts have long sought — and taken steps — to end affirmative action and eviscerate voting rights laws. This term will give Roberts and his colleagues their chance to do so. They also will have the chance to weaken nondiscrimination laws, at least in service to religious objections to LGBTQ equality. As with most terms, there will also be immigration cases, including a(nother) case that could diminish the administration’s control over immigration policy. And, there will be a(nother) case that could diminish tribal sovereignty — regardless of Justice Neil Gorsuch’s views.
What’s more, all of this will be happening in the run-up to and aftermath of November’s elections. Notably, the higher-education affirmative action cases will be argued on Halloween — seriously? — and the case over Native child welfare rights will be heard the Wednesday after the midterm elections.
There will be surprises, surely, but the bottom line is clear: The Republican appointees run the court, and they have made it plain that neither public opinion nor judicial modesty will prevent them from issuing extreme rulings when they so desire.
As with the Dobbs ruling unleashing havoc on abortion rights last term, these decisions will have real effects on real people, both in the short term and as the nation moves forward.
As the term begins, that reality must remain front and center.
Law Dork, with Chris Geidner, is independent, reader-supported journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a free or paid subscriber today.
ON MY RADAR: I took a late summer break before the term was to begin, but, of course, news was still happening and others were still publishing away. Some key pieces on …
… the Supreme Court:
It’s been almost 100 days since Dobbs. What has changed? (Errin Haines at The 19th)
Can Indian Country withstand the new Supreme Court? (Nick Martin at High Country News)
… Trump and Jan. 6:
Ginni Thomas falsely asserts to Jan. 6 panel that election was stolen, chairman says (Jacqueline Alemany at The Washington Post) … More on Ginni Thomas from NYT Opinion’s Charles Blow.
A Jan. 6 Judge Was Targeted in a SWAT Hoax. He Likely Won’t Be the Last (Zoe Tillman at Bloomberg)
Trump allies have interviewed nearly 200 election officials to probe for weaknesses (Jen Fifield at Votebeat)
… other news:
The story of one US governor’s historic use of clemency: ‘We are a nation of second chances’ (Amanda Waldroupe at the Guardian)
Radley Balko is starting a newsletter. Go subscribe:
If the Supreme Court goes the way I think that it will on Moore v. Harper, it will be the final nail in the coffin of democracy in this country, as Red State control of the country will be locked in for generations.