After a tumultuous term that ended in June, the U.S. Supreme Court returns Monday to officially open a second potentially stormy term.
It may be hard to beat last term's sustained and dramatic turn to the right, which included most prominently the overturning of a half century of precedents that had guaranteed women the right to terminate most pregnancies. But the court may well rock the boat again, despite the fact that it finds its approval ratings plummeting to historic lows.
So much so that Chief Justice John Roberts sought to defend the court's legitimacy while speaking to a conference of judges and lawyers in Colorado.
"Decisions have always been subject to intense criticism, and that is entirely appropriate," he said, "but lately, the criticism is phrased in terms of ... the legitimacy of the court." That, he said is "a mistake."
It is the job of the court to say what the law is, he said, "and that role doesn't change simply because people disagree with this opinion or that opinion." After all, he said, "You don't want the political branches telling you what the law is, and you don't want public opinion to be the guide of what the appropriate decision is."
A dissenting view from Justice Kagan
But Justice Elena Kagan pointedly disagreed with some of what Roberts said, noting in three separate appearances, that in her view a court's legitimacy has to be earned.
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Precedent should only be reversed in the rarest of cases, she said at Northwestern's Pritzker law school. Precedent, she said, is a "foundation stone of law," a doctrine of stability that "tells people they can rely on the law." But if, "all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown ... then people have a right to say, 'You know, what's going on there? That doesn't seem very law-like.'"
Or as she put it at Salve Regina University in Rhode Island: "The court shouldn't be wandering around just inserting itself into every hot-button issue in America, and it especially shouldn't be doing that in a way that reflects one set of political views over another."
Kagan can see, probably better than the rest of us, that there may well be more dramatic right turns again this year on everything from affirmative action to voting rights, clean water regulations, and an asserted First Amendment right to discriminate against same-sex couples in public accommodations. Indeed, the conservative court's appetite for hot-button issues appears unabated.
More hot-button issues
The question of precedent will rear its head again this term in a case challenging the affirmative action programs at Harvard and the University of North Carolina. For more than four decades, the court has ruled that race may be one of many factors considered in college admissions. But the issue is back this term before a very different court. The starkest question is whether the previous decisions were grievously wrong, the same rationale the court majority used last term in overturning Roe v. Wade.
In the affirmative action case, the challengers' case rests heavily on the Supreme Court's 1954 decision outlawing segregation in public schools. In other words, affirmative action, they say, is a form of discrimination.
Race is also at the heart of a new challenge to a provision of the Voting Right Act. Since 2013, the court has struck down or neutered key provisions of the landmark 1965 law. And it appears poised to do it again in a case that involves allegations that Alabama engaged in racial gerrymandering to limit the influence of African American voters.
Race is also central in a challenge to the 1978 Indian Child Welfare Act. Texas and a group of white adoptive parents are challenging the law because it mandates that where at all possible, Indian children are to be adopted or fostered in Indian homes.
There are two other huge cases before the court that will garner lots of attention. One is a test of civil rights laws that exist in most states requiring that when a commercial entity offers products or services to the public, the business may not discriminate based on race, religion, national origin, or gender.
Challenging these laws is Lori Smith, a web designer in Colorado who doesn't want to make designs for same-sex couples because she asserts that would violate her religious principles. But the Supreme Court is not hearing the challenge on the basis of Smith's claim to the free exercise of religion. Instead, the court has limited the case to Smith's claim that the law violates her right to free expression.
As Georgetown University's Kelsi Corkran puts it, because the court has limited the argument, "if Smith is correct that there's a free speech right to selectively choose her customers based on the messages she wants to endorse," the law would also permit a white supremacist to deny services to people of color because that, too, "would be a message of endorsement."
The fate of elections
Last but certainly not least, the court will hear a major election law case involving the so-called Independent State Legislature theory.
In the current case, the North Carolina Supreme Court struck down a congressional redistricting plan on the grounds that it was an unconstitutional racial gerrymander barred by the state constitution. The Republican leaders of the state legislature challenged the state court decision. They contend it violates Article I of the U.S. Constitution, which states that "the times, places, and manner" of congressional elections "shall be prescribed in each the state by the [state] legislature."
That argument, in its most extreme form, would mean that no state court and no state agency could interfere with the state legislature's version of election rules, regardless of the rules set down in the state constitution.
Opponents contend that would mean that state legislatures would be free to do almost anything they want, without any supervision by state courts, and without being able to delegate to local officials rules on how to run elections.
While state judges across the country frequently disagree, in this case the national Conference of Chief Justices, representing all the chief legal officers in the 50 states, has filed a brief opposing much of North Carolina's argument. They say state judges have the power under the U.S. Constitution to review state election laws.
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