The Next U.S. Supreme Court: The Case for a Normal and Fair Treatment of Discrimination in the Early 21st Century
The public can watch oral arguments in person for the first time when the Supreme Court starts its new term on Monday and Chief Justice John Roberts is looking forward to it.
When the court overturned a precedent that had been in place for over 50 years, it changed the landscape of women’s reproductive health, it lowered the power of the federal agencies and it allowed new Second Amendment challenges.
Critics say the court is unrecognizable because an aggressive conservative majority is moving the country backwards and, in some instances, erasing long-held rights.
In an interview with CNN, the former attorney general said that he understood the chief justices desire to get back to normal. The court did something in the last term which is normal, but what is to come is something other than that.
Conservatives, on the other hand, are celebrating the manifestation of former President Donald Trump’s promise to reshape the judiciary. Correcting errors of the past, and returning the court to the text and history of the founding era, are what the right side of the bench is doing.
They look forward to making new headway as part of a new normal where conservatives expand the free exercise clause, work toward a so-called color blind society, and diminish the administrative state.
John Malcolm of the conservative Heritage Foundation believes that the left had its way for a long time. He says liberals are reacting to the conservative majority now by questioning the legitimacy of the court itself.
They seemed to find some support from two other conservative justices when they made their cases in the North Carolina case. Whether the most radical of the three views will prevail depends on whether the state judges will be involved in the elections.
The roots of the next potential U.S. Supreme Court showdown that could further weaken the Voting Rights Act’s protections against racial discrimination can be traced to a handful sentences by Justice Neil Gorsuch.
Race will also be a central theme when the court considers whether institutions of higher education can take race into consideration as a factor when considering admissions.
He and Roberts have joined in decisions narrowing the reach of the Voting Rights Act, the most significant being the court’s decision to dismantle Section 5, which had required states with a history of discrimination to get federal approval before changing election practices.
In January, a three-judge federal court panel ruled unanimously that Alabama could and should have created two compact congressional districts with a majority, or close to a majority, of Black voters: two districts instead of just one. Two of the judges on the panel were Trump appointees, the third a Clinton appointee.
The current map was challenged by people who said the Supreme Court should uphold the lower court’s opinion and say that race doesn’t necessarily mean equal protection under the Constitution.
“From what the Court has seen thus far, there is a strong merits case that at least some of the challenged districts in the Board Plan are unlawful” under Section 2, Rudofsky’s ruling said.
“As uncomfortable as the political reality in Alabama might be – and as strong the temptation to shut our eyes to the tenacity of racial discrimination in voting – the courts must not blink,” attorney Abha Khanna, representing Black voters argued in court papers.
The Colorado Civil Rights Defender argues that the Anti-Discrimination Act protects the First Amendment and the Constitution’s First Amendment: A case study of a Denver businesswoman who declined to make cakes for same-sex marriage
A second district that takes into consideration compactness, population equality and contiguity can be drawn up according to the experts who drew up the plan for her.
“Ignoring race as one of many factors to be considered in admissions policies perpetuates racial inequalities and the unfair advantages that have always fallen along racial lines – in and out of education,” Janai Nelson of the NAACP Legal Defense Fund told CNN. It denies all Americans the ability to leverage our strength as a country.
“Grutter was wrong the day it was decided” Consovoy argued, because it “departs from the Constitution’s original meaning, contradicts other precedents, has eroded over time and has no true defenders.”
He said that both universities give big racial preferences to African Americans and Hispanics.
In this case, any decision changing the authority of the General Assembly at the expense of judges applying state constitutional protections for voters could diminish the nation’s system of checks and balances.
That case was brought by a baker who declined to make cakes to celebrate same sex marriages. The Supreme Court ruled in favour of the baker, but they left a decision concerning whether businesses could decline to serve same-sex couples nationwide, based on the facts of that particular case.
A graphic designer in Colorado who runs a business called 302 Creative wants to expand her business by creating websites for weddings. Critically, however, she does not want to work with same-sex couples because she has religious objections to same-sex marriage. 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.
“These customers do not look, love or worship the same way,” Weiser said “but they all expect to participate in the public marketplace as equals.” He said that the law does not target Smith’s message and does not aim to suppress any message that a company might express.
The Colorado Attorney General argues in court papers that the Anti-Discrimination Act protects Coloradans who purchase goods from open-air businesses.
Businesses are free to decide what services they offer. “The Act requires only that the Company sell whatever product or service it offers to all regardless of its customers protected characteristics.”
Voting Rights in Alabama, and the Supreme Court’s Case against Section 2: Colored Blindness and the Role of Rascism
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 the 1982 amendments to the Voting Right Act.
The voting rights act doesn’t apply to legislative plans even though the court has applied the act to those plans before, says Pildes. “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.
During voting-rights arguments Tuesday, three of the Supreme Court’s liberal justices attempted to wrench the narrative of America being colored blind from the conservatives on the bench.
Tuesday’s case centered on a part of the landmark VRA, known as Section 2, that forbids electoral practices that deny a person the right to vote on account of race, as well as the US congressional map that Alabama drew after the 2020 census.
The freedmen were trying to ensure that other people in the society were treated the same as them. … That’s not a race-neutral or race-blind idea, in terms of the remedy,” she said.
Justice Sonia Sotomayor, the court’s first Hispanic justice, stressed that Section 2 was intended to ensure that “a particular racial minority … can equally participate.”
As a group, the high court’s conservatives largely held their fire. Justice Neil Gorsuch did not 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.
Elections Clause and the Black Community: A Response to Justice Richard Rehnquist, Antonin Scalia and Elena Kagan
Thomas, who is Black, has argued that racial remedies violate the Fourteenth Amendment guarantee of equal protection and, in practice, stigmatize the groups they are intended to benefit.
Jackson responded with something else. She said that the law was intended to ensure that no particular class of citizens had less opportunity than others, and that she did not think Congress was requiring race neutrality. She said it seemed like Congress was authorizing the consideration of race.
Alito said the worst thing we could do would be to say that there is a limit on state court action. It doesn’t mean anything, so 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 courts think that a legislature engages in extreme forms of political representation, there is no remedy for the violation of the constitution. It could say that the legislature could make restrictions on voting.
It might allow the legislature to be involved in the way the election results are calculated, and in the certification of elections.
It was thought by six justices on the right that they were likely to set boundaries of state judges in election controversies.
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 Kavanaugh.
When litigation continued, Alito wrote a letter for the trio as they dissented when the majority allowed the judicially ordered North Carolina map to take effect.
As the high court cut off recounts to determine the state’s Electoral College votes back in 2000, it said county recount standards varied too widely to meet guarantees of equal protection and due process.
It was not clear if the Clause said these rules would be prescribed by each State, or it stated that they would be left up to each State to decide. But that is not what the Elections Clause says,” Alito wrote. “Its language specifies a particular organ of a state government, and we must take that language seriously.”
One of the two justices who signed on to Rehnquist’s opinion was Antonin Scalia and he is the only one still sitting.
In Wednesday’s case, he did not retreat from his view, despite a personal plea by Neal Katyal, one of the lawyers who stood at the lectern to defend the North Carolina court action and reject the so-called 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.”
The president appointed Thomas in 1991 to suggest his view of constitutional history was better than that of state court judges.
The political backdrop of the case started with the spurning of the Republican legislature’s congressional map. Thomas asked Katyal if he would be defending the North Carolina court if it had taken a different tack.
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.
Joined by five other justices on the right wing, Thomas said a state’s gun control measures must be measured by the nation’s history, rather than modern claims of public safety. The Second Amendment right to bear arms, he wrote, “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding” dating to the late 18th century.
David Thompson invoked Bruen to explain the historical view of legislative power during the arguments before the justices on Wednesday.
The court’s opinion in Bruen last term, where it looked very focused on the time of the founding, is consistent with the way we think about this.
Alexander Hamilton wrote that the scope of legislative authority is guided by the commission under which it is exercised. Federal law alone has the power to place restrictions on state legislatures performing tasks assigned to them by the federal Constitution.
Alito asked some questions that reflected his sentiment, and also addressed the larger concerns raised by legal scholars who have cautioned against the independent state legislature approach.
Alito pointed out to Katyal that many state supreme courts are elected. “And some states allow partisan elections. There has been discussion about the impact on democracy. Do you think that it will increase democracy by transferring the political issue of districting from the legislature to elected supreme courts?
The views of former President Donald Trump were similar to those of the current one by his appointment to the Supreme Court, by the name of Neil Gorsuch.
And the “thing” Gorsuch wanted to flag was a question he said no one in the case had raised before the court: Who has the right to sue to try to enforce that key section of the landmark law?
The Arkansas redistricting case before U.S. District Judge Lee Rudofsky was a “strong” one, the Trump appointee noted in the 2022 ruling released more than a half-year after Gorsuch’s concurring opinion.
“It keeps me up at night,” says Doug Spencer, an associate professor of law at the University of Colorado, who tracks voting rights lawsuits and is concerned about the argument not to allow private individuals to sue under Section 2.
State and local governments can be hostile to racial minorities depending on how the courts rule in the Arkansas case. There will be a new world of possibilities for the Republican governments that want to cut back minority voting in the coming years. It’d be really hard to challenge a lot of what they might do.”
Private individuals are not mentioned when describing who enforces Section 2 in the Voting Rights Act. The ruling said that the Attorney General of the US has exclusive authority over enforcement.
“The answer to this narrow question is no. Only the Attorney General of the U.S. can bring this kind of case, according to Rudofsky’s ruling. The three-judge panel is about to make a ruling.
Everyone understood that section 2 of the Voting Rights Act was what Congress meant when it said people could file lawsuits if their voting rights were violated.
Before Congress amended the Voting Rights Act with bipartisan support and then-President Ronald Reagan’s sign-off in 1982, committees on Capitol Hill issued reports that spelled out lawmakers’ intentions.
“It is intended that citizens have a private cause of action to enforce their rights under Section 2,” the House Judiciary Committee’s report said. The private right of action in Section 2 has been well-known by Congress since 1965, according to a report by the Senate Judiciary Committee.
The congressional committee’s reports are not law, Rudofsky wrote in a footnote, dismissing the lawmakers’ statements.
This is a way of interpreting laws that is called textualism. But a more accurate appellation would be literalism — if it doesn’t literally say in the law that private individuals can sue when their voting rights have been violated, then they can’t,” Tokaji says. “The problem with that argument is that it conflicts with reality.”
The challenge of the U.S. attorney general’s separation of Section 2 from the Arkansas nihilo case in the era of change in presidential administrations
After ruling that only the U.S. attorney general, who heads the Justice Department, could bring the Arkansas case, Rudofsky gave the federal government five days to pick up the lawsuit before the judge formally threw out the case.
But in a court filing, it did tell the judge that the U.S. government believes private individuals do have the right to sue under Section 2. It references a previous statement the department filed a few weeks before Rudofsky ruled.
“The limited federal resources available for Voting Rights Act enforcement reinforce the need for a private cause of action,” the DOJ’s statement said.
Pam Karlan — a professor at Stanford University Law School who, before stepping down last year, helped lead the department’s Civil Rights Division as the principal deputy assistant attorney general appointed by President Biden — says beyond limited resources, there’s also the challenge of the “sheer volume of jurisdictions in the United States that might face a Section 2 case.”
There are states, counties and school boards. I mean, there are just so many different governmental bodies that are subject to Section 2 that the idea that you’d have one body in the Justice Department as the sole enforcement mechanism makes no sense at all,” says Karlan, who declined to comment on why the DOJ decided not to take on the Arkansas case.
A change in presidential administrations can also change the priority level of Section 2 cases at the Justice Department, warns Spencer, the associate law professor at the University of Colorado.
“If you’re relying on that political institution to protect your right to vote, you may have years that go by when that right is not enforced in the courts, even though Congress created that right,” Spencer says.
The most conservative legal philosophers didn’t think that federal courts would buy the argument until the concurring opinion by Gorsuch questioned that right.