They’re Back: Ultraconservative Supreme Court Justices Hearing Cases Again This Week

Four months after overturning Roe v. Wade, the Supreme Court’s six-vote conservative supermajority returns to hear a new batch of cases that could further upset past precedent and dramatically rewrite the law on Oct. 3.

The court blew up a half-century of precedent on women’s rights in its last term, and this time around, it looks ready to blow up another half-century (at least) of precedent related to race.

Justices will be hearing cases that could end affirmative action in higher education, further gut the Voting Rights Act, empower state legislatures to enact restrictive voting laws and gerrymandered maps with no judicial oversight, and take away the ability of wrongly convicted prisoners, who are disproportionately Black, to petition for the reversal of their punishments.

In addition to cases that could dramatically reverse decades of progress on racial equity, the court will also hear important cases that could hamstring antitrust enforcement actions, further hamper federal regulatory action and make it easier for states to deny Medicare and Medicaid services to residents.

The court’s conservative supermajority is unlikely to stop its dramatic rewrite of American law.

Public support for the Supreme Court fell dramatically following its decision in Dobbs v. Jackson Women’s Health Organization that ended national abortion rights protections. The justices spent the summer feuding about the court’s legitimacy — or, in Justice Samuel Alito’s case, doing an endzone dance about the end of Roe.

These conservatives worked for decades to install an unbreakable judicial bloc that could gut the remnants of the New Deal regime and roll back the advances of the civil rights movement, and now they have it.

The October term is also the first full sitting for Justice Ketanji Brown Jackson. Due to her previous position on the U.S. Court of Appeals for the District of Columbia Circuit, she is recused from one of the two affirmative action cases because she previously heard it on appeal. Those two cases have been split so that she can participate.

These are the most important cases to watch in the court’s October sitting.

Scheduled Arguments: Oct. 31

The two cases challenging affirmative action policies at Harvard University, a private university, and the University of North Carolina, a public university system, will almost certainly result in the overturning of decades of precedent upholding the consideration of race in the college admissions process.

In both cases, Students for Fair Admissions, a group run by anti-affirmative action legal activist Edward Blum, is asking the court to overrule its prior precedent upholding the narrow use of race in college admissions decisions. Where Blum, an opponent of race-conscious policymaking, previously brought cases on behalf of white students, like Abigail Fisher, in both the Harvard and North Carolina cases, he argues that Asian American applicants are the ones most harmed by affirmative action policies promoting the enrollment of Black, Latino and Native American applicants.

The court last heard an affirmative action case in 2016 when Blum brought Fisher v. University of Texas before it. The court’s 4-3 decision against Fisher came after Justice Antonin Scalia’s death. Since then, the court’s composition has taken a significant lurch to the right against race-conscious policymaking. It is almost certain that Blum will succeed this time in ending race-conscious affirmative action policies for higher education institutions. This will likely result in fewer Black and Latino students attending the most highly selective American universities, colleges and graduate schools, depending on the admissions policies schools adopt in response.

Scheduled Arguments: Oct. 4

Just as its affirmative action decision could lower the number of Black and Latino students at select schools, the court also seems poised to reduce the number of Black and Latino elected representatives in Merrill v. Milligan.

The case originated as a lawsuit filed by Black Alabamians who claimed that Alabama’s new congressional district map should have included two Black-majority districts rather than one, according to Section 2 of the Voting Rights Act. A three-judge lower court panel featuring two Trump nominees agreed and ordered the state to draw a new map, but five conservative justices on the Supreme Court stepped in, reversed the lower court decision, and took up the case for argument.

This rare reversal of a lower court panel’s ruling on a Section 2 racial vote dilution case signals that the court’s conservatives are out to rewrite the last 40 years of Voting Rights Act precedent. Alabama wants to gut the Voting Rights Act by introducing a race-blind test for redistricting. Such a test would eviscerate the Voting Rights Act and likely lead to what some observers fear could be the “biggest decline in Black and Latino representation in generations.”

In another redistricting case, Moore v. Harper, North Carolina state legislative Republicans want the court to adopt a previously fringe theory that state legislatures are not bound by their state constitutions when enacting election law or drawing legislative district maps. If the court adopts this “independent state legislature theory,” it would mean that state legislatures could enact any election law or district map without state courts being able to rule on whether it violates a state’s constitution.

The case doesn’t just threaten to overturn centuries of precedent; it seeks to make new law out of thin air. The argument presented to the court by the North Carolina GOP is even partially based on a fraudulent document.

Since the Supreme Court has already ruled that partisan gerrymandering claims cannot be challenged in federal courts, there would be practically no recourse for anyone to challenge a partisan gerrymander if state courts cannot hear them either. This would enable the large number of state legislatures already gerrymandered in favor of Republicans to solidify and expand those gerrymanders in perpetuity while enacting election laws not subject to state court review.

Scheduled Arguments: Nov. 1

The plaintiff in Jones v. Hendrix asks the high court to allow someone convicted of a crime in district court to petition for a reversal of their conviction based on a subsequent, retroactively applicable Supreme Court decision.

Marcus DeAngelo Jones wants to vacate his sentence relating to his conviction for possessing illegal firearms as an ex-felon. After he was convicted, the Supreme Court ruled in Rehaif v. U.S. that when prosecutors try cases for firearms possession by a person with a felony conviction, they must prove that the person knew both that they possessed a gun and that they could not legally possess it. In Jones’ case, prosecutors did not prove he knew he couldn’t possess the gun.

A district court denied Jones’ petition, and he is now asking the Supreme Court to allow people to file habeas petitions in district courts when the law changes in a way that would affect their sentences.

This court, however, has become increasingly hostile to the rights of criminal defendants and prisoners, who are disproportionately Black. A ruling against Jones could cut off a key avenue for those challenging their wrongful imprisonment.

Scheduled Arguments: Nov. 7

Both the Axon Enterprise and Cochran cases concern whether corporations subject to administrative proceedings by federal agencies for potentially violating the law can file suit in the courts to stop such an agency proceeding. Such a change would give corporations a new tool to evade enforcement actions over financial, antitrust and other violations.

While the Federal Trade Commission’s structure is not being questioned as unconstitutional in the Axon case, a negative ruling against the commission could aid in future lawsuits brought by anticompetitive corporations seeking to neuter the top antitrust agency as it sets a new, more aggressive tone during the Joe Biden administration.

Scheduled Arguments: Oct. 3

It seems as though every court term now features a case involving the Environmental Protection Agency. Last term, the Supreme Court limited the manner in which the EPA could regulate greenhouse gas emissions at power plants, continuing conservative justices’ attempts to deconstruct the federal administrative state. In Sackett, a lawsuit involving the waters of the United States — the WOTUS — presents the court with another opportunity to advance its program of disabling the federal agency regulatory process.

Scheduled Arguments: Nov. 8

Finally, the case of Health and Hospital Corp. v. Talevski presents an opportunity for the court to blow up Medicaid by precluding people from filing lawsuits to challenge how states administer federal programs.

The case involves a lawsuit brought by the Talevski family against Health and Hospital Corp. for operating a nursing home where their late relative suffered abuse in violation of their rights under the Federal Nursing Home Reform Act, which establishes such rights at hospitals accepting Medicare and Medicaid.

Health and Hospital Corp. argues that the Talevskis should not be allowed to bring a lawsuit to enforce a federal statute at all.

Current court precedent allows private individuals to sue to enforce federal laws like Medicaid under Section 1983 of the Ku Klux Klan Act of 1871. The law was initially enacted to enable formerly enslaved Black people to file suit in federal court against state or local officials terrorizing them or denying their rights in a manner that violated federal law.

In 1961, the Warren Court interpreted the KKK Act to allow a private right of action to sue police officers for the use of excessive force. It has since become a principal tool for people to ensure that state governments do not violate their rights by not following federal law.

If the court ends the private right of action to force states to follow federal Medicaid guidelines, it could lead a state government opposed to Medicaid to disable the program for millions in the state. It could also do the same for other federal programs operated by state governments, like SNAP, the food stamp program.