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Supreme Court’s conservative shift expected to continue in new term

The key cases before the justices, from affirmative action to election administration.
Supreme Court’s conservative shift expected to continue in new term

by Gabe Fleisher

Good morning! It’s Monday, October 3, 2022. Election Day 2022 is 36 days away. Election Day 2024 is 764 days away.

Supreme Court’s conservative shift expected to continue in new term

It’s the first Monday in October, which means the Supreme Court will return today for the first oral arguments of its new term.

The justices are coming back to Washington three months after finishing one of the most tumultuous terms in recent memory, which featured a historic shift to the right on cases concerning gun rights, the environment, religious freedom, and, of course, the elimination of the 49-year-old precedent protecting the right to an abortion.

According to one measurement, it was the most conservative Supreme Court term since 1931.

But the court has been shaken by more than just its jurisprudence. Questions still linger about the unprecedented, unsolved leak that thrust the notoriously secretive court’s deliberations on abortion into public view. The justices’ long-held appearance of collegiality has been dimmed by a series of public clashes in speeches delivered over the summer.

Even their spouses are entering the spotlight, especially with Ginni Thomas testifying before the January 6 committee last week. And security for the justices and their families has been increased, after a summer of protests at their personal residences — including an attempted assassination aimed at one of them.

It has all added up to a court whose legitimacy has been cast in doubt as never before: both Gallup and the Pew Research Center recently recorded trust in the Supremes at a record low.

“The last year was an unusual one and difficult in many respects,” Chief Justice John Roberts said at a speech in Colorado last month. “It was gut-wrenching every morning to drive into a Supreme Court with barricades around it. I think, with my colleagues, we’re all working to move beyond it.”

But the court may find it difficult to move beyond the shadow of last term, as its conservative pivot is expected to continue with another series of high-profile, politically charged cases. Here are the big issues on the docket this term:

  • Affirmative action: At the end of this month, the justices will hear arguments in a pair of cases challenging race-conscious affirmative action policies at Harvard and the University of North Carolina. The court has long allowed colleges to use race as a factor in student admissions, but experts believe the 6-3 conservative majority could succeed in scrapping the 40-year-old precedents.
  • Voting and elections: On Tuesday, the Voting Rights Act — large swaths of which the court has already done away with — will return before the justices in Merrill v. Milligan, a challenge to Alabama’s congressional map that says the state illegally diminished Black voting power.
  • Then, later in the term, the court will hear Moore v. Harper, in which conservative litigants are pushing the fringe “independent state legislature theory,” which argues that state lawmakers alone have the power to set federal election rules.
  • LGBT rights: Four years after issuing a narrow ruling allowing a Colorado baker not to create wedding cakes for gay couples, the court will once again consider whether businesses can refuse service to LGBT people. In 303 Creative v. Elenis, a case stemming from a Colorado wedding website designer, the justices may finally address the underlying free speech issues in such disputes.
  • The environment: Finally, the term will kick off today with Sackett v. Environmental Protection Agency, in which the justices could once again constrain the EPA, this time in its ability to enforce protections of America’s wetlands.
The new nine: The latest iteration of the Supreme Court at Justice Jackson’s investiture last week. (Supreme Court)

Although nothing has changed about who is dominant on the court, there are two new features of this term to be aware of: First off, members of the public will be allowed back into the courtroom for the first time since March 2020, restoring a bit of normalcy to the court’s proceedings. (The court will also be continuing its pandemic-era practice of posting a live audio feed of oral arguments, meaning this term will arguably be the most transparent yet, even if it’s a small step for the opaque body.)

The court also has a new member, as Justice Ketanji Brown Jackson joins the bench today for her first session of oral arguments. Jackson, the first-ever Black female justice, will offer a new face for the court’s beleaguered liberal wing. Outnumbered by the six conservatives, it is likely that her most lasting mark on the court in the coming years will come purely through her dissents.

What else you should know

➞ Brazil: The titans of Brazil’s right and left faced off in a high-stakes presidential race on Sunday. The pair will advance to an October 30 runoff after right-wing President Jair Bolsonaro performed better than expected against Luiz Inácio Lula da Silva, the leftist former president.

➞ Midterms: As Sen. Ron Johnson and Dr. Mehmet Oz gain on their opponents in the Wisconsin and Pennsylvania Senate races, Democrats face new worries about their ability to hold on to the upper chamber.

➞ Hurricane: The number of recorded deaths from Hurricane Ian has climbed to 87, as FEMA officials continue what they’ve called the agency’s largest-ever search-and-rescue mission.

Wisconsin Sen. Ron Johnson is widening his lead in the polls against Democrat Mandela Barnes. (Gage Skidmore)

More headlines you should know:

  • “In Washington, Putin’s Nuclear Threats Stir Growing Alarm” (NYT)
  • “Lawmakers furious at Democratic leaders after stock trading ban stalls” (The Hill)
  • “For Obama, One Trump Term Wasn’t a Big Worry, but ‘Eight Years Would Be a Problem’” (Bloomberg)
  • “Lawmakers Confront a Rise in Threats and Intimidation, and Fear Worse” (NYT)
  • “National Archives says it still doesn’t have all Trump White House records” (CNN)

Today at a glance

All times Eastern. Click on an event’s time to watch it.

AT THE WHITE HOUSE: President Biden and First Lady Biden will travel to Puerto Rico in the wake of Hurricane Fiona. After arriving (2 pm), the president will receive a briefing (2:30 pm) and deliver remarks (2:45 pm). Both Bidens will then visit a local school to meet with families impacted by the storm, participate in a community service project, and thank officials working on the relief efforts (3:30 pm).

The pair will then depart the island (4:50 pm) and arrive back at the White House (8:55 pm). They are scheduled to go to Florida on Wednesday to survey the damage from Hurricane Ian.

  • Vice President Harris has no public events scheduled.
  • White House press secretary Karine Jean-Pierre will hold a press gaggle aboard Air Force One during the flight to Puerto Rico.

ON THE HILL:The House and Senate are on recess.

IN THE COURTS: The Supreme Court is back for the first day of its new term. The justices will release orders (9:30 am) and then hear oral arguments in Sackett v. EPA (10 am) and Delaware v. Pennsylvania and Wisconsin (11 am).

The former case will decide whether wetlands should be considered as “waters of the United States” under the Clean Water Act and therefore be subject to the 1972 law’s protections. Like a major decision on the Clean Air Act last term, the court’s ruling in Sackett could result in another significant curtailing of the EPA’s authority to issue environmental regulations.

The latter case concerns which state should receive the funds from unclaimed or uncashed checks issued by MoneyGram Payments Systems.

  • Former Secretary of State Rex Tillerson is expected to be called by prosecutors today to testify in the foreign influence trial of Tom Barrack, a private equity investor who is a close friend of former President Donald Trump.
  • Opening statements are expected to begin in the trial of five leaders of the far-right Oath Keepers extremist group, including founder Stewart Rhodes.

Before I go...

Happy (belated) birthday, Jimmy Carter! The 39th president turned 98 on Saturday.

According to the Associated Press, Carter spent the day with friends and family (including Rosalynn, his wife of 76 years) and watching his beloved Atlanta Braves.

Carter is already the longest-lived president in U.S. history. The presidential 90+ club: George H.W. Bush (died at 94), Gerald Ford and Ronald Reagan (died at 93), John Adams and Herbert Hoover (died at 90).

President Carter at a 98th birthday parade in his honor in his hometown of Plains, Georgia. (Carter Center)

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Thanks for waking up to politics! Have a great day.

— Gabe