The most worrying thing about the plethora of dead legal precedents created during the last term of the U.S. Supreme Court is this: It is not over. The legal turmoil will go on for years. The new term is only just beginning, and the court’s majority make no secret of their affiliation with the Catholic church and big corporations. In the previous year, the court gave us a look at how those associations will shape our future. And although the public and the Biden administration express their disappointment over last spring’s decisions, the court majority is set to do more of the same.

Another of the things that tie the conservative majority together is the Federalist Society. All six justices are either current or past members of this club, which was established in the 1980s by a group of conservative law students. Apparently, it wasn’t cool back then to be conservative, and conservative law students needed a place where they could gather to discuss and share their right-of-center views and not fear a challenge to their ideas. The law school club later morphed into a highly influential organization that vets promising judicial candidates to make sure they are conservative enough. Unfortunately, it appears that political ideology is the only thing that matters. For example, Justices Coney Barrett and Kavanaugh have no experience in a court of law, have never tried a case, and have not written any important scholarly articles. In short, they are not the best and brightest that the legal profession could produce. But their right-wing politics are good.

Many of the decisions . . .  seem to rely on reverse-engineered reasoning.

The Court’s spring term decisions prompted reproach from the Biden administration and howls of outrage from the public. Some justices have spoken publicly about the perceived loss of respect for the court’s work, and the apparent loss of credibility their rulings are receiving. A recent Gallup poll has pegged public support for the court at 25%. Many of the decisions, overturning precedents both recent and long-standing, seem to rely on reverse-engineered reasoning. The court seems to be deciding outcomes first and then digging through pages of legal history for reasons to support what it wants done.

To that end, the court has chosen a variety of cases to be heard, so that old precedent can be struck down and new precedent can be written, reordering even further our political and legal reality. Coming this next term are cases that challenge the scope of the Clean Water Act, that promote gerrymandering, that seek to modify legal protections and hence liability of social media companies for users’ posts on their platform, and that consider the right of businesses to discriminate against LGBTQ people by invoking religious objections. The court has already upheld the right of individuals to refuse service to gays in very limited circumstances, thereby blocking state law. It has also taken up again university admissions policies that consider affirmative action. All these issues are ideological red meat for the right wing.

Moore v. Harper

Before the court is the claim that a state legislature has final say over federal voting districts in that state. The precedent was established through case law, ensuring that the people objecting to the redistricting of their districts could be heard in courts all the way to the top. This term’s case came from North Carolina where the state supreme court threw out the legislature’s election redistricting plan. The redistricting plan, the state court held, violated the state’s own constitution. The North Carolina legislature brought this case to the Supreme Court on the claim that an independent state legislature has final say in redistricting, no matter how discriminatory, and cannot be overruled.

This theory, the independent state legislature theory, was most recently addressed by the U.S. Supreme Court in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission (U.S. 2015). In that case, the court ruled (5-4) that the U. S. Constitution does not bar a state from creating a redistricting commission and vesting it, and not the legislature, with final authority over the redistricting plan. Since the Arizona case, Justices Breyer and Ginsberg have been replaced by Justices Kavanaugh and Coney Barrett, respectively, leaving an opportunity to once again overturn precedent.

Students for Fair Admissions v. Harvard; Students for Fair Admissions v. North Carolina

The plaintiffs in these two current cases seek to overturn, or at least modify, the Grutter precedent, a decision that requires a race-blind admissions policy but allows for consideration of race as one of several factors. The two Students for Fair Admissions cases have the potential to greatly alter the culture of higher education in this country.

In 2003, the Supreme Court set a legal standard for considering issues involving claims of discriminatory admissions policies at our colleges and universities through rulings on two separate cases. In Gratz v. Bollinger (U.S. 2003), the court ruled that the college admissions policy of the University of Michigan violated the Equal Protection Clause of the Constitution because it automatically allocated points for minority applicants.

In Grutter v. Bollinger (U.S. 2003), decided the same day as Gratz, the court distinguished Gratz by holding that a university’s “narrowly tailored use of race in admissions decisions” was permissible. The policy can favor underrepresented minority groups if it treats race as one factor among many and not as a decisive factor. In short, an admissions policy that seeks racial diversity in its student population is permitted.

However, if this court decides these cases in favor of race-blind admissions, those decisions would favor certain groups, the ones that come from well-funded educational systems, which in this country are mostly private, religious institutions. Given the history of slavery and Jim Crow practices, this would be another step in reimagining America’s past and present. For many of the people and groups that have a dominating say in running this country, that would be the goal. If our culture and society was color and race blind, only then would race-blind admissions be fair.

Gonzalez v. Google; Twitter v. Taamneh

These cases involve the scope of immunity of social media platforms when sued by individuals harmed by the content on social media. The immunity protection is set out in the Communications Decency Act, Title 47 U.S. Code Section 230 (1996). In the suits filed against the media platforms, the families of the plaintiffs alleged that online terrorism-related content aided and abetted the killings of the plaintiffs by ISIS or their affiliate. The liability lies in the alleged failure of the platforms to better regulate the content posted by third parties that promoted violence or other hateful acts.

A ruling against Twitter and Google will likely introduce into social media a level of self-censorship and essentially leave to corporate employees the duty and right to bar content at their own discretion. In effect, it would limit free speech of users and decrease the attractiveness of social media. It would also open up a world of litigation by claimants who can claim some form of harm from online posts.

303 Creative LLC v. Elenis

This case contends with the very issue addressed in the 2018 case of Masterpiece Bake Shop v. Colorado Civil Rights Commission (U.S. 2018). In that case the court narrowly ruled in favor of a baker who refused to prepare a wedding cake for a gay couple. It based its ruling on the perceived disrespect of the U.S. Commission on Civil Rights for the religious beliefs of the baker. However, the court expressly stated that it would not abide a situation where a business enterprise openly refused service to some sector of the public based on color, religion, sex, sexual preference, etc.:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.

In this term’s case, 303 Creative LLC v. Elenis, a business that creates websites has refused to do so because the customers are a same-sex couple. They were not asking the business to promote same-sex marriage, just prepare a website. That the court has decided to hear this case indicates that the Masterpiece Bake case ruling, prohibiting businesses from discriminating against, in this case, gay people, will no longer be a precedent.

If yet another precedent is thrown out the window, this will indicate that the extremely conservative majority will reconsider just who has rights under the law and who is entitled to the protection of federal courts.

Sackett v. EPA

In the Sackett case, the plaintiffs intend to develop a large parcel of land that includes an area of wetlands, over which the EPA claimed jurisdiction. At issue is the EPA’s scope of regulating development that affects wetlands.

The precedent is found in a 2006 Supreme Court decision involving the Clean Water Act. It ruled that wetlands, marshes, etc. could come under the jurisdiction of the EPA. The court, in Rapanos v. U.S. (U.S. 2006), adopted the standard known as the “significant nexus test.” This means that if the wetlands at issue has a nexus with another larger body of water such that unregulated harm to the wetlands would impact a lake, river, etc. over which the EPA has jurisdiction, the Clean Water Act can be enforced.

Limiting the jurisdiction of the EPA to only wetlands that have a surface attachment to a large body of water would exclude most of the wetlands in this country. This would be a great boon to real estate developers.

In oral argument in this case so far, some of the right-wing justices expressed some support for protecting wetlands but worried about the vagueness of the significant nexus test. But most likely ideology will prevail, and the EPA will be denied jurisdiction over most of the country’s wetlands.

The primacy (or not) of precedent

The very fact that these cases were brought before the Supreme Court is certain evidence that the religious-corporate majority wants to change the law to benefit a minority in this country. This is an ugly situation for the law, and for the practice of law. Chief Justice Roberts once stated in an interview that precedent is the very backbone of the law. He could not be more right. Precedent is what is taught in law school, what is argued in court, and is the very basis upon which justice is done in all the courtrooms of this country. Now we have a court that, for the sake of the wealthy and corporations, finance interests, and religious conservatives, wants to rewrite precedent. This wanton disregard of precedent is an ideological war on the rights and privileges of the majority of American people. The court went a long way during its last term, and it appears ready to continue its incursion into democracy this term.

As a reminder, if the approval rating of the Supreme Court is now at 25%, it is the wholesale disregard for precedent that caused this. The court’s summer rulings speak poorly of this country’s belief in the rule of law. This treatment of the law and the general lack of approval for the court’s work should be a scandal.

The opinions of the author do not necessarily reflect the positions of the CPUSA.

Image: Rally outside the U.S. Supreme Court, LaDawna Howard, photo cropped (CC BY 2.0).

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