From Affirmative Action To Andy Warhol: Buckle-Up For A Wild Supreme Court Term

Authored by Jonathan Turley,

Below is my column in The Hill on the start of the new Term for the Supreme Court. The column predicts that critics will likely respond to the expected new precedent by attacking the integrity rather than the interpretations of the justices.  I was wrong. The New York Times did not wait for any new decisions and attacked the integrity of the conservative justices as the “judicial arm of the Republican Party.”

Does that make the three liberals justices voting together on the Court the “judicial arm of the Democratic Party”? 

Of course not.

Justices are only partisan to the degree that you disagree with their jurisprudential views.

Here is the column:

Justice Ruth Bader Ginsburg once said, “It’s hard not to have a big year at the Supreme Court.” That is, of course, manifestly true for the highest court in the land.

Some years are bigger than others, however. That certainly was the case in 2021-22, with historic decisions on abortion, gun rights, climate change and other issues.

On Monday, the new term will begin with a lineup that promises another historic series of rulings — and even greater levels of rage directed at the court.

The last term showed that a stable 6-3 majority has taken hold on the  court. Even with the addition this term of Justice Ketanji Onyika Brown Jackson, and possible swing votes from Chief Justice John Roberts or others, there are five conservative justices who have brought clarity to long-contested areas characterized by 5-4 divisions. That is likely to continue this term.

Here are just two of the “matinee” cases that could have a huge impact on both precedent and politics:

Students for Fair Admissions v. President & Fellows of Harvard College

This case on the use of race in college admissions will be heard with a similar case in Students for Fair Admissions v. University of North Carolina.

Since declaring affirmative action in admissions to be unconstitutional in 1978 in Regents of the University of California v. Bakke, the court has never achieved clarity on the constitutional use of race beyond barring any preference “for no reason other than race or ethnic origin.” Then-Justice Lewis Powell declared, “This the Constitution forbids,” but the court has been unable to say with any coherence and consistency what else it forbids in a line of conflicting and vague 5-4 rulings.

These cases involving alleged discrimination against Asian applicants to gain greater diversity for other minorities could produce that long-sought clarity.

In 2003, in Grutter v. Bollinger, the court divided 5-4 on upholding race admissions criteria used to achieve “diversity” in a class at Michigan Law School. (On the same day, the court ruled 6-3 to declare Michigan’s undergraduate admissions unconstitutional in the use of race in Gratz v. Bollinger.)

In Grutter, then-Justice Sandra Day O’Connor stressed that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was 21 years ago, and the question is whether time has run out for race-based admissions. Justice Jackson, who served on Harvard’s board of directors, has recused herself from the Harvard case but is expected to vote in the North Carolina case.

303 Creative v. Elenis

There often are cases that generate exhaustive coverage over a potential major shift in precedent that only peter out as justices divide and the majority takes an exit ramp. That was the case in the Masterpiece Cakeshop case in 2018, in which a baker was found to be in violation of the Colorado Anti-Discrimination Act for refusing to make a wedding cake for a same-sex couple due to his religious objections.

303 Creative has the makings of not just Masterpiece Cakeshop 2.0 but everything that the earlier case failed to achieve. For years, I have argued that these conflicts between discrimination laws and religious values should not be resolved under the religious clauses but under the free speech clause. Notably, this case involving Lori Smith, a graphic artist who declined on religious grounds to provide services to couples celebrating same-sex marriages, was brought to the court under both the religious and free speech clauses. However, the court accepted the case only to argue the free speech grounds — raising the likelihood of a major free speech case in the making.

The court’s new docket also is populated with other major cases that are standouts:

• Moore v. Harper involves a challenge to the authority of state courts to set aside congressional maps in North Carolina. Some have argued that such judicial review is unconstitutional under the elections and electors clauses because it refers solely to “legislatures” in setting such rules or districts.

• Sackett v. Environmental Protection Agency. In 2012, the Court allowed the Sacketts to challenge an EPA compliance order concerning navigable waters on their property in Idaho under the Clean Water Act. A new challenge to the Ninth Circuit test could redefine the key meaning of “waters of the United States.” 

• Andy Warhol Foundation v. Goldsmith will ask the court to decide whether a work of art is considered “transformative” for the purposes of the fair-use doctrine when it expresses a dissimilar meaning or message from the original source. The case involves Lynn Goldsmith’s photo of the musician Prince.

• In Haaland v. Brackeen, the court must decide whether placement preferences based on race under the Indian Child Welfare Act of 1978 violate the Constitution.

Some of these cases are unlikely to track the common narrative of a rigidly ideological court. Indeed, media coverage often exaggerates that narrative. While Chief Justice Roberts is often called “the swing vote” on the court, Justice Neil Gorsuch may be more unpredictable and impactful. Last term, he dissented in key cases, often writing vigorous dissents with his more liberal colleagues.

The liberal justices prevailed in major cases last term with support from conservative colleagues on issues ranging from upholding a Biden administration policy ending the “Remain in Mexico” decision to upholding Health and Human Services’ mandatory vaccine rule for health care workers.

Moreover, 29 percent of the cases were decided unanimously. While that is a decline from other years, it still reflects almost a third of the cases brought before the court. While Roberts and Justice Brett Kavanaugh voted most often together (95 percent of the time), Justice Elena Kagan voted almost half of the time (48 percent) with Roberts.

That does not mean familiar ideological divides will not continue to define key cases — or fuel some anger. Last term’s decisions led Erwin Chemerinsky, dean of the UC Berkeley School of Law, to denounce the conservative justices as “partisan hacks.” Yet, the six conservatives are no less partisan than the three liberal justices voting predictably together in dissent on such cases. They are all maintaining views of jurisprudence that fulfill their oaths to faithfully follow the Constitution.

None of that is likely to quell hate directed at the justices, rage that led to an attempted assassination of Justice Kavanaugh in June. As a new majority brings its own clarity to long-disputed areas, additional cases will be overturned. Such shifts have occurred on changing courts in the past with rejections of long-standing precedent. Yet, every overturned precedent likely will be treated as sacrosanct and inviolate despite years of conflicted rulings. It will not be the interpretations but the integrity of the justices that most likely will be attacked.

When it comes to the court and the overturning of precedents, we have learned to hate the way described by Queen Margaret in Shakespeare’s “Richard III” — “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.”