The newly conservative-dominated Supreme Court is ready for its second term, and has a docket full of what readers of this blog know I think of as controversial markets and repugnant transactions. While previous court decisions have expanded individual rights on these subjects, such as abortion, the present court seems to view them not as individual rights but as States' rights. But that may be too simple a characterization of this brand of conservative jurisprudence. We're going to learn more about that as the term plays out. (I'm personally most worried about what decisions will be made about election law, because of the effect those decisions may have on future decisions.)
Here's the NYT on the coming caseload:
As New Term Starts, Supreme Court Is Poised to Resume Rightward Push. The justices return to the bench on Monday to start a term that will include major cases on affirmative action, voting and discrimination against gay couples. Several will take on questions about race. By Adam Liptak
"The last Supreme Court term ended with a series of judicial bombshells in June that eliminated the right to abortion, established a right to carry guns outside the home and limited efforts to address climate change. As the justices return to the bench on Monday, there are few signs that the court’s race to the right is slowing.
"The new term will feature major disputes on affirmative action, voting, religion, free speech and gay rights. And the court’s six-justice conservative supermajority seems poised to dominate the new term as it did the earlier one.
...
"Several of the biggest cases concern race, in settings as varied as education, voting and adoptions.
"They include challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. As in last term’s abortion case, Dobbs v. Jackson Women’s Health Organization, longstanding precedents are at risk.
"The court has repeatedly upheld affirmative-action programs meant to ensure educational diversity at colleges and universities, most recently in 2016. In an interview that year, Justice Ruth Bader Ginsburg said the issue had been permanently settled.
...
"Mr. Trump went on to name three members of the Supreme Court, including Justice Amy Coney Barrett, who succeeded Justice Ginsburg after her death in 2020.
"Those changes put more than 40 years of affirmative action precedents at risk, including Grutter v. Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”
"The court seems poised to say that the time for change has arrived several years early in the two new cases, Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707. They are set to be argued on Oct. 31.
...
"A challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it hard for non-Native Americans to adopt Native children, may also turn on whether the court views those safeguards as based on race, making them vulnerable to constitutional review. The law at issue in the case, Haaland v. Brackeen, No. 21-376, was a response to a history of children being removed from their tribes and heritage; arguments will be heard on Nov. 9.
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I think the two university affirmative action cases are no longer as closely linked as they were before the appointment by President Biden of Justice Ketanji Brown Jackson, who has two degrees from Harvard, and may have to recuse herself. See this cryptic note from the Supreme Court's website: 20-1199 STUDENTS FOR FAIR ADMISSIONS V. PRESIDENT AND FELLOWS OF HARVARD COLLEGE
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