A further reckoning: The Supreme Court’s next term


If last year’s Supreme Court term was full of blockbuster landmark rulings, next year promises more to come. To date, the justices have accepted 30 cases for full argument. They will add more over the summer and into the fall, as the justices review appeals.

Four of those cases promise new activism by a resolute conservative bloc, which consists of Chief Justice John G. Roberts Jr., Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. Left on the periphery are three liberal justices, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, who replaced Stephen G. Breyer in June.

One case directly relevant to the Island is a challenge to the Clean Water Act. The case drills down on how to define the term “wetlands.” In Sackett v. Environmental Protection Agency, the justices will review whether the Ninth Circuit Court of Appeals correctly identified “wetlands” within the agency’s authority to regulate “the waters of the United States.”

The Sacketts were denied a building permit because their land in Idaho included “navigable waters” regulated by the Clean Water Act. The issue is whether wetlands are included in the definition, and if the Sacketts should win, as they are likely to do, the authority of the EPA would again be reduced. Last year, the court ruled against the EPA in its effort to control climate change under the Clean Air Act.

There is a case based on a new theory called the “independent state legislature.” In 2000, Justice Kennedy supported the idea in Bush v. Gore when the court halted the popular vote count in Florida, turning the election to George W. Bush.

Kennedy, who retired in 2018, was joined by Thomas and Alito, and now Gorsuch and Kavanaugh have endorsed the theory. If Roberts or Barrett joins them, the court could determine that state legislatures completely control presidential and congressional elections, with no oversight by state courts.

The dispute in Moore v. Harper centers on North Carolina’s effort to gerrymander its congressional districts, a plan that the state court overturned. Democrats and Republicans are about equal in the state, but the gerrymander gave Republicans 10 of the 14 congressional seats.

The case raises an issue posed by the Constitution’s election clause, which states that federal elections shall be “prescribed in each state by the legislature thereof.”

In other words, state legislatures are the final decision maker when it comes to how federal elections are run, and no state court can overturn its decision. Some commentators have argued that if the court endorses this theory, legislatures can ignore the voters’ choice in a presidential election and appoint its desired presidential electors.

For some, this scenario would end democracy as we know it in America, if legislatures ignore the will of the voters.

Two major affirmative action cases highlight a promising contentious year. Both challenge admissions programs. One attacks a private institution, the other public: Students for Fair Admissions Inc. v. Harvard and Students for Fair Admissions Inc. v. University of North Carolina. Since 1996, conservative entrepreneur Ed Blum has successfully funded several lawsuits challenging affirmative action and voting rights laws he considers unfair or outmoded.

In 2016, the court ruled against a student whose lawyers he funded. Abigail Fisher claimed that the University of Texas, Austin, denied her admission because she was white. In a five-to-four decision, then-Justice Anthony M. Kennedy for the first time upheld an affirmative action admissions program. After he retired in 2018, Kavanaugh replaced him on the court.

There is a good chance the balance will change, ending affirmative action in the case the justices will hear next term. It involves Blum’s Students for Fair Admissions, in which Asian American students will argue that they had been discriminated against in admission to Harvard and UNC. Blum wants to end the use of race as one category among many for admission: Other categories include grade-point average, teacher recommendations, socioeconomic status, extracurricular activities, and many others.

In 2003, Justice Sandra Day O’Connor wrote in an admissions case involving the University of Michigan that she thought there would not be a need for affirmative action programs in higher education “25 years from now … to further the interest [in student body diversity] approved today.” If Blum wins, she will be proved wrong, as her prediction will fall short by five years. Diversity may well be lost in college and university admissions.

These are crucial cases, and there are more to come. But already the year is shaping up for new ground to be prepared by the six conservative justices who now control the majority.


Jack Fruchtman, who lives in Aquinnah, has written “The Supreme Court and Constitutional Law,” now in its third edition, and “American Constitutional History,” now in its second.


    • James– What ? What ?
      Who do you think invented the term “activist judges” and railed against them every time they ruled in favor of advancing the legal rights of marginalized communities ?
      Or perhaps, you don’t think that right wing personalities like the late Rush Limbaugh or Steve Bannon, Alex Jones or the entire fox news team are actually a legitimate form of “media”.

  1. Fox, and Trump , complained endlessly about the majority Liberal Court.

    I have always thought of Fox as a news media company.
    Do you think of them of as a movie studio?
    That produces fiction.

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