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US Supreme Court Set to Start Potentially Tumultuous Term

The Supreme Court building is seen in Washington, Sept. 30, 2022.
The Supreme Court building is seen in Washington, Sept. 30, 2022.

Fresh off an unusually rocky term in which it ended the constitutional right to abortion, the U.S. Supreme Court is embarking on another potentially tumultuous calendar of consequential cases.

The new term opens Monday, with Justice Ketanji Brown Jackson joining her eight colleagues as the first Black woman to sit on the bench.

But the period will likely be remembered for more than Jackson's historic debut. Tackling issues such as voting rights and affirmative action, the new term features some high-profile cases that will likely be decided along ideological lines.

"On things that matter most, get ready for a lot of 6-3s," Irving Gornstein, executive director of the Supreme Court Institute and a professor at Georgetown Law Center, said at a recent press event.

The high court's decision to overturn its 1973 abortion ruling known as Roe v. Wade followed an unprecedented leak of the draft majority opinion that sparked weeks of protests.

Last term featured several other 6-3 rulings, including one that held that Americans have a right to carry firearms outside the home for self-defense.

But not every case will likely result in a conservative-majority opinion this term, Gornstein said.

He noted that Chief Justice John Roberts and Justice Brett Kavanaugh joined the court's three liberals last term to produce at least five 5-4 cases.

Kavanaugh, one of former President Donald Trump's three nominees on the court, has developed a penchant for writing concurring opinions that "declare the limits of right-side majority decisions," Gornstein said.

"This is Justice Kavanaugh's court," Gornstein said.

The Supreme Court hears 60-70 cases a year out of the more than 7,000 petitions it receives. To date, it has agreed to review 27 cases during the upcoming term.

Here is a look at five major cases.

Two voting rights cases

The two voting rights cases, Merrill v. Milligan and Moore v. Harper, involve controversial plans by state legislatures to redraw their congressional maps and may have wide-reaching implications for how elections are conducted.

Merrill v. Milligan

Merrill v. Milligan is about the Southern state of Alabama's congressional redistricting plan created after the 2020 census.

For decades, Alabama's seven-member congressional delegation has included only one African American. But with the state's growing Black population, civil rights advocates say Alabama should have at least two.

Arguing that the redistricting map packs Alabama's Black residents largely into a single congressional district, a group of voters and rights advocates challenged the plan in federal court.

A three-judge panel agreed that the plan violated Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race or color.

The judicial panel ordered a new map. But the U.S. Supreme Court overrode the ruling, agreeing to review the case during its 2022-23 term while keeping the contested congressional map in place.

Alabama says it seeks a race-neutral redistricting process. But voting rights advocates say that keeping the state's redistricting plan in place will undermine minority voters' ability to elect candidates of their choice.

Moore v. Harper

The second case, Moore v. Harper, involves North Carolina's new congressional map and carries potentially even greater consequences for how federal elections are run.

It centers on a controversial legal doctrine known as the "independent state legislature theory," which holds that the U.S. Constitution gives state legislatures near total authority to regulate federal elections.

Enter the North Carolina Legislature.

After the state gained an extra congressional seat because of the 2020 census, the GOP-controlled Legislature drew a map that would give Republican candidates a 10-4 advantage, even though the state's voters are evenly split between Democrats, Republicans, and independents.

Voting rights advocates, suspecting illegal partisan gerrymandering, went to state court.

The state Supreme Court, with four Democrats and three Republicans, voted along party lines to declare the map in violation of the state constitution and ordered a new draft.

The U.S. Supreme Court denied the state Legislature's motion to stay the state court ruling but agreed to hear the case. As a result, the court-drawn map will remain in effect during the midterm elections.

The case will be among the most closely watched of the upcoming term, and not only because of its long-term implications.

Voting rights advocates say a broad ruling in the case would give state legislatures near total authority to enact voter suppression laws and otherwise affect the outcome of elections.

Hashim Mooppan, a former counselor to the solicitor general during the Trump administration, said the fear that the case could spell "the end of democracy" is overblown.

Both sides in the case have presented the Supreme Court with "a menu of options," and it's far from clear whether the justices will adopt the most extreme version, Mooppan said at the Georgetown court preview.

But even if the justices adopt the "broadest possible theory," state legislatures would not be able to "override the result of the election after they happen," he said.

Legal challenges to affirmative action

Two cases — Students for Fair Admissions Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions Inc. v. University of North Carolina — present legal challenges to affirmative action.

A ruling against Harvard and UNC, some legal experts warn, could spell the end of affirmative action, a policy that American colleges and universities have followed for more than half a century to boost admissions of minority students.

Americans are divided over affirmative action. Proponents say the policy has promoted campus diversity by providing opportunities for disadvantaged students. Opponents say it gives preferential treatment to Black, Hispanic and other minorities at the expense of white and Asian applicants, undermining the goal of a "color blind" society.

In 2014, Students for Fair Admissions, a group headed by conservative legal activist and affirmative action opponent Edward Jay Blum, sued Harvard and UNC, accusing the former of discriminating against Asian applicants and the latter of disfavoring white students.

In their defense, Harvard and UNC said race is one of many factors they consider in student admissions, citing previous Supreme Court decisions over the past two decades reaffirming the practice.

Lower courts sided with the two universities. But Students for Fair Admissions appealed to the Supreme Court, asking it to overturn a 2003 ruling that upheld the use of race in college admissions for the benefit of diversity.

The court could choose to uphold or restrict affirmative action rather than outlaw it. But with a conservative supermajority of six justices in control, the judicial tides appear to have turned against the policy, experts say.

"If you were just trying to count noses, I think you would think that there are more votes to be skeptical of these programs now than ever before," said Roman Martinez, a Supreme Court litigator at Latham & Watkins said at Georgetown.

Speaking at a virtual event hosted by the American Constitution Society earlier this month, Deborah Archer, president of the American Civil Liberties Union, said that Black and Hispanic students remain underrepresented at America's top colleges, and that ending affirming action would make "the system less equitable."

Right to refuse service

The question of whether a business owner can refuse service to a customer based on the vendor's religious beliefs returns to the high court with a new case out of Colorado.

In 2018, the court considered the case of a Colorado baker who refused to make a cake for a same-sex couple in violation of the state's anti-discrimination laws.

Siding with the baker, the court found that the so-called public accommodations law itself violated his right to freedom of religion, but it shied away from ruling on the larger question of whether forcing the baker to design a cake would violate his free speech rights.

With the new case, the justices will weigh in on that issue.

The case was brought by Lorie Smith, the owner of a Colorado graphic design company called 303 Creative LLC, who says she wants to build wedding websites for couples of the opposite sex but not for same-sex couples because she's opposed to gay marriage for religious reasons.

She wants to post a message on her website explaining her opposition to designing wedding sites for same-sex couples. But because of Colorado law, she has been unable to do so.

Smith sought an exemption from the law in federal court on the grounds that it would force her to "speak messages" that violated her deeply held beliefs.

Earlier this year, the Supreme Court agreed to hear her case during the new term but limited the review to her free-speech claim.

Colorado says the case is not about free speech but rather about whether a business can refuse service based on a customer's race or other protected characteristics.

But with the conservative Supreme Court increasingly siding with religious groups in recent years, the state is unlikely to encounter a sympathetic court, experts say.

"The court is expanding both its understanding of what speech is and its protection of it," Kent Greenfield, a Boston College law professor, said during the American Constitution Society event.