September 29, 2022

Bracing for the New SCOTUS Term

Russ Feingold President

We are still reeling from the devastation wrought by the packed Supreme Court’s conservative supermajority last term, with harmful decisions from Dobbs v. Jackson Women’s Health to New York Rifle & Pistol Assoc. v. Bruen. And now, less than four months later, we are bracing for the start of the Supreme Court’s new term, which has the potential to further unravel our civil rights and threaten the guardrails of our democracy.  

But, let’s start with a positive. This will be Justice Ketanji Brown Jackson’s first term on the Supreme Court. We could not be more excited for her contribution to our highest court. As a Black woman and as a former public defender, Justice Jackson brings a perspective and experience that have never before been included in the Court’s deliberations. Realistically, she is likely to find herself writing or joining dissenting opinions on big cases as this Court is currently controlled by the conservative supermajority and its partisan agenda. That said, do not underestimate the influence of a powerful dissent, especially over the long term as we collectively work to overturn decisions like Dobbs.  

The Court’s docket this term is filled with high-profile cases related to elections, the death penalty, the Indian Child Welfare Act, affirmative action, and LGBTQIA+ rights. Mark your calendar for next week’s Broken Law podcast episode when our team previews the biggest cases, including how each could impact our laws and legal systems. I wanted to flag one particular case that directly relates to our work on “democracy’s moment of truth.”   

In recent months, you may have heard of the so-called “independent state legislative theory.” Some refer to it as a “doctrine.” It is not a doctrine. It is a mere theory. A far-fetched theory at that, with no solid basis in law, history, or fact. And yet, the conservative supermajority on the Supreme Court felt it fit for our highest court by taking the case, Moore v. Harper 

The case presents the question of whether the North Carolina Supreme Court may strike down the state legislature’s gerrymandered congressional map. Two NC state legislators are arguing that the independent state legislative theory means that the state courts have no authority over issues pertaining to federal elections, including hearing state constitutional challenges to congressional maps.  

The immediate impact of this case will be whether or not North Carolina’s congressional map is gerrymandered. However, the impact could be far more wide-ranging if the Supreme Court validates the independent state legislative theory and leaves voters with no state judicial recourse over federal electoral matters. Such a decision would open the door for state legislatures to pass electoral laws that are in blatant violation of state constitutions, with state courts powerless to intervene. This important check and balance would be gone.  

I wish I had confidence in how the Supreme Court will come down in this case, but I do not. Why? Because this Court has been packed with ideologues who have been put on the bench to advance a partisan agenda. This is why ACS has and will continue to advocate for Supreme Court reform, because we need our highest court to be legitimate, to have the confidence of the public, and to be committed to upholding the rule of law regardless of partisan politics. To have such a Court, we need structural and non-structural Supreme Court reform. It’s that simple.  

We will be closely tracking Moore v. Harper and many others, and reporting on them going forward, so stay tuned. Make sure you follow us on social media, subscribe to “Broken Law,” and check out our Expert Forum blog. You can also read ACS’s press release about the new SCOTUS term here 

2022 Supreme Court Vacancy, Importance of the Courts, Judging (and Judicial Nominations), Judicial Independence, Judicial Nominations, Judicial selection, Supreme Court, Supreme Court Reform