June 30, 2023

Closing out the SCOTUS Term

Russ Feingold President

The Supreme Court wrapped up its 2022-2023 term this week. While some argue that the Court tempered itself this term, I want to be clear: despite showing unexpected restraint in voting rights cases and a few other areas, this packed Court remains steadfast in pursuing a conservative legal agenda and has continued to flirt with, and in some cases advance, fringe right-wing legal theories that threaten the very foundations of our democracy. There could be no more certain proof than Thursday's devastating and term-defining decisions banning affirmative action in higher education. The Roberts Court’s conservative majority employs a blatant distortion of the 14th Amendment, Brown v. Board of Education, and history to reach its partisan end. As we said in our statement this week: Yet again, the Roberts Court has positioned itself as a staunch opponent to our pursuit of a genuinely multiracial democracy.

In previous cases this term, the Court continued its overall trend of unwinding progress and protections, doing further damage to workers’ rights, environmental regulations, and the rights of the wrongfully convicted. If there is an overall takeaway from this term, it would be this: continued uncertainty for the most vulnerable in our society. People of color, LGBTQ+ folks, incarcerated people, women and people who can become pregnant, and students seeking debt relief simply do not know what rights and protections they can rely on as the Court continues to revisit and in some cases, upend previously settled areas of law.

The Court chose to hear multiple cases this term that posed real threats to the safeguards of our democracy, and it is true that in these cases, we averted the worst outcomes for now. Emphasis on “for now.” Even in those cases where the Court chose not to validate extreme legal theories, it opened the door to such theories by granting cert in the first place and in some cases, hasn’t fully closed that door. This included in Brackeen v. Haaland, a case that threatened not only the Indian Child Welfare Act but also tribal sovereignty more broadly; Moore v. Harper, in which plaintiffs pushed the Court to adopt the dangerous independent state legislature theory (fiction is more like it); and, in Allen v. Milligan where plaintiffs sought to end what remains of Section 2 of the Voting Rights Act. Moreover, in Allen, the Court may have vindicated the voting rights of Black voters in Alabama with its final decision, but before doing so, it took to the shadow docket to allow Alabama and Louisiana to use maps in the 2022 elections that federal courts had already found to illegally dilute Black votes. The damage from those maps in the 2022 midterms has been done, even though the maps will now have to be redrawn following the Court’s final decision in Allen v. Milligan.

As of this writing, the Court has not yet released its decisions in 303 Creative v. Elenis or the two student loan forgiveness cases. While we can’t predict the outcomes, the decision in 303 Creative has the potential to upend non-discrimination law by allowing businesses to discriminate against LGBTQ+ people under the guise of free speech. And the Court’s decision in the student loan cases could deprive millions of the debt relief that they expect under the Biden-Harris administration’s student-debt-cancellation plan.

It is hard to reflect on this term and not think about the recent reporting about Justices Thomas’s and Alito’s cozy relationships with Republican mega-donors. Several justices on this Court have continuously shown indifference if not contempt for judicial ethics, reminding us that the Supreme Court is the only court in the country not bound by a code of ethics. It’s impossible to know what influence particular mega donors have had on specific justices in specific cases, but the cozy relationships raise questions and further exacerbate the public’s distrust of this Court.

I encourage you to read our statements on key decisions this term and to follow our Broken Law podcast for more complete debriefs of those cases. As we close out this term, I want to leave you with two notes. One, I want to make sure that we give all due credit to the incredible litigators and their teams who argued for civil rights, for a multiracial democracy, and for the less powerful in this country. They argued cases in the face of a dubious and sometimes hostile majority, crafting compelling and, in several important cases, successful legal arguments. This is a reminder that when we talk about the impact of Supreme Court decisions, we are also talking about the impact of the lawyers, paralegals, researchers, and others who convinced the Court.

Second, I want to caution against walking away from this term hopeless. I too have been overcome with outrage and sadness in following this Court. From Dobbs, to Bruen, to Jones v. Hendrix (a decision this term that prioritized procedure and finality over releasing an innocent man from prison), and now to the two affirmative action cases, it is easy to feel that this Court is an ongoing avalanche destined to topple our pursuit of a representative, multiracial democracy. Resist such defeatism. The Court does not get the final word on our democracy or our fundamental freedoms. We do. Our work is more important now than ever. Whether you’re a student, a lawyer, a judge, an advocate, an organizer, or a scholar, your work is critically important. If anything, this term only made your work and conviction more relevant and timely.

I can think of no more fitting end to this column and to the Court’s term than this quote from Justice Sotomayor’s dissent in SFFA v. Harvard:

Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on... As has been the case before in the history of American democracy, “the arc of the moral universe” will bend toward racial justice despite the Court’s efforts today to impede its progress. Martin Luther King “Our God is Marching On!” Speech (Mar. 25, 1965).