After overturning Roe v. Wade and erasing the constitutional right to obtain an abortion last term, the Supreme Court begins its new term this week poised to weaken legal protections against discrimination. Make no mistake: Five people, a bare majority on the court, will fundamentally reshape our society throughout the next nine months.
On Tuesday, the second day of the term, the court will hear a case that will define the power of the Voting Rights Act to prevent racially discriminatory redistricting plans. After the 2020 census, Alabama, like all other states, drew new legislative district lines. State lawmakers drew the lines for the House of Representatives so that only one of the seven districts would be a majority-Black district, even though Black people make up 27% of the state’s population.
Registered voters, the Alabama chapter of the NAACP, and others challenged this redistricting plan as illegally diluting the power of Black voters. Essentially, they successfully argued in a lower federal court that the plan packed many of the Black voters into one district and dispersed the other Black voters throughout the other six districts. The legal problem is that such a plan prevents Black voters from being able to elect the candidate of their choosing in all but one district. This amounts to vote dilution, a violation of Section 2 of the Voting Rights Act. In January, a three-judge panel of trial court judges — two appointed by President Donald Trump and one appointed by President Bill Clinton — concluded there was very likely a violation of the Voting Rights Act and told state lawmakers to redraw the district lines to create two majority-Black districts.
But just weeks later, five conservative Supreme Court justices, over the objections of the three liberal justices and Chief Justice John Roberts, put that decision on hold until the high court could hear the case. The conservative majority of the court allowed Alabama to prepare for midterm elections using district lines that have already been declared a substantially likely violation of federal law — a chilling sign for voting rights under this court.
The Alabama case isn’t the only one dealing with discriminatory redistricting and voting rights. Before next summer, in what could be the most impactful case of the term, the justices will decide whether to accept an extremist doctrine known as the “independent state legislature” theory. This argument says that only state lawmakers, not state court judges, have the final word on issues related to federal elections, including redistricting.
Without state judicial review, federal judges are the only ones who can review state lawmakers’ decisions regarding federal elections and the appointment of presidential electors. But federal judges can only step in when there is a question of federal law. And if, as expected, the court does erode federal voting rights protections, federal judges won’t be able to act as much of a safety valve. In sum, if the Supreme Court grants state lawmakers carte blanche to make decisions regarding federal elections, look for more racial and political gerrymandering of federal legislative district lines. This ultimately dilutes the right to vote, discriminating against voters based on race or party affiliation.
On Halloween, the court will tackle racial discrimination from a very different angle. The court will hear oral arguments in two much-anticipated cases that ask whether colleges and universities can employ race-based affirmative action programs as part of their admissions process. These programs are of course intended to help create more diverse student bodies and to help remedy a past system of discrimination. The current legal standard, set by the court back in 2003, allows colleges and universities to use race as one factor in its admissions processes. But the fact that the court took the cases at all almost certainly indicates that the court wants to change the current law and conclude that race-based affirmative action violates the Constitution. There is really no reason to agree to hear these cases unless the court wants to change the current framework.
Finally, later this term, the court will address a different type of discrimination: discrimination based on one’s status as a member of the LGBTQ community. In this case, an artist wants to refuse to design wedding websites for same-sex couples because she argues that same-sex marriage violates her religious beliefs. The legal problem for the would-be website designer is that a state anti-discrimination law prevents discrimination on, among other things, the basis of LGBTQ status. Look for the court to continue its trend of protecting those who voice religious objections, even in the face of anti-discrimination laws.
These four cases — and the probable weakening of legal protections against discrimination — will likely be the starkest examples of the current Supreme Court’s worrying direction. This court is not taking our country on a gentle turn to the right. At least five justices have and will continue to veer sharply to the right. And in the near term, there’s no legal or political process to stop these justices, unelected by design, from erasing many of our legal protections against discrimination.