The Supreme Court’s Republican-appointed majority is poised to continue its rightward march in 2023, with momentous decisions expected on voting rights and other issues affecting our daily lives and democracy.
The court was late to issuing opinions this term, which began in October, a possible sign of intense internal disagreement. The justices finally issued their first opinion this week. There’s no love lost at the court following last term’s overruling of Roe v. Wade and expansion of gun rights. Justice Sonia Sotomayor recently spoke of a “sense of despair” she has felt at the court. Justice Elena Kagan has openly suggested the court has been acting politically. The third Democratic appointee on the court, Ketanji Brown Jackson, hasn’t made such a statement — her tenure began just seven months ago — but no doubt understands this reality, too.
When it comes to the decisions that may continue Sotomayor’s and others’ sense of despair, there will be some important ones argued early this year, involving President Joe Biden’s student debt relief program and the Title 42 immigration policy. The court’s handling of the immigration dispute in particular has already been troubling, effectively extending the Trump-era policy while litigation plays out.
But several of the term’s most important cases have already been argued. We’re just waiting on decisions, which may come toward the court’s unofficial end in late June, when the most contentious decisions are rendered. Here are some of those big cases we’re waiting on.
Merrill v. Milligan (voting rights)
Chief Justice John Roberts’ court has not been friendly to the landmark Voting Rights Act of 1965. The Republican-appointed majority gutted a key part of the act in 2013’s Shelby County v. Holder. The infamous decision authored by Roberts prompted Ruth Bader Ginsburg’s famous dissent, where she observed that the majority tossing out voter protections is like “throwing away your umbrella in a rainstorm because you are not getting wet.” This latest case — like Shelby County, it’s also from Alabama — deals with another part of the act that’s in danger at the high court.
Students for Fair Admissions v. Harvard and North Carolina (affirmative action)
Two technically separate but very similar cases involving the Roberts Court’s “colorblind” quest that could end affirmative action. In a 2003 ruling, then-Justice Sandra Day O’Connor said she expected the practice to be unnecessary 25 years later. With an even more conservative court running the show these days — O’Connor was replaced by Samuel Alito, followed by the Trump-era personnel changes that brought in three more right-wing justices — the court seems eager to move up that deadline.
Like in the Alabama voting case, democracy is at issue in another case this term — involving the so-called independent state legislature theory. The fringe theory pushed by MAGA loyalists like John Eastman could lead to state legislators controlling federal elections without constitutional oversight. While the oral argument in December suggested that a majority might not adopt the most extreme version of the theory, the fact that the court agreed to consider the issue in the first place is alarming. Remember when Alito mused maniacally about Black Santa Clauses and kids in KKK costumes last month? He was discussing this case. It’s religious conservatives’ latest attempt to avoid compliance with anti-discrimination laws, this time in a contrived dispute over making websites for same-sex weddings. Readers may recall a similar case back in 2018, when the court ruled in favor of a baker who didn’t want to make a cake for such a celebration. The court’s Republican margin has grown since then, so a similar outcome is expected. We’ll be watching all these cases and other high-court and legal happenings this term, including any developments on the court’s so-called investigation into the Dobbs leak. Follow along on the blog for key developments. Related:
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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