The conservative revolution of the Supreme Court of the United States is ready for its second round | International
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An eight-foot fence surrounds the imposing Supreme Court building in Washington. It has been there since last May, when the draft of the sentence that two weeks ago repealed the federal right to abortion was leaked, and it is tempting to see it as the symbol of the abyss that separates its nine judges from the society whose destiny they hold in their hands: only a quarter of Americans trust them, an all-time low, according to the Gallup pollster.
The institution has been closed to the public since the beginning of the pandemic, they stopped reading the summary of the sentences and minority opinions without prior notice (which they disseminate in a rough PDF), and there are no plans for any of this to return. Thus, sheltered in their fortress, they have made decisions with lasting consequences on issues such as abortion, the fight against climate change, access to weapons or the separation of Church-State, which seem to meet the design of the conservative revolution of the majority of six judges, which is now ready for its second round.
The list of cases that the Supreme will study during the next course, which opens in October, includes the review of a controversial legal theory that advocates giving more power to the 50 state parliaments to decide on their own the rules of federal elections; the right of a Colorado woman not to design, protected by the First Amendment, a website to commemorate the marriage of a gay couple or the constitutionality of positive discrimination norms that privilege minorities in university admission processes. Specifically, two: one private (Harvard) and one public (North Carolina), accused of discriminating against Asian-Americans with better grades to facilitate access to other minorities, such as blacks or Latinos. Four decades of precedent support so-called “affirmative action,” which encourages colleges and universities to consider race in their admissions programs to promote diversity in the classroom.
“The decision to consider these cases as important already indicates that the majority [de seis contra tres liberales, la más amplia desde los años treinta] it is willing to continue converting its conservative agenda into law”, warns the professor of Law and Political Science at the University of Massachusetts Amherst Paul Collins, author of several books on the Supreme Court. For a case to end up before the nine magistrates, it is enough that four of them agree to study it. “Next year around this time [época en la que termina el curso en el alto tribunal] it is very likely,” Collins adds, “that we are talking about decisions that end affirmative action, destroy the Voting Rights Act, or give excessive power to state legislatures.” For the most part, these instances are controlled by the Republican Party.
One of them is that of North Carolina, which is at the center of the case whose acceptance has raised the most stir, Moore vs. Harper. It all started with the drawing of an electoral map by one of those Republican majorities, a design that the Supreme Court of its State overturned as unconstitutional and excessively partisan (it was, according to the judge, a flagrant case of what in the jargon local politics is known as gerrymandering, which implies twisting the cartography to take advantage of one of the two sides).
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Lawmakers have appealed that decision under a reading of the US Constitution known as the “independent legislature doctrine.” Emerged at the beginning of the century, when the president of the Supreme Court at that time, William Rehnquist, illuminated it in a concurring opinion of bush vs gore, sentence that gave reason and the presidency to George Bush son after a controversial electoral recount in Florida, defends that only the 50 state parliaments and the Congress in Washington have the power to decide the rules of the federal elections (the presidential ones and those that come the composition of the Senate and the House of Representatives). And that includes, according to the independent organizations dedicated to monitoring the democratic health of the country, a broad authority to manipulate electoral maps or to approve regulations that curtail the rights of minorities when deciding their ballot (minorities that tend to vote Democrat).
The issue is how two words, “state legislatures”, included in the so-called “electoral clause” of the Constitution are interpreted. They had been considered synonymous with the group of officials involved in the legislative process: from the governor to the secretary of state, the electoral inspectors or the courts. “If the independent legislature doctrine prospers, nothing and no one but legislators will have a say in the design of those maps. It is a completely unfounded theory that would threaten to push the US elections into chaos, ”says Ethan Herestein, of the independent organization Brennan Center for Justice. “It is inconsistent with the Supreme Court’s own views on the matter from 100 years ago and makes no sense. That is why it is crucial that it does not prosper.”
Moore vs. Harper it has the potential to undermine American democracy,” Collins abounds. “Taken to the extreme, it could push state legislatures to engage in ridiculously partisan election manipulation and pass laws that bar certain groups from voting in an effort to keep their own in power.” The professor of Constitutional Law at NYU (New York University) Richard H. Pildes considers, for his part, that if the Supreme Court recognizes the doctrine, which until now rested on the margins of the academy, the effects “will definitely be felt In the elections [presidenciales] of 2024″. “Whether they give it a broader or narrower scope also remains to be seen,” he adds. “But it will not imply, in any case, that the results of the popular vote can be ignored.”
The doctrine has enjoyed two revival attempts prior to this one. In 2015, it was used to try to dismantle redistricting in Arizona (and was rejected by the Supreme Court). Shortly after the 2020 elections, the still president Donald Trump and his allies dusted it off again as part of his effort, based on false theories, to annul the results that gave him as loser to Joe Biden. The high court again refused to adopt the theory, but three of its justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, all three still serving, endorsed it. The composition has changed since then with the entry, replacing the liberal Ruth Bader Ginsburg, of the conservative Amy Coney Barrett, the third toga that Trump managed to introduce (in the race) in the four years he was in power, and of Ketanji Brown Jackson, who takes the place of Stephen Breyer, retired this year (both are Liberals).
Herestein warns that these three opinions favorable to the controversial doctrine were issued in an emergency procedure (known as shadow dockets to the measures adopted by the court without an oral presentation of its arguments). “It will be much more difficult for any judge sympathetic to that theory to defend it in a comprehensive opinion after hearing the case and after months of public scrutiny in the press and on social media. Since the Tory magistrates started touting it a couple of years ago, there has been an avalanche of academic scholarship discrediting it.”
Although with this Supreme you never know, Herestein admits. In another pending case, Merrill v Milligan, in which the Voting Rights Act of 1965 is at stake, already gave indications in February of their sympathy towards Alabama state officials accused of diluting the representation of the African-American population by redrawing electoral districts (something that in the United States is every 10 years and that the pandemic forced to delay in 2020). Last February they decided not to take any action and postpone the reading of the case until the fall, which implies that in the legislative elections next November, Alabama will vote according to those questioned maps.
For now, the nine judges took vacation last week (during which they usually disappear from the media spotlight) with another pending issue: welcoming Jackson. According to court tradition, it falls to the youngest member, in this case, Barrett, to throw a party for the newcomer. In the Supreme Court’s anecdotes, stories of camaraderie between magistrates with irreconcilable ideas abound, but at the end of the most controversial course in memory (and which has included the leaking of the draft of the abortion sentence, an unprecedented breach of trust in its 232 years of history) not even that truce to celebrate the latest incorporation is guaranteed.
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