The final days of the US supreme court’s term offered a clear look at the way its new 6-3 conservative majority is bluntly using its power to reshape American life, but its next term is also set to hear cases that could prove equally, or even more, consequential.
“This really is the ‘Yolo’ [you only live once] court,” said Leah Litman, a law professor at the University of Michigan who closely follows the court. “I don’t think people fathom just how much more they will do.”
Certainly that has proved so in the term just concluded – one of the most far-reaching and radical sessions of the court in recent history.
In a series of decisions along ideological lines, the court struck down the constitutional right to an abortion, got rid of restrictions on carrying a concealed handgun in public, chipped away at the barrier between government and religious life, and limited the ability of the federal government to protect the environment.
The court also intervened to rule against Black voters in Alabama and Louisiana, allowing congressional maps lower courts found to be discriminatory to go into effect for the 2022 elections. In another voting case, the court departed from usual procedure and went out of its way to hand Wisconsin Republicans a victory in a dispute over legislative maps.
The court’s turn has prompted glaring warnings, both to the public and to history, from its three liberal justices, who have been in the minority in all of the major cases.
In December, Justice Sonia Sotomayor wondered aloud whether the court would be able to survive the “stench” that would come from overturning Roe v Wade and the perception that the court is a political body. She said she didn’t think it was possible the court would survive.
Months later, when the court did overturn Roe, Stephen Breyer, writing on behalf of the three liberal justices, quoted Thurgood Marshall and wrote: “Power, not reason, is the new currency of this Court’s decisionmaking.”
The court is already set to deal with even more hugely consequential cases when it convenes in the fall.
One of those is Moore v Harper, a case from North Carolina that seeks to block state courts from being able to weigh in on disputes over rules for federal elections. The case asks the justices to approve the so-called independent state legislature Theory (ISL) – an idea that argues the US constitution gives state legislatures a power to set voting rules for federal office that cannot be checked by state courts.
A decision endorsing that idea would have profound implications for US elections. It would give lawmakers virtually unfettered authority to gerrymander district lines to their advantage. Such a decision would be a huge win for Republicans, who have control of far more legislatures than do Democrats. Republicans have used their redistricting power to entrench those advantages for another decade.
The theory has no basis in the constitution’s text and history and would go against the idea of separation of power at the heart of US government.
“The court would look so bad if it embraced ISL after kind of having thrown Roe under the bus for being made up,” said Vikram Amar, dean of the University of Illinois college of law who has studied the theory. “ISL is as made up as anything I know out there in constitutional law.”
There’s also some concern that embracing the theory could pave the way for lawmakers in certain states to override the popular vote and appoint their own set of presidential electors in a future election. It was an idea at the heart of Donald Trump’s efforts to overturn the 2020 election. J Michael Luttig, a well-respected conservative judge who has spoken out against Trump’s efforts to overturn the election, has called for the supreme court to rule against the theory ahead of 2024.
In October, the court will also hear Merrill v Milligan, a case that could deal a significant blow to what is left of the Voting Rights Act, the landmark 1965 law designed to prevent discrimination against minority voters. A portion of the law, section 2, makes it illegal to draw districts that prevent minority voters from electing the candidate of their choice if certain conditions are met.
Earlier this year, a three-judge panel cited that provision to strike down Alabama’s congressional map. In an extensive 225-page opinion, the judges said that Alabama Republicans had diluted the influence of the Black vote in the state by cramming Black voters into just one of seven congressional districts. The court said the state needed to draw a second district where Black voters could elect the candidate of their choice.
Black voters make up 25% of the state’s population. One expert said it was a “textbook example” of voting discrimination. The three-judge panel also said the case was not a close one.
But the court paused that ruling, allowing the maps to go into effect. It also issued a pause in a similar case striking down discriminatory maps in Louisiana.
When it hears the case in the fall, it will consider how much lawmakers are required to consider race when they draw electoral districts in comparison with other criteria. A ruling in favor of Alabama would provide significant cover for lawmakers to draw discriminatory districts and justify them with race-neutral criteria.
“States then could define all sorts of neutral criteria that would make it impossible to ever draw a VRA district,” Michael Li, a redistricting expert at the Brennan Center for Justice, told the Guardian in February.
Litman, the University of Michigan professor, said the justices had clearly aligned themselves with Republicans.
“This court sees itself as an arbiter of history in addition to law. It just declares one side – the Republican party and the Republican party platform – as heir to the country’s history and traditions,” she said. “The Republican-appointed justices have an us v them mentality; they don’t feel any sense of obligation or need to listen to people on the opposing side.”
