December 8, 2022

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Encryption | A Supreme Court loses legitimacy

(New York) Barricades set up around the United States Supreme Court building after the release of a draft decision reversing the ruling Roe v. Wade Just a bad memory.

Published at 6:00 am.

Richard Head

Richard Head
Special cooperation

For the first time since the start of the COVID-19 pandemic, the public will be able to hear the arguments for a cause in person as we begin a new session that ends this Monday, March 2020. Next summer.

But what the return to normal will look like is only superficial. Because months after emphasizing the fractures in American society by issuing explosive decisions on abortion, guns and the environment, the nation’s highest court is on the hot seat. As has rarely been the case in its history, its legitimacy is challenged both internally and externally.

This new session should allow its conservative majority of six justices (out of nine) to continue to the right, which seems like a step backwards in the eyes of diverse Americans.

Among the issues on the menu: discrimination against same-sex couples in the name of religion; conservation of wetlands; The Future of Affirmative Action Policies on College Campuses; the survival of the 1965 Voting Rights Act, a pillar of the Civil Rights Movement; And the validity of an arcane theory that could change the way federal elections are administered.

United States Supreme Court Photo courtesy of Agence France-Presse Archives

Four women now sit on the United States Supreme Court: Amy Coney Barrett, Sonia Sotomayor, Katanji Brown Jackson, and Elena Kagan.

These last two questions in particular make progressives fear a new attack on the foundations of American democracy.

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However, these same progressives will appreciate the presence of Katanji Brown Jackson, the first African American among the Supreme Court justices this Monday. Stephen Breyer’s replacement won’t change the Supreme Court’s ideological balance, but it could help end the numerical dominance of white male justices. For the first time in history they will be a minority.

The expected change, however, won’t stop Elena Kagan, one of the Supreme Court’s three progressive justices, from raising alarms in recent months about the ideological drift of her conservative colleagues.

“I’m not talking about a particular decision or a particular series of decisions. But if the Court loses all touch with the public and public sentiment over time, that’s a dangerous thing for democracy,” he said last July during a speech to about 500 judges and lawyers in Montana.

Last month he was even more blunt, saying the Supreme Court could lose public confidence by ignoring the concept of “necessary decision” or by honoring decisions already taken.

“It doesn’t feel like law when new judges appointed by a new president come in and start throwing out old cases,” he said during a speech on the campus of Catholic University in Rhode Island last month.

It’s fitting that Supreme Court Chief Justice John Roberts stepped in to defend the controversial rulings of his fellow conservatives.

Photo by Kevin Lamarque, Reuters Archives

Ketanji Brown Jackson and John Roberts, Chief Justice of the US Supreme Court

“All of our views are open to criticism,” he told a panel of judges and lawyers last month. “In fact, our members do a great job of criticizing certain opinions from time to time. But the fact that people disagree with an opinion is no basis for criticizing the legitimacy of the court. ยป

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However, the scale of these criticisms cannot be ignored. According to a recent Gallup poll, only 40% of Americans approve of the Supreme Court’s performance, a historic low.

The same poll found that 42% of Americans, a plurality, believe the Supreme Court is “too conservative,” an extreme.

One of the most anticipated cases of the new session – Moore v. HARPER – These Americans can prove their point. Republican lawmakers in North Carolina want the Supreme Court to rule that state courts have no say in state legislatures’ actions related to federal elections.

The case is based on a ruling issued last February by the North Carolina Supreme Court. It rejected a new electoral map drawn by Republicans in the state that deliberately and illegally diluted the Democratic vote.

Republicans base their arguments on a legal doctrine known as the Independent State Legislature Doctrine. Some justices of the United States Supreme Court, including Clarence Thomas, Samuel Alito, and Neil Gorsuch, subscribe to varying degrees to this theory, according to which the United States Constitution reserves control over the conduct of federal elections only to state legislatures.

A favorable result for Republicans in North Carolina also applies to other key states such as Michigan, Wisconsin and Pennsylvania.

Given the prominent role state courts have played in Donald Trump and his allies’ challenges to the 2020 presidential election results, this will further undermine the legitimacy of the US Supreme Court.