WASHINGTON (CN) — The Supreme Court will embark on its new term with public approval at an all-time low and questions of legitimacy dominating headlines. As the country contends with the fallout from blockbuster rulings upending years of precedent, the justices are preparing to put more long-established rulings on the chopping block.
“We saw last term the court aggressively exercising its newfound conservative power to upend long-established precedents, most dramatically in Dobbs, of course, but also with respect to religion, public schools, public carrying of guns, and the EPA’s ability to regulate the environment,” David Cole, legal director at the American Civil Liberties Union, said. “The court appears ready to do so again.”
Legal experts have noticed an emerging trend from the last term bleeding into the court’s next act. As the justices show they are willing to make dramatic changes to established law, litigants are increasingly asking the court to challenge more precedents. The court’s willingness to add these cases to their docket this term signals an interest in continuing that trend.
“Litigants are much more aggressively inviting the court to reconsider and rewrite established precedent,” Cole said. “They see what the court did last term, and they're asking for more. The very fact that the court took cert on many of these cases in which the litigants are asking for overturning precedent shows that the court is not likely to act modestly, or at least is not inclined to act modest.”
One case on the court’s chopping block this term is Grutter v. Bollinger, which upheld affirmative action admissions policies. Students are challenging affirmative action policies at Harvard and the University of North Carolina in an attempt to overturn Grutter. Students for Fair Admissions — the group bringing these challenges — claims Grutter is not consistent with Brown v. Board of Education, which said racial segregation in public schools is unconstitutional.
Like Roe v. Wade, Grutter has been reaffirmed multiple times — most recently in 2016 — however, the court’s willingness to hear the case has caused some experts to speculate that the conservative supermajority will take another swing at overturning the almost two-decade-old precedent.
Justice Sonia Sotomayor is the only justice still on the court who voted to uphold affirmative action in Fisher v. University of Texas at Austin. Justice Elena Kagan recused herself from the case. This is the first time Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett will hear challenges to affirmative action. Justice Ketanji Brown Jackson — the first Black woman on the court — has recused from the Harvard case but will sit for the UNC challenge.
Experts say the court’s ruling in these cases will be impactful because race continues to matter in this country.
“Race continues to matter,” said Deborah Archer, president of the ACLU and a professor of clinical law and co-faculty director of the Center on Race, Inequality, and the Law at New York University School of Law. “It continues to constrain the outcomes for some life opportunities for some and to expand opportunities and outcomes for others.
Archer said schools are still grappling with racial inequality and the nation is facing a backlash to moving toward equality.
“Our nation now is really in the midst of an ongoing and significant backlash against the decades of work to move toward greater racial equity, and the fight against the systems and the forces of white supremacy has combined with this underlying fear of what a racially just world looks like, and has led to a wave of attacks across issues,” Archer said. “I think that these cases are a part of that wave of attack on even small efforts toward racial equality.”
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