The new Supreme Court session will begin, as it always does, on the first Monday in October. As the justices take their seats come October 7, they will do so with ever fewer Americans impressed by the black robes, the Vatican-like intrigues taking place in the marble redoubt on First Street, the authoritative tone of increasingly partisan decisions that are almost impossible to reverse, no matter how infuriating or inexplicable. According to Gallup, only 24 percent of Americans who are or lean Democratic now trust the high court, a drop of 60 percent since the late 1990s. That may largely have to do with the demise of Roe, but there is a broader institutional collapse that cannot be chalked up to abortion alone. And it is all the court’s own doing. “It certainly wasn’t inevitable; it didn’t have to be this way at all,” says Melissa Murray, a constitutional law expert at New York University and co-host of the Strict Scrutiny podcast.If you thought this term might provide a bit of a respite from the tumult, think again. “The first week of arguments will not be a gentle beginning,” says legal expert Mark Joseph Stern of Slate. In its first week alone, the Supreme Court will hear two high-profile cases: Garland v. VanDerStock, about how much power the federal government has the power to regulate “ghost guns,” and Glossip v. Oklahoma, a high-profile capital punishment case that has become something of a referendum on the death penalty. It used to be, Murray said, that there was a “rhythm” to the Supreme Court’s work. “You have some blockbuster terms with a major culture war case, and then the next term would be mundane and quotidian,” she said. That has changed as the court’s ideological tilt has become more pronounced: “Now they’re just doing everything. Because when you have a conservative majority, you’ve got to make the most of it while you have it.”In its second week, the Supreme Court will hear oral arguments in San Francisco v. EPA, which could further weaken an already-eviscerated Clean Water Act. Later in the term, the decision in United States v. Skrmetti—a case originating in Kentucky and Tennessee—will decide how much capacity states have in limiting access to medical treatments for minors with gender dysphoria. “There will continue to be a lot of cases delving into the issue of the scope of the power of the administrative state,” a top expert on the conservative legal movement said (he would only speak under the condition of anonymity). In that regard, conservatives won a huge victory in last June when the Supreme Court overturned Chevron v. Natural Resources Defense Council, a 1984 case whose outcome, known as the Chevron Deference, gave experts in federal agencies the final say in how to interpret ambiguous laws. “That whole chapter is not over,” the conservative expert said. “You may see some challenges in the DEI space,” too, he predicted, following the blow to affirmative action in college admissions the high court delivered in 2023. Since then, conservative animus to racial diversity programs has continued to build.Immigration could also surface as a major judicial issue, the activist said, especially if Donald Trump wins the presidential election and, come January, issues a series of restrictive executive orders. That was the case in 2017, after Trump stopped people from several majority-Muslim countries from entering the United States. Despite a flurry of challenges, the Supreme Court upheld his ban.The growing power of the court, and the conviction of many justices that they are the foremost custodians of the nation’s founding principles, has led to a crisis of “judicial supremacy,” as Georgetown law professor Brad Snyder put it in 2022. Regardless of who wins in November’s presidential race, the Supreme Court will continue to remake vast swaths of American life according to its own hermetic principles, while the rest of us, remembering those long-ago civics lessons about three coequal branches of government with checks and balances, will wonder how we got here.I asked the conservative expert who, in his view, was the most important justice on the court. He answered without needing to give the question much thought: “Without question, right now, it’s Justice Thomas.” Not all that long ago, Clarence Thomas was considered something a fringe figure, his originalism so severe as to be irrelevant. But as the Supreme Court has shifted right, Thomas has come ever closer to its ideological middle, his standing buttressed first by Samuel A. Alito, Jr., and more recently by Neil M. Gorsuch (who is positioned to be “the next intellectual giant” of the court’s conservative bloc, my conservative source told me).But conservatives’ capture of the Supreme Court has come at a price. The loss of public trust, which began in the late 1980s, coincides with an intensifying ideological transformation. Now, many Americans view its decisions as hopelessly compromised, legitimate in name only. It didn’t help that some justices seemed to show contempt for public opinion and the old standards of political neutrality: most notable here was Justice Alito flying an upside-down American flag at his home in Northern Virginia, widely understood as a symbol supporting the January 6 insurrection (he had also flown another insurrection-adjacent flag at his beach house on the Jersey Shore, blaming his wife for both).These revelations, exposed by The New York Times in May, came in the context of the looming ruling in Trump v. United States. When that decision finally came on July 1, Chief Justice John G. Roberts, Jr., writing for the court’s six-justice conservative majority, judged that “the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.” Sure, Roberts did make clear that there is “no immunity for unofficial acts,” in case Trump really did decide to test his invincibility by shooting someone on Fifth Avenue. But that was small consolation.The immunity ruling was the capstone of conservative victories handed down by a court where three justices had been nominated by Trump (Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett) and two by George W. Bush (Roberts and Alito). During the session that began a year ago and ended last spring, the Supreme Court struck down the Chevron deference; sided with Grants Pass, Oregon, in severely curbing the rights of the homeless to camp in places like parks and public plazas; limited the extent to which prosecutors could charge the Trump supporters who rioted at the U.S. Capitol on January 6; struck down the Biden administration’s rule on air pollution that originates in one states but affects another, as is often the case; nullified a federal ban on gun enhancements known as bump stocks; and upheld South Carolina’s heavily gerrymandered congressional districts, which had been drawn to minimize Black representation.All those decisions came on the heels of 2022’s Dobbs v. Jackson Women’s Health, a case that originated in Mississippi and became the vehicle conservatives had sought for decades to finally shatter the federal reproductive health protections that had been enshrined in Roe v. Wade a half-century before. After that decision, it became difficult for many Americans, who by and large oppose abortion bans, to see the Supreme Court as anything but a catchment basin for the Federalist Society and Heritage Foundation.“Courts are supposed to be neutral,” says David Orentlicher, a Supreme Court scholar at the University of Nevada-Las Vegas William S. Boyd School of Law. “And it’s not a neutral court. Judging shouldn’t work like politics.”It now looks like we were misguided to ever believe that the trends at work on our politics would for some reason spare our courts. “As the nation has become more polarized, especially in the last 15 years, this is what you get,” says author and former federal prosecutor Jeffrey Toobin, whose book The Nine explored the court’s internal dynamics and response to external pressures. “You have a deeply polarized politics, and that’s reflected in the Supreme Court.” Not all that long ago, Antonin Scalia was confirmed with a 98-0 majority in the Senate. His ideological opposite, Ruth Bader Ginsburg, received the votes of 96 Senators, with three “nay” votes and one abstention. “We’ll never see that sort of unanimity again,” Toobin said. In the spring of 2021, The Wall Street Journal published an explosive investigation that found that “152 federal judges around the nation have violated U.S. law and judicial ethics by overseeing 1,076 court cases involving companies in which they or their family owned stock.” As head of the Judicial Conference, a body that meets twice a year to consider issues relating to the federal court system, Roberts has oversight not only of the eight other justices, but of the thousands Article III judges (a reference to the U.S. Constitution) on lower federal circuit and appellate beaches that require Senate confirmation. So his response to the scandal exposed by the Journal was exceptionally revealing, even if it did not seem, at the time, to impact his work on the Supreme Court.In the year-end report customarily issued on the last day of December, Roberts opened with a defense of the “ample institutional independence” that courts required. “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and coequal branch of government,” he wrote.Later in the report, Roberts explicitly acknowledged the Journal investigation, arguing that the ethical lapses the article had identified had allegedly been committed by “a very small fraction” of Article III judges. And their transgressions were “a matter that self-governing bodies of judges from the front lines are in the best position to study and solve.”In other words, Roberts would clean the Augean stables on his own.
https://newrepublic.com/article/186523/new-supreme-court-session-cases-fall-term-monday-not-pretty