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Supreme Court with Justice Jackson faces major tests on race


(WASHINGTON) — At the U.S. Supreme Court, the siege may be over, but the mood is still sour.

The nine justices of the nation’s highest court, six conservatives and three liberals, publicly reconvene for business Monday for the first time since its blockbuster decision overruling Roe v. Wade abortion rights. They face a steep slide in public confidence even as protests have subsided and security barricades come down.

“The big question now is will the justices feel any pressure at all to respond to public disapproval. It doesn’t look like it,” said Jeffrey Rosen, president and CEO of the National Constitution Center.

The conservative majority, led by senior conservative Justice Clarence Thomas, is poised to deliver more dramatic changes to American law in the months ahead, including in several disputes involving race.

“The five most conservative members of the court are interested in a maximalist strategy, basically to move the law as far and as fast as possible while they retain control of this court,” said Kate Shaw, Cardozo School of Law professor and ABC News legal analyst.

“Underlying the challenges in each of the race-related cases is the idea that the Constitution absolutely prohibits any distinctions on the basis of race, no matter what the motivation,” Shaw said. “I think we could well see a vindication of that position.”

The justices will hear arguments over the use of race in undergraduate admissions at Harvard University and the University of North Carolina later this month. The court’s conservatives appear ready to end affirmative action in higher education, reversing decades of precedent and outlaw any consideration of race as a factor in student admissions.

“This could be the term when the court said clearly that the Constitution is colorblind — across a range of state action,” said Rosen, “and further restricts the ability to be race conscious in voting rights and adoption. And that will be a sea change in American law. “

The court will decide whether Alabama’s election maps dilute Black voting power under the Voting Rights Act, and in a major case from North Carolina decide whether state legislatures should have significantly more power over federal elections.

“It has a lot of implications on who gets to set that time, place and manner of actual elections,” said Sarah Isgur, a former Justice Department attorney and ABC News legal contributor.

The justices will also hear also a major case on gay rights and free speech which could have sweeping implications for anti-discrimination laws nationwide.

“The stakes really could not be higher for LGBTQ people,” said Jennifer Pizer, acting chief legal officer of Lambda Legal, which advocates for members of the gay community.

A wedding website designer is asking the court to strike down a Colorado public accommodation law that she says forces her to serve LGBTQ couples. “There are certain messages I am unable to promote through my business,” said Lorie Smith, the designer and owner of 303 Creative LLC.

After a major ruling last term on regulation of power plants, the justices will rule on the EPA’s power to protect wetlands over the objections of property owners. They will also take up California’s Proposition 12, which would ban the sale of pork from pregnant pigs kept in crates.

“If this law were to stand, pork — especially in California — would be much more expensive,” said Lori Stevermer, vice president of the National Pork Producers Council.

Those cases will play out during a campaign season dominated by unusually high voter engagement around the court.

“Women are registering in larger numbers in a number of critical states since the Dobbs [abortion] decision, and all of that in a close election cycle could make a difference in a number of races,” said Shaw.

With a surge in partisanship over the court, several of the justices have tried to project unity.

“We like each other. We really do,” said Justice Amy Coney Barrett at a joint event with Justice Sonia Sotomayor earlier in the summer. “As is often joked, this is like a marriage. We have life tenure and we get along.”

But behind the scenes, relations between some of the justices remain tense, sources say.

Who leaked a draft majority opinion by Justice Samuel Alito on abortion is still an apparent mystery, several justices have said publicly. A report on the internal investigation is expected as soon as this month, but it’s unclear if the findings will be made public.

“I worry that these types of leaks will become commonplace at the Supreme Court” if they don’t identify the alleged leaker, said Carrie Severino, a former Thomas clerk and president of the Judicial Crisis Network, a conservative legal advocacy group.

Into the fray steps Justice Ketanji Brown Jackson, the sixth new justice in the last 13 years.

“Justice Jackson is going to be a fantastic colleague and bring all kinds of new things to the table,” said Justice Elena Kagan during an appearance in Chicago last month.

Jackson is the first former public defender and first Florida-raised justice. Her appointment marks the first time that four seats on the high court bench will be filled by women.

“It’s unlikely that she’ll be the deciding vote on some of these top cases, on the other hand, she could have enormous influence on the court in her ability to focus her dissents at specific justices to change some of those majority opinions,” said Isgur.

Vogue magazine gave Jackson the spotlight last month with portraits taken at the Lincoln Memorial — her first major media appearance since being sworn in. But it’s Justice Thomas who most legal experts are watching closest ahead of the court’s decisions in the weeks ahead.

“This is the Thomas Court,” said Rosen. “And Justice Thomas can enact many of the efforts to overturn precedents that he’s been arguing for for a really long time.”

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