Updated October 7, 2022: On Monday, the Supreme Court began its new term after a quite memorable one ended this year in which historic events like Roe v. Wade were overturned and the Environmental Protection Agency lost its regulatory abilities to control carbon emissions.
Since the end of former President Donald Trump’s term, the Supreme Court has been ruled by a 6 to 3 conservative majority — many speculating this trend could continue into the next term.
Alongside a right-leaning majority, others question the court’s legitimacy, citing that personal opinions are determining the Supreme Court’s agenda and decisions.
On October 6, Steven Donziger, a human rights lawyer and environmental justice advocate, rang the alarm, with a chilling article published in the UK Guardian, arguing that if the US Supreme Court takes on a little-known case called Moore v Harper, which at its heart has a ” formerly fringe legal notion called the Independent State Legislature (ISL) theory”, it could “lock in rightwing control of the United States for generations.”
This, as Donziger convincingly argues, means that the United States would join other illiberal states, like Hungary, Poland, Turkey or Russia, where leaders “ostensibly ‘won’ elections that were structurally rigged to virtually guarantee they could not lose.”
A historic term: The impact of recent Supreme Court decisions
Several notable case decisions occurred in the Supreme Court’s prior term. One of the most important decisions was the court’s ruling to overturn Roe v. Wade, the landmark ruling passed in 1973 establishing the constitutional right to abortion.
Prior to abolishing Roe v. Wade, a leaked draft opinion from the court was published by Politico, detailing the majority of conservative judges’ opinions on Roe v. Wade and their intention to overturn it.
After the leak was released, chaos erupted in America, with citizens protesting outside of the Supreme Court to the point where a black fence had to be secured around the perimeter. As judges made their final deliberations, several of them even faced death threats — Justice Brett Kavanaugh was almost killed by a man with a gun outside of his Maryland home.
As expected, the court ruled to overturn Roe v. Wade in a 5 to 4 vote, significantly damaging its reputation in the eyes of Americans across the country.
Another case that contributed to the idea of an “agenda-seeking court” was the EPA vs. West Virginia court case.
In late June, the court ruled in a 6 to 3 vote that the EPA had overextended its authority under the Clean Water Act to regulate carbon emissions and that Congress did not give the EPA explicit congressional authority to regulate emissions.
In effect, the decision not only weakened the EPA’s authority and significantly hurt efforts to fight back against climate change — something many Republicans continue to deny exists — but changed the federal structure as a whole.
By stating the EPA wasn’t given explicit congressional authority, in turn, affects all other federal agencies such as the FBI and CIA who aren’t given explicit authority by Congress every time decisions are made.
In essence, the court weakened environmental protections while also dismantling federal agency structure as a whole.
Supreme Court cases next on the chopping block
Setting aside the question whether the Court will address the Moore v Harper case, and with it, likely impose on the country the Independent State Legislature (ISL) theory, two of the next cases the Supreme Court is set to addres in its new term stand out: One pertains to the limitations of social media and the other to clean water regulation.
Just as the new term began Monday, the Court was overhearing a case to determine whether social media companies can be sued for hosting and recommending terrorist content.
In Gonzales v. Google, Google is trying to defeat a suit involving the death of 23-year-old US citizen Nohemi Gonzalez, who was among 129 people killed in the coordinated ISIS attacks in Paris in 2015.
Gonzales’s family claims Google’s Youtube service, through its algorithm, was recommending the terrorist groups’ videos to other users, violating the Anti-Terrorism Act.
However, social media companies have been previously protected under a provision known as Section 230, part of the 1996 Communications Decency Act which states:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The case will determine whether social media companies are responsible for the content published on their website, potentially changing the makeup of how social media companies operate.
Another high-stakes case at the moment is Sackett v. the Environmental Protection Agency.
The case stems back to a 2007 property dispute, in which Idaho landowners Michael and Chantell Sackett attempted to build a home on their property that was part of a regulated wetland. The Sacketts were told they would need a federal permit to build on the wetland.
Now, 15 years later, they are arguing that the federal government’s view on regulated wetlands is too broad — wetlands being protected by the Clean Water Act.
However, if the Court sides with Sackett, the repercussions could be immense. Environmentalists argue that it is important to protect these ecosystems as they have significant connections to other bodies of water and are locked in a web of water systems that prevents pollution.
Already, a Trump Administration rule has reportedly left 51% of wetlands unprotected
The court’s decision could determine the future of wetlands, as they are already on a balancing beam waiting to tip over.
The Supreme Court’s legitimacy is brought into question
After the Court’s previous term and coming into the new one, many Americans are losing faith in the Supreme Court and its authority.
According to the Washington Post, polls show public approval of the court dropped to historic lows, with a record number of Americans stating the court is too conservative.
The justices themselves are also deliberating on what this shift toward conservative views means for the Court.
On one side, Chief Justice John G. Roberts Jr. defends his fellow conservative colleagues saying unpopular decisions should not call the Court’s legitimacy into question.
However, on the other hand, liberal Justice Elena Kagan is concerned about the next precedents the Court will set and how they will continue to affect public perception on the bench.
At Salve Regina Roman Catholic university in Rhode Island last week, Kagan sounded worried about the court’s future. She pointedly said:
“The court shouldn’t be wandering around just inserting itself into every hot-button issue in America, and especially it shouldn’t be doing that in a way that reflects one ideology or one set of political views over another.”
She further noted that the recent disregard of stare decisis — the doctrine of abiding by past decisions in the absence of compelling evidence — invokes public distrust in the court. As she said:
“It just doesn’t look like law when some new judges appointed by a new president come in and start just tossing out the old stuff.”
As the justices themselves continue to debate their own legitimacy, the public appears to have an even bigger right to distrust the court as they continue to dispute their own role in American politics.
While the Court does its job in the next term, it is likely that the political outcomes and the Republican party the Court seems to reflect will continue to underpin rising distrust in the Court from the American people and disagreement within the Court itself. All this could lead to a drastic change in the framework of American politics in general – hopefully not as dramatic as envisioned by Donziger, but nonetheless deeply worrying.
Editor’s Note: The opinions expressed here by Impakter.com columnists are their own, not those of Impakter.com — In the Featured Photo: US Supreme Court. Source: Ian Hutchinson.
