There is much at stake as President Biden works to determine who he will nominate to fill Justice Stephen Breyer’s seat on the Supreme Court. The Supreme Court is poised to consider cases that could directly impact so many of our day to day lives. The new justice will not change the balance of the far-right 6-3 Court. But as the late Justice Byron White reportedly put it, with each new justice, there’s a new Supreme Court. Understanding what’s at stake as the Court threatens to block a progressive agenda and harm our rights is crucial.
Based on the Court's 2022-23 cases and lawsuits pending in lower courts, five areas of our rights are particularly at risk. These areas include threats to progressive efforts to protect our health and safety; discrimination and affirmative action; voting rights; efforts to hold President Trump accountable for past misconduct; and reproductive rights. Each of these will be discussed in more detail in a separate blog post in addition to the summary below.
Threats to progressive efforts to protect our health and safety
The Court has already voted to hear a case in 2022-23 that could seriously damage protection of our environment by significantly weakening the Clean Water Act. As one environmental expert put it, the new “conservative supermajority” on the Court seems “much more inclined” than in earlier years to “do a slash-and-burn expedition through our major environmental laws.” In addition, the Court appears likely to consider one or more rulings that have blocked Biden Administration efforts to combat the deadly COVID-19 pandemic through vaccination requirements, as it has done already concerning requirements for employees of large businesses and health care workers. The Court’s far-right justices have signaled a willingness to return to pre-New Deal constitutional interpretations. This would devastate our ability to adopt effective federal health and safety protections at all.
Discrimination and affirmative action
The Court has already announced that it will review lower court rulings that have approved the use of affirmative action to increase diversity at Harvard and at the University of North Carolina. The case threatens to achieve one of the far right’s goals: completely eliminating affirmative action. This would deprive students and their academic communities of the significant benefits of increased racial diversity. The right-wing majority may well also consider cases concerning other far right efforts to weaken discrimination protections, such as eliminating the principle under federal laws that actions that have an unjustified discriminatory effect on minorities are illegal even without proof of discriminatory intent.
Efforts to hold President Trump accountable for misconduct
Former President Trump has been filing numerous lawsuits to block efforts to investigate and hold him accountable for past misconduct. Although the Court recently rejected Trump’s request that it block the National Archives from releasing White House records to the congressional committee investigating the deadly January 6 attempted insurrection, other such issues are likely to come before the Court as well.
Voting rights
In the face of unprecedented attacks on our voting access, people are turning to the courts to protect our vote. People across the country are suing to counter Far Right attempts to restrict our voting access. As of last October, the Brennan Center was tracking 54 voting rights cases in lower courts. The Supreme Court is likely to be asked to rule on voting controversies after a new justice joins the Court in June - possibly before the November elections.
Reproductive freedom
The Court is currently considering a Mississippi case that is all too likely to further restrict reproductive freedom, possibly eliminating the protections of Roe v Wade. And the attacks to our reproductive rights likely won't stop there. The Court could also be asked to consider efforts to limit abortion access, like challenges to laws that protect access to reproductive care facilities.
The stakes are high
A new Black female justice could have an important impact on these and other future Supreme Court cases. The stakes are high - and we need to work together. It's time to make our support for the first Black woman justice on the Court loud and clear. And we won't stop there. We will work for more diverse fair-minded judges on every court - not just the Supreme Court. This could hurt people even in states where state law would protect abortion care rights if Roe is overturned.