Supreme Court May Soon Roll Back Affirmative Action and Voting Rights

As public support of the conservative-dominated Supreme Court falls to a record low, justices are set to hear major cases on affirmative action, voting rights and online speech. Monday’s court term opened with Justice Ketanji Brown Jackson, the first Black woman to hear a Supreme Court case. Although Jackson is a welcome progressive voice on the bench, “all she’ll be able to do is to highlight the extremism of the conservative majority voting bloc on the Supreme Court,” says The Nation’s legal correspondent Elie Mystal. He also said that the term ahead will include challenges to Native American sovereignty and voting rights. LGBTRights and more

This is a rush transcript. Copy may not be final.

AMY GOODMAN:Monday was a historic day for the U.S. Supreme Court. Justice Ketanji Brown Jackson became first Black female justice ever to hear a Supreme Court case. After Stephen Breyer’s retirement, President Biden appointed Jackson. Justice Ketanji Brown Jackson spoke to the Library of Congress on Friday in preparation for her first day as a judge.

JUSTICE KETANJI BROWN JACKSON:Reflecting back on my recent experience of being appointed the first Black woman to the Supreme Court, it is this, more than any other, that I am most proud of. People from all walks come to me with what I can only describe is a profound sense pride and what feels like renewed ownership. It is evident in their eyes. I can hear it in the voices of their voices. They stare at me as if to say, “Look at what we’ve done.” They say — they say, “This — this is what we can accomplish if we put our minds to it.” They might not use those words, but I get the message. They call on their ancestors, looking back to history and claiming their share. They are saying to me, in essence, “You go, girl.” They’re saying, “Invisible no more. We see you, and we are with you.”

AMY GOODMAN: Justice Ketanji Brown Jackson, speaking Friday. She joins a Supreme Court that is experiencing a six to three majority for conservatives and low public support. Gallup recently found that only 25% of respondents have confidence in the Supreme Court. In its last term, conservative courts overturned Roe v. WadeExpanded gun rights in the United States. This term, the court will hear major cases on affirmative action and voting rights. LGBTQrights, online speech and other information

To talk more about what’s ahead for the court and the significance of the latest justice on the court, Elie Mystal is with us, The Nation’s justice correspondent, author of the best-selling book Allow Me to Retort: A Black Guy’s Guide to the ConstitutionHis most recent publication is article, “The Supreme Court Returns on Monday, Stronger and More Terrible Than Ever.”

Elie, we are glad to have you back. Democracy Now! Let’s start with this historic first. Let’s start with Justice Ketanji Brown Jackson. Talk about the significance and what she faces on that docket.

ELIE MYSTAL:Good morning Amy. Thank you for having us.

Yes, Ketanji brown Jackson is great. Yesterday was her first day. She already got right in there, asking really pertinent and probative questions of the attorneys at the case, so she didn’t seem to need a whole lot of time to get comfortable in her new job.

I think she’s going to be a great justice. I think she is going to have a great career ahead of her — writing dissents, because she is clearly in the minority on that court, and the things that are coming down the pipe are terrifying and horrible, and all she will be able to do is — through her questioning at oral arguments and through her writing at decision time, all she’ll be able to do is to highlight the extremism of the conservative majority voting bloc on the Supreme Court.

AMY GOODMAN: So, let’s talk about affirmative action and voting rights. Voting rights, oral arguments will be heard tomorrow. Discuss these cases and how they might change the country.

ELIE MYSTAL: Yeah, so let’s start with voting rights. Amy, that’s the case. It’s 11:00. I’m already —

AMY GOODMAN: Sorry, today.

ELIE MYSTAL: Yeah — getting ready for it. This is the first type of case that comes out of the docket. It involves an Alabama gerrymandered District. Their state should have had two majority-majority districts — majority-minority districts; instead, they only had one. We go back and forth a little. The Voting Rights Act Section 2 will likely be attacked again. People need to be aware that five of the five current justices on Supreme Court were not allowed vote when the Constitution was written. We’ve gone through a lot of constitutional amendments. We fought a war to establish universal suffrage. But that idea of universal suffrage didn’t become a reality for a large minority of Americans until the passage of the Voting Rights Act in 1965. Chief Justice John Roberts has been an enemy for most of his career because of that act. One of the first things we will see in this term is another Roberts-led attack upon universal suffrage.

We will hear our cases regarding affirmative action later this month. Amy, I’ve said many times, Republicans and Clarence Thomas have been trying to kill affirmative action for as long as I’ve been alive. They will do it this October, this term. They will hear a case this October — excuse me — that will allow them to do it. And they will end affirmative actions this June. Any hope that they would find a way to preserve affirmative action was lost when they overturned. Roe v. Wade, because when you have a court that’s willing to overturn 50 years of precedent and reduce women to the status of second-class citizens, it is not hard to overturn another 50 years of precedent and make college admissions safe for mediocre white failsons, which is what they’re going to do this June.

AMY GOODMAN:Monday was the hearing of oral arguments by the Supreme Court in the matter of Sackett v. EPA. The case challenges the Clean Water Act and the federal government’s ability to protect and preserve wetlands. Justice Ketanji Brown Jackson asked Damien Schiff, the lawyer representing the Sackett family that sued the court, questions during oral arguments. EPA. Let’s listen.

JUSTICE KETANJI BROWN JACKSON: Why is it that your conception of this does not relate in any way to Congress’s primary objective? Do you dispute that the primary objective, as stated in the statute — I guess it’s at 1251 — is that Congress cared about making sure that the chemical, physical and biological integrity of the nation’s waters was protected?

DAMIEN SCHIFF: Justice Jackson, we don’t dispute that. However, no statute pursues its intended purpose or its objective at every cost. The limitations in the statute, however, are just as important to its purpose as its affirmative authorisation.

JUSTICE KETANJI BROWN JACKSON: So why didn’t Congress say “immediately adjacent”? If they were trying to achieve something different than what the regulations had said about adjacency, if they were balancing their concerns about protecting the integrity of the navigable waters with the property interests in the state’s right to control it, why didn’t they say “immediately adjacent” in terms of the wetlands coverage?

AMY GOODMAN: So, that’s Justice Ketanji Brown Jackson as she spoke in the oral arguments of the first case that she is considering in the Supreme Court as a Supreme Court justice. Elie Mystal, to put it in lay terms, explains what this case against the Supreme Court. EPA.

ELIE MYSTAL:You know what originalism is? I love your question! The idea that when in doubt, when there’s ambiguity, we should go back to the original intentions of the white male, exclusively, Founding Fathers and think about what they might have wanted back in the 18th century, right?

So, Ketanji Brown’s question, she does it the other way, right? What’s the alternative to originalism? It seems to be something similar to Justice Jackson’s question, right? Because she is focusing on what Congress wants, right? We should interpret laws, we should interpret ambiguity in laws, not based on what some long-dead white people wanted; we should interpret laws based on what the law was intended to do by the people — many of whom are still alive — by the people who passed the law. So, when she’s looking at the Clean Water Act, she’s thinking, “What did Congress want the Clean Water Act to do?” not “What did James Madison perhaps want the Clean Water Act to do back in a time when he didn’t understand that you couldn’t drink lead?”

So, the response to her question, and the framing, is both a response and a resistance against the conservative majority on court. Unfortunately, it’s a resistance to the conservative majority on the court, and the decision in this case, when it comes down, will probably once again harken back to long-dead white men instead of our modern issues with climate change. And again, the court already showed its hand on that last term when it eviscerated the Clean Air Act and Congress’s ability to regulate under it.

AMY GOODMAN:Elie, please give us a glimpse of the cases involving Native American families before we move. LGBTQ rights?

ELIE MYSTAL:These are important cases that will also be discussed later in the term. For Native American families, it’s a direct challenge to the Indian Child Welfare Act that has been drummed up by conservatives who want to adopt Native children. Now, the Indian Child Welfare Act says that it is tribal sovereignty, it’s the tribes that get to determine what happens to the children if their birth parents can’t care for them. This is logical if you consider tribal nations to be sovereign entities. But if you think like a Republican and you understand them as exploitable resources, then you get to this attack where we have white parents who want to adopt Native children, over the objection of their tribes, arguing that being prevented from adopting those Native children is racism against white people — which is a ridiculous answer. It’s like a French couple wanting to adopt an American child, being told no, and being like, “Oh, you’re racist against the French.” Like, that’s that argument.

The final case that you talked about that’s also critically important is what you asked me about, the Native case and the —


ELIE MYSTAL: — and the 303 Creative. This is an attack on LGBTQ rights. We have a woman in Colorado who runs a graphic design store, who wants to post on her website for weddings that she will not graphically design anybody’s wedding, any same-sex marriage Evite pages or whatever she does. That’s a point-and-click violation of Colorado’s anti-discrimination law. This woman claims that she is entitled to free speech and can be bigoted in her public services. Given the past Supreme Court attacks on non-cishetero white men’s rights, I think this case will also be decided 6-3 in favor the bigotry this woman proposes.

AMY GOODMAN: Elie Mystal, of course, we’re going to come back to you as we look at the Supreme Court term, The Nation’s justice correspondent, author of the best-selling book Allow Me to Retort: A Black Guy’s Guide to the Constitution. And we’ll link to your article, “The Supreme Court Returns on Monday, Stronger and More Terrible Than Ever.”

Next, we’ll be looking at Burkina Faso, a former French colony that just experienced its second military coup. What does the U.S. army have to do? Stay with me.