The Impatient, Ambitious Five – The New York Times

My colleague Adam Liptak, who covers the Supreme Court, describes the five judges appointed by Republican, in addition to Chief Justice John Roberts, as “an impatient, ambitious majority.”

They largely rejected Roberts’ cautious approach to settling cases carefully and shifting the law slowly. Rather, the five prefer to pass U.S. legislation as they believe it should be enacted, even when they have to set long-standing precedent. To do otherwise, they believe, is dishonest.

After the court Roe v. Wade Friday was one obvious question: What other legal changes could come soon? Initial attention focused on the possibility that the court could soon restrict LGBT rights, access to contraception or interracial marriages. All of these issues involve some of the same logic that led to the abortion decision, as both Judge Clarence Thomas and the three Liberal judges pointed out in their writings that accompanied the decision.

But those are not really the hot-button issues the court is likely to consider next. In today’s newsletter, I want to focus on the divisive decisions that are more likely to come soon. One of those decisions can happen today; the court is scheduled to announce some of its final rulings of the term shortly after 10:00 Eastern.

The first reason to doubt that the court is on the verge of overthrowing the constitutional right to same-sex marriage, interracial marriage or access to contraception comes directly from Friday’s abortion ruling. Judge Brett Kavanaugh – one of the impatient, ambitious five – explicitly stated in a separate statement explaining his vote that those other rights were safe.

In his 12-page consent, Kavanaugh wrote that he wanted to address “how this decision will affect other precedents involving issues such as contraception and marriage.” He then listed four cases dealing with those issues, including the 2015 ruling establishing a right to same-sex marriage. “Dominance Roe do not means the domination of those precedents, and does not threaten or doubt those precedents, ”Kavanaugh explained.

Unless Kavanaugh changes his mind – or Roberts decides to overturn those precedents – there is no majority to do so. For the time being, only Thomas has said that he is in favor of revisiting the earlier cases. “I do not think there are five votes to reverse any of those decisions,” Adam Liptak said in a weekend episode of “The Daily.”

The second reason to think that other divisive issues will come first is that the court has already announced many of the cases it will hear next year. They tend to involve other topics – namely affirmative action, election laws and business regulation.

This is an issue that is likely to define the court’s next term in the way abortion did this term. The court agreed to hear two cases, one challenging the use of race on admission to a public university (the University of North Carolina) and one at a private university (Harvard).

I have been writing on this topic for the past two decades, and university officials I spoke to are far more concerned that the court will ban their current admissions approach than they were during the run-up to previous Supreme Court cases. If this happens, it seems particularly likely that the number of black students at selective colleges will decrease.

The core argument for affirmative action is simple: In a society where racism and racial inequality still remain the definition of problems, ignoring race in admissions or appointment decisions is fundamentally unfair.

Yet affirmative action – at least as it is typically practiced in the US – tends to be unpopular. When the policy appears in state referendums on the ballot paper, it usually loses, even in liberal states like California. (Token questions, depending on their wording, point in contradictory directions.)

One problem may be that traditional affirmative action has placed virtually all of its focus on race, with little to no weight on economic class. This approach has probably hurt the policy’s support among many white, Asian and even Latino voters. Its slim popular support, in turn, will make it easier for conservative judges to ban policies they have long opposed.

“The way to stop racial discrimination is to stop discriminating on the basis of race,” Roberts once wrote.

Is there any chance that the court will not stop banning affirmative action? Certainly. Many corporate executives and military leaders support the policy, and they are likely to sway the judges. But most court observers consider this outcome unlikely.

In a 2003 ruling upholding affirmative action, Judge Sandra Day O’Connor – a more moderate Republican appointment – suggested she thinks the policy may no longer be necessary “25 years from now.” If the court scraps the policy in 2023, the current impatient, ambitious majority will be only five years ahead of O’Connor’s timetable.

Two other controversial topics on the court’s dossier are election law and business regulation. On both, the court – including Roberts – has recently relied heavily on political law.

Election laws. The court has already agreed to hear a case on whether Alabama can sign a congressional card that packs many Black voters into a single congressional district, effectively diluting their political power. About 27 percent of Alabama’s residents are black, and the state has seven House districts.

The court may also decide to hear a case that may limit the ability of state courts to review how state legislators draw districts and otherwise oversee elections. Adam Liptak recently wrote an article explaining why the issue is so important – especially when many Republican lawmakers have indicated a willingness to reverse election results.

Business regulation. Even before President Donald Trump’s three appointments moved the court to the right, it tended to take a laissez-faire approach, limiting Congress’ ability to regulate corporate behavior. The current court can go even further, especially on climate policy, and rule that federal agencies cannot limit pollution unless Congress has given them specific authority to do so.

The court will hear one case involving the Clean Water Act in October and is likely to issue a ruling this week involving the EPA. I will go into more detail on this topic as soon as that decision is announced.

  • In New York, the Democratic candidate for governor is focusing on two Supreme Court rulings – on abortion and guns – before Tuesday’s primary.

  • A far-right candidate could win the Republican primary for the governor of Illinois, thanks to a Trump-loving base – and Democrats’ cash.

China’s economic expansion is winning small countries ignoring the US, writes Dorothy Wickhama journalist from the Solomon Islands.

Advertising has become easier to avoid, thanks to commercial-free streaming services, skippable YouTube ads, and more. Companies and marketers are responding with an increase in product placement.

If done well, a little product placement may seem natural; after all, real kitchens are full of branded products. But the repeated appearance of certain items may start to look strange. Why are so many TV characters drinking that one blue-water? And why do they keep referring to the same property application?

Read more about the trend – including examples of your favorite shows.