Center for American Progress

5 Ways the Supreme Court Could Roll Back Rights and Damage Democracy

5 Ways the Supreme Court Could Roll Back Rights and Damage Democracy

The Supreme Court’s right-wing majority could deal a major setback to affirmative action, voting rights, LGBTQ rights, and fair elections as it wraps up the latest term.

The U.S. Supreme Court building is pictured.
The U.S. Supreme Court building is pictured on Wednesday, April 19, 2023, in Washington, D.C. (Getty/Los Angeles Times/Kent Nishimura)

The U.S. Supreme Court, dominated by a radical right-wing majority, is again poised to issue a series of decisions that could erode long-held rights and cause lasting damage to our democracy.

A year after overturning the constitutional right to abortion, the court over the next month could turn back the clock on voting rights, LGBTQ rights, and decades of progress in diversifying higher education. It could give its stamp of approval to a fringe legal theory that would let state legislatures subvert elections without any chance of court review. And it could strike down the Biden administration’s student debt relief program, which would have damaging financial consequences for millions of Americans.

The high court’s lurch to the right has only accelerated in recent years, particularly after the confirmation of three justices appointed by former President Donald Trump. The court seems to be rushing to reverse established precedent as fast as it can, taking procedural shortcuts to hear cases more quickly and using its shadow docket more often to halt lower-court rulings and block government action. Notably, in the case of abortion and affirmative action, the Supreme Court agreed to consider reversing long-standing precedents even though there was no split among lower courts.

It’s time to rein in a court that’s clearly in desperate need of reform and out of touch with the American public.

It’s no wonder that trust in the Supreme Court has fallen to a historic low, with only 18 percent of Americans saying they have a great deal of confidence in the court. The recent spate of ethics scandals has likely contributed to that decline, with stunning allegations that Justice Clarence Thomas failed to report luxury vacations and other perks from a Republican megadonor.

Here is what’s at stake in some of the term’s biggest cases:

1. Ending affirmative action

  • Students for Fair Admissions v. President and Fellows of Harvard College
  • Students for Fair Admissions v. University of North Carolina

Two cases could see the Supreme Court decide that colleges can no longer consider race as one of several factors when making admissions decisions, a move that would overturn four decades of precedent and deal a major blow to efforts to diversify college campuses and address historic inequality. Affirmative action has given a chance to those historically shut out of the system because of their race, ethnicity, income, or identity. Students of color remain underrepresented on many campuses; and in states that have eliminated affirmative action, public universities have seen dramatic declines in the number of minority students admitted.

Affirmative action helps promote diversity in ways that a focus on economic disparity alone cannot. Race-conscious remedies, including protections for voting rights and affirmative action, are supported by the Constitution. They have long been part of American history and are fundamental to equal opportunity.

2. Weakening the Voting Rights Act

  • Merrill v. Milligan

The Supreme Court has repeatedly diluted the Voting Rights Act over the past decade, and the latest case could open the door for states to further marginalize Black voters. Section 2 of the act requires voting districts to be drawn in a way that does not unfairly dilute the voting power of racial minorities. But last year, Alabama lawmakers drew a congressional map with only one majority-Black district out of seven in a state where 27 percent of the electorate is Black. That’s a textbook violation of the law, and a three-judge panel ordered the state to redraw the districts.

Now, the Supreme Court could reverse that decision, despite the fact that carving up Alabama’s Black Belt communities—historically Black areas in the state—to dilute Black voting power is exactly the kind of discriminatory impact the law was designed to prevent. Alabama’s radical claim that its map is race-neutral is just a subterfuge for discrimination. If the justices water down the meaning of the Voting Rights Act to prevent states from taking race into account when drawing districts, it will render the law toothless and likely lead to fewer Black members in Congress.

The country has made incredible progress over the past six decades in making Congress more diverse. This year, 25 percent of congressional lawmakers are people of color—a record high—compared with 40 percent of the United States. A Congress that looks like America gives people the confidence that they have a true voice in government; and these lawmakers are more likely to address the needs of their constituents.

3. Giving businesses a license to discriminate

  • 303 Creative LLC v. Elenis

The Supreme Court is considering whether businesses have a First Amendment right to refuse certain services to same-sex couples. The case involves a Colorado website design company owner who refused to design websites for same-sex marriages, citing her free speech rights. Lower courts found the owner violated state law that requires businesses to offer the same services to everyone, regardless of sexual orientation.

If the court sides with the website owner, businesses could wield so-called claims of free speech as a license to discriminate, undermining laws that prevent discrimination in public accommodations. Such a ruling could open the door for businesses to use artistic freedom, among other claims, as an excuse to discriminate against the LGBTQ community and other historically disadvantaged groups.

Businesses must operate under the framework of anti-discrimination laws and serve all customers equally, regardless of race, religion, gender, or sexual orientation. Members of the LGBTQ community should be free to access goods and services with the same dignity and respect afforded to everyone.

4. Saddling students with debt

  • Biden v. Nebraska/U.S. Department of Education v. Brown

The court will decide whether the Biden administration had authority to forgive student loans for millions of borrowers due to the COVID-19 pandemic. At issue in this case is the Higher Education Relief Opportunities for Students Act, a 2003 law empowering the secretary of education to waive or modify student loan terms during emergencies. The administration’s plan makes 43 million borrowers eligible for some debt forgiveness, while 20 million could have their debt completely canceled.

Yet during oral arguments, conservatives on the court were skeptical that Congress issued a clear enough mandate for debt cancellation in the law. If the court rules against the Biden administration, it will take away a lifeline for millions of households crushed by student loan debt. Moreover, such a decision would prolong the student debt crisis and prevent millions of Americans from improving their financial security and creating a foundation for upward economic mobility.

The administration’s debt relief plan met the urgency of the moment, under the authority that Congress provided, to ensure that borrowers were not left financially worse off because of the pandemic.

5. Embracing the fringe independent state legislature theory

  • Moore v. Harper

The Supreme Court is considering whether to embrace the fringe independent state legislature (ISL) theory, which would allow state legislatures to set rules for federal elections and gerrymander districts without any judicial review by state courts. Advanced by Republican lawmakers in North Carolina and their allies, this theory could give partisan state lawmakers almost limitless power to manipulate federal election rules and draw unfair congressional districts. The ISL theory is so extreme that even prominent conservative analysts have called it a “constitutional travesty” and urged the justices to reject it.

Recently, the North Carolina Supreme Court reheard the underlying case after partisan control switched and reversed its previous decision. It is now possible the U.S. Supreme Court might dismiss the case without deciding the merits, although it could take up a similar case from Ohio that raises the same issues. In any case, the high court must reject this dangerous idea that would uproot democracy’s fundamental checks and balances and jeopardize free and fair elections.

Response and reforms: Fighting back against a radical Supreme Court majority

Frustration with the Supreme Court’s radical right turn has spurred action, demonstrating that the high court does not have the only say on people’s constitutional rights.

Last year’s ruling that ended the constitutional right to abortion played a major role in swinging midterm elections for candidates who support reproductive rights. In the aftermath of the Dobbs v. Jackson Women’s Health Organization decision, a wave of litigation prompted many state supreme courts to rule that state constitutions protect abortion rights, even if the U.S. Supreme Court denies those protections at the federal level. Citizens in Kansas and Kentucky, meanwhile, rejected proposed constitutional amendments that would have ended protections for abortion; and other states have passed measures strengthening abortion rights laws.

Action wasn’t limited to the state level either. In response to language from Justice Thomas’ concurring opinion in Dobbs that suggested same-sex marriage rights could be under threat for the same reasons that the court overturned abortion rights, Congress passed landmark legislation last year to protect those rights.

Trust in the Supreme Court has fallen to a historic low, with only 18 percent of Americans saying they have a great deal of confidence in the court.

Beyond public outcry and legislatures maneuvering to circumvent the damage caused by the Supreme Court’s radical rulings, there are also commonsense reforms that could restore accountability to the court. For instance, the Center for American Progress and other groups have called for 18-year term limits on Supreme Court justices. This approach would let each president nominate two Supreme Court justices per four-year term, taking the pressure away from the current winner-take-all confirmation process that has become a political spectacle, while also ensuring that the high court better reflects the values of the American people.

In addition, Supreme Court justices should be subject to a binding and enforceable code of ethics, just like other federal judges and members of Congress. Chief Justice John Roberts could, of course, announce that the court is subjecting itself to such a code of conduct, but given his unwillingness to do so, Congress may have to take action to ensure that basic ethics rules apply to the justices.

It’s time to rein in a court that’s clearly in desperate need of reform and out of touch with the American public.

See also

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Sam Hananel

Senior Director, Media Relations


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