Oct 3, 2022

The new Supreme Court term.

The new Supreme Court term.
Photo by Adam Szuscik / Unsplash

It will be another historic and controversial few months.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

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We're covering the upcoming Supreme Court term. Also, a reader question about finding good presidential candidates and a brief note about the Brett Favre scandal.

One year ago today: We were covering the progressive caucus's attempt to sink the $1.2 trillion infrastructure bill until the reconciliation bill was re-linked to it. 

Thank you...

For all your encouragement, kind words, thoughtful criticisms, and emails last week after our major announcements. I'll be writing back to many of you personally, but I'm continually impressed by the community we have put together here at Tangle.

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So share https://readtangle.com/give, and if someone signs up through that URL, we'll donate a dollar to charity. We're going to keep this running at least through October. All our donations will go to No Kid Hungry and Meals On Wheels.


Quick hits.

  1. Officials have confirmed Hurricane Ian has killed at least 76 people in Florida, four in North Carolina and three in Cuba. The toll is expected to rise in the coming days. (The toll)
  2. Brazil's Presidential election is headed to a runoff after neither President Jair Bolsonaro (43%) nor former president Luiz Inacio Lula da Silva (48%) reached the 50% threshold for victory. Brazil is the world's fourth largest democracy. (The runoff)
  3. 125 people were killed and hundreds more were injured after a human stampede at a soccer game in Indonesia. (The deaths)
  4. Ukrainian forces have reclaimed Lyman, a key logistics hub, in the disputed Donetsk region of eastern Ukraine. (The hub)
  5. Seven Americans, including five oil executives, were released from a Venezuelan prison in exchange for the U.S. freeing two relatives of President Maduro's wife. (The swap)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

The upcoming Supreme Court term. On Monday, the Supreme Court opens a nine-month term packed with major cases that are sure to dominate political conversations in the coming months. The court is coming off a monumental term in which it struck down Roe v. Wade and expanded gun rights, ruled on cases involving school prayer, vaccine mandates, and a Trump-era immigration law, and restricted the authority of the Environmental Protection Agency.

On top of the historic term, the last year has been marred by a leak of a draft opinion revealing that Roe v. Wade was going to be struck down, an unprecedented breach of court decorum. Justices have also been bickering publicly over the court's direction, with Justices Elena Kagan and Samuel Alito seemingly taking swipes at each other about the court's legitimacy with the public. On top of that, Ginni Thomas, the wife of Justice Clarence Thomas, was recently questioned by Congress about her role in attempting to overturn the 2020 election. In June, a Gallup poll found that only 25% of the American public has confidence in the Supreme Court, an all-time low since they started tracking the question in 1975.

At the end of the last term, Justice Stephen Breyer retired. He'll be replaced this term by Ketanji Brown Jackson, his former law clerk, who graduated from Harvard Law School and served on the U.S. Court of Appeals for the District of Columbia Circuit. Jackson will also become the first Black woman to sit on the Supreme Court.

Court watchers are speculating that this term may bring just as many closely-watched cases as the one before it. Monday will kick off with the justices hearing arguments from Chantell and Mike Sackett, a couple from Idaho who is trying to build a home on a property the EPA said is a protected wetland. If they prevail, the case could limit the reach of the Clean Water Act of 1972.

On Tuesday, the court will hear arguments in a case from Alabama, where the state is appealing a lower court's ruling that invalidated a gerrymandered map approved by the state's Republican-controlled legislature. The lower court said the Republican-drawn version diluted the electoral power of black voters and violated the Voting Rights Act. The Supreme Court froze the ruling, allowing the map to be used while litigation proceeds, and will now hear the case.

Later this term, the court will also hear a challenge to affirmative action admission policies. Then, a case questioning whether a Colorado graphic designer is violating the state's anti-discrimination laws by noting that she doesn't serve same-sex couples on her website, as well as a challenge to President Biden's immigration policy to prioritize deporting violent unauthorized immigrants. There is also a pending case that could reshape the way tribal sovereignty works in the United States.

We'll cover many of these cases individually down the line. But today, we're going to look at some commentary about the upcoming term from across the political spectrum, then my take.


What the right is saying.

  • The right says it is an important term, but that it won't rise to the level of last term.
  • Many criticize the left for questioning the court's legitimacy because it is now more conservative.
  • Some hope for "continued momentum" in the conservative judicial movement.

In National Review, Adam Carrington called it "another important term," and highlighted cases that were important to him.

"First, the Court will take up important matters regarding election law. In Moore v. Harper, the justices will address how much control state legislatures possess over federal elections. North Carolina’s legislature redistricted its House seats following the 2020 census. The state’s supreme court then struck down that new map as partisan gerrymandering, which it said violated the state’s constitution. The North Carolina supreme court then created a panel of experts who designed their own district map for use in future congressional elections. Certain legislators sued and will argue before SCOTUS that the U.S. Constitution requires that they, not any other state officers, make decisions about federal elections... Second, the Court will continue to define the scope of constitutional protections for religious liberty. 303 Creative LLC v. Elenis hinges on whether the state of Colorado can force a Web designer to work with same-sex weddings if she holds religious objections to those unions.

"Third, the Court will take up an important immigration case in United States v. Texas," Carrington wrote. The Biden administration gave “guidance” on the enforcement of immigration law that prioritized deporting violent and otherwise dangerous illegal immigrants over others who are here against the law. Though the debate about immigration policy is among our most partisan issues, the Court will focus on the exercise of executive and bureaucratic power... Fourth and finally, the Court’s biggest decision may come about the future of affirmative action. In two cases, the Court will address whether colleges can take race into account in their admissions. If the justices decide that colleges cannot, it would overturn the important precedent of Grutter v. Bollinger, which in 2003 said that colleges could take race into account because of the important educational benefits of classroom diversity so long as the college made race one factor for admission among many others.

In The Washington Examiner, Becket Adams said our institutions are "legitimate" so long as "the left is in charge."

"For constitutionalists and longtime pro-life activists, the court’s July ruling in Dobbs v. Jackson Women’s Health Organization came as a shock. Many were convinced the court would simply go along with precedent rather than reverse course entirely," Adams said. "But then the court announced its decision, addressing at long last the constitutionality of the matter. The majority opinion, written by Justice Samuel Alito, debunked the notion the Constitution guarantees a 'right' to abortion (even left-leaning legal scholars admit Roe was an egregious misreading of the Constitution), handing the matter back to the states for voters and legislators to decide.

"It’s a perfectly reasonable and sound opinion, legally speaking. Politically speaking, however, Dobbs is not the outcome liberals wanted," Adams said. "So, like with everything else that doesn't go their way, they’re trying to undermine the legitimacy of a conservative victory by undermining the authority of the institution from which it came. Earlier this month, Kagan said in a rather unsubtle dig at the court's recent decisions that 'judges create legitimacy problems for themselves, undermine their legitimacy, when they don’t act so much like courts and when they don’t do things that are recognizably law.' ... What childish nonsense. How long have Justices Clarence Thomas and Samuel Alito served on the court, watching year after year as its liberal bloc handed down poorly reasoned and unconstitutional decisions? How many times did they respond by disparaging the legitimacy of the institution?"

In Newsweek, Josh Hammer asked if the conservative movement could maintain its momentum.

"The Court most recently upheld race-conscious university admissions policies in the 2003 case of Grutter v. Bollinger, in which Justice Sandra Day O'Connor's majority opinion explicitly stated that 'race-conscious admissions policies must be limited in time,' and added that the 'Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.' In fact, not only did the Grutter Court presciently telegraph its own ruling's possible demise in the twin SFFA cases, but affirmative action is also one rare area where even Chief Justice John Roberts has shined as a voice of sanity," Hammer said. "There is thus a very strong chance the Court finally ends vile affirmative action policies—which, contra Black Lives Matter propaganda, represent the genuine last remnants of 'systemic racism' in America—this term.

"The other big 'culture war' case this term is a First Amendment/religious liberty-adjacent case out of Colorado: 303 Creative LLC v. Elenis. Sound familiar? It should: The Court ruled on a similar First Amendment/religious liberty case out of Colorado just five terms ago, in Masterpiece Cakeshop v. Colorado Civil Rights Commission. But in Masterpiece Cakeshop, the Justice Anthony Kennedy-led Court majority issued an extremely narrow ruling that redounded to Christian cake baker Jack Phillips' case-specific free exercise interest, but failed to render a constitutionally meaningful judgment about the thorny intersection of nondiscrimination law, freedom of speech, and freedom of religion," Hammer wrote. "The fact that the Court granted certiorari in 303 Creative LLC and opted to hear the case, especially coming so soon after Masterpiece Cakeshop and due to the Court's notable personnel changes since 2018, strongly suggests that the Court is prepared to issue a more sweeping ruling."


What the left is saying.

  • The left warns about another disastrous term for liberals in the U.S.
  • Many call out threats to democracy and LGTBQ rights.
  • Some say conservatives are in denial about the court's legitimacy crisis.

Ruth Marcus said the public will have no time to settle from the "cataclysmic term" that just ended.

"Nothing in the behavior of the court’s emboldened majority suggests any inclination to pull back on the throttle. The Supreme Court is master of its docket, which means that it controls what cases it will hear, subject to the agreement of four justices. Already, with its calendar only partly filled, the justices have once again piled onto their agenda cases that embroil the court in some of the most inflammatory issues confronting the nation — and more are on the way," Marcus said. "Last term, in addition to overruling Roe v. Wade, the conservative majority expanded gun rights, imposed severe new constraints on the power of regulatory agencies and further dismantled the wall of separation between church and state.

"In assembling its cases for the term, the conservative wing has at times displayed an unseemly haste — prodded by conservative activists who have seized on the opportunities presented by a court open to their efforts to reshape the law," Marcus wrote. "The court reached out to decide a dispute about when the Clean Water Act applies to wetlands, even as the Environmental Protection Agency rewrites its rules on that very issue. It agreed to hear a wedding website designer’s complaint that Colorado’s law barring discrimination on the basis of sexual orientation violates her free speech rights to oppose same-sex marriage, even though Colorado authorities have not filed any complaint against her. It took the marquee case of the term — the constitutionality of affirmative action programs at colleges and universities — although the law in this area has been settled and there is no division among the lower courts."

In Slate, Dahlia Lithwick said John Roberts can't admit what is happening to the court.

"After a term that featured gross misconduct and impropriety both on the docket (overturning Roe v. Wade, expanding gun rights in a nation drowning in guns, fetishizing religious liberty over basic equality) and off the docket (internal leaks, inappropriate speeches, spouses fomenting insurrection) the briefs have been filed and the court’s own public legitimacy is now being litigated. If you thought last term started off badly, just wait," Lithwick wrote. "While it was already a thing to have Justice Clarence Thomas trash-talking his colleagues, his chief, and his court last spring, it’s quite another when the term opens with Roberts and Kagan prepared to litigate on public stages the matter of who is trashing the court’s reputation.

"To Kagan, this current legitimacy crisis is not the fault of a public that has, you know, eyes and ears. It is the responsibility of justices who, as she put it, 'stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences.'... When Roberts lays blame on the public for losing confidence in the court, he fails to recognize that while he couldn’t have done anything to stop a runaway majority from taking away basic freedom, dignity, and equality all year, he did nothing about the things that were ostensibly in his power to control: the grotesque abuse of the court’s emergency 'shadow docket' to create new law that is not properly explained or applied; the wildly unethical behavior of his colleagues, ranging from Ginni Thomas’ improper involvement in efforts to end abortion to the partisan speeches that make the justices sound like partisan hacks and the nonexistent ethics rules that allow his colleagues to do all this with impunity."

In The Los Angeles Times, Erwin Chemerinsky said "prepare for the law to move even more to the right."

"Traditionally the justices have focused on granting review in cases where there is a disagreement among the lower courts — with the Supreme Court’s role being to resolve these conflicts," Chemerinsky wrote. "Often in the past, the justices have stressed that they want to wait until many lower courts have ruled — until the issue has 'percolated,' before weighing in. But in many of the high-profile cases for this coming term, the court has stepped in even though there is no disagreement among the lower courts. For example, on Oct. 31, the Supreme Court will hear two cases about whether to end affirmative action by colleges and universities, Students for Fair Admissions vs. University of North Carolina and Students for Fair Admissions vs. Harvard College.

"In decisions in 1978, 2003 and 2016, the court held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor in admissions decisions in carrying out their educational mission. This is settled law. Affirmative action, like abortion, has long been a target of conservatives," he wrote. "The widespread expectation is that here, too, the activist conservatives on the court will overrule more than 40 years of precedents they oppose politically. Nothing about the law in this area or how it has been interpreted by the lower courts calls for reopening this issue. All that has changed since 2016 is that three Trump-appointed justices — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — have joined the court."


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a paying subscriber, you can also leave a comment.

  • There is one case in particular that sticks out to me.
  • We'll get into specifics later, but I do think this is going to be a "blockbuster" term.
  • I'm not someone who believes this court is illegitimate.

We're going to get into a lot of these cases as they come, so I'm hesitant to speak in specifics right now. But I can tell you that there is one case in particular I'll be keeping my eye on.

That's Moore v. Harper, in which the Supreme Court will decide whether the North Carolina Supreme Court can strike down the legislature’s gerrymandered congressional map. We wrote about the scourge of gerrymandering in January — the idea that the state court and state constitution cannot act as a guardrail on the legislature to operate elections should be ridiculous on its face. But that the court is taking it up at all has, rightfully, created fears of a ruling that would be legitimately disastrous for democratic norms. If voters have no judicial remedy to fight extreme gerrymandering, you will naturally see the already bad problem become significantly worse.

It's quite possible the court rules narrowly here, or even sides against the North Carolina legislature, but that's the one I'll be following most closely.

Of course, this is hardly the only significant case on the docket. I imagine Tangle will be covering the voting rights case in Alabama, the challenges to affirmative action, and the clash between free speech and LGBTQ rights in Colorado. All of those cases will inspire passionate political debate and probably set the discourse on fire for a few weeks at a time.

In the interim, my overwhelming feeling is one of unease. Questions about the court's legitimacy have been floated for years in the public discourse, but to see justices openly sparring with each other just months after an unprecedented leak of an impending Supreme Court opinion is worrisome.

For whatever it's worth, I don't find the Supreme Court "illegitimate," at least in the sense I understand it (Oxford definition: "not authorized by the law; not in accordance with accepted standards or rules.") Describing it as deeply political may be more accurate, in which the correlation between the court’s rulings and the party who nominated the justice’s desires seems much more apparent than in other eras.

It’s true, of course, that Justice Neil Gorsuch made his way to the bench through a broken and partisan process, in which Republicans refused to even consider a sitting president's nominee for almost an entire year. And then they flipped their entire script on its head to quickly rush Amy Coney Barrett's nomination through before Trump left office. But ultimately, that process was marred by tradition being upended, not rules being broken. Republicans only reaped the rewards because they won an election — fairly, and legitimately — in 2016.

No laws were broken and no elections were stolen in order for Republicans to get a conservative majority, even if it took unbound hypocrisy and incredible luck to seal the deal. I didn't like many aspects of Gorsuch or Barrett's nomination process, but nobody was confirmed illegitimately.

My concern is that none of that assuages the public. So much is happening around the court right now that feels unprecedented. The leaks, the Ginni Thomas scandal, the justices’ public and thinly veiled barbs being hurled at each other about the court's legitimacy. None of it feels good. And if the court’s nomination and confirmation processes are not trusted by the public, or its rulings are dismissed or ignored by the people (or worse, legislators), that is a crisis of legitimacy.

This next term is almost certainly not going to help. The battlegrounds will be race, voting rights, gay rights, immigration, and environmentalism, issues that consistently draw the fervor of voters. If I were you, I'd certainly buckle up.


Your questions, answered.

Q: I know it's my responsibility as an American to be informed and vote for our leader, but honestly I just feel so sad and hopeless about every presidential candidate, Republican or Democrat, and I know many others feel the same. It is as if the voter has to make the choice between competence or character in who leads our country, and I haven't seen someone who checks off both boxes in years.  With 330 million people in America, is it too much to ask to have both a "good person" and a "competent decision maker" to choose from in leading our country? Do you have any hope about this? I know it's not your job to endorse a candidate. But is there one on each side that you think is worth considering on the criteria of character and competence for the job?

— Wendy, Austin, Texas

Tangle: I certainly don't think you are alone. I hear this sentiment a lot from my readers, and more generally from friends and family.

I think you are asking two separate questions, though: One is if there are competent decision makers who are also good people that exist, are in politics, and could one day be president. The answer is yes. The other is if there are any current presidential candidates who fit that criteria. That’s not an answer I feel comfortable giving, especially with so little known about the 2024 field.

Still, I will say that I think there are quite a few high profile politicians who fit the bill, both serving in Congress and in governorships or state legislatures across the country. Politicians are not inherently bad people. In order to succeed in politics I think you need to be confident, willing to upset some people, and thick-skinned. Sometimes, that means successful politicians are arrogant, cutthroat, and lack self-awareness. It's a fine line between those things.

Still, yes, those people exist. As you mentioned, I don't endorse candidates in Tangle, but I could give you two low-stakes examples: New Hampshire Gov. Chris Sununu (R) and Sen. Sherrod Brown (D-OH). To be clear, I'm not endorsing either of their political ideologies (that'd be impossible, since they are pretty diametrically opposed to each other), but both are principled, have consistent ideologies, advocate well for their constituents, win over voters on both sides, and do not compromise any of their values (I've heard each described as "extreme" or "radical," yet they find ways to win over moderate voters).

So there are two names. Many more exist. I think the trick for us, as the electorate, is to help those people rise to the top while avoiding the cult of personality that has infected so many of our recent elections. That is a big task, and I don't have a good answer for how we find ways to elect presidents in a process more akin to job interviews than popularity contests, but I certainly hope we find a way soon.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


Under the radar.

Former NFL star Brett Favre is embroiled in the biggest public corruption case in Mississippi's history. The state spent millions of dollars in anti-poverty money on a volleyball arena at the University of Southern Mississippi, where Favre graduated and his daughter went to school. Text messages filed in court show Favre and then Mississippi Gov. Phil Bryant discussing using public funds for a football facility after private funding fell through. Favre, who is now being represented by Eric Herschmann, a top White House lawyer to former President Trump, has been charged in a civil lawsuit but not with any criminal charges. The state is trying to recover $20 million in allegedly misspent funds. Mississippi Free Press has the story.


Numbers.

  • 40%. In June of 2017, the percentage of Americans who said they had confidence in the U.S. Supreme Court.
  • 25%. In June of 2022, the percentage of Americans who said they had confidence in the U.S. Supreme Court.
  • $18 million. The amount of money Democratic candidates and their allied Super PACs have spent on 100 abortion-centered TV ads in battleground states.
  • 80%. The percentage of Democrats who view the Democratic party favorably.
  • 73%. The percentage of Republicans who view the Republican party favorably.

Have a nice day.

The Ice Bucket Challenge wasn't just a social media hit — it has succeeded at its primary goal, which was funding a new ALS drug. You may remember the viral videos from 2014, when friends were standing in their yards awaiting a dousing of ice cold water. Afterward, that friend probably made a pledge to donate money to the ALS Association. Those donations eventually totaled $115 million, and $2.2 million were used directly to fund the development and trial of the new drug that the Food and Drug Administration approved just this week to treat ALS, also known as Lou Gehrig's disease. The drug is not a cure, but it does slow the effects of the neurodegenerative disease. The ALS association says 130 research projects in 12 different countries and 40 separate potential treatments are also being developed with the money. NPR has the story.


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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.