Is this the end for American justice and democracy? The U.S. Supreme Court’s October 2022 term is set up to be a Halloween massacre. Antidemocratic litigants are pushing the conservative supermajority on the court to slash through a whole host of protections Americans thought they could safely enjoy. After June’s run of antidemocratic decisions, this might feel like something of a sequel — but that’s just par for the course with horror movies.
The court’s first victim could be the planet: The Clean Water Act protects wetlands through ambiguous language that the Environmental Protection Agency and Army Corps of Engineers have traditionally been allowed to interpret broadly. In the upcoming Sackett v. EPA, landowners are challenging the agency’s power to protect those wetlands.
While some of these cases feel familiar, this one is literally a sequel. Chantell and Michael Sackett want to build a home on wetlands they illegally filled; they have been fighting an EPA order since 2007 and have already been to the Supreme Court in the process.
The Sacketts are represented by the Pacific Legal Foundation, an innocuously named organization that consistently fights for an extreme conception of property rights — one that leaves little room for the government to remedy harms the use of property causes to others. The foundation has a history of winning these cases, and the Supreme Court loves to reverse the Ninth Circuit, so there’s a good chance the environment takes the loss here. If the EPA loses its regulatory authority over wetlands, our water quality, wildlife habitats, and ability to protect ourselves from hurricanes will all suffer.
Next, the court will pursue some of the last remaining federal protections for voting rights. Chief Justice John Roberts has a long history of attacking the Voting Rights Act, and Merrill v. Milligan gives him another chance to undermine our primary legislative protection for voting rights. The State of Alabama, a serial voting rights offender, appealed a district court decision that held its congressional districts impermissibly favored its White majority. This case gives Roberts and his allies an opportunity to further undermine the voting rights law’s Section 2 protection against election rules with racially discriminatory effects. If this law is further gutted, White supremacist legislatures will be further empowered to entrench their political power and exclude Black and Brown people from the political process.
Even more dangerously, the court will also hear Moore v. Harper, a case in which North Carolina’s legislature is seeking the unrestricted ability to control federal elections in the state. After the Supreme Court ruled that partisan gerrymandering was a matter purely for state courts, North Carolina’s state supreme court applied the state’s constitution to rule against the practice. The legislature appealed under an extreme and novel theory that the Constitution intends for state legislatures to be independent of any oversight in election matters.
Given their penchant for entrenching antidemocratic control, this case could be a preview of Republican attempts to overturn the 2024 election in state legislatures. If the court’s conservatives adopt the independent state legislature doctrine, there could be no stopping them.
In yet another attack on the opportunities that education can afford people, the court will spend Halloween itself considering whether to kill affirmative action in university admissions. In two cases, Students for Fair Admissions v. UNC and Students for Fair Admissions v. Harvard, the court will consider challenges claiming that programs taking any account of race in admissions are discriminatory against White and Asian applicants.
While the cases were originally scheduled to be argued together, Justice Ketanji Brown Jackson had to recuse herself from the Harvard University case, leading to their separation. The separate rulings could also result in different standards for public and private universities based on distinctions between the 14th Amendment and federal statutory protections. Regardless of the rationale, the result is likely to close the doors of elite academic institutions to many historically excluded applicants.
Next, in Jones v. Hendrix, the court will have an opportunity to end a circuit split on post-conviction relief in criminal cases. Congress restricted successive habeas corpus petitions but left a savings clause to allow challenges that weren’t possible under existing law during the first petition. The split is about the technical differences between constitutional law and statutory law, but the risk of resolving this against relief is that people who current law recognizes should not have been convicted will continue to languish in federal prisons. If the court denies relief to such incarcerated persons, which they likely will if past is prologue, factually innocent people will be unjustly imprisoned — some of them for life.
The court will also take another stab at colonialism when it examines federal Native American law in Haaland v. Brackeen. The United States, Texas, the Cherokee Nation, and a non-Native American couple seeking to adopt an Indigenous child are all appealing a lengthy decision finding that parts of the Indian Child Welfare Act violate the Equal Protection Clause.
The act was passed to end the colonial policy of placing Native American children in non-Native homes to force assimilation. While Justice Neil Gorsuch can be relied upon to favor tribal sovereignty and federal policies to benefit their members, it is uncertain if he will be able to persuade one of the other five conservatives to refrain from further twisting equal protection against race-conscious remedies. If he fails, states will be free to resume their colonial policies of family separation and forced assimilation.
This term sets up the Supreme Court to drop doctrinal bodies like a horror movie monster. And while we can hope for a triumphant ending where the plucky heroes finally defeat the slasher, I fear we’re in for something more like “Night of the Living Dead.” Black, Brown, and poor people will suffer the worst of these cases’ likely outcomes. Unsafe drinking water, reduced educational opportunities, relief denied to prisoners who are actually innocent, and abandoned protections for keeping Native families together will all disproportionately harm marginalized people.
But it’s not too late to stop this onslaught. Congress has the power to set the limits of the court’s jurisdiction and the standards it must apply in review. Congress can also expand the court, as I have previously argued. If we want to preserve our democracy and the rights it protects, we must persuade Congress to act — and elect a body willing to do so. The remedy for all this antidemocracy must be the unqualified reaffirmation of democracy throughout our society.
Brandon Hasbrouck is a Washington and Lee University School of Law associate professor who researches and teaches in the areas of criminal law, criminal procedure, movement law, and abolition. Find him on Twitter at @b_hasbrouck.