- Elie Mystallegal correspondent at The Nation and author.
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. The court opened its term Monday with new Justice Ketanji Brown Jackson becoming the first Black woman in U.S. history 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 adds that the term ahead includes challenges to Native American sovereignty, voting rights, LGBT rights and more.
AMY GOODMAN: The U.S. Supreme Court opened its new term Monday with a historic first as Justice Ketanji Brown Jackson became the first Black female justice to ever hear a Supreme Court case. President Biden nominated Jackson after Stephen Breyer announced his retirement. On Friday, Justice Ketanji Brown Jackson spoke at an event organized by the Library of Congress ahead of her first day on the court.
JUSTICE KETANJI BROWN JACKSON: As I reflect on my own recent experience of being appointed as the first Black woman to serve on the Supreme Court, it is that, more than anything, that I have witnessed. People from all walks of life approach me with what I can only describe as a profound sense of pride and what feels to me like renewed ownership. I can see it in their eyes. I can hear it in 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 are calling on the ancestors, harkening back to history and claiming their stake at last. 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 the Supreme Court at a time when conservatives hold a six-to-three majority and public support of the court is at an all-time low. A recent Gallup poll shows just a quarter of the country has a great deal or quite a lot of confidence in the Supreme Court. In its last term, the conservative court overturned Roe v. Wade and expanded gun rights in the United States. The court will be hearing major cases this term on affirmative action, voting rights, LGBTQ rights, online speech and more.
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 Constitution, his recent article, “The Supreme Court Returns on Monday, Stronger and More Terrible Than Ever.”
Elie, welcome back to Democracy Now! Let’s start with this historic first. Let’s start with Justice Ketanji Brown Jackson. Talk about the significance of this newest justice and then what she faces on this docket.
ELIE MYSTAL: Good morning, Amy. Thank you for having me.
Yeah, Ketanji Brown Jackson is great. Her first day was yesterday. 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, the oral arguments will be heard tomorrow. Talk about these two cases and how they could change this country.
ELIE MYSTAL: Yeah, so let’s start with voting rights. That case is actually today, Amy. It’s 11:00. I’m already —
AMY GOODMAN: Sorry, today.
ELIE MYSTAL: Yeah — getting ready for it. The first kind of case out of the docket here is a case that involves a gerrymandered district in Alabama. Their state should have had two majority-majority districts — majority-minority districts; instead, they only had one. Back and forth a little bit. And what will likely come down is yet another attack on Section 2 of the Voting Rights Act. Now, people need to understand, when the Constitution was written, exclusively by white males, five of the current justices on the Supreme Court were not allowed to vote. We’ve gone through a lot of constitutional amendments. We had a war, trying to establish some idea of 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. And it is that act that Chief Justice John Roberts has been an enemy of for his entire career. One of the first things that we will see from this term is yet another Roberts-led attack on the idea of universal suffrage.
Later this month, we will hear our cases on affirmative action. 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. And this term, this October, they will do it. They will hear a case this October — excuse me — that will allow them to do it. And this June, they will finally end affirmative action. I think any hope that they would find some way to keep the idea of affirmative action alive went out of the window 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: On Monday, the Supreme Court heard oral arguments in the case of Sackett v. the EPA. The case challenges the Clean Water Act and the federal government’s ability to protect and preserve wetlands. During oral arguments, Justice Ketanji Brown Jackson questioned Damien Schiff, the lawyer for the Sackett family, which sued the 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 purpose or its objective at all costs, that the limitations in the statute are as much a part of its purpose as its affirmative authorization.
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, put it into lay terms here, what this case is against the EPA.
ELIE MYSTAL: Oh, yeah, so I love the question that you played, because a lot of your viewers understand or have heard what originalism is, right? 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? Well, it looks something like what Justice Jackson asked, right? Because she is looking at what Congress wanted, 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, just the framing of the question, the framing of her question, in and of itself, is a response and a resistance to the conservative majority on the 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, before we go, if you can give us a preview of the cases involving Native American families and LGBTQ rights?
ELIE MYSTAL: Yeah, these are critical cases that are also coming up later in this 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 makes sense if you understand tribal nations as 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 —
AMY GOODMAN: LGBTQ rights.
ELIE MYSTAL: — and the 303 Creative. So, 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. But this woman is claiming that she has a free speech right to be bigoted in her public service. Again, given the previous Supreme Court attacks on the rights of non-cis-hetero white men, I think that case is also likely to come down 6-3 in favor of the bigotry that 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 up, we look at the former French colony of Burkina Faso, which just saw its second military coup in a year. What does the U.S. military have to do with it? Stay with us.