From Affirmative Action to Andy Warhol: Buckle up for a Wild Supreme Court Term

Below is my column in The Hill on the start of the new Term for the Supreme Court. The column predicts that critics will likely respond to the expected new precedent by attacking the integrity rather than the interpretations of the justices.  I was wrong. The New York Times did not wait for any new decisions and attacked the integrity of the conservative justices as the “judicial arm of the Republican Party.” Does that make the three liberals justices voting together on the Court the “judicial arm of the Democratic Party”?  Of course not. Justices are only partisan to the degree that you disagree with their jurisprudential views.

Here is the column:

Justice Ruth Bader Ginsburg once said, “It’s hard not to have a big year at the Supreme Court.” That is, of course, manifestly true for the highest court in the land.

Some years are bigger than others, however. That certainly was the case in 2021-22, with historic decisions on abortion, gun rights, climate change and other issues.

On Monday, the new term will begin with a lineup that promises another historic series of rulings — and even greater levels of rage directed at the court.

The last term showed that a stable 6-3 majority has taken hold on the  court. Even with the addition this term of Justice Ketanji Onyika Brown Jackson, and possible swing votes from Chief Justice John Roberts or others, there are five conservative justices who have brought clarity to long-contested areas characterized by 5-4 divisions. That is likely to continue this term.

Here are just two of the “matinee” cases that could have a huge impact on both precedent and politics:

Students for Fair Admissions v. President & Fellows of Harvard College

This case on the use of race in college admissions will be heard with a similar case in Students for Fair Admissions v. University of North Carolina.

Since declaring affirmative action in admissions to be unconstitutional in 1978 in Regents of the University of California v. Bakke, the court has never achieved clarity on the constitutional use of race beyond barring any preference “for no reason other than race or ethnic origin.” Then-Justice Lewis Powell declared, “This the Constitution forbids,” but the court has been unable to say with any coherence and consistency what else it forbids in a line of conflicting and vague 5-4 rulings.

These cases involving alleged discrimination against Asian applicants to gain greater diversity for other minorities could produce that long-sought clarity.

In 2003, in Grutter v. Bollinger, the court divided 5-4 on upholding race admissions criteria used to achieve “diversity” in a class at Michigan Law School. (On the same day, the court ruled 6-3 to declare Michigan’s undergraduate admissions unconstitutional in the use of race in Gratz v. Bollinger.)

In Grutter, then-Justice Sandra Day O’Connor stressed 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.” That was 21 years ago, and the question is whether time has run out for race-based admissions. Justice Jackson, who served on Harvard’s board of directors, has recused herself from the Harvard case but is expected to vote in the North Carolina case.

303 Creative v. Elenis

There often are cases that generate exhaustive coverage over a potential major shift in precedent that only peter out as justices divide and the majority takes an exit ramp. That was the case in the Masterpiece Cakeshop case in 2018, in which a baker was found to be in violation of the Colorado Anti-Discrimination Act for refusing to make a wedding cake for a same-sex couple due to his religious objections.

303 Creative has the makings of not just Masterpiece Cakeshop 2.0 but everything that the earlier case failed to achieve. For years, I have argued that these conflicts between discrimination laws and religious values should not be resolved under the religious clauses but under the free speech clause. Notably, this case involving Lori Smith, a graphic artist who declined on religious grounds to provide services to couples celebrating same-sex marriages, was brought to the court under both the religious and free speech clauses. However, the court accepted the case only to argue the free speech grounds — raising the likelihood of a major free speech case in the making.

The court’s new docket also is populated with other major cases that are standouts:

  • Moore v. Harper involves a challenge to the authority of state courts to set aside congressional maps in North Carolina. Some have argued that such judicial review is unconstitutional under the elections and electors clauses because it refers solely to “legislatures” in setting such rules or districts.
  • Sackett v. Environmental Protection Agency. In 2012, the Court allowed the Sacketts to challenge an EPA compliance order concerning navigable waters on their property in Idaho under the Clean Water Act. A new challenge to the Ninth Circuit test could redefine the key meaning of waters of the United States.” 
  • Andy Warhol Foundation v. Goldsmith will ask the court to decide whether a work of art is considered “transformative” for the purposes of the fair-use doctrine when it expresses a dissimilar meaning or message from the original source. The case involves Lynn Goldsmith’s photo of the musician Prince.
  • In Haaland v. Brackeen, the court must decide whether placement preferences based on race under the Indian Child Welfare Act of 1978 violate the Constitution.

Some of these cases are unlikely to track the common narrative of a rigidly ideological court. Indeed, media coverage often exaggerates that narrative. While Chief Justice Roberts is often called “the swing vote” on the court, Justice Neil Gorsuch may be more unpredictable and impactful. Last term, he dissented in key cases, often writing vigorous dissents with his more liberal colleagues.

The liberal justices prevailed in major cases last term with support from conservative colleagues on issues ranging from upholding a Biden administration policy ending the “Remain in Mexico” decision to upholding Health and Human Services’ mandatory vaccine rule for health care workers.

Moreover, 29 percent of the cases were decided unanimously. While that is a decline from other years, it still reflects almost a third of the cases brought before the court. While Roberts and Justice Brett Kavanaugh voted most often together (95 percent of the time), Justice Elena Kagan voted almost half of the time (48 percent) with Roberts.

That does not mean familiar ideological divides will not continue to define key cases — or fuel some anger. Last term’s decisions led Erwin Chemerinsky, dean of the UC Berkeley School of Law, to denounce the conservative justices as “partisan hacks.” Yet, the six conservatives are no less partisan than the three liberal justices voting predictably together in dissent on such cases. They are all maintaining views of jurisprudence that fulfill their oaths to faithfully follow the Constitution.

None of that is likely to quell hate directed at the justices, rage that led to an attempted assassination of Justice Kavanaugh in June. As a new majority brings its own clarity to long-disputed areas, additional cases will be overturned. Such shifts have occurred on changing courts in the past with rejections of long-standing precedent. Yet, every overturned precedent likely will be treated as sacrosanct and inviolate despite years of conflicted rulings. It will not be the interpretations but the integrity of the justices that most likely will be attacked.

When it comes to the court and the overturning of precedents, we have learned to hate the way described by Queen Margaret in Shakespeare’s “Richard III” — “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

156 thoughts on “From Affirmative Action to Andy Warhol: Buckle up for a Wild Supreme Court Term”

  1. Professor Turley,
    In your blog of September 12, you wrote, “I recently completed a study of what I call “rage rhetoric” and how our country has addressed such periods, legally and politically, from colonial to contemporary times.” Does that mean that there is a book or an article in the offing? If so, when/where? I would be most interested in such material. Are there any books or articles you would recommend that have looked into the issue?
    Thank you.
    Michael Feen

  2. “ Does your cell phone provider get to monitor your calls and cancel your service if they do not like what you are saying ?”

    Cell phone companies are not the same as Social media. That is a false equivalence. You PAY cellphone companies for the service that they specifically provide. You don’t PAY to join social media. You engage in a legal agreement in exchange for the privilage of participating in THEIR platform.
    Cell phone companies are not in the business of monitoring calls because their only service is PRIVATE communication between two individuals or organizations.

    Social media is an open forum where ANYONE can see what you are posting and they CAN regulate what you post. When anyone posts PRIVATELY between two individuals THEN it is not subject to the TOS as it is a PRIVATE conversation. There’s a clear distinction.

  3. Meanwhile, the 10th amendment stands alone, totally ignored by SCOTUS. Ninety nine percent of the laws enacted by our national congress and signed into law by a sitting president are totally and blatantly unconstitutional. For example, education and law enforcement are not enumerated in the constitution and are the responsibility of the states. Our founding fathers feared a powerful and bloated federal government like we currently have, and wanted governmental decisions to be made by the states.

    1. The entire communist American welfare state is unconstitutional including, but not limited to, matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, EPA, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

      Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, particular welfare, favor or charity. The same article enumerates and provides Congress the power to regulate ONLY money, the “flow” of commerce, and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the power to “take” private property for public use. If the right to private property is not absolute, there is no private property, and all property is public.

      Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while government is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure only.

    2. The judicial branch and Supreme Court have no power to legislate, modify legislation or modify legislation through “interpretation.”

      Justices who deviate from the “manifest tenor” of the Constitution must be impeached.

      “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

      “…men…do…what their powers do not authorize, [and] what they forbid.”

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

    3. “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

      – James Madison

  4. Little if No chance for Your Day in Court Today 4 Americans!!!


    Robert Barnes Joins Infowars In-Studio for Powerful Interview on the Collapsing State of the Justice System



    Oct 3, 2022
    The Alex Jones Show
    The Alex Jones Show

    Robert Barnes of joins The Alex Jones to break down the state of the failing Justice System.

  5. It IS NOT a function of the Supreme Court that Justices prove their intellectual superiority.

    It IS a function of the Supreme Court to support the literal, un-“interpreted” Constitution, and to adjudicate with all deliberate speed.

    It is the function of the Supreme Court to exercise Judicial Review as described by the Department of Justice as the Supreme Court being vested with the authority to determine the legitimacy of the acts of the executive and the legislative branches of government.

    From 1860 to 2022, hundreds or thousands of acts of the executive and legislative branches of government have been unconstitutional.

    Only unconstitutional Roe v Wade has been struck down and overturned.

    Obamacare is the quintessential, paradigmatic unconstitutional act of the executive and legislative branches; it must have been struck down by the Supreme Court with extreme prejudice.

    The Supreme Court must now recuse itself from perpetual holiday, relinquish its “entitlement as royalty,” and focus like a laser on the concept of all deliberate speed in doing its duty, its job.

    As they were informed by Marbury v Madison, please, and by all means, Your Honors, assimilate the lesson from Chief Justice Taney and REVIEW for the “manifest tenor,” now.

    If the Supreme Court elects not to support the literal words of the English language of the Constitution, the Supreme Court aids, abets and promotes the inverse, the Communist Manifesto.

  6. At Randolph High School, in Vermont, students are allowed to use whatever locker room or bathroom aligns with the identity they claimed. A transgender player on the girls’ volleyball team allegedly made an “inappropriate comment” about fellow teammates while they were all changing. Most of the girls complained that they felt uncomfortable undressing around a biological male. The school retaliated against them, barring all of the biological girls from their own locker room, while allowing the one transgender player to use it. The girls have to take turns chaining in a single occupancy bathroom stall, which one girl complained took 30 minutes for the entire team.

    Girls and women are told to shut up, keep sweet, and cheer on as biological men participate in girls sports divisions, sweeping records, titles, and scholarships. They’d better not complain about feeling unsafe, shy, or unconformable getting naked in the locker room around biological males, or else they will be harassed, punished, and very likely be denied future college admissions or jobs.

    Forget about, “I am woman. Hear me roar!” You’d better not make a peep about how you define your own gender, or how you feel about biological males in your private spaces. If you’re a lesbian, and you declare you would not date a biological man who believes he is a woman, you’re a TERF, a bigot. If you’re a famous woman athlete, you’ll be branded a bigot, and pushed out of polite society if you object to men playing in women’s sports. If you’re a famous female author who’s long espoused Left wing values, you’d better not proclaim you can biologically define your own sex, and its name is “woman.” Biological men are breaking records, and being selected as “women of the year” in myriad ways. It’s now deemed “brave” to proclaim that you have changed your gender, in defiance of reality and biology. It’s now “brave” for men who placed over 400th in men’s sports to push into women’s sports and break records. Forget all that pedantic biology about sexual dimorphism. They’ll tell you that women can have penises, men can get pregnant, and there’s no difference at all between men and women. They’ll keep telling you that after housing transgender inmates in women’s prisons, who subsequently impregnate multiple fellow inmates.

    That’s the state of “women’s rights” today.

    My gender is not a state of mind.

    1. How quickly the left forgets about a women’s rights and will step all over them today. I wonder what RBG would say?

    2. A woman can do anything a man can do, except what biology limits them from doing what a man can do.
      A man can do anything a woman can do, except what biology limits them from doing what a woman can do.

  7. Why is Biden’s federal government mandating a vaccine that is now out-of-date, does not prevent infection, or transmission? Why are so many in our military getting fired if they do not want to get a vaccine that has a risk of adverse events like myocarditis in young men, while not preventing disease? Why is the federal government forcing all healthcare workers employed in facilities that receive federal funding, including Medicare, to get the vaccine?

    This is forcing people to get a medical procedure they do not want, without a benefit.

    Healthcare workers, first responders, police, firefighters, and our military stayed on the job when Covid hit. They worked, and they got sick, with the earliest SARS-CoV2, the one they knew put people in the hospital on ventilators. They answered the call of duty and worked anyway. Everyone I know in these fields got sick. One of my relatives is a nurse, and she got seriously ill with Covid in the early days. So many nurses were sick that the hospital needed them to come back to work when they were still sick, putting patients at risk, because there were just not enough healthy people to take care of all the patients in the hospital. After she got Covid, the vaccine came out. She got vaccinated, boosted, and then boosted again. She still got Covid twice more. This is because the virus has evolved to evade immunity, both naturally acquired and vaccine-induced.

    There were healthcare workers, sick with active Covid infections, working in hospitals, and this was okay, but now they’re getting fired if they don’t want to get a vaccine for a version of Covid they already acquired. This vaccine will not protect them from future infections, will not prevent transmission, yet it will also come with side effects and adverse events. The vaccine worked great against the original Covid, but is no longer effective against current strains.

    Thank you for working during Covid, when so many stayed at home, getting unemployment checks, Covid assistance, or work from home checks. While other people had all their meals and groceries delivered, you helped people who coughed in your face during the worst of the pandemic. Thank you for going into flooded areas, swimming through alligator and snake-infested water, to rescue people in danger of drowning during Hurricane Ian. Thanks, oh, and now you’re fired for refusing an out of date vaccine that no longer works. Have you put in 17 years and were counting on that pension coming up? Too bad.

    This comes from the Party that enjoins us to “follow the science.” Well, they’ve taken a wrong turn.

    Retired Vice Admiral William “Dean” Lee, who served in the Coast Guard, sent the following in an open letter in support of those discharged from the military for refusing to get the vaccine. This includes cadets who were supposed to embark on a career, and those who have put in years of service, now denied their pensions.

    “The American people have moved on. The President himself has declared ‘the Pandemic is over.’ Yet, we continue holding fast to an outdated mandate, purging hundreds of dedicated sailors, even though we struggle to meet our recruiting goals. It is now time to take a pause, reevaluate, and assess what this is costing readiness, the taxpayer, and the public perception of how we treat our people…

    “To my esteemed colleague who made this missive necessary: Your words were no doubt sincere, but they are misguided,” wrote Lee. “The current course is not good for the country, the Coast Guard, or the mariners we serve.”

    “When I first raised this issue, it was about cadets. Nothing more. Having been ignored, it is now a campaign for ALL of them – the entire spectrum of unvaxxed people who had the moral courage to stand by their religious convictions,” he explained. “These are good, dedicated, highly trained individuals that we have spent a ton of money to develop. People with up to 18 years of service, forced out, with no pension. Anyone willing to give up that, rather than break faith, is someone I admire.”

    “To me, this is an issue of national security. What I believe we’re seeing here is an ideological purge. This is just one way to get rid of people with ideologies that don’t match the current culture. We need people who have their moral compass set right.”

      1. Biden just praised a Coast Guardsmen for rescuing people during Ian.

        An officer who will likely be out of the CG in a few days because the Biden admin refuses to grant his religious objection to Covid Vaccines.

    1. Karen, is it okay to vax for polio, measles or mumps? You sound like an all-round doubter. And that’s par for the course with most Trumpers.

      1. Must watch film Inform yourself. Best summary of what’s really happening and the hidden agenda behind the mass vaxxination campaign. It’s not about protecting anyone from disease.


  8. Jonathan: For some on this blog it is ridiculous to call Trump a “racist”. They like to cite the fact that there were Jews, Blacks and Asians in the Trump administration. They forget all the racist things Trump said about migrants and all his racist comments about people of color in Congress, Now, we have further evidence. Last week Trump posted on Truth Social that Mitch McConnell must have a “death wish” after McConnell supported a continuing resolution to fund the federal government. Trump is still mad at McConnell who said Trump was “morally” responsible for the Jan. 6 insurrection. Trump then criticized McConnell’s wife, Elaine Chao, in racist terms. Trump said McConnell should “seek help and advise (sic) from his China loving wife Coco Chow!”. Anyone need further proof of Trump’s racism?

    There are a lot of racists in the GOP and on the right. Proof? Last week the famous rap artist, Lizzo, was allowed by the Library of Congress to play James Madison’s 200 yr old flute owned by James Madison. There was outrage on the right that a Black woman was allowed to put her Black lips on the flute. Andrew McCarthy, a GOP politician who ran for Congress in NY and is a columnist for National Review, was livid: “Everyone involved in the decision to allow Lizzo to twerk while playing James Madison’s flute needs to be deported. I don’t care if they’re citizens!”. Ben Shapiro, the conservative commentator, was equally outraged. Nick Adams, a bestselling author of conservative books, said: “Lizzo isn’t talented enough to play music on a $20 Yamaha Plastic Recorder off Amazon let alone a crystal flute once owned by James Madison”. Never mind that Lizzo is a classically trained flutist. Jenna Ellis, noted for her work on Trump’s legal team, put the racist comments in a nutshell. She said Lizzo “is basically famous, I think, for being one of the most morbidly obese people in the world”.

    So there you have it. Racists are outraged that a BIG BLACK woman would be allowed to play Madison’s flute. Doesn’t get any more blatant then that!

    1. What Dennis apparently does not understand, (or maybe he does, but he likes to stir the pot) is that labeling something “”racist” when it is not –is actually what causes most exacerbation of racial polarity and discord. I once managed a staff of 55 professionals. If I fired one of them for poor performance, that was the end of it. But if I fired a Black person for poor performance, according to him/her, it was because of race and I was a racist and I had to defend my action. One of those Blacks who filed EEOC charges against me (I won all cases) was the last straw, and the very reason I ended up in law school.

      1. One of those Blacks who filed EEOC charges against me (I won all cases) was the last straw, and the very reason I ended up in law school.

        I love personal stories that drive people to a chosen profession. Inspiring, Lin

        Take note of Stacey Abrams, the bitter, black, divisive, election denying Democrat who was just slapped down by a Federal Judge nominated by Obama. One could say her claim was aborted late term because she is a fraud.

        Stacey Abrams’s ‘Big Lie’ Loses in Court
        Her voter suppression narrative takes a hit from a federal judge.

        The political debate is full of rhetoric about how American elections are untrustworthy due to either voter fraud or voter suppression. It isn’t true, and the thing about federal courts is they demand evidence. Ms. Abrams doesn’t have it, despite telling the public in 2018 that she was robbed.

    2. Dennis: Can you find it possible that Andrew McCarthy, Ben Shapiro, Nick Adams and others were offended by Lizzo’s tasteless twerking while playing, and not because she is Black? If Wynton Marsalis (a favorite of mine and a real professional) had played it, I doubt he would have prostituted the honor the way she did.

    3. So there you have it. Racists are outraged that a BIG BLACK woman would be allowed to play Madison’s flute. Doesn’t get any more blatant then that!

      Breaking norms. Failing to show respect. Abusing power. Having fun at a solemn event?

      Isn’t all of this the exact same stuff the left accuses President Trump of doing?

      The left is always the same.” Standards? Yes I have Standards. If you don’t like these, I got a lot more.”

      1. Estovir: Sorry to disappoint. My BMI is 24.27 which is considered “Normal”. And I don’t play the saxophone. I play the guitar–and rather well according to my guitar teacher. Personal invective doesn’t work with me. Is that all you have to offer? If you paid attention you noticed I spent a lot of time pointing out Trump’s overt racism. Not a word from you on that subject. No, you and your racist brethren in this blog, would rather focus on Lizzo, a BIG BLACK talented rap artist, who had permission from the Library of Congress to play Madison’s crystal flute. Your comment reflects the racism prevalent in this blog–more than anything I could say!

  9. Remind me again why anyone who is not a propaganda fetishist or finds the flailings of the left humorous reads NYT?

      1. It was called the newspaper of record because it was the first to include an “index” of contents, making it easy to reference covered news—NOT because of superior journalism.

      2. The New York Times is the definitive communist rag and propaganda machine.

        The Washington Post is as well.

        The New York Times and Washington Post are unfit for bird cages and fish markets.

      3. NYT used to be credible – well sometimes they were after all a pawn of the USSR in the 30’s and 40’s.
        Regardless, today that is just a slogan.

  10. It’s about time the originist textual Constitution mattered.
    Equality and individual freedom above all else
    Government is third in the flowchart.

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