The barriers installed around the United States Supreme Court building after the release of a draft of the decision overturning Roe v. Wade are just a bad memory.
And for the first time since the beginning of the COVID-19 pandemic, in March 2020, the public will be able to hear the arguments of a cause in person, this Monday, on the occasion of the opening of a new session which will end next summer.
But what will look like a return to normal will only be so on the surface. Because, a few months after having accentuated the fractures of American society by rendering explosive decisions on abortion, firearms and the environment, among others, the highest court in the country is itself in the hot seat. Its legitimacy is challenged internally and externally as it has rarely been in its history.
And this new session should allow its conservative majority of six judges (out of nine) to continue this turn to the right which looks like a step back in the eyes of a plurality of Americans.
Among the issues on the menu: discrimination against same-sex couples in the name of religion; protection of wetlands; the future of affirmative action policies on college campuses; the survival of the 1965 Voting Rights Act, a pillar of the civil rights movement; and the validity of an arcane doctrine that could transform the way federal elections are administered.
These last two questions in particular make progressives fear a new assault on the foundations of American democracy.
However, these same progressives will applaud this Monday the presence of a first African-American, Ketanji Brown Jackson, among the judges of the Supreme Court. Stephen Breyer's replacement won't change the ideological balance of the Supreme Court, but it will help end the numerical dominance of white male justices. For the first time in history, they will be in the minority.
This expected change will not, however, have prevented Elena Kagan, one of the three progressive judges of the Supreme Court, from sounding the alarm in recent months about the ideological drift of her conservative colleagues.
“I'm not talking about a particular decision or a particular series of decisions. But if over time the court loses all connection with the public and public sentiment, that is a dangerous thing for democracy,” she said last July during a speech to around 500 judges and lawyers in Montana.
She was even more blunt last month, saying the Supreme Court risked losing the public's trust by ignoring the concept of "stare decisis," or respecting decisions that have already been made.
"It doesn't feel like the law when new judges appointed by a new president come in and start throwing out old cases," she said last month during a speech on campus at a Catholic university in Rhode Island.
Supreme Court President John Roberts has seen fit to step in to defend the controversial rulings of his fellow Conservatives.
“All our opinions are open to criticism,” he told a group of judges and lawyers last month. “In fact, our members do a great job of criticizing certain opinions from time to time. But the mere fact that people disagree with an opinion is no basis for criticizing the court's legitimacy. »
However, the magnitude of these criticisms cannot be ignored. According to a recent Gallup poll, only 40% of Americans approve of the Supreme Court's performance, a historic low.
The same poll also indicates that 42% of Americans, a plurality, believe that the Supreme Court is “too conservative”, a peak.
One of the most anticipated cases of the new session — Moore v. Harper — could confirm these Americans in their opinion. Republican lawmakers in North Carolina want the Supreme Court to rule that state courts have no say in the actions of state legislatures regarding federal elections.
The case stems from a decision handed down last February by the North Carolina Supreme Court. It rejected the new electoral map drawn by Republicans in the state, concluding that it intentionally and illegally diluted the Democratic vote.
Republicans base their arguments on a legal theory called the "Independent State Legislature Doctrine." Some justices of the Supreme Court of the United States, including Clarence Thomas, Samuel Alito and Neil Gorsuch, subscribe to varying degrees to this doctrine according to which the American Constitution reserves exclusively to the state legislators the control of the conduct of federal elections.
A decision favorable to the Republicans in North Carolina could apply to other key states, such as Michigan, Wisconsin and Pennsylvania.
It would likely further undermine the legitimacy of the US Supreme Court, given the crucial role played by state courts in the challenges by Donald Trump and his allies to the results of the 2020 presidential election.
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