The Supreme Court Cases That Will Be Weaponized by the FedSoc Six

The conservatives justices could do more to catapult the country into a theocratic morass than any previous Supreme Court term in modern history.

Collage of headphones around bible and mix tapes with names of Supreme Court cases
The Boom! Lawyered podcast will record rapid reaction episodes live on the Rewire News Group YouTube channel after oral arguments on Monday and Wednesday. Austen Risolvato/Rewire News Group illustration

This piece is part of a Special Edition, which you can see here.

At the end of the last Supreme Court term, I thought to myself, well, that sucked. How much worse can it get?

The answer to that question is “a lot,” as it turns out. Because when the rulings come down in this term? The term we’re in the middle of right now?

It’s going to be worse.

It is not an exaggeration to say the Supreme Court has become an arm of the white Christian evangelical movement. They are the movement’s judge and jury, and when it comes to the rights of marginalized people, they are the movement’s executioner.

Last term in Dobbs v. Jackson Women’s Health Organization, they axed abortion rights, relegating every woman and person capable of becoming pregnant to second-class citizenship.

This term, the Court is set to issue rulings in a series of cases that will do more to catapult this country into a theocratic morass than any previous term in modern history.

Let’s walk through them.

Merrill v. Milligan

Merrill could very well be the final nail in the voting rights coffin, with Chief Justice John Roberts acting as grave digger. At issue is section 2 of the Voting Rights Act, which prohibits discrimination on the basis of race when it comes to voting. Section 2 is essentially the last remaining bulwark against Republicans’ ongoing effort to disenfranchise Black and brown voters so they can maintain an anti-democratic stranglehold on state legislatures.

In Merrill, plaintiffs claimed a violation of section 2 because Alabama, a state that is 27 percent Black, drew a map that contained only one majority Black district, and then sprinkled Black voters across multiple districts in a brazen effort to dilute their vote. When challenged, Alabama protested that it couldn’t draw a map with more than one majority Black district. In response, plaintiffs said, “Oh really?” and submitted several maps demonstrating that yes, in fact, drawing a map with a second majority Black district in the Black-ass state of Alabama was possible.

But Alabama kept on whinging—right up to the Supreme Court.

RNG Presents: One Nation Under God Zoom event on December 9

Would you believe Alabama’s complaint to the Court was that in submitting maps that demonstrated a second majority Black district could be drawn, plaintiffs took race into account?

Seriously. That’s their complaint, and Justice Samuel Alito was eager to accept that ridiculous claim.

Let me ask you this: How can plaintiffs prove that Alabama’s maps are racist without taking race into account? How can plaintiffs submit maps demonstrating that a second majority Black district could be drawn without taking race into account?

They can’t. There can be no race neutral inquiry into whether Alabama’s gerrymandered maps are racist. It doesn’t make any sense from a logical standpoint.

Nor does it make sense from a constitutional standpoint, as Justice Ketanji Brown Jackson aptly and repeatedly pointed out when she spoke at length about the 15th Amendment being a Reconstruction Amendment, explaining that the point of the Reconstruction Amendments was to bring some measure of equality between Black and white people and to reintroduce Black people into society.

She basically elbowed Alito in the face, laying bare the sheer absurdity of his position.

But the FedSoc Six position doesn’t shrink in the face of absurdity because they are moving with intent. They know that gerrymandered maps lead to underrepresentation of people of color in state legislatures. State legislatures in turn enact more restrictive voting rights measures, allegedly intended to root out voter fraud—the boogeyman living under the Republicans’ collective bed—which leads to voter suppression in national elections. And that, in turn, leads to men like Trump grabbing the presidency and destroying the federal courts almost beyond repair in the span of four short years.

Men like Alito—who benefit from this destruction—are soaking in absurdity. It’s evident from the hypotheticals Alito posed during oral arguments, the speeches he makes before his Federalist Society goon squad, and the disrespect with which he treats his position by allegedly leaking opinions, dating back to 2014 in the Burwell v. Hobby Lobby decision and culminating in the leak of the draft opinion overturning Roe v. Wade.

But Alito is an absurd man, and it wouldn’t stop with Merrill v. Mulligan.

Students for Fair Admissions v. Harvard/UNC

In 1996, California ended the consideration of race in admissions when voters approved Proposition 209. The harm to Black and brown students in California was immediate, as enrollment of Black and brown students plummeted by 50 percent, according to Bloomberg Law. As the New York Times reported:

Students who would have enrolled at the flagship campuses before the ban attended less selective universities in the system. This in turn pushed out other Black and Hispanic students, who moved down the ladder of selectivity. Those at the bottom lost their grip entirely, exiting the system altogether.

The devastating effect on Black and brown upward mobility was predictable in the wake of Prop 209. Perhaps one could argue that back then, the powers-that-be hadn‘t really considered the cascading harms that would flow from the decision. But that’s no excuse now. Those harms have been studied and reported for decades, and still conservatives insist that affirmative action is reverse racist against white people.

And ultimately, that is the basis of Students for Fair Admissions’ claims against Harvard and the University of North Carolina that their admissions process is biased against Asian American and white students. (Would it surprise you that the bulk of the oral arguments was spent on claims that the system is unfair to white students? Asian students were mentioned as an afterthought, if they were mentioned at all.)

Edward Blum, the head of SFFA, and the rich white folks who back him would like you to think they are concerned that the admissions process is unfair to Asian American students. But make no mistake, that’s not what this is about. This isn’t about “fair admissions.” If it were, Blum and the rich white folks who back him would be advocating against legacy admissions. (There aren’t too many Black and brown students who can get into Harvard on the strength of their name alone or their family’s willingness to donate enough money to renovate the library.)

Indeed, during oral arguments in these cases, Asian American applicants were barely mentioned. The focus was on white students who were being denied their “rightful” admission into Harvard or UNC with Asian American students as an afterthought. But of course they’re an afterthought—Blum and his goons don’t care about them. They care about whitening America and erasing Black and brown participation from civic life.

And when it comes to that particular white supremacist project, SFFA found a friend in Alito.

Both Harvard and UNC use race as a “plus one” factor in their admissions process. Alito queried whether using race as a plus one factor for Black applicants means that it’s a minus one for “other” applicants. In other words, is college admissions a zero sum game? To which I respond: What the hell, man?

Just because a school values diversity and gives a plus factor to Black applicants or other underrepresented groups doesn’t mean they find a corresponding white applicant and dock them a point.

But it got worse.

Jackson aptly pointed out that if schools are prohibited from considering race as a factor, then a Black person whose life has been shaped in some way by their experience with racism and who wants to attend a school from which their family has historically been excluded could be penalized by a race-neutral admissions process. Would that student be prohibited from submitting an essay explaining their history and experiences? Seems reasonable.

Jackson’s hypothetical immediately grounded the discussion of race conscious admissions in the reality of race and experience and its ongoing effect on Black people in this country. And what did Alito do in response? He posed some ridiculous hypothetical about an African immigrant who moves to rural western North Carolina “where the population is overwhelmingly white” and doesn’t claim to have experienced racism but had to navigate cultural differences.

“Would that be permissible?” he asked, to which the attorney responded that it would because the preference would not be based on race but rather on cultural differences. And just what do these geniuses think those cultural differences are? Can anyone fathom an African immigrant living in rural western North Carolina having zero experience with racism? Only cultural differences? To ask the question is to answer it.

Imagine thinking that an African immigrant isn’t going to face racism in rural North Carolina. It’s absurd. But Alito is an absurd man.

And unfortunately, he’s one of the six who is likely going to decide that considering race has no place in college admissions. And if that is the case, the sort of social stagnancy felt by Black and brown students in California in the wake of Prop 209 will be felt by Black and brown students nationwide. Enrollment rates for Black and brown students at the sort of elite institutions that are pipelines to positions of power, institutions like Harvard, one of the defendants in the cases, will plummet, making it difficult—if not impossible—for Black and brown students to access those pipelines and attain those positions of power.

Do you know how many Black people are CEOs of Fortune 500 companies? Six.

Do you know how many Black senators have served in the history of this country? Eleven.

And we all know about that one guy who became president. Where did he go to school? Harvard, of course.

Brackeen v. Haaland

In 1978, Congress passed the Indian Child Welfare Act in response to a crisis during which Native children were funneled into state foster care systems and shipped off to white Christian evangelical families. Stripping brown and Black children of their culture and heritage and forcibly assimilating them into white America is a hallmark of Christian evangelism. History is rife with tales of missionaries traveling to far-flung lands to “tame” the “savages.”

Well, you don’t have to travel to any far-flung lands to see white Christian evangelism at work. One need only read the briefing in Brackeen v. Haaland. Texas argued that the Indian Child Welfare Act harms Native children because it prohibits them from being raised according to white middle-class standards. The white supremacist project couldn’t ask for a better publicist than Texas.

The Brackeens themselves are playing their part as well. Julie and Chad Brackeen—who view fostering and adopting children as a sacrifice in service to God—have teamed up with one of the biggest law firms in the country to, essentially, undermine tribal sovereignty. The case is a custody battle about whether the children to whom this land truly belongs have a right to be connected to it and to their culture—or whether, for their own good, white Christians who view adoption as a sacrifice in service to God can continue white people’s long tradition of stealing and brutalizing Native children.

But it’s more than that.

The Brackeens are being represented pro bono by power law firm Gibson, Dunn, and Crutcher—the same firm that represents oil interests in Texas. The same Texas petitioning the Supreme Court to shiv ICWA in the kidney. Why is such a powerful law firm dabbling in family law in Texas? There’s a lot of money to be made in casinos and oil located on tribal lands, that’s why.

The white Christian nationalist project intends for this government to go back on the word it gave to the Indigenous people who were on this land before the colonizers got here and who they slaughtered wholesale in order to claim already occupied land.

That genocide never ended. It became less pervasive, but no less violent, because make no mistake: Denying a Native American child the opportunity to connect with their heritage is an act of violence.

That violence played out during oral arguments when the Brackeens’ lawyer feigned ignorance at the connection between tribal sovereignty and ICWA’s preference for placing Native American children with Native American families. He claimed that the former had absolutely nothing to do with the latter when it obviously does. If there are no children to carry on Native culture, then Native culture ceases to exist. That’s why some conservative white folks are losing their mind about Great Replacement Theory. That’s what the “domestic supply of infants” is about—making sure that brown and Black people don’t replace white people.

And how do you do that? Create more white kids. Force white women to have babies. And in the case of the Brackeens and countless other white saviors, steal brown children and whitewash them.

303 Creative v. Elenis

This week, the Court will hear two cases that fit neatly into the Christian white nationalist society that conservatives, with an assist from the Supreme Court, are building. (Be sure you’re subscribed to the Rewire News Group YouTube channel to watch rapid reaction episodes on both cases!)

In 303 Creative v. Elenis, the Court is being asked to weaponize the First Amendment against LGBTQ people, permitting bigots to claim freedom of religion as they turn same-sex couples away from their businesses. The website designer plaintiff in 303 Creative, like the baker in Masterpiece Cakeshop v. Colorado, is claiming that her websites are an expression of her artistry, and compelling her to build a website for a same-sex couple would be an infringement on her free speech rights. She is making these claims even though no one has even asked her to make a website for a same-sex couple. Colorado’s anti-discrimination laws prohibit discrimination on the basis of a protected characteristic. That should be the end of the discussion.

But I suspect that during oral arguments this morning, we’ll hear a lot of whinging about how people shouldn’t be forced to serve people who they find distasteful. After all, you wouldn’t force a Black website designer to build a website for the Klan, would you?

No. Because the KKK is not a suspect class. (Well, they are a suspect class in the plain English definition of the word—after all, who is more sus than the KKK?—but in constitutional terms, a suspect class is a group of people who, essentially, don’t have the numbers and political power to protect themselves.) Look around you at the neo-lavender scare that has a stranglehold on conservatives right now.

The LGBTQ community needs protection. But the FedSoc Six think protecting a vulnerable group of people—a group that is literally under siege in this country—is less important than a bigot’s right to discriminate by claiming freedom of religion for their belief that being gay or trans is icky. And once those religious discrimination hooks are solidly gripped into America’s skinsuit, they will be hard to extricate. Today it’s websites and cake shops. Tomorrow, it’s housing and employment.

Moore v. Harper

In Moore v. Harper, the case being heard Wednesday morning, the Court will consider the independent state legislature theory that posits a state legislature is the first and last word on election laws and state courts and even state constitutions do not have the authority to interfere with a state legislature’s judgment. In Moore, the North Carolina Supreme Court tossed out a racist gerrymandered map, and the state is challenging the Court’s right to do so, arguing that the state court lacked authority under the independent state legislature theory.

This is the theory that would have permitted Trump to replace slates of electors with his own slate and steal the 2022 election. It’s an extreme theory that would allow a Republican-controlled legislature to overturn the will of the people. It would allow states to violate elections laws and leave state and federal courts powerless to stop them.

It’s hard to predict the outcome of the case. On the one hand, permitting North Carolina to adopt the ISL theory would literally crack democracy wide open, and that seems like it would be a bridge too far for even this Court. It would let legislatures run roughshod and unchecked over the rights of voters. It can’t be that the Supreme Court will countenance legislatures having unchecked power over state and federal elections.

But, with this corrupt Court, anything is possible.