By Marjorie Cohn / Truthout
The 2023-2024 Supreme Court term will begin on Monday, October 2. Dominated by six right-wingers, the court has agreed to review cases in which voting rights, consumer protection, and the regulation of health and safety, workers’ rights and the environment are in jeopardy. The cases present the issues of gerrymandering and the power of administrative agencies. In light of its recent conservative rulings, we should be wary about how the court will rule on these critical matters.
Here are three impactful cases that are already on the court’s docket for its forthcoming term:
Survival of Consumer Financial Protection Bureau
On October 3, the Supreme Court will hear oral arguments in Consumer Financial Protection Bureau v. Community Financial Services Association, in which the Fifth Circuit Court of Appeals declared the Consumer Financial Protection Bureau (CFPB) unconstitutional.
Congress created the CFPB two years after the Great Recession of 2008 to shield consumers from the excesses of the financial industry that upended U.S. lending markets and the U.S. housing market. Established by the Dodd-Frank Act, the CFPB was intended to “promote the financial stability of the United States.” Since its creation, the CFPB has played a significant role in regulating the mortgage industry to protect consumers.
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The Fifth Circuit struck down the CFPB, claiming that its funding source violated the Appropriations Clause of the Constitution, which says, “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Congress enacted a funding stream for the CFPB when it created the agency in 2010. Before the Fifth Circuit decided to abolish the CFPB, no court had held that any act of Congress violated the Appropriations Clause.
If the Supreme Court affirms the Fifth Circuit’s decision, the mortgage market could be thrown into chaos. Although it should overrule the dangerous appellate court decision, the high court has several conservative members gunning for the “administrative state.” Destroying the CFPB would serve that right-wing agenda.
Racial Gerrymandering vs. Partisan Gerrymandering
In 2019, a 5-4 conservative majority of the Supreme Court decided in Rucho v. Common Cause that although excessive partisan gerrymandering is “incompatible with democratic principles,” the federal courts were powerless to strike it down. Partisan gerrymandering occurs when one political party intentionally manipulates district boundaries to bolster its voting power. Most partisan gerrymandering is done by Republicans.
The high court has, however, struck down racial gerrymanders because they violate the Equal Protection Clause of the Constitution. Racial gerrymandering transpires when race constitutes a predominant factor in drawing congressional districts.
Last June, the court overturned a racial gerrymander in Alabama in Allen v. Milligan and ordered the GOP-controlled legislature to draw a second map with an additional majority-Black district. Thumbing its nose at the Supreme Court, however, Alabama drew new maps that once again had only a single majority-Black district. A panel of three federal judges found that the new map probably violates the Voting Rights Act and ordered a special master to redraw the map. On September 26, the Supreme Court rejected Alabama’s request to reinstate its map with only one majority-Black district, thereby affirming the lower court decision which requires that a special master redraw the map.
Alexander v. South Carolina State Conference of the NAACP, now pending in the Supreme Court, involves a redrawn congressional map that the Republican-controlled legislature adopted after the 2020 census in South Carolina.
In January, a three-judge federal court ruled that South Carolina’s first congressional district amounted to an unconstitutional racial gerrymander because GOP legislators deliberately moved tens of thousands of Black voters into a different district to ensure that the first district would elect a Republican. The court ordered South Carolina to draw a new congressional map.
The CFPB has played a significant role in regulating the mortgage industry to protect consumers.
The court said the GOP legislators used race as a proxy for Democratic voters, and found that the map was essentially both a political gerrymander and a racial gerrymander.
Alexander provides the Supreme Court with its first opportunity to distinguish a racial gerrymander from a political gerrymander. We will see whether a majority of the court follows its 2017 case of Cooper v. Harris, which held that “if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests,” the use of race is presumptively unconstitutional, even if the drafters were motivated by partisan considerations instead of overt racism. “The sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics,” the Cooper court said.
One of the five members in Cooper’s 5-4 majority was the late Ruth Bader Ginsburg, whose seat is now occupied by Amy Coney Barrett. It remains to be seen whether there’s still a majority to uphold Cooper.
The future of voting rights is at stake in Alexander, which is scheduled for oral argument on October 11.
Executive vs. Judicial Power to Regulate Health, Safety, Labor, Environment
The Supreme Court created “Chevron deference” in the 1984 case of Chevron v. Natural Resources Defense Council. The doctrine requires that courts defer to a federal regulatory agency’s reasonable construction of a statute when a law is silent or ambiguous on a certain matter. For example, courts have used Chevron deference to uphold the National Labor Relations Board’s decision that certain workers are employees entitled to protections of the National Labor Relations Act; affirm the Environmental Protection Agency’s (EPA) rule requiring states to reduce emissions from power plants; sustain the Department of Labor’s interpretation of the Black Lung Benefits Act to allow coal miners with black lung disease to receive compensation; and accept the EPA’s revised regulations under the Toxic Substances Control Act to provide additional protection from lead paint exposure.
John Paul Stevens wrote for the unanimous court, “With regard to judicial review of an agency’s construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
On the docket this term is the case of Loper Bright Enterprises v. Raimondo, which the court may well use to overrule Chevron deference.
In Loper Bright, a divided panel of the D.C. Circuit Court of Appeals relied on Chevron to overrule the commercial fishing companies’ challenge to a rule promulgated by the National Marine Fisheries Service (NMFS). It requires the fishing industry to pay the costs of observers who monitor compliance with fishing management plans.
The statute says the government can require fishing boats to carry monitors, but it doesn’t indicate who must pay for them. The appellate court in Loper Bright held that the NMFS’s interpretation that the federal fishery law authorized the industry to fund the monitors was reasonable, so the court should defer to that interpretation.
When it agreed to review the case, the Supreme Court said it would decide: “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”
The way the court framed the issue strongly suggests it is likely to limit the scope of Chevron even if it doesn’t overrule it.
Neil Gorsuch, Clarence Thomas and Brett Kavanaugh have appeared eager to overturn Chevron deference. John Roberts and Samuel Alito have criticized the doctrine but haven’t suggested overruling it. Barrett has not weighed in on the issue. Unfortunately, Ketanji Brown Jackson has recused herself from the case since she participated in Loper Bright when she was a judge on the D.C. Circuit Court of Appeals.
Overruling Chevron deference would serve the right-wing agenda of “deconstruction of the administrative state.” Conservatives favor deregulation to protect corporate profits.
The court’s six-member supermajority recently took a significant step toward overruling Chevron when it invoked the “major questions doctrine” to strike down a proposal by the EPA to limit carbon emissions from power plants. The major questions doctrine allows five judges on the Supreme Court to rescind actions by federal agencies that involve “decisions of vast economic and political significance.”
It appears that Chevron deference is on its last legs. Former Supreme Court Associate Justice Stephen Breyer said that ending Chevron deference would be a “judicial power grab.”
The future of voting rights is at stake in Alexander,which is scheduled for oral argument on October 11.
If the court overrules the doctrine, right-wing federal judges can overturn decisions of federal agencies to regulate our food, water, health, safety, work and the environment. Unelected judges would trump agencies with special expertise that are appointed by the elected executive branch.
The Stakes of the 2023-2024 Supreme Court Term
These cases on voting rights, the powers of administrative agencies and the survival of the Consumer Financial Protection Bureau present only three examples of the matters the Supreme Court will rule on this term. Although the legal issues involved in the cases may seem obscure and remote to many people, the court’s decisions will affect our lives in significant ways.
We have already seen the right-wing majority of the court decimate long-standing precedent, such as its ruling in Dobbs v. Jackson Women’s Health Organization that overruled Roe v. Wade. We can expect the court to handle other precedents, such as Chevron deference, in a similarly cavalier manner. This is not the time to bury our heads in the sand. We must carefully track what the court does this term — and act in response.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, the bureau of the International Association of Democratic Lawyers, and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” Radio.