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Electoral rights, environment … The busy back to school for the American Supreme Court


With a wave of the hand, the controversial institution ended nearly 50 years of constitutional protections for the right to abortion. And she does not intend to stop in such a good way. The very conservative Supreme Court of the United States began a new session on Monday which could end with other reversals. The arrival of Ketanji Brown Jackson, appointed by Democratic President Joe Biden, does not change the balance within the temple of American law: he retains a solid conservative majority of six judges out of nine, including three chosen by Republican Donald Trump. .

Discrimination, electoral law, immigration… Several explosive files are in the sights of the high court, even as its credibility is eroding. According a Gallup poll published a few days ago, less than one in two Americans say they trust it. A drop of 20 points in two years, and the lowest level since the start of this census by the pollster in the 1970s.

  • Environment: wetlands in danger?

Monday morning, the court first plunged into the heart of the environmental controversy over a case that could limit the scope of a federal law: the Clean Water Act of 1972. Its role is to provide the legal framework for the preservation or restoration of waterways on a national scale. The challenge for the Supreme Court will be to decide whether wetlands are “navigable waters” and therefore protected.

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A decision removing the law’s protections even for some wetlands could have significant implications for the country’s water supply, where the system is interconnected. Concretely, a pollutant dumped in a wetland several kilometers from a large lake can nevertheless migrate towards this lake. In a column published Monday, October 3, in USA Today, actor Robert Redford has raised concerns, asking the Supreme Court not to dishonor the 50th anniversary of the Clean Water Act.

  • An electoral charcuterie on the menu

Another burning issue that could reshape American democracy is the question of the electoral map in the state of Alabama. The subject will be on the table as of Tuesday and the Supreme Court could unravel a section of the emblematic law of 1965 which put an end to the segregationist rules limiting the right to vote of African-Americans in the South. With the midterm legislative elections scheduled for Nov. 8 just weeks away, the outcome could impact how lawmakers in other states draw their electoral maps.

Civil rights advocates sued Alabama last November after the state legislature released its map, which features a single majority black district – where 55% of voters are black – while fragmenting other communities . “While blacks make up approximately 27% of Alabama’s population, they are represented in only one of seven (14%) congressional districts,” noted the American Civil Liberties Union, a leading association. based in New York.

According to an analysis of the Associated Press of 2017, Alabama had one of the most “electorally choppy” congressional cards in the country. The stakes are high in a country where black voters overwhelmingly vote for the Democrats, when their white counterparts are more likely to support the Republican camp.

On October 31, the Supreme Court will also have in its sights the judgment which in 1978 defined the legal framework for positive discrimination programs in universities. The high court will devote a hearing to the selection mechanisms in place at the prestigious Harvard University and the public university of North Carolina. The conservative Students for Fair Admissions (SFFA) is appealing lower court rulings that upheld universities could consider certain racial criteria at Harvard University and the University of North Carolina.

  • Universities: positive discrimination in the hot seat

For its part, the Supreme Court has itself ruled in favor of positive discrimination provided that it aims only to ensure the diversity of the student population. She now seems ready to back down.” [Frederick] Douglass, I believe that black people can succeed in all areas of American life without the interference of university administrators […]”, according to the words of Clarence Thomas, taken up in Slate. For conservatives, affirmative action is contrary to the provisions of the 14th Amendment – stating that all men are equal.

The rights of LGBT people could also be undermined. Five years after having ruled in favor of a Christian pastry chef who did not want to sell a wedding cake to a male couple, the Supreme Court will return to this sensitive subject, seized this time by a website creator. In 2018, she issued a limited-scope decision. This time, it could more broadly authorize traders, whose products have a “creative” nature, to violate anti-discrimination laws in the name of their religious beliefs. For example, this could result in architects refusing to design houses for a homosexual couple.

Then, before next summer, “the Supreme Court will decide the most important case for American democracy in nearly two and a half centuries since the founding of America”, describes the American monthly, The Atlantic. It is a suffrage case in which conservative litigants support the “independent state legislature theory,” adopted in recent years by radical Republicans who argue that the constitution gives state legislatures the overriding power to regulate federal elections.

The move could give Republican-controlled state legislatures even more power to set the rules for federal elections — even if they result in partisan butchering or violate state constitutions. Already last February, the North Carolina Supreme Court declared the new legislative maps of Congress and the states of the Republican-led legislature to be “unconstitutional beyond a reasonable doubt.”

  • Immigration: modified deportation policies?

By June 30, the deadline for rendering its judgments, the high court will have to rule on the policies for deporting undocumented immigrants, the death penalty or the policies for adopting Native American children. On this last point, the Supreme Court also wishes to review the‘Indian Child Welfare Act, which for 44 years has protected Native American children from forced separation from their families and tribes and placement in non-Native homes. “If the ICWA is rescinded, not only would it be detrimental to Indian children, but it would also impact the tribal right to self-government, sovereignty and tribal jurisdiction,” Lynnette Gray warned on Twitter. Bull, candidate to be the first Native person to represent Wyoming in the House of Representatives.

  • The responsibility of social networks questioned

The Supreme Court of the United States finally agreed on Monday to examine two cases relating to the legal responsibility of social networks such as Facebook, YouTube (owned by Google) or Twitter, concerning the content circulating there. According to AFP, one of the files concerns a 23-year-old American woman killed during the November 13 attacks in Paris. His family accuses YouTube of having violated the federal anti-terrorism law by leaving on its channels videos of the Islamic State (IS) organization inciting violence.

For now, section 230 of the Communications Decency Act, passed in 1996, still protects those platforms that are not considered publishers. Will this be challenged? Such a scenario still seems unlikely. But it would certainly have cataclysmic consequences for the major web players.


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