Puyallup school district young scholars

Following the Supreme Court’s leak of a draft decision overturning Roe v. Wade , many Court-watchers and pundits have pointed to same-sex marriage and access to contraceptives as rights now potentially at risk . And while in the long run the logic set forth in Dobbs v. Jackson Women’s Health Organization could undermine those precedents, the Court may eviscerate other major areas of law far sooner—in fact, with cases on its docket this current term. Notably, the Court may soon declare the use of race in college admissions—affirmative action—illegal, and it may also massively constrain the power of the federal government to protect the environment.

The questions at hand in each case— Dobbs , Students for Fair Admissions v. Harvard , and West Virginia v. Environmental Protection Agency— differ. But they all raise issues that have been the targets of conservative legal scholars for decades, and they will now be decided by a right-wing Court with seemingly little commitment to its own precedents.

The use of race in admissions has been permissible in the eyes of the Court since 1978, when Justice Lewis F. Powell Jr. delivered his opinion in Regents of the University of California v. Bakke . Allan Bakke, who was white, argued that he had been denied entry into UC Davis’s medical school because of its affirmative-action program, which reserved 16 of the 100 seats in each class for minority students—though the school contended that his age (35) and average test scores had more to do with his rejection. Powell ruled that race could be used in admissions in concert with a host of other factors—including grades, extracurricular activities, and test scores—to build a class, because diversity was an important interest of the state’s. As such, his decision was not about righting historical wrongs, but about diversity for the benefit of the entire campus community. Over the next 40 years, the decision was upheld time and again.

In 2014, Students for Fair Admissions, a nonprofit founded by Edward Blum, which represents a group of anonymous Asian American students, filed a lawsuit against Harvard claiming that its admissions process discriminated against the students because of their race. The case slowly snaked through the legal system before a district-court trial in 2018. “The future of affirmative action is not on trial,” Adam Mortara, the lawyer for SFFA, said during his opening statement. But as the challenge wore on—with the district judge ruling in favor of Harvard, and an appeals court doing the same—the thin veil that it was not an attack on race-conscious admissions fell.

SFFA explicitly pointed to one of the most recent cases that upheld affirmative action: Grutter v. Bollinger . “ Grutter should be overruled, as it satisfies every factor that this Court considers when deciding to overrule precedent,” SFFA said in a filing to the Supreme Court. “It was wrong the day it was decided, has spawned significant negative consequences, and has generated no legitimate reliance interests”—a legal term referring to people who have taken actions based upon the statements of others, including the courts.

The lower courts’ decisions and decades of precedent should lead the Supreme Court to side with Harvard in Students for Fair Admissions v. Harvard , David Hinojosa, the director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, told me. And despite the draft Dobbs opinion, he’s trying to have faith that the Court will rule in Harvard’s favor. “But we’re also mindful that courts can and do veer off course. We’re hoping this is not one of those times, which certainly should not be, but that’s a reality we have to consider.”

Perhaps with even less public awareness, the Court may also decimate the federal government’s power to make regulations that protect the environment. In West Virginia v. Environmental Protection Agency , which challenges the EPA’s ability to regulate carbon emissions, the Court could invoke what is known as the non-delegation doctrine—a theory that effectively says Congress cannot easily empower the executive branch to figure out the details of regulatory policy.

“The doctrine sort of appeared here and there, in state courts, very intermittently in the 19th century,” Julian Davis Mortenson, a professor at the University of Michigan Law School who studies delegation and the relationship between Congress and the executive branch, told me. Its use was most prominent during the height of resistance to New Deal policies, in the 1930s. But it has long been roundly rejected by justices since—including the originalist Antonin Scalia, who wrote in a 2001 opinion that “we have ‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’”

Still, Mortenson told me, having studied the current justices closely, “There are five people who said things like ‘The non-delegation doctrine in the 1936 way—that had real teeth, and restricts how broad delegations can be to the government—should be a thing again, and we’re going to be happy to go along with the case.’” The Court could, of course, rule in a way that affects only this one agency rule, but it’s possible that the justices will take a much bigger swing, making any meaningful federal environmental regulation essentially impossible.

These cases haven’t received the same level of attention as Dobbs , and they fall outside the privacy issues adjacent to abortion, but they are no less consequential. And if the Court overturns these areas of long-settled law, millions of people’s lives will be affected, for generations to come.

A new map for New York’s congressional districts has thrown the state’s delegation into chaos, likely forcing incumbents to compete against each other for seats and inviting charges of racism against the man who drew the map and each other.

New York Congressman Sean Patrick Maloney is on the receiving end of much of that ire. It’s his job as the Democratic Congressional Campaign Committee chair to help his fellow Democrats win their races. Maloney currently represents the 18th Congressional District, which includes much of Hudson Valley. But when the new map drawn by a court-ordered special master put Maloney’s actual house in the new 17th District – currently represented by freshman Mondaire Jones – Maloney wasted little time before declaring he would run in the new 17th District

A majority of Maloney’s constituents, whom he has represented since he was elected in 2012, still live in the 18th District, while most of Jones’ constituents still live within the bounds of the 17th District (members are not required to live in the district they represent). Maloney is now the only representative who lives within the bounds of the district, which  he was quick to point out on Twitter . But if Jones were to run in the district where his White Plains home is located, he would have to compete against Rep. Jamaal Bowman, a fellow young Black progressive.

Maloney is also leaving an 18th District that became more competitive in the latest map, while the new 17th District slightly favors Democrats.

When a reporter from Punchbowl News reported Wednesday that Maloney’s allies were “spreading the message that Jones would be ideologically better suited to another district,” that didn’t sit well with another one of New York’s younger congressmen — Rep. Ritchie Torres, an Afro-Latino member who represents the Bronx.

“The thinly veiled racism here is profoundly disappointing. A black man is ideologically ill suited to represent a Westchester County District that he represents presently and won decisively in 2020?” Torres wrote on Twitter . “Outrageous.”

Asked about the maps on Tuesday, Maloney told reporters the new map was “a broken process has produced a broken result” but denied that he was mounting a primary challenge against Bowman.

“I’m the only sitting member who lives in the district, which is now New York 17 — which remains a competitive district, by the way — which we have to win in the fall,” he said. “I haven’t had an easy district since I came to Congress, but it’s my home in Putnam County — in fact, the entire county of Putnam County, which voted for Trump by 20 points in 2016 — is in this district. So, from my point of view, I’m just running where I landed.”

House Speaker Nancy Pelosi declined to wade into the debate when asked about it Thursday, though she echoed Maloney’s argument and said he was among the members who had decided to run where their homes are.

She also said his decision to switch to a new district didn’t conflict with his duties as the head of House Democrats’ campaign arm, calling him a “great chairman” and “master” of mobilization, messaging and fundraising.

“He has worked very hard. I’m very proud of the work he’s done,” she said.

The DCCC is exploring options for challenging the new map, which is slated to be finalized Friday. Maloney “continues to fight against this illegitimate process,” said committee spokesman Chris Hayden. “He has proven he can lead the DCCC without his own race interfering, and he will continue to do so.”

After the independent commission that was originally supposed to draw the New York congressional map could not reach a consensus , the Legislature, controlled by Democrats, drew a map that would have created 20 Democratic-leaning seats, four Republican-leaning, and two competitive seats, which could potentially result in a net gain of four seats for Democrats. However, after that map was thrown out by the courts and assigned a special master to redraw the lines, the new map gave Democrats 16 seats that would lean their way, Republicans would have five, and there would be five competitive seats. The current congressional delegation has 19 Democrats and eight Republicans.

Others in the delegation have vented their anger at the court-appointed author of the map, Jonathan Cervas. Rep. Hakeem Jeffries, a member of the House Democratic leadership who now finds himself in the same district as fellow Black Democrat Yvette Clarke, wrote on Twitter that the map “viciously targets historic Black representation.”

“This tactic would make Jim Crow blush,” he wrote, a line he repeated in an ad his campaign unveiled Wednesday evening. Neither he nor Clarke has announced what they’ll do.

Clarke and Bowman both talked about low-income housing communities that would be either split across districts or cut off from other majority-Black communities in a way that would have less voting power to address their specific needs.

“This proposal harkens back to an era in our nation where laws were designed to limit minority representation in our democracy. The practice of ‘cracking’ or diluting the voting power of historically oppressed communities was shameful when carried out by avowed racists in positions of power in previous decades and extremely disappointing when enabled by an out of state, unelected consultant today,” Clarke said in a statement calling on Cervas to revisit his map – which could be finalized for New York’s August primaries by Friday.

New York Law School professor and redistricting expert Jeffrey Wice said one potential path for the proposed map to be overturned by courts is through a focus on how minority populations in certain districts are impacted. Wice noted that the minority populations in districts represented by Torres and Democratic Rep. Adriano Espailliat may have been diluted enough to prevent them from electing their candidate of choice, and this would warrant a Voting Rights Act violation claim.

“The Voting Rights Act and Constitution do not exist to protect incumbents. They protect voters,” he said.

While Ohio Rep. Joyce Beatty, chairwoman of the Congressional Black Caucus, told reporters on Wednesday that “things can always be handled better,” she focused her criticism on the courts, rather than her colleagues.

“I think the bigger picture is what happened in redistricting,” she told reporters. “If you want to talk about something being racially motivated, let’s go look at the court system. Let’s go look at how those judges are put there.” Acting state Supreme Court Justice Patrick McAllister, who ruled the maps needed to be redrawn, is a Republican who was elected to a 10-year term in Steuben County Surrogate’s Court in 2018.

The plight of the delegation’s Black members has drawn far more scrutiny than two of their longest-serving White members, Democrats Jerry Nadler and Carolyn Maloney, who have represented districts encompassing the Upper West Side and Upper East Side, respectively, for decades. The two will now be pitted against each other in the 12th District, which encompasses a wide swath of Manhattan. Both plan to run in that district.

Their plight  creates an opening for another White politician: former New York Mayor Bill de Blasio announced Wednesday that he is creating an exploratory committee to run in Nadler’s old district, the 10th.

Aaron Navarro, Adam Brewster and Ellis Kim contributed to this report.