Analysis: 3 things to watch in the new Supreme Court term

The U.S. Supreme Court begins a new term Monday with cases likely to provoke controversy and increased public skepticism about the institution’s legitimacy.

The justices — including new member Ketanji Brown Jackson — take their seats on the courtroom’s curved mahogany bench following an extraordinary term in which the conservative super majority of six eliminated the constitutional right to abortion, expanded gun rights, restricted federal authority to combat climate change and reduced the separation of church and state.

As if that were not enough, an unprecedented leak of the draft abortion opinion affected relationships inside the court and the public’s view of it as just another political institution. By the end of summer, public approval of the court was the lowest recorded in nearly 50 years by a number of national polls.

READ MORE: Supreme Court begins new term as public’s trust hits historic low

After a contentious major term, justices of the past have tended to return with a more low-key term. That appears unlikely this time.

READ MORE: Majority of Americans think Supreme Court overturning Roe was more about politics than law

As this term unfolds, here’s what we should be watching closely.

6-3 rulings

At the beginning of the term that ended in June, one long-time, close observer of the court warned that if the conservative majority produced a series of 6-3 decisions in controversial cases in the next two terms or so, that would present a serious problem for the court.

What that observer, Irv Gornstein of Georgetown University Law Center, meant is that the court would be seen as a partisan institution with an agenda aligned with the party of the Republican presidents who appointed them. Last term’s decisions on abortion, guns, climate change and two religion-related issues were all by the the court’s six conservatives with the court’s three liberal justices in dissent.

WATCH: Inside the Supreme Court decision that overturns abortion rights

Will 6-3 decisions in the new term follow last term’s pattern, or will there be crossover votes by the left and right wings of the court?

Justice Brett Kavanaugh

When Justice Anthony Kennedy retired in 2018, the “center” of the court disappeared. He was the court’s so-called swing vote, a Republican-appointed justice who was not always predictable in his view of cases. Before him, the “center” was Justice Sandra Day O’Connor, and before her, it was Justice Lewis Powell Jr.

After Kennedy’s retirement, Justice Elena Kagan, in a public appearance, explained that his position in the court’s center helped the public to view the court as somewhat balanced because sometimes Kennedy voted with the liberal justices and sometimes with the conservative ones.

Justice Brett Kavanaugh is not the court’s center. Instead, he is viewed as the median justice: not as conservative as Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett. With a penchant for writing concurring opinions to the majority rulings of his fellow conservative justices, Kavanaugh tries at times to narrow or soften the blow of those rulings. He also has at times joined with Chief Justice John Roberts to form a five-justice majority with the court’s three liberal justices.

He is perhaps Roberts’ best hope of an ally when the chief justice attempts to slow what has become a swift and sharper turn to the right by the four other conservative justices.

Race-related cases

If last term was defined by the court’s abortion decision, the new term is likely to be defined by race.

During the term’s first week, the justices will hear arguments in a voting rights case from Alabama. A three-judge district court ruled that the state’s 2021 congressional map violated Section 2 of the Voting Rights Act because it diluted the votes of Black Alabamians by packing those voters into one district. The district court agreed with challengers of the map, who argued that those voters deserved a second congressional district based on their proportion of the population. The state argues that race should not be a consideration at all in the redistricting process.

The Supreme Court, in a 5-4 vote, allowed the discriminatory map to take effect and scheduled the challenge for arguments on the merits. Chief Justice Roberts joined the court’s three liberal justices in dissent. Voting rights advocates worry that the conservative majority is prepared to once again cut back the Voting Rights Act, considered the crown jewel of the civil rights movement.

READ MORE: Civil rights groups worry Black districts may face increased GOP scrutiny after recent Supreme Court ruling on voting rights laws

In 2013, a 5-4 conservative majority gutted Section 5 of the act, which required states with histories of voting discrimination to get any voting changes precleared by the U.S. Justice Department or a federal court in Washington, D.C. And in a 2021 case from Arizona, a 6-3 conservative majority narrowed Section 2, the only major section of the act remaining in effect.

In late October, the justices also will hear arguments in two challenges to the use of race as a factor in the admissions policies of Harvard College and the University of North Carolina.

In 2003, the Supreme Court upheld the use of race as part of a holistic view of student applicants in order to achieve diverse student bodies in higher education. In the Harvard and University of North Carolina cases, the challengers – an organization founded by a long-time foe of all racial preferences – argued that the court should overturn its 2003 decision in Grutter v. Bollinger.

Though all of the justices paid homage to stare decisis (standing by precedent) during their Senate confirmation hearings, there is an intense internal debate about when it should be followed. That debate played out most recently in harsh words in last term’s abortion decision overruling the nearly 50-year-old Roe v. Wade and 30-year-old Planned Parenthood v. Casey.

There are other potentially major cases involving the environment and LGBTQ+ discrimination that will offer more insights into what is ultimately the key question of the new term: How far and how fast will the conservative super-majority go?