Interviewer: In its last term, the Supreme Court dropped one bombshell after another. The new 6-3 conservative majority left John Roberts' more or less incremental approach firmly behind the court. The court now advanced major conservative positions on gun rights, the separation of church and state, environmental protection, and of course, the decision in Dobbs, which overturned Roe v. Wade. The court is not behaving as an institution invested in social stability, our contributor Jeannie Suk Gersen wrote in July, and that was putting it politely.

I wanted to talk with Jeannie now about the court's new term, which just began, and what other bombshells may fall. Jeannie Suk Gersen is a professor at Harvard Law School, and she was once a clerk herself on the Supreme Court working for Justice David Souter. Jeannie, of the many cases on the docket for the Supreme Court, what are you watching most closely?

Jeannie Suk Gersen: Well, I'm watching most closely the affirmative action cases that the court will hear at the end of this month. Those are cases against Harvard and the University of North Carolina.

Interviewer: I can't help but ask, you're at Harvard?

Jeannie: Yes.

Interviewer: You're at Harvard Law School. It's got to be the talk of the law school. What do people expect will happen with this quite conservative Supreme Court's-

Jeannie: I think everyone, whether at Harvard or elsewhere, who's been watching and listening to the court expects that the court will overrule its precedent and basically it will say that affirmative action that uses race as a factor and admissions is unconstitutional and unlawful. I don't see any reason to hope that it would go the other way.

Interviewer: That'll have tremendous consequences, won't it?

Jeannie: I think yes and no. Will there be other measures that universities can take to try to ensure diversity on their campuses? Of course they can, as long as it's what we would call a race-neutral method, and there are such methods that have been approved by the court.

Interviewer: What's a race-neutral method?

Jeannie: For example, in Texas there was something called the Texas 10% Plan that the court did approve as being lawful. Essentially, it takes automatic admission from 10% of the top of each high school, and that's automatic. Given that we have residential segregation and school-based segregation in our country in a lot of places, this actually ensures that the student body of the University of Texas will be racially diverse. I think those are the kinds of things that schools are immediately going to be moving to and probably they're already thinking about it now.

Interviewer: In the redistricting case from North Carolina, Moore v. Harper, the state is basically asking the Supreme Court to enshrine the legislature's power over election law. No state court could challenge an election map. The consequences then are what?

Jeannie: This, I'm not exactly sure what the majority will rule. I have to say I'm uncertain about the result in this case. This involves the elections clause that says that the manner of federal elections shall be prescribed by each state, by the legislature thereof. Here, the state legislatures had a manner of deciding how the elections should be run. Then state judiciary had a different idea based on its interpretation of the constitution.

The result of the Republican legislature's view is that state legislatures can engage in any kind of gerrymandering or voter suppression without any judicial review by state courts. That would be hugely consequential because it essentially says state legislatures do whatever you want, essentially without being bounded by law. I don't think there's a very strong basis to make a prediction in this case to be honest with you.

Interviewer: I don't mean to do violence to the prose of any of my colleagues, but I think it's fair to say that if you took a summary away from what Amy Davidson Sorkin wrote in The New Yorker this week is that if you thought that the overturning of Roe v. Wade was a big deal, wait till the Supreme Court goes at it again this season. Do you envision overall consequences coming out of the Supreme Court this fall anywhere near what it was like when Roe v. Wade was overturned?

Jeannie: Well, Roe v. Wade had such a symbolic cultural importance. The cases this term are not going to have that kind of salience culturally, but they really go to very fundamental principles of our country. What is the meaning of having a democracy and what is the meaning of having it be multiracial? What does it mean to actually be able to freely elect one's representatives? These are very, very basic ideas.

Then, of course, it goes right back to the affirmative action case as well because it's about the meaning of the equal protection of the laws and about whether we have to look at things in a colorblind manner, or one that actually takes into account that what it takes for the government to ensure equal protection of the laws or multiracial democracy, the proper functioning of it, that that would mean being conscious of the race of the population and how to make sure that all of the races get to freely elect their representatives. It's all tied up together.

Interviewer: Finally, Jeannie, I'd be remissive if I didn't ask you about Donald Trump and the Mar-a-Lago documents. Trump has asked the Supreme Court to intervene in that case. What do you think the court will do there, if anything?

Jeannie: That case is a huge mess. It's just a mess. My prediction is that the Supreme Court will not come out on the side of Donald Trump in this case. It will probably just let it roll in the Eleventh Circuit and in the district court. That's my guess right now. I would be surprised I could be wrong, but that would be my guess.

Interviewer: Thanks so much, Jeannie. I know there'll be more to talk about the Supreme Court as the fall evolves. Thanks so much.

Jeannie: Thank you.

Interviewer: Jeannie Suk Gersen is a professor at Harvard Law School, and you can read her work for us at newyorker.com.

[00:06:19] [END OF AUDIO]

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