Monday, October 1 marked the beginning of the United States Supreme Court’s 2022-2023 term. Professor Darin Johnson, an associate professor at the Howard, in a hybrid briefing organized by the Foreign Press Centers, outlined several of the most impactful cases facing the justices. These include cases revolving around election law, civil rights for the LGBTQ+ community, affirmative action, immigration, and environmental protection. Excerpts:
As you likely know, the Supreme Court opens for a new term today. This is the first term that will include the Supreme Court’s newest justice, Ketanji Brown Jackson.
It’s my pleasure to provide an overview of some of the significant cases and issues that the Supreme Court will again address in this new term. As with last year’s term, which saw the overturning of the landmark Roe v. Wade case which established a constitutional right to abortion 50 years ago, this year’s docket also promises to deal with several significant issues; including environmental law, immigration law, voting rights, LGBT rights, and the consideration of race in a number of contexts, including university admissions, electoral redistricting, and adoptions.
So the first case I’d like to discuss is a case being heard by the court today on environmental law. It is the case of Sackett v. the Environmental Protection Agency. In this case, the Supreme Court is addressing the scope of environmental protections under the Clean Water Act. The Clean Water Act is a 1972 law that regulates the discharge of pollutants into waters of the United States. In this particular case, an Idaho couple has argued that it does not have to receive a permit under the Clean Water Act to build a house on property that contains wetlands near a lake.
In a 2006 split decision, four justices of the Supreme Court determined that the Clean Water Act provides jurisdiction over land with wetlands that contain “a continuous surface connection” to a waterway. And one justice determined that jurisdiction existed when the land has a significant nexus to a waterway. The interpretation of the Clean Water Act’s jurisdiction that the court will provide in this case has the potential to affect the rules for the permitting and the development of millions of acres of land in the United States that contain wetlands.
The next case that I’d like to turn to is a case involving the topic of affirmative action. The combined cases of Students for Fair Admissions against Harvard and Students for Admissions against the University of North Carolina have challenged the central holding of a 1978 case Bakke v. University of California Board of Regents. This case established that race is a constitutionally permissible factor to be considered in university admissions. That precedent was reaffirmed in the 2003 Grutter v. Bollinger Supreme Court decision which held that race can be one of many factors considered in university admissions to achieve educational diversity. That precedent was again affirmed in the 2016 Supreme Court case Fisher v. University of Texas. These two cases will be argued on October 31st.
I’ll now turn to a case involving adoption. The case of Haaland v. Brackeen involves a challenge to the 1978 Indian Child Welfare Act. The Indian Child Welfare Act gives Native Americans preference in the adoption of Native American children over nonNative Americans. The Indian Child Welfare Act’s stated purpose is to, quote, “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of [minimal] federal standards for the removal of Indian children and placement of such children in homes which reflect the unique value of Indian culture.” The law was passed in response to the history of Native American children being removed from their tribes and heritage. The case will be argued on November 9th.
I’ll now next turn to the topic of voting rights. The case of Merrill v. Milligan involves a challenge to an electoral map that Alabama federal courts determined impermissibly diluted black voting power in violation of the 1965 Voting Rights Act. The 1965 Voting Rights Act is one of the landmark laws passed as a result of the mid20th century civil rights movement against racial segregation and discrimination in the United States. The 1965 Voting Rights Act outlawed discriminatory voting practices adopted in many southern states following the end of the Civil War a century prior, such as poll taxes and arbitrary tests directed at African Americans to prevent them from voting.
The act enforces the Fifteenth Amendment to the United States Constitution, that – an 1870 constitutional amendment – by its terms prohibits racial discrimination in voting, although the aforementioned discriminatory practices continued until the adoption of the 1965 Voting Rights Act.
Section 2 of the Voting Rights Act permits challenges redistricting plans that violate its prohibitions against racial discrimination. The case will further determine the scope of remaining enforcement power under the Voting Rights Act following the 2013 Supreme Court decision Shelby County v. Holder, in which the Supreme Court eliminated the requirement under Section 5 of the Voting Rights Act for prior U.S. Department of Justice approval to any changes in state and local laws in parts of the country with a history of racial discrimination. This case will be argued tomorrow.
Also, in the context of voting rights, the case of Moore v. Harper has the potential to upend the role that state courts play in determining the validity of electoral redistricting and the adoption of voting rules. The North Carolina Supreme Court threw out a congressional electoral map that gave Republicans a lopsided advantage in a closely divided state, and later approved a map that evenly divided districts between Republicans and Democrats. The North Carolina State Republican Party is arguing that state courts have no say in the drawing of electoral districts and the approval of certain voting rules.
They are advancing a theory which has not previously been accepted by the Supreme Court called the independent state legislator theory. This theory argues that the Constitution grants state legislators, as opposed to state courts, the power to make decisions regarding redistricting and other voting rules. The Supreme Court’s decision in this case will have a significant impact regarding whether state legislators or state courts have the final say on certain electoral and voting measures in advance of the 2024 presidential and congressional elections. The date for oral argument in this case has not yet been scheduled.
Turning to the topic of LGBT rights, the case of 303 Creative LLC v. Elenis presents the issue of whether businesses which hold themselves open to the general public may refuse to provide services to LGBT or other customers based upon stated religious or other convictions. In this case, the owner of a website design firm stated that she intends to limit her wedding-related services to heterosexual marriages and that requiring her to serve gay couples would violate her free speech rights.
Many states and local jurisdictions have antidiscrimination laws which expressly prohibit discrimination in a public accommodation against LGBT individuals. Some individuals and organizations have argued that these protections violate their religious exercise and free speech rights under the Constitution. The court last considered this issue in a 2018 case called Masterpiece Cake Shop v. the Colorado Civil Rights Commission. In that case, a Colorado baker argued that providing a wedding cake to a gay couple would violate its religious exercise and free speech rights. The court decided the case on narrow grounds and failed to address the issue involving the intersection of antidiscrimination law, religious exercise rights, and free speech rights. The court may yet reach these issues in this case. The date for oral argument in this case has not yet been scheduled.
And finally, turning to the topic of immigration policy, United States v. Texas is an immigration policy case involving Biden administration policy guidance on immigration deportation. In a September 2021 memo, the Department of Homeland Security directed Immigration and Customs Enforcement officials to prioritize removing undocumented immigrants who pose a threat to national security or public safety. Quote, “It is estimated that there are more than 11 million undocumented or otherwise removable noncitizens in the United States. We do not have the resources to apprehend and seek the removal of every one of these noncitizens. Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement,” so read the memo.
Texas and Louisiana sued, arguing that the policy violated immigration law and that the administration needed to continue to deport a wider category of immigrants, just as the Trump administration had done before. A federal district court ruled in the favor of Texas and Louisiana in June and struck down the guidelines. The Biden administration then appealed the decision to the Supreme Court, which declined in June to reinstate the guidelines and instead agreed to hear oral arguments in this term. The case will be heard in the first week of December.
The implications of the balance of the court
On the first question, whether the outcome of the cases – whether one might consider the outcome to be, let’s say, a foregone conclusion given the new court majority, what I would say is historically, right, on particularly issues of significant import and a significant degree of societal interest, the court has chosen to move rather incrementally, as we saw with the court in this past term. Right, there are several issues, namely the Dobbs decision, right, removing the right to abortion, where the court did anything but move incrementally. And so I think that should be an indicator that this new court, right, is not necessarily – does not necessarily feel itself constrained, right, to simply move incrementally on issues of significant public import, even if that change to the law might be seen to undermine what’s considered to be the stability of the law, right, that concepts such as stare decisis, right, the idea that the court is not to overturn prior precedent absent significant – significant new reason or absent a clear conflict in the lower courts, right. On many of these issues that the court has decided to hear, there was not necessarily a conflict of view in the lower appellate courts which required the court to hear these cases, which signals, right, that there are at least four justices that want to consider many of these quite controversial issues that are of significant import.
So, while we don’t want to presume that the court will come out one way or another prior to argument, I do think we can look to the court’s last term as an indicator, right, that this historic notion of moving incrementally on sensitive issues is not necessarily something that this current court feels constrained by.
On your second question, the issue of legitimacy of the court, of course there have been several polls recently that have looked at this issue and that have said particularly following the Dobbs decision, right, that there has been a significant decrease in kind of the public’s perspective on the legitimacy of the court. I think going back to 2000, right, the court was one of the institutions that had maintained a significantly high amount of public legitimacy. I think 75 percent, right, of members of the public in one poll in 2000 saw the court as legitimate. I think now that number has dropped to below 50 percent in some of the polls that I’ve recently reviewed.
When you have a court – I think many – much of that is attributable to the Dobbs decision and other cases. I think when you have a situation where a right like abortion, which has been understood to be a right for 50 years, is overturned, you can expect that that will have an impact in terms of polling, in terms of the view of legitimacy. There also has been a debate, right, among some of the justices themselves over the summer on this question of whether the court’s decisions have impacted legitimacy. I won’t weigh in on that, but I’ll simply say that the polling does point to – does answer that question, and the answer seems to be yes.
Moore v. Harper
The independent legislator theory is – independent state legislator theory, as I stated before, is a theory that state legislators, rather than state courts, would have supremacy in resolving certain issues involving electoral and voting rights law, like redistricting or the establishment of other voting rights. The theory has been advanced in the past. I believe there – perhaps in Bush v. Gore, Justice Rehnquist may have been the only justice that referred to the theory. It was not a theory accepted by a majority of the court. And in recent cases, at least in certain opinions, at least three of the – three justices have referenced the theory.
In this particular case, several, right, state attorney generals have actually filed an amicus brief opposing the theory, right, because of concern about the significant impact that advancement of the theory would have regarding the administration of elections. As one could imagine, if you have state legislators not only writing the law, right, or creating the electoral maps, but also being the decision makers regarding whether the maps are fair, right, and comply with both state and federal law, one could imagine that the interests, right, of legislators in particular states may trump, right, the fair interpretation of the law that we expect to see from courts. And so you asked about the implications, right.
The implications could be quite expansive, right, from everything from electoral redistricting to any number of the voting rules that we all have seen were challenged in various states during the administration of COVID, right, or – and even further concerns that might arise when there is an adjudication as to whether particular challenges, right, to electoral outcomes are valid or not. So this promises to be a fairly significant or a very significant issue. And if the independent state legislative theory is adopted not only in this case but in other contexts, it promises to have a significant impact on how elections are carried out and reviewed in the United States.
Debates or questions around the court’s credibility
The question of the court’s legitimacy, depending upon who you ask, right – there may be different perspectives on whether recent decisions have undermined the court’s legitimacy. What I look to in answering that question is the broader perspective among the American public, right. And so, we can – as I mentioned, we can see from recent polling that immediately following the leak of that decision, and certainly after the issuance of that decision, perspective on the court’s legitimacy as an institution in polling did drop in the United States.
Whether that trend will continue in this term or whether that was a momentary change in reaction to that specific case remains to be seen. I certainly think that circumstances such as the Dobbs decision, again, where you have a court revoking a closely held right of 50 years, is an aberration, right, in the court’s history. And so, we should not be surprised to see a significant reaction in terms of the public polling.
I think what you referred to as court packing, some have referred to as court reform. There are several different proposals out there that would constitute court reform. One of them is to increase the number of justices on the Supreme Court, largely in reaction to the shift, right, in the court based upon – the ideological shift of the court based upon recent appointments. There have also been court reform proposals that would include – instead of allowing justices to serve for life, they would include a term limit, right, on the length of time that justices would serve.
From what I have seen, at least in the kind of academic and policy community, there seems to be a general agreement across ideological lines, right, that a specific – giving justices a specific term – I think one proposal has been 18 years – would provide for a certain amount of stability in terms of knowing over time how many – how much turnover would occur in a particular presidential term. So there has been some coalescing around that idea as a good one. Of course, the Biden administration did pull together a panel to study this issue of court reform, but it does not appear that there are any proposals that the Biden administration is currently putting forward regarding court reform.
My final thoughts are simply that this court term promises to be a significant one. We’ll be watching closely as the court reaches decisions on these issues of significant import to the American public.