Months after reshaping wide swaths of American life with a series of landmark rulings, the U.S. Supreme Court is poised to issue more major decisions in its upcoming term on affirmative action, voting access, LGBTQ rights, immigration, and more.
The high court will begin its term on Oct. 3 facing dismal public faith in the institution. A June 23 Gallup poll found that only 25% of the American public has confidence in the Supreme Court—and that was before it overturned constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. In August, after the abortion decision, Pew Research Center documented the widest partisan gap in views of the Supreme Court ever recorded in 35 years of polling. The court also faces internal strife and pressure: a draft opinion previewing the seismic Dobbs decision leaked in May and launched an investigation by the Marshal of the Court, with Chief Justice John Roberts declaring the leak a “betrayal.” And it confronts increasing calls for Justice Clarence Thomas to recuse himself from election-related matters, amid reports that that his wife Ginni Thomas pushed GOP lawmakers to overturn President Joe Biden’s win.
The bench will also include a new face this term: Justice Ketanji Brown Jackson, the first Black woman to ever sit on the court. Jackson is expected to fall into the court’s liberal minority. When looking for swing votes, most eyes will be on Chief Justice Roberts, who was the lone justice in the court’s 6-3 conservative majority who did not vote to overturn Roe v. Wade at the end of last term.
This term, the court will consider cases that deal with longstanding precedent and others that relate to contentious issues in the nation. Multiple cases, including on affirmative action and voting rights, deal with the extent to which race and ethnicity can be considered in American law and society. The fact that the court agreed to hear such cases “shows the court is not likely to act modestly, or at least is not inclined to act modestly,” said David Cole, the national legal director of the American Civil Liberties Union, at a Sept. 22 press conference.
Here are the major cases to watch this fall in the upcoming Supreme Court term.
The high court will hear two cases this term that could determine the constitutionality of race-conscious admissions policies—and the decision could fundamentally reshape higher education across America.
The high court will hear both cases on Oct. 31. The group Students for Fair Admissions, which says its mission is to help “restore colorblind principles to our nation’s schools, colleges and universities,” has brought both lawsuits, asking the court to preclude any consideration of race as a factor in admissions.
The first case, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, alleges that Harvard’s race-conscious admissions policy discriminates against Asian American applicants, arguing that Asian Americans are significantly less likely to be admitted than similarly qualified Hispanic, Black, or white students. The plaintiffs argue Harvard’s policy violates Title VI of the federal Civil Rights Act, which bans racial discrimination in institutions that receive federal funding. Harvard responds that it does not discriminate against Asian American applicants, argues that the plaintiffs are citing misleading statistics, and contends that race-conscious admission policies are legal. Both the district court and the U.S. Court of Appeals for the 1st Circuit upheld Harvard’s admissions policy. (Jackson will recuse herself from the case, as she served on Harvard’s Board of Overseers.)
The second case, Students for Fair Admissions v. University of North Carolina, argues that UNC’s consideration of race in admissions not only violates Title VI, but also violates the Equal Protection Clause of the 14th Amendment, which extends to public universities. The plaintiffs argue UNC discriminates against white and Asian applicants by awarding “racial preferences” to Black, Hispanic, and Native American students because they are classified by the school as underrepresented minorities. UNC responds that its policies are lawful and are intended to build a diverse, holistic student body.
If the Supreme Court strikes down the admissions policies at Harvard or UNC, it would overturn decades of precedent. In 1978, the Supreme Court ruled in Regents of the University of California v. Bakke that it is legal under the Equal Protection Clause of the 14th Amendment for schools to consider race as a factor in their admissions policies, because fostering classroom diversity is a compelling state interest. That decision has been repeatedly upheld, most recently in 2016’s Fisher v. University of Texas at Austin, in which Abigail Fisher, a white woman who was rejected by the University of Texas, challenged the school’s consideration of race in its undergraduate admissions system. The Supreme Court ruled that the University of Texas’ policy could stand. (Fisher founded Students for Fair Admissions, which brought both affirmative action cases this term, along with her father and conservative legal strategist Edward Blum.)
The court will consider two cases that could impact how congressional maps are drawn going forward.
On Oct. 4, the court will hear Merrill v. Milligan, which centers on the congressional redistricting map drawn by GOP Alabama lawmakers after the 2020 census, which included only one majority-Black district even though Black Alabamians make up over a quarter of the state. Black voters and advocacy groups sued, arguing the map was drawn in a such a way to dilute Black political power and thus violated Section 2 of the Voting Rights Act. (Section 2 bans state or local governments from limiting voting rights on the basis of race, including “vote dilution” by either intentionally splitting communities of color up amongst several districts or lumping them all into one.) In January, a panel of judges threw out Alabama’s map, writing that “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress,” and directed the state legislature to draw a new map with a second majority-Black district.
But in February, in a 5-4 vote, the Supreme Court reinstated the map while the issue is litigated. As a result, this November, Alabamians will vote in congressional districts that a federal court ruled are likely illegal. Voting rights advocates worry the Supreme Court’s decision could gut the power of Section 2, one of the last remaining pillars of the Voting Rights Act.
Later in the term, the court will hear Moore v. Harper, which could strip state courts of the power to oversee federal elections. In February, the North Carolina Supreme Court struck down the new congressional map penned by GOP lawmakers, writing it was “egregious and intentional partisan gerrymandering” in favor of Republicans and violated the state constitution. Republican lawmakers have now brought the issue to the U.S. Supreme Court, arguing North Carolina’s supreme court doesn’t have the authority to strike down the map under the “independent state legislature” theory—the idea that only the state legislature can regulate federal elections, not state courts. If the Supreme Court agrees, it could give state legislatures much broader power over elections and allow federal elections to be conducted without oversight from state courts.
In 2018, the Supreme Court narrowly ruled in favor of a Colorado baker who refused to make a wedding cake for same-sex couples on religious grounds. But the decision largely focused on Colorado’s Civil Rights Commission’s actions and ruled that the Commission had not acted with religious neutrality. The court dodged the central question of the case: whether state anti-discrimination laws that compel a baker to bake wedding cakes for same-sex couples violate the First Amendment right to freedom of speech.
A similar question faces the Supreme Court this term, once again arising out of Colorado. Lorie Smith, a graphic designer, wants to expand her graphic design business to include creating wedding websites. But she does not want to design wedding websites for same-sex couples on religious grounds, and wants to note this on her website for prospective clients. Colorado law bans businesses that are open to the public from discriminating on the basis of sexual orientation or announcing intention to do so.
The court will once again evaluate whether applying Colorado’s anti-discrimination law to compel an artist to speak or stay silent contrary to their religious beliefs violates the First Amendment’s right to free speech. But the question is coming before a more conservative court than it did four years ago—one that has repeatedly ruled in favor of requests for religious exemptions—and the justices may not skirt the central constitutional question this time.
The high court will hear the latest in a string of lawsuits between GOP-controlled states and the Biden Administration over the executive branch’s power to shape U.S. immigration policy.
The litigation centers on the Department of Homeland Security’s (DHS) Civil Immigration Enforcement priorities, which are guidelines for officers on arrests and charges. In a September 2021 memo, DHS directed Immigration and Customs Enforcement (ICE) officials to prioritize removing undocumented immigrants who pose a threat to national security or public safety. “It is estimated that there are more than 11 million undocumented or otherwise removable noncitizens in the United States,” the memo read. “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 action.”
Texas and Louisiana sued, arguing the policy violated immigration law and the Administrative Procedure Act. A federal district court ruled in their favor in June and struck down the guidelines. The Biden Administration then appealed the decision to the Supreme Court, which declined to reinstate the guidelines in July and instead set oral arguments for the fall. If Texas and Louisiana prevail, it would be another major blow to the executive branch’s ability to set U.S. immigration policy.
Native American adoptions and tribal sovereignty
On Nov. 9, the Supreme Court will hear four consolidated cases that could not only determine the fate of Native American kids in the child welfare system, but also reshape the principles of tribal sovereignty more broadly.
The cases center on 1978’s Indian Child Welfare Act (ICWA), which set a federal standard to prioritize placing Native American children who are removed from their families with either extended family or other Native families. The law was intended to address the then-widespread practice by state child welfare and private adoption agencies to place Native children with white families, and in the words of the law “protect the best interests of Indian children” by creating a federal standard for “the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.” At the time of the law’s passage, between 25% and 35% of all Native children had been removed from their families, according to the Association on American Indian Affairs, in what Native American activists argued was an extension of centuries of U.S. policy forcibly assimilating Native children into white families to erase their culture.
ICWA has been repeatedly challenged over the decades, and this term the Supreme Court could determine its legality once and for all. Several white families who have attempted to adopt Native American children—along with the state of Texas—have asked the Supreme Court to declare the ICWA unconstitutional, arguing it violates the Constitution by discriminating on the basis of race and prevents children from being placed in the best homes. The law’s defendants, including Secretary of the Interior Deb Haaland, respond that ICWA’s prioritization of Native American families is not a race-based categorization, but instead a political classification.
If the Supreme Court adopts this logic, it could have broad implications for tribal sovereignty. Many laws encompassing tribal matters are based on tribal status, and if that status is deemed a racial classification rather than a political one, other tribal laws could theoretically be challenged for being racially discriminatory. Supporters of ICWA also argue it was enacted with the goal of preserving tribal political autonomy, and striking it down would be a major blow to those principles.
Federal water regulation
On Oct. 3, the Supreme Court will evaluate a case challenging the scope of 1972’s Clean Water Act, the primary federal law governing water pollution.
In 2012, Michael and Chantell Sackett appeared before the Supreme Court after the Environmental Protection Agency (EPA) told them they could not build a home on their property near Priest Lake, Idaho because it would violate the Clean Water Act. The issue got kicked back down to lower courts on procedural grounds.
Ten years later, and the Sacketts are back, this time asking the Supreme Court to revisit 2006’s Rapanos v. United States, which created the test that determines what counts as “navigable waters” covered by the regulation. In the 4-1-4 ruling, the justices were not able to reach a majority decision on what test should be used. Justice Anthony Kennedy wrote a concurring opinion arguing for the law to have a broader scope, while Justice Antonin Scalia authored a plurality opinion arguing for a narrower view. The Sacketts have asked the court to revisit Rapanos and determine that Scalia’s proposed narrow test is the correct one. Environmental rights activists argue that if they succeed and Scalia’s test is adopted, it could leave tens of millions of acres of wetlands unregulated.
On Oct. 11, the court will hear a challenge to the constitutionality of California’s Prop 12, which banned the sale of pork that is kept in a gestation cage.
Over 60% of Californians voted to pass the measure—called the Prevention of Cruelty to Farm Animals Act—in 2018 to establish minimum requirements for farmers to provide more space for egg-laying hens, breeding pigs, and calves raised for veal. The proposition banned businesses from selling from farms that did not meet those standards.
The National Pork Producers Council has challenged the law, arguing it illegally burdens interstate commerce by requiring out-of-state pork producers to comply with California’s rules when they sell their products in the state. The result could not have implications for similar animal-welfare laws across the country and broader regulation of interstate commerce.
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