By John Malcolm*
It will be tough—if not impossible—for the Supreme Court to top the 2021-22 term when it comes to both drama and results that pleased the conservative legal community (not to mention conservatives in general).
As I wrote elsewhere in July at the end of the term, “[t]he three words that best describe the Supreme Court’s decisions this term are text, history, and tradition. If that’s one word too many, try this: Originalism Rules! And that’s a good thing.”
But for SCOTUS fans—and who isn’t one?—there will be plenty of excitement during the term that begins on Oct. 3.
On Sept. 27, my Heritage Foundation colleague Zack Smith will host our Supreme Court preview of the 2022-23 term with former U.S. Solicitor General Paul Clement and former acting U.S. Solicitor General Jeff Wall. You can register for the event here.
Although the Supreme Court will no doubt agree to hear more cases following its “long conference” when it considers the certiorari petitions that were filed during the summer, there are already several big cases on its docket for what promises to be another blockbuster term. Here’s a brief description of a few of them.
1 and 2) Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. UNC
The court will consider whether to overturn its 2003 decision in Grutter v. Bollinger in a pair of cases that will be argued on Oct. 31. The challenger in both cases is a nonprofit group representing students and parents that sued both Harvard and the University of North Carolina, alleging that their race-conscious admissions programs primarily benefit black applicants, largely at the expense of Asian American applicants.
For example, assuming similar credentials, an Asian American with a 25% chance of admission to Harvard would see his chances rise to 35% if he were white, 75% if he were Hispanic, and 95% if he were black.
The challengers assert that the University of North Carolina, a public university, is violating the 14th Amendment’s equal protection clause. They contend that Harvard College is violating Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin by any educational program that receives money from the federal government, thereby banning race-based admissions that, if done by a public university, would violate the equal protection clause.
The cases had originally been consolidated, but the court separated them so that the newest justice, Ketanji Brown Jackson, who served on Harvard’s Board of Overseers, can participate in consideration of the North Carolina case.
In Grutter, the court held that the University of Michigan Law School’s race-conscious admissions program did not violate the 14th Amendment or Title VI, determining that such programs are permissible so long as the use of race is narrowly tailored to further a compelling government interest. The court defined that as the need to obtain the educational benefits that flow from a diverse student body.
In doing so, however, the court stated that a narrowly tailored program must be flexible and non-mechanical, and cannot be a de facto quota system. Further, the court held that school administrators must in good faith consider race-neutral alternatives to achieve that objective.
The challengers argue that Harvard and UNC have flunked those tests.
3) Moore v. Harper
The court will hear a significant election law case out of North Carolina. In it, the liberal North Carolina Supreme Court overturned the congressional map that had been adopted by the conservative North Carolina Legislature, concluding that it was the result of partisan gerrymandering.
In 2019, in Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering does not violate the U.S. Constitution, but here, the state Supreme Court held that the map adopted by the Legislature violated that North Carolina Constitution’s guarantee to its citizens of “substantially equal voting power” and “substantially equal legislative representation,” as well as their right to “free elections.”
The justices will decide whether the state court’s ruling violates the elections clause (Art. I, § 4, cl. 1), which provides that “The … Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof … .”
The issue is particularly significant because executive branch officials and state and federal judges issued opinions that altered existing election laws and procedures in various states—using the COVID-19 pandemic as an excuse—during the 2020 election, without seeking or obtaining the approval of the state legislatures in those states.
In 2020, the justices turned down a request by Pennsylvania Republicans to fast-track their challenge to a Pennsylvania Supreme Court ruling that required state election officials to extend the deadline for counting mail-in ballots. In an opinion that accompanied the court’s order, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, suggested that the state Supreme Court’s decision likely violated the Constitution.
The case has not yet been set for oral argument.
4) 303 Creative v. Elenis
Lorie Smith owns a graphic design firm in Colorado and wants to expand her business to include wedding websites. Although she is willing to create graphics or design websites for all people, regardless of their sexual orientation, Smith does not want to design websites for same-sex weddings because she believes that same-sex marriage conflicts with God’s will, and she wants to post a message on her own website to explain that.
She has challenged a Colorado law that prohibits businesses that are open to the public from discriminating against gay people or announcing their intent to do so.
This is the same Colorado law that was applied to—and was challenged by—Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, when local authorities tried to punish him for refusing to bake a custom wedding cake for a same-sex couple because it violated his sincerely held religious beliefs. Phillips argued that the law violated his rights under the free exercise clause of the First Amendment.
In that case, the Supreme Court ducked the main issue by holding that the Colorado Civil Rights Commission, which considered the matter, displayed impermissible hostility to his sincerely held religious beliefs and that he was entitled to a hearing before a neutral decision-maker.
In this new case, Smith argues she is being forced to express tacit support for same-sex marriages and prohibited from explaining why she declines to develop websites for same-sex weddings.
It’s expected that the court will finally address the merits of the underlying issue, but with a twist.
While the justices agreed to take up Smith’s claim under the free speech clause, they declined to review two other questions; namely, whether requiring Smith to create custom websites for same-sex couples violates the free exercise clause and whether the Supreme Court should overrule its 1990 decision in Employment Division v. Smith, which held that government actions usually do not violate the free exercise clause as long as they are neutral and apply to everyone.
The case has not yet been set for oral argument.
5) Merrill v. Milligan
On Oct. 4, the court will hear oral argument in a case that will decide whether the state of Alabama’s 2021 congressional redistricting plan violated Section 2 of the Voting Rights Act, which prohibits voting practices or procedures that discriminate on the basis of race.
A panel of federal judges in January ordered the state to draw a new map with two majority-black districts, concluding that the state’s original plan—which contained only one such district—likely violated Section 2. A divided Supreme Court put that order on hold, allowing the state to implement its original plan for the 2022 midterm elections, and set the case for oral argument.
6) U.S. v. Texas
This case poses a new challenge by a red state to a Biden administration immigration policy.
Last term, the Supreme Court ruled in favor of the Biden administration when it sought to terminate the “Remain in Mexico” policy that was implemented during the Trump administration.
In this case, Texas and Louisiana are challenging a new policy that prioritizes certain groups of illegal aliens for arrest and deportation.
In a September 2021 memorandum, Department of Homeland Security Secretary Alejandro Mayorkas outlined the administration’s immigration enforcement priorities. The DHS argues that while there are more than 11 million illegal aliens in the United States who are subject to deportation, the government does not have the resources to apprehend and deport all of them. The memorandum instructs immigration officials to prioritize cases involving suspected terrorists, people who commit serious crimes, and those caught at the border.
The states claim to be suffering financial harm as a result of this new policy by, for example, requiring them to keep noncitizens in state prisons for longer than they otherwise would. They argue that the policy conflicts with various statutory requirements in the Immigration and Nationality Act.
Moreover, they contend, the administration failed to comply with the Administrative Procedure Act in that it did not provide the public with notice of, and an opportunity to comment on, its new enforcement priorities, and it did not properly consider “the high rate of abscondment and recidivism among criminal aliens and aliens with final orders of removal” in reaching its conclusions.
The case has not yet been set for oral argument.
7) Sackett v. Environmental Protection Agency
Mike and Chantell Sackett are making their second trip to the high court as they pursue their long-standing dream of building a home on a vacant parcel of land they own near Priest Lake, Idaho.
In 2007, the Sacketts filled in a portion of their land with dirt and rock in preparation for the construction. A short time later, the EPA issued an order alleging that the Sacketts had violated the Clean Water Act by filling in the parcel without first obtaining a permit.
Although the lot has no surface water that is connected to any other body of water, the EPA contends the Sacketts’ lot contains wetlands that qualify as “navigable waters” under the Clean Water Act.
The EPA demanded that the Sacketts remove the fill dirt and restore the parcel to its original condition. The Sacketts filed a lawsuit, but the lower courts dismissed it, holding that until the EPA undertakes an enforcement action, the suit was premature. In 2012, however, a unanimous Supreme Court ruled in favor of the Sacketts that the EPA’s compliance order constituted a final agency action that was subject to judicial review.
In 2006, in Rapanos v. United States, the Supreme Court held that the Clean Water Act does not regulate all wetlands, but did not establish a definitive standard for determining which wetlands qualify.
A plurality opinion by then-Justice Antonin Scalia argued that only those wetlands that have a continuous connection to other, regulated waters qualify, while Justice Anthony Kennedy, in a concurring opinion, argued that a wetland could qualify for regulation so long as it bears a “significant nexus” with traditional navigable waters.
On remand, the 9th U.S. Circuit Court of Appeals ruled against the Sacketts, adopting the broader, more permissive “significant nexus” case advocated by Kennedy. On Oct. 3, the justices will hear arguments from counsel on whether the 9th Circuit used the proper test for determining whether wetlands are “waters of the United States” under the act.
8) National Pork Producers Council v. Ross
As the most populous state with the biggest economy, California has regulations that often have an outsized influence on—if not basically dictate—how businesses across the country operate. This is one such case.
On Oct. 11, the justices will take up a challenge to a California law that makes the sale of pork in California contingent on compliance with conditions that virtually no existing commercial farms meet; specifically, that the pig from which the pork derives was born to a sow who was housed in a 24-square-foot space and could turn around freely without touching any barriers.
While that may be fine—or perhaps not—with California pork farmers, it’s not fine with out-of-state farmers and other industry representatives who produce 99% of the pork that is consumed in the Golden State.
Through their trade association, those out-of-state producers went to court, alleging that this restrictive law violates the so-called dormant commerce clause, a legal doctrine inferred from the commerce clause and designed to prevent state protectionism, that prohibits state legislation that discriminates against or unduly burdens interstate commerce.
While the 9th Circuit agreed that the law would “require pervasive changes to the pork production industry nationwide,” it held that the challengers had failed to make out a claim for a violation of their constitutional rights.
One justice to watch in this case will be Thomas, who has criticized the dormant commerce clause in past opinions, including in his dissent in Camps Newfound/Owatonna v. Town of Harrison, in which he wrote that the “negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.”
9) Warhol Foundation for Visual Arts v. Goldsmith
The well-known late pop artist Andy Warhol is once said to have observed that “In the future, everyone will be world-famous for 15 minutes.” Thirty-five years after Warhol’s passing, the court will consider whether Warhol stole some of that fame from Lynn Goldsmith by infringing her copyright on a photograph that she took of rock star Prince that appeared in Vanity Fair (which paid a licensing fee to use the image).
Before he died, Warhol created a series of images of Prince from the photograph, but altered the image by cropping and coloring it. Goldsmith was unaware of that until Vanity Fair published an article using one of those images shortly after Prince’s death in 2016, which led to her lawsuit against the foundation that holds the copyright to all of Warhol’s images.
The court will decide whether the 2nd U.S. Circuit Court of Appeals, which sided with Goldsmith, is right or whether, as the foundation argues, Warhol’s alterations were sufficiently transformative to constitute a fair use.
The case will be heard on Oct. 12.
*John is vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies.
This article is part of an agreement between El American and The Heritage Foundation.