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Coming This Term from the Supreme Court: More Disruption

As they have in recent terms, the court’s conservative majority may set aside precedents and create major change in areas such as affirmative action and voting rights.

The front of the U.S. Supreme Court Building.
(Rob Crandall/Shutterstock)
Confident of the current direction of the Supreme Court, conservative groups are pursuing cases that may continue to reshape the direction of the country. The court’s docket for the term that begins on Monday includes cases that could lead to major changes in areas such as affirmative action, voting rights, LGBTQ rights, immigration and power relations between states.

“We believe this term could be as consequential as the last term,” says Skye Perryman, president of Democracy Forward, a progressive legal services nonprofit.

Here are some of the major cases to watch, in the order in which oral arguments are scheduled:

Voting Rights


On Tuesday, the court will consider a challenge to Alabama’s congressional redistricting map. The Legislature created only one majority-Black House district, out of seven, despite African Americans making up more than a quarter of the state’s population. In January, a federal court found that the map violated the Voting Rights Act by giving Black voters less opportunity than other Alabamians to elect candidates of their choice. The Supreme Court, however, allowed the map to be used for this year’s elections and agreed to hear the case.

Alabama argues that creating a second Black-majority district would require taking race into account as a predominant factor. When and how race must be considered, or avoided, in redistricting is a tricky, complicated business. Critics of the map worry that the court will take the opportunity to reduce protections for minority voters, perhaps gutting Section 2 of the Voting Rights Act, much as it gutted Section 5 in a voting rights case a decade ago. (The current case is Merrill v. Milligan.)

Interstate Commerce


In 2018, California voters approved a ballot measure to ban the sale of pork products unless derived from breeding pigs held in pens of at least 24 square feet, concluding that smaller pens are cruel and unhygienic. Although California provides a major market for pork, it produces almost none. But California Attorney General Rob Bonta says the state can regulate products sold within its borders.

Pork producers contend that the law is impractical — practically no sow farmers use such large enclosures — and that California has no right to dictate husbandry practices in other states. “Allowing states to leverage their market power to reach beyond their borders and control activity that is properly the subject of direct regulation by other states undermines the basic principles of federalism on which this nation was founded,” the conservative Pacific Legal Foundation argued in an amicus brief. (The case, National Pork Producers Council v. Ross, will be heard on Oct. 11.)

Affirmative Action


On Halloween, the court will hear a pair of cases challenging university affirmative action policies. Both challenges were brought by a group called Students for Fair Admissions, a conservative advocacy group — one concerning admission policies at Harvard and the other involving the University of North Carolina.

Students for Fair Admissions argues that Harvard fails to admit Asian students at equivalent rates as qualified students of other backgrounds in violation of the Civil Rights Act. In past affirmative action cases, the Supreme Court has upheld the use of race as a consideration in admissions — including a 2016 case involving Abigail Fisher, who later co-founded Students for Fair Admissions. Justice Ketanji Brown Jackson is recusing herself as a former member of Harvard’s Board of Overseers.

The North Carolina case turns on the question of whether the university discriminates against white and Asian applicants by offering “racial preferences” to Black, Hispanic and American Indian students who have been underrepresented. (The cases are Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina.)

Indian Sovereignty


Back in 1978, Congress passed the Indian Child Welfare Act, intending to curb the prevalent practice at the time of placing American Indian children with non-Native families. The law calls for their placement “in homes which will reflect the unique values of Indian culture.”

Indiana, Louisiana and Texas and various white families have sued, arguing that the law violates the Constitution by discriminating on the basis of race, as well as the 10th Amendment by imposing duties on states. A panel of the Fifth Circuit Court of Appeals found that the distinction drawn by the law was political, not racial, with the law’s definition of “Indian child” “rationally linked to the trust relationship between the tribes and the federal government, as well as to furthering tribal sovereignty and self-government.”

If the Supreme Court finds that the law is rooted in race rather than political classifications, that would have implications not only for child welfare but other laws regarding tribal autonomy. (The case, which consolidates four cases, is Haaland v. Brackeen and will be heard on Nov. 9.)

Election Law


The court will hear another major redistricting case, concerning partisan gerrymandering in North Carolina. In 2019, justices decided that partisan gerrymanders are a political question outside the reach of federal courts, but explicitly stated state courts could consider the question. Their position may change soon.

The plain language of the Constitution, as North Carolina legislators point out, says that setting rules for federal elections is the province of the “Legislature.” Decades of precedent — as well as a case decided as recently as 2015 — point to the court’s understanding that the pertinent clauses refer to a state’s entire lawmaking process, not just its legislative body. But a novel theory known as the “independent state legislature” theory holds that legislatures alone have power over elections and can’t be second-guessed by state courts.

Putting legislatures solely in charge of federal elections has the potential to take not only courts but voters and election administrators out of the process, with election rulemaking and laws passed through ballot initiatives suddenly subject to legal challenge. The resulting change could be monumental. Four sitting justices have expressed support for the independent state legislatures theory in various contexts. (The case is Moore v. Harper; the date for oral arguments is not yet set.)

Gay Rights


In 2018, the Supreme Court ruled in favor of a Colorado baker who refused to make a wedding cake for a same-sex couple. That decision turned on the narrow question of whether the state’s civil rights commission had been hostile toward the baker based on his religious beliefs. The court may use a new case to address anti-discrimination laws more broadly.

Colorado bars businesses from discriminating on the basis of sexual orientation, or announcing their intention to do so. Graphic designer Lori Smith wants to design wedding websites, but not for same-sex couples. The court, which mostly has been favorable in recent years to plaintiffs seeking religious exemptions, could do the same here, perhaps finding, as Smith claims, that Colorado’s anti-discrimination law contradicts her First Amendment right to religious expression. (The date for oral arguments in the case, 303 Creative LLC v. Elenis, has not yet been set.)

Immigration


Republican attorneys general have sued the Biden administration over immigration policy several times. The court will hear a case to determine whether states have standing to sue over immigration enforcement guidelines issued by the Department of Homeland Security (DHS).

Last year, DHS issued a memo telling Immigration and Customs Enforcement officials to concentrate on arresting and removing undocumented immigrants who threaten national security or public safety. DHS said “we do not have the resources to apprehend and seek the removal” of 11 million undocumented or otherwise removable residents. Texas and Louisiana sued, saying the policy violated immigration and administrative procedure laws. A federal district judge agreed in June and struck down the policy. (The Sixth Circuit Court of Appeals ruled in July for the administration in a similar case brought by Arizona, Montana and Ohio.)

The guidelines remain out of commission, pending Supreme Court action. (No date has yet been set for United States v. Texas.)
Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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