The conservative supermajority of the U.S. Supreme Court is set to hear arguments on some of the most contentious issues in America this term. These issues include the potential end of affirmative action and whether refusing to serve same-sex wedding clients amounts to illegal discrimination or freedom of speech. The high Court also will address a legal theory that could give state lawmakers virtually unfettered authority to rewrite election law, reexamine the Voting Right Act’s ban on discriminatory voting rules, and consider the constitutionality of the Indian Welfare Act.
Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina et al.
Although considering race in the college admission process has been legal for almost 50 years, Students for Fair Admissions Inc.’s (SFFA) challenges to the admissions processes at Harvard and the University of North Carolina (UNC) could soon sound the death knell for affirmative action. The willingness of the six conservative members of the Court to overturn long-standing precedent became starkly evident in Dobbs v. Jackson Women’s Health, last term’s controversial decision that overturned Roe v. Wade.
SFFA alleges that the admission policies at both universities violate Title VI of the Civil Rights Act and, in the case of UNC, a public university, the Equal Protection Clause of the U.S. Constitution. As a remedy, SFFA is asking the Court to completely overrule Grutter v. Bollinger, a landmark 2003 affirmative action case, and remove the consideration of race in college admissions altogether. They argue that using race as a factor in admissions discriminates against Asian Americans, who receive no such preferences, even though they routinely fall below their white competitors when ranked according to criteria such as “fitness” and “leadership.”
In contrast, Harvard and UNC are urging the Court to uphold the narrow use of race in college admissions to ensure a diverse student body, as they believe race-neutral means alone cannot achieve that goal. Moreover, they argue that their limited use of race does not discriminate against Asian Americans. Instead, race is only one factor of many that the schools consider in admissions.
303 Creative LLC v. Elenis
Although the Court ruled in favor of the baker in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission in 2018 on purely factual grounds, it left lingering First Amendment questions. The Court now will determine whether a business owner with a “no-same-sex-wedding cake policy” based on religious beliefs constitutes freedom of speech or illegal discrimination. Petitioner Lorie Smith, a website designer, argues that Colorado’s anti-discrimination law would subject her to legal liability based on her Christian belief that marriage should be between one man and one woman.
Smith claims that the free speech clause of the First Amendment protects her right to refuse to express messages with which she disagrees. This argument failed at the district court level and on appeal to the U.S. Court of Appeals for the Tenth Circuit. The state of Colorado contends that it is not trying to regulate Smith’s speech. Instead, it argues that it is trying to regulate Smith’s conduct of denying same-sex couples services that are otherwise available to the public.
Moore et al. v. Harper et al.
In this case, there is a legal dispute over North Carolina’s congressional maps and the state legislature’s authority to reconfigure those maps. The Court will be reviewing the decision of the North Carolina Supreme Court that forced the state general assembly to redraw electoral maps for congressional elections after a finding that the proposed districts constituted partisan gerrymandering that gave Republicans an unfair advantage.
A group of North Carolina legislators is asking the Court whether state supreme courts have the legal authority to review electoral maps drawn by state legislatures using state constitutions. The legislators are arguing the controversial “independent state legislature theory,” which states that a state high court cannot review electoral maps under the U.S. Constitution. Instead, under this theory, the state legislature has the exclusive authority under Article I, Section 4, of the U.S. Constitution to determine the “times, places, and manner” of federal elections.
The independent state legislature theory first surfaced in a 2000 dissent authored by former Chief Justice William Rehnquist in Bush v. Gore. The theory reemerged in 2020 when Republicans made a similar argument in a Pennsylvania election case, which the Court rejected. Republican appointees to the Court have expressed interest in the theory, which may be a harbinger of the decision to come in this case.
Merrill v. Milligan and Merrill v. Caster
In these cases, the Court will reexamine the ban on discriminatory voting rules in Section 2 of the 1965 Voting Rights Act. Alabama election offices are challenging a court ruling that would require them to create a second majority-Black district in the state’s seven congressional districts. According to the lower court, the state’s new redistricting plan impermissibly packed Black voters into a single voting district. It then spread the remaining Black voters among the other six districts to dilute their voting power, even though Black voters make up 27% of Alabama’s population.
State election officials argue that they cannot use solely race-neutral principles to draw a second majority-Black district. They claim that this unilateral focus on race was what the 14th and 15th Amendments, i.e., equal protection for all and voting rights for all, were meant to prevent.
Voting rights advocates fear that a ruling in favor of the state would result in courts having no power to remedy any violations of Section 2 of the Voting Rights Act. Under such a ruling, states could enact voting plans that dilute minority votes as long as they have a race-neutral justification. Given the recent decisions of the Court that have chipped away at the scope of the Voting Rights Act, they may be correct.
Deb Haaland, Secretary of the Interior et al. v. Chad Everet Brackeen et al., Cherokee Nation et al. v. Brackeen et al., Texas et al. v. Haaland et al., and Brackeen et al. v. Haaland et al.
The state of Texas and a group of non-Native American families seeking to adopt Native children have challenged the Indian Child Welfare Act of 1978 (ICWA) as violative of the equal protection clause of the 14th Amendment. The case involves additional legal issues, such as whether the ICWA violates the 10th Amendment by unconstitutionally requiring states to implement the law’s child custody framework.
Congress passed the ICWA to protect the best interests of Native children. The law gives Native tribes jurisdiction over custody proceedings involving Native members and establishes preferences for keeping Native children with their extended family, other tribe members, or other Native families.
Texas and the potential adoptive families argue that the ICWA amounts to unconstitutional racial discrimination in that it disadvantages vulnerable children and makes it more difficult for them to find permanent homes. Native tribes and the federal government are defending the law, claiming that courts still routinely ignore the ICWA in removing Native children, which makes the law still necessary. They note that Native children remain four times as likely as non-Native children to be placed in foster care during their first encounter with the court system.
