Signals from the Supreme Court on Its High-Stakes Cases
With the calendar year coming to a close, it’s worth taking stock of how the current Supreme Court term is shaping up. A handful of key cases in which the Court has already heard oral argument this term reveal four themes that will continue to pop up as its conservative majority agrees to hear cases:
(1) Is there a protected constitutional right to illegally discriminate?
(2) Can politicians dictate election outcomes over the will of the voters?
(3) How much power should states have over the federal government?
(4) How much additional Supreme Court precedent will go out the window?
To even state these themes is to underscore the radical nature of what this Court could do to the Constitution on many fronts—which is why it’s especially important to lay out in some detail what could be in store.
The Court heard oral argument in this case two weeks ago. The central question: What happens when freedom of speech and freedom from unlawful discrimination collide?
303 Creative is a follow-up to Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 case about a baker who refused to provide services for same-sex couples for religious reasons. The Court ruled for the baker but on narrow factual grounds. It didn’t address the issue of whether the Constitution protects the right to discriminate—not just the right not to be discriminated against.
This round, the case involves a graphic artist, Lorie Smith, who is the founder of 303 Creative. Although she’s willing to have LGBTQ+ clients, she plans to begin designing wedding websites but does not want to create those for same-sex couples, saying it’s against her Christian beliefs.
Colorado has an Anti-Discrimination Act, which makes it illegal to refuse services to someone on the basis of “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
Smith sued Colorado in 2016, arguing that being required to serve LGBTQ+ couples seeking wedding websites would violate her First Amendment rights by forcing her to speak—what lawyers call “compelled speech.” She also claimed it violated her right to freely exercise her religion.
The Supreme Court took up only the speech claim (which is itself a bit odd, as the religion issue could have allowed the Court to resolve the case on potentially narrower grounds). The lower federal courts, including the U.S. Court of Appeals for the Tenth Circuit, sided with Colorado, holding that protecting diverse viewpoints is a government interest sufficient to uphold the state’s anti-discrimination law, even if it conflicted with Smith’s religious beliefs and “speech.”
An important question embedded in the case is whether the Colorado law must satisfy a “strict scrutiny” test under the Constitution, which would require Colorado to show a compelling state interest that is narrowly tailored to the loftiest of public goals. The fact that this is arguably about the content of Smith’s speech and her point of view makes it especially tricky for Colorado, suggesting a win for Smith. The Court rarely upholds government restrictions on rights under the strict scrutiny test.
The effect of such a ruling could be profound. The Court’s conservative majority could be poised to create new constitutional law that enables business owners to affirmatively discriminate against customers on First Amendment grounds. Could we see the return of widespread discriminatory signage? Could the discrimination deemed permissible extend into traits beyond sexuality, such as race or the other characteristics listed in Colorado’s anti-discrimination law?
This pair of affirmative action cases was argued before the Court on Halloween. The core question raised is whether race can be considered at all in school admissions programs—or whether it’s unlawfully discriminatory against other races for schools to do so. A win for the plaintiffs would reverse 44 years of Supreme Court precedent.
The plaintiffs in the Harvard case filed suit on behalf of Asian-American students who claim that the schools engaged in an illegal balancing of race in admissions, penalizing Asian-American applicants. (The UNC plaintiffs are, more broadly, “a racially diverse group of underrepresented students of color.”) The schools argue that race is only one factor of many they consider in furtherance of their goal of having an ethnically diverse student body, and that race-neutral options are not workable in achieving that goal.
One difference between the two cases is that because UNC is a governmental entity, the claim against it is under the Equal Protection Clause of the Fourteenth Amendment, while Harvard, a private entity, is being sued under the Civil Rights Act.
The Court’s precedent favors Harvard and UNC. In its 1978 Bakke ruling it upheld diversity as a proper justification for considering race in admissions, and in 2003 and 2016 it affirmed that race can be used in a holistic admissions program. The plaintiffs in this year’s cases argue that any consideration of race in admissions is illegal, even going so far as to argue that it violates the landmark decision in Brown v. Board of Education that desegregated schools and struck down the “separate but equal” gloss on the Equal Protection Clause. They want the Court to overrule its prior precedent.
After the Dobbs ruling overturning Roe v. Wade last term, it’s clear that the Court’s majority is not shy about overturning precedent, however entrenched it may be, and this ruling might be yet another example of that.
The case has implications beyond higher education: Race-conscious practices in K-12 schools, including for magnet programs, would also likely be affected, and many filed briefs in support of Harvard and UNC. Although there are a number of differences between the claims and the factual circumstances underlying the admissions programs at Harvard and UNC, if the plaintiffs are successful in their ultimate goal of obliterating race as a lawful criterion in school admissions, the cases could lead to the Court in future cases to prohibit governmental and private actors from considering race in other circumstances, effectively halting remedial measures intended to provide a more level playing field to people who have been systematically excluded from opportunities for upward mobility on the basis of race.
The justices could also mark another step back from civil rights gains writ large—while swiping at the vitality of both the Constitution and the U.S. Congress. After all, Title VI of the Civil Rights Act of 1964 was passed to prevent equal protection violations on the basis of race, national origin, and sex in public schools and educational institutions that receive federal dollars. But for this Court, the matter is not yet settled.
This case and the next one pose the question whether voters control election outcomes or politicians do. It’s another one that doesn’t bode well for regular people.
At issue in Merrill, which was argued on October 4, is whether Alabama’s newly redrawn congressional map illegally discriminates against black voters under the Voting Rights Act (VRA). A three-judge lower-court panel (including two Trump appointees) agreed with the plaintiffs, deeming the Alabama map illegal and mandating the creation of a new one. If the Supreme Court sides with Alabama, it would mean another reversal of established precedent interpreting section 2 of the VRA (in a 1986 case called Thornburg v. Gingles). Even worse, it would be another serious gut-punch to Congress’s ability to pass laws remedying systemic discrimination, this time in voting.
It doesn’t help that the Court intervened in February in an order issued on an emergency basis—in a so-called “shadow docket” decision that did not involve full briefing, oral argument, or explanation, because it was ostensibly procedural—to reinstate Alabama’s newly gerrymandered map for the 2022 midterm election cycle, fully acknowledging that it might be sending the voters to the polls under a discriminatory plan. Justices Roberts, Kagan, Breyer, and Sotomayor dissented.
Election law experts—as well as Kagan at oral argument—believe this should be a “slam dunk” under section 2 of the VRA, which prohibits “a denial or abridgement of the right of any citizen of the United States to vote on account of race.” Alabama drew only one district out of seven in which black voters are able to elect their candidates of choice. The law recognizes the benefits of voters of similar backgrounds being able to vote in a bloc. The state legislature could have easily drawn two minority-majority districts, especially given that 27 percent of the state population is black. The Republican legislature split Alabama’s so-called “Black Belt” among multiple districts and then stuck the remaining black voters into one (these gerrymandering practices are known, respectively, as “cracking” and “packing”). The plaintiffs argue that this was unlawful racial vote dilution. Black voters are already underrepresented in Alabama’s congressional delegation and the state has a long and ugly history of racial discrimination in voting laws.
The state, again, is making a frontal attack on longstanding precedent governing these kinds of cases. It wants a race-blind redistricting process using computer simulations that ignore race, which would produce zero to one black districts, even though the Court’s prior cases allow for race-conscious line-drawing.
During oral argument, Justice Ketanji Brown Jackson sharply questioned the lawyer for Alabama for suggesting that the map sought by the plaintiffs was racially discriminatory. She argued that the purpose of the Fourteenth Amendment was to encourage race consciousness in remedying systemic racism following the abolition of slavery. (Who says only conservatives can make “originalist” arguments?)
But Chief Justice Roberts has long been hostile to voting rights, having authored the stunning decision in 2013’s Shelby County v. Holder, which knocked out of commission a central part of the VRA despite its extraordinary success in remedying longstanding discrimination in voting practices among bad-actor states. In a 2021 case called Brnovich v. DNC, he also joined Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett in watering down section 2 in a different context, essentially inserting a five-factor test that makes it harder for voters to win cases—even though no such test exists in the VRA itself.
Overall, however, the oral argument did not seem favorable to Alabama. Given how the legitimacy of the Court is in question these days, the justices might see fit to hold off on further encroachments into the VRA and the congressional power it reflects—at least for now.
Moore, which was argued earlier this month, is the “independent state legislature theory” case. It is another challenge to a Republican state legislature’s gerrymandered congressional map, this time in North Carolina. Of North Carolina’s fourteen seats, the map awarded Democrats only four even though the popular vote in the state is evenly divided. According to a statistical analysis accepted by a lower court, the map is more favorable to the GOP than 99.9999 percent of all possible alternatives.
The implications of Moore are even graver than those in Milligan. The legislators are arguing that under the U.S. Constitution, only state legislatures or Congress can decide the rules governing federal elections—state courts and state constitutions are meaningless. This independent state legislature theory was repeatedly raised with no success by Trump and his supporters seeking to overturn the election in 2020. But what was unthinkable then—a ruling that takes elections away from voters by mandating as a matter of constitutional law that state legislatures have unfettered power to ultimately decide them—is very real now.
The Court already barred the federal courthouse door to claims of illegal political gerrymandering in a 2019 case called Rucho v. Common Cause, so the plaintiffs here went to state court—and won. The North Carolina Supreme Court ruled that “the 2021 congressional map constitutes partisan gerrymandering that, on the basis of partisan affiliation, violates plaintiffs’ fundamental right to substantially equal voting power” under the North Carolina Constitution.
If the independent state legislature theory nonetheless carries the day, it would mean that a state legislature could violate the very state constitution that created it. Voters would, once again, be the losers at the Supreme Court—despite multiple laws designed to protect them.
At oral argument, Justices Roberts, Kavanaugh, and Barrett seemed unpersuaded by the most radical version of the independent state legislature theory—one that could give state legislatures carte blanche to manipulate federal elections. Still, it’s notable that the Court gave the theory serious airtime, so the outcome is impossible to predict.
This case, argued before the Court on November 9, was brought by Texas and others who argue that a four-decade-old federal statute, the Indian Child Welfare Act, is unconstitutional. Congress passed the law in 1978 in an attempt to address the decades-long forced federal removal of Native American children from their families. It prioritizes placement of American Indian children with other family members, members of the parents’ tribal nation, or another Indian family. The case involves the Brackeen family, which fostered and ultimately adopted a child with a Navajo mother and Cherokee father, and wants to adopt his younger sister.
Once again, the argument is that the law racially discriminates against them in violation of the Equal Protection Clause—because they are white.
For two hundred years, the Supreme Court has determined that classifications based on tribal affiliation are political—not racial—in deference to Congress’s unique obligation toward the Indians under the Commerce Clause, among other laws. That precedent is at risk of winding up in the wastebin. Texas argues that Congress violated the Tenth Amendment’s respect for states’ rights by “forcing” state courts “to effectively amend” or “rewrite the substantive standards” in state child welfare cases. So if the plaintiffs win, the ruling would also mean that a state—here, Texas—can go to court to override the federal government regarding a statutory program designed to respect tribal sovereignty.
And it’s not hard to imagine the tsunami of cases that would follow if the Court greenlights state lawsuits against federal policies that impact the states. Yowza.
Brackeen is not alone in positioning the Court this term to deflate the constitutional power of the federal government in favor of the states—this time, the U.S. president and the Congress.
In September 2021, the Biden administration issued guidelines through the Department of Homeland Security that set priorities for deciding which immigrants should be arrested and deported on grounds of “national security, public safety, and border security.” They also gave Immigration and Customs Enforcement agents broad case-by-case discretion to decide whether to make individual arrests. This is the exercise of core law enforcement authority. Article II of the Constitution gives the president the authority to execute the laws passed by Congress, which handed the executive branch broad enforcement discretion under the Immigration and Nationality Act.
Texas and Louisiana filed suit to block the guidelines, which they say allow criminals to roam free within their borders, forcing the states to foot the bill in law-enforcement and other social-services costs. In June, the Court (in another shadow docket ruling) granted an emergency motion blocking the guidelines.
If the states win this one, they’ll basically have the power to usurp presidential discretion on immigration policy by going into court and seeking injunctions upsetting how the executive branch operates. It would also be a huge blow to the president’s power to enforce federal immigration law. The states’ position ignores language in the statute that gives the president this discretion, so it’s another delicate power dance—if the Court intervenes, it would be making itself the boss of the president and Congress when it comes to the president’s core prerogative—one that in 2017 prompted several of the same justices to uphold Donald Trump’s controversial immigrant travel ban even if unconstitutionally discriminatory, on the rationale that the law “exudes deference to the President in every clause.”
Alas, the conservative justices on this Court have already shown their hand. They don’t care about precedent, let alone intellectual integrity. As a result, Americans may be in for a rude awakening.
Indeed, perhaps it’s time to retire the label “conservative” when referring to the majority of this Court. Each term gives further evidence of its decidedly unconstrained unconservatism. And the future of our precious Constitution is in their hands.