October SCOTUS 2022-23 Preview

Source: LawNow Magazine

The October 2021 Supreme Court term was one of the most notable in recent history. Among several landmark decisions, the Court overturned the constitutional right to an abortion in Dobbs v. Jackson, expanded gun rights in NYSRPA v. Bruen, and increased the breadth of the First Amendment's Establishment Clause in Kennedy v. Bremerton School District.

The Court will return to the bench for oral arguments on the first Monday in October. During the October 2022 term, the Court will hear several significant cases that could transform American law and society.

October Session 

Merrill v. Milligan

The first significant case that the Court will be hearing is Merrill v. Milligan. The case arises from Alabama's 2021 redistricting process. An en banc District Court panel ruled that the state's map violated Section 2 of the Voting Rights Act (VRA), which prohibits racially discriminatory voting practices or procedures. The District Court found that Alabama's congressional map was illegal as the state's African American population was large enough for two majority-minority seats.

Alabama appealed the decision to the Supreme Court's shadow docket in February 2022. The Court found that the decision by the District Court for Alabama to add a second majority-minority was made too close to the election and, therefore, in violation of the Purcell principle. The Purcell principle comes from the 2006 case Purcell v. Gonzalez and states that courts should not enjoin election laws close to the date of an election. However, the Supreme Court agreed to place Merrill on their docket in the October 2022 term to decide whether Alabama's map violates the VRA.

Majority-minority districts are not mentioned in Section 2 of the VRA. Instead, this requirement comes from the 1986 Supreme Court case Thornburg v. Gingles. Merrill will provide an opportunity for the conservative-leaning Roberts Court to overturn Gingles. Alabama has argued that minority-majority districts under Section 2 of the VRA are "racial gerrymanders" and violate the Constitution's 14th and 15th Amendments.  

Many legal experts believe that the Supreme Court may declare all of Section 2 of the VRA unconstitutional or render it toothless. Such a decision would align with the Roberts Court’s recent precedent: In 2010, the Court declared Section 4 of the VRA, which required states with historically high levels of voter discrimination to recieve federal preclearance before changing voting laws, unconstitutional in Shelby County v. Holder (The Atlantic).

Sackett v. EPA

Last term, in West Virginia v. EPA, the Supreme Court used the major questions doctrine to reduce the power of the Environmental Protection Agency, gutting its authority to regulate emissions. Much of the power was later restored to the EPA in the Inflation Reduction Act. This year, the Court has another opportunity to curtail the power of the EPA in the case of Sackett v. Environmental Protection Agency, which will be heard in the first week of October.

The Court will interpret the Clean Water Act concerning its term "water of the United States." Despite the statute prohibiting pollutants from being discharged into the "water of the United States," that phrase is not explicitly defined. The plaintiffs own land in Idaho, where they began constructing a family home in 2006. However, the EPA sent them a compliance order arguing that the home's construction violated the Clean Water Act because the land contained wetlands.

In the 2006 case Rapanos v. United States, the question of whether wetlands qualify as "water of the United States” went before the Court. Writing for a four justice plurality, Justice Antonin Scalia wrote that the Clean Water Act only covers wetlands if they have a "continuous surface connection" with a "relatively permanent body of water" that makes it "difficult to determine where the 'water' ends, and the 'wetland' begins." Justice Anthony Kennedy proposed a different test of whether wetlands were covered under the Clean Water Act, writing that they are covered if they "significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'"

Despite the Ninth Circuit using Justice Kennedy's test and siding with the EPA, the Supreme Court seems likely to side against the EPA and adopt Scalia's test. Kennedy is no longer a member of the Supreme Court, an institution that has only gotten more conservative since his retirement (Vox).

Students for Fair Admissions v. University of NC; Students for Fair Admissions, Inc. v. President and Fellows of Harvard College 

Oral arguments in Students for Fair Admissions are scheduled for Halloween. Two related cases were brought to the Court by Asian American applicants to Harvard University and the University of North Carolina (UNC). They argue that affirmative action used in the college admissions process is discriminatory and illegal. The University of Michigan and the University of California school systems are both banned from using affirmative action in the admission process due to ballot initiatives. Both schools have filed amicus briefs with the Court stating that without affirmative action, they have been unable to build a class of students that is racially diverse enough. Although Wesleyan has not been involved in the litigation, University President Michael Roth has argued in favor of affirmative action. In a 2017 article, he stated that creating “...a diverse campus is in the interest of all students, and it offers those from racial minorities opportunities that have historically been denied them” (InsideHigherEd).

Under the 2003 precedent in Grutter v. Bollinger, the Court held that schools could consider a limited account of race during the admissions process. However, the plaintiffs in Students for Fair Admissions argue that Grutter should be overturned as affirmative action violates Article VI of the Civil Rights Act of 1964. The plaintiffs also argue that UNC, being a public university, violates the 14th Amendment's equal protection clause. Harvard being a private university is not subject to the Constitution’s 14th Amendment, but as they receive federal funds, they are also mandated to follow the Civil Rights Act. 

Previously, the two cases were consolidated, but the Court split them following the arrival of Justice Ketanji Brown Jackson. Jackson served on the Harvard Board of Overseers and therefore has recused herself from the case involving Harvard. By decoupling the cases, it removes the chances of a potential 4-4 split in the UNC case.

The Supreme Court ruled that affirmative action was permissible in the 1978 case, Regents of the University of California v. Bakke and has since upheld Bakke on multiple occasions. However, the Court did so because of the votes of moderate Republican-appointees, Justices Sandra Day O’Connor and Anthony Kennedy. Both Justices are now retired and have been replaced by the more conservative Justices Samuel Alito and Brett Kavanaugh. The composition of the current Supreme Court makes it likely that affirmative action is struck down in June  (SCOTUSBlog).

References

Benen, Steve. “Conservative Justices Rescue Alabama's Racially Discriminatory Map.” MSNBC. NBCUniversal News Group, February 8, 2022. https://www.msnbc.com/rachel-maddow-show/maddowblog/conservative-justices-rescue-alabamas-racially-discriminatory-map-rcna15316. 

Millhiser, Ian. “The Supreme Court's New Term Could Be Even More Consequential than Its Last One.” Vox. Vox, September 26, 2022. https://www.vox.com/policy-and-politics/2022/9/26/23343192/supreme-court-voting-rights-abortion-affirmative-action-race-medicaid-clean-water. 

“Why Campuses Should Support Affirmative Action More Strongly than Ever (Essay).” Inside higher ed , August 2017. https://www.insidehighered.com/views/2017/08/04/why-campuses-should-support-affirmative-action-more-strongly-ever-essay. 

Hamm, Andrew. “Students for Fair Admissions Inc. v. President & Fellows of Harvard College.” SCOTUSblog. Accessed September 28, 2022. https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college/.