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How Far Did SCOTUS Go This Term?
From affirmative action to anti-discrimination laws to animal welfare, here are eight consequential decisions from the just-ended Supreme Court year.
Just in time to celebrate two-hundred and forty-seven years of American independence, the Supreme Court wrapped up another term last week. To some, as Adam Liptak wrote for the New York Times, the term “produced a fair number of liberal victories,” a conclusion that can be quantified, however imperfectly, by statistical breakdowns of how often progressive justices voted with the conservatives this term.
While some decisions announced this term avoided major regressions of established law and revealed unexpected majorities, to a large degree those “wins” merely produced sighs of relief that the Court’s conservative majority restrained itself when handed opportunities to substantially reshape established law. In other cases, though, the conservatives steamrolled over laws designed to promote diversity, shield against discrimination, protect the environment, and support students impacted by national emergencies. The implications of the decisions announced this term will be felt for generations.
Let’s take a close look at eight of this term’s consequential cases, how the justices voted in each, and why the outcomes matter.
Majority decision authored by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Barrett, and Kavanaugh. One dissent (on the Harvard decision) was written by Justice Kagan and joined by Justice Sotomayor; another (on the UNC decision) was written by Justice Jackson and joined by Justices Kagan and Sotomayor.
In one of the highest-profile cases of the term, the Court’s conservative majority embraced two challenges raised by a nonprofit seeking to end affirmative action. “Students for Fair Admissions” is a group dedicated to fighting the “woke agenda” the Biden administration is supposedly “imposing” on America; it solicits membership from individuals who believe they were rejected from colleges on the basis of race. The organization filed suit to challenge the admission policies of Harvard University, a private institution, and the University of North Carolina, a public institution.
In these consolidated cases, the Court ruled that universities may not consider race in applicant admission decisions, striking down decades of precedent. The Constitution’s promise of equal protection under the law requires that any law or governmental action distinguishing persons based on race or national origin survive strict scrutiny—that is, that the policy is narrowly tailored and designed to achieve a compelling, highly important government interest. Previous Supreme Court decisions have recognized that diversity is a compelling government interest and permitted universities to consider race among other factors when reviewing an application. In its ruling last week, the Court rejected that reasoning, likening race-conscious admission policies to stereotyping.
The extent to which universities may now consider race remains unclear after the majority simultaneously acknowledged that race may affect applicants’ lives while rejecting the constitutionality of taking into account race unless the topic blends into an individual’s holistic life experience.
Majority opinion authored by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Barrett, and Kavanaugh. Justice Kagan wrote the dissent, which Justices Sotomayor and Jackson joined.
On the final day of the term, the Court’s conservative majority rejected the Biden administration’s plan to relieve student loan debt. In August 2022, President Biden and Secretary of Education Miguel Cardona formalized their efforts to relieve up to $20,000 of student loan debt for around 43 million people in the United States. Soon after, six Republican-led states (Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina) challenged the legal authority of the secretary to take that action. Cardona relied on a law passed by Congress in 2003 that permits him to “waive or modify any statutory or regulatory provision governing federal student loans” during a national emergency.
In the majority decision, the Court applied a novel theory known as the major questions doctrine, which it essentially invented last year in striking down the EPA’s authority to regulate carbon emissions under the Clean Air Act. Under the doctrine, the Court gave itself the power to reject congressional legislation that is not—to its eye—sufficiently precise, on the rationale that the agency needs a clearer directive from Congress if the subject matter of a particular policy is “major.”
The Court has yet to reasonably define “major” other than to signal that the conservatives will know that when they see it. (Never mind that Congress and agencies have no way of predicting what’s major and what’s un-major, meaning they are bound to take actions that will wind up being a total waste of time and resources if the Court pooh-poohs them down the line.) In this case, the Court used the major questions doctrine to cancel the student loan debt relief plan designed by the Biden administration, on the rationale that, although the statute’s use of the word “waive” could mean “cancel,” Congress needed to be more explicit for the agency’s action to hold. Since the Court’s landmark Chevron ruling in 1984, agencies have gotten the benefit of the doubt in such circumstances. No longer.
Assuming the Court’s dependence on the major questions doctrine continues, federal action on many legislative and regulatory policy issues could stagnate while the conservative justices seize the last word.
Majority opinion authored by Justice Gorsuch, joined by Chief Justice Roberts and Justices Thomas, Alito, Barrett, and Kavanaugh. Dissent authored by Justice Sotomayor, joined by Justices Jackson and Kagan.
In this ruling, also handed down on Friday, the Court’s conservative majority struck down Colorado’s anti-discrimination public accommodations law, opening the door for certain private businesses across the country to discriminate against LGBTQ+ customers in the name of free speech. Because the law included protections for other immutable characteristics—including race, sex, national origin, and disability—the Court’s ruling has vast implications beyond the facts of the case. And because the Court broadly decided the dispute on First Amendment grounds, its ruling under the First Amendment cannot be altered absent a constitutional amendment or a new configuration of justices. (Aaron Tang, a law professor at UC Davis, suggested in a New York Times column that states should amend their laws to require business owners who object to serving certain customers to delegate that work to independent contractors.)
Lorie Smith, a web designer who wished to deny her services to LGBTQ+ couples, brought the lawsuit, arguing that her home state of Colorado’s anti-discrimination law violated her First Amendment rights. Smith, represented by Alliance Defending Freedom, the same conservative legal advocacy group that helped secure the overturning of Roe v. Wade last year, brought a preemptive challenge to the law even though she had never designed a wedding website for anyone. (The Court arguably should have dismissed the case outright for lack of standing; the appeals court whose ruling was overturned had to stretch and contort to conclude that Smith had standing, and Justice Gorsuch endorsed that analysis.)
Focusing on the “expressive” freedoms afforded under the First Amendment, the majority held that that the law’s requirement that Smith provide services to same-sex couples in contravention of her religious views constitutes unconstitutionally compelled speech. Justice Gorsuch’s wrote that anti-discrimination laws amount to the state “coopt[ing] an individual’s voice for its own purposes.”
By ruling that one individual’s expressive freedoms trumps anti-discrimination laws, the Court invited similar challenges in the over twenty states with similar laws, as well as at the federal level. And as pointed out by Justice Sotomayor in her scathing dissent, the majority offered little guidance regarding what type of businesses or creative contractors have “compelled speech” rights allowing them to discriminate moving forward.
Majority opinion authored by Justice Alito and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Barrett, with all the other justices joining opinions concurring or concurring in the judgment.
After diminishing the Environmental Protection Agency’s ability to mitigate climate change last term, the Court took aim at another foundational environmental statute this round: the Clean Water Act. Passed by Congress in 1972 to restore and protect the waters of the United States (or “WOTUS”), the statute is considered a triumph in cooperative federalism (as states operate together with the federal government) as well as a regulatory program that actually works. Although disputes have persisted for decades over the definition of “WOTUS” protected by the law, previous challenges before the Court never resulted in a majority consensus. Until now.
The Court held that the agency may only impose protections on (and therefore prevent the destruction of) waters and associated habitats that have “continuous surface connection” to traditionally navigable waters. This narrow definition of WOTUS will likely remove federal protections for over half of the waters currently protected by the act. This decision came only a few months after President Biden’s EPA administrator, Michael Regan, finalized a comprehensive redefinition of WOTUS.
With incredibly limited federal jurisdiction over critical waterways, states are now poised to capture much more governmental power when it comes to protecting or choosing not to protect wetlands from development. And as climate change increases the frequency and intensity of coastal flooding, the loss of these natural buffer habitats could not come at a worse time. Lower-income communities, minority communities, and Southern communities will likely feel the worst repercussions of this decision in coming years as their state governments open these habitats up for development.
Majority opinion authored by Justice Barrett and joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Gorsuch, Jackson, and Kavanaugh. Dissents authored by Justices Alito and Thomas.
In a surprising majority opinion, the Court rejected challenges to a longstanding law that was designed to preserve the integrity and sovereignty of Native tribes and families in the United States. Congress passed the Indian Child Welfare Act (ICWA) in 1978 to prevent state and local governments from separating Native children from their families when administering foster and adoptive care programs. Three non-Native families who sought to adopt Native children and the state of Texas challenged the constitutionality of the law on multiple grounds. Rejecting the plaintiffs’ arguments that ICWA exceeds Congress’s authority under the Constitution and impermissibly forces states to implement federal law, the Court declined to disturb a century of precedent bearing on the special legal status of Indian Tribes. So that’s good.
As for the plaintiffs’ other claims, including one brought under the Equal Protection Clause, the Court found that neither Texas nor the families had standing to sue. By dismissing part of the lawsuit on standing grounds, however, the Court likely left the door open for future challenges to the ICWA if a “better” plaintiff is found.
Majority opinion authored by Justice Gorsuch and joined in part by Justices Thomas, Sotomayor, Kagan, and Barrett. Dissents authored by Chief Justice Roberts (joined by Justices Alito, Kavanaugh, and Jackson) and Justice Kavanaugh.
In a case centered on an animal cruelty law in California, the Court landed a victory for animal-rights activists while possibly opening the doors to new state laws in many more areas of American life and commerce.
After voters in California passed Proposition 12 by referendum in 2018, the state outlawed (among other agricultural goods) pork raised in inhumane conditions. Pork producers from across the country challenged the law as a violation of the Constitution’s Commerce Clause, reasoning that while California constitutes a huge share of the market for pork products, less than 1 percent of the country’s pork comes from within its borders, so California was unlawfully regulating the entire country. The Biden administration stepped in with support for this argument, claiming that greenlighting state laws like Proposition 12 would harm the national economy for agricultural products.
An unexpected majority found that Proposition 12 stands, stating that the law did not purposefully discriminate against products or commerce from outside the state of California under the Court’s precedent requiring courts to balance the in-state benefits and out-of-state burdens when considering such laws. While this decision represents a win for animal welfare specifically, however, it could open the door to more regressive laws at the state level that would not have previously stood.
Majority opinion authored by Justice Thomas for a unanimous Court, with a short concurring opinion authored by Justice Jackson.
The Court ruled in favor of social media giant Twitter in a dispute over civil liability for social media platforms that fail to remove incendiary content disseminated by terrorist organizations. This specific challenge arose after the families of multiple victims of ISIS attacks sued companies like Twitter and Google under a provision of the U.S. criminal code that allows co-conspirators of terrorists to be held liable.
After the Ninth Circuit found the social media giants liable for failing to remove terrorist content used to promote and carry out such devastating attacks, the Court reversed on the rationale that whatever support the terrorist group garnered from the platforms was not substantial. Although Justice Jackson’s concurrence sought to limit the application of this decision beyond the specific facts of this case, this ruling in favor of tech companies will likely narrow future challenges to social media content moderation policies, reducing the legal pressure on these companies to take down potentially harmful content.
Majority opinion authored by Justice Alito for a unanimous Court.
Finally, the Court took an opportunity presented by an aggrieved postal service employee to clarify employer responsibilities to religious employees under the Civil Rights Act (CRA). The dispute arose when a Christian USPS employee refused to work on Sundays and lost his job because of it. He argued that under Title VII of the CRA, which prohibits covered employers from discriminating on the basis of religion, he was due a religious accommodation. However, Supreme Court precedent from 1972 said otherwise—the Court previously held that employers need only show that providing such an accommodation would result in costs to the business. Lower courts agreed that USPS met that burden here.
A unanimous Court disagreed, finding that the language of the CRA requiring that employers show “undue hardship” in order to deny accommodations means that an employer must prove more than the bare minimum. Justice Alito’s opinion described the test as requiring proof of burdens that are “substantial in the overall context of an employer’s business.” The ruling will undoubtedly produce more litigation over what constitutes a “substantial burden” and the lengths to which employers must go to accommodate the requests of their employees.
LOOKING AHEAD, next year’s docket (so far) is shaping up without the kinds of culture-war cases that have stunned millions while at the same time undermining the perceived legitimacy of the Supreme Court. But no one should be surprised if this conservative majority continues to find ways to push the Court further on its rightward trajectory. And no one should be surprised if the other branches of government continue to fail to muster any substantive response.
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