Last term, the longed-for (in some quarters) and dreaded (in others) conservative Supreme Court majority coalesced. After many false starts and disappointments, conservatives will remember the 2021–2022 session as the one when they finally had enough votes to overcome “defections.”
So where do we stand now, poised to enter what promises to be another high-profile term? The Court isn’t retreating from controversy: the 2022–2023 docket already has some blockbuster issues, including property rights, affirmative action, compelled speech for a same-sex wedding, and election law. Here are some highlights.
Environmental Regulation and Property Rights. The first case of the new term, Sackett v. EPA, involves an Idaho couple prohibited from building a home because the intended lot allegedly contains wetlands that qualify as “navigable waters” under the Clean Water Act. The justices will decide whether the U.S. Court of Appeals for the Ninth Circuit used the correct test to determine whether the wetlands are indeed “waters of the United States.”
In 2012, the Supreme Court unanimously agreed that the Sacketts could challenge an EPA order stopping construction before the agency began any enforcement action. Now the Sacketts want the Court to adopt a test proposed by the four–justice conservative plurality in Rapanos v. United States (2006), which would allow wetlands to be regulated only when they have a continuous surface-water connection to regulated waters. If I were a betting man, I’d bet that that’s exactly what the Court will do, in a ruling that, like last term’s West Virginia v. EPA, is likely to have the biggest jurisprudential and governance impact, without necessarily drawing the most headlines.
Pig-Farming and Interstate Commerce. Another significant case for economic growth involves California’s Proposition 12, which requires that all pork, veal, and eggs sold in the state comply with restrictions on how the animals can be confined. Various agricultural entities filed lawsuits arguing that California law unconstitutionally crossed state borders and regulated national markets. That’s especially true for the pork industry, which has very little presence in the state.
The Ninth Circuit agreed with the plaintiffs that the law would “require pervasive changes to the pork production industry nationwide” but ruled that they had failed to make a legally cognizable claim under what’s known as the “dormant” Commerce Clause. By no means a sleepy area of law—and one that cuts across conventional ideological lines—dormant Commerce Clause claims argue that some state laws with extra-territorial reach interfere with Congress’s constitutional authority over interstate commerce.
Pike v. Bruce Church, Inc. (1970) held that state power to pass laws affecting interstate commerce is limited when those laws pose an “undue burden” on businesses. What’s an undue burden? Pike’s half-century-old balancing test has helped plenty of lawyers bring home the bacon, but it has failed to provide legislatures, lower courts, and businesses a clear answer to this question. In National Pork Producers Council v. Ross, the Supreme Court will hopefully provide clarity.
Affirmative Action. The highest-profile cases on the docket are undoubtedly the challenges to the use of racial preferences in university admissions. Having overturned Roe v. Wade and recognized the “abandonment” of Lemon v. Kurtzman, has the Court now picked Regents of the University of California v. Bakke as the next 1970s precedent to go on the chopping block? Bakke is the 1978 case in which one justice, Lewis Powell originated the core conceit of the DEI apparatus in higher education. In that case, four justices would have outlawed the use of race in admissions and four would have broadly allowed it. Powell voted to block racial quotas at UC–Davis’s medical school but to allow the use of race as one of many factors to advance what he considered to be a compelling state interest in educational diversity. Twenty-five years later, in a pair of cases from the University of Michigan, the Court endorsed that diversity rationale as part of a holistic race-conscious program (Grutter v. Bollinger), while rejecting a mechanical system that assigned a fixed number of points for race (Gratz v. Bollinger). The swing vote in that case, Justice Sandra Day O’Connor, suggested that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Well, here we are, 19 years later, and the trendlines aren’t looking good for a broadly accepted sunsetting of the evaluation of students by skin color. Enter Students for Fair Admissions (SFFA), a group of more than 20,000 students and parents working “to support and participate in litigation that will restore the original principles of our nation’s civil rights movement.” SFFA sued the oldest private and public universities in the country—Harvard and the University of North Carolina, respectively—over their use of race in admissions.
The claims center on discrimination against Asian-American applicants, who are much less likely to be admitted than similarly qualified white, black, or Hispanic applicants. Both the district court and First Circuit upheld Harvard’s policy—which SFFA likens to the Jewish quotas of a century ago—as did the district court in the UNC case. The Supreme Court eventually consolidated the cases before un-consolidating them to allow the new justice, Ketanji Brown Jackson, who had served on Harvard’s board of overseers, to participate in the UNC case.
Nobody expects different results in the two cases, whether because of the public/private distinction or Jackson’s involvement in one but not the other. Six votes for the challengers in each case is the most likely outcome because the most “gettable” vote for progressives, Chief Justice John Roberts, has shown no sign of squishiness in race cases. In his first term on the Court, Roberts wrote, “It is a sordid business, this divvying us up by race,” while in a 2007 busing case he famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
First Amendment. The blockbuster case five years ago was Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a baker refused to bake a cake celebrating a same-sex wedding, in alleged contravention of Colorado antidiscrimination law. Was he a free-speech martyr, or a half-baked bigot? Ultimately, the Supreme Court ruled 7-2 that Colorado officials expressed unconstitutional hostility to Jack Phillips’s Christian beliefs. The Court thus avoided the broader intersection of antidiscrimination laws and freedom of speech.
It also didn’t rule on whether cake-baking is an expressive activity protected by the First Amendment—but now we have a case where there’s no question that the commercial activity at issue is protected speech. 303 Creative LLC v. Elenis involves a graphic designer who has long wanted to expand her business to wedding websites but ran into the same Colorado law at issue in Masterpiece Cakeshop.
The Tenth Circuit agreed that Lorie Smith’s “creation of wedding websites is pure speech,” and that Colorado law compels Smith to create speech that she would otherwise refuse. But the law survives constitutional scrutiny, the court concluded, because it’s narrowly tailored to the state’s interest in ensuring that LGBTQ customers have access to the “custom and unique” product that Smith provides. Same-sex couples might be able to have their wedding websites designed by someone else, but those customers “will never be able to obtain wedding-related services of the same quality and nature as those that” Smith offers.
That’s a bizarre ruling, to say the least, which effectively says that every business is a monopoly unto itself. Will the Supreme Court rule foursquare against speech compulsions, or again find some narrower path to avoid resolving the purported conflict between free speech and gay rights? It could perhaps vacate the self-monopoly ruling and remand the case for more conventional analysis. Or it could adopt a monopoly lens that justified public-accommodation rules at common law: for example, that the only inn for miles around had to serve travelers but competing city merchants owed no such obligation.
Election Law. The Supreme Court is finally taking up an issue that recurs with increasing frequency at election time: whether a federal constitutional violation or remedy exists when a state court rewrites electoral rules devised by the state legislature. Pointing to the Constitution’s Elections Clause (Article I, Section 4), proponents of cutting back state judicial authority frame the issue in stark terms: “Whether a state’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,’ and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”
Those “vague state constitutional provisions” regarding “‘fair’ or ‘free’ elections” come from the North Carolina Constitution, such that the specific dispute at issue arises from the Tarheel State’s redistricting after the 2020 census. In Moore v. Harper, the state supreme court set aside the legislatively devised congressional maps as too gerrymandered.
It’s hard to predict what the U.S. Supreme Court will do here—perhaps harder than in any other major case yet on the docket. The Court closed the door on federal constitutional challenges of partisan gerrymanders in 2019 in Rucho v. Common Cause, for want of an administrable standard—which is why Moore v. Harper was brought under state constitutional law. Will a majority of justices now be able to set a standard regarding when a state court’s otherwise legitimate interpretation of state law crosses the line into depriving the legislature of its role in regulating elections?
Criminal Law. The biggest criminal-law case on the docket comes from New York. Percoco v. United States asks whether a private citizen who holds no government office or employment—but has informal influence over governmental decision-making—owes a fiduciary duty to the public, such that he can be convicted of honest-services fraud. Developer Steven Aiello paid $35,000 to Joseph Percoco, who served as the manager for New York governor Andrew Cuomo’s reelection campaign, to lobby a state agency to let Aiello’s company receive state funding without entering into a union agreement. Percoco was convicted and sentenced to six years in prison.
The Court has taken up several honest-services-fraud cases of late, as well as considering other broadly worded statutes that leave it to prosecutorial whim whether to prosecute behavior regarded as “shady” but not technically illegal. After all, when a private citizen accepts money to convince the government to do something, we call him a lobbyist—and it’s unclear why that citizen’s close relationship to a government official would transform that transaction into a bribe.
On the other hand, the facts of this case muddy the waters of those lofty principles. Percoco had only temporarily left a job in Cuomo’s office to manage his campaign. He still used his executive-office desk and phone and represented that he would return to the Cuomo administration. Indeed, a few days before he officially returned to his old job, Percoco called a state official from his executive-office desk and directed him to waive the required labor-peace agreement for Aiello’s project. Pop some popcorn ahead of what could be an entertaining oral argument.
Immigration Law. As of this writing, the last case the Court added to its docket is one reviewing executive authority over immigration policy. Given Congress’s inability to legislate in this important area, immigration is perhaps the preeminent example of executive-branch “pen and phone” governance, so this is by no means the first time that the justices have grappled with claims that a president is violating the law by acting or not acting in a certain way in this context.
In United States v. Texas, 21 states allege that a Biden administration policy that sets priorities for the arrest and deportation of illegal aliens is both contrary to the Immigration and Nationality Act (INA) and a violation of the Administrative Procedure Act. The policy stems from a September 2021 memorandum by Homeland Security Secretary Alejandro Mayorkas explaining that his department lacks the resources to apprehend and deport all illegal aliens and thus instructing immigration officials to prioritize the apprehension of three groups: suspected terrorists, people who have committed serious crimes, and those caught at the border.
U.S. District Judge Drew Tipton vacated the policy on June 10, 2022, but the parties disagree about whether that effectively represents a nationwide injunction against reliance on the priority-setting memo. The Fifth Circuit then rejected the administration’s emergency request to stay that ruling pending appeal, as did the Supreme Court, which instead decided only to review the merits of the case.
The government argues that states don’t even have standing to challenge the policy, and that Judge Tipton’s ruling impermissibly compels the executive branch to exercise policy discretion in a certain way, thereby disrupting Homeland Security operations. The states reply that they have a right to sue over direct financial harms from a federal policy, such as certain aliens’ remaining in state prisons for longer than they otherwise would. Moreover, they claim that the Mayorkas memo conflicts with Congress’s specific statutory instructions regarding INA enforcement and that the Department of Homeland Security didn’t jump through the proper hoops in setting its policy.
If you get your legal news from social media, you might think that the Supreme Court has made an extreme right turn in the law and is pushing full steam ahead in that direction. On this reading, its rulings on last term’s big cases represent an ideological hijacking of our Constitution. What’s more, because Republican presidents appointed the six justices in the majority of each of these cases, these radical decisions were all just partisanship disguised as law.
That take—one unfortunately sees it not just from Twitter commentators but also from highly regarded law professors and journalists—is, to use the technical legal term, hogwash. As the Wall Street Journal put it, “The fury of the left’s reaction isn’t merely about guns and abortion. It reflects their grief at having lost the Court as the vehicle for achieving policy goals they can’t get through legislatures.” It’s an understandable impulse, but one that unfairly impugns the highest court in the land.
Put me down for a further unraveling of the Burger Court.
Photo: The Washington Post / Getty Images