By Sydney Joa, 12th Grade

The Supreme Court reconvened on October 3rd for its 2022-2023 term–one filled with cases addressing significant issues including affirmative action, voting rights, religious and free speech protections, and much more. After the contentious end of the 2021-2022 term this past June, which most notably featured the overturning of precedents that had secured women the right to have an abortion, many were left reeling at the Court’s abrupt shift to the right now that it features a 6-3 conservative majority. The cases set to be reviewed this upcoming term will potentially affect millions of Americans, especially if the decisions made look anything like the Court’s ideological proportions. The following is an overview of some significant cases on this year’s docket.

Students for Fair Admission (SFFA) v. Harvard and Students for Fair Admission (SFFA) v. UNC

This lawsuit is led by the anti-affirmative action activist Edward Blum and he aims to overturn decades-worth of established legal precedent that has permitted colleges to take the race of qualified applicants into account when making admissions decisions so as to encourage diverse educational environments. According to his organization Students for Fair Admission (SFFA), Asian American candidates are allegedly subjected to unlawful discrimination in favor of white applicants by Harvard University and the University of North Carolina’s race-conscious admissions approach. The organization claims that it violates Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Constitution’s Fourteenth Amendment. Thus, SFFA seeks to stop Harvard and other universities from factoring in the race of their applicants.

Despite the fact that the charges only include Harvard and UNC, these cases have attracted the attention of many as these policies may be akin to those of other universities with selective recruitment. What is more, former Supreme Court Justice Lewis Powell used Harvard’s admissions program as an example of acceptable race-conscious policies when writing the majority opinion in the monumental 1978 case Regents of the University of California v. Bakke because it didn’t employ numerical limits to reach diversity–something that could serve as a precedent for this coming decision.

These lawsuits intend to undermine interracial unity and discredit race-conscious laws and initiatives that open doors for people of all races. To read more, check out our past article on the cases.

303 Creative LLC v. Elenis

Graphic designer Lorie Smith is the founder and owner of 303 Creative, a Colorado company that designs customized website services. When she decided to expand her company into working with wedding designs, she ruled out same-sex weddings, stating that her faith prevents her from doing so. However, Colorado’s Anti-Discrimination Act (CADA) doesn’t permit public accommodations from refusing to provide services because of a client’s identity. According to their Accommodation Clause, a company is prohibited from denying any services to customers “because of…sexual orientation.” Additionally, their Communication Clause states that a company isn’t allowed to publish any form of “communication” that suggests service refusal “or that an individual’s patronage…is unwelcome, objectionable, unacceptable, or undesirable because of…sexual orientation.” In response to this, Smith and her company are arguing that the law violates her First Amendment religious and free speech rights.

This case will be examining a question previously left undecided by the Supreme Court after the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) decision: does a business owner refusing to provide service to a customer based on their religious beliefs violate the Free Exercise or Free Speech Clauses of the First Amendment? In this case, the Supreme Court ruled that the Colorado Commission was demonstrating hostility and disrespect towards Masterpiece Cakeshop’s owner, which was in violation of the Establishment Clause. This decision didn’t actually address the question of the Court–hence the Supreme Court’s agreement to add this case to the docket.

If Smith ends up winning, the Colorado law preventing discrimination on the basis of a customer’s sexuality, as well as other state laws offering comparable protections will be declared unlawful, granting company owners the freedom to discriminate. 

Moore v. Harper

This case is set to decide whether the North Carolina Supreme Court has the authority to invalidate the legislature’s unconstitutionally gerrymandered congressional district lines. In other words, the case will determine whether individual states should have complete control over how federal elections are conducted without any interference from the courts. The idea that, indeed, states should have said control is rooted in the ‘Independent State Legislature’ Theory (ISL), a Constitution interpretation that would grant state legislatures the broad autonomy to gerrymander, or alter, electoral maps and enact measures that would restrict voter participation. This theory also argues that legislators would be allowed to disregard the state constitution when it came to federal elections, and the state courts would have no power to intervene.

ISL gained popularity due to it playing an important role in former President Donald Trump’s efforts to overturn the 2020 presidential elections. Trump allies argued before the Supreme Court that the theory allowed state legislatures to appoint electors who would vote for the former president, despite the fact that the legally certified electors were required by state law to vote for Joe Biden given that he won the popular vote in those states. However, the Supreme Court declined to address the issue back in December 2020. But if Trump had been successful, he would have been allowed to serve another term in office by “winning” the elections through the electoral college. 

In the case that the Supreme Court accepts Moore’s ISL theory, the Trump situation might easily see a repeat in the future, and it would grant state legislatures the exclusive and unchallengeable power to redraw congressional districts for federal elections as well as to choose state electors who will for the president on behest of the state’s voters. Thus, the state courts would not be able to use their constitutions to examine potential voter suppression of congressional districts by state legislatures.

Implications for the future

If last year’s Supreme Court decisions are any indication of what’s to come for this year’s docket, it is likely that the rulings will not make the liberal population very happy. The past year showed just how much a 6-3 conservative majority can influence the outcome of such ideologically-divisive matters, and with incredibly important topics being discussed this year, the ultimate decisions will have implications not only for the American people but also for how we interpret the Constitution itself for years to come.

References:

• Alliance for Justice. (n.d.). TheOfficialHalie – Represent J.A ft. Chris Money. YouTube. Retrieved October 9, 2022, from https://www.afj.org/wp-content/uploads/2022/08/SupremeCourtPreview_FactSheet5.pdf
• American Council on Education. (2019). Students for Fair Admissions Challenges Policies at Harvard and UNC. American Council on Education. Retrieved October 10, 2022, from https://www.acenet.edu/News-Room/Pages/SFFA-v-Harvard-UNC.aspx
• Donziger, S. (2022, October 6). The most terrifying case of all is about to be heard by the US supreme court | Steven Donziger. The Guardian. Retrieved October 10, 2022, from https://www.theguardian.com/commentisfree/2022/oct/06/the-most-terrifying-case-of-all-is-about-to-be-heard-by-the-us-supreme-court
• Duchin, M. (2022, September 30). Moore v. Harper (Formerly Harper v. Hall). The American Redistricting Project. Retrieved October 17, 2022, from https://thearp.org/litigation/moore-v-harper/
• Herenstein, E., & Wolf, T. (2022, June 6). The ‘Independent State Legislature Theory,’ Explained. Brennan Center for Justice. Retrieved October 10, 2022, from https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained
• Lawyers’ Committee for Civil Rights. (2021, July 28). Students for Fair Admissions (SFFA) v. Harvard | Lawyers’ Committee for Civil Rights Under Law. Lawyers Committee for Civil Rights. Retrieved October 10, 2022, from https://www.lawyerscommittee.org/students-for-fair-admissions-sffa-v-harvard/
• Luttig, M. (2022, October 3). There Is Not an ‘Independent State Legislature’. The Atlantic. Retrieved October 10, 2022, from https://www.theatlantic.com/ideas/archive/2022/10/moore-v-harper-independent-legislature-theory-supreme-court/671625/
• Schweitzer, D. (2022, March 9). Supreme Court Report: 303 Creative LLC v. Elenis, 21-476. National Association of Attorneys General. Retrieved October 10, 2022, from https://www.naag.org/attorney-general-journal/supreme-court-report-303-creative-llc-v-elenis-21-476/
• Stowe, L. (2022, August 3). SCOTUS’ Growing Influence on Policy: What’s Next & Why You Should Care. CQ. Retrieved October 17, 2022, from https://info.cq.com/resources/supreme-court-policy/
• Sweren-Becker, E., & Herenstein, E. (2022, August 4). Moore v. Harper, Explained. Brennan Center for Justice. Retrieved October 10, 2022, from https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained