Supreme Court to hear major cases on race, voting rights, free speech

WASHINGTON — The U.S. Supreme will take up blockbuster cases dealing with race, voting rights and free speech when it reconvenes for the 2022-23 term on Monday, as the aftershocks of its ruling that overturned Roe v. Wade continue to reverberate.

Legal experts said the six conservative justices who struck down the constitutional right to an abortion will move the court further to the right this term on cases of affirmative action in higher education, redistricting and laws barring discrimination against same-sex couples.

“The takeaway I have from last term is how far the court moved the law to the right,” said Erwin Chemerinsky, dean of the University of California Law School in Berkeley. “It shows the profound impact of Donald Trump having appointed three justices to the court.”

John Malcolm, vice president at the Heritage Foundation’s Institute for Constitutional Government, said, “For the first time in my lifetime, you have a majority on the court that are self-proclaimed originalists and textualists, and I certainly think that was evident in the last term.”

The court returns with a new member, Ketanji Brown Jackson, who becomes the first Black woman to serve as a justice.

And it follows an unusual public sparring between Justice Elana Kagan with Chief Justice John G. Roberts and Justice Samuel Alito over the court’s legitimacy after it scrapped nearly 50 years of precedents upholding abortion rights in the Dobbs v. Jackson ruling.

Since that decision, public approval of the Supreme Court has dropped to a historic low of 40%, according to a Gallup Poll released Thursday. For the first time less than half — 47% — said they trust the judicial branch, and 42% said the Supreme Court is too conservative.

Here are four cases the Supreme Court has agreed to hear and commentary on them by legal experts speaking at previews of the upcoming term at American University’s Washington School of Law and at the Heritage Foundation, a conservative Washington think tank.

Affirmative action and diversity

The Supreme Court could bar colleges and universities from taking race into account in any form to create a diverse student body, throwing out decades of rulings, after it hears arguments separately by the University of North Carolina and Harvard University on Oct. 31.

Lawsuits by a legal group representing Asian students argued that both universities’ affirmative action policies boost admissions for Black and Latino applicants but limit it for Asians. The justices will decide whether to overrule the 2003 Grutter v. Bollinger ruling that allowed consideration of race as one factor among many to create diversity among its students.

“I don't think that many liberals or conservatives have much doubt about what the Supreme Court is going to do,” Chemerinsky said. “What we're going to see when the court overrules these cases is a devastating attack on diversity throughout the country.”

Malcolm cited Roberts’ statement that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. “And I think the court is going to do that in these pair of cases,” he said.

Independent state legislature theory

The Supreme Court could upend federal elections by barring state courts from almost any oversight of the process that allows state legislatures to draw boundaries for congressional districts after every census. The court has not yet scheduled arguments.

In Moore v. Harper, North Carolina state legislators asked the U.S. Supreme Court to throw out a North Carolina Supreme Court ruling that they had drawn illegal gerrymandered districts. The North Carolina Supreme Court imposed a map by three experts it appointed.

The legislators cited the “independent state legislator theory” based on the U.S. Constitution’s elections clause that says state legislatures set the “Times, Places and Manner of holding Elections for Senators and Representatives.”

On Jan. 6, 2021, 147 Republican senators and House members voted to object to the electoral votes of Arizona and Pennsylvania in the 2020 presidential election based on this theory.

Paul Clement, a former U.S. solicitor general, said the state legislators make a “strong argument” that the framers decided “it's better to give this controversial role to a politically accountable body.”

But Chemerisnky said that theory has implications for presidential elections. “Imagine those state legislatures decide to allocate the electors of that state to the Republican candidate, even though the Democrat won the popular vote, and imagine that decides the outcome of the election,” he said. “I fear if that would happen, our country with literally come apart.”

Racial gerrymandering

The Supreme Court could further weaken the Voting Rights Act by striking down or limiting a section that bars voting practices or procedure that discriminate based on race. A decade ago, the court scrapped Justice Department pre-clearance of voting changes to ensure no adverse racial impact.

In Merrill v. Milligan, justices will hear arguments Tuesday on the state of Alabama’s appeal of a lower court’s ruling that its redistricting plan for the seven seats diluted votes of Black citizens by creating one majority Black district instead of two.

In a 5-4 decision, conservative Supreme Court justices froze the ruling, allowing the primary and general election to proceed with the disputed districts. But the state would have to redraw the district boundaries if the Supreme Court upholds the lower court decision.

“The state of Alabama is essentially arguing that as the lower court interpreted Section 2 of the Voting Rights Act that it would essentially require them to consider race above all other redistricting factors, and in fact, would violate the 14th Amendment Equal Protection Clause,” said Zack Smith, a Heritage Foundation legal fellow.

He added it has the potential to affect many states engaging in the redistricting process.

Chemerinsky said, “The court might make it much more difficult to prove that redistricting violates the Voting Rights Act.”

Declining services for same-sex marriages

In a repeat of an earlier case, the Supreme Court could determine that under the right to free speech, businesses can withhold their services from same-sex marriages based on their religious beliefs. The court has not scheduled arguments for this case.

In 303 Creative v. Elenis, graphic design firm owner Lorie Smith wants to add creation of wedding websites to the services she offers, but based on her religious beliefs, she does not want to do it for same-sex marriages and wants to post a statement to explain why.

She is challenging a Colorado public law that prohibits businesses open to the public from discriminating against gay people or announcing their intent to do so.

Four years ago, the Supreme Court sidestepped a similar case, also brought in Colorado, in which Jack Phillips, the owner of Masterpiece Cakeshop, cited his religious beliefs in refusing to bake a cake for same-sex weddings. The court instead decided that a Colorado administrative agency that ruled against Phillips had treated him unfairly by being too hostile to his sincere religious beliefs.

In the case now before the court, justices limited the question to freedom of speech.

“They will reach the main issue that they ducked under Jack Phillips, but they will do it on the basis of the free speech clause of the First Amendment and not the Free Exercise Clause of the First Amendment,” Malcolm said.

“And I actually think that she has, particularly with the change in personnel on the court, a very decent chance to prevail.”

Chemerinsky said he worried about the implications of the court’s likely ruling. “For over a half century, the Supreme Court has consistently favored equality over the freedom to discriminate, but I think that the court here is likely to make the opposite choice,” he said.

“But why would it just be limited there? Why couldn't somebody on the basis of their beliefs, their speech, their religion, discriminate on the basis of race, discriminate on the basis of sex?” he asked.