U.S. Supreme Court

Chemerinsky: These recent Supreme Court decisions have sparked a wave of litigation

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Erwin Chemerinsky. Photo by Jim Block.

The U.S. Supreme Court’s October 2022 term ended just a couple of months ago, but it’s already apparent that the decisions are leading to a great deal of litigation. What are the major issues left open by the cases that are likely to be litigated in state and federal courts?

Affirmative action

Students for Fair Admission v. President and Fellows of Harvard College held that colleges and universities cannot use race as a factor to benefit minorities and enhance diversity. Two crucial questions are likely to arise. First, what can colleges and universities do to achieve diversity? The decision does not preclude schools from seeking more diverse students and faculty, but it does limit the means that can be used to do so. There is sure to be a great deal of litigation over what is permissible and what is forbidden.

For example, the court declared that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise. But … universities may not simply establish through application essays or other means the regime we hold unlawful today.”

But how is this line to be drawn as to what is allowed in considering race in evaluating a candidate’s application for admission? Also, can colleges and universities engage in targeted outreach and recruitment based on race? What about race neutral criteria for admission decisions if they are adopted with the purpose and have the effect of achieving diversity?

Second, will the decision be extended beyond education? For example, will the court change the law under Title VII of the Civil Rights Act of 1964 with regard to employment discrimination? In United Steel Workers v. Weber (1979) and Johnson v. Transportation Agency (1987), the court upheld affirmative action in employment as not violating Title VII. Opponents of affirmative action claim that the Harvard College decision casts doubts on these precedents and already have brought suits to try and provide a vehicle for overruling them.


In Moore v. Harper, the Supreme Court emphatically rejected the “independent state legislature” theory, the view that a state legislature gets the final and only word with regard to the election of candidates to Congress. The court stressed that state courts have the power of judicial review of state legislative acts, such as how congressional districts are drawn. But at the end of his majority opinion, Chief Justice John Roberts declared: “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the elections clause. But federal courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the federal Constitution.”

When, though, does a state court “so exceed the bounds of ordinary judicial review” as to impermissibly intrude on to the role of the state legislature? The court does not answer this. Although the litigation is less imminent than for some of the other cases from last term, with an election coming up in 2024, there is a real prospect of the issue arising soon.

Free speech exemptions from anti-discrimination laws

In 303 Creative v. Elenis, the Supreme Court held that a state anti-discrimination law could not be constitutionally applied to a web designer who refused to provide websites for same-sex weddings on account of her religious beliefs. The court concluded that applying the law to her would be impermissible compelled speech in violation of the First Amendment. The case held that those engaged in expressive activity cannot be required to provide services even when the failure to do so violates anti-discrimination laws.

But what is sufficient to constitute expressive activity? The court simply said: “Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind.” Almost immediately after the decision a hair salon in Michigan announced that it would not provide services to transgender individuals. Many more cases involving all sorts of business are sure to arise. How will courts decide when providing services would violate an individual’s beliefs? Will courts ever say that stopping discrimination, say based on race, is a sufficiently compelling interest to justify requiring that services be provided?

Indian Child Welfare Act

The Indian Child Welfare Act requires that courts give preferences to Native Americans when a Native American child is placed in foster care or for adoption. It was enacted in 1978 in response to a long, tragic history of governments removing Native American children from their families and their communities.

In Haaland v. Brackeen, the court upheld the constitutionality of the act, concluding that it was within Congress’s powers and that it was not impermissible commandeering of state courts. But the court left a crucial question unresolved:Is the act impermissible racial discrimination? Although that question was presented and argued, the court ruled that none of the parties had standing to raise it. But it now will be litigated and then return to the Supreme Court.

The question is whether the preference for Native Americans should be regarded as a racial preference, in which case the Roberts court is very likely to declare it unconstitutional, or a preference based on political affiliation because tribes are sovereign entities, in which case it is likely to be upheld. In a concurring opinion, Justice Brett Kavanaugh expressed the former view that the act should be regarded as creating a racial preference. Justice Neil Gorsuch, though, wrote a concurring opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson that left little doubt that they will uphold the law. All of this leaves the ultimate resolution in doubt and will cause it to be much litigated in the lower courts.

Religious accommodations in employment

Title VII also prohibits religious discrimination in employment and has been interpreted to require that employers provide reasonable accommodations for employees’ religious beliefs. In Groff v. DeJoy, the Supreme Court changed the standard for what employers must do and when they could be held liable. Under TWA v. Hardison (1977), employers did not have to provide accommodations for employees’ religious beliefs and practices if there would be more than a minimal cost in doing so. Groff v. DeJoy rejected this standard and said instead that employers must provide accommodations unless there would be substantial cost in doing so.

This is a dramatic change in the law and one that surely will lead to a great deal of litigation as courts struggle to decide what a substantial cost is and what employers must do to accommodate employees’ religious beliefs and practices.

Union liability

In Glacier Northwest Inc. v. International Brotherhood of Teamsters Local No. 174, the Supreme Court held that a court could hold a union liable in a tort suit for the financial consequences of a strike if there was a “foreseeable and imminent danger” of economic harm. In such circumstances, the court held that strike is not arguably protected by the National Labor Relations Act and there need not be judicial deference to proceedings in the National Labor Board under San Diego Building Trades Council v. Garmon (1959).

All strikes impose economic consequences. That is why they are crucial for unions and why federal law protects the right of workers to strike. But when will courts find that the union’s behavior is “aggravated” and the harms sufficiently “foreseeable and imminent” to allow the union to be held liable? That, too, is an issue sure to be much litigated.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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