Chemerinsky: Supreme Court once again moves the law significantly to the right
Erwin Chemerinsky. Photo by Jim Block.
The November 2016 presidential election profoundly reshaped the U.S. Supreme Court. President Donald Trump’s selection of three justices—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—created a solid six-justice conservative majority. The impact was seen a year ago, in Justice Barrett’s first full term on the court.
In the October Term 2021, the court overruled Roe v. Wade, dramatically increased the protection for gun rights, found a First Amendment right for a high school football coach to publicly pray on the field after games and ruled that the Environmental Protection Agency lacked authority to regulate greenhouse gas emissions from coal-fired power plants.
In the last days of the October Term 2022, the court again, in a series of 6-3 decisions, moved the law significantly to the right in restricting affirmative action by colleges and universities, creating a First Amendment exception to state anti-discrimination laws for those engaged in expressive activities, and invalidating President Joe Biden’s student loan forgiveness program. But unlike the prior term, there also were some significant surprises from the conservative court, including finding that Alabama violated the Voting Rights Act in its drawing of congressional districts and rejecting the “independent state legislature” theory.
It also was a term where again it seemed to be the John Roberts court. He wrote the majority opinion in a disproportionate share of the most high-profile cases, including those concerning affirmative action, the Voting Rights Act, the independent state legislature theory and the Biden student loan forgiveness program. He was in the majority in every major case.
But the context of the term cannot be ignored, including in assessing Chief Justice Roberts. The court has its lowest approval ratings in history. There were serious allegations of ethical improprieties by three of the justices: Clarence Thomas, Samuel Alito and Gorsuch. Despite substantial pressure, the court still has not adopted an ethics code.
What were some of the most important rulings of the term?
Affirmative action. In Students for Fair Admissions v. Harvard College, the court ruled 6-3 that colleges and universities lack a compelling interest in using race as a factor in admissions. Although the court did not expressly overrule the precedents that allowed affirmative action—such as Grutter v. Bollinger (2003) and Fisher v. University of Texas, Austin (2016)—it effectively did so. Those cases held that colleges and universities have a compelling interest in having a diverse student body, but the court expressly rejected that rationale in the Harvard College case.
The decision will have a profound effect on admissions in both public and private schools, as the court held that affirmative action violates both equal protection (which applies to all public schools) and Title VI of the 1964 Civil Rights Act (which applies to all schools receiving federal funds). The crucial question will be what schools are able to do lawfully to achieve diversity. At the end of his majority opinion, Chief Justice Roberts declared: “[N]othing 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.” It is unclear what this will mean in practice, and it is uncertain whether schools may use “proxies” that are race-neutral to achieve diversity.
First Amendment. There were two major free speech cases. In Counterman v. Colorado, the court addressed the question of what a “true threat” unprotected by the First Amendment is. The lower courts across the country were divided between two major approaches to defining what a true threat is. Some state and federal courts, including the Colorado Supreme Court in the Counterman case, said it should be an objective test: Speech is unprotected if it would cause a reasonable person to feel threatened. But other courts adopted a subjective approach, holding that the First Amendment requires that to punish a person for speech, there must be a subjective intent to threaten. This is a much harder standard to meet, and thus would be more protective of speech because of the difficulty of proving a person’s intentions.
In Counterman v. Colorado, the court took neither of these approaches. Instead, it devised a compromise and said speech can be punished when the speaker was “reckless”—a speaker can be punished if he “consciously disregarded a substantial risk that his communication would be viewed a threat of violence.” The court rejected the subjective standard as not providing enough protection of safety and the objective standard as not doing enough to safeguard speech. The other free speech case, 303 Creative v. Elenis, involved determining whether there is a First Amendment exception to state anti-discrimination laws. Colorado law prohibits business establishments from discriminating based on race, sex, religion or sexual orientation. Lorie Smith, whose business designs websites, wanted to expand to include websites for weddings but said it would violate her religious beliefs to require her to do so for same-sex weddings. She claimed that applying the Colorado anti-discrimination law to her would violate the First Amendment.
The high court, in a 6-3 decision, held that applying the anti-discrimination law to her would violate her First Amendment right to freedom of speech. The court said requiring her to design websites for same-sex weddings would be unconstitutional compelled speech.
It is unclear how far this will extend. The court held that those engaged in expressive activity cannot be forced to provide services, but what is expressive activity? Justice Gorsuch 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.” And if the person does not want to provide services based on race or sex, so long as it is expressive activity, the result would likely be the same.
Student loans. A federal statute, the Higher Education Relief Opportunities for Students Act of 2003, authorizes the secretary of education to “waive or modify” student loan obligations in an emergency. President Biden used this authority to provide up to $20,000 of forgiveness of student loans for those who qualified. Over 40 million people benefited from this program.
In Biden v. Nebraska, the court in a 6-3 decision invalidated the Biden loan forgiveness program. Chief Justice Roberts, writing for the majority, invoked the “major questions doctrine”: the principle that a federal agency cannot act on a major question of economic or political significance unless it has clear direction from Congress. Roberts said the power of the secretary of education to give this loan relief is a major question, and Congress was not sufficiently specific in authorizing such relief.
Voting and elections. In two decisions with Chief Justice Roberts writing for the majority and Justices Thomas, Alito and Gorsuch dissenting, the court protected voting rights. In Allen v. Milligan, the court found that Alabama violated Section 2 of the Voting Rights Act in its drawing of congressional districts.
Alabama’s population is about 27 percent Black. The state has seven seats in the House of Representatives. After the 2020 census, the Alabama legislature engaged in redistricting and packed Black voters in one of the seven districts and spread them around the others, with the effect that Alabama was very likely to have only one Black representative in Congress. The Supreme Court, following decades-old precedents, found that this violated the Voting Rights Act because of its discriminatory impact against Black voters.
Moore v. Harper involved whether state courts can enforce state constitutional requirements with regard to elections. After the 2020 census, North Carolina, like all states, redrew election districts. North Carolina now has 14 seats in the House of Representatives. The legislature drew the districts so that Republicans were likely to win 10 or 11 of the races. The North Carolina Supreme Court found that this violated the North Carolina constitution and appointed a commission to redraw the districts.
The legislature and its supporters went to the U.S. Supreme Court to contend that the North Carolina Supreme Court has no legal authority to be involved and the state legislature gets the last, unreviewable word. They based this argument on a provision of Article I, Section 4 of the Constitution, which says the legislature of each state shall determine the time, place and manner for choosing its members in Congress.
The court emphatically rejected this argument, which is often referred to as the independent state legislature theory. Chief Justice Roberts wrote for the court in a 6-3 decision and held that state courts have the authority to enforce state law, including with regard to elections. He invoked Marbury v. Madison, the 1803 decision that famously recognized the power of courts to review the constitutionality of executive and legislative actions. The court declared: “We are asked to decide whether the elections clause carves out an exception to this basic principle. We hold that it does not. The elections clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
At the end of the opinion, Chief Justice Roberts left open a possible role for the federal courts when he declared: “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.” It is unclear what it means to say state courts cannot “exceed the bounds of ordinary judicial review” or when that opens the door to federal court review of state court decisions.
These, of course, are only a handful of the cases decided this term. By any measure, it was another monumental year in the Supreme Court.
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.