U.S. Supreme Court

Chemerinsky: Supreme Court poised to sharply advance the law to the right

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Erwin Chemerinsky. Photo by Jim Block.

This coming Monday, the U.S. Supreme Court justices will take the bench and begin the October 2022 term. For the first time since 1994, Justice Stephen Breyer won’t be among them.

He was a pragmatist who focused on the practical consequences of rulings on a court increasingly dominated by those with strong ideologies. He was a person of great decency. This was reflected in the way he treated lawyers at oral argument and the absence of sarcasm and invective in his opinions, no matter how vehement his dissent. There are many accounts of his forging compromises across the ideological aisle.

In his place will be Justice Ketanji Brown Jackson, the first Black woman to serve on the court and the first justice to have been a public defender. She is one of only two justices on the current court to have served as a trial judge. And for the first time in history, there will be four women serving together as justices.

The October 2021 term was one of the most momentous in history: The court overruled Roe v. Wade, greatly expanded gun rights, aggressively protected free exercise of religion and significantly limited administrative agency power. There is no doubt that the coming term, too, will be filled with blockbuster decisions. Traditionally, about half the docket is set before the justices go on their summer recess. The court continues to take cases that will be argued this term from the end of September until mid-January. Already, there are a number of potential blockbusters on the docket.

Affirmative action

In a series of cases over more than four decades, the Supreme Court has held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor in admissions to benefit minorities and to enhance diversity, most recently in Fisher v. University of Texas at Austin in 2016.

But two of the justices who were in the majority in Fisher—Justices Anthony Kennedy and Ruth Bader Ginsburg—are no longer on the court. All three dissenters from Fisher—Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito—remain. Three additional conservatives—Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—now are on the bench.

The court will hear two cases in the October 2022 term that pose the question of whether the court should overrule its earlier decisions on affirmative action: Students for Fair Admission v. University of North Carolina and Students for Fair Admission v. President and Fellows of Harvard College. (Justice Jackson will recuse herself from the Harvard case.) As a public university, the University of North Carolina case involves whether affirmative action violates equal protection. Although the Constitution does not apply to a private school like Harvard, Title VI of the 1964 Civil Rights Act prohibits recipients of federal funds from discriminating based on race. The court has said that the standard under Title VI is the same as under equal protection. There is thus the real possibility of an end to affirmative action for both public and private higher education in the United States.


A crucial question that often arises in copyright litigation, in determining whether there is “fair use,” is whether a work is “transformative.” In Andy Warhol Foundation for the Visual Arts v. Goldsmith, the court will consider what it means for a work of art to be “transformative” for purposes of fair use under the Copyright Act. If a work is transformative, it is much more likely to be deemed fair use and thus not a violation of the copyright law. This case involves the artist Andy Warhol and several images he created from Lynn Goldsmith’s photo of Prince. The New York City-based 2nd U.S. Circuit Court of Appeals ruled the images were not transformative. The case is important because this is the first time the Supreme Court has considered the application of fair use to visual art.

Discrimination in violation of state law based on free speech (and free exercise of religion)

In Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, the court considered whether a business owner, based on his religious beliefs, could discriminate on the basis of sexual orientation. The court did not reach the central issues of the case: Would it violate free exercise of religion or freedom of speech under the First Amendment to force Masterpiece Cakeshop to design and bake a cake for a same-sex wedding? Instead, the court found that members of the Colorado Civil Rights Commission had expressed impermissible hostility to religion.

The court returns to this issue in the new term with 303 Creative v. Elenis. Lorie Smith owns a graphic design firm and wants to expand her business to include wedding websites. She says that same-sex marriage violates her religious beliefs and does not want to design websites for same-sex weddings. As in Masterpiece Cakeshop, Colorado law prohibits such discrimination on the basis of sexual orientation.

The Supreme Court has granted review on the question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” It is notable that only the free speech question is presented, but obviously religious beliefs underlie this case.


One of the most important cases of the term involves the “independent state legislature theory.” This is the view that, under the Constitution, state legislatures control the election of members to Congress and that courts cannot be involved even in enforcing state constitutional requirements. Proponents of this theory point to Article I of the Constitution, which says: “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.”

The case before the court is Moore v. Harper. The Republican-controlled North Carolina legislature drew maps for the state’s congressional districts. A challenge was brought in North Carolina state court that the gerrymandering violated the North Carolina Constitution. Although North Carolina is almost evenly divided politically between Democrats and Republicans, the map likely would have given Republicans control of 10 or 11 of 14 congressional districts. The North Carolina Supreme Court found that the map violated the North Carolina Constitution and enjoined its use. A trial court adopted a new map.

The Supreme Court granted review on the question: “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.”

The stakes in this case are enormous. There is another provision of the Constitution that concerns choosing electors for the Electoral College to select the president of the United States: “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress: But no senator or representative or person holding an office of trust or profit under the United States shall be appointed an elector.” If the court were to adopt the independent state legislature theory, then it could conceivably mean that courts would be disempowered to enforce the federal and state constitutions and state laws in presidential elections.

Also, with regard to elections, the court will hear Merrill v. Milligan about the Voting Rights Act. A three-judge federal court panel found that the map drawn by the Alabama legislature for congressional seats violated Section 2 of the Voting Rights Act. Alabama’s population is 27% Black, but under the plan, Black voters have the power to elect their preferred candidates in only one of the state’s seven congressional districts. The Supreme Court, 5-4, stayed the district court’s order and granted review in the case. The court has significantly restricted the scope of the Voting Rights Act in its decisions in Shelby County v. Holder, which invalidated the requirement for preclearance for jurisdictions with a history of race discrimination in voting, and Brnovich v. Democratic National Committee, which made it more difficult to challenge voting requirements as discriminatory. In Merrill v. Milligan, the Roberts Court will consider the Voting Rights Act in the context of redistricting.

Indian law

The Indian Child Welfare Act establishes minimum standards for the removal of Native American children from their families and establishes a preference that Native children who are removed from their families be placed with extended family members or in Native foster homes. The issue in Haaland v. Brackeen is whether these provisions of the Indian Child Welfare Act violate the Constitution.

Specifically, the challengers argue that the act is impermissible commandeering of state courts in violation of the 10th Amendment. Also, there is the issue of whether equal protection is violated by the preference for placing Native American children with Native American families when there are adoptions or foster care placements.

In conclusion

In the October 2021 term, the court decided 58 cases with signed opinions after briefing and oral arguments. Nineteen, or almost one-third, were decided 6-3, with another nine being 5-4 decisions. Justice Jackson’s replacing Justice Breyer does not change the 6-3 ideological split. We will again surely see a term that advances the law sharply to the right.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book Worse Than Nothing: The Dangerous Fallacy of Originalism. 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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