And the far-reaching implications these decisions could have.
In its last term, the Supreme Court reshaped some fundamental aspects of American life. It recast our standard for reproductive rights, shifted our concept of the separation of church and state, and chipped away at the power states have to regulate firearms.
Believe it or not, some legal analysts think the stakes may be even higher this term. Beginning this week, the high court will rule on another batch of blockbuster cases, which have the potential to sway everything from affirmative action to the fate of free elections. Here’s a closer look at the cases to keep an eye on and what’s at stake when the Supreme Court swings back into action this week.
Moore v. Harper
The case:
One of the most high-profile cases being considered this term is Moore v. Harper. In it, Republican lawmakers in North Carolina have challenged a ruling by the state’s Supreme Court, which struck down the legislature’s heavily gerrymandered congressional map. The legislators assert that the court doesn’t have the authority to act on the issue, and have based their argument on a controversial legal theory called the “independent state legislature doctrine.”
The theory is an interpretation of two clauses in the U.S. Constitution, which give states the power to administer federal elections. It’s long been understood that the clauses, when giving authority to a state “legislature,” refer to a state’s general lawmaking process. But advocates of the “independent state legislature doctrine” insist that the Constitution strictly empowers a state’s legislature and those lawmakers alone.
Why does that distinction matter? Under this reading, state legislators would have the exclusive power to regulate elections, allowing them to flout their own state constitutions and rendering governors powerless to veto.
The big picture:
If the court were to endorse this doctrine, legal scholars say it could throw our upcoming elections into chaos. It would give lawmakers free rein to creatively carve up voting districts in ways that could potentially disenfranchise large swaths of the country and would provide a clear path for legislators to subvert the results of the next presidential race, NPR reports.
It would also endanger any federal-election provision embedded in state constitutions — from mail-in voting to same-day voter registration. And it could allow lawmakers to rewrite election rules — unchecked by their governors or state courts — to tilt federal races in the favor of their party.
“It is really a grave danger to American democracy to say that state legislatures are free from state constitutions to do whatever they want,” Vikram Amar, dean of the University of Illinois College of Law, tells NPR.
Nonetheless, four conservative members of the Court have indicated in previous opinions that they could embrace this theory, per The New York Times.
Merrill v. Milligan
The case:
On Oct. 4, the high court will hear Merrill v. Milligan, another high-stakes redistricting case. At the center of the dispute is Alabama’s proposed congressional map. The plan slices up the state into seven districts. Only one of those sectors would have a Black majority, although the state as a whole is 27 percent Black. A federal district court ordered the state to create a second majority Black congressional district, finding that the plan violated Section 2 of the Voting Rights Act. Section 2 bans local governments from limiting voting rights based on race — and also prohibits a practice known as “vote dilution.” (The practice refers to intentionally dispersing or lumping together minority groups to minimize their political power.)
But in February, the Supreme Court temporarily reinstated Alabama’s original map, while the issue is litigated. That means November’s midterms will be held in the districts, which a lower court had already deemed discriminatory against the state’s Black voters.
The big picture:
Voting rights advocates are deeply concerned that the court could deal yet another blow to the Voting Rights Act, a landmark piece of federal legislation enacted at the height of the civil rights movement. A ruling could gut Section 2, which has for decades impeded attempts at racial gerrymandering.
“If this comes to pass, it will be almost impossible to prove that a state has gerrymandered its electoral districts to disempower minority voters, or for a court to order that its map be redrawn,” writes the author Linda Greenhouse, who teaches at Yale Law School.
Students for Fair Admissions v. President and Fellows of Harvard College
and Students for Fair Admissions v. University of North Carolina
The cases:
Two cases will be heard at the end of October that challenge the use of affirmative action in higher education.
In the first case, Students for Fair Admissions v. President and Fellows of Harvard College, Harvard is being sued for allegedly discriminating against Asian American applicants. The plaintiffs argue that Asian American students are far less likely to gain admission to school than their similarly qualified Black, white, and Latino peers. And that the university’s policy of factoring in race when evaluating applicants violates Title VI of the Civil Rights Act, which bans racial discrimination in organizations that get federal funding.
In Students for Fair Admissions v. University of North Carolina, UNC is also being sued for violating Title VI as well as the Equal Protection Clause of the 14th Amendment, which applies to public schools. Plaintiffs in that case say UNC has discriminated against both white and Asian applicants, because of its policy of admitting students considered underrepresented minorities.
The big picture:
If the Supreme Court were to rule against Harvard or UNC, it could mean the end of affirmative action in higher education. To accomplish this, the court would have to overturn decades of precedent (which considering it overruled Roe, doesn’t seem to pose much of an obstacle).
Affirmative action was upheld in the 1978 landmark case, Regents of the University of California v. Bakke, and has been affirmed time and time again, including in 2003 in Grutter v. Bollinger. In that case, the court ruled colleges could consider race in its admissions decisions because creating a racially diverse student body enriches the academic experience and better prepares students to participate in the workforce and society.
Sackett v. EPA
The case:
A long-running dispute between the Environmental Protection Agency and an Idaho couple will be considered in court at the start of the month. The Sacketts have been fighting to build a home on their wetlands property for years, but have been barred by the EPA who say that it would violate the Clean Water Act and the couple would need to obtain a federal permit.
Passed in 1972, the Clean Water Act bans a wide range of pollutants from being dumped into the “waters of the United States.” At the center of Sackett v. EPA is how that term (“waters of the U.S.”) should be interpreted. The Court attempted to define it in a 2006 case called Rapanos v. United States, but the Justices couldn’t reach a majority decision. Justice Antonin Scalia proposed a narrow interpretation that would exclude certain wetlands, and the Sacketts argue that his definition should be adopted.
The big picture:
What’s at stake is clearly more than whether a house can be built in Priest Lake, Idaho. Conservationists worry that if the Sacketts succeed, by some estimates, 90 percent of federally regulated waterways in America would lose protections, the Washington Post reports.
United States v. Texas
The case:
Last year, the Department of Homeland Security issued a memo ordering authorities to target only those undocumented immigrants who pose a threat to national security or public safety. The agency said it doesn’t have the “resources to apprehend and seek the removal” of the more than 11 million undocumented people in the U.S. The policy change was also an attempt to roll back the aggressive approach to immigration arrests used by the Trump Administration.
Texas and Louisiana sued, saying the new guidelines violated immigration law. A federal district court agreed, blocking use of the policy in the U.S., pushing the Biden Administration to appeal the decision to the Supreme Court.
The big picture:
The case could determine just how much power the executive branch has in setting its own immigration agenda and policies.
303 Creative v. Elenis
The case:
Lorie Smith, the owner of a graphic design business in Colorado, wants to expand into creating wedding websites — but only for straight couples. Smith says she opposes gay marriage on religious grounds, and wants to make that clear by posting a note about her beliefs on her website. Colorado’s Anti-Discrimination Act bans businesses open to the public from discriminating based on sexual orientation — or announcing the intent to do so. Smith has challenged the law in federal court, arguing that it violates her First Amendment rights.
The big picture:
If this case sounds awfully familiar, it’s because just four years ago a very similar dispute was heard in the high court. That case (Masterpiece Cakeshop v. Colorado Civil Rights Commission) centered on a Colorado baker who refused to create a wedding cake for a gay couple. The baker prevailed, but the court handed down a narrow ruling and side-stepped the issue of whether or not the plaintiff’s right to freedom of speech was violated. (The bakery argued that its cakes were works of art that should be protected under the First Amendment.)
In 303 Creative, however, the case will come before a much more conservative court, one which may choose to tackle the First Amendment issue head-on. A sweeping decision could unwind discrimination laws in states across the U.S.
Haaland v. Brackeen
The case:
A 1978 law called the Indian Child Welfare Act (ICWA) sits at the center of Haaland v. Brackeen. The law prioritizes placing Native American children removed from their parents with extended family members or other Native families. Before the ICWA was passed, hundreds of thousands of Native children were taken from their homes and cut off from their culture — a practice that activists have argued amounted to cultural genocide. By the 1970s, a significant portion of Native children were being adopted by white families, a trend that was viewed by some as an extension of this forced assimilation.
White families who have tried to adopt Native children, along with Texas, Louisiana, and Indiana, are challenging the law. They argue that it’s racially discriminatory and keeps Native children from being placed in the best care.
The big picture:
The Cherokee, Navajo, and other tribes have argued that the law is about tribal membership, which they say is a political classification, not a racial one. That rationale underpins many laws related to tribal sovereignty.
But if the Supreme Court were to reject this, those laws could be challenged, too, on the grounds that they’re also discriminatory. Advocates also say that if the ICWA were to fall, it would be a major blow to tribal political autonomy, TIME reports.
