The Supreme Court is back. The nine justices will be hearing several blockbuster cases this term and weighing in on everything from affirmative action to election districts and even a case that involves Californians’ access to bacon.
“Last term was certainly a very big term with big cases,” Zack Smith, a legal fellow at The Heritage Foundation, says, adding that he suspects this “term will shape up to be an equally as important term in many ways.” (The Daily Signal is Heritage’s multimedia news organization.)
Smith and GianCarlo Canaparo, a senior legal fellow at The Heritage Foundation, join the show to discuss the big Supreme Court cases to watch in the coming months.
Listen to the podcast below or read the lightly edited transcript:
Virginia Allen: The Supreme Court is back in session, and here with us to give a rundown of the big cases are GianCarlo Canaparo and Zack Smith. They are legal experts here at The Heritage Foundation and hosts of the “SCOTUS 101” podcast.
GianCarlo, Zack, welcome back.
Zack Smith: Thank you for having us.
GianCarlo Canaparo: Likewise, thanks.
Allen: So first, can you give us the 30,000-foot view of this term? How many cases are the justices going to hear? How long does the term run?
Canaparo: Sure. So, we don’t know quite how many cases they’ll hear yet because they’re still accepting new cases for the second half of the term, but historically, this court takes a little more than 70—is that right, Zack, 70 cases a term?
Smith: Thereabouts, yeah.
Canaparo: Yeah. And the term runs from the beginning of October, usually to the last week of June.
Allen: OK. And they’ll take a little bit of a break in there over Christmas, a month or so?
Smith: That’s right. And the number of cases that this court grants is historically a little bit on the low side, but for what they lack in numbers, they’re certainly making up for in terms of the impact that many of their decisions are having. …
Last term was certainly a very big term with big cases, the Dobbs [v. Jackson Women’s Health Organization] case, among others, and I suspect this term will shape up to be an equally as important term in many ways.
Allen: Interesting. All right, so GianCarlo, you joined us on Monday for our “top news” edition at The Daily Signal just to talk briefly about some of the big cases. I want to dive a little bit deeper into some of the big ones that are on the docket. And starting with that affirmative action case that you mentioned. If you would, for those who didn’t catch the show on Monday, give us a brief summary of what this case is and what’s in store here.
Canaparo: Sure. So the cases, there’s two cases, and they raise the same issues, essentially, against Harvard and [the University of North Carolina].
And what we found out during Harvard’s trial is that Harvard discriminates against Asian and white applicants in order to create extra spots that they give to black and Hispanic applicants. And the way they do it is they not only give boosts in the academic admissions process to people who are black or Hispanic, but they will mark Asian students down on a personality rubric.
So they will say Asian applicants don’t have good leadership skills, or don’t have good personal skills, or sort of charisma, or whatnot, very subjective. And they actually did the same thing many years ago against Jewish applicants to keep Jewish applicants down. But they discriminate against Asians in order to create what they call racial equity across classes to give boosts to black and Hispanic students.
And historically, obviously, racial discrimination of any kind has not been tolerated in the law, but the Supreme Court many years ago said, “Look, colleges get a special dispensation because we believe that racial diversity is good, and so let the colleges do what they want.” But they can’t create quotas. They have to use it only as part of a holistic approach.
But the court in that case said, “But we anticipate that this kind of thing is going to end in 25 years.” We’re not quite at 25 years, but it looks like the court is seriously considering ending the use of race in admissions because, I mean, what we’ve seen from the Harvard cases, you can pretend that these sort of things are benign or good, but they’re not. I mean, racial discrimination for one group’s benefit is for another group’s detriment.
And on top of all of that, what we’ve seen is that these racial groups are completely arbitrary. For instance, when Harvard says “black students,” it draws no distinction between, say, wealthy Nigerian immigrants and the poor descendants of slaves. It draws no distinction between a multiracial person who grew up in Harlem and a multiracial person who grew up in the Hamptons.
It’s arbitrary in the extreme, but there is such a cultural push right now to use race this way, but it does not comport with the 14th Amendment, which guarantees equality on the basis of race for everyone, and that’s the heart of the issue.
Smith: And one of the interesting things about this case is these cases were originally consolidated, they were combined for argument, but when Justice Jackson, Ketanji Brown Jackson, joined the court, they were actually separated out again. They’re going to be argued separately.
And the reason for that is Justice Jackson, she was on the Board of Overseers for Harvard University so she has recused herself from hearing the Harvard case. And I suspect there were separated out so that she could still participate in the UNC case.
Allen: Oh, that is interesting. Any predictions on what’s going to happen?
Canaparo: My sense is that the court will probably say, in some way, that at least the way that Harvard and UNC are using race is not lawful. You could take a narrow view and say, “Look, what you’re doing is essentially creating quotas, which we said was unlawful.” And you could preserve the old precedence. Or you could … go a step further and strike down the use of race.
Now, a number of justices have made their positions clear in the past, Clarence Thomas is not OK with the use of race this way. The chief justice isn’t either. I think we can safely say Justice [Samuel] Alito, from past decisions, also is not on board.
Smith: Well, and I think, from the 40,000-foot perspective, I highly doubt the justices would’ve taken these cases onto their calendar unless they were seriously interested in either substantially revisiting those prior precedents or potentially overturning them all together.
And so, unless you disagree, GC, I would think at the end of this term, the use of affirmative action in higher education will look substantially different than it does today.
Canaparo: Right. But a point to make, though, is that whatever the court does, it is not going to be the end of this because the universities like Harvard are going to try to find a way around it.
The court will draw a line, probably a new line, probably a line that people who care about the colorblind application of law like, but the universities will constantly push that line. And so it’ll be only the beginning of a new sort of fight over the use of race.
Allen: OK, wow. So we’re going to see this probably in the courts again.
Canaparo: Oh, for sure.
Allen: Interesting. All right. Well, I do want to ask you-all about a couple different cases that are involving elections, more or less. So there’s … Moore v. Harper and Merrill v. Milligan. In fact, the justices heard arguments on Tuesday for the case Merrill v. Milligan. And these cases have to do with redistricting. What exactly are the Justices deciding in these cases? How does it involve elections?
Smith: Yeah, so, these are very interesting cases. You mentioned the Merrill v. Milligan case, that involves a challenge to the congressional districts that Alabama drew after the 2020 election. Essentially what the plaintiffs in that case are arguing is that Alabama violated Section 2 of the Voting Rights Act.
Now, Section 2 of the Voting Rights Act essentially prohibits a state from introducing a rule, practice, or procedure that would discriminate against someone based on their race. It makes sense, it’s been applied in the redistricting context in many, many instances in the past, but there have been problems.
The test that lower federal courts are supposed to use in deciding whether a Section 2 violation has occurred is very unclear. It’s led to confusion. It’s led to subjective applications, some argue.
And so, essentially, in this case, Alabama has seven congressional seats. They have seven representatives in the House. And when they drew their districts, they created one majority-minority district. There was one district that had a majority of black voters in it.
And so plaintiffs sued the state and said, “Well, you should actually have two majority-minority districts, not just one. And your failure to create this second district actually violates the Voting Rights Act.”
A lower federal court agreed with the plaintiffs, ordered Alabama to draw that second majority-minority district. But Alabama appealed to the Supreme Court, essentially saying that, as the Voting Rights Act was interpreted by this lower federal court, it would actually require them to violate the equal protection clause of the 14th Amendment because it required them to focus on race as the predominant consideration in redistricting to the exclusion of almost every other traditional redistricting factor, keeping communities together, making sure that districts are compact.
And so I think we saw a lot of this play out at the oral arguments where a lot of the justices focused on what the appropriate tests should be, whether Alabama should in fact be compelled to draw this second majority-minority district, if it would require them to focus on race to the exclusion of these other factors.
And so, again, this will be a very important decision going forward and hopefully the court will really provide guidance to legislators who are having to draw these districts because right now, I think there’s a lot of confusion on the ground.
Legislators feel like they’re stuck between a rock and a hard place, that no matter what they do, they’ll be sued and accused of discrimination. And so I suspect coming out of this case, we will hopefully get a little more clarity in that area.
Now, the second case you mentioned, Virginia, was Moore v. Harper. This is an interesting case out of North Carolina. It involves the so-called independent state legislature theory.
And basically what happened in North Carolina is the state Supreme Court there declared some of the legislative maps the Legislature drew as unconstitutional under the state constitution, as being an illegal partisan gerrymander.
So the question here is, the U.S. Constitution, the federal Constitution, places predominant authority in state legislatures to make election rules and procedures. And so the court’s essentially being asked to resolve what role these other state branches of government can and should play, whether courts, state courts can overturn the decisions of the state legislature; whether governors, other executive branch officials can step in and play some role, too.
And so, again, this will have very important, very lasting consequences in the lead-up, not only to the, probably not for the midterms coming up, but certainly in the lead-up to 2024 and subsequent elections.
Allen: Yeah, we’re certainly going to keep our eyes on those cases. That’s going to be fascinating to see how those play out.
Now, GianCarlo, I know you had mentioned a very significant case revolving sort of environmental issues in a way, Sackett v. Environmental Protection Agency. Explain a little bit about what is being decided and how this case will not only impact this one family, but the American people.
Canaparo: Yeah, sure. So I’ll start, and the Sacketts have an interesting story. They have been in this litigation for about 10 years, a little more than 10 years.
Smith: Actually, I think it’s closer to 16 or 17 years, GC.
Canaparo: Actually, you’re right. You’re right, it is. It has been going on for a long time.
Allen: That’s a long battle.
Smith: It’s hard to believe this saga actually started all the way back around 2007, I think.
Canaparo: So what the Sacketts wanted to do, they bought a piece of property by Priest Lake in Idaho, and they wanted to build a house on it. And the federal government came along and said, “No, sorry, you can’t because your piece of property affects navigable waterways and so it is governed by the Clean Water Act.”
And the Sacketts looked around at their property and said, “Well, our property is dry. It’s not on the lake. It’s not next to the lake. There’s no water on us, there’s not so much as a creek. What do you mean navigable waterways?”
And the federal government said, “Well, look from your property, if you cross the road, there’s a little ditch, and that ditch connects down a little ways to a wetland, and that wetland connects to a creek, and that creek connects to Priest Lake.”
So you have what the Supreme Court said, or what a plurality of the Supreme Court once said, not even, let me cut that back, take that back.
Smith: You had Justice Anthony Kennedy essentially say this.
Canaparo: Right. So you have what Justice Anthony Kennedy, and Justice Anthony Kennedy alone, once called a significant nexus to a navigable waterway, and so the federal government can regulate you even to the point of not letting you build.
Now, this all comes from a case called Rapanos. The Supreme Court was trying to figure out what the heck do the waters of the United States mean in the Clean Water Act, and the justices split all different ways, but for very technical reasons, Justice Kennedy’s solo opinion became the controlling opinion. And he said, “It just means any land can be governed by the Clean Water Act, provided it has a significant nexus to a navigable waterway.”
That has spawned, as you can imagine, all sorts of chaos. Nobody knows what on earth that means. The government naturally has taken a maximalist approach and said—
Canaparo: Shocking, Right? “If you buy a piece of, I don’t know, desert in the middle of Death Valley, it is a navigable waterway, we will regulate it.” And people have said, “Look, this is just not workable.”
The Supreme Court heard oral arguments earlier this week and seemed to agree this is not workable. But where they end up drawing the line, it’s really going to be hard to tell. But this is another case in a sort of long line of cases where the federal government has taken extraordinary maximalist positions on its power.
And the Supreme Court has, in several cases this last term and the term before, said, “Look, no, you can’t do that.” And I think we’re going to get some kind of decision like that.
I’m still waiting for the federal government to learn its lesson. I don’t think it’s going to learn that lesson anytime soon. But as long as the Supreme Court is there to remind them to behave themselves, at least things are moving in the right direction.
Smith: Well, and this case was brought by our friends over at the Pacific Legal Foundation. Damien Schiff argued it for PLF, did a phenomenal job, and they’ve really been involved on this by pushing back against this government overreach for a long, long time. So kudos to the folks over at PLF for taking on this case.
Allen: This is one of those cases where you’re really not sure whether to laugh or cry. I mean, it’s so bizarre. It’s been going on for so long. At the same time, to see that kind of government overreach, to be able to tell a family, “You can’t build a house on the land that you bought with your hard-earned money.”
Allen: All right, so what are one or two other cases that we should be paying attention to this term?
Smith: I think one of the other big cases is the 303 Creative case. This is the follow-up to the Masterpiece Cakeshop case. It’s basically a website designer in Colorado is challenging that state’s supposed nondiscrimination laws, which would require her to essentially make a website for a same-sex wedding, even though she holds deeply held religious objections to same-sex marriage.
Now, one of the interesting things about this case, even though it has religious liberty implications, religious liberty undertones, it’s actually being brought as a free speech case.
And that’s interesting because, I’m curious to hear your take, GC, but in the Masterpiece Cakeshop case, I think there was some hesitation, some confusion. Does cake decorating, does that qualify as speech? Is it an act? What is this?
I think in this case, because it is a website being designed, it’s much more clearly and unambiguously a free speech issue. And so it much more clearly tees up that issue. And I suspect we may get even more clarity surrounding the interplay between free speech and these nondiscrimination laws than we did with the Masterpiece Cakeshop case.
So this is a very important case and I’m certainly watching it very closely.
Canaparo: Yeah, one that I will add is what I like to call “the bacon case,” the National Pork Producers [Council] v. Ross. Now, if you live anywhere in the country outside of California, you know that California is trying to regulate the way you live, even though you don’t live there. They keep passing all sorts of laws—
Smith: Again, shocking.
Canaparo: Shocking, I know. They keep passing all sorts of laws that have nationwide effects, largely because California’s economy is so huge that when California puts restrictions on what can and cannot be sold or how in its state, a lot of companies are sort of forced to comply because they can’t create separate markets for different states in the country.
So California passed a law that said no pork can be sold in this state unless the pigs are raised in sort of these sort of utopian animal rights conditions.
Smith: They want the pigs to be living in very cushy conditions.
Canaparo: Right, right, right.
Allen: To have the best life possible before they’re slaughtered.
Canaparo: And that is noble and whatnot.
Allen: Sure, absolutely.
Canaparo: Right. But also, it’s not how pork is produced anywhere in the country.
So pork producers, the way the market works is they sell their pork to distributors, and the distributors sell their pork all over the country. … So the pork producers obviously can’t create market-specific pork. They have to sell to the distributors. The distributors are not going to create separate markets.
So the pork producers are in a bind. They essentially have to conform to California’s rules, which burden pork producers all over the country.
So they have sued and said, “Look, there’s something in the Constitution called the commerce clause, and the commerce clause says that Congress gets to regulate interstate commerce. And a doctrine called the dormant commerce clause, sort of the inverse of that, which means, only Congress gets to regulate interstate commerce, the states don’t get to. What California is doing is regulating interstate commerce, so you can’t do that.”
We shall see. It’s an interesting case because the dormant commerce clause is not really a favorite doctrine of conservative justices who look at the Constitution and say, “Well, it’s not really there. We sort of need to interpret this very narrowly.”
At the same time, there are really interesting implications for, say, the abortion context, because let’s say Texas says, “You may not sell abortifacients into Texas,” or, “You cannot perform, sell abortifacients into Texas unless they have met certain testing requirements or whatnot.” So you’ve got an interesting issue here that sort of cuts across both ways, both political aisles.
So there you have it. It’s a fascinating case, we’ll see what happens.
Allen: It obviously involves a lot more than just bacon, fascinating. Now, the last term was a blockbuster term. It was wild to see so many big cases, of course, most notably the overturning of Roe v. Wade with the Dobbs case. Is this term going to in any way be quite as big, do you think, as the last one?
Canaparo: Well, my sense—and Zack, feel free to disagree—is that, I mean, there’s nothing bigger than the overruling of Roe v. Wade. The end of affirmative action programs, racial discrimination in education or elsewhere would be fantastic. But again, Roe v. Wade was Roe v. Wade, and Dobbs was the end of it, and that was enormous.
Smith: … I certainly agree with that, GC, that Dobbs is an enormous case. It was a huge win for the Constitution, really, in a lot of ways.
But look, I think a lot of the cases this term may have a more subtle, but equally as important impact on the day-to-day lives of many Americans, particularly the election cases—Moore v. Harper, Merrill v. Milligan.
The dormant commerce clause case, the bacon case, as you called it, GC, can have wide-ranging implications on the powers of states. You mentioned it could also impact the abortion debate and what states can do in that area, but it can impact many, many other areas as well.
And so I suspect, last term was a huge, huge term, but in many ways, I think this term will also be very, very important as well.
Allen: And you-all are going to be breaking down so many of these cases continually on your podcast “SCOTUS 101.” Tell us, when it comes out, how we can find it, how we can follow you guys?
Canaparo: Well, it comes out pretty much every Friday that the court is in session, and you can find it anywhere you listen to podcasts.
Smith: And please leave us a five-star rating.
Allen: Excellent. GianCarlo, Zack, thank you guys so much for joining. I really appreciate your time today.
Canaparo: Our pleasure.
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