What’s at stake: US Supreme Court 2022-2023 Term
The Supreme Court term begins on October 3, 2022 with a new associate justice on the bench. Justice Ketanji Brown Jackson, President Biden’s nominee and the first Black woman on the highest court, replaced Justice Stephen Breyer who retired last year. Justice Jackson joins the conservative majority and will be among the nine justices hearing what already promises to be an extremely significant docket including cases on voting rights, affirmative action, and immigration, among other hot-button issues.
We will be updating this document as the Supreme Court adds cases to its docket — check back regularly!
Last updated October 2022.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Students for Fair Admissions, Inc. v. University of North Carolina
Initially, the Supreme Court indicated these two affirmative action cases would be argued and considered together, since they concern similar questions. But after Justice Ketanji Brown Jackson, who until recently served on Harvard’s board of overseers, was confirmed, the Court announced it would hear the cases separately, though on the same day, allowing Justice Jackson to participate in the UNC case.
Despite the fact that for 40 years the Supreme Court has said that educational institutions are allowed to take race into account as one factor in admission decisions with some caveats, Students for Fair Admissions (SFFA) sued both Harvard University and the University of North Carolina (UNC) for doing just that.
SFFA alleges that Harvard’s admissions policy discriminates against Asian Americans in violation of Title VI of the Civil Rights Act of 1964. Although Harvard admits that it does consider race as one factor in admission, they assert that their policy strictly adheres to rules for race-based admissions laid down in the Supreme Court’s 2003 Grutter v. Bollinger decision, which has guided universities in their efforts to maintain a qualified and diverse student body. Both the district court and the First Circuit ruled for Harvard.
SSFA argues that the admissions policies of the University of North Carolina discriminate against White and Asian American applicants, in violation of both Title VI of the Civil Rights Act of 1964 and the Constitution’s 14th Amendment (unlike Harvard, UNC is a public university and covered by the 14th Amendment’s equal protection guarantee). Like Harvard, UNC admits that it considers race among many other factors in admission decisions but follows the requirements for race-based admission set forth in Grutter. After a seven-year legal battle in the district court, the UNC policy was upheld — a decision affirmed by the Fourth Circuit.
Oral argument: October 31, 2022
Why we’re watching: These cases could decide the fate of the precedent set in the Supreme Court’s Grutter decision. NCJW supports and works for equal opportunity for all in the public and private sectors through policies and programs that support diversity, equity, and inclusion, such as affirmative action.
303 Creative LLC v. Elenis
Lorie Smith, the owner of 303 Creative, a Colorado graphic design company, wanted to begin designing wedding websites but not for same-sex couples. Her plan to post a notice on her website to that effect violated a Colorado law that prohibits businesses from discriminating on the basis of sexual orientation, among other characteristics, and from publishing any communication that says or implies that the business excludes certain customers or patrons. When Smith sued claiming that the law violated her artistic free speech rights under the First Amendment, the district court and, later the Tenth Circuit, sided with the state of Colorado. The Supreme Court will decide whether a public accommodation law that prohibits or requires communication violates an artist’s right to free speech and expression.
Oral argument: December 5, 2022
Why we’re watching: This case could allow business owners who are engaged in expressive activities to claim religious-based exemptions from laws protecting civil rights. NCJW believes that all forms of discrimination must be eliminated and supports the enactment, enforcement, and preservation of laws and regulations that protect civil rights and individual liberties for all.
US v. Texas
In September 2021, the Secretary of Homeland Security (DHS) Alejandro Mayorkas issued Guidelines for the Enforcement of Civil Immigration Law, a memo directing immigration officials to prioritize the arrest and deportation of unlawfully present individuals and groups who are a threat to national security, public safety, or border security. Texas, along with Louisiana, sued DHS over the guidance. A Texas district court judge ruled that the memo was arbitrary and violated the Administration Procedure Act, a 1946 law that stipulates the ways in which federal agencies may make and enforce regulations, suspending the memo’s application nationwide. This decision was affirmed by the Fifth Circuit. On appeal, the US asked the Supreme Court to halt the district court’s ruling. In a 5-4 decision, they declined but did decide to hear arguments in the case. It is highly unusual for the Court to step in regarding a departmental guidance memo.
Oral argument: November 29, 2022
Why we’re watching: This case could restrain the executive branch’s ability to issue guidance concerning immigration policy or federal policy writ large. NCJW supports comprehensive, equitable, and humane immigration policies and practices.
Haaland v. Brackeen
In 1978, Congress passed the Indian Child Welfare Act (ICWA) which was a response to the fact that one-quarter to one-third of Native American children were placed in adoptive or foster families, primarily with non-Native families. The practice was documented to have harmed Native children and threatened the future of Native tribes. The Act provides for the welfare of Native children, requiring an active effort to provide services to at-risk families before removing a child and, in the event that a child is sent elsewhere, the Act preferences placing the child a member of their extended family or with a member of the child’s tribe. Three non-Indian parents in Texas sued in district court which found the ICWA unconstitutional. A three-judge panel of the Fifth Circuit unanimously reversed the lower court decision, but the full Fifth Circuit issued a divided opinion, leading to the Supreme Court appeal. Among the issues before the Court is whether the families have standing to bring the suit since they suffered no injuries and whether Congress had the authority to pass the ICWA.
Oral argument: November 9, 2022
Why we’re watching: This case could have broader implications connected to the status and well-being of Native Americans. NCJW seeks to improve the quality of life for women, children, and families and support laws and policies like the Indian Child Welfare Act, one of our nation’s key tools to protect the rights and culture of American Indian and Alaska Native children and families.
Merrill v. Milligan
In redrawing congressional districts after the 2020 Census, Alabama created one majority-Black district but divided other clusters of Black voters among the other six districts. A group of Alabama voters and organizations sued, alleging that the new congressional map diluted the power of Black voters to elect a candidate of their choice — a violation of Section 2 of the 1965 Voting Rights Act, which bars racial discrimination in voting policies. A panel of three district court judges agreed and ordered the state to draw a new map with a second majority-Black district. Instead, the state appealed to the US Supreme Court, which in February 2022 stayed the lower court’s decision. Alabama has argued that drawing a majority-minority district is a form of racial discrimination and that all consideration of race should be prohibited.
Oral argument: October 4, 2022
Why we’re watching: The outcome of this case could decide the fate of Section 2 of the Voting Rights Act. NCJW works for election laws, policies, and practices to eliminate obstacles to the electoral process so that every vote counts and can be verified.
Moore v. Harper
This case will test the ‘independent state legislature theory,’ a controversial and extreme interpretation of election law that would give state legislatures nearly exclusive power to regulate federal elections. The theory would bar state courts or even governors from intervening in issues of federal election law and administration. The case comes out of North Carolina, where a majority-Republican state legislature approved a gerrymandered redistricting map to assure a Republican supermajority among the state’s 14 congressional seats. A 2019 Supreme Court ruling (Rucho v. Common Cause) held that partisan gerrymandering was beyond the reach of federal courts, so voters objecting to the partisan map sued in state court. In February 2022, the state supreme court struck down the map, finding it to be intentionally partisan, and ordered three court-selected experts to draw a new map. Republican state lawmakers then asked the US Supreme Court to reinstate their map, citing the independent state legislature theory. Although the US Supreme Court declined to reinstate the gerrymandered map, they did agree to hear the case.
Oral argument: December 7, 2022
Why we’re watching: This dangerous and extreme concept could provide state legislatures exclusive and near-absolute power to regulate federal elections. NCJW works for election laws, policies, and practices that ensure safe, easy, and equitable access to the ballot.