Supreme Court Preview: October Term 2022

Every year, the first Monday in October ushers in a new Supreme Court Term. Hot off the heels of a 2021-2022 term that saw its share of blockbuster rulings, the Court is again poised to tackle controversial cases involving environmental regulation, voting rights, free speech, affirmative action, and the potential liability of social media companies and the scope of Section 230.

•  Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina concern the use of race in the college admissions process. Plaintiffs, Asian American students, argue that Harvard and UNC’s admission policies are unconstitutional because they expressly consider race, discriminate against Asian American applicants, and involve racial balancing. In prior cases, the Supreme Court has allowed the use of race in the admissions process as one factor among many. In 2003, in Grutter v. Bollinger, moreover, the Court stated that “race-conscious admissions policies must be limited in time,” and imposed a somewhat arbitrary deadline of 25 years. From the Court’s grant of review in these cases, it looks like the Court may believe that time limitation has come early. 

• In Sackett v. EPA, the Court will consider whether the Environmental Protection Agency can extend the Clean Water Act to any wetland that, in combination with other wetlands in the same watershed, significantly affects navigable water. At oral argument, a majority of justices seemed to agree with the government that some wetlands were covered by the CWA, but many of them seemed concerned that the EPA’s vague test meant that ordinary homeowners could be covered by the CWA without ever knowing it. With six textualists on the Supreme Court, it is likely a majority will breathe life back into the statutory language “waters of the United States,” and limit the EPA’s jurisdiction, but how much, and which test the Court will use remains to be seen.  

• National Pork Producers Council v. Ross asks whether a state may enact laws with primarily out-of-state effects. California’s Proposition 12 forbids the sale of pork in California unless raised under certain conditions, conditions that are atypical in the industry, including the requirement that sows be given 24 square feet of space. The Pork Producers Council argues that the vast majority of pork consumed in California (99.87%) is raised outside of that state and, thus, the purpose of Proposition 12 is to restructure the industry, telling farmers in other states how to farm. Under the so-called dormant Commerce Clause, the Supreme Court has sometimes prohibited states from enacting laws with extraterritorial effects due to concerns about balkanization. 

• 303 Creative LLC v. Elenis* asks whether a state may compel the speech of commissioned artists. The Supreme Court has said laws that prohibit discrimination in public accommodations apply to conduct but are constitutionally suspect when they target speech. Nevertheless, the Tenth Circuit Court of Appeals upheld Colorado’s public-accommodation law despite finding that the law compels a website designer named Lorie Smith, to create speech (a same-sex wedding website) contrary to her religious convictions. The Tenth Circuit held that because Smith’s websites are unique, Colorado has a compelling interest in providing access to Smith’s designs. Smith argues that the Free Speech Clause protects her right to remain silent. She argues that she gladly serves everyone, including LGBT customers, and only makes referrals when the message requested is one with which she disagrees. 

• In Merrill v. Milligan, the Supreme Court will consider whether Alabama’s 2021 redistricting plan for its seven house seats violates Section 2 of the Voting Rights Act, which bars discrimination on the basis of race. Plaintiffs argue that the plan is unconstitutional because 27% of Alabama residents are Black, and Alabama should have created two majority-Black districts instead of just one. Alabama argues that Section 2 does not impose an affirmative obligation upon a state to draw a majority-minority district if doing so would require the state to engage in “race-based sorting” of voters. At oral argument, the justices seemed inclined to add clarity to the Court’s 1986 decision in Thornburg v. Gingles, which requires that a challenger under Section 2 show that a minority group is sufficiently large and compact to form a majority, possibly by holding that a challenger’s map showing additional majority-minority districts must be configured in a reasonable way.

• Moore v. Harper asks to whom the Constitution gives the power to regulate federal elections: the state legislatures or the state courts. The Election Clause provides the “Manner of holding Elections for Senators and Representatives … prescribed … by the [State] Legislature.” Plaintiffs thus contend that state legislatures have the constitutional authority to regulate elections and that the North Carolina courts erred by substituting a judicially-created federal election map for the one enacted by the North Carolina legislature.

• In a pair of grants, the Supreme Court agreed to look at the liability of social media companies and the scope of Section 230 of the Communications Decency Act. That statute generally protects internet platforms from liability if content is generated by third parties. In Gonzalez v. Google, the family of an American woman killed in a Paris ISIS attack filed suit against Youtube (owned by Google), alleging that the company recommended ISIS videos to users. The Supreme Court agreed to review the question of whether Section 230 shields platforms when algorithms recommend third-party content. A second question in Twitter v. Taahmeh (from the same underlying Ninth Circuit opinion) involves whether internet platforms like Twitter, Facebook, and Google may be held liable for aiding and abetting terrorism based on ISIS’s use of their platforms.

*Erin Hawley serves as counsel for the petitioner in 303 Creative LLC v. Elenis.