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Another Supreme Court year to remember?

A new term, a new justice, and huge issues at stake


People gather outside the Supreme Court building as the court begins its new term on Oct. 3. Associated Press/Photo by J. Scott Applewhite

Another Supreme Court year to remember?
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After last year’s blockbuster cases, involving everything from abortion, to guns, to climate change, one could forgive the Supreme Court for reviewing less controversial cases this time around. Yet the Supreme Court’s 2022 term promises to be an important one, with a new justice on the bench, Justice Ketanji Brown Jackson, and cases involving significant disputes over environmental regulation, voting rights, free speech, and affirmative action.

First, in a case called Sackett v. EPA, the Supreme Court might finally rein in the Environmental Protection Agency’s aggressive interpretation of the Clean Water Act. That statute limits EPA’s jurisdiction to “navigable waters,” yet the EPA has interpreted the statute to apply to any wetland that, in combination with other wetlands in the same watershed, might significantly affect a navigable water. This broad and indeterminate test means ordinary homeowners may not know whether their property is covered—a concern expressed by several of the justices this week at oral argument.

A case called National Pork Producers Council v. Ross involves whether states may validly pass laws to affect conduct taking place outside the state. California’s Proposition 12 forbids the sale of pork in California unless raised from a sow in conformance with certain housing standards, such as 24 square feet of space. Pork producers argue that over 99 percent of the pork consumed in California is from out of state and that Proposition 12 is unconstitutional because it will transform the national pork industry. They argue that just as Iowa cannot prohibit marijuana use in California, neither may California tell Iowans how to farm. The Supreme Court has historically looked skeptically at laws that target primarily out-of-state conduct. The concern is that such regulations could encourage balkanization and lead to conflicting state laws.

The Ross case has significant implications for other laws that target out-of-state conduct, like the recent California law that bans the sale of gas-powered vehicles. And while some far-left pundits have suggested that a win for California bodes poorly for state laws that restrict the sale of abortion pills, those abortion laws regulate in-state conduct (abortion), and promise none of the burdensome intrusions on interstate commerce a law like Proposition 12 clearly does.

Two big cases challenge the use of race in the college admissions process. Plaintiffs in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina argue that Harvard and UNC’s admissions policies, which expressly consider race as a factor in the admissions process, violate the Constitution and civil rights laws because they balance the class based on race and discriminate against Asian American applicants. Plaintiffs also argue that workable alternatives to achieving diversity—other than considering race as a factor in the admissions process—exist.

The Supreme Court has called compelled speech the most odious form of First Amendment violation.

Further, in a 2003 case called Grutter v. Bollinger, the Supreme Court indicated that “race-conscious admissions policies must be limited in time,” and that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary.” Given that the Supreme Court decided to review these two cases, it appears that a majority of the Supreme Court might think that time has come a few years early.

In Moore v. Harper, the question is whether a state court may overrule the state legislature’s regulations governing federal elections. The Election Clause of the Constitution states that the “Manner of holding Elections for Senators and Representatives” should be determined by the state legislature. Plaintiffs thus argue that the Constitution gives to state legislatures the authority to regulate elections and does not allow state courts to devise their own election standards. However, the North Carolina courts substituted a judicially-created federal election map for the one enacted by the North Carolina legislature, teeing up the question as to whether state courts may override the election rules prescribed by state legislatures consistent with the Election Clause.

Christians will be particularly interested in the case known as 303 Creative LLC v. Elenis, which presents the question whether Colorado may compel an artist to engage in speech that violates her religious convictions. Even though the Supreme Court has called compelled speech the most odious form of First Amendment violation, the Tenth Circuit Court of Appeals held that Colorado may compel Lorie Smith, a website designer, to create wedding websites celebrating same-sex marriage. Smith gladly serves everyone, including LGBT customers, and only makes referrals based on messages that are contrary to her convictions. Under Colorado’s theory, any commissioned speaker could be required to speak contrary to his or her conscience. A Republican speechwriter could be compelled to write a speech for a Democratic candidate for office and vice versa. This violates the First Amendment’s foundational promise that every individual has the freedom to speak and also to remain silent.

Given all these important issues, the Supreme Court is likely to remain front and center in debates ranging from affirmative action to electric cars to free speech. And the term is just beginning. These cases are just part of the Court’s work this term, and they remind us how much is at stake.

—Alliance Defending Freedom and the author represent Lorie Smith in 303 Creative and filed an amicus brief in Students for Fair Admissions v. Harvard College.


Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and former law professor.


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