Chemerinsky: Expect momentous decisions from the Supreme Court as term ends

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U.S. Supreme Court Chemerinsky: Expect momentous decisions from the Supreme Court as term ends

By Erwin Chemerinsky

April 27, 2023, 8:51 am CDT

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Erwin Chemerinsky. Photo by Jim Block.

Unless there is an emergency matter to be heard, the U.S. Supreme Court completed oral arguments for the October 2022 term April 26. The court is expected to hand down decisions by the end of June in all of the argued cases, with a flurry of decisions in the most high-profile cases expected at the very end. What are likely to be the most important rulings from the October 2022 term?

Affirmative action

In two cases heard Oct. 31, Students for Fair Admission v. University of North Carolina and Students for Fair Admissions v. Harvard College, the court will decide whether colleges and universities may continue to consider race as a factor in admissions decisions to benefit minorities and enhance diversity. One case involves a public university and whether affirmative action violates equal protection; the other involves a private university and whether affirmative action violates Title VI of the 1964 Civil Rights Act, which prohibits recipients of federal funds from discriminating based on race. The cases will have enormous implications for admissions at colleges and universities across the country.

Civil rights litigation

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, sex or religion. It requires that employers make reasonable accommodations for employees’ religious practices. In Trans World Airlines, Inc. v. Hardison, in 1977, the court said employers do not need to provide accommodations that would impose more than a minimal burden on them. The issue in Groff v. DeJoy, argued April 18, is whether to overrule this standard and to adopt an approach that requires employers do more to accommodate their employees’ religious beliefs.

Dormant commerce clause

The dormant commerce clause is the principle that state and local governments cannot place an undue burden on interstate commerce. In National Pork Producers Council v. Ross, argued Oct. 11, the court is considering the constitutionality of a California law that requires pork products sold in the state come from pigs that were treated humanely. Because most pork sold in California comes from out of state, is California violating the dormant commerce clause by impermissibly regulating pork producers in other states? Or is this California permissibly regulating what can be sold in its own state?

Elections

In Merrill v. Milligan, argued Oct. 4, the court will decide how it is to be determined when the drawing of election districts violates Section 2 of the Voting Rights Act, which prohibits state and local governments from having election systems or practices which discriminate on the basis of race. The case arises from Alabama, where 27 percent of the population is African American, but districts were drawn so that only one Black individual was likely to be elected from the state’s seven congressional districts.

In Moore v. Harper, argued Dec. 7, the issue is whether a state court can find that partisan gerrymandering in a state violates the state constitution. The North Carolina Supreme Court found that the state legislature’s gerrymandering of congressional districts violated the North Carolina constitution. The case involves the “independent state legislature” theory, never adopted by the Supreme Court, which posits that it is solely for the state legislature to determine districting and the state judiciary can play no role.

First Amendment speech and Section 230

In 303 Creative v. Elenis, argued Dec. 5, the court will consider whether the First Amendment’s protection of freedom of speech is violated if a web designer is required by state law to design websites for same-sex weddings. Colorado law prohibits business establishments from discriminating on the basis of race, sex, religion or sexual orientation. Lorie Smith says it would violate her freedom of speech if she has to design websites for same-sex weddings. The court did not grant certiorari as to whether this would infringe her free exercise of religion, though that issue obviously underlies her claim of a right to discriminate.

In Counterman v. Colorado, argued April 19, the court will resolve an issue that has split the circuits and the state courts: What is the standard for determining if speech constitutes a “true threat” unprotected by the First Amendment? Some courts have held that this is an objective standard, so there can be liability if a reasonable person would feel threatened by the statements. Other courts, though, have used a subjective standard requiring proof of intent to threaten.

The court has two cases pending before it about the internet and social media. In Gonzalez v. Google, argued Feb. 21, the court will consider whether internet and social media companies lose their immunity under Section 230(c)(1) of the Communications Decency Act when they make targeted recommendations of information provided by another information content provider. Internet and social media companies cannot be held liable for what is posted. But if they use algorithms to give priority to some content or to make recommendations, do they lose this immunity?

In Twitter v. Tamneh, argued Feb. 22, the court will consider whether internet and social media companies can be held liable for materially assisting terrorist activities for the information they communicate.

Indian Child Welfare Act

The Indian Child Welfare Act, among other things, say that preferences should be granted to Native Americans when Native American children are placed in foster care or for adoption. In Brackeen v. Haaland, argued Nov. 9, the court will consider whether Congress had the authority to enact this law under Article 1 of the Constitution. If so, does it violate equal protection by giving a preference to Native Americans? This could turn on whether the Supreme Court regards tribal status as a race, which would trigger strict scrutiny, or as a political affiliation, which would allow much more deference to Congress.

Intellectual property

In Andy Warhol Foundation for the Visual Arts v. Goldsmith, argued Oct. 12, the court will again deal with the “fair use” doctrine in copyright law. Andy Warhol produced a series of images of the musical artist Prince based on photographs by Lynn Goldsmith. The 2nd Circuit found that Warhol’s pictures were not fair use, and the Supreme Court granted review.

Jack Daniel’s Properties v. VIP Products, argued March 22, involves trademark infringement and also the First Amendment. Jack Daniel’s, a American whiskey manufacturer, sued VIP Products, a dog toy manufacturer, alleging VIP made a dog toy that is similar to the distinctive square bottle in which Jack Daniel’s whiskey is sold. Where the Jack Daniel’s bottle says “Old No. 7 Tennessee Sour Mash Whiskey,” the toy refers to “Bad Spaniels” and “The Old No. 2 on Your Tennessee Carpet.” The court will need to decide if this violates the Lanham Act and whether there is First Amendment protection for such a parody.

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Personal jurisdiction

In recent years, the court has narrowed personal jurisdiction and the ability of a court to exercise jurisdiction over an out-of-state defendant. The court has said “general jurisdiction” exists against a defendant only if the defendant is “home” in the state. For a corporation, this requires that it be incorporated or have its principal place of business in the state. “Specific jurisdiction” now requires that the defendant’s conduct in the state gave rise to the claim.

In light of this, Mallory v. Norfolk Southern Railway Co., argued Nov. 8, is important: May a state require a corporation to consent to personal jurisdiction to do business in the state? Consent is an alternative to minimum contacts for personal jurisdiction, and thus could provide states a way around the court’s recent restrictive decisions.

Student loans

In two cases argued Feb. 28, Biden v. Nebraska and Department of Education v. Brown, the court is considering challenges to President Joe Biden’s decision to forgive up to $20,000 for many federal student loans. A federal statute authorizes the Department of Education to “waive or modify” loans in an emergency. A threshold issue in the cases is whether the plaintiffs have standing to sue. For example, when does a state have standing to challenge a federal policy? There also is an issue of whether this is a major question of economic or political significance that requires clearer direction from Congress for the president to act.

In conclusion

These, of course, are just some of the cases to be decided. It is obvious, though, that this will be another momentous year in the United States Supreme Court.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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