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February 13, 2024

Dean Erwin Chemerinsky Reviews the Civil Cases of the Supreme Court’s October 2022 Term

By: James Azadian


One of the highlights of the annual AJEI conference is Dean Erwin Chemerinsky’s summary and analysis of recent Supreme Court decisions.  The Dean spoke to a packed room at November’s conference in Washington, D.C., sharing his usual thorough recap of some of the more noteworthy civil cases decided in the past term (all from memory, without the aid of any notes, which is his renowned custom).

The Term began October 3, 2022, and concluded October 1, 2023 (OT’22).  Dean Chemerinsky introduced the Term as a “truly amazing time” because the Court overruled precedent in the notable areas of abortion, gun rights, religion, and affirmative action.  “We are in an era of the Supreme Court where it defers to no one.  It does not defer to Congress.  It does not defer to the executive branch.  There’s no deference to states or to educational institutions,” the Dean remarked.  He also observed that the Court has a seemingly low public approval rating, and he attributes part of the reason to a lack of a uniform code of ethics for the justices.

The Court issued 58 signed opinions after briefing and oral argument, slightly more than the previous two terms (54 in OT’21 and 52 in OT’20), continuing the Roberts Court’s trend of deciding significantly less cases each term than the Rehnquist Court.  The Dean recalled that during his Senate confirmation hearing, Chief Justice John Roberts said that the Court should be deciding at least 100 cases per term.  The Dean observed, however, that the Roberts Court has not yet come close to deciding even 80 cases in a term, the number of cases decided in Chief Justice William Rehnquist’s final term (OT’04).

Dean Chemerinsky suggested that this Term’s decisions reflect the Court’s conservative majority, with Justice Brett Kavanaugh once again finding himself as the justice most often in the majority (in 96% of this term’s decisions).  The Dean addressed the cases by subject matter.

The Cases

Affirmative Action.  Probably the most widely discussed and noteworthy decision of the Term arose from a pair of affirmative action cases, Students for Fair Admissions, Inc. v. President and Fellow of Harvard College (No. 20-1199), and Students for Fair Admissions, Inc. v. University of North Carolina (No. 21-707) (collectively “SFFA”).  Divided 6-3, with the majority’s decision authored by the Chief Justice, the Court held that colleges and universities receiving Title VI federal funding may not use race as an admissions factor to benefit minorities. 

Emphasizing the “overruling of precedent” theme, Dean Chemerinsky walked through the Court’s affirmative-action jurisprudence, beginning with the 1978 plurality decision in Regents of the University of California v. Bakke, with Justice Lewis Powell’s pivotal decision in that case, followed by the 2003 decision in Grutter v. Bollinger written by Justice Sandra Day O’Connor, reaffirming Justice Powell’s statement that the promotion of diversity in higher education is a compelling governmental interest, and leading to the Roberts Court’s 2013 decision in Fisher v. University of Texas, reaffirming Grutter.  Against this historical backdrop, the Dean asked, “What has changed in the past decade that made the outcome in SFFA so different, causing the Court to overrule Bakke, Grutter, and Fisher?”  He suggested the answer is “the composition of the Court.” 

Concurring in the Chief Justice’s opinion, Justice Kavanaugh observed that there had to be a time when affirmative action came to an end, and that time is now.  In dissent, Justice Sonia Sotomayor predicted that the Court’s decision would hurt institutions of higher learning, pointing to the dramatic decrease in the admissions of black and Latinx students at UCLA and UC Berkeley following California’s Proposition 209 prohibition of UC and other state entities from using race, ethnicity, or sex as criteria in public education.  In her own dissent, Justice Ketanji Brown Jackson explained that the legacy of enslavement and Jim Crow segregation laws still has effects today.

The Dean’s takeaway from the SFFA decision is that the Court did not say schools cannot achieve diversity, but that they are limited in how they can go about it.  For instance, the Dean drew attention to the Chief Justice’s statement that the Court’s decision does not prohibit schools from considering an applicant’s discussion of how race affected the applicant’s life, in response to an application’s general question about the adversity or challenges experienced by the applicant.

Dean Chemerinsky expressed his view that the SFFA decision is cabined to the educational context and should not impact other areas of the law, such as in employment or in government contracting.  During the Q&A period, the Dean was asked how his view holds up in light of the suggestion made in Justice Neil Gorsuch’s concurring opinion that the SFFA decision portends ramifications for employment law, specifically in the context of Title VII and employers’ Diversity, Equity, and Inclusion (DEI) policies.  Dean Chemerinsky acknowledged that while that is not where the Supreme Court has gone yet, “it is likely to go there in the future.”

First Amendment/Religion.  In what is commonly known as the “postal worker case,” Groff v. DeJoy (No. 22-174), the Court faced two questions: “What does reasonable accommodation require? and “Do employers need to accommodate an employee’s religious practices? 

The facts of the case are straightforward.  Mr. Groff is a postal worker who, for religious reasons, refused to work on Sundays.  The Postal Service refused to accommodate his Sunday religious observance.  Writing for a unanimous Court, Justice Samuel Alito articulated a new standard, holding that Title VII requires an employer that denies an employee’s religious accommodation to show that the burden of granting the accommodation would result in substantial increased costs in relation to the conduct of the employer’s business. 

Dean Chemerinsky predicted that because the Court did not provide any criteria to help employers and lower courts determine what would be a “substantial” cost, there will be much litigation to come to answer that open question.

First Amendment/Speech.  In a case involving freedom of speech, 303 Creative LLC v. Elenis (No. 21-476), Justice Neil Gorsuch wrote for the Court, holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive design messages with which the designer disagrees.  The Dean noted that what is particularly interesting is that the Court did not identify or apply any level of constitutional scrutiny to the state’s action compelling speech, meaning that the Court’s decision could be read to instruct courts to find a First Amendment violation where a government actor has compelled speech.

Election Law.  The Court decided two major cases involving the Voting Rights Act of 1965 (VRA)—Allen v. Milligan (No 21-1086) and Moore v. Harper (No. 21-1271). 

The first case, Allen, hales from Alabama, which has seven congressional seats.  The state re-drew its districts, leaving only one with a majority black population.  Opponents of the state’s new voting map claimed the state violated Section 2 of the VRA, a general provision that prohibits states and local government from imposing any voting rule that results in the denial or abridgement of the right to vote based on race or color.  The three-judge district court sent Alabama back to the drawing board, directing the state to re-draw its map to include two districts where black voters comprise a voting-age majority or something close to it.  The state appealed to the Supreme Court, and a majority of the justices granted Alabama’s application to stay the district court’s ruling. 

So when does drawing district lines violate the VRA?—that was the question facing the Supreme Court in this case.  In a 5-4 decision penned by the Chief Justice, the Court affirmed, upholding longstanding Section 2 precedent, including the Court’s landmark 1986 decision in Thornburg v. Gingles, which established a three-factor results-based test for assessing whether a districting plan unlawfully dilutes the voting power of minority communities.

What surprised some was that Justice Kavanaugh joined the Chief and the three democratically appointed justices to supply the necessary fifth vote.  But Justice Kavanaugh did not join the entire majority opinion, writing a concurrence to suggest that Section 2 may have passed an undefined sunset date, and it may now be time to revisit Congress’s authority to remedy discrimination under Section 2.

Dean Chemerinsky shared a postscript to Allen.  After the Supreme Court remanded the case, Alabama boldly enacted a new voting map which—like the invalidated map—still produced only one majority-black district.  In what seemed like litigation déjá vu, the district court enjoined the new map and the state immediately requested that the Supreme Court stay the injunction pending appeal.  But this time the Supreme Court denied the requested stay with no noted dissents, prompting Alabama to dismiss its appeal.  As the Dean observed, this outcome ensured that Alabama will have two black-majority districts in 2024.

The second case, Moore, presented the issue of whether a state legislature gets the only and final word on drawing voting maps under the Elections Clause of the Constitution, which requires each state legislature to prescribe the rules governing federal elections—also known as the “independent state legislature theory.”  In a 6-3 decision written by the Chief, the Court held that a state court can supervise a state legislature’s exercise of its power to regulate federal elections, thereby rejecting the independent state legislature theory and reasoning that the North Carolina Supreme Court did not violate the Constitution when it set aside a congressional map adopted by that state’s legislature.  Still the majority cautioned, “state courts do not have free rein” to strike down state laws governing elections.  Dean Chemerinsky pointed to the majority’s concern that federal courts “have an obligation to ensure that state court interpretations of that law do not evade federal law.”  The Dean also noted, however, that the Court stopped short of outlining a standard for federal courts to use in such cases.  Instead, the Court held “only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”  The three dissenters were Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

States Suing The Feds.  Dean Chemerinsky also addressed a couple of cases decided this Term brought by states against the federal government—United States v. Texas (No. 22-58) and Biden v. Nebraska (No. 22-506).

The first case was brought by Texas and Louisiana to challenge a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation.  In the lead decision written by Justice Kavanaugh, the Court chose not to weigh in on the legality of the policy itself, instead deciding that the states lacked Article III standing to bring the suit, and reversing the lower court’s ruling that had struck down the policy.  Joining in that decision were the Chief Justice and Justices Sotomayor, Kagan, and Jackson.  Justice Gorsuch wrote a separate opinion joined by Justices Thomas and Barrett, agreeing that the states lacked standing, but offering a different rationale.  Justice Alito was the lone dissenter.  He stated that the Court’s decision leaves states “already laboring under the effects of massive illegal immigration even more helpless.”  The Dean explained that the important takeaway from this case is that the Supreme Court has now made it clear that when a state sues, the same Article III standing rules apply as when an individual sues.

Six states brought the second case, widely known as the “student loan case” or HEROES Act case, asking the Court to strike down the Biden Administration’s program to forgive up to $400 billion in student loans.  When President Biden announced the program in 2022, student-loan repayments had been on hold for over two years because the Secretary of Education during the Trump administration suspended repayments and the accrual of interest on federal student loans at the start of the covid-19 pandemic.  She relied on the HEROES Act, a law passed in the wake of the Sept. 11 terrorist attacks that gives her the power to respond to a national emergency by waiving or modifying any statutory or regulatory provision governing the student-loan programs so that borrowers are not worse off financially because of the emergency.

As Dean Chemerinsky explained, the first question the justices had to address was standing—whether the states bringing the case have the right to sue the federal government.  Writing for a majority of the Court, Chief Justice Roberts explained that the states had standing to sue if at least one of the states was found to have standing.  One of the plaintiff states, Missouri, demonstrated it controls the Missouri Higher Education Loan Authority (MOHELA), one of the country’s largest servicers and holders of student loans, and that it would cost MOHELA as much as $44 million per year if the student loan forgiveness program goes into effect, which will in turn limit its ability to contribute funds to support the state’s higher-education programs.  Accordingly, the Court decided the states had standing to challenge the program.  But Dean Chemerinsky questioned this reasoning because he views it as inconsistent with the Court’s determination that Louisiana and Texas lacked standing to challenge the Biden administration’s immigration policy.

Having addressed standing, the Court moved on to address the merits of the challenge brought by the states—whether the loan forgiveness program complies with federal law.  The Court determined that it does not, reasoning that the HEROES Act gives the Secretary of Education the power to “waive or modify” laws and regulations governing the student-loan programs, “not transform them,” which is what the plan accomplished by abolishing and supplanting student-loan laws and regulations with an entirely new regime.  The Court’s decision also invokes the “major questions” doctrine that Congress must clearly state if it wants to give an administrative agency the power to make decisions of vast economic or political significance.  The Court reasoned that the HEROES Act did not authorize the debt-relief program at all.

Justice Kagan dissented, joined by Justices Sotomayor and Jackson.  She argued that the HEROES Act is clear in providing that the Secretary of Education may waive student loans, and that is what the Biden loan-forgiveness plan set out to do.

Dean Chemerinsky highlighted the lack of any guidance given by the Court on (1) what qualifies as a “major question” and (2) what is sufficient Congressional guidance to address a major question.  These two open questions suggest that we can expect more litigation to be waged over the major questions doctrine, as lower courts try to provide the answers to these questions.

James Azadian

Dykema Gossett, PLLC

James Azadian is a Member in Dykema Gossett’s Los Angeles and Washington, D.C. offices, serving as the co-leader of the firm's nationwide Appellate and Critical Motions Practice.  He can be reached at [email protected].

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