Five Of The Biggest Landmines On The Supreme Court’s Docket This Term

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As summer gives way to fall, the Supreme Court’s new term is upon us. The batch of arguments scheduled so far start October 3 and stretch through early November. 

These cases run the gamut from environmental regulation to affirmative action to agency adjudication. Some have been covered broadly since the Court took them up, while others have flown under the radar. Decisions that could reverse decades of a precedent are a pervasive threat in many of them.

Some of the most consequential have not been scheduled yet. These include Moore v. Harper, which could totally reshape election law should the justices take the opportunity to adopt a fringe, conservative theory in which many have already signaled their interest

Here are the cases to watch in these first couple sessions.

Sackett v. EPA

Fresh off the Court’s decision to handcuff the Environmental Protection Agency’s (EPA) ability to regulate greenhouse gas emissions from power plants, Sackett v. EPA will give the justices another opportunity to cut back the agency’s regulatory power. 

This time, the case centers on bodies of water — waters of the United States, or, charmingly, WOTUS.

The Court has fought over what constitutes waters protected by the Clean Water Act before, and a majority already hostile to agency regulation (specifically, environmental regulation) seems likely to narrow that definition. 

In this case, a couple wants to build on their land near Priest Lake, Idaho. A circuit court found that the lot contains wetlands — protected WOTUS. 

Now, the conservative majority may narrow the definition of which waters get federal protection, and accuse the EPA of overreach. 

Two old Supreme Court positions could come into play. 

One is Justice Anthony Kennedy’s “significant nexus”: that wetlands and minor waterways should be protected if they have a surface, chemical or biological connection to a navigable waterway. 

Another is the late Justice Antonin Scalia’s: that EPA’s protection should only cover “relatively permanent” bodies of water and wetlands that have a continuous surface connection to WOTUS. 

Some experts are sure that the “significant nexus” standard is going down — but are waiting on tenterhooks to see how much farther the Court will go.

Merrill v. Milligan 

With one of the term’s banner voting cases, advocates worry that the conservative justices have teed up another opportunity to take a swing at what’s left of the Voting Rights Act. 

This redistricting fight comes from Alabama. A panel of U.S. district judges — including two Trump appointees — found that the state’s congressional maps likely violated the VRA by squeezing its Black voters into one district. The panel ordered a redraw where Black voters constitute a majority “or something quite close to it” in two of the seven congressional districts — more commensurate with the over one-fourth of the state’s population Black Alabamans comprise. 

The Supreme Court blocked the lower court’s order. That left the maps, deemed racially gerrymandered by the lower court, in place for the midterms. The vote was 5-4, with Chief Justice John Roberts joining the liberals. 

The decision is all the more worrying due to Alabama’s tortured reasoning. 

In order to bring a vote dilution claim under the VRA, you need to prove that the districts you’re asking for can be drawn without stretching and contorting their borders across the state. In this case, the plaintiffs needed to show the court that it’s possible to draw two compact districts of like-minded Black voters. 

They hired an expert to do just that — and he produced multiple sample maps with two Black-majority districts. 

But Alabama is trying to set up a catch 22. It says that by going through that exercise — again, a mandated one to bring this kind of VRA case — the plaintiffs are violating the VRA. Calling it a “perversion” of the law, the state says that crafting these hypothetical districts is itself an unlawful racial gerrymander. 

If the Supreme Court accepts that logic, it’s hard to see how any vote dilution could win at court: In such a world, 1) plaintiffs challenging racially gerrymandered maps would have to demonstrate that a map can be drawn with two Black-majority districts; yet 2) crafting a map by prioritizing race in making the Black-majority districts is an illegal racial gerrymander. 

On top of that, there’s another potential voting rights blow in the mix, courtesy of Justice Brett Kavanaugh. 

In his concurrence with the Court’s decision to put the lower court decision on hold, he leaned heavily on the Purcell principle — the idea that courts should be wary about changing election rules right before the election is held, and risk confusing voters. The principle came from a case where a circuit court blocked an Arizona voter ID law just weeks before the state’s elections.

 “Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others,” Kavanaugh writes. “It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.” 

Here, “close to a state’s elections” meant over three months until the primaries and nine until the general. If the Supreme Court adopts this very expanded notion of the Purcell principle, everything from illegal gerrymanders to illegal voting laws would seem to be in the clear so long as they are instituted vaguely within the same calendar year as an election.

Students for Fair Admissions v. University of NC and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College

The Supreme Court will hear dual affirmative action cases on Halloween. One emanates from a private institution (Harvard) and one from a public school (University of North Carolina at Chapel Hill). The Court is hearing the two separately so Justice Ketanji Brown Jackson, who’s recusing herself from the Harvard case after serving on an advisory board there, can participate in the UNC one.

Here too, the justices seem poised to unravel decades of precedent. The Court has repeatedly, and relatively recently, affirmed that colleges can use race as a “plus factor” when examining the overall qualifications of its applicants. 

Both suits were spearheaded by Edward Blum, who has long crusaded against affirmative action and who also drove the Court’s gutting of the Voting Rights Act. He claims that Harvard’s admissions system is discriminatory towards Asian American students, and UNC’s towards both Asian American and white students. 

Neither case found any success at the lower courts. The Harvard case was unsuccessful at federal district court, then again at the First Circuit Court of Appeals. The UNC case lost at district court, before the Supreme Court, in a rare move, bypassed the appellate court and took it up directly. 

If the justices rule that colleges and universities cannot consider race in their admissions processes, it is all but certain that racial diversity levels across higher education will plummet. 

Axon Enterprise, Inc. v. FTC and Securities and Exchange Commission v. Cochran 

In the SEC and FTC cases, the Court has taken up challenges to how the agencies adjudicate violations. 

The question in both is whether federal district courts can hear constitutional challenges to the agencies’ administrative law proceedings. In other words: can agency targets (businesses, accountants) try to quash the administrative proceedings against them with constitutional challenges in federal courts, or do they have to wait until the internal adjudication is complete and then challenge the conclusions in court. 

The lead writer for the dissenters on the 5th Circuit Court of Appeals in the SEC case warned that coming down against the agencies could have “astonishing consequences” in terms of giving agency targets a path to nip enforcement in the bud. 

These cases are part of the broader universe of anti-agency sentiment — and particularly anti-agency enforcement sentiment — ever growing in the right-wing legal world.

A tangentially related case, Jarkesy v. SEC, could eventually make its way to the Court too. That one squarely targets administrative law judges who field many of these internal enforcement proceedings. If those judges are ultimately declared unconstitutional, agencies would lose much of their power to adjudicate disputes, and those cases would flood the ill-prepared federal judiciary.

In Jarkesy, the 5th Circuit also tacked on a wild nondelegation argument: despite Congress making quite clear that the SEC can choose whether to adjudicate cases internally or at outside courts, it didn’t spell out how the agency should make that prosecutorial decision, making it an unconstitutional delegation of power.  

While there are some good-faith arguments against agencies’ internal adjudication systems, it’s hard not to see these cases within the broader context of a Court eager to hack back their authority and enforcement powers. 

Health and Hospital Corp. v. Talevski

This sleeper case has perhaps the most potential for disaster on the docket so far this term, particularly in terms of public health outcomes. Experts have likened it to Dobbs in terms of its scope and possible fallout. 

The case originated as a fairly garden-variety Medicaid lawsuit. The family of the late Gorgi Talevski, a nursing home inhabitant, alleges that he was mistreated in violation of the Federal Nursing Home Reform Act, which establishes the rights of nursing home residents in homes that receive Medicaid or Medicare funding. 

But the county in Indiana that owns this municipal-run nursing home — supported by a slew of other states — is using the case as a vehicle for a much bigger ask. It’s petitioning the Supreme Court to do away with the pathway that let the Talevski family — and countless other beneficiaries of federally-funded, state-administered programs — sue in federal court when the states violate their rights. 

These beneficiaries sue under Section 1983, part of a Reconstruction-era civil rights statute meant to protect newly freed slaves who were being terrorized by state officials. 

A century later, the statute was interpreted to apply to rights under laws as well as those under the Constitution. A body of cases squarely applied it to spending legislation like Medicaid. 

Now, the county is asking the Court to reverse all of that precedent. If the justices decide that there is no private right of action under spending legislation, it would erase the pathway to accountability for Medicaid beneficiaries (about 90 million Americans) as well as all of those who participate in similarly structured programs, like SNAP (formerly known as food stamps) and WIC, which helps low-income mothers and pregnant women buy food. 

The federal government has vanishingly few options to hold states to account for not fulfilling the obligations of care that come with this federal funding. Without 1983 actions, experts fear that states will start neglecting their most vulnerable constituents with virtually no consequences.  

Making the whole case even more ominous, there is a fairly significant paper trail from various conservative justices indicating their hostility towards these kinds of lawsuits. 

Roberts and Justices Clarence Thomas and Samuel Alito have all, at one time or another, questioned Section 1983 actions. 

The Department of Justice seems to be urging them towards a middle-ground approach, nudging them to limit the rights of nursing home inhabitants, but not to go nuclear on Section 1983 altogether. 

But the justices’ positioning, plus the surprising decision to take up a fairly rote Medicaid dispute, has experts worried that the conservative majority is prepared to slash a gaping hole in our social safety net.  

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Notable Replies

  1. Avatar for woz woz says:

    Thank you for this update, Kate!

  2. There is but one certainty: the right wing supermajority will inevitably do the wrong thing on all issues, and forcibly impose the GOP’s dogma on our country. The only mystery is how and to what extent? Will the Court’s extremists wield a hatchet or a scalpel?

    After last term it’s likely to be a guillotine, since their radicalism knows no bounds.

  3. Sorry, dude, if my assistant doesn’t schedule it, it doesn’t happen.

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