- The Washington Times - Tuesday, September 27, 2022

It will be tough to top the Supreme Court’s last term for sheer impact, but the justices seem game to give it a go with a lineup of election, religious liberty and affirmative action cases in the term that begins this week.

The public should have a better view of it all.

After 2½ years under pandemic restrictions, during which time the court heard arguments by phone and then in person without the public present, Chief Justice John G. Roberts Jr. has signaled a return to some sort of normalcy.

“The barricades are down, and when we take the bench the first Monday in October at 10 a.m., the public will be there to watch us,” Chief Justice Roberts said this month during an appearance in Colorado, according to Bloomberg Law.

The first high-profile case will come before the justices on Tuesday out of Alabama. The state’s new map of congressional districts is under assault by civil rights groups who say it cheats Black voters out of political power.

On Oct. 31, the court is scheduled to take up two affirmative action cases challenging admissions policies at Harvard University and the University of North Carolina at Chapel Hill. Both cases are intended to give an extra boost to Black and Hispanic applicants to the detriment of Asian Americans.

SEE ALSO: Leaker of draft opinion still unknown as Supreme Court readies for new term

After years of sidestepping issues of First Amendment speech versus gay rights, the justices have been asked to confront the issue squarely in a case involving a website designer who doesn’t want to be forced to create pages for same-sex weddings.

A major test of President Biden’s immigration policy looms in December with a case involving the Department of Homeland Security’s attempt to limit arrests and deportations.

Mr. Biden achieved an immigration-related victory in June when the justices said he could shut down a Trump-era program that forced border jumpers to wait in Mexico for their immigration court dates. His administration is hoping for another victory.

That immigration case was a small bright spot in an otherwise devastating term for Mr. Biden and fellow Democrats. The justices ruled against the president’s stance on gun control, public funding for religious schools, environmental policy and abortion rights.

“This is going to be another exciting term. Obviously, nothing really competes with last term for the number of super-high-profile cases, but there already are some cases that the court agreed to take that are going to be really significant,” said Carrie Severino, president of the conservative Judicial Crisis Network.

Liberal court watchers are bracing for another rough year. They worry that affirmative action is imperiled after decades of rulings that narrowed, though fundamentally upheld, the use of race in university admissions.

“A decision — depending on how strongly it is written — could set back efforts to remedy discrimination and to promote diversity for generations,” said Elliot Mincberg, a senior fellow at People for the American Way.

Race and representation

Past affirmative action cases had White plaintiffs, but the two cases the justices will hear — Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina — point to discrimination against Asian Americans as a result of the schools’ policies.

Race is also at the center of the challenge to Alabama’s congressional districts. A lower-court panel of judges ruled that a state with a 27% Black population should have at least two of its seven seats tilted toward Black voters. Currently, only one seat has a majority-Black voter population.

State officials say they took a race-neutral approach to drawing their maps and barely changed them and that a second Black-dominated district would effectively elevate race above all other considerations.

The case goes to the heart of Section 2 of the Voting Rights Act of 1965, which encouraged states to elevate Black voters’ power while barring discrimination based on race.

Ms. Severino said the justices will have to decide whether the state lawmakers were motivated by race, which would be illegal, or politics, which likely would be on firm legal ground.

“The court has to be able to figure out what were they really drawing the lines on? Are they just trying to improve their party’s chances by including more members of their party in one district or another? Or are they actually trying to do it by including members of one race in a district?” she said.

The case is Merrill v. Milligan.

Voting and elections

A second major election challenge looms out of North Carolina, where a state court struck down the congressional map that lawmakers drew.

The Republican-controlled legislature says state courts should butt out. They point to a clause in the Constitution that says the “times, places and manner” of electing members of Congress “shall be prescribed in each State by the Legislature thereof.”

Ms. Severino said there have been instances during the pandemic when state courts seemed to create new election rules for balloting by mail or time frame for casting and counting votes, despite what seemed to be clear prohibitions in state law.

“All of those are something that a state legislature should do, but not a state supreme court,” she said.

She pointed out that even without state courts, federal courts would continue to play a role.

Critics argue that the claim over state legislative supremacy is novel and based on an erroneous understanding of what the founders meant.

“It effectively threatens democracy itself quite directly,” Mr. Mincberg said.

That case, Moore v. Harper, does not have an oral argument date set.

First Amendment

Justices have yet to schedule a date for argument in 303 Creative LLC v. Elenis, the latest free speech versus gay rights case to come before the high court.

Lorie Smith, owner of 303 Creative, a web design firm in Colorado, says state law forces her to accept clients who want her to use her creative talent on websites celebrating same-sex weddings, which contradicts her beliefs.

A federal appeals court ruled against Ms. Smith. It said the state’s interest in equal access to a place of business trumps her free speech right.

Four years ago, the justices grappled with Colorado’s law and delivered a partial victory to a baker whom the Colorado Civil Rights Commission had dinged for refusing to bake a wedding cake for a same-sex couple. He said he would have sold a pre-made cake or made a non-wedding cake but argued that being coerced into making a custom same-sex wedding cake for the couple trampled on his First Amendment rights of artistic free expression.

In that instance, the justices didn’t settle the tension in the law but did rule that the Civil Rights Commission didn’t give him a fair hearing.

“This is not an issue that is going away. I think that is one of the lessons for the court,” Ms. Severino said. “You can’t avoid addressing and grappling with these really hard questions about when religious freedom intersects with LGBT issues and how do you navigate that. You’re not going to get away from it; it’s just going to keep coming back.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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