Roundup of the 2023 Supreme Court Term, Part 1

By Paul Fisher

Published July 5, 2023

This was a very significant Supreme Court term. I am going to discuss the most significant cases in three parts and this is the first part. Parts two and three will follow shortly. These are the part one cases, with my editorial comments. As always, questions and comments from readers are welcome via my email: [email protected].

1. FREE SPEECH

203 Creative LLC v Elanis. By a 6-3 vote, the Supreme Court upheld the free speech rights of Lorie Smith, a web site designer, who objected to Colorado’s public accommodations law requiring her to design wedding websites for same sex weddings. The Colorado law, similar to such laws in nearly 30 states, bars commercial businesses open to the public from discriminating against potential customers and clients on the basis of race, religion, sex, disability and sexual orientation. Colorado’s position was that a commercial enterprise that makes wedding websites for heterosexual marriages must make wedding websites for same sex weddings. Ms. Smith claimed that she accepts all customers—i.e., that she does not discriminate against prospective customers on the basis of sexual orientation but as a creative designer she will not publish or promote beliefs that violate her religious beliefs or her conscience and that the First Amendment’s right of free speech protects her right to speak or refrain from speaking. The majority opinion was issued by Justice Gorsuch and it was joined by Justices Roberts, Thomas, Alito, Kavanaugh and Barrett. A dissenting opinion was issued by Justice Sotomayor, and it was joined by Justices Kagan and Jackson. Justice Sotomayor read her opinion from the bench. While that is not unprecedented, it is not common.

This decision is an important victory for the right of free speech under the First Amendment. It affirms the principle at the heart of the First Amendment that all people have the right to speak according to their own beliefs and conscience and that they cannot be compelled to speak in a way that violates their own beliefs and conscience. Justice Gorsuch wrote: “The framers designed the Free Speech clause of the First Amendment to protect the freedom to think as you will and the freedom to speak as you think”. While in this case the objection by Ms. Smith to Colorado’s attempt to require her to design wedding websites for same sex marriages was based on her religious belief that marriage is a union between a man and a woman, the First Amendment principle vindicated by the Court has far wider application. As Justice Gorsuch pointed out, a Muslim run business cannot be compelled to promote a Zionist message and a Jewish run business cannot be compelled to promote an anti-Semitic message and an atheist run business cannot be compelled to promote religious messages and a gay run nosiness cannot be compelled to promote an anti gay marriage message.

The majority opinion makes a distinction, correct and critical in my view, between providing goods and services to all customers and clients regardless of their race, religion, sex, disability or sexual orientation and the content of the goods and services provided. All commercial enterprises decide what goods and services to sell and they must have the ability to not sell goods and services that violate their religious beliefs, political beliefs and conscience or that they consider inappropriate or immoral. The dissenters would strip that right from all people engaged in a commercial activity based on the false god of preventing discrimination. Justice Sotomayor’s dissent proclaims that the Court’s opinion is a setback for gay rights and stigmatizes gay people. She is effectively saying that if you have a religious view that marriage can only be between a man and a woman, you should not be allowed to have a commercial enterprise that relates to weddings. There are now several cases likely to end up at the Supreme Court involving photographers and musicians who refuse to provide their services in ways that require them to express beliefs that violate their religious views or consciences.

2. AFFIRMATIVE ACTION AND RACIAL DISCRIMINATION

The twin cases of Students for Fair Admissions v Harvard and Students for Fair Admissions v University of North Carolina dealt with the use of race as a factor in college admissions. In the Harvard case, a 6-3 majority opinion issued by Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett and in the University of North Carolina case, a 6-2 majority opinion issued by Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett held that race cannot be considered in college admissions and to so was a violation of equal protection of the law under the Fourteenth Amendment. Justice Sotomayor issued a dissenting opinion in both cases, joined by Justice Kagan in both cases and Justice Jackson in the University of North Carolina case. Justice Jackson recused herself in the Harvard case because she has previously served on the Harvard Board. Justice Roberts opinion reiterated the core test in racial discrimination cases that for a policy that takes account of race to be considered constitutional it must be intended to achieve a compelling state interest and that it must be narrowly tailored to achieve that interest in the least restrictive way.

The issue of race based admissions has been the subject of a line of cases, most recently Grutter v Bollinger (2003), in which by a 5-4 vote the Court upheld the use of race in admissions at the University of Michigan Law School. In that case, the 5^th vote affirming the use of race by Justice Powell identified diversity as the compelling state interest and he said that such a policy to achieve diversity would like not be needed in 25 years. In both the Harvard and University of North Carolina cases, the colleges argued that diversity was a compelling state interest. The Court’s opinion rejected that claim and said there is no measurable way to determine when diversity has been sufficiently achieved and that it is time to end college admissions based on race and that race classification must be completely ended. Justice Sotomayor’s dissent, which again she read from the bench, asserted that the majority opinion ignored the continued existence of racial discrimination in the United States and also ignored the benefits of diversity as asserted in an Amicus brief filed on behalf of a group of major American businesses. Justice Thomas, in his concurring opinion sharply criticized Justice Sotomayor for treating minority students as second class and inferior students who are incapable of achieving admission to elite colleges without special consideration.

Many commentators have said this is the end of affirmative action in college admissions. I applaud the Court majority for its decisions in these two cases and its attempt to end the racial discrimination that Harvard and the University of North Carolina and many other colleges practice by including race as a factor in admissions decisions. However, I caution that these decisions may not achieve that objective. Justice Roberts said, in the majority opinion, that colleges may still consider things like the challenges that applicants may have faced as result of discrimination and hardship but that colleges must not use that ability to achieve the same result as the policies that these cases found to be unconstitutional. Almost immediately, many colleges announced that they would use the factors described by Justice Roberts to continue to strive to achieve diversity and President Biden and other prominent Democrats urged that colleges find such workarounds to achieve diversity and give preference to “historically disadvantaged groups”. So the fight to eliminate race as a factor in college admissions will now move into a new phase where colleges and liberal politicians will try to obfuscate the used of racial classifications in college admissions by claiming that the “plus” factor wasn’t race.

Notably the dissenters and liberal politicians do not raise the inferior education provided by many public school systems and the opposition to school choice by teacher unions as reasons for the inability of so many minority students to gain admission to elite colleges without race or diversity being a “plus” factor.

3. VOTING RIGHTS

Allen v Mulligan. By a 7-2 vote, the Court invalidated a Congressional remap by the Alabama legislature as a violation of Section 2 of the Voting Rights Act and required that a new map be created that would have two Congressional districts with a majority black voting population. The majority opinion was issued by Justice Roberts and was joined by Justices Sotomayor, Kagan, Kavanaugh, Barret and Jackson. Justice Kavanaugh also issued a separate concurring opinion. Justice Thomas and Justice Alito issued dissenting opinions. Justice Roberts approved of the District Court’s reasoning that “the essence of a Section 2 claim [is] when a certain electoral law, practice or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters”. Roberts continued that “occurs when an electoral structure operates to minimize or cancel out minority voters’ ability to elect their preferred candidates.

Such a risk is greatest where majority and minority voters consistently prefer different candidates and where minority voters are submerged in a majority voting population that regularly defeats their choices”. Roberts then lays out a three part test: (i) “the minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district … (ii) “the minority group must be able to show that it is politically cohesive … and (iii) “the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it to defeat the minority’s preferred candidate”. In effect, if a Congressional district with reasonably configured boundaries could be created to assure with great likelihood the election of a black candidate, then the State must create such a district.

Justice Thomas wrote in his dissent that this and similar cases “are yet another installment in the disastrous misadventure of this Court’s voting rights jurisprudence… What distinguishes them is the uncommon clarity with which they lay bare the gulf between our color blind Constitution [citing Justice Harlan’s dissent in the infamous case of Plessy v Ferguson which upheld so called separate but equal schools] and the consciously created segregated districting system currently being constructed in the name of the Voting Rights Act.” There is not much I can add to Justice Thomas’s description of the result in this case except to point out the irony that, while so many commentators are celebrating the end of the use of race in college admissions, three of the Justices in the majority in the college admission cases (Roberts, Kavanaugh and Barrett) are endorsing the use of race to draw Congressional districts.

A similar result was reached in the case of Robinson v Ardoin which invalidated a Congressional map created by the Louisiana legislature.

4. INDEPENDENT STATE LEGISLATURE DOCTRINE

Moore v Harper. At issue in this case is whether the power of State legislatures to determine the “time, place and manner” of holding Federal elections as provided in the Constitution’s Election Clause is however still subject to review of the courts of the State that established the rules and procedures for such elections in that State. The Court decided, by a vote of 6-3, that the answer is yes, the power of the State legislature is subject to judicial review by its courts. The majority decision was issued by Justice Roberts and joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett and Brown. Roberts said: “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them under the Election Clause”. This case arose from a 2021 remap by the North Carolina legislature which expanded the number of Congressional districts likely to be won by Republicans. The North Carolina trial court held that the 2021 map was legal but the North Carolina Supreme Court. invalidated that map and ordered the North Carolina legislature to produce a new map consistent with the North Carolina Constitution.

Subsequent to that decision and prior to the case being considered by the US Supreme Court, elections were held for seats on the North Carolina Supreme Court and the newly constituted North Carolina Supreme Court reversed its prior decision that the legality of the legislative map was reviewable by the North Carolina Supreme Court. However, the US Supreme Court in this decision ruled that the case was not moot since the decision by the newly constituted North Carolina Supreme Court only overruled the reasoning of the prior North Carolina Supreme Court opinion on the matter of whether the action of the legislature in drawing the 2021 map was subject to judicial review, but it did not overrule that part of its earlier opinion enjoining the use of the 2021 remap. If you’re confused by this, you’re not alone. On the substance of the issue though, Roberts cited Marbury v Madison as recognizing (not inventing) the concept of judicial review of the acts of state legislatures. Roberts wrote: “The Elections Clause does not carve out an exception to that fundamental principle”. Roberts further said the argument that decisions of the State legislature are not subject to review by the courts of their state: “does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that gave them life”.

Curiously, while the Court as holding that the North Carolina legislature’s map could be review by the North Carolina Supreme Court, it did not address the question whether its actual decision that the remap violated the North Carolina Constitution because neither party specifically argued that issue. The effect of that is that the earlier opinion invalidating the 2021 remap remains in effect. Thus, while both the North Carolina legislature and North Carolina Supreme Court support the 2021 remap, it is still invalid.

In dissent, Justice Thomas (whose dissent was joined by Justices Gorsuch and Alito) disagreed with the majority’s opinion that this case was not moot.

In part two, I will discuss: