One Season after a Blockbuster, the Supreme Court Readies Another Important Term

I f the Supreme Court were a TV show, last term would have been the series finale. That “season” included momentous decisions on religious liberty, the administrative state, and gun rights. But putting it over the top was Dobbs v. Jackson Women’s Health Organization. Overturning Roe v. Wade and Planned Parenthood v. Casey, the monumental Dobbs opinion struck like an earthquake and promptly reordered the political landscape. This case even brought with it a plot twist, with Justice Alito’s opinion leaked by a still-unknown source internal to the Court.

So what comes next after the biggest term in generations? This term will not rise to the level of last year. Yet the Supreme Court has lined up a series of cases that still could prove important to constitutional law and to American politics.

First, the Court will take up important matters regarding election law. In Moore v. Harper, the justices will address how much control state legislatures possess over federal elections. North Carolina’s legislature redistricted its House seats following the 2020 census. The state’s supreme court then struck down that new map as partisan gerrymandering, which it said violated the state’s constitution. The North Carolina supreme court then created a panel of experts who designed their own district map for use in future congressional elections. Certain legislators sued and will argue before SCOTUS that the U.S. Constitution requires that they, not any other state officers, make decisions about federal elections. The contested constitutional text comes from Article I, Section 4, which says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” except for when Congress intervenes. Does this text require the state legislatures to make all laws regulating such elections, or could they delegate that power to other state entities? Are state legislatures restricted in those actions to requirements found in their own constitutions and to judicial interpretations of those requirements?

In the background of this issue of course is the 2020 presidential election, when due to Covid-19, many state executives, courts, and bureaucrats modified election rules out of health and safety concerns. Of importance, too, is the growing move by many states to have their congressional districts drawn by nonpartisan panels rather than by state legislatures. More fundamental, however, is the issue of consent. We are committed to popular self-government. How we choose our representatives is fundamental to keeping the people in charge of their republic. The Court’s decision on this case could prove pivotal to how our national elections, and thus our giving of consent, are conducted.

Second, the Court will continue to define the scope of constitutional protections for religious liberty. 303 Creative LLC v. Elenis hinges on whether the state of Colorado can force a Web designer to work with same-sex weddings if she holds religious objections to those unions. In many respects, this case takes up where Masterpiece Cakeshop decision left off in 2018. That case, also out of Colorado, decided in favor of the cake baker with similar religious objections but on narrow, particular grounds. Here, the Court will address the bigger questions of the relationship between religious liberty and LGBTQ rights. In particular, the Court will determine the constitutional grounds on which people can make religious-liberty claims in cases like these. Should the Court consider the Web designer’s objection a First Amendment free-exercise claim? If so, the Court’s precedent seems more on Colorado’s side, as SCOTUS has interpreted that clause to require equal treatment only between religious and nonreligious persons, which Colorado law does.

The Court’s other option is to see this case as one of free speech. Governments can’t force you to say what you don’t want to say any more than they can deny your right to speak your mind. Is a wedding website a form of speech about which Colorado is coercing content? Again, we will see the future trajectory of the Court in this decision on an important and contentious issue. Under it lies another essential question: the definition of liberty. Americans hold liberty as one of our highest principles, including the securing of its blessings as a goal stated in our Constitution’s preamble. To what degree is religious liberty at stake here? To what degree are the rights of gay people violated? The Court will say much on that point going forward.

Third, the Court will take up an important immigration case in United States v. Texas. The Biden administration gave “guidance” on the enforcement of immigration law that prioritized deporting violent and otherwise dangerous illegal immigrants over others who are here against the law. Though the debate about immigration policy is among our most partisan issues, the Court will focus on the exercise of executive and bureaucratic power. Did the Biden administration and the bureaucrats who put forward these guidelines violate immigration law? Also, did they go against the required procedures in writing and dispensing these guidelines? Beneath those issues lies our Constitution’s structure of separation of powers. Our system gives Congress alone the legislative power and requires the president to enforce those laws as written. One hopes the Court’s ruling will clarify what it means for the executive branch and federal agencies to follow rather than make law.

Fourth and finally, the Court’s biggest decision may come about the future of affirmative action. In two cases, the Court will address whether colleges can take race into account in their admissions. If the justices decide that colleges cannot, it would overturn the important precedent of Grutter v. Bollinger, which in 2003 said that colleges could take race into account because of the important educational benefits of classroom diversity so long as the college made race one factor for admission among many others. Beneath this legal question resides a fundamental debate about America’s commitment to human equality. The pro-affirmative-action side will argue that we need racial preferences in admissions to foster diversity and combat historic inequalities in society. Those opposing affirmative action will contend that equality requires a “color-blind Constitution” that knows nothing of race but only of the humanity of those protected by the law. As we seek to live out our commitment to equality, we must determine whether affirmative action furthers or hinders that goal.

Nothing this term can top what we saw last year. But this season of the Supreme Court still offers plenty of reasons to keep watching. The Court will continue to play a vital role in our national conversations about the consent of the governed, the meaning of liberty, and our commitment to equality. Let’s see how the script plays out.