The YOLO [Supreme] Court
The Supreme Court is in the middle of another term that could reshape the law when it comes to big issues like affirmative action, gay rights, and voting rights. Conservatives have a 6-3 supermajority on the court, and they have been unafraid to take up divisive issues that past courts have often side stepped. This has earned this court the nickname “The YOLO Court,” or the “You Only Live Once” Court, meaning one should do exciting things even if they are dangerous.
Below are some of those cases.
Harvard and the University of North Carolina are being challenged for their affirmative action programs, which allow race to be considered as one of many factors that can be considered by universities during the admission process. The university programs date back to the 1970’s—when the Supreme Court originally approved affirmative action. The Supreme Court in the 1970’s praised Harvard’s affirmative action program for being a “model” program.
Fifty years later, the Supreme Court appears poised to overturn affirmative action, ruling that race cannot be considered at all during the admission process. If this happens, such action in the employment arena seems likely but let’s see how the Court decides these cases.
The Indian Child Welfare Act was enacted 40 years ago to give preference to native homes for housing native children. When the law was enacted, studies found one-third of native children were removed from their homes and placed in homes with no ties to their tribes.
Justice Gorsuch is a big advocate for Native American rights—thus many expect Gorsuch will be the fourth vote to uphold the law. But no one is sure who might be the fifth vote. Many see this law challenge to ICWA as a first legal foot in the door that opens the way to other challenges to Indian rights.
The Supreme Court also heard oral arguments on Colorado’s public accommodation law, a law that requires certain businesses to service all sectors of the population. The law was challenged by a website designer who claims the public accommodation law is violative of the designer’s first amendment rights. The public accommodation at issue was the web designer’s obligation to service LGBTQ+ weddings. If this sounds familiar, it is because the Supreme Court already heard a challenge to Colorado’s public accommodation law in 2018—that time a baker challenged the law for violating his religious liberties. The baker won the case on other grounds.
This time around, the lawsuit is focusing more on free speech rather than religious rights. The Supreme Court appeared to favor the argument that creative businesses have greater first amendment protections than other companies, like bus companies or hotels. The court, including liberal Justice Kagan, focused on “direct speech,” or the act of the designer putting words on a website. At the center of the debate is whether the designer’s actions are the equivalent of “speech.”
While it is extremely unlikely the Supreme Court will strike down Colorado’s public accommodation laws, the Court is poised to make substantial cutbacks to the law’s applicability.
Independent State Legislature Doctrine
Long relegated to the fringes of election law, the independent state legislature doctrine (ISL) has been picking up steam. Now, the Supreme Court is hearing oral argument concerning North Carolina Congressional maps and they are deciding whether North Carolina courts have any power over Congressional districts.
The ISL says the state legislature is the only entity that can design congressional districts and is the only state body that can oversee federal elections. The rational behind this argument is that the federal government gave the state legislature nondelegable federal functions (the administration of federal elections)
The independent state legislature theory would cause significant disruption by potentially nullifying state laws and constitutions regarding federal elections. State bans on gerrymandering could die, as could independent redistricting commissions. Delegations of authority would also be questionable, robbing election commissions and secretaries of state of the power to make decisions, including in emergencies. And only federal courts would have the power to review gerrymandering or voter suppression claims relating to federal elections. These are big changes to the current approach to election law. Has consistency been replaced with cavalierism? We will see when the Supreme Court prepares to release its opinions in the Spring.