Will the Supreme Court Go Further to the Right?

Last term saw the formation of the long-awaited and feared (in some areas) conservative Supreme Court majority. After many false starts and disappointments, conservatives will remember the 2021–2022 session as the one when they finally had enough votes to overcome “defections.”

So where are we now, as we prepare to enter what promises be a highly-publicized term? The Court isn’t retreating from controversy: the 2022–2023 docket already has some blockbuster issues, including property rights, affirmative action, compelled speech for a same-sex wedding, and election law. Here are some highlights.

Property Rights and Environmental Regulation The first use of the new term is Sackett v. EPAA couple in Idaho is prohibited from building a house because the lot allegedly contains wetlands. “navigable waters”Under the Clean Water Act. The justices will decide if U.S. Court of Appeals for Ninth Circuit used correct testing to determine wetlands are actually “waters of the United States.”

2012 saw unanimous agreement by the Supreme Court that the Sacketts could challenge an EPA Order stopping construction before enforcement action was initiated. Now the Sacketts want the Court to adopt a test proposed by the four–justice conservative plurality in Rapanos v. United States(2006), which would allow for wetlands to only be regulated when they have a continuous connection to regulated waters. If I were a betting man, I’d bet that that’s exactly what the Court will do, in a ruling that, like last term’s West Virginia v. EPAWithout necessarily drawing the most attention,, is likely have the greatest jurisprudential or governance impact.

Pig-Farming, Interstate Commerce Another significant case for economic growth involves California’s Proposition 12, which requires that all pork, veal, and eggs sold in the state comply with restrictions on how the animals can be confined. Various agricultural entities filed lawsuits, arguing that California law was unconstitutional and crossed state borders. That’s especially true for the pork industry, which has very little presence in the state.

The Ninth Circuit agreed to the plaintiffs’ assertion that the law would apply. “require pervasive changes to the pork production industry nationwide” but ruled that they had failed to make a legally cognizable claim under what’s known as the “dormant” Commerce Clause. By no means a sleepy area of law—and one that cuts across conventional ideological lines—dormant Commerce Clause claims argue that some state laws with extra-territorial reach interfere with Congress’s constitutional authority over interstate commerce.

Pike v. Bruce Church, Inc.(1970) The state has limited power to adopt laws affecting interstate trade if those laws pose an obstacle to interstate commerce “undue burden”Businesses. What’s an undue burden? Pike’s half-century-old balancing test has helped plenty of lawyers bring home the bacon, but it has failed to provide legislatures, lower courts, and businesses a clear answer to this question. In National Pork Producers Council v. RossThe Supreme Court will hopefully provide clarity.

Affirmative actionThe most prominent cases are undoubtedly those involving the use of racial preferences for university admissions. This case has been thrown out. Roe v. WadeRecognized and acknowledged “abandonment”Of Lemon v. KurtzmanIs the Court now seated? Regents of University of California v. BakkeWhich 1970s precedent will you be the next to be cut? BakkeThis 1978 case, in which Lewis Powell, a justice, was the first to establish the DEI apparatus in higher educational is the one that led to the creation of the DEI apparatus. Four justices would have banned the use of race in admissions, while four would have allowed it. Powell voted to block racial quotas at UC–Davis’s medical school but to allow the use of race as one of many factors to advance what he considered to be a compelling state interest in educational diversity. Twenty-five years later, the Court approved that diversity rationale in two cases from the University of Michigan as part of a holistic, race-conscious program.Grutter v. Bollinger), while rejecting a mechanical system that assigned a fixed number of points for race (Gratz v. Bollinger). The swing vote in that case, Justice Sandra Day O’Connor, suggested that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Well, here we are, 19 years later, and the trendlines aren’t looking good for a broadly accepted sunsetting of the evaluation of students by skin color. Enter Students for Fair Admissions (SFFA), a group that includes more than 20,000 students, parents, and staff. “to support and participate in litigation that will restore the original principles of our nation’s civil rights movement.” SFFA sued the oldest private and public universities in the country—Harvard and the University of North Carolina, respectively—over their use of race in admissions.

The claims are about discrimination against Asian-American applicants who are less likely to be admitted to Harvard than applicants of similar qualifications, whether they are Hispanic, white, black, or Asian. Both the district court and First Circuit upheld Harvard’s policy—which SFFA likens to the Jewish quotas of a century ago—as did the district court in the UNC case. The Supreme Court eventually consolidated the cases before un-consolidating them to allow the new justice, Ketanji Brown Jackson, who had served on Harvard’s board of overseers, to participate in the UNC case.

Nobody expects different results in the two cases, whether because of the public/private distinction or Jackson’s involvement in one but not the other. Six votes for the challengers is the most likely outcome in each case because it has the highest probability of success. “gettable”Chief Justice John Roberts has been a strong supporter of progressives and has not shown any signs of squishiness when it comes to race cases. Roberts wrote in his first term as Chief Justice John Roberts. “It is a sordid business, this divvying us up by race,”While in a 2007 busing case, he famously wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

First Amendment. Five years ago, the blockbuster case was Masterpiece Cakeshop v. Colorado Civil Rights CommissionIn which a baker refused a cake to celebrate a same-sex marriage in violation of Colorado antidiscrimination laws. Was he a free-speech martyr or a half-baked bigot Ultimately, the Supreme Court ruled 7-2 that Colorado officials expressed unconstitutional hostility to Jack Phillips’s Christian beliefs. Thus, the Court avoided the larger intersection of antidiscrimination legislation and freedom speech.

It also didn’t rule on whether cake-baking is an expressive activity protected by the First Amendment—but now we have a case where there’s no question that the commercial activity at issue is protected speech. 303 Creative LLC v. ElenisA graphic designer who long wanted to expand her business into wedding websites, but ran into the same Colorado law. Masterpiece Cakeshop.

The Tenth Circuit agreed that Lorie Smith’s “creation of wedding websites is pure speech,”Smith is compelled by Colorado law to create speech she would not otherwise agree to. But the law survives constitutional scrutiny, the court concluded, because it’s narrowly tailored to the state’s interest in ensuring that LGBTQ customers have access to the “custom and unique”Smith offers the following product. Although same-sex couples may be able have their wedding websites designed and maintained by another person, those customers will not be eligible for the same price. “will never be able to obtain wedding-related services of the same quality and nature as those that”Smith offers.

That’s a bizarre ruling, to say the least, which effectively says that every business is a monopoly unto itself. Will the Supreme Court again rule against speech compulsions? Or will it find a narrower path to resolve the purported conflict between gay rights, free speech, and compulsions? It could decide to overturn the selfmonopoly ruling and remand it for a more traditional analysis. Or, it could adopt a common-law monopoly lens to justify public-accommodation regulations. For example: the only inn that was within a reasonable distance of travelers must serve them. However, competing city merchants are not obligated to do so.

Election Law. The Supreme Court will now address a question that is recurring with increasing frequency at election times: whether there is a federal constitutional violation or remedy when a state court revises electoral rules created by the state legislature. Pointing to the Constitution’s Elections Clause (Article I, Section 4), proponents of cutting back state judicial authority frame the issue in stark terms: “Whether a state’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,’ and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”

Those “vague state constitutional provisions”Information “‘fair’ or ‘free’ elections” come from the North Carolina Constitution, such that the specific dispute at issue arises from the Tarheel State’s redistricting after the 2020 census. In Moore v. HarperThe state supreme court ruled that the congressional maps, as they were created by the legislature, were too gerrymandered.

It’s hard to predict what the U.S. Supreme Court will do here—perhaps harder than in any other major case yet on the docket. In 2019, the Court closed all federal constitutional challenges to partisan gerrymanders. Rucho v. Common Cause, for want of an administrable standard—which is why Moore v. Harperwas brought under state constitution law. Will a majority of justices now be able to set a standard regarding when a state court’s otherwise legitimate interpretation of state law crosses the line into depriving the legislature of its role in regulating elections?

Criminal LawNew York is the home of the largest criminal-law case. Percoco v. United States asks whether a private citizen who holds no government office or employment—but has informal influence over governmental decision-making—owes a fiduciary duty to the public, such that he can be convicted of honest-services fraud. Developer Steven Aiello paid $35,000 to Joseph Percoco, who served as the manager for New York governor Andrew Cuomo’s reelection campaign, to lobby a state agency to let Aiello’s company receive state funding without entering into a union agreement. Percococo was convicted of the crime and sentenced for six years.

The Court has taken up several honest-services-fraud cases of late, as well as considering other broadly worded statutes that leave it to prosecutorial whim whether to prosecute behavior regarded as “shady”But technically, it’s not illegal. After all, when a private citizen accepts money to convince the government to do something, we call him a lobbyist—and it’s unclear why that citizen’s close relationship to a government official would transform that transaction into a bribe.

The facts of this case, however, make it hard to believe that these noble principles are still valid. Percoco had only temporarily left a job in Cuomo’s office to manage his campaign. Percoco claimed that he would be returning to the Cuomo administration, even though he used his executive-office desk phone and desk. Indeed, a few days before he officially returned to his old job, Percoco called a state official from his executive-office desk and directed him to waive the required labor-peace agreement for Aiello’s project. Grab some popcorn and get ready for an entertaining oral argument.

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Immigration Law The Court has added one case to its docket that is reviewing executive authority over immigration policy as of this writing. Given Congress’s inability to legislate in this important area, immigration is perhaps the preeminent example of executive-branch “pen and phone”Governance. This is not the first time that justices have dealt with claims that a president violated the law by acting or failing to act in this context.

In United States v. Texas21 states claim that a Biden administration strategy that prioritizes deportation and arrest for illegal aliens is against the Immigration and Nationality Act and a violation to the Administrative Procedure Act. The September 2021 memorandum of Alejandro Mayorkas, Homeland Security Secretary, explains that his department lacks resources to apprehend all illegal aliens. It also instructs immigration officials to prioritize deporting three groups: terrorists, serious criminals, and those who are caught at the border.

Drew Tipton, United States District Judge, vacated the policy in June 2022. However, the parties disagree on whether this effectively constitutes a nationwide injunction against the reliance on priority-setting memos. The Fifth Circuit then rejected the administration’s emergency request to stay that ruling pending appeal, as did the Supreme Court, which instead decided only to review the merits of the case.

The government argues that states don’t even have standing to challenge the policy, and that Judge Tipton’s ruling impermissibly compels the executive branch to exercise policy discretion in a certain way, thereby disrupting Homeland Security operations. The states reply that they have a right to sue over direct financial harms from a federal policy, such as certain aliens’ remaining in state prisons for longer than they otherwise would. Moreover, they claim that the Mayorkas memo conflicts with Congress’s specific statutory instructions regarding INA enforcement and that the Department of Homeland Security didn’t jump through the proper hoops in setting its policy.

IYou might believe that the Supreme Court is making a drastic right-turn in law and pushing forward in this direction if you get your legal news via social media. On this reading, its rulings on last term’s big cases represent an ideological hijacking of our Constitution. What’s more, because Republican presidents appointed the six justices in the majority of each of these cases, these radical decisions were all just partisanship disguised as law.

That take—one unfortunately sees it not just from Twitter commentators but also from highly regarded law professors and journalists—is, to use the technical legal term, hogwash. As the Wall Street Journal put it, “The fury of the left’s reaction isn’t merely about guns and abortion. It reflects their grief at having lost the Court as the vehicle for achieving policy goals they can’t get through legislatures.” It’s an understandable impulse, but one that unfairly impugns the highest court in the land.

Let me know if you’d like to continue the unraveling of the mystery Burger Court.

Ilya ShapiroDirector of constitutional studies at Manhattan Institute, and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest CourtThe updated paperback edition of the book is now available. He also wrote the Shapiro’s GavelSubscribe to the Substack Newsletter This essay is adapted by a law review articleThe Cato Supreme Court Review has its latest volume.