The Legal Impact: Summer 2023 SCOTUS Wrap-up

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John Greabe

Professor John Greabe gives a wrap-up for some of the major SCOTUS cases for summer 2023 term including FAIR v. Harvard, National Pork Producers v. Ross, Moore v. Harper, and more. Produced and Hosted by A. J. Kierstead

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Legal topics include SCOTUS, constitution, news, elections, affirmative action, diversity, commerce, finance, freedom of speech

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A. J. Kierstead, Host:
This is The Legal Impact, a podcast presented by the University of New Hampshire, Franklin Pierce School of Law, now accepting applications for JD and graduate programs. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or host and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire and UNH Franklin Pierce School of Law.
I'm your host, A. J. Kierstead. Today, I'm joined by Professor John Greabe, director of the Warren B. Rudman Center for Justice, Leadership & Public Service. Learn more about them over at law.unh.edu/rudman.
Welcome back to the show.

Professor John Greabe:
Nice to see you, A. J.

A. J. Kierstead, Host:
Let's not bury the lead. I really want to start off with Students for Fair Admission, also known as Fair v Harvard College and the University of North Carolina, which struck down race-based affirmative action in college admissions. This case has been a long time coming. It's been discussed for many years with what Fair has been trying to do. What's going on here?

Professor John Greabe:
Yeah. It was not a surprise at all. Really affirmative action, the idea of government using racial preferences in decision making and in imposing burdens and distributing benefits, it has been hanging on by the fingernails since a pair of decisions in the early 2000s that came from the University of Michigan.
One decision struck down the admissions policy of University of Michigan undergraduate for having race play too big a role. But the law school admissions policy at University of Michigan Law School was upheld in a narrow decision written by Justice Sandra Day O'Connor, who's of course since left the court. It held that the achievement of the educational benefits that flow from racial ethnic diversity in the classroom, as one factor among many, that that was a sufficiently strong interest to let secondary schools and post-secondary schools take race into account in constituting their incoming classes.
She also, near the end of the opinion, very famously said she expects ... or speaking for the majority, that they expected that in 25 years there would be no more need for the use of race in this way. This was a 2003 decision, so we're talking 25 years being 2028. We're a few years short of that, but as pair of cases actually reach the court, I think it surprised nobody that the court didn't wait the full 25 years to [inaudible 00:02:32] the diversity rationale as a sufficient reason for permitting government to take race into account.
As a consequence of this decision, both state institutions and private institutions such as Harvard are barred from explicitly using race as a criterion in constituting incoming classes in education.
Harvard is not the government. It was actually interesting, the way the opinion was written, it talked about how both the Harvard plan and the North Carolina plan violated the equal protection clause, but the equal protection clause does not, by its terms, apply to Harvard, which is a private entity. What applies to Harvard though is Title VI of the Civil Rights Act of 1964, which bans discrimination by entities receiving federal funding. That's how Harvard was hooked into this.
That's why this is going to have a pervasive effect. This isn't a ruling that just affects public universities. It's going to affect all secondary schools.

A. J. Kierstead, Host:
Something that's interesting to point out also is there are a handful of states that already had this on the books, including New Hampshire, right?

Professor John Greabe:
That's right. New Hampshire has a statute on the books that already barred the university system, our schools within the university system, from using race. Michigan and California and Texas all, quite notably, changed their law so as to ban the use of affirmative action, so those jurisdictions have gone in other directions in terms of constituting classes. So there are lots of roadmaps out there for universities as we move ahead.
One plan used in Texas is to admit a certain percentage ... In Texas, the top 10% of all graduating students from any high school class gets admitted to the University of Texas. That has a diversifying effect along racial and ethnic metrics, because so many schools are racially identifiable in the country. There's so many schools which are not integrated.
Yeah. It's not a surprise at all, but it's a major, major decision. It's, yet again, this Supreme Court overruling a major precedent. The majority didn't say they were overruling the Grutter decision from 2003, but the dissent makes a pretty powerful argument that they did, because it does seem as though Harvard and University of North Carolina really did try to implement a system based on the guidance from that Grutter decision in 2003, which was in turn based on an opinion written by Justice Powell back in a case called Bakke from 1978.
This is something that the Supreme Court has been struggling with for decades. Clearly, as we look ahead, universities are not going to give up attempting to enroll diverse classes. The question as we move ahead is how. The court was pretty clear that using methods that are really pretextual, that are designed to hide a racial motivation, that that's not going to be allowed.
But then the court also did say none of this means though that a university can't act favorably on an applicant who says, for example, "Here's my essay. I'm going to talk to you about how being a member of a historically disadvantaged group has really affected my life."

A. J. Kierstead, Host:
Which Harvard responded with a direct response, within the first 24 hours after the ruling, directly reinforcing that they are aiming on going in that direction.

Professor John Greabe:
That's right. Yeah. Yes. You're going to see that line. So the question is going to be how is that line going to be interpreted? Justice Gorsuch and Thomas wrote separately to suggest that they actually view Title VI, which applies to public and private institutions, by the way, as banning race even more than the equal protection clause does. That if race plays any factor whatsoever in a decision, that that's going to be a violation of Title V1.
I don't know that there'll be five votes for that proposition, but that Justice Gorsuch drew on the opinion that he wrote a few years ago, which interpreted Title VII, which bans discrimination in employment because of sex, he construed that to apply to discrimination on the basis of sexual identity or sexual orientation as well with a very formal but for analysis. If they use that same analysis in this context, if the university acts favorably on somebody writing about race, that might be problematic for those justices. We'll see if that garners a majority of the court.
A couple of other just interesting things about the case. A very, very powerful dissent penned by Justice Ketanji Brown Jackson, the newest member of the court, who is just concluding her first year of service on the court. Justice Thomas has written very powerfully over the years about his belief that affirmative action imposes stigma. He's used language suggesting that affirmative action, howsoever motivated, is just as evil as the segregation that led to Jim Crow in America. Boy did Justice Jackson take issue with that view, and clearly got to, in my view, Justice Thomas.
His dissent really went after her separate opinion in dissent. Not his dissent, I'm sorry, his concurring opinion really went after her dissent in an angry way. She kind of ignored him, except a footnote at the end saying, "Justice Thomas's prolonged assault on what I've written here attacks a dissent that I didn't write, based on reasoning that I didn't employ."
Interesting to see the level of tension there between Justice Thomas, who's obviously under a lot of pressure because of continuing revelations about his behavior, and because his jurisprudence is so controversial, and the newest member of the court, Justice Ketanji Brown Jackson, who as a new member of the court, was not reticent this term. She was right there and very involved all along the way, asking ... She was one of the biggest questioners among the justices, et cetera. A very, very interesting case.

A. J. Kierstead, Host:
To wrap this segment of it, it's a big deal when you're going to the court. You need to show some way that a party is being harmed by whatever law is in effect or something of that nature. Fair was making the case that Asians were being discriminated against. Does this remotely address their problem that they had from the onset?

Professor John Greabe:
Well, we'll see what happens now. There certainly were probably Asian or Asian American applicants who got a boost from certain affirmative action plans. On the other hand, Asian Americans perform very ... I think the sense that they were being discriminated against comes largely from the fact that they perform very well in terms of GPA and tests. Those are not the only thing, though, of course that goes into an admissions decision.
We'll have to see. The lower courts in these cases found that there was no discrimination in fact against Asian Americans. The Supreme Court really didn't deal with those factual findings. The court just went really right away to the legal question. Obviously, they found that there was enough there to confer standing, as you pointed out, but that wasn't really the focus of the opinions.

A. J. Kierstead, Host:
All right. Let's move over to the next case, which is one I was not terribly familiar with until you brought it up. National Pork Producers Council v Ross, Secretary of California Department of Food and Agriculture, which is addressed in California's Proposition 12. Justice Gorsuch wrote the majority opinion, appears to connect the Constitution's interstate commerce clause with what was going on with this proposition. Is that fair?

Professor John Greabe:
Yes, yes. I hope your audience finds this interesting. I find this case super interesting, but I will say that when we cover the doctrine that's at issue in this case ... It's called the dormant commerce clause. You probably heard collective groans go up throughout the building when I would teach dormant commerce clause doctrine.
So let me start with what dormant commerce clause doctrine is. There's no such thing as a separate dormant commerce clause in the Constitution. There is a commerce clause. The commerce clause appears in Article I, section eight, clause three of the Constitution. It gives Congress the power to regulate commerce between and among the states. That's an affirmative grant of power to Congress. It's heavily relied upon in federal legislation that Congress enacts.
From that grant of power to Congress, the courts have also inferred that the states are prohibited from interfering with interstate commerce. They call this doctrine. It's an inference. It's a negative inference drawn from the commerce clause. The idea is that the commerce clause preempts the ability of states to interfere with interstate commerce. It goes all the way back to, one of the principle forces at the founding was to stop the states from engaging in economic warfare with each other.
Dormant commerce clause doctrine is notoriously difficult for students. It's pretty incoherent, quite honestly. It's a series of cases that's that stand for the proposition that, first, states as regulators cannot discriminate against out-of-state persons and entities in the way that they regulate, so as to give a benefit to in-state persons and entities.
Then secondly, there's this other strand of this doctrine that says, and even if the state isn't discriminating against out-of-staters, even if it's adopting regulations that apply to everybody, if those regulations impose a burden on interstate commerce that really outweighs the benefits of the law, courts can strike it down.
This particular case is interesting in that California doesn't produce very much pork, but it consumes a great deal of pork. So by California adopting this Proposition 12, which dictates how sows have to be housed in order for the meat of their offspring to be sold in California, the claim was made that what California was trying to do was to impose an animal welfare law on the rest of the country, because more than 99% of pork producers are outside the state of California. California was effectively shutting its market to these producers unless they house sows in a way that California specifies, and that is not the industry standard.
The case really led to a highly fractured result. At the end of the day, California's law was upheld in an opinion by Justice Gorsuch, as you point out, that actually drew support from both liberal and conservative members of the court.
Anyway, the reason I think this case is so interesting ... I think it's interesting in and of itself, but the implications are pretty significant for an issue that, of course, remains on everybody's mind after the Dobbs decision from last term, which is abortion. The extent to which states ...
Many states have already moved to not only regulate or even ban abortion within their territorial limits, but also to seek to prevent people, residents of the state, from traveling to other jurisdictions to obtain abortions. The question is, is that appropriate? Can states regulate in such a way as to try to prevent their residents, when their residents are not in the state, from engaging in certain behavior?
The default rules ... It's always been understood, right? What happens in Vegas stays in Vegas. We, from New Hampshire, gambling like in Las Vegas is not a thing here. But if we travel to Las Vegas, we get to gamble if we want to. We come back to New Hampshire, we don't expect to be arrested or fined for violating New Hampshire law.
Things are different though right now. The states are divided into what we call red states and blue states. The states have become agents for challenging the policies of the party with which they disagree in litigation and states. Some states are simply not content with saying, "This is how it's going to be here." They want to go to the limits that the Constitution allows.
So this dormant commerce clause doctrine and similar doctrines ... There are other doctrines too. There's two doctrines drawn from Article IV of the Constitution. One is called the privileges and immunities clause of Article IV, and there's another called the full faith and credit clause of Article IV. Those two doctrines also seek to protect out-of-staters from regulation by states that puts them at a disadvantage vis-a-vis either their own residence.
These sorts of doctrines could well be in play as we turn to the next generation of laws that seek to regulate in controversial areas like abortion or immigration, for example. Justice Kavanaugh wrote separately in the Pork Producers case to actually talk about that, and to acknowledge that issue, and to actually try to lay down a marker that the states are constrained in what they can do, at least according to Justice Kavanaugh. That's pretty important, because he's one of the crucial votes as these sorts of cases come back to the Supreme Court.

A. J. Kierstead, Host:
Another subject around these lines that I'm not sure if connects to this or not is the widespread outlook of TikTok being problematic, and that many states are now be beginning to address this either within their governments, but other states, I believe it's Montana is the first state that tried to ... is working to outlaw it at the state level. Do you think this case will have context for this going forward?

Professor John Greabe:
Yeah, it absolutely could. That's another thing. There are certain areas where ... That that's a slightly different doctrine, but there are other areas where the states are barred from acting, because it's understood that the federal government has the prerogative. Immigration is really the big one, because it's always been understood that immigration is regulated at the federal level, but states and certainly states that struggle more with immigration issues are seeking more and more to flex their muscles in this area.
So resolving conflicts of law between the federal government and the states is something that the court may well have to get involved in. It's already had a couple cases go to the court on that issue. Like you say, regulation of TikTok.
States ... We are a country right now that is peeling back federal power. There's no question about it. Some of the big decisions of this term really made clear that this court is intent on disempowering federal agencies. What is likely to happen is that there is going to be more and more regulatory authority pushed down to the states. So this is a dynamic that's going to reappear time and time again.

A. J. Kierstead, Host:
That kind of does go into this last case we're going to do a deeper dive on, in Moore v Harper, which hits on gerrymandering, a subject we've addressed many times in the past in this podcast, because it's been very relevant to New Hampshire for the last several years. In this case, they said that the states' courts have rights to make decisions on rulings by state congress. Dive into this.

Professor John Greabe:
Yeah. This is getting in the weeds here. A few years ago, the US Supreme Court, in a case called Rucho, held five to four that partisan gerrymandering cannot be challenged in federal court under the federal constitution, even if it gets to a level that violates the Constitution.
In that decision, though, the court made clear that that limitation does not apply to state courts applying state constitutions, that if state constitutions protect against partisan gerrymandering claims, and if state courts want to recognize that, then the ruling in Rucho show doesn't bar that.
That's what happened. North Carolina drew a map after the last census that was alleged to have ... Actually, it did. It was undenied that it engaged in extensive partisan gerrymandering. The North Carolina Supreme Court construed a provision of the North Carolina constitution to have been violated and held that that map could not be used.
At that time, the North Carolina Supreme Court had a four/three Democratic majority. Following the next election, Republicans took over the North Carolina Supreme Court. That decision was withdrawn. The case went to the Supreme Court. There was actually a question of whether it had become moot because of what had happened at the state level. But a majority of the justices said, "No. It's not moot," because North Carolina did not reinstate the map that was originally struck down, and so that there was still potential relief available if in fact the court were to adopt a strong version of this independent state legislature doctrine.
But this doctrine holds that when it comes to federal election, so we're only talking about federal election, because the state legislatures draw maps for Congress, and state legislatures certify electors for when we elect president. Okay? That's under Article I and Article II of the Constitution. Insofar as we're talking about federal elections, the independent state legislature doctrine ... the strongest version of it argued that it's up to state legislatures and state legislatures alone to draw federal congressional maps and to certify the slate of electors that go to vote at the electoral college. State courts cannot review the actions of state legislatures under the state constitution.
That's the strong version. That version was rejected in Moore versus Harper. A majority of the court said no. Yes, federal courts can review state court determinations under state constitutions that the state legislature has gone too far. That is subject to federal review, because the federal constitution does confer power in state legislatures, in the elections clause of Article I and in Article II, which talks about the electoral college. So there is going to be some review. The court didn't specify what the standard is going to be, but it pretty strongly suggested that there's going to be deference to state courts.
Now, this was of course, closely watched because state legislatures have been proposing all sorts of stuff in the voting area leading up to, and in the years since, the 2020 election. So there was a lot of concern that a state legislature could, on its own, just decide to certify, for example, a different slate of electors than the one that was chosen in the popular vote for president.
Now that would, I think, pretty clearly violate the federal constitution. I don't think that could have happened anyway. But this idea of totally unconstrained state legislatures was worrisome to certain people who are concerned about the state of our democracy. This was viewed as ... not what it could have been, as a ruling that, yes, preserved a role for federal review, but no, didn't leave state legislatures unconstrained when it comes to federal elections.

A. J. Kierstead, Host:
What does this mean for New Hampshire, which recently did have a case go to the state supreme court around this?

Professor John Greabe:
Yeah. It really doesn't change anything in New Hampshire. The reason it went to the state supreme court is that the governor vetoed the map that the legislature came up with after the last census. Then a lawsuit was filed. The lawsuit said, "Look. The legislature, we can't keep using the old maps," because there'd been population shifts in New Hampshire. There is a federal constitutional principle of one person, one vote. So the two districts in New Hampshire, for congressional elections, need to have roughly the same number of people in them. That lawsuit brought the thing to federal court.
What happened is the state supreme court very quickly became involved and said, "Look. You've missed your deadline. Under our law, that means that we appoint an expert who draws maps." They did so. Those maps were used in the 2022 congressional midterms elections here in New Hampshire.
Now, there's still litigation in New Hampshire state court about gerrymandering too, the gerrymandering of the executive council districts and the state senate. None of that is affected by the independent state legislature doctrine. That doctrine only applies to what the legislature does in connection with federal elections.

A. J. Kierstead, Host:
All right. Those are three big cases, but there are many other on the slate this past term. Just five minutes. Talk about some of the other things that stood out to you.

Professor John Greabe:
Well, one dynamic I already referenced, and one case I already referenced, was Biden versus Nebraska, where the Biden administration forgave billions of dollars in student loans. The Supreme Court said, "Can't do it," and once again invoked this new doctrine that is emerging called the major questions doctrine.
The major questions doctrine holds that the court is going to give a very narrow reading to statutory grants of authority from Congress to federal agencies when federal agencies undertake measures that have profound economic or political effects in the country. It's basically a rule of construction that says federal statutes are going to be narrowly construed. That's very different from what the rule was under a case called Chevron, decided in the 1980s, that said, "We actually defer to agency interpretations of the statute that gives them power."
This major questions doctrine was used to strike down efforts to require that people at certain businesses be vaccinated, or else wear a mask and be tested once a week, during COVID. It struck down a plan to apply the Clean Air Act, try to prompt electric producers to move to more clean energy sources. Now, it's been used a third time to say that order was based on a construction of the statute that was not contemplated by Congress when Congress enacted the statute.
This is going to continue, I think, to come up again and again. There's already a case on the docket for next year where the court is going to explicitly consider whether to overrule its Chevron precedent from the 1980s. I expect that the court is basically going to say, "Chevron's already overruled, de facto," because it is, quite honestly.
The net effect of this, the court has also, in other cases, said, "Well, if Congress does want to give more power to administrative agencies, then we have a different problem." That's a problem called the non delegation doctrine. Now, it's not been since the 1930s that the court has held that Congress violated the Constitution by delegating too much legislative power to executive branch agencies. But several members of the court have expressed enthusiasm for a renewed focus on that doctrine.
On the one hand, what you have in major questions doctrine is you have the court saying, "Grants of power to agencies need to be very, very narrowly read." If though, the agency is very clear, we want to give a lot of power, we want to give a lot of power, then there's going to be a constitutional problem with that. So it's going to pinch in from both sides.
I think the power of the administrative state is going to be severely curtailed by this court. They're going to use the major questions doctrine. There's also another case on the court's docket for next year which may well hold that the funding mechanism used for the, I always get the acronym wrong, Consumer Financial Protection Bureau ... Did I get that right? C-F-B ... Whatever. But the agency that Elizabeth Warren takes responsibility credit, depending how you view it, for forming, that the way in which that agency is funded is unconstitutional. Again, that has ... There are lots of federal agencies that are funded in that way, independent agencies that are designed to be more independent of the political branches. That could have profound effects. The movement in the area of administrative law is significant.
I'd also mention, just again, that we see religious persons continuing to win at the Supreme Court. A postal worker who did not want to work on the Sabbath, but was made to work on the Sabbath because doing so caused more than a de minimis inconvenience to his employer, brought a claim under the free exercise clause. The court did away with that de minimis standard and said that persons such as this worker need to be accommodated unless it imposes an undue burden on the employer, which is a much higher standard.
Then of course, there was the website designer case. That was not framed explicitly as a battle between the free exercise clause and the anti-discrimination principles, free speech. This was a web designer who said that it would violate her First Amendment speech rights to be compelled to design a website for a same-sex couple.
Now, her First Amendment speech rights were tied to her religious beliefs. That's why she didn't want to be speaking in this way. The court, to no one's surprise, but over strong dissents, held that she could not be compelled, by anti-discrimination laws, to do the work that she didn't want to do.
Now, this is the first time, though, that the court has held that businesses, which are places of public accommodation, can exempt themselves. Again, the case was based on free speech principles, but it won't be long until religious persons make a similar claim under the free exercise clause and say, for religious reasons, even though I'm a place of public accommodation, I'm a hotel, I'm a restaurant, I'm a business owner, I don't want to do business with certain types of people because of my religious beliefs.

A. J. Kierstead, Host:
Professor John Greabe, Warren B. Rudman Center for Justice, Leadership & Public Service. Thank you so much for joining me.

Professor John Greabe:
Thanks for having me, A. J.

A. J. Kierstead, Host:
Thanks for listening to Legal Impact, presented by UNH Franklin Pierce School of Law. [inaudible 00:28:42] about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple Podcast, Google Podcast, and Spotify. Get the back episodes of the show and podcast links at law.unh.edu/podcast.

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