New Supreme Court term could impact affirmative action, civil rights

• Link to: Northwestern Now Story

EVANSTON, Ill. --- Each June, decisions in major cases are released as the United States Supreme Court term comes to an end. This year, consequential decisions are expected in cases on affirmative action, voting rights and LGBTQ+ protections, among other areas. Northwestern faculty are available to comment. To arrange an interview, contact Max Witynski at max.witynski@northwestern.edu.

Affirmative action

In affirmative action cases brought by a group called Students for Fair Admissions against two universities, the plaintiffs are arguing that race-conscious admissions policies — which they claim lead to discrimination against Asian and/or white applicants — are unlawful because they conflict with provisions of the Civil Rights Act and/or the 14th Amendment’s equal protection clause.

How exactly the Court rules will shape changes to the system going forward, according to Anthony Chen, an associate professor of sociology and affiliated faculty member at the Institute for Policy Research.

Quote from Professor Chen:

"Like everyone else watching the case, I will have a couple of critical questions at the top of my mind," Chen said. 

"How will the Court deal with the factual findings of the trial courts, which ruled in favor of Harvard and UNC? If the Court throws out affirmative action altogether, will they offer a new, sweeping constitutional rationale for their decision? Or will the Court rule narrowly to strike down the specific programs operated by Harvard and/or UNC because they were not precisely tailored enough?

"On the other hand, will the Court only appear to rule narrowly? Will it actually impose a de facto ban on affirmative action, either by making it easy for schools to come up with legally acceptable, race-neutral alternatives to affirmative action, or by requiring schools to provide unassailable empirical proof that their affirmative action programs are delivering the particular educational benefits that they promised to deliver?"

Ronald J. Allen, the John Henry Wigmore Professor of Law, says the impact of the case could be surprisingly far-reaching.

Quote from Professor Allen:

“When it hears new challenges to affirmative action this year, my guess is that the Court is finally going to say that racial discrimination by state actors is not permissible, which is going to be a bigger bombshell than the Dobbs decision from last term, both because of the age of the precedents that it will overturn and the way its impact will be felt across society, not just in college admissions."

Kate Masur, the Board of Visitors Professor of History at the Weinberg College of Arts and Sciences, says a ruling against affirmative action would be out-of-step with the historical justification for such practices.

Quote from Professor Masur: 

“The 14th Amendment passed Congress in 1866 and was ratified in 1868. As an historian of Reconstruction, I know that [the plaintiffs’] portrayal of the Amendment’s framers is incorrect, and I helped write an amicus brief that makes that case. The legislators who passed the 14th Amendment adopted a variety of race-conscious policies, including the nation’s first federal civil rights statute, which sought to ensure that citizens of ‘every race or color’ had the same civil rights as ‘white citizens.’ These men knew that white people had heretofore enjoyed legal advantages and sought to remedy that with a race-conscious law that is still part of our federal code.”

Voting rights and redistricting

Two cases before the court — Merrill v. Milligan and Moore v. Harper — could have a major impact on the way congressional districts are drawn by limiting protections for minority groups (Merrill) and state supreme court oversight of gerrymandering that benefits one political party (Moore).

“I think both cases are potentially very big decisions,” said Michael Kang, the Class of 1940 Professor of Law. “The Voting Rights Act case [Merrill] has the potential to gut Section 2, the primary remainder of the VRA after the Shelby County decision earlier ended the preclearance provisions. The Court may be poised to bar majority-minority districting, which has been a linchpin of the VRA since the 1980s and helps guarantee some representation for racial minorities. We don’t know exactly what the Court will do in the case, but it carries that sort of transformative possibility.” 

Moore v. Harper, Kang said, is actually harder to predict.

“We know the Court will adopt some form of the independent state legislature doctrine because, based on earlier decisions, it looks like there’s a majority for it,” Kang said. “There are stronger and weaker forms of the doctrine we can imagine. Obviously, there’s a lot of attention to this case because, whatever form it takes, it threatens to sideline state courts to some degree in their authority to shape election rules under state law and therefore give state legislatures greater discretion to control elections.” 

LGBTQ+ rights

In the case 303 Creative v. Elenis, a Colorado wedding website designer wants to include a provision on her website explaining that she prefers not to design websites for same-sex couples on religious grounds, arguing that doing so would compel her to speak in a way that conflicts with her religious beliefs, in violation of the First Amendment. The Court’s decision could have implications for how businesses treat LGBTQ+ customers.

“The religious claimant will almost certainly win,” wrote Andrew Koppelman, the John Paul Stevens Professor of Law, in a recent Canopy Forum piece. “The question is whether she prevails on appropriately narrow grounds, or whether the Court will balloon the law of free speech into anarchical proportions.”