Access To Justice Cases To Watch This Supreme Court Term

By Marco Poggio | September 23, 2022, 8:39 PM EDT ·

The Supreme Court's upcoming term beginning on Oct. 3 will focus on fights over equality, experts say. The justices will rule on LGBTQ rights and the First Amendment, voting rights and gerrymandering, affirmative action, indigenous rights and prisoners' access to habeas corpus.

Following a year where it shattered long-standing precedent, in the upcoming term the Supreme Court will focus on issues of equality. (AP Photo/Jose Luis Magana)


"You could call it an equality term," David Cole, the legal director of the American Civil Liberties Union, told Law360. "Many of the big cases involve what equal protection means and what protections against discrimination exist."

At a media briefing this week, Cole said litigants are asking the high court to invoke the Constitution to block efforts by government and institutions to protect the equality interests of disadvantaged groups.

"It's really an aggressive set of questions," he said.

Following a term that upended long-established law on issues impacting millions of Americans, such as abortion, religious teaching in public schools and the right to carry firearms, the court now appears poised to undo established precedent in lower court rulings, Cole said.

Law360 has rounded up the most relevant cases that will touch on issues involving civil rights and access to justice, including case details such as the number of amicus briefs filed for each case as of Sept. 23.

Voting rights and gerrymandering

Two cases could reshape the ways elections are conducted and limit government intervention in partisan redistricting.

In Moore v. Harper, the Supreme Court will decide whether the Constitution's elections clause, which empowers state legislatures to draw congressional maps and set rules for elections, also permits state courts to review them and possibly overrule them.

In the case, North Carolina Republican legislators asked the court to adopt a strict reading of the clause that confers power to regulate elections exclusively to state legislators.

Some civil rights attorneys and scholars worry that this interpretation, also known as independent state legislature theory, would cut off state judicial review on issues such as redistricting, which tend to be partisan, as well as post-election disputes. Their concern is that the theory could be taken further to undermine federal courts' jurisdiction on those disputes, and extend to presidential elections as well.

"If the plaintiffs win this case, they may very well decide that nobody could review the laws and regulations relating to how people vote in presidential elections. It would be a real step backward in our democracy," said Jerry H. Goldfeder, the director of the Voting Rights and Democracy Project at Fordham Law School and a special counsel at Stroock & Stroock & Lavan LLP focusing on election and campaign finance law.

The case began with a group of voters challenging a Republican-drawn congressional map in November 2021. The North Carolina Supreme Court struck down two iterations of that map, saying they violated the state's constitution, including a clause stating that "all elections shall be free." The court appointed a special master to draw a new map, inviting a challenge by the state legislators, who argued their power under the federal Constitution was usurped.

The second case, Merrill v. Milligan, focuses on whether a congressional map Alabama introduced after the 2020 census violated federal law. The proposed map includes only one majority-Black district, despite the fact that Black people make up about 27% of the state's population.

Section 2 of the Voting Rights Act of 1965 forbids discrimination in voting on the basis of race, color, or membership in a language minority. It also prohibits vote dilution, which is achieved by packing minority voters into fewer electoral districts or by breaking down districts with a dense minority population.

A group of Black voters and the NAACP sued Alabama on Nov. 16, saying the map violated the law. A three-judge panel for the U.S. District Court for the Northern District of Alabama agreed and ordered a new one to be drawn on Jan. 24.

"Redistricting is incredibly important, because it has a direct impact on allocation of power and resources," said Ashley M. Burrell, an assistant counsel at the NAACP Legal Defense & Educational Fund. "This is essentially about providing Black Alabamians a fair opportunity to elect a candidate of their choice."

Whether redistricting based on race directly favors a political party largely depends on geographical location, experts say.

Stuart C. Naifeh, an attorney who runs the Redistricting Project at the NAACP Legal Defense & Educational Fund, said that in the 1990s and in 2015 with Alabama Legislative Black Caucus v. Alabama , the Supreme Court shot down states' efforts to draw congressional maps based on race, purportedly to increase minority representation.

States went back to the drawing board and came up with electoral maps that were explicitly the product of partisan gerrymandering. The Supreme Court has held in its 2019 decision in Rucho v. Common Cause that federal courts cannot decide issues involving political gerrymandering.

Currently, challenging a congressional map as racial gerrymandering under the Constitution doesn't require showing a specific intent.

Moore v. Harper

Argument Date: TBD
Docket number: 21-1271
Total amicus filed: 23


Merrill v. Milligan

Argument Date: Oct. 4
Docket number: 21-1086
Total amicus filed: 37

"What you mainly have to show is that the government used race to draw the district lines and didn't have a good reason to do that," Naifeh told Law360.

The only instance in which the Supreme Court has recognized a deliberate consideration of race is to comply with the Voting Rights Act.

"You can't use race as the main reason that you're drawing district lines unless you're using it to create opportunity for minority voters," he said.

Affirmative action

Two cases involving race-conscious admission policies at Harvard University and the University of North Carolina could potentially overturn decadeslong affirmative action policies.

Students for Fair Admissions, a nonprofit funded by a conservative legal strategist who has long campaigned against affirmative action, asked the Supreme Court to overturn its 2003 landmark ruling in Grutter v. Bollinger , where it held that consideration of race in admissions is lawful as long as other factors are also considered.

In the case against Harvard, the petitioner argues the university penalizes Asian American applicants by requiring them to score higher than all other racial groups, including whites, to be recruited.

The case against UNC focuses on striking down Grutter, calling the decision "grievously wrong."

"Grutter tells universities that it's okay to treat students differently based on race — a legal imprimatur with well-known repercussions," the petition says. "Racial preferences, this court has explained, are poisonous."

Affirmative action has survived legal challenges for the past four decades, in a series of rulings that both affirmed it and limited it. In its 1978 decision in Regents of the University of California v. Bakke , the Supreme Court banned racial quotas in admissions, but said universities can use race as an additional factor to foster diversity, a legal framework that remains in place today.

The court upheld that doctrine in Grutter. During the same term, the court held in Gratz v. Bollinger that a points-based admissions system automatically boosting the admissions scores of minority applicants violated the equal protection clause.

Two more recent cases involved Abigail Fisher, a white female student applicant who sued the University of Texas at Austin, challenging its affirmative action policy. The Supreme Court ruled twice on the case, first in 2013, where it overturned lower court rulings in the university's favor but did not rule on constitutional questions. In the second ruling in 2016, the court held that the University of Texas' policies survived scrutiny under the 14th Amendment.

With the court's latest shift to the right and a shown resolve in overturning long-standing law, affirmative action advocates worry that precedent is now in peril.

"We're asking the court to hold the line," Yasmine Cade, a deputy legal director at the ACLU, said during a briefing. "Removing consideration of race in admission conflicts with a university's ability to select its own body."

But Clark Neily, a senior vice president for legal studies at the Cato Institute, a libertarian think tank, told Law360 the admission policies at stake in both cases defied the guidance the Supreme Court gave in previous rulings.

Students for Fair Admissions v. President and Fellows of Harvard College

Argument Date: Oct. 31
Docket number: 20-1199
Total amicus filed: 122


Students for Fair Admissions v. University of North Carolina

Argument Date: Oct. 31
Docket number: 21-707
Total amicus filed: 72

"In both cases, the use of affirmative action was pretty clearly outside the bounds of what the court permits," he said. Neily said the current court will "likely" strike down the policies of the University of North Carolina as unconstitutional and rule that Harvard's violated federal law.

"It is quite clear that while Harvard denies that it has any kind of a quota system, it really does," Neily said. "Just purely mathematically, it's indisputable that Harvard has significantly higher admission standards for Asian Americans than it does even for Caucasians. And that strikes me as problematic."

The two cases were eventually consolidated but were later separated to allow Justice Ketanji Brown Jackson, who before her Supreme Court appointment sat on Harvard's Board of Overseers, to recuse herself from the case involving the university.

LGBTQ rights and the First Amendment

303 Creative LLC v. Elenis, the case of a Colorado web designer who refuses to create websites for same-sex couples for religious reasons, presents a clash between protections of LGBTQ people from discrimination and the right to freely exercise religion under the Constitution.

The designer, Lorie Smith, sued Colorado in 2016 to block a state law that bars businesses from engaging in discrimination, arguing it stripped her of the freedom to express her views as a Christian. A Colorado federal court ruled against Smith in September 2019, and a three-judge panel of the Tenth Circuit upheld the ruling, saying the law survived scrutiny under the First Amendment.

In her 251-page petition to the Supreme Court filed on Sept. 24, 2021, Smith argues the Tenth Circuit "went off the rails," effectively allowing the government to force her to "convey messages that violate her religious beliefs and restrict her from explaining her faith."

Ruling on the case, the high court will address a deepening circuit split. Case law in the Eighth and Eleventh circuits arising from similar cases does not permit public-accommodation laws to compel or restrict speech.

The case is largely a remake of a 2018 Supreme Court case, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission . In that case, a baker who received a cease-and-desist order after refusing to make a wedding cake for a same-sex couple on religious grounds argued the same state law violated his First Amendment rights. The Supreme Court ruled in the baker's favor in a 7-2 decision, holding that the commission violated the Constitution's free exercise clause.

303 Creative LLC v. Elenis

Argument Date: TBD
Docket number: 21-476
Total amicus filed: 93

Cole of the ACLU said the petitioner is distorting the meaning of the First Amendment to enable discrimination.

"We are the country's leading defender of the First Amendment," he said. "But we do not think the First Amendment gives businesses that choose to serve the public the right to exempt themselves from a very ubiquitous rule that if you open a business to serve the public, you can't discriminate against members of the public based on their race, sex, sexual orientation, and the like."

Indigenous justice

Another case centering on equality involves a facial challenge to the Indian Child Welfare Act of 1978, a law that gives tribal governments the power to place Native American children removed from their families in cases of custody, foster care and adoption.

The law was passed to respond to high removal of Native children from their families, which at the time was 10 to 20 times higher than those from non-Native families. It required states to provide due process in removal cases, and to create a process that places removed Native children preferably in the custody of Native families.

Texas, Louisiana and Indiana argue the law discriminates on the basis of race and violates the principle of federalism spelled out in the 10th Amendment.

The case originated with a lawsuit brought by Texas couple Chad and Jennifer Brackeen, who sought to adopt a 2-year-old Native child but were blocked by a state court's ruling applying the Indian Child Welfare Act.

"By enforcing this racially discriminatory policy, the federal government places Indian children at risk for serious and lasting harm," the Brackeens said in their complaint. The U.S. District Court for the Northern District of Texas ruled that the law was unconstitutional in October 2018, but a Fifth Circuit panel reversed the ruling.

In a petition filed on Sept. 3, 2021, asking the Supreme Court to strike down the law, the three states argue it subordinates children's best interest to the preferential policy of routing them to Native foster parents and violates the Constitution's guarantee of equal protection. The states also said Congress overstepped its constitutional authority in passing the law, arguing that the case law gives states the exclusive power to regulate child adoptions.

"This confusion and conflict over the constitutionality of a federal statute would be problematic in any context, but is untenable in the sensitive area of parent-child relationships," the petition says. "The legal uncertainty discourages foster and adoptive families and leads inexorably to delay in the disposition of placement cases that deprives the children involved of stability that is critical to their well-being."

Haaland v. Brackeen

Argument Date: Nov. 9
Docket number: 21-376
Total amicus filed: 35

Cole squarely rejected the idea that Indian Child Welfare Act policies are discriminatory.

"We are very strong opponents of race discrimination. We don't think this is race discrimination," he said. He also said Congress has long had the right — and an obligation — under the Constitution to legislate with respect to Native American tribes.

"They are sovereign bodies within our jurisdiction," he said.

Access to habeas corpus

On Nov. 1, the justices will hear a case involving a federal prisoner convicted under the felon-in-possession statute who argues the court's 2019 ruling in Rehaif v. United States , which held that proving intent is necessary to convict a person under the federal felon-in-possession statute, made him legally innocent.

The case focuses on a provision in Title 28, Section 2255 of the U.S. Code known as the "safety valve" allowing federal prisoners who are barred from filing motions to vacate their convictions to use habeas petitions instead.

The court ruled in Rehaif that to convict someone under the statute, the government must prove that a defendant knew they were a felon and knew it was a crime for them to possess a gun. The petitioner in the instant case, Marcus Deangelo Jones, argues he believed his previous drug felonies had been expunged at the time he purchased a handgun in 1999.

Jones made that claim at trial but was convicted. He then failed to raise the claim in his first Section 2255 motion to vacate. Federal courts later told him he had missed the opportunity to raise that claim, and rejected several habeas petitions he filed over the course of roughly a decade.

But after he filed a petition on Dec. 7 asking the Supreme Court to resolve a "deep and mature circuit split" on the reach of the safety valve, the justices agreed to hear the case.

The case could impact thousands of people currently in federal custody who were charged under the statute and who might have exhausted their opportunities to seek review of their convictions based on constitutional flaws, such as ineffective counsel, Brady violations, or other breaches of due process.

For decades, the Supreme Court has been restricting the ability of incarcerated people to challenge their convictions on constitutional grounds through writs of habeas corpus. Most cases heard in recent years involved state prisoners seeking review in federal courts, raising legal issues of federalism.

Jones v. Hendrix

Argument Date: Nov. 1
Docket number: 21-857
Total amicus filed: 5

But because Jones v. Hendrix applies only to federal prisoners, there will be less ideological divide among justices, experts say.

"This whole situation doesn't involve the kind of federalism concerns that sometimes happen when it's a state court conviction," said Brandon L. Garrett, a habeas corpus scholar at Duke University School of Law.

Garrett said the current Supreme Court appears to be skeptical of overly broad federal crimes and is seeking to narrowly interpret federal offenses. That could result in a large number of habeas actions from people convicted for those offenses.

"There are a lot of people that were convicted of this crime before the Supreme Court clarified the law. So this is an issue of pressing practical importance," he said.

--Editing by Marygrace Anderson.

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