Chemerinsky: A year of significant developments at the Supreme Court
Erwin Chemerinsky. Photo by Jim Block.
In 2023, the U.S. Supreme Court again dramatically changed the law. What were the most significant developments of the past year?
Code of ethics
On Nov. 13, the Supreme Court announced that it had adopted its first ethical code for justices.
This followed revelations of alleged improprieties by some of the justices. ProPublica revealed that Justice Clarence Thomas had accepted gifts and luxury travel from Republican megadonor and billionaire Harlan Crow for years without disclosing it as federal law requires.
Also, Crow apparently purchased Georgia real estate from Thomas in 2014, including the home where the justice’s mother still lives, and paid for Thomas’ grandnephew’s private school tuition. Also, Thomas apparently never repaid a “substantial portion” of a $267,230 loan from a friend named Anthony Welters that he used to purchase a luxury RV.
ProPublica reported that Justice Samuel Alito did not disclose that he took a luxury fishing trip with billionaire Paul Singer, whose hedge fund has repeatedly had business before the high court. Politico reported that Justice Neil Gorsuch sold real estate to the head of a law firm with cases before the Supreme Court and did not disclose the purchaser’s identity. The Associated Press reported that Justice Sonia Sotomayor’s staff “prodded” schools and libraries to purchase her books when she was speaking there.
In July, the Senate Judiciary Committee, by an 11-10 vote along party lines, advanced a bill that would require the high court to adopt an ethics code. The justices, on their own, did exactly that in November.
In a prefatory statement, the justices said there was a misunderstanding that the justices were unconstrained by ethical rules and said “to dispel this misunderstanding, we are issuing this code, which largely represents a codification of principles that we have long regarded as governing our conduct.”
The code of ethics is very similar to the ABA’s Model Code of Judicial Conduct. The most important omission is any enforcement mechanism. It remains entirely left to each justice to decide whether to be disqualified in a particular case. In fact, in a commentary following the ethics code, it says: “Individual justices, rather than the court, decide recusal issues.”
Overruling important precedent without saying so
One significant development was the Supreme Court effectively overruling two major precedents without acknowledging that it was doing so.
In Students for Fair Admissions v. President and Fellows of Harvard College, the high court held that colleges and universities can no longer engage in affirmative action and use race as a factor in admissions to benefit minority students.
This effectively overruled its earlier decisions in Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003) and Fisher v. University of Texas (2016). It will mean dramatic change in the admissions process for a significant percentage of all schools. Although all the concurring and dissenting justices saw this as overruling precedent, and there is no doubt that is what the Supreme Court did, nowhere in the high court’s majority opinion does it say that these earlier decisions are overruled.
Similarly, in Groff v. DeJoy, the high court effectively overruled a prior decision—but without saying so. The issue is what an employer must do to accommodate an employees’ religious beliefs and practices to meet the requirements of Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, sex or religion.
In 1977, in Trans World Airlines Inc. v. Hardison, the Supreme Court held that an employer doesn’t have to accommodate an employee’s religion if doing so would impose more than a minimal cost on the employer.
In Groff v. DeJoy, the Supreme Court said this standard provides inadequate protect for religious freedom and it adopted a new approach. The Supreme Court held that an employer must accommodate an employee’s religious beliefs, unless doing so would impose a substantial cost on the employer. This is a dramatically different standard, which will lead to a great deal of litigation. It effectively overrules Trans World Airlines Inc. v. Hardison, but the high court did not do so explicitly.
Advancing a conservative agenda
Again this year, the effect of having a solid conservative majority, with six conservative justices, was evident. The 6-3 decision to end affirmative action by colleges and universities was one example of this. This also was apparent on the last day of the 2022 term, June 30, when the Supreme Court handed down two major cases.
In 303 Creative v. Elenis, the high court held that it violates the First Amendment to apply a state’s anti-discrimination law to a business when doing so would require expressive activity that violates the owner’s beliefs.
Lorie Smith owns a business in Colorado of designing websites. She wanted to expand her business to design websites for weddings but did not want to do so for same-sex weddings saying it would violate her religious beliefs. Colorado law prohibits business establishments from discriminating based on sexual orientation.
The Supreme Court held that to apply the anti-discrimination law for failing to serve same-sex weddings would violate Smith’s freedom of speech. The Supreme Court did not grant review on or decide the free exercise of religion issue. Gorsuch for the majority said it would be impermissible compelled speech. In light of this ruling, there will be much litigation over what constitutes expressive activity, when there is compelled speech, and whether the government’s compelling interest in stopping discrimination should matter.
Also on that day, the Supreme Court decided Biden v. Nebraska. The justices, again 6-3, invalidated the Biden administration’s student loan relief program.
This provided up to $20,000 in student debt forgiveness to about 43 million people. Although a federal statute authorizes the secretary of the Department of Education to “waive or modify” student loan obligations in an emergency, the Supreme Court invoked the “major questions” doctrine to strike this down.
The Supreme Court, in an opinion by Chief Justice John Roberts, said whether to give such extensive relief was a major question of economic or political significance, and that there wasn’t sufficient congressional authorization for it to be permitted. The decision reflected the Roberts Court’s continued use of the “major questions” doctrine as a significant limit on the power of federal administrative agencies.
Protecting voting rights
But not every major decision adopted the conservative position. There were two major cases that protected the electoral process. In both, the majority opinion was written by Roberts.
In Allen v. Milligan, the high court ruled that Alabama violated Section 2 of the Voting Rights Act in its drawing of congressional districts. Section 2 prohibits state governments from discriminating against voters of color in their election practices. In 1982, Congress amended this provision to make clear that proof of a racially disparate impact is sufficient for liability; there does not have to be proof a discriminatory intent.
The population of Alabama is about 27% Black. After the 2020 census, the Alabama legislature drew new districts, but only one of seven had a majority-Black population. In a 5-4 decision—with Sotomayor, Justice Elena Kagan, Justice Brett Kavanaugh and Justice Ketanji Brown Jackson joining Roberts’ opinion—the high court affirmed the lower court and found that this violated Section 2 of the Voting Rights Act. The Supreme Court relied on and reaffirmed Thornburg v. Gingles (1986), which prescribed a test for determining when redistricting violates the Voting Rights Act.
After the Supreme Court’s ruling, the Alabama legislature drew new districts but still only one had a majority-Black population. A three-judge federal court invalidated this; the Supreme Court denied certiorari; and the lower court then imposed a new map, which creates a second majority-Black district.
In Moore v. Harper, the high court rejected the “independent state legislature” theory.
The North Carolina Supreme Court found that the North Carolina legislature violated the North Carolina Constitution in drawing election districts to create safe Republican majorities in 10 of 14 congressional districts. Republican leaders of the North Carolina legislature urged the Supreme Court to hold that under Article I, Section 4 of the Constitution, it is solely for the legislature to decide the “the times, places and manner of holding elections” for Congress, and therefore state courts could not get involved.
The Supreme Court, in a 6-3 decision, rejected the “independent state legislature” theory. The high court stressed that nothing in the Constitution prevented state courts from interpreting and enforcing state laws regarding elections.
But at the end of the majority opinion, Roberts left open a possible avenue for federal judicial review, stating: “Although we conclude that the elections clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein. … We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
It is unclear what it means to “transgress the ordinary bounds of judicial review,” and this is sure to lead to litigation in the future.
In conclusion
Sometimes in the past, a blockbuster term—like the one a year ago—is followed by a quieter one. But that was not true this year. It was another amazing year in the Supreme Court.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
