A Review of Significant Supreme Court Decisions of the 2022-23 Term
| Publication year | 2023 |
| Pages | 48 |
By Kevin R. Eberle
Two years ago, the review of the marquee cases from the 2020-2021 Supreme Court term included legally significant cases, but few can probably recall them by name or impact. Last year, a shift toward a conservative majority led to cases that not only changed the law— sometimes dramatically—but also lit up internet forums and newspaper front pages for weeks. The reversal of Roe v. Wade has, even a year later, continued to shape political conversations.
The recap last year predicted that one of the most significant long-term changes did not directly concern the decisions themselves but the sharp decline in public confidence in the Court. Support for and confidence in the Court had sagged to the lowest point recorded since Gallup began tracking the number. (Support has dropped even further since then.)[1]
The 2022-2023 term produced important decisions with decidedly conservative bents on hot button topics. The most important are summarized below. But lawyers interested in the long-term will also pay attention to news about the lack of a code of ethics in the Supreme Court. Each week produces another news cycle about justices' accepting benefits without disclosures or recusals. As one senior district judge wrote in a New York Times opinion piece:
The recent descriptions of the " behavior of some of our justices and particularly their attempts to defend their conduct
have not just raised my eyebrows; they've raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice's spouse prominently involved in advocating on issues before the court without the justice's recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice's taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice's family member covered by a wealthy benefactor? Wow.[2]
Whatever happens—either self-imposed by the Court itself or imposed on it by Congress—might have implications on which justices are able to hear cases and will likely lead to a change in public reaction to the Court, either stanching the loss of public confidence or hastening the slide. Lawyers should carefully follow the discussion of high court ethics in 2023-2024.
While Congress and the Court consider possible ethics reforms, the Court moves along with its regular resolution of legally, politically and culturally important cases. All its opinions are, by definition, important, but five stood out among the rest for both lawyers and lay-people.
Affirmative action is unconstitutional
Students for Fair Admission, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (6-3)
The most widely anticipated case of the last term was a challenge to the affirmative action programs. The 40-page majority opinion was followed by nearly 200 pages of concurring and dissenting views. The Court ruled that race-based preferences in college admissions programs violated the Equal Protection Clause. While racial diversity had earlier been ruled to be a compelling interest of a state, the use of race had to have an endpoint. Absent any expected endpoint, the Court would not defer to academic freedom to achieve that compelling interest and ended race-based affirmative action in higher education.
The Fourteenth Amendment provides that no State shall "deny to any person . . . the equal protection of the laws."[3] The main goal of the Fourteenth Amendment is to eliminate racial discrimination, and "[eliminating racial discrimination means eliminating all of it."[4]Therefore, exceptions have been severely hard to come by using a "strict scrutiny" analysis that asks (1) if the use of race would serve a compelling state interest and (2) if the use of race was necessary to achieve that interest.
In Bakke v. Board of Regents, the Court had ruled that a state interest existed not in racial diversity per se, but in the educational benefits that flow from that diversity. Race could be used on a limited basis, and only as a "plus" to an application, in a flexible approach according to Justice Powell. Harvard, filing as an amicus, gave as an example that having a Black student in the mix at Harvard would benefit the student body in the same way that having a farm boy from Idaho would, but that having (another) Bostonian would not. In other words, racial diversity would be a form of diversity where the variety, not the race of the student, would lead to the benefit. Years later, in Grutter v. Bollinger, the Court squarely approved of Justice Powell's approach in Bakke, but one additional requirement was added: at some point, the use of race must end.
Returning to the recent case, the Court found the admissions programs failed strict scrutiny review. First, the benefits from diversity were so amorphous (e.g., training future leaders and producing engaged citizens) that no court could ever measure whether they were being achieved. Second, the schools could not link their means to achieving the benefits. Next, race was being used as a negative; admissions is a zero-sum game where any plus award from having a characteristic by one applicant is necessarily a negative for anyone who does not have that characteristic.[5]
The Court saved most of its analysis for its final fault with the programs: They had no endpoint.[6]Although the Court in Grutter had mentioned a 25-year window (which would have closed in 2028), the Court saw no end in sight to the sort of affirmative action Bakke produced. With no reason to think the race-conscious admissions programs would ever run their course, the Court took matters into its own hands and ruled that race could not be a factor in admissions.
While affirmative action programs were given a severe blow, it was not fatal. As Chief Justice Roberts put it, "Nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life."[7] Immediately after the decision, some advocates began planning challenges to other race-conscious preferences while those on the opposite side began thinking of new ways to achieve the same racial diversity using race-neutral proxies. Litigation is sure to continue as the sides fight about the limits of Chief Justice Robert's life preserver line. As one Harvard...
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