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New Supreme Court term may lead to more precedent-busting decisions

Cases involving university admissions, Clean Water Act regulation and the Voting Rights Act, among others, are all scheduled for hearings

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Bethsaida Sigaran, left, of Baltimore, her brother Jaime Sigaran, with American Rivers, and Thea Louis, with Clean Water Action, join supporters of the Clean Water Act as they demonstrate outside the Supreme Court, Monday, Oct. 3, 2022, in Washington, as the court begins arguments in Sackett v. Environmental Protection Agency (EPA).

Jacquelyn Martin, Associated Press

The U.S. Supreme Court began a new term Monday with one new justice and several high-profile and contentious cases on its docket. After the blockbuster Dobbs v. Jackson Women’s Health Organization decision that struck down a federal right to abortion last June, this term has the potential for more precedent busting results on other issues.

Justice Ketanji Brown Jackson’s investiture last week on the Supreme Court makes her the 116th justice and the first Black woman to serve on the court. All nine Supreme Court justices flashed wide smiles for the ceremony on Friday, but the good feelings might not last long as the new term gets underway.

Students for Fair Admissions v. Harvard

Later this month, the court is scheduled to hear arguments challenging the more than 40 year precedent of allowing some consideration of race in university admissions. Law currently allows schools to narrowly consider an applicant’s race, but not to fill a formal quota of minority students.

Students for Fair Admissions, a conservative organization, filed separate lawsuits challenging the undergraduate admission practices of Harvard College and the University of North Carolina. The organization said the schools intentionally discriminate against students of Asian origin. 

Federal appeals courts have sided with the schools on each case. The plaintiffs bypassed appellate review by asking the Supreme Court to directly hear their challenge to the 1978 precedent.

Harvard President Lawrence Bacow told The Wall Street Journal that the case puts in danger the school’s ability to create a diverse student body, “which strengthens the learning environment for all.”

Edward Blum, head of Students for Fair Admissions, argues that the basic principle of our nation’s civil rights laws are that “an individual’s race should not be used to help or harm them in their life’s endeavors.” Blum said it is his hope, “that the justices will end the use of race as an admissions factor at Harvard, UNC and all colleges and universities.”


In this drawing by court artist Dana Verkouteren, the Supreme Court, joined by new Justice Ketanji Brown Jackson, right, the court’s first Black female justice, hears arguments on the opening day of its new term, in Washington, Monday, Oct. 3, 2022. From left are: Associate Justice Samuel Alito, Associate Justice Elena Kagan, Associate Justice Brett Kavanaugh, and Associate Justice Ketanji Brown Jackson.

Dana Verkouteren via Associated Press

Sackett v. Environmental Protection Agency

The justices heard oral arguments Monday on a case that will be an early bellwether of whether the court’s textualist/originalist majority will continue their conservative remodeling of federal law and interpretation of environmental issues.

Sackett v. EPA could significantly curtail the agency’s authority by determining if wetlands are “waters of the United States” under the purview of the Clean Water Act. 

Michael and Chantell Sackett of northern Idaho filed the lawsuit challenging the agency’s authority to prohibit construction on their vacant lot in a mostly built-out neighborhood near Priest Lake. The EPA told them their property is wetland and subject to Waters of the United States regulation. But their attorney argues the rule shouldn’t apply since the property is 300 feet away from the lake and behind two rows of houses.

The Sacketts are asking the Supreme Court to determine how close a property needs to be to a navigable body of water for the EPA’s authority to kick in. If the court decision favors the plaintiffs, this will show the court still has an appetite to place restrictions on regulatory authority for environmental issues. Last term, a court ruling in West Virginia v. EPA significantly limited the agency’s power to create rules regulating greenhouse-gas emissions.

Merrill v. Milligan

On Tuesday the court is scheduled to hear Alabama’s challenge to provisions in the Voting Rights Act. The Yellowhammer State is asking the court to dismiss the long-standing rule that prohibits the dilution of minority voting populations.

Lower courts have required the state to draw a new Black-majority district, which would presumably vote Democratic. If the state prevails, the Republican-dominated legislature could utilize its new powers to draw political boundaries favorable to the majority party.

Like its predecessor, the new term holds the potential for more precedent challenges as the 6-3 conservative majority court could add more cases to the docket later.

Justice Elena Kagan has cautioned her conservative colleagues on the bench to not be so aggressive, suggesting in past weeks that the court’s recent rulings are creating a crisis of legitimacy. 

“The very worst moments (in the court’s history) have been times when judges have essentially reflected one party’s or one ideology’s set of views in their legal decisions,” Kagan said last month at Salve Regina University. “The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.”

A Gallup poll published last week found that public approval of the Supreme Court is suffering. Disapproval, at 58%, was at an all time high, while 48% of respondents said the court was too conservative.

Supreme Court Chief Justice John Roberts pushed back against criticism of the court. “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” Roberts said at a judicial conference in Colorado.

Justice Samuel Alito, who authored the Dobbs decision, responded with his own statement to the Journal last week: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”