Welcome to the annual U.S. Supreme Court roundup of civil rights cases from the Thurgood Marshall Institute of the Legal Defense and Educational Fund, Inc. (LDF). Our October Term 2022 Roundup provides a snapshot of the issue in each case, the outcome, and its impact on our rights. We hope this summary will be easy to digest (without too much legal jargon) and will underscore the importance of the U.S. Supreme Court (and other courts) to our lives and the future of our democracy.
Since its inception, LDF has served on the front lines of civil rights litigation efforts, including many groundbreaking cases before the U.S. Supreme Court. Only the government has argued more civil rights cases before the Supreme Court. Of the cases it considered during the October 2022 Term, LDF litigated, filed or joined an amicus brief in nine cases that affect civil rights: Allen v. Milligan; Moore v. Harper; Students for Fair Admissions (SFFA) v. Harvard and SFFA v. UNC; Biden v. Nebraska and Department of Education v. Brown; Reed v. Goertz; Cruz v. Arizona; and 303 Creative v. Elenis. We review nine of the cases we participated in here as well as an additional case with civil rights implications: Haaland v. Brackeen.
In November 2021, a group of Black voters, including lead plaintiff Evan Milligan, civil rights groups, and faith groups challenged Alabama’s new congressional and state legislative maps that were drawn after the 2020 census, arguing that the maps violate Section 2 of the Voting Rights Act of 1965. LDF Deputy Director of Litigation Deuel Ross argued the case in front of the Court on behalf of the plaintiffs. And in a historic 5-4 decision, the Court ruled for the plaintiffs and agreed that that map discriminates against Black voters. The decision means that Alabama will have to redraw its congressional map and add an additional majority-Black district.
Section 2 of the VRA prohibits voting policies that discriminate on the basis of race, color or membership in one of the noted language minority groups. Historically, Section 2 has been used to strike down discriminatory redistricting policies that “pack” and “crack” communities of color and thereby dilute their voting strength. In this case, Alabama did not create a second majority-Black district despite a significant increase in the state’s Black population—Black people were 27% of the state population but a majority with respect to just 14% of the eight available congressional seats. Instead, the maps diluted the voting power of the Black Belt community, a community named for its fertile soil that has a high proportion of Black voters. On January 24, 2022, a three-judge panel ruled for the plaintiffs, holding that they were likely to succeed on the merits because Alabama’s map was a textbook case of illegal vote dilution under Section 2.
The Supreme Court affirmed that decision, that the district court correctly determined that Alabama’s maps violated Section 2 by “packing and cracking” Black communities, resulting in diluted political power. The Court additionally rejected Alabama’s purported “race-neutral” approach to Section 2 litigation. In its decision, the Court affirmed that under Section 2, race can be considered in the redistricting process to remedy discriminatory maps, provide equal opportunities to communities of color, and ensure they are not packed and cracked in a way that weakens their voting strength.
This is a historic win for voting rights. Chief Justice Roberts, writing for the majority, stated: “The heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our §2 jurisprudence anew. We find Alabama’s new approach to §2 compelling neither in theory nor in practice. We accordingly decline to recast our §2 case law as Alabama requests.” And now, Alabama must redraw its congressional map to include an additional majority-Black district where Black voters have the opportunity to elect candidates of their choice.
Moore v. Harper is another major election-law case this term. In a 6-3 decision authored by Chief Justice Roberts (with Justices Thomas, Alito, and Gorsuch dissenting), the Court struck down the “independent state legislature theory,” meaning that state courts can still review the actions of state legislatures regulating federal elections. LDF wrote an amicus brief urging the Court to not adopt the independent state legislature theory.
This case began as a challenge to North Carolina’s congressional map adopted by the state’s Republican-controlled legislature in early November 2021. Democratic voters and non-profits brought suit in state court, arguing that the new map was a partisan gerrymander, as it had majority-Republican voters districts in 10 out of the 14 congressional districts, despite the state being roughly evenly divided by party. In 2019, the Supreme Court in Rucho v. Common Cause held that federal courts cannot consider claims of partisan gerrymandering, but did not say that state courts were not allowed to hear those claims. But this case ended up at the North Carolina Supreme Court (which at the time had a 4-3 Democratic majority), which held partisan gerrymandering claims are justiciable and that the 2021 map violated a North Carolina provision guaranteeing free elections. Thus, the NC Supreme Court barred the use of the challenged map in the 2022 elections (Harper I). A state trial court later adopted a new map which gave both parties equal majority districts and the North Carolina Supreme Court affirmed that decision in part, but reversed the trial court’s decision re the state senate districting plan (Harper II).
Republican legislators challenged the North Carolina Supreme Court’s Harper I decision at SCOTUS, arguing that the NC Supreme Court violated the independent state legislature theory, which is the theory that only a state legislature has the power to regulate federal elections, notwithstanding state courts or constitutional constraints. The theory rests on two constitutional provisions, Article I’s Elections Clause and Article II’s Elector’s Clause (the Elections Clause is the one at play in this case). Independent state legislature theory proponents argue that these two provisions mean that state courts lack the power to supervise how state legislatures run elections for Congress or the president. This theory has its origins in then-Chief Justice Rehnquist’s concurrence in Bush v. Gore, where he contended that the recount ordered by a state court violated the legislature’s authority under the Elector’s Clause because it conflicted with the deadlines set by the state legislature.
While the case was pending before SCOTUS, the North Carolina Supreme Court went from a Democratic-majority to a Republican-majority. And then, the Republican-majority withdrew the opinion in Harper II and “overruled” its decision in Harper I, holding that it lacked the power to review the partisan-gerrymandering claims. But the “overruling” of Harper I did not disturb the injunction on the use of the 2021 maps; instead, the court provided the state’s General Assembly the opportunity to enact new redistricting plans. After that decision, the Supreme Court twice asked the parties for supplemental briefing about whether the case was moot.
The Supreme Court decided the case was not moot and held it had jurisdiction to decide the case on the merits. Regarding the merits, the Court addressed the question of whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law (in simpler terms: should the Court adopt the independent state legislature theory?). Roberts, writing for the Court, says the answer is no, rejecting the independent state legislature theory. He cites Marbury v. Madison to assert that “[s]ince early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts.” He writes that the Elections Clause does not “carve[] out an exception to this basic principle.” And thus, state legislatures are not insulated from court review. However, the Court reserved the right to review state court interpretations of state law when questions of state law are implicated by the exercise of federal authority or vindication of federal rights.
This outcome is considered a relief because the independent state legislature theory is a dangerous and anti-democratic theory that would have limited the ability to bring critical voting rights litigation in state courts and has the potential to upend the U.S. Constitution’s carefully constructed system of checks on governmental power. Today’s ruling comes at a crucial moment when our nation is facing an onslaught of voter suppression efforts, facilitated by the erosion of critical voting rights protections since the Supreme Court’s 2013 decision in Shelby County v. Holder. By rejecting the independent state legislature theory, the Supreme Court has set an important precedent that state courts retain the authority to prevent suppression and protect their citizens from disenfranchisement.
The Supreme Court issued a consolidated opinion in SFFA v. Harvard and SFFA v. UNC, finding that Harvard and the University of North Carolina’s affirmative action programs violate the Equal Protection Clause of the Fourteenth Amendment. This radical decision comes at a time when efforts to advance opportunity in education have been under attack across the country, and the need for such programs remains acute. The Court’s decision is contrary to 45 years of precedent established in prior Supreme Court decisions, including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas. However, the Court’s ruling still allows colleges to consider how race has affected a student’s life and their ability to contribute to the educational institution.
SFFA v. Harvard and SFFA v. UNC are two landmark cases involving affirmative action at universities. SFFA, an organization created by Edward Blum, filed the lawsuits in 2014 as part of a relentless crusade to overturn 40+ years of precedent and eliminate the consideration of race in college admissions. Blum is also responsible for the litigation in Shelby County v. Holder. LDF has long represented twenty-five Harvard student and alumni organizations of thousands of Black, Latinx, Asian American, Native American, and white students and alumni as amici curiae, or “friends of the court,” in the Harvard lawsuit. LDF filed amicus briefs in both the Harvard and UNC lawsuits in support of the universities race-conscious admissions policies.
The Court, in a 6-3 decision written by Chief Justice Roberts (with Justices Sotomayor, Kagan, and Jackson dissenting) held that Harvard and UNC’s admissions programs violate the Equal Protection Clause, reversing the lower court opinions, because the Court believes that both universities’ admissions processes lack compelling, measurable interests to use race in a constitutional manner. Roberts describes that “we have permitted race-based admissions” but only if they satisfy narrow restrictions: “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and – at some point—they must end.” He found that Harvard and UNC’s admissions systems fail each of these criteria and thus must be invalidated under the Equal Protection Clause.
However, importantly, the majority opinion explains the Court’s decision does not prohibit universities from “considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
The Court, in this opinion, has ignored its own long-standing precedent allowing race-conscious admissions programs and has distorted the legacy of the seminal decision in Brown v. Board of Education — which held that society must not turn a blind eye to racial inequality and can take necessary measures to address it. As Justice Sotomayor wrote in her dissent, which lifted up LDF’s brief in the UNC case, “[t]he Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about color blindness.”
Despite the Supreme Court’s opinion today, colleges and universities still have a moral imperative and the legal ability to ensure that their doors are open equally to all students, including Black, Latinx, Native American, Hawaiian, Pacific Islander, and Asian American applicants. Even under the terms of this unfortunate decision, all students continue to have the freedom and opportunity to have their full identities, including the impact of race on their lived experiences, considered when seeking admissions to institutions of higher education.
Decades of restrictions on the scope of affirmative action and its legal underpinnings have limited its impact, but affirmative action still plays an important role in redressing centuries of educational inequality. Courts, admissions offices, and policymakers across the country should recognize affirmative action’s potential to redress the disadvantages faced by students of color in a persistently unequal education landscape.
In Biden v. Nebraska, the Supreme Court, in a 6-3 opinion authored by Chief Justice Roberts (with Justices Kagan, Sotomayor, and Jackson dissenting), struck down President Biden’s student debt plan that reduced or eliminated the student debt for 43 million Americans. The Court applied the “major questions doctrine” to the HEROES Act (the law the Biden Administration believed gave them authority to cancel some student debt), holding that Congress cannot have intended to authorize the debt cancellation plan by letting the Education Secretary “waive or modify” student loans. The Court also decided the other student debt case, Department of Education v. Brown, but dismissed that case due to the plaintiffs not having standing to sue. LDF signed onto a Lawyers’ Committee brief supporting the student-debt relief plan.
As background, the Higher Education Act of 1965 (Education Act) established three types of federal loans and authorizes the Secretary to cancel or reduce loans, but only in certain limited circumstances and to a particular extent. Shortly after the September 11 terrorist attacks, Congress became concerned that borrowers affected by the crisis would need additional assistance. As a result, it enacted the Higher Education Relief Opportunities for Students Act of 2001 (the HEROES Act). The HEROES Act is a law that allows the federal government to make changes to student-loan programs to respond to national emergencies to “ensure” that loan recipients who are “affected individuals” are not “placed in a worse position financially” because of the emergency.
President Biden announced his intent to forgive, via executive action, $10,000 in student loans (and $20,000 for Pell Grant recipients) for borrowers with an annual income of less than $125,000, relying on the HEROES Act. Under the Secretary’s plan, roughly half of all federal borrowers would have their loans completely discharged. Six states moved for a preliminary injunction, claiming the student debt plan exceeded the Education Secretary’s statutory authority. The district court held that none of the states had standing and dismissed the suit. The states appealed and the Eighth Circuit held that the states had standing and issued a nationwide preliminary injunction.
The Supreme Court held that at least Missouri had standing through the Missouri Higher Education Loan Authority (MOHELA), a public corporation that owns and services student loans. MOHELA collects fees on the student loans and the State of Missouri alleges that MOHELA will lose $44 million a year in fees due if President Biden was allowed to cancel student debt. The Court holds that MOHELA is a public instrumentality of Missouri and thus Missouri has suffered sufficient injuries to sue.
Regarding the merits, the Supreme Court holds that the Secretary of Education does not have the authority under the HEROES Act to enact President Biden’s debt plan. Chief Justice Roberts says “the question here is not whether something should be done; it is who has the authority to do it.” On this point, Roberts invoked the “major questions” doctrine, which is the idea that if Congress wants to give an administrative agency the power to make decisions of vast economic or political significance, it must say so clearly. But in this case, Roberts said, the HEROES Act did not authorize the debt-relief program at all, much less clearly.
In response to the Supreme Court’s ruling, President Biden has announced his intent to reenact the student debt plan, using a different law as his authority.
The Court’s decision upends sorely needed relief for millions of Americans, particularly Black and Latinx families, who disproportionately struggle with economic security due to the lasting harms of the COVID-19 pandemic. Student debt is a financial burden that impacts people throughout their lives, and the load is disproportionately borne by Black borrowers.
In 1996, a Texas all-white jury convicted and sentenced to death Rodney Reed, a Black man, for a rape and murder he likely did not commit. Mr. Reed was convicted and placed on death row despite the existence of compelling evidence that the victim’s fiancé—a white police officer— killed her. The prosecution’s case relied on a small amount of DNA connecting Mr. Reed to the victim, which the defense explained at trial was the product of their romantic relationship. In 2014, when seeking post-conviction relief, Mr. Reed sought DNA testing to prove his innocence. The prosecutor refused to test the evidence.
Relying on the Supreme Court case Skinner v. Switzer, Reed filed a federal lawsuit challenging the constitutionality of the Texas law for post-conviction DNA testing. In Skinner v. Switzer, the Supreme Court held that people denied post-conviction DNA testing under state statutes can turn to federal court under § 1983 to assess whether the state statute violates their constitutional due process rights. Less than two years after he was denied rehearing by Court of Criminal Appeals in Texas, Mr. Reed filed a Switzer claim in federal court. The district court dismissed his claim.. The Fifth Circuit held that his claim was untimely where the clock began to run on the statute of limitations for his § 1983 claim the moment the trial court denied DNA testing, even though it was not until after the state appellate court denied relief that it became clear state procedures would be inadequate.
LDF filed an amicus brief in support of Mr. Reed, arguing that Mr. Reed was wrongfully denied post-conviction DNA testing that could help prove his innocence and that his case raises grave concerns of racial bias causing an innocent man to be convicted and sentenced to death.
The Supreme Court, in a 6-3 decision, ruled for Mr. Reed, reversing the Fifth Circuit’s determination that Mr. Reed’s § 1983 suit was untimely. The Court held that, when pursuing state post-conviction DNA testing under a state statute, the two-year statute of limitations for a §1983 procedural due process claim begins to run when the state litigation ends. In this case, the Court found that the state litigation ended when the Texas Court of Criminal Appeals denied Mr. Reed’s motion for rehearing. Accordingly, Mr. Reed’s § 1983 suit was timely. The ruling will allow Mr. Reed the opportunity to pursue his federal constitutional claim to access critical evidence in his capital case.
John Montenegro Cruz, a man sentenced to death in Arizona, sought Supreme Court review of his federal due process claim due to the sentencing court refusal to instruct the jury properly during his sentencing. Mr. Cruz was convicted of first-degree capital murder for the death of a police officer. According to Arizona law, capital defendants who committed crimes after 1993, like Mr. Cruz, were (and remain) ineligible for parole. Thus, the only possible sentences for the jury to choose from were life in prison or death. Throughout his trial, Mr. Cruz repeatedly sought to introduce a Simmons instruction. Under Simmons v. South Carolina, the Supreme Court held that when a capital defendant’s future dangerousness is at issue, and the only alternative sentence to death is life imprisonment without parole, the defendant has a constitutional right to inform the jury of his parole ineligibility. The trial court refused to allow the Simmons instruction and instead instructed the jury that a sentence with parole was possible. The jury thereafter sentenced Mr. Cruz to death.
Arizona courts at the time of Mr. Cruz’s trial did not believe Simmons applied to capital defendants. However, in 2016, the Court decided Lynch v. Arizona, instructing Arizona courts to apply Simmons, and Cruz renewed his appeal. This time, he pointed to Arizona Rule of Criminal Procedure 32.1(g), which allows Arizona petitioners to challenge their conviction or sentence when there is a “significant change in the law” that would impact their case. Mr. Cruz argued that Lynch constituted a significant change in the law and thus he was entitled to challenge his conviction. Arizona disagreed that Lynch constituted a “significant change in law.” Arizona asserted Rule 32.1(g) places limits on what Arizona courts can review in collateral proceedings (the appeal process after direct review), and since Cruz failed to meet the requirements of the rule, Arizona courts cannot consider the merits of his federal constitutional claim under Simmons.
The Court disagreed with Arizona and instead ruled for Mr. Cruz, holding that Lynch did fall within Rule 32.1(g)’s purview. As a result of this ruling, Mr. Cruz and about 30 other similarly situated individuals (whose juries were also not told they were ineligible for parole) will be entitled to new sentencing hearings. These individuals collectively comprise over a quarter of Arizona’s death row population. This opinion helps combat the risk of racial bias in Mr. Cruz’s and the others’ sentencing. As LDF noted in the amicus brief it joined in the case, a court’s failure to issue a Simmons instruction when required is likely to reinforce racial disparities in capital sentencing. Capital jurors attach enormous importance to their perceptions of a defendant’s “future dangerousness,” the question of whether that defendant is likely to pose a danger to others. This issue is necessarily subjective and invites a risk of racial bias. If racial bias by some members of a jury leads them to believe that a defendant poses a future danger if released, a Simmons instruction can prevent that bias from leading to a vote for the death penalty. In that way, a Simmons instruction plays not only a procedural role in the administration of the death penalty, but also serves as an important check on the widespread racial disparities in death sentences. This safeguard is particularly important in the case of Mr. Cruz, who was tried and sentenced during a period where anti-Latino policies and politicians were ascendant in Arizona, and when Latino men were particularly demonized in the public eye.
On the final day of Pride Month, in 303 Creative v. Elenis, the Court in a 6-3 decision authored by Justice Gorsuch (with Justices Sotomayor, Kagan, and Jackson dissenting), held that the Petitioner, Lorie Smith, the owner of a website design studio, has a First Amendment right to deny services for weddings involving same-sex couples despite the state of Colorado’s Anti-Discrimination law. The ruling allows for violations of state public accommodation laws and provides cover for those who seek to curb any group of people’s right to access services due to their identity. LDF filed an amicus brief in the case, outlining how the Supreme Court’s own precedent precluded Smith’s First Amendment arguments; for example, in a 1968 case litigated by LDF, the Court refused to create a First Amendment exception to public accommodation laws based on religious belief in a case involving discrimination against Black patrons.
Smith wants to expand her graphic design business, 303 Creative, to include making wedding websites. But she worries that, once she starts making wedding websites, Colorado will use its anti-discrimination law, the Colorado Anti-Discrimination Act (CADA, the same law at issue in Masterpiece Cakeshop) to force her to create websites for same-sex weddings. She thinks this is in violation of the First Amendment’s ban on compelled speech because she believes same-sex marriages “contradict biblical truth” and does not want to be “forced” to support them. The lower courts rejected Smith’s First Amendment claim.
The law at issue, CADA, prohibits all “public accommodations” from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or any other statutorily enumerated trait. “Public accommodations” include almost every public-facing business in Colorado. And the law allows government or private enforcement suits.
Justice Gorsuch writes for a 6-3 Court (Sotomayor, Kagan, Jackson dissenting) that Colorado’s non-discrimination law “forc[es] a website designer to create expressive designs speaking messages with which the designer disagrees” which violates the First Amendment. The Court determines that Smith seeks to engage in protected First Amendment speech if she decides to make wedding websites. And CADA cannot require her to make websites for same-sex weddings, because that is compelled speech that violates the First Amendment.
In her dissent, Justice Sotomayor cites LDF’s amicus brief in Katzenbach v. McClung, 379 U. S. 294 (1964) and Loving v. Virginia, 388 U. S. 1, 3 (1967) to underscore how this Court previously and historically rejected attempts to use First Amendment justifications to discriminate against protected classes, namely Black Americans. However, as confirmed by the dissent, this broad decision based on the First Amendment’s Free Speech Clause now erodes anti-discrimination laws designed to protect Black people.
In holding that businesses have a First Amendment right to deny them public services, the Supreme Court has communicated to members of the LGBTQ+ community that it deems them unworthy of the fundamental legal protections that have been established by states to shield people from discrimination on the basis of their sexual orientation and gender identities. That message is abominable, invites hate, and is wholly inconsistent with Constitutional principles. This ruling erodes hard-won protections for Americans who have been historically marginalized because of their identities. By creating a First Amendment right to discriminate, the Supreme Court has ignored the broad and intersectional harm to minority communities that LDF’s amicus brief sought to prevent.
Core to LDF’s mission and legacy as a leader in the fight for civil rights is our conviction that all people deserve to be treated with dignity—regardless of race, ethnicity, nationality, religion, ability, gender or sexuality. LDF puts this value into practice by defending the rights and dignity of Black people and other historically marginalized groups — including the LGBTQ+ community, which Black people also proudly belong to. Living up to our best values and realizing the highest ideals of our country means standing up for the civil rights of all people.
In Haaland v. Brackeen, the Supreme Court, in a 7-2 decision written by Justice Barrett, upheld the constitutionality of the Indian Child Welfare Act (ICWA), holding that Congress has the authority to enact ICWA and ICWA does not violated the Tenth Amendment. Further, the Court held that Petitioners did not have standing to bring their equal protection and nondelegation claims.
ICWA is a 1978 law that Congress enacted out of concern that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” ICWA seeks to keep Native American children with Native American families. In child-custody proceedings in state court for the millions of Native American children who do not live on tribal land, ICWA establishes minimum standards for the removal of Native American children from their families and creates a preference that Native American children who are removed from their families be placed with extended family members or in Native foster homes. It was enacted in response to a long history of separating Native children from their families, including sending Native children to boarding schools across the country to force assimilation. ICWA applies to both voluntary and involuntary child custody proceedings if they involve Native children; the law applies more stringent safeguards on involuntary proceedings, meaning those where the parents do not consent to the removal of the child.
Petitioners include several couples who wished to adopt or foster Native children, a woman who wished for her Native biological child to be adopted by non-Natives, and the states of Texas, Louisiana, and Indiana. Petitioners challenged ICWA as unconstitutional on multiple grounds. They asserted that Congress lacks authority to enact ICWA and that several of ICWA’s requirements violate the anticommandeering principle of the Tenth Amendment. They argued that ICWA employs racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children. And they challenged §1915(c)—a provision that allows tribes to alter the prioritization order for the adoption of Native children—on the ground that it violates the nondelegation doctrine. The district court ruled for the Petitioners, striking down portions of the ICWA. A Fifth Circuit panel reversed. In a fractured ruling, the Fifth Circuit sitting en banc upheld portions of the district court’s decision and reversed other portions.
The Court rejected all challenges to ICWA. The Court first held that ICWA is consistent with Congress’s powers under Article I. Further, the Court determined that ICWA does not violate the Tenth Amendment because the law does not harness a state’s legislative or executive authority. Finally, the Court declined to reach the merits of Petitioner’s equal protection challenge to ICWA’s placement preferences and a nondelegation challenge to the provision allowing tribes to alter the placement preferences because no party before the Court had standing to raise them. And thus, the Court upheld all challenged provisions of ICWA.
This decision is considered a huge win for Native rights. Tribes involved in the case hail the decision, stating “Today’s decision is a major victory for Native tribes, children, and the future of our culture and heritage. It is also a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations.”
