Week In a Nutshell, 6/30/23

June 30, 2023

Week In a Nutshell, 6/30/23

The US Supreme Court. (Photo by SAUL LOEB/AFP via Getty Images)

The Supreme Court issued a number of opinions as it nears the end of its term:

The justices ruled that colleges and universities may not consider race as an express factor in admissions.

In a pair of cases, Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the Court determined that the race-conscious admissions processes at both Harvard College and the University of North Carolina violated the Equal Protection clause of the 14th Amendment. Chief Justice John Roberts wrote the majority opinion, joined by the Court’s entire conservative bloc: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The Court’s three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissented.
Roberts wrote that “The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”
The challengers had asked the justices to overturn its earlier decision in Grutter v. Bollinger (which permitted the use of race in admissions), and bar higher education institutions from using race as a factor in admissions altogether. The justices did not go that far. According to Roberts, higher education institutions may still consider race pertaining to the student’s “experiences as an individual.” He wrote: “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.”
Sotomayor and Jackson wrote searing dissents, which were joined by Kagan. Sotomayor criticized the majority opinion as not being “grounded in law or fact” and “roll[ing] back decades of precedent and momentous progress.” “The Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society,” she continued.
Jackson wrote that “[o]ur country has never been colorblind” because “[g]ulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens.” “The majority seems to think that race blindness solves the problem of race-based disadvantage. But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants…will inevitably widen that gap, not narrow it,” she continued. Jackson also wrote about the positive implications of a diverse student body. “Do not miss the point that ensuring a diverse student body in higher education helps everyone, not just those who, due to their race, have directly inherited distinct disadvantages with respect to their health, wealth, and wellbeing…Students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality,” Jackson explained.

The Court rejected the “independent state legislature” doctrine, which would have drastically changed how federal elections are conducted in the states.

In Moore v. Harper, the Court declined to adopt the Republican-supported theory that would have granted state legislatures the unfettered authority to determine the rules and procedures for federal elections. The case came to the Court as a dispute over North Carolina’s election map. Roberts wrote the majority opinion, joined by Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson. Thomas, joined by Alito and Gorsuch, dissented.
Roberts wrote that although the U.S. Constitution grants state legislatures the power to set the “Times, Places and Manner of holding Elections” for Congress, that authority may still be scrutinized by state courts. He wrote that “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” Roberts continued: “The argument advanced by the defendants and the dissent also does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life.”
Thomas would have dismissed the case as “indisputably moot” since, in his view, the North Carolina Supreme Court already resolved the redistricting dispute. (Under the Constitution, courts are only supposed to issue rulings in ongoing disputes.) He also called the majority’s reasoning in rejecting the independent state legislature theory “[un]persuasive” because he feared that it would permit challengers to file last-minute lawsuits in election disputes. Cases “will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded ‘the bounds of ordinary judicial review’ in construing the state constitution,” Thomas wrote.

The justices threw out a Colorado man’s stalking conviction on First Amendment grounds.

In Counterman v. Colorado, the justices struck down a law criminalizing sending repeated communications to a person that cause serious emotional distress. Counterman was convicted of sending menacing Facebook messages to a local Colorado musician and was sentenced to four-and-a-half years in prison. Kagan wrote the majority opinion, joined by Roberts, Alito, Kavanaugh, and Jackson. Sotomayor and Gorsuch agreed with the majority’s resolution of the case but did not join the majority opinion because they did not agree with all of the Court’s reasoning. Thomas and Barrett dissented.
Kagan reasoned that the lower court applied the wrong test to determine whether Counterman’s speech should be considered unprotected “true threats” under Colorado law. In the majority’s view, courts should only consider whether the speaker engaged in speech that they knew the target would find threatening. “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs — all those may lead him to swallow words that are in fact not true threats,” Kagan wrote.
In his dissenting opinion, Thomas once again called on the Court to reconsider its decision in New York Times v. Sullivan, the unanimous 1964 ruling that raised the bar for public officials to succeed in libel claims. “It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this court’s jurisprudence,” Thomas wrote.