Looking at the New Supreme Court Session
ABA Members and AUWCL Professors Provide Insight to 2023 Session
In preparation of the new Supreme Court session which began this week, American University Washington College of Law (AUWCL) and the American Bar Association (ABA), held a webinar discussing the cases on the docket for the 2023-2024 term.
The last two Supreme Court terms have seen the nine Justices overturn decades of precedent that previously gave Americans the right to access abortions and allowed universities the right to use race as one factor in determining college admittance. [JH1] Those sessions also saw the Supreme Court affirm religious liberties over state-level anti-discrimination laws and limit the level of responsibility social media sites have for hosting extremist content.
At the start of the new session, only 22 cases are slated for oral arguments before the court. Morgan Ratner, a partner at Sullivan & Cromwell, LLP, pointed out another case before the court that could reverse decades of precedent. Loper Bright Enterprises v. Raimondo is challenging the results of Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., a 1984 Supreme Court case that gives deference to government agency’s interpretation of a statute that it administers.
The landmark decision by the court in 1984 has been used for decades to give administrative agencies the ability to create regulations. Using this ruling to defend an agencies actions is commonly referred to as the “Chevron Defense”.
The claimants in Loper Bright Enterprises v. Raimondo are asking the Supreme Court to decide if the National Marine Fisheries Service can require fishing groups to pay for regulators to accompany them on their trips.
“It’s an important separation of powers question on a couple of dimensions,” Ratner said. “The traditional challenge to Chevron has been that it transfers power from Congress or from the legislature to the executive to the administrative state. But the flip side of that is there’s also a separation of powers implication from getting rid of Chevron, which is a transfer of power from the executive and the agencies to the courts.”
Erwin Chemerinksy, the Dean of UC Berkeley Law School, spoke about a pair of cases involving social media use by public officials: O’Connor-Ratcliff v. Garnier and Lindke v. Freed. In O’Connor-Ratcliff v. Garnier, the question before the court is if officials are violating people’s First Amendment rights by blocking members of the public from viewing their accounts. In Lindke v. Freed, the question is when does a public official’s activity on social media constitute state action, and therefore would be subject to the First Amendment.
“So, in one sense, it’s a state action question,” Chemerinsky said. “How do we regard the private social media accounts of these office holders? But it’s really about a First Amendment question, because these are media that are used by the office holders to communicate about what they’re doing in office but matters of public concern.”
As the term progresses, more cases can be granted writ of certiorari by the Supreme Court and added to the docket. Lia Epperson, a professor of law at AUWCL and former director of the education and law policy group of the NAACP legal defense and education fund, said there are cases based off judgments like those in Students for Fair Admissions (SFFA) v. UNC working their way through lower courts. These cases, aimed at the admissions practices at service academies and K-12 magnate schools, could be elevated to the Supreme Court before the end of the session.
“We do already know there is new litigation, both in the space of higher education and in the space of K-12 education that's somewhat affected, and even in terms of employment and other areas around recruitment,” Epperson said.
~Story by Brice Helms.