The new SCOTUS term

By Deacon Mike Manno

(The Wanderer) – This week the U. S. Supreme Court starts a new term with one new justice, Ketanji Brown Jackson, who replaced Stephen Breyer at Breyer’s retirement at the close of the court’s last term. Despite the change in cast members, the court maintains its ideological balance, 6-3 in favor of conservatives.

What can we expect? The answer to that question can spawn an entire industry, one that I am surely not qualified to answer. So I go to experts.

On my radio program last week we hosted a real expert on this stuff, the Vice President for Constitutional Government at the Heritage Foundation, John Malcolm. We know he’s an expert because when President Trump nominated him for a high federal post the FBI wanted copies of the programs he had been on. Probably to see if he had attended any school board meetings.

Mr. Malcolm has written a piece for the Heritage Foundation on what he sees as the nine key cases that the Supreme Court will hear during its new term. Now, of course, I am interested in cases that involve religious liberty, incursions into our families, and interferences with our religious practices. Protections of home and family as well as intrusions into how we live Godly lives, such as forcing medical practitioners to assist in abortions, are also key concerns.

In short, anything that would violate the First Amendment of the Constitution that could jeopardize some or all of our ability to worship and serve the Almighty as we believe.

But not all the cases we follow appear to affect our religious rights; but it would be too narrow a guide to use in following cases through the system. Sometimes a case that has nothing to do with the First Amendment could have a tremendous impact if seen in the correct legal light.

For example, a case decided at the end of last year’s court term was West Virginia v. EPA. It was about EPA regulations enforcing the Clean Air Act and a little known doctrine from administrative law known as the Chevron Doctrine. What Chevron articulated was that courts, when reviewing agency actions, defer to the agency’s interpretations of its own enabling statues, the law that establishes the agency, and other laws affecting its operation, unless the agency interpretation is clearly erroneous.

In short, good luck challenging an agency rule or its legal interpretation.

But that changed with the West Virginia case. In that case the court ruled 6-3 that the agency had overstepped its authority (ultra vires) and struck down the EPA’s action as beyond its powers by using what is known as the Major Question Doctrine to conclude that the agency must have “clear congressional authorization” in matters of “extraordinary cases” of extreme importance.

Now that didn’t exactly overturn the Chevron Doctrine but it did announce that automatic judicial deference was not going to let agencies act willy-nilly or in furtherance of a political ideology now in vogue by the current administration. One example that comes to mind are some of Mr. Biden’s new rules redefining “sex” to include gender identity and transgender issues, neither of which is included in the statutory enactments by Congress.

There are several cases on Mr. Malcolm’s top nine which, on first glance, have a closer nexus to the First Amendment and its religious protections than others, but to give you an overview, here are a few selected cases:

The first two involve the question of racial quotas concerning college admissions: Students for Fair Admissions v. Harvard College, and Students for Fair Admissions v. UNC (University of North Carolina). For years Asian students have been complaining about prejudice in college — and in some places — high school admissions. Of course that’s not all they were complaining about, and with good cause. There has been a documented increase in hate crimes against Asians, many by other minorities across the nation, so you might expect to see similar plaintiffs in other SCOTUS cases.

But these two cases, both pursued by the same nonprofit claims that affirmative action admission programs in the two schools primarily benefit black and Hispanic applicants at the expense of Asians. Example: It is claimed that, assuming similar credentials, an Asian applicant, with a twenty-five percent chance of acceptance by Harvard, would have a thirty-five percent chance if he were white, seventy-five percent if Hispanic, and ninety-five percent if black.

In 2003 the court had upheld the use of racial considerations in a case involving the University of Michigan Law School, holding that an affirmative program cannot be based on a quota system and must enhance educational benefits which flow from a diverse student body. The case is scheduled for oral argument October 31.

In Moore v. Harper the court will be dealing with the North Carolina legislature’s attempt to draw new congressional districts after the 2020 census. The legislative redistricting map was overturned by the state Supreme Court which concluded the original map included gerrymandered districts and drafted a new map it ordered to be used. While this involves congressional districts in one state, the main focus for most of us involves an election issue that has bedeviled us since the 2020 election when state courts and administrative officials were “changing” election laws and rules to suit “COVID emergency” conditions. Those cases, for the most part were not heard or dismissed by courts when brought.

The crux of this case is the constitutional imperative that only the state legislature may make laws concerning the election of that state’s congressional delegation. A ruling here upholding the legislature’s map would give credence to all the Trump “election deniers” that the 2020 election was “stolen,” and provide a template that all states must use in 2024 election unless, as Mr. Malcolm pointed out, Congress intervenes pursuant to its constitutional power to do so.

In a similar case for which oral arguments are scheduled this week, Merrill v. Milligan, the court will take up the issue of Alabama voting districts which may or may not violate the Voting Rights Act. In this case it is claimed that there is only one black-majority district and that there should be two such districts.

The final case we will examine is from Colorado, 303 Creative v. Elenis. Lorie Smith, the plaintiff, owns a graphic design studio in which she designs and builds websites. She wishes to enter into the wedding market but, as a devout Christian, does not want to build websites for same-sex couples believing same-sex marriages are against God’s will. She wishes to post a notice on her website as to why she will not participate in those weddings.

She is challenging a state law which prevents her from not only refusing to provide that service but also prevents her from posting her reasons for her decision. This law, incidentally, is the same law that Baker Jack Phillips, of Masterpiece Cakeshop, tangled with over his refusal to provide a “wedding” cake for a same-sex nuptial. Phillips later won his case before the Supreme Court; however, the basis of the ruling was the inherent bias against his religion displayed by the state officials.

He, incidentally, was charged again when he later refused to bake a cake celebrating a man’s transition to a woman. Mr. Malcolm pointed out to our radio audience that while Masterpiece was not decided on the issue of religious liberty and 303 Creative won’t be either, but on the issue of her free speech rights which may have been violated by being compelled to deliver a message she doesn’t wish to make and preventing her from delivering a message she does wish to make.

“Even though it will be decided on free speech grounds it will obviously have real repercussions because religious speech is, after all, a form of speech,” he said.

The article considers only nine of the 25 cases the court has accepted thus far. But there is more coming as Mr. Malcolm estimates the court will ultimately adjudicate a total of 65 cases this term.

Court watching will be fun but also frustrating; the decisions in many of the key cases will not come until near term’s end next spring.

(You can reach Mike at: DeaconMike@q.com and listen to his radio program at https://iowacatholicradio.com/faith-on-trial/.)