Why You Should Pay Attention To These 4 Upcoming Supreme Court Cases
Source: Fast Company, Talib Visram
Photo: Anna Sullivan/Unsplash, Jesse Collins/Unsplash
This term’s docket covers cases from affirmative action to Big Tech, and the decisions could have massive repercussions.
In 2022, the conservative-majority Supreme Court did what many Americans feared, ruling 6-3 along partisan lines in various cases that are already affecting the daily lives of millions.
It barred the Environmental Protection Agency (EPA) from placing caps on emissions, limiting the agency’s ability to help curb climate change. It struck down a law that allowed states to require permits for carrying guns in public. And it overturned Roe v. Wade, ruling that a woman’s right to an abortion is not constitutionally protected, triggering a number of states to impose bans after almost 50 years of legality.
This year’s docket holds yet more cases that could reshape some of the nation’s laws. “They say they’re not a court that just reverses wrong decisions—they only take cases to create law that will have much broader implications,” says Amanda Shanor, assistant professor of legal studies and business ethics at the Wharton School of the University of Pennsylvania. And some of the most high-profile cases on the current docket should better clarify the business bents and priorities of a relatively new conservative court.
Many of the cases delve into political hot-button issues, such as affirmative action and same-sex marriage, but will also have impacts for the business community. Others are economically focused on the surface but could have a significant impact on areas like climate and abortion.
1. AFFIRMATIVE ACTION AT UNIVERSITIES COULD BE SCRAPPED
Thanks to a Supreme Court decision from 2003, colleges are currently allowed to consider race as a factor when assessing applicants for admission. But in two new cases, Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, an anti-affirmative action group is arguing that the rule helps Black and Latino students, therefore discriminating against white and Asian American students.
For Shanor, the outcome is inevitable. “It’s clear that they’re going to say affirmative action is unconstitutional,” she says. “But how they do so could have wildly different outcomes.” Even a narrow decision may have long-lasting implications, not only for education but for business. It could “dramatically change the pipeline of people into higher-up positions within American business life,” Shanor adds, reversing decades of progress that have helped minorities reach leadership positions. The outcome of the ruling will likely have a “slow-burn” effect, but one with long-term consequences for “social mobility and class and race,” she says.
If it rules more broadly, it could even mean that other types of considerations, such as income brackets or zip codes, are illegal. These are often treated as proxies for race and can be a workaround. For instance, in Texas, the top 10% of students from every neighborhood (rather than from the state as a whole, which may skew whiter) are eligible for admission to the state’s top public universities. With a ruling like that, there’s a possible domino effect to questioning the legality of other anti-discrimination laws, including Title VII, which prohibits discrimination in employment based on race and other demographic factors.
2. COMPANIES COULD BE ALLOWED TO REFUSE CERTAIN CUSTOMERS
The owner of a graphic design company in Colorado, Lorie Smith, is claiming it would be against her religious beliefs to create wedding websites for same-sex couples. That goes against an anti-discrimination law in the state. But in 303 Creative v. Elenis, the court will decide whether that law violates her right to free speech.
It recalls a similar Colorado case from 2018, in which a baker refused to make a wedding cake for a gay couple. In a limited decision, the court ruled in favor of the cake shop. Shanor (who litigated in that case with the ACLU, and who has filed amicus briefs in the new case) says 303 Creative will decide broader implications with respect to public accommodation laws that state that businesses can’t deny service on the basis of race, religion, sex, or sexual orientation and have been in place since the Civil Rights era.
Shanor believes the court will side with Smith, which could mean that “any business for any reason—not just a religious one—might have a right to deny service,” Shanor says, adding it could potentially even extend to race.
303 Creative’s legal team has argued that this would work both ways: a gay business owner could also refuse service to evangelical patrons. Even so, “that is not good,” Shanor says. “Because the whole idea of these laws is so that we can have a vibrant economy that’s not balkanized based upon these exclusionary views.”
3. BIG TECH COULD BE MORE LIABLE FOR PERNICIOUS CONTENT ON ITS PLATFORMS
The power of Big Tech will face a major test in Gonzalez v. Google. Currently, online platforms are protected from responsibility for users’ postings, as part of the 1996 provision, Section 230. This case could overhaul that immunity.
Families of the victim of a terrorist attack in Paris are suing Google, arguing that YouTube’s recommendation algorithms amplified posts that promoted terrorism, specifically recruitment videos for ISIS.
Shanor says the court will likely deal a blow to Section 230, narrowing the immunity that tech companies have. It potentially could force companies to review every post on their platforms.
But it will be an interesting test for this court. Ruling against Google would increase regulation, which goes against the court’s historical pro-business stances. By cracking down on Big Tech companies, but supporting deregulation in other areas, it could raise questions of arbitrary rulings. “Are they doing what they should be doing with regard to law, or are they picking favorites?” Shanor asks.
In terms of free speech, a ruling against Google would seem to counter bills popping up in states like Texas and Florida that aim to limit content moderation so as to not silence conservative voices. “Those two things are directly opposed,” Shanor says. “There’s a deep tension between the idea that they should be more liable for stuff on their website and therefore they should content-moderate more, and the idea that they need to stop content-moderating altogether.”
4. BLUE STATES COULD LOSE SOME REGULATORY POWER
As of January 2022, California has prohibited the sale of meat that’s produced when animals have been “confined in a cruel manner.” The issue is that while California has some of the highest animal-welfare standards for livestock farming, most states allow the cramped confinement.
In National Pork Producers Council v. Ross, the plaintiff argues that since California accounts for only 13% of the nation’s pork consumption, it shouldn’t dictate how the rest of the country produces its meat. The Biden administration has filed an amicus brief in favor of the Pork Council, arguing that California’s law “burdens interstate commerce,” especially when the state imports a large majority of the pork it consumes.
Bolstered by that brief, the conservative court is likely to side with the Pork Producers, in a blow to a liberal state. “They’re going to be inclined to say: California, you can’t make rules for the whole country,” Shanor says.
California is the biggest player in the U.S. economy—and the fifth largest economy in the world—but it has some of the strictest regulations, ranging from emissions and energy to banning toxic materials in products from toys to cosmetics. Because of this, national producers often manufacture to California standards in order to avoid having to tweak items for a single state. Shanor says the case could have a major effect on states’ abilities to regulate businesses, “not just with regard to whether or not we’re being nice to pigs, but a lot of big environmental things,” including the use of chemicals to treat meat, and emissions standards for cars.
And for what is seemingly “a regular economic case,” it could have repercussions beyond business. “What that case is about, in a bizarre way, is actually shadowboxing about abortion,” Shanor says. Since the overturning of Roe v. Wade, a major gray area has been whether states can criminalize residents for traveling across state lines to receive abortions, or penalize companies that pay for travel for out-of-state abortions.
Because this case concerns state-to-state interactions, a broad ruling could extend to reproductive rights issues and others that concern interstate cooperation, including guns and immigration. “The Pork Producers case is just the beginning of a new set of federalism questions,” she says.