5 High-Stakes Issues in the 2022-2023 SCOTUS Term

5 MIN READ

The 2022-2023 Supreme Court term opened on Monday, October 3, and based on the number of precedents that were overturned during the last term, many are expecting the same to happen here too. And several high-profile topics are on the SCOTUS docket: First Amendment, environmental protections, affirmative action, voting rights, and much more.

Did you know that HeinOnline offers an online version of the American Bar Association’s Preview of United States Supreme Court Cases, which provides comprehensive expert analysis of all cases argued before the Supreme Court prior to the arguments? Let’s take a look at some of these upcoming cases with the help of Preview and other HeinOnline resources. And to learn more about Preview, check out the video below:

Top Issues on the Docket

1. Voting Rights

Moore v. Harper and Merrill v. Milligan[1]Steven D. Schwinn, Does Alabama’s 2021 Redistricting Plan for Its Seven Congressional Seats Violate the Voting Rights Act? (21-1086) (21-1087), 50 PREVIEW U.S. Sup. CT. Cas. 13 (2022). This article can be found in … Continue reading

The case Moore v. Hopper analyzes the legitimacy of the “independent state legislature doctrine,” which has previously been rejected by the Court for more than a century. The Constitution states that rules governing federal elections are to be determined by state legislatures. Typically, “state legislatures” have been understood to include anybody in the state that has legislative power—such as a governor who has the power to veto a law, or the people of a state who have the power to enact laws via voting. However, the “independent state legislature doctrine,” which several of the current Court justices support, assumes that the legislature only refers to the body of elected representatives in a state’s legislative branch, thereby leaving room for the Supreme Court to overrule a state supreme court’s interpretation of state election laws.

Meanwhile, Merrill v. Milligan concerns the current Alabama congressional map which was redrawn last year. Currently, about 27% of Alabamans are Black, but with the new gerrymandered maps, the Black population only controls 14% of the state’s congressional election. A panel of three judges previously ruled that the new maps violated the Voting Rights Act, but in February, the Supreme Court voted 5-4 to keep the map in place for the 2022 election cycle. This case will determine whether the map remains in place until the next redistricting cycle in 2031.

2. Affirmative Action

Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina

In 2003, in the case Grutter v. Bollinger,[2]Grutter v. Bollinger et al. , 539 U.S. 306, 395 (2003). This case can be found in HeinOnline’s U.S. Supreme Court Library. the Supreme Court ruled that universities can consider race to a limited extent when deciding on admissions, asserting that recognizing race is important for improving diversity. However, in these two upcoming cases, it is expected that the Court majority will vote to overrule Grutter and fully forbid universities from taking race into consideration. Affirmative action had already been threatened in 2016 in the case Fisher v. University of Texas,[3]Fisher v. University of Texas at Austin et al., 579 U.S. Reports – Preliminary Prints 365 (2016). This case can be found in HeinOnline’s U.S. Supreme Court Library. which was decided by only one vote in a considerably more liberal Court.

3. Environmental Protections

Sackett v. EPA[4]Stephen S. Davis, Does the Clean Water Act’s Jurisdiction over “the Waters of the United States” Extend to Wetlands That Have No Direct Surface Connection to Navigable Waters? (21-454), 50 PREVIEW U.S. Sup. CT. … Continue reading

The Clean Water Act makes it illegal to discharge pollutants into “waters of the United States.” However, the law does not provide specifics as to what types of bodies of water are classified as protected. Lakes and rivers are widely accepted, but what about the smaller bodies of water that connect to them? In this case, in question is a wetland which is connected to a lake via a tributary and a creek—is this subject to the Clean Water Act? It is likely that the current Supreme Court will rule that it is not, which would significantly decrease the scope of the Clean Water Act.

4. First Amendment

303 Creative v. Elenis

303 Creative is a website designer looking to create wedding announcement websites, but only wants to do so for straight couples. In a previous case, Masterpiece Cakeshop v. Colorado Civil Rights Commission[5]Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission et al., U.S. Reports 1 (2018). This Slip Opinion can be found in HeinOnline’s U.S. Supreme Court Library. in 2018, the Supreme Court ruled that a baker who refused to design a cake for a same-sex couple did not have the First Amendment right of free speech to discriminate against homosexual couples. However, with the Court siding with religious conservatives in other recent cases, and the more viable tie between a website and free speech, 303 Creative v. Elenis may end in the designer’s favor.

5. Native American Relations

Haaland v. Brackeen

Precedent has determined that the Constitution gives the federal government authority over relations with Indigenous peoples. In the 1800s, this authority was used to justify the forced removal of native children from their homes into boarding schools where they were “christianized” to abandon their culture. In response, in 1978, Congress passed the Indian Child Welfare Act,[6]To establish standards for the placement of Indian children in foster or adoptive homes, to prevent the breakup of Indian families, and for other purposes., Public Law 95-608, 95 Congress. 92 Stat. 3069 (1978). This act can be found in … Continue reading which states that if a child who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe,” then in the case that the child needs to be removed from their home, they should be placed with an American Indian family, preferably an extended family member or a member of their own tribe. This case involves non-Native American families who have adopted Indigenous children and are fighting against the Indian Child Welfare Act.

Follow Along with Preview

The American Bar Association’s Preview of the United States Supreme Court Cases is a publication that provides comprehensive expert analysis of all cases granted certiorari before the Supreme Court prior to the arguments. A subscription to this online publication includes eight issues annually. Issues 1-7 summarize the Court’s seven argument sessions from October through April. Issue 8, which is published subsequent to the close of the Court’s term at the end of June, reviews the entire term using statistics, charts, essays, and case summaries.

The first issue for the 2022-2023 term has already been published and is live in HeinOnline, summarizing the cases that are being heard in October.

When you subscribe to Preview, enjoy features such as:

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Fully Searchable Database
View the most current issue and archives with full-search capability.

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Custom Case Locator Tool
Quickly retrieve any case covered by Preview.

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Multiple Browse Options
Browse or search cases by docket number, term, case name, and more.

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Scholarly Analysis
Use our ScholarCheck tool to analyze Preview articles and Court cases.

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Inline Hyperlinks
Link directly to cited articles and cases in HeinOnline.

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eTOC Alerts
Get electronic Table of Contents alerts when new issues are added.

Be in the Know — Without Breaking the Bank

With the new SCOTUS term just begun and important cases on the horizon, now is a great time to secure your subscription to Preview, for less than $200/year!

Organizations: $180.00

Undergraduate/Law Students: $25.00
K-12 Teachers: $25.00

Individuals (Non-ABA Members): $135.00
Individuals (ABA Members): $130.00 $67.50

Hard-Bound Volume*: $80.00

HeinOnline Sources

HeinOnline Sources
1 Steven D. Schwinn, Does Alabama’s 2021 Redistricting Plan for Its Seven Congressional Seats Violate the Voting Rights Act? (21-1086) (21-1087), 50 PREVIEW U.S. Sup. CT. Cas. 13 (2022). This article can be found in HeinOnline’s Preview of United States Court Cases.
2 Grutter v. Bollinger et al. , 539 U.S. 306, 395 (2003). This case can be found in HeinOnline’s U.S. Supreme Court Library.
3 Fisher v. University of Texas at Austin et al., 579 U.S. Reports – Preliminary Prints 365 (2016). This case can be found in HeinOnline’s U.S. Supreme Court Library.
4 Stephen S. Davis, Does the Clean Water Act’s Jurisdiction over “the Waters of the United States” Extend to Wetlands That Have No Direct Surface Connection to Navigable Waters? (21-454), 50 PREVIEW U.S. Sup. CT. Cas. 3 (2022). This article can be found in HeinOnline’s Preview of United States Court Cases.
5 Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission et al., U.S. Reports 1 (2018). This Slip Opinion can be found in HeinOnline’s U.S. Supreme Court Library.
6 To establish standards for the placement of Indian children in foster or adoptive homes, to prevent the breakup of Indian families, and for other purposes., Public Law 95-608, 95 Congress. 92 Stat. 3069 (1978). This act can be found in HeinOnline’s U.S. Statutes at Large database.
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