The Supreme Court once again is poised to rewrite policy on some of the country’s thorniest issues over the next two months as the justices complete their term with rulings expected on race, religious liberty, voting rights, social media and gay rights.
The court will also decide the fate of President Biden’s executive powers in two cases: one covering his student loan forgiveness plan and the other his attempt to grant leniency to illegal immigrants.
Liberal court watchers are bracing for another spate of losses. Conservatives hope the six Republican-appointed justices continue their project of reeling in the reach of government and overturning 1970s-era precedents.
The justices have heard 59 oral arguments since the start of their term on Oct. 1. So far, they have issued 12 opinions and dismissed one case — well off the usual pace.
Plenty of cases, including the most controversial of this Supreme Court term, remain to be decided.
“The court has left its major policymaking decisions for the end of the term,” said Adam Feldman, a Supreme Court scholar and creator of the Empirical SCOTUS blog. “One good indicator of these cases is that the justices tend to split along ideological lines. We haven’t seen any of those splits yet this term, likely because the cases already decided were not any of the big ticket items.”
The decisions will draw intense interest because of the issues at stake and the increased scrutiny of the court after last year’s blockbuster rulings. The justices overturned the nearly 50-year-old abortion precedent of Roe v. Wade and delivered vigor to Second Amendment rights.
This year, the cases drawing the most attention might be challenges to affirmative action policies at Harvard University and the University of North Carolina at Chapel Hill, the oldest private and public universities in the country.
Over the past 25 years, the high court has narrowed the scope of affirmative action but has never ruled the practice illegal or unconstitutional.
The Harvard and UNC cases present the justices with that opportunity.
They bring a new wrinkle. Asian plaintiffs argue that affirmative action, despite its promises, actually hurts them.
In a 2003 ruling, the Supreme Court seemed to set a time limit on affirmative action, and the current court’s Republican-appointed justices suggested that the experiment of boosting some racial and ethnic minorities should end.
“How do you know when you’re done?” asked Justice Amy Coney Barrett. “What is the endpoint?”
Curt Levey, president of the Committee for Justice, said the affirmative action cases are as big “as you’re ever going to find.”
“The last couple weeks of June are always exciting, and they’ll probably be even more exciting than average,” Mr. Levey said.
The court will tackle race in another case involving Alabama’s congressional district map. The state’s population is 27% Black, but only one of its seven House districts has a majority-Black population.
Critics said the state should have worked to maximize Black political power, meaning at least two majority-Black districts under the Voting Rights Act of 1965.
Alabama says it drew the map without regard to race and that forcing it to inject race into its decisions would violate the Constitution’s equal protection clause.
Presidential power
Mr. Biden could run up against the Republican appointees in cases challenging his student loan forgiveness plan.
The administration says the plan, which forgives up to $20,000 of a student’s federally backed loans, is legal under the HEROES Act. That 2003 law was aimed at helping veterans access college, but it also gave the Education Department the power to waive or modify a broader set of loans in cases of emergency. Education Secretary Miguel Cardona said the COVID-19 pandemic was such an emergency.
The forgiveness could cost taxpayers more than $400 billion.
The high court heard one challenge from Republican-led states and another from two plaintiffs who didn’t qualify for forgiveness.
They argue that Mr. Biden’s level of forgiveness goes well beyond what Congress intended with the 2003 law.
They seemed to have a sympathetic ear among the majority of justices.
“I think most casual observers would say, if you’re going to give up that much amount of money, if you’re going to affect the obligations of that many Americans on a subject that’s of great controversy, they would think that’s something for Congress to act on,” Chief Justice John G. Roberts Jr. said during oral arguments. “And if they haven’t acted on it, then maybe that’s a good lesson to say for the president or the administrative bureaucracy that maybe that’s not something they should undertake on their own.”
Mr. Biden’s immigration policy is also before the justices with a case brought by Texas. The state said the Department of Homeland Security is ignoring federal law by refusing to detain and deport illegal immigrants.
Texas won in lower courts, where judges ruled that the administration violated immigration law by refusing to try to deport illegal immigrants with criminal records.
The justices kept the Biden policy on hold but sped the case onto their docket. During oral arguments late last year, they seemed more willing to grant Mr. Biden some leeway by suggesting that the president has to work within the limited funding that Congress allocates for detention and deportation.
Religious accommodation
The high court has been increasingly accommodating toward those with religious beliefs but has only toyed with the clash between same-sex couples and conservative Christians who oppose such unions.
This could be the year that the Supreme Court delivers a firm ruling.
Lorie Smith, owner of the web design firm 303 Creative, asked the court to strike down a Colorado law that says she cannot discriminate against customers. She says that would compel her to create a website for a same-sex couple, violating her First Amendment free speech rights.
A federal appeals court ruled against Ms. Smith. It said the state’s interest in equal access trumped her free speech claim.
During oral arguments, some justices seemed interested in distinguishing between businesses offering custom work and those with regular services.
The court also seemed to be searching for the line in a case involving a former U.S. Postal Service employee who clashed with supervisors because he wanted to take the Sabbath off from work.
Under a 1977 precedent, workplaces are required to make only small accommodations, and the cost of recruiting other employees to fill the role of a Sabbath-observant employer has been deemed a good enough reason not to do so.
The justices saw problems with the 1977 case but struggled with how far to go in ordering business accommodations.
“It’s going to depend on the size of the employer, the nature of the request, what reasonable options are available to the employer,” Justice Neil M. Gorsuch said.
Social media liability
The high court heard two disputes over Big Tech companies’ legal liability for content posted by other people.
Families of victims of terrorist attacks said Twitter, Facebook and Google need to do more to shut down extreme voices on their platforms. One case argued that YouTube should be liable for spreading terrorist content because its algorithms promote such violence to people looking for it.
The cases could upend three decades of protections for technology companies, though the justices seemed skeptical about going too far down that path.
“Lawsuits will be nonstop,” Justice Brett M. Kavanaugh predicted.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
Please read our comment policy before commenting.