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All Eyes on SCOTUS as It Prepares to Tackle Hot-Button Issues in New Term

September 27, 2023

By John Murph

Supreme Court Review

As the U.S. Supreme Court prepares to start its new term Monday, legal experts are paying close attention to the big cases before the justices while reviewing the Court’s most consequential decisions in 2022–2023.

On September 21, more than 100 attorneys gathered online for the D.C. Bar CLE Program’s popular Supreme Court Review and Preview, featuring as panelists John P. Elwood, partner at Arnold & Porter Kaye Scholer LLP; Elaine J. Goldenberg, partner at Munger, Tolles & Olson LLP; William M. Jay, leader of Goodwin Procter LLP’s appellate and Supreme Court litigation practice; and Jaime A. Santos, partner at Goodwin Procter LLP.

“The general theme … is that the Court seems to be taking fewer cases over time,” said Daniel Woofter, a partner at Goldstein, Russell & Woofter LLC, who moderated the panel. “But I don’t know if that will continue to be true as the current makeup of the Court settles in.”

The panel reviewed 11 cases from the current term involving voting rights, affirmative action, student loan debt relief, the environment, and regulation of out-of-state companies. The panelists also previewed 11 cases in the Court’s docket this coming term concerning the power of administrative agencies, the Second Amendment, free speech, abortion, and standing.

Slower Pace for Decisions

Goldenberg said the smaller number of cases and the slow issuance of decisions reflect some of the Court’s systemic issues. “The current Court has done a huge amount of work on the so-called ‘shadow docket,’ and that’s quite different over the last four, five, or six years than it was previously,” Goldenberg said. “So, I think that just takes up time and energy. There have also been a number of highly consequential cases in recent terms and contentious cases with a lot of different opinions.”

The Court has had the “sexy docket” and the “spinach docket” for many years, according to Jay. The spinach docket includes cases that the Court is not particularly interested in resolving but feels it has to take. “It does seem like the Court has not been eating as much spinach,” Jay said, “and it’s not because there aren’t any cert petitions in the pipeline.”

Santos, on the other hand, believes that “some of the justices just don’t feel like they have to eat spinach at all, whether they are busy or not.”

“At first, I thought they were just taking sexy cases. But there are a bunch of cases like the Fourth Amendment case that would, in a normal term, seem pretty obvious [to take because of] a clear circuit split,” Santos said, referring to the Court’s decision in May not to hear Moore v. United States involving warrantless pole camera surveillance. “But the Court just isn’t taking them. It’s kind of frustrating because it’s kind of bad for business,” Santos said.

The End of Affirmative Action

There have been some surprising alignments among the justices in the 2022–2023 term considering the Court’s 6–3 conversative majority, Woofter said. For example, the justices were divided along ideological lines in only five cases, compared to their sharp split in 14 cases decided in the previous term, Woofter noted.

“One thing that has been relatively constant is that the liberal justices have split from each other less than the more conservative justices over the last many terms, especially in the highest profile cases,” Elwood said. “But there have been some interesting departures this term … some of that could be explained by the stare decisis stuff.”

The panel unpacked some of the most high-profile cases decided by the Court this term, including Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina involving affirmative action. In a 6–3 vote in late June, the Court overturned its 2003 ruling in Grutter v. Bollinger and rejected race-conscious admissions programs in higher education because they violate the Constitution’s Equal Protection Clause.

Woofter noted that in Grutter, Justice Sandra Day O’Connor predicted that race-conscious admissions policies would no longer be necessary in the next 25 years.

The Harvard case involved a group of Asian Americans who challenged Harvard’s race-conscious admissions policy, saying that Asian Americans were significantly less likely to be admitted than qualified white, Black, or Hispanic applicants under the university’s race “plus” formula. In the University of North Carolina case, the same petitioners argued that UNC’s consideration of race in its undergraduate admissions process violated the Equal Protection Clause of the 14th Amendment.

“But [Chief Justice John Roberts] did write that college admissions programs can consider race, but only to the extent that it allows an applicant to explain how their race influenced their character in a way that would have a concrete effect on the university,” Woofter said. “But [he wrote that] a student ‘must be treated based on his or her experiences as an individual — not on the basis of race.’ This effectively, if not explicitly, overruled the 2003 Grutter decision.”

In her dissent, Justice Sonia Sotomayor (joined by Justice Elena Kagan and Justice Ketanji Brown Jackson) argued that the majority’s decision rolled back “decades of precedent and momentous progress” and cemented a “superficial rule of colorblindness as a constitutional principle in an endemically segregated society.”

“I authored an amicus brief in the [Harvard] case on behalf of thousands of Asian American social scientists,” Woofter said. “And I take umbrage with [the majority opinion’s view on race] and how it applied to this case of Asian American applicants. But our view did not win the day. [Roberts] concluded his opinion by saying that the Harvard and UNC programs lacked the logical end point suggested by Grutter.

Woofter said the majority’s decision left the door open for military academies like West Point that continue to use race-conscious admissions programs, while Goldenberg predicted that there will be later challenges to the affirmative action ruling.

When asked if the Court will act differently when it comes to military admissions, Goldenberg responded, “That’s a very open question. I think looking at the language of the affirmative action decision, it’s hard to see a different outcome. But I do think that the Court still has more deference to the military.”

The Future of Reproductive Rights

In the aftermath of Dobbs v. Jackson Women’s Health Organization, reproductive rights remain a hot-button issue, one that the Court may address again if it hears Food and Drug Administration (FDA) v. Alliance for Hippocratic Medicine in the upcoming term.

The case involves mifepristone, the first of a two-drug process used in abortions. “As of last year, medication abortions accounted for more than half of all U.S. abortions,” Santos said. “In some states where there are few or no facilities that provide surgical abortions, medication abortions can be the only realistic possibility for women seeking to end a pregnancy.”

After the Supreme Court’s Dobbs decision, several anti-abortion organizations and doctors who oppose both surgical and medical abortions joined together — as the Alliance for Hippocratic Medicine — to seek to revoke the FDA’s approval of mifepristone. “They did so by challenging the FDA’s decision to approve mifepristone back in 2000 and subsequent decisions to expand access to [the drug],” Santos explained.

In April 2023, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas ruled in favor of the plaintiffs and suspended FDA approval of mifepristone. “It was called a retroactive stay of the 2000 approval decision,” Santos said. “But it basically withdrew the drug from the market.”

Santos noted that the two pending cases involving the Alliance for Hippocratic Medicine (the other is filed by the drug’s manufacturer) present two important issues. The first is whether doctors who don’t perform abortions or prescribe medicine for abortions have standing to challenge FDA approval of a drug they don’t prescribe.

“The Fifth Circuit [which limited distribution and access to mifepristone] relied … primarily on the statistical probability that if women use mifepristone, some of them will suffer complications. Some of those complications will be serious and might require hospital interventions; some of the women who have those serious complications may, rather than returning to their own physician, go to a hospital where one of the plaintiff doctors … may be forced to treat a woman suffering from a serious side effect,” Santos explained. “And that could cause a lot of mental and emotional stress and maybe force the doctor to violate her conscience.”

The second major issue is whether the FDA’s approval decisions are arbitrary and capricious. “I don't think that I've ever seen a judicial decision in history effectively withdrawing a drug by judicial fiat,” Santos said. “The government argues that the Fifth Circuit broke basically every cardinal rule of administrative law in doing so. So that is going to be something; certainly if the Court reaches the merits, that will be hotly contested.”

Santos noted that the U.S. Department of Justice has filed a petition urging the Supreme Court to reconsider the Fifth Circuit’s ruling. “It’s incredibly hard for me to see that [Food and Drug Administration v. Alliance for Hippocratic Medicine] will not be granted,” Santos said. “The case is really consequential both from a doctrinal perspective and a practical perspective.”

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