Issues & Trends
GW Law Previews Some of the Top Cases Awaiting Supreme Court Review
September 28, 2023
From left to right: moderator Mark Joseph Stern, Kimberly Atkins Stohr, Alan Morrison, and Emily Hammond.
In observance of Constitution Day, the George Washington University Law School held a Supreme Court preview on September 19, drawing a crowd that strained the moot courtroom’s generous capacity, a sign of both students’ engagement and the contentious nature of the High Court and its docket.
Dean Dayna Bowen Matthew opened the event with quotes from two Supreme Court justices about the Constitution. She quoted Justice Thurgood Marshall, who said that our government “was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.” Matthew contrasted that with Justice William Rehnquist’s statement that “It is almost impossible … to conclude that [the founders] intended the Constitution itself to suggest answers to the manifold problems that they knew would confront succeeding generations.”
Matthew pointed out that the Constitution itself is only 4,543 words, the shortest such document of any major country. Despite its brevity, the Constitution presents major issues that the Supreme Court will address in the upcoming October term.
Kimberly Atkins Stohr, senior opinion writer and columnist for The Boston Globe, MSNBC contributor, and cohost of the Politicon podcast Sisters in Law, discussed Alexander v. South Carolina State Conference of the NAACP, a case involving gerrymandering. Historically, gerrymandering cases have had limited impact because the facts tend to be case-specific, Stohr said.
“There usually isn’t a broad, overarching impact from these rulings,” Stohr added. “They really only apply to the district they are talking about, but increasingly these cases are becoming more and more important.”
In Alexander, the central issue is whether race was the predominant factor in South Carolina’s redistricting scheme, which effectively moved tens of thousands of Black voters to a different district. The lower court held that the move was racially motivated in violation of the 14th Amendment. On appeal, the defendants said they only intended political gerrymandering and that the lower court denied them the presumption of good faith.
“The biggest takeaway in this case is that it’s the Supreme Court’s first real opportunity to articulate the difference between a racial gerrymander and a political gerrymander,” Stohr said.
Alan Morrison, GW Law’s Lerner Family Associate Dean for Public Interest and Public Service Law, has argued 20 cases before the Supreme Court and teaches civil procedure and constitutional law. He briefed the audience on a series of cases relating to social media platforms, including Moody v. NetChoice, LLC. The issues are whether the First Amendment prohibits a state from requiring social media companies to host third-party communications and from regulating how they do so, and whether the First Amendment prohibits a state from requiring social media companies to notify users when they censor the user’s speech.
Florida and Texas had passed similar, but not identical, laws prohibiting social media platforms from censoring certain speech following decisions that social media companies had unfairly prevented conservative advertisers from purchasing ads, allegedly in violation of their First Amendment rights.
Morrison said that the tension in these cases arises from the platforms’ own First Amendment right to moderate content they publish. While the U.S. Court of Appeals for the 11th Circuit struck down the Florida law as unconstitutional, the Fifth Circuit upheld the Texas law, likening social media companies to “common carriers” like buses, rail lines, and hotels.
Emily Hammond, GW Law’s Glen Earl Weston Research Professor, reviewed Loper Bright Enterprises v. Raimondo, in which a group of commercial fishermen sued the National Marine Fisheries Service after it promulgated a rule requiring the fishing industry to fund at-sea monitoring programs.
Hammond said that the lower court approached the issue with a standard Chevron analysis, but “the dissent approached the issue differently, saying that statutory silence should be unambiguous.” The question presented is whether the Supreme Court should overturn Chevron, or at least clarify whether the statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute constitutes an ambiguity requiring deference to the agency.
Moderator Mark Joseph Stern, senior writer for Slate Magazine, covered United States v. Rahimi, in which an individual subject to a domestic violence restraining order was prohibited from possessing a firearm, allegedly violating his Second Amendment right.
Rahimi was involved in five shootings in a one-month period and was found in possession of a number of firearms. At the time, Rahimi was subject to a civil protection order relating to allegations of domestic violence by his ex-girlfriend. The order expressly prohibited Rahimi from possessing a gun. In its analysis, the Fifth Circuit applied the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen, requiring, in essence, a historical twin law in order to uphold contemporary firearm restrictions.
Stern said that the court could not find any historical analogies for firearm possession restrictions arising from domestic violence charges because “in that period, domestic abuse was legal.”
“Women were not equal citizens. Women were not deemed to have independent rights apart from their husbands, and very few, if any, states made it a crime to violently abuse one’s wife or children,” Stern said.
Stern characterized Rahimi as the first in a long line of cases employing Bruen’s interpretive framework, saying that under its logic the case came out correctly, but that its review would force more moderate justices like John Roberts and Brett Kavanaugh to contend with its strictly originalist framework.
“Will they say, yeah, women were not people in 1791, so they don’t get these protections today? I think, in that sense, this case has strong echoes of Dobbs, where the Supreme Court said women didn’t have reproductive rights in 1868, so they don’t have a constitutional right to reproductive autonomy today,” Stern added.