On Thursday, December 8, the National Governors Association hosted its monthly legal counsel briefing which previewed the current 2022-2023 U.S. Supreme Court term. The briefing discussed cases currently accepted by the Court and legal issues of interest to states and territories.
This term will feature cases on a number of issues of interest to state and territorial governments, including elections, affirmative action, free speech, administrative law, tribal law, state sovereignty, amongst others. As of December 8, the Court has agreed to hear at least 42 cases, with 34 cases currently scheduled for argument. So far, most cases originate from the Ninth Circuit Court of Appeals (10 cases) and the Fifth Circuit Court of Appeals (8 cases). The Court is expected to accept additional cases for the term, with decisions likely to be issued by the end of June 2023. A few key cases are highlighted below.
On elections and redistricting, the Court will decide Moore v. Harper, a dispute arising from the North Carolina legislature’s efforts to draw a new congressional map in response to the 2020 census, and Merrill v. Milligan, which involves Alabama’s 2021 redistricting map for its seven seats in the U.S. House of Representatives. In Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, the Court will decide whether to overturn a case which held that institutions of higher education may rely on a narrowly tailored use of race in admissions decisions without violating the Constitution’s Equal Protection Clause or Title VI, which prohibits discrimination on the basis of race, color, or national origin in programs receiving federal financial assistance.
The Court will also decide Haaland v. Brackeen, which consolidates four cases challenging multiple provisions of the Indian Child Welfare Act (ICWA) as unconstitutional. ICWA is a federal law enacted in 1978 that establishes minimum standards for the removal of Indian children from their families and establishes a preference that Indian children who are removed from their families be placed with extended family members or in Indian foster homes. Challengers include Texas, Indiana, and Louisiana. The Court will also decide National Pork Producers Council v. Ross, which considers whether California can prevent the sale of pork (that is produced outside of California) in the state unless it meets California’s standards.
The Court has declined to reconsider the Insular Cases this term, which are a group of early 20th-century decisions holding that the residents of certain U.S. territories do not automatically enjoy all the rights protected by the Constitution. The request to address the Insular Cases came to the Court in Fitisemanu v. United States, a case involving citizenship for people who are born in American Samoa.
NGA holds monthly briefings for Governors’ legal counsel. Please reach out to Lauren Dedon (Ldedon@nga.org) for additional information.