Professors Geoffrey Stone, Sarah Konsky, and William Baude recently reflected on the past US Supreme Court term and offered a preview of cases to come at the Law School’s First Monday program, which was held virtually on September 20. The program included a Q&A session with the audience.
“Our First Mondays event is one of our great traditions with our alumni at the Law School,” Thomas J. Miles, Dean and Clifton R. Musser Professor of Law and Economics, observed in his introductory remarks. “The University of Chicago has as its goal intellectual inquiry to expand human knowledge, and to share that knowledge with the world. In pursuit of these ambitions, our faculty aspire to produce field-defining ideas and push the boundaries of knowledge… It is a great privilege to share with you some of that faculty expertise, and that commitment to great teaching and sharing of knowledge.”
Stone, who is the Edward H. Levi Distinguished Service Professor and is currently marking his 50th year teaching at the Law School, kicked off the program by offering his thoughts on the Supreme Court’s affirmative action rulings last June. Collectively, the cases prohibit higher education institutions from considering an applicant’s race when evaluating the individual for admission.
The rulings overturned 45 years of precedent allowing schools to take race into account as a factor in admissions, Stone observed. “In every Supreme Court decision since 1978, the Court has rejected the arguments that affirmative action necessarily violates the Equal Protection Clause or Title VI of the Civil Rights Act of 1964,” he said.
Konsky, Clinical Professor of Law, followed Stone with a discussion of Haaland v. Brackeen, a 7-2 decision issued last June in which the Supreme Court rejected a challenge to the constitutionality of the Indian Child Welfare Act. The Law School’s Jenner & Block Supreme Court and Appellate Clinic, which Konsky co-directs, served as co-counsel to three Indian tribes in the case.
“Justice Barrett led the majority opinion by explaining that the issues were complicated, but the bottom line was that the Court was rejecting all of the petitioners’ challenges to the statute, some of the merits and some for lack of standing,” Konsky said. “From respondents’ side of the case, the decision upholding [ICWA] was a very important victory for Indian children, tribes, and families. The case also to me reflects that while the Court is taking more cases that are of this nature, not all of the challenges are successful. And Justice Gorsuch wrote a powerful concurrence in this case again championing tribal rights and protections.”
Chevron Doctrine and ADA Testers
Turning to current term, Konsky discussed Loper Bright Enterprises v. Raimondo, a case presenting the question of whether the Supreme Court should overrule Chevron deference, a long-established doctrine guiding when judicial deference should be given to administrative actions. Established in a 1984 Supreme Court case, Chevron deference has fallen into disfavor in recent years, Konsky noted.
“It seems likely, I think that most agree, the Chevron is not going to survive this case, at least in its current form,” Konsky said. “The practical implications of this case are a bit unclear. There are good arguments to be made that Chevron is currently not doing a lot of work in a lot of cases. Litigants are often not raising Chevron deference as the primary argument; they try to convince the judge that the statutory language is clear or that there are other grounds to decide the case. You are more often seeing Chevron buried at the end of briefs these days.”
Konsky next discussed another case on the 2023-2024 docket, Acheson Hotels, LLC v. Laufer, which presents the question of whether an Americans with Disabilities Act tester has standing to challenge a hotel’s failure to provide disability accessibility information on its website, even if the tester lacks any intention to stay at the hotel.
“This case is at the intersection of tester standing and the internet,” Konsky said. “If you are interested in following the Court’s standing precedents, or have reason to be following these sorts of accessibility and tester standing case, this is a case to keep an eye on. There are also some really intriguing mootness issues in this case. So, if you are a fan of the Court’s mootness doctrine, it is one to check out on those grounds as well.”
Trends in Standing
Baude, Harry Kalven, Jr. Professor of Law and Faculty Director of the Law School’s Constitutional Law Institute, continued on the standing theme. “One of the big transformations we have started to see is in the Court’s attitude toward the standing of states,” Baude said.
Not long ago, it was uncommon to see cases brought by states against the federal government. But a 2007 Supreme Court case, Massachusetts v. EPA, allowed a state against the EPA pertaining to its failure to regulate greenhouse gases to proceed. “The trend since then has been remarkable,” Baude said.
“Over the course of the Obama administration that started shortly thereafter, 58 different lawsuits were initiated against the Administration by Republican Attorneys General,” Baude continued. “There were 155 lawsuits initiated against the Trump Administration by various Democratic Attorneys General. We’ve already seen 59 or 60 against the Biden Administration. The number of these lawsuits have become staggering. It has become a standard part of partisan operating procedure. When there is a new administration in power, the states that are controlled by the other party will sue for almost any major initiative and try to litigate it.”
The state lawsuits are part of a larger array of trends impacting the justice system, including the prevalence of more polarized District Court appointments, the increasingly widespread grant of nationwide injunctions by District Court judges, and the Supreme Court’s increasing willingness to hear matters on an expedited fashion without full briefing on the courts emergency docket, according to Baude. “All these things together mean that compared to twenty years ago, the number and speed in which major political issues are brought before the Supreme Court has changed, and, in my view, not necessarily for the better, just putting the court in the center of a lot of these things,” he said.
Baude went on to say that last term the Court signaled it may be ready to rein in this trend, and begin taking a more skeptical view of state lawsuits filed against federal authority. As an example, he cited United States v. Texas, decided by the Supreme Court last June, holding that Texas and Louisiana lacked standing to challenge certain immigration-enforcement guidelines promulgated by the Secretary of Homeland Security.
Turning to the docket of the upcoming term, Baude discussed a Second Amendment case, United States v. Rahimi, which presents the question of the constitutionality of a federal law prohibiting the possession of firearms by anyone subject to domestic-violence restraining orders.
“My guess is what we will see from the Supreme Court is a signal that courts should not be too quick to presume that all gun regulations are unconstitutional,” Baude said. “They really do mean that there are some important principles of public regulation here… We probably will still see several more rounds of [Second Amendment] litigation at the US Supreme Court as they try to figure out principles to operationalize this.”
Supreme Court Ethics Controversies
During the audience Q&A portion of the program, the panelists were asked to share their views on the much-reported ethics controversies at the US Supreme Court and their view on whether all the negative coverage will lead to any meaningful action.
Konsky responded that several of the justices in public remarks have suggested that there are discussions underway about establishing an ethics policy or guidelines within the Court. “In light of the discussions, I would not be surprised to see that,” she said.
“I don’t think that there is any principled reason that the justices on the Supreme Court should not be held to the same types of regulations as other federal judges,” Stone said. “If they had taken their responsibilities seriously, they would probably have adopted policies similar to those that apply to other federal judges. I do think it is hard to understand why they insisted on that degree of indifference to these issues.”
Baude said the Supreme Court is in a bind because for a longtime it has had a policy that a lot of ethics issues, such as recusal, are decided by the justices at the individual level as “it would be too dangerous for the Supreme Court as a whole, and certainly too dangerous for anybody outside the Supreme Court to make collective decisions about recusals of individual justices.”
Now however, Baude continued, “they are realizing that, of course, leaving it to the individual level poses taxes on the institution as a whole. And this is a problem familiar to tenured faculty members as well. It relies on everybody being on the same page on the norms and appearances of propriety, and when that doesn’t happen, they can’t rely on that principle.”
Original source can be found here.