August 30, 2023
PacificaU U.S. Supreme Court Term Forum: Key Takeaways
Earlier this month, Pacifica Law Group hosted a forum for discussion of the recently concluded U.S. Supreme Court Term featuring a preeminent trio of constitutional law experts: Washington State Solicitor General Noah Purcell; Elias Law Group partner Abha Khanna; and Professor Andrew Siegel of the Seattle University School of Law.
The talk, which was moderated by Pacifica partner Zach Pekelis, delved into some of the major cases decided during the 2022-2023 U.S. Supreme Court term. The panelists explored the implications of the term on a wide range of issues, including affirmative action, voting rights, the administrative state, free speech, and anti-discrimination law.
Below are a few key takeaways from the discussion.
The Future of University Affirmative Action
The two consolidated cases on affirmative action, Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College, was one of the major decisions discussed by the group. Holding that Harvard College and UNC’s consideration of race as a factor in undergraduate admissions violated the Equal Protection Clause and Title VI of the Civil Rights Act of 1964, the majority signaled its intention to “strike down pretty much all university affirmative action as we know it,” Siegel said.
However, Siegel added, universities that believe that “diversity work is not only constitutionally permissible but, in many ways, constitutionally required,” are not going to “drop that Constitutional vision because of the politics of who ended up on the Court. So there are going to be more rounds of litigating this [issue].”
The First Amendment, Free Speech, and Religious Freedom
Another of the major cases addressed by the panelists was 303 Creative LLC v. Elenis, in which the Court held that the First Amendment’s Free Speech Clause protected the right of a Colorado graphic designer—who opposes same-sex marriage due to her religious beliefs—to refuse to build wedding websites for same-sex couples, trumping Colorado’s laws prohibiting discrimination on the basis of sexual orientation in public accommodations.
Purcell noted that this seemed like a perfect test case for challenges to anti-discrimination laws based on First Amendment claims of free speech. “It was tactically brilliant because [a website] is basically just words that you’re putting online,” Purcell said. But, he noted, “It’s really unclear how far the opinion actually goes and what it means. And there is going to be a ton of litigation about who’s actually bound by this and in what context.”
Abha Khanna on Allen v. Milligan
It was also notable to have firsthand analysis of Allen v. Milligan from Abha Khanna, who argued the case before the U.S. Supreme Court—and won. The case challenged Alabama’s congressional districting plan under Section 2 of the Voting Rights Act (VRA), which prohibits election practices that deny or abridge the right to vote on the basis of race. Alabama’s 2020 congressional map of seven districts included just one Black majority district, even though Black voters made up more than a quarter of the state’s citizens. In a 5-4 decision authored by Chief Justice Roberts, the Court held that Alabama’s map violated VRA Section 2.
In describing the case, Khanna characterized Alabama’s position as representing “the real revolutionary arguments in this case,” because the State tried to claim that Section 2, which became law in 1965, was no longer necessary because Alabama had reached a post-racial era. “Alabama gave the Court several options to do serious damage to the Voting Rights Act,” Khanna explained. “It became clear during oral argument that this Court was not going to be following them down that path.”
The panel also discussed Haaland v. Brackeen, Biden v. Nebraska, and Moore v. Harper during the 90-minute PacificaU program.
About PacificaU
Pacifica Law Group established PacificaU to share our unique skills and expertise with clients, colleagues, and the greater Northwest community. PacificaU programs include trainings and primers in our practice areas; panel discussions and forums about cutting-edge legal issues; and in-house professional development for Pacifica attorneys. Many of our programs are Continuing Legal Education (CLE)-accredited, enabling legal professionals to earn credit towards their CLE requirements.
For more information about PacificaU trainings and events, please follow us on LinkedIn and visit: https://www.pacificalawgroup.com/news-items/pacifica-u/
