A new slate of cases before the justices could have broad implications for the 2024 elections and the admissions practices of higher education institutions, say Boston University law experts. Photo by Claire Anderson/Unsplash

Business & Law

As Supreme Court Starts New Term, Some Cases to Watch

On the docket this fall: affirmative action, election practices, more

Coming off a momentous spring term that saw the US Supreme Court overturn the landmark abortion case Roe v. Wade and rule that the Second Amendment protects citizens’ right to carry a gun outside their home, a new slate of cases before the justices could have broad implications for the 2024 elections and the admissions practices of higher education institutions, Boston University law experts say. 

The fall term, which begins on Monday, promises to be another blockbuster session. It also marks the beginning of Justice Ketanji Brown Jackson’s term on the bench. 

Jackson, confirmed to the high court in April, is the first Black woman to serve as a Supreme Court justice. Lawyers and SCOTUS wonks expect that she’ll be more liberal on many issues than Stephen Breyer (Hon.’95), the justice she replaced, although her impact remains to be seen, say Robert Tsai and Jack Beermann, both School of Law professors. 

“If nothing else, I expect that her participation in oral argument will affect the public’s attention to the topics she brings up,” Tsai says. “The capacity of states to do something about racial gerrymandering, to ensure that election rules don’t harm already marginalized voters—there are a lot of populations who care about that, and she can give voice to those issues in a way that just wouldn’t have the same impact coming from another justice.”

For those interested, the Supreme Court will broadcast oral arguments live this year, continuing a practice that began during the COVID-19 pandemic. Here are some cases to watch.

“There are a lot of big cases coming up this term, and from an educational perspective, probably the biggest one is Students for Fair Admissions v. President & Fellows of Harvard College,” Beermann says.

This, and a companion case, Students for Fair Admissions v. University of North Carolina, are two of the highest profile cases on the Court’s fall docket. They represent challenges to the consideration of race in the admissions processes at Harvard University and the University of North Carolina—but could end up having much wider consequences for colleges and universities across the country. 

In both cases, the petitioner is Students for Fair Admissions, a group that describes itself as a “nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional,” according to its website. The group was founded by Edward Blum, an activist who has made a name by orchestrating lawsuits that challenge affirmative-action practices and voting-rights laws across the country.

In the two cases before the Supreme Court—which will be heard on October 31 (the start of the Court’s November term)—Students for Fair Admissions argues that universities should not be allowed to consider an applicant’s race when making admissions decisions. 

They argue that the Court should overrule Grutter v. Bollinger, a narrow 2003 case where justices held that the University of Michigan Law School could consider an applicant’s race as one of many factors in its admissions process in an effort to assemble a diverse student body. 

While the Harvard and UNC cases pose slightly different questions to the Court, the implications for higher education institutions—should the Court rule in favor of Students for Fair Admissions—are strikingly similar. 

“Schools would no longer be allowed to even know the race of their applicants,” Beermann says, “which could result in a less racially diverse student body in many schools.” 

Admissions officers could still consider other factors that contribute to a diversity of experience, such as economic and geographic diversity. But, he says, they’d have to be careful not to use those “as proxies for racial diversity.” 

Another important case to watch this term is Moore v. Harper, an appeal backed by Republicans out of North Carolina that “has the possibility of sending reverberations throughout the entire electoral system in the United States,” Tsai says. 

The case arises from an age-old dispute. Every 10 years (with each new census count), states have to draw new state and congressional district maps in a process called redistricting. The process of redistricting is largely governed by state laws, but every state must adhere to a few federal requirements. 

The first of these is that each district contains roughly the same number of people. This requirement is also known as “one person, one vote.” The second federal requirement is that states comply with the Voting Rights Act and the equal protection clause of the 14th Amendment, which, together, prohibit states from drawing district lines in a way that dilutes the voting power of protected minority groups. Other than that, each state has its own laws that govern the redistricting process. Typically, in a practice known as gerrymandering, Republicans and Democrats each try to draw maps that will give their party the greatest electoral advantage. 

The 2020 Census gave state legislatures a new shot at redistricting, and by now, every state has a new map in place. (See what they look here.) Several of those maps are being challenged in state courts as illegal gerrymanders, including the one for North Carolina. This is where Moore v. Harper picks up. 

In February, a three-judge panel in North Carolina rejected a map it said was overly advantageous to Republicans and established a new map for the 2022 midterm elections. Now, Republicans in the state aren’t just challenging this one new map, but are challenging the ability of state courts to review election laws, writ large. 

The judicial theory that underpins their argument is called the Independent State Legislature Theory. Proponents of the theory interpret two election clauses in the US Constitution to say that state legislatures have ultimate power over elections in their states and that state courts have a limited ability—or none at all—to check that power. 

“If the Court embraces this theory, then you have a new way for parties and partisans who aren’t that enamored of democracy and want more than one bite at the apple to entrench partisan power, [to have] the ability to do so,” Tsai says. 

Part of what makes this case so dire, Beermann says, is the “successful gerrymandering of so many states” already, a practice the Supreme Court has thus far been loath to intervene in. In North Carolina, where Moore v. Harper originates, the district map was so extremely gerrymandered that “an evenly divided popular vote would have awarded 10 of the 14 [Congressional] seats to the Republicans and only four to the Democrats,” according to the Brennan Center for Justice, a nonpartisan law and policy institute.

If the justices rule in favor of North Carolina Republicans, “the fear is that it will entrench Republican candidates across the country, and make it possible for state legislators to go against the popular vote of the state,” Beermann says. At its most extreme imagining, such a decision could result in “a situation where the majority of voters choose one presidential candidate and the state gives its electoral votes to a different candidate,” he says.