Supreme Court 2022–23 Term in Review

Professors Amar and Dorf will discuss the leading cases the Supreme Court decided in its most recent Term, as well as those issues that the Court failed to address. Topics will include: race-based affirmative action in higher education admissions; judicial review of political gerrymandering; conflicts between free speech and anti-discrimination law; validity of administrative student debt forgiveness; state regulation of animal welfare; Indian Child Welfare Act's preference for adoption by tribal members; Title 42 border policy; social media company liability for third-party content; and more. Time permitting, Professors Amar and Dorf will also discuss calls for a binding ethics code for Supreme Court justices.

Topics covered include:

Supreme Court

Agenda:

Overview of the 2022-23 Supreme Court Term

How monumentally did this term change the legal landscape?

Students for Fair Admissions, Inc. v. Harvard

Affirmative action, the approach of the opinion, constitutional distinctions, and what schools might do now

Moore v. Harper and Allen v. Milligan

The Elections Clause, the Voting Rights Act, redistricting plans, the powers of state legislatures, and how the Court dealt with the theories underlying the cases

303 Creative LLC v. Elenis

The First Amendment, creating expressions, discrimination, and how the Court decided the case

Biden v. Nebraska

Separation of powers, the Administrative Procedure Act, student loan forgiveness, state standing, and the opinion's approach

Haaland v. Brackeen

The Indian Child Welfare Act, tribal member preference in adoption proceedings, federal authority, and the opinion of the Court

Andy Warhol Foundation v. Goldsmith

Transformative works under the Copyright Act, silkscreen prints and illustrations based on a photograph by another artist, and the Justices' analysis

Other Interesting Cases From the Term

Duration of this webinar: 60 minutes

Originally broadcast: July 19, 2023 12:00 PM PT

Webinar Highlights

This webinar is divided into section summaries, which you can scan for key points and then dive into the sections that interest you the most.

00:00 Introduction and Speaker Background

The speakers, Vikram Amar and Michael Dorf, are experts in constitutional law and have extensive academic and professional backgrounds. Vikram, a former dean at the University of Illinois, and Michael, a professor at Cornell Law School, will discuss the Supreme Court's 2022-2023 term. David Kemp, an adjunct professor at Rutgers Law School, will moderate the discussion.

04:48 Supreme Court Term Overview

Vikram Amar discusses the significance of the Supreme Court's term, noting that while there were important cases, the term was not as transformative as previous ones. He highlights the Moore v. Harper case, which preserved the status quo by rejecting the independent state legislature theory. The term included significant cases like the 303 Creative case and affirmative action cases from Harvard and UNC, which changed university admissions policies. Michael Dorf adds that the term builds on previous terms and reflects a shift towards originalist methodology and textualism. Chief Justice Roberts appears to be reasserting control over the court, as seen in his majority opinions in major cases.

14:55 Affirmative Action and Its Implications

The Supreme Court's decision in the North Carolina and Harvard cases effectively ended race-based affirmative action in higher education. The decision was based on the Equal Protection Clause for public institutions and Title VI for private ones. The court's decision reflects a shift away from using race to remedy past discrimination, which was previously a more accepted rationale. Universities may explore alternative methods, such as class-based or geography-based affirmative action, to maintain diversity.

33:45 Independent State Legislature Theory

The independent state legislature theory, which posits that state legislatures have sole authority over federal election regulations, was rejected by the Supreme Court in Moore v. Harper. The case involved North Carolina's congressional district drawing and the state Supreme Court's intervention based on the state constitution. Chief Justice Roberts' majority opinion emphasized that the term 'legislature' refers to the state's lawmaking system, not just the elected legislature. The decision prevents state legislatures from having unchecked power in federal elections, particularly presidential ones. The ruling is seen as a significant rejection of a potentially dangerous theory that could have affected the 2020 presidential election.

43:04 303 Creative and Free Speech

The 303 Creative case involved a web designer who challenged Colorado's anti-discrimination law, claiming it violated her free speech rights. The Supreme Court ruled that public accommodation laws cannot compel individuals engaged in expressive work to create speech they disagree with. The decision raises questions about what constitutes an expressive business and the limits of free speech in commercial settings. The case builds on previous rulings, such as Hurley and Dale, which allowed for discrimination based on expressive beliefs. The ruling could have broader implications for other types of discrimination, including race, if deemed expressive.

53:04 Student Loan Case and Standing

The Nebraska v. Biden case addressed the issue of standing and the scope of executive power in modifying student loan obligations. Missouri's standing was questioned when the state claimed injury through a state agency's loss of revenue from loan servicing fees. The court's decision reflects a trend towards narrowly interpreting statutes that confer power on executive officials. The case highlights the complexities of standing and the potential implications for future executive actions.

59:29 Other Notable Cases

The Indian Child Welfare Act case upheld the federal statute giving preference to Native American tribes in child placement, avoiding a constitutional question on racial classification. The court's decision was based on Congress' plenary power to regulate commerce with tribes and make treaties. The ruling surprised some observers but avoided a potentially momentous decision on equal protection. The Andy Warhol case involved a dispute over fair use and copyright, with the court ruling in favor of the photographer against Warhol's estate. The decision reflects ongoing debates about the balance between artistic transformation and copyright infringement.

Please note this AI-generated summary provides a general overview of the webinar but may not capture all details, nuances, or the exact words of the speaker. For complete accuracy, please refer to the original webinar recording.

Continuing Legal Education (CLE) Credits

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California CLE

Status: Approved

Credits: 1.00 General

Earn Credit Until: July 18, 2025

South Carolina CLE

Status: Approved

Credits: 1.00 General

Difficulty: All Levels

Earn Credit Until: December 31, 2025

North Carolina CLE

Status: Approved

Credits: 1.00 General

Earn Credit Until: February 28, 2026

Texas CLE

Status: Approved

Credits: 1.00 General

Earn Credit Until: January 31, 2026

This presentation is approved for one hour of General CLE credit in California, South Carolina (all levels), and North Carolina. This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.00 credit hours.

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Speakers

Vikram Amar Distinguished Professor of Law
UC Davis School of Law

Vikram Amar is a Distinguished Professor of Law at UC Davis, and was previously the dean and the Iwan Foundation Professor of Law at the University of Illinois, Urbana-Champaign College of Law from 2015-2023. Amar has also taught law at Berkeley School of Law, Hastings College of Law and UCLA School of Law. Amar is one of the most eminent and frequently cited authorities in constitutional law, federal courts, and civil procedure. He has written several books and more than 60 articles in leading law reviews. He is a co-author (along with Akhil Reed Amar) of the upcoming revised multi-volume Treatise on Constitutional Law (West Publishing Co.) pioneered by Ron Rotunda and John Nowak. Read More ›

Michael Dorf Professor of Law
Cornell Law School

Michael C. Dorf teaches constitutional law, federal courts, and related subjects at Cornell Law School. He has authored or co-authored six books and over one hundred scholarly articles and essays for law journals and peer-reviewed science and social science journals. He also writes a bi-weekly column for Verdict and publishes a popular blog, Dorf on Law: www.dorfonlaw.org. Dorf received his undergraduate and law degrees from Harvard. Read More ›

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