Court of Consequence

The Supreme Court is in the midst of what appears to be another blockbuster term. The nation’s highest court will tackle cases involving social media, affirmative action, voting rights, election laws, and how to balance religious freedom with antidiscrimination laws—all hot-button issues that could change the contours of American life depending on how the Court rules.

“The cases the Court will hear have great potential to be very significant,” says Jeffrey Fisher, a law professor at Stanford University. “But you never know until the Court issues an opinion whether the Court will do big things or not.”

This term’s high-stakes docket comes on the heels of a series of high-profile rulings last June. The Court reversed its 1973 Roe v. Wade decision, which had established a constitutional right to abortion; said Americans have a constitutional right to carry guns outside the home; and restricted the Environmental Protection Agency’s ability to regulate carbon emissions from power plants, which had been part of the Biden administration’s plan to address climate change.

Six conservative-leaning justices now control the nine-member Court, and they seem poised to dominate this year’s decisions as they did last year’s. The Court does have a new justice this year, Ketanji Brown Jackson, who is the first African American woman to serve on the Court. But her appointment doesn’t change the balance of power, since she’s expected to be liberal-leaning, like her predecessor, Stephen Breyer.

“On things that matter most,” says Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown University Law Center, “get ready for a lot of 6-3s”—meaning 6-to-3 rulings.

Here’s a look at five of the most important issues the Court is considering.

The Supreme Court is in the middle of what appears to be another blockbuster term. The nation’s highest court will tackle cases involving social media, affirmative action, voting rights, election laws, and how to balance religious freedom with antidiscrimination laws. How the Court rules on these hot-button issues could change the fabric of American life.

“The cases the Court will hear have great potential to be very significant,” says Jeffrey Fisher, a law professor at Stanford University. “But you never know until the Court issues an opinion whether the Court will do big things or not.”

This term’s high-stakes docket comes on the heels of a series of high-profile rulings last June. The Court reversed its 1973 Roe v. Wade decision, which had established a constitutional right to abortion. It also said that Americans have a constitutional right to carry guns outside the home. And it restricted the Environmental Protection Agency’s ability to regulate carbon emissions from power plants. The tactic had been part of the Biden administration’s plan to address climate change.

Six conservative-leaning justices now control the nine-member Court. This group will likely dominate this year’s decisions as they did last year’s. The Court does have a new justice this year, Ketanji Brown Jackson. She is the first African American woman to serve on the Court. Like Stephen Breyer, the justice who held her seat before her, she’s expected to be liberal-leaning. So, her appointment doesn’t change the balance of power.

“On things that matter most,” says Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown University Law Center, “get ready for a lot of 6-3s”—meaning 6-to-3 rulings.

Here’s a look at five of the most important issues the Court is considering.

Can social media platforms be sued despite a law that shields them from legal responsibility for what their users post online? That’s the question at the heart of Gonzalez v. Google. The lawsuit, brought by the family of Nohemi Gonzalez, a 23-year-old American student killed in a 2015 terrorist attack in Paris, argues that YouTube’s algorithm recommended videos inciting violence and therefore was partly responsible for Gonzalez’s death. (Google owns YouTube, which is why it’s named in the lawsuit.)

The case concerns Section 230 of the Communications Decency Act, a 1996 law intended to nurture what was then a strange and new thing called the internet. Written in the era of online message boards, the law says that online companies aren’t liable for transmitting materials supplied by others.

Can social media platforms be sued despite a law that shields them from legal liability for what their users post online? That’s the question at the heart of Gonzalez v. Google. The lawsuit was brought by the family of Nohemi Gonzalez. The 23-year-old American student was killed in a 2015 terrorist attack in Paris. The case argues that YouTube’s algorithm boosted videos inciting violence and thus was partly responsible for Gonzalez’s death. (Google owns YouTube, which is why it’s named in the lawsuit.)

The case concerns Section 230 of the Communications Decency Act. The 1996 law aimed to nurture what was then a strange and new thing called the internet. It was written during the era of online message boards. The law says that online companies aren’t liable for transmitting materials supplied by others.

Section 230 helped enable the rise of huge social networks like Facebook and Twitter by ensuring that the sites didn’t assume new legal liability with every new tweet, status update, and comment.

A growing group of bipartisan lawmakers, academics, and activists have grown skeptical of Section 230 and say that it has shielded giant tech companies from consequences for disinformation, discrimination, and violent content that flow across their platforms.

Legal experts say the case could have vast significance—and is one where
it’s hard to predict how each justice will decide. If the Court says social media sites can be held accountable, it could open the door for companies like Facebook and Twitter to face lawsuits over controversial content and essentially threaten their entire business model.

“This could be a very big deal for internet law because it’s the first time that the Supreme Court has agreed to hear a case that would allow it to interpret Section 230,” says Jeff Kosseff, an associate professor at the United States Naval Academy who wrote a book about the protections. “I could envision any number of outcomes reached by any number of combinations of justices across the ideological spectrum.”

Section 230 helped enable the rise of huge social networks like Facebook and Twitter. It did so by ensuring that the sites didn’t assume new legal liability with every new tweet, status update, and comment.

A growing group of bipartisan lawmakers, academics, and activists have grown skeptical of Section 230. They say that it has shielded giant tech companies from consequences for the disinformation, discrimination, and violent content that flow across their platforms.

Legal experts say the case could have vast significance. They also say that the case is one where it’s hard to predict how each justice will decide. If the Court says social media sites can be held accountable, it could open the door for companies like Facebook and Twitter to face lawsuits over content that’s contested. In essence, that would threaten their entire business model.

“This could be a very big deal for internet law because it’s the first time that the Supreme Court has agreed to hear a case that would allow it to interpret Section 230,” says Jeff Kosseff, an associate professor at the United States Naval Academy who wrote a book about the protections. “I could envision any number of outcomes reached by any number of combinations of justices across the ideological spectrum.”

The Court is considering two cases about whether race-conscious admissions policies at Harvard University and the University of North Carolina are lawful. For more than 40 years, the Supreme Court has upheld the use of affirmative action in college admissions, saying that race can be considered as one factor among many in evaluating candidates. The Court’s ruling this year could end that practice.

The cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, raise the question of whether universities’ attempts to atone for past injustices, chiefly against Black Americans, have unfairly discriminated against others.

“The Court’s going to consider whether affirmative action is consistent with the Constitution,” says Jeffrey Rosen, director of the National Constitution Center in Philadelphia. “The outcome will have huge effects in schools, colleges, and workplaces in America.”

The Court has repeatedly upheld similar programs, most recently in 2016. But the Court’s membership has shifted in recent years, and its new conservative supermajority is almost certain to view the challenged programs with skepticism.

The Court is considering two cases about whether race-conscious admissions policies at Harvard University and the University of North Carolina are lawful. For more than 40 years, the Supreme Court has upheld the use of affirmative action in college admissions. The Court has said that race can be considered as one factor among many in assessing candidates. The Court’s ruling this year could end that practice.

The cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, raise the question of whether universities’ attempts to atone for past injustices, chiefly against Black Americans, have unfairly discriminated against others.

“The Court’s going to consider whether affirmative action is consistent with the Constitution,” says Jeffrey Rosen, director of the National Constitution Center in Philadelphia. “The outcome will have huge effects in schools, colleges, and workplaces in America.”

The Court has repeatedly upheld similar programs, most recently in 2016. But the Court’s membership has shifted in recent years. Its new conservative supermajority is almost certain to view the challenged programs with suspicion.

The case against Harvard accuses it of discriminating against Asian American students by holding them to a higher standard than other groups and by effectively creating a ceiling for them in admissions. In the North Carolina case, the plaintiffs make a more familiar argument, saying the university discriminates against White and Asian applicants by giving preference to Black, Hispanic, and Native American ones. Both schools say their admissions policies foster educational diversity and are lawful under long-standing Supreme Court precedents. A Court ruling banning affirmative action could mean the end of any consideration of race not only in college admissions but also in hiring decisions.

“Considering race as one factor among many in admissions decisions produces a more diverse student body, which strengthens the learning environment for all,” says Harvard president Lawrence Bacow.

Chief Justice John G. Roberts Jr. has been an outspoken critic of affirmative action, writing in a 2007 opinion, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The case against Harvard accuses it of discriminating against Asian American students by holding them to a higher standard than other groups. The plaintiffs argue that this has created a ceiling for them in admissions. In the North Carolina case, the plaintiffs make a more familiar argument. They say that the university discriminates against White and Asian applicants by giving preference to Black, Hispanic, and Native American ones. Both schools say their admissions policies foster educational diversity. They also note that their policies are lawful under long-standing Supreme Court rulings. A Court ruling banning affirmative action could mean the end of any consideration of race not only in college admissions but also in hiring decisions.

“Considering race as one factor among many in admissions decisions produces a more diverse student body, which strengthens the learning environment for all,” says Harvard president Lawrence Bacow.

Chief Justice John G. Roberts Jr. has been an outspoken critic of affirmative action. In a 2007 opinion, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Merrill v. Milligan involves the drawing of new voting districts in Alabama. The question at issue is whether Alabama’s 2021 redistricting plan for its seven seats in the House of Representatives violates Section 2 of the Voting Rights Act, which bars “voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.”

Alabama’s redrawn House map contains one predominantly Black district, while Black people make up about a quarter of the state’s population.

When a group of Alabama voters challenged the map in federal court, arguing that it diluted the votes of Black people, a three-judge panel that included two appointees of former President Donald Trump agreed, invoking the state’s “extensive history of repugnant racial and voting-related discrimination.”

The court ordered the state to create a second predominantly Black district, but Alabama filed an emergency appeal. The challengers, which include the civil rights group N.A.A.C.P., say that if the Supreme Court reverses the lower court’s ruling, it could “decimate minority representation across the country.”

Voting rights groups argue that the Court’s decision could dismantle what’s left of the Voting Rights Act, a civil rights-era law that they say remains necessary to remedy the legacy of slavery and Jim Crow and to keep states from discriminating against people of color. (A 2013 Supreme Court ruling eliminated a portion of the Voting Rights Act that said places with a history of racial discrimination must get federal approval before making any changes to voting procedures or districts.)

Defending the state’s existing map, Alabama’s attorney general, Steve Marshall, argues that the only way to create two majority-Black congressional districts is to make race the primary factor in map-drawing, which would be “an unconstitutional application of the Voting Rights Act.”

Merrill v. Milligan involves the drawing of new voting districts in Alabama. The question at issue is whether Alabama’s 2021 redistricting plan for its seven seats in the House of Representatives violates Section 2 of the Voting Rights Act. The law bars “voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.”

Black people make up about a quarter of Alabama’s population. However, the state’s redrawn House map only has one district that’s mostly Black.

A group of Alabama voters challenged the map in federal court. They argued that it weakened the votes of Black people. A three-judge panel that included two appointees of former President Donald Trump agreed. They noted the state’s “extensive history of repugnant racial and voting-related discrimination.”

The court ordered the state to create a second district that consists mostly of Black residents, but Alabama filed an emergency appeal. The challengers include the civil rights group N.A.A.C.P. They say that if the Supreme Court reverses the lower court’s ruling, it could “decimate minority representation across the country.”

Voting rights groups argue that the Court’s decision could destroy what’s left of the Voting Rights Act. They say that this civil rights-era law remains necessary to fix the legacy of slavery and Jim Crow and to keep states from discriminating against people of color. (A 2013 Supreme Court ruling ended a part of the Voting Rights Act that said places with a history of racial discrimination must get federal approval before making any changes to voting methods or districts.)

Alabama’s attorney general, Steve Marshall, has defended the state’s existing map. He argues that the only way to create two majority-Black congressional districts is to make race the primary factor in map-drawing. Doing so would be “an unconstitutional application of the Voting Rights Act,” he adds.

303 Creative v. Elenis is an appeal filed by a Colorado web designer who objects to providing services for same-sex marriages.

Lorie Smith owns a website design company that says it serves gay customers but plans to limit its wedding-related services to celebrations of heterosexual unions. Smith says she intends to post a message saying the company’s policy is a product of her religious convictions.

Colorado says that would violate state law, which forbids discrimination against gay people by businesses open to the public, as well as statements announcing such discrimination. Smith argues that Colorado’s law violates her rights to free speech and the free exercise of religion.

“Prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible,” says Philip J. Weiser, Colorado’s attorney general, “because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment.”

But that’s not how everyone sees it. Kristen Waggoner, a lawyer with Alliance Defending Freedom, which represents Smith, says the antidiscrimination law violates the First Amendment’s protection of free speech.

“Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of, and to punish anyone who dares to dissent,” she says.

An appeals court sided with Colorado, saying the state’s antidiscrimination law was constitutional and that Smith can’t withhold her services from gay couples. If the Supreme Court overturns that decision, experts say it could effectively nullify antidiscrimination laws all over the country as they pertain to sexual orientation.

303 Creative v. Elenis  is an appeal filed by a Colorado web designer who objects to offering services for same-sex marriages.

Lorie Smith owns a website design company that says it serves gay customers but plans to limit its wedding-related services to celebrations of heterosexual unions. Smith says she plans to post a message saying the company’s policy is a product of her religious beliefs.

Colorado says that would violate state law, which bans discrimination against gay people by businesses open to the public and statements announcing such discrimination. Smith argues that Colorado’s law violates her rights to free speech and the free exercise of religion.

“Prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible,” says Philip J. Weiser, Colorado’s attorney general, “because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment.”

But that’s not how everyone sees it. Kristen Waggoner, a lawyer with Alliance Defending Freedom, represents Smith. She says the antidiscrimination law violates the First Amendment’s protection of free speech.

“Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of, and to punish anyone who dares to dissent,” she says.

An appeals court sided with Colorado. The court said that the state’s antidiscrimination law was constitutional. It also held that Smith can’t withhold her services from gay couples. If the Supreme Court overturns that decision, experts say it could negate antidiscrimination laws all over the country that are related to sexual orientation.

Who has the power to decide whether a state’s voting rules are fair? The answer could upend nearly every part of the American electoral process. Currently, state legislatures draw voting districts and create voting rules, and state courts review those decisions to determine whether they’re fair. But a case about redistricting in North Carolina argues that state courts shouldn’t have any role in the process.

Both Democrats and Republicans, depending on who holds power in a given state, often try to draw districts in a way that benefits their own party—a process known as gerrymandering. In 2021, the North Carolina legislature drew a new voting map that the State Supreme Court subsequently rejected as a partisan gerrymander. In Moore v. Harper, North Carolina Republicans are seeking to restore the original map by arguing that the state court was powerless to intervene.

Who has the power to decide whether a state’s voting rules are fair? The answer could upend nearly every part of the American electoral process. Currently, state legislatures draw voting districts and create voting rules. State courts review those decisions to assess whether they’re fair. But a case about redistricting in North Carolina argues that state courts shouldn’t have any role in the process.

Both Democrats and Republicans often try to draw districts in a way that benefits their own party. This process is known as gerrymandering. In 2021, the North Carolina legislature drew a new voting map that the State Supreme Court then rejected as a partisan gerrymander. In Moore v. Harper, North Carolina Republicans are seeking to restore the original map. They argued that the state court was powerless to intervene.

Their rationale is based on a provision of the U.S. Constitution that says “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”

North Carolina Republicans argue that language means the state legislature has sole responsibility for drawing congressional districts and that state courts have no role to play.

“The question is whether the part of the Constitution that gives state legislatures the main responsibility for congressional and presidential elections prevents state courts from reviewing those decisions,” Rosen explains.

Depending on how the Court rules, protections against partisan gerrymandering established through the state courts could essentially vanish. The ability to challenge new voting laws at the state level could be reduced.

“The Supreme Court’s decision will be enormously significant for presidential elections, congressional elections, and congressional district districting,” says J. Michael Luttig, a former federal appeals court judge, “and therefore, for American democracy.”

Their rationale is based on a clause of the U.S. Constitution that says “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”

North Carolina Republicans argue that language means the state legislature has the sole duty of drawing congressional districts and that state courts have no role to play.

“The question is whether the part of the Constitution that gives state legislatures the main responsibility for congressional and presidential elections prevents state courts from reviewing those decisions,” Rosen explains.

Depending on how the Court rules, protections against partisan gerrymandering set forth through the state courts could vanish. The ability to challenge new voting laws at the state level could be reduced.

“The Supreme Court’s decision will be enormously significant for presidential elections, congressional elections, and congressional district districting,” says J. Michael Luttig, a former federal appeals court judge, “and therefore, for American democracy.”

With reporting by Adam Liptak, Blake Hounshell, and David McCabe of The New York Times.

With reporting by Adam Liptak, Blake Hounshell, and David McCabe of The New York Times.