Reviewing the 2022 SCOTUS Term

In this special episode, Akin Supreme Court and appellate practice head Pratik Shah and partner Aileen McGrath look back at the tumultuous 2022 Supreme Court Term.
Among the topics covered:
• Culture-war topics and dissent battles.
• The arrival and impact of Justice Jackson.
• Pumping the brakes on the Court’s rightward trend.
• Is the Court still friendly to business?
• Curtailing agencies’ power in the 2023 Term?

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Episode Transcript

Jose Garriga: Hello, and welcome to OnAir with Akin. I'm your host, Jose Garriga.

Longtime listeners know to look forward to our annual Supreme Court wrap-up episode, so I'm happy to welcome back to the show Akin Supreme Court and appellate practice head Pratik Shah and partner Aileen McGrath. As we've done in years past, Pratik and Aileen will review the highlights from the past Supreme Court Term and let you know what you should know about what happened.

Welcome to the podcast.

Pratik and Aileen, so great to have you back. We have a lot of ground to cover, so let's dive right in. When you were here last year, we unpacked, I think, what has to be considered one of the most tumultuous Supreme Court Terms in modern history. And we also discussed the bold rightward movement of the Court and the Chief Justice's less-dominant role.

So Pratik, to start with you, please, would the same be true of this past Term?

Pratik Shah: Thanks, Jose. It's good to be back. As to your question, I think, to a certain extent, yes. But it's a more nuanced picture this Term than last. I guess a couple high-level observations to start. The headline should sound familiar: A solid 6-3 conservative majority continues to move the Court to the right, particularly on high-profile, socially divisive issues and challenges to agency action. Exhibit A are the two biggest cases of this Term that I'm sure we'll talk about more today, those involving affirmative action and religious liberty versus gay rights as well as the student loans case on the agency law side.

But in fairness, that's not the whole story. The Court, as in most Terms, did not always follow the expected or most extreme course. I think most Court-watchers were surprised at the outcomes in some significant cases where those on the left were bracing for losses.

Instead, those groups saw wins (or at least avoided the disastrous consequences from their perspective) in key voting rights, immigration and Indian law cases. One other point, as you'll recall, Jose, during last year's podcast, contrary to much commentary, Aileen and I predicted that the reports of the Chief Justice's demise were premature. I think that has proven correct. The Chief Justice authored several of the major divided decisions this Term, some pushing the Court to the right, and others where the liberals joined in full.

He was in the majority in 95% of the cases. That's the second-highest percentage ever for this Chief Justice, and it was second only to Justice Kavanaugh this Term. And I think that speaks to just how conservative this Court is, when both Chief Justice and Justice Kavanaugh are virtually always in the majority. But it also speaks to the Chief Justice's ability to assert control since he can assign opinions including to himself whenever he is in the majority.

Overall, you saw more unanimous and non-ideologically split decisions than last Term, more in line with historical norms. Actually, all the Justices this Term were in the majority more often than they were last Term, with the exceptions of Justices Thomas and Alito. And I think that reinforces the overall less sharply divided nature of decision-making this Term. It's no doubt something the Chief Justice, given his strong institutionalist streak, would like to see more of.

The last small point I'll make is, I think we saw less activity on the shadow docket this Term. And for those listeners who need a refresher, the shadow docket is the Court's emergency docket, which sort of exploded during the Trump administration and continued through the first part of the Biden administration. And by tamping down activity on the emergency docket, being less aggressive on the emergency docket, I think, had a moderating impact because often those decisions were governed by the conservative majority.

That seems to have tempered, moderating the impact, and I think avoiding some of the blowback that the Court has gotten in recent years.

Jose Garriga: Thank you, Pratik. Aileen, what are you thinking here about some of the things that Pratik brought up as themes and that I posed in my questions, specifically the more-conservative trend of the Court?

Aileen McGrath: Thanks, Jose. It's great to be here, and I'll pick up on what Pratik said about the Chief Justice. The Chief assigned to himself some of the most high-profile opinions in some of the Court's most controversial cases. And several of those cases really illustrate how quickly the Court, led by the Chief, continues to move towards the right, particularly on social issues related to race, religion, free speech, executive power, and those kinds of issues.

And I'll touch on a couple of those decisions, all of which fall into the 6-3 category that Pratik also mentioned. And of course, the opinion that's at the top of everyone's mind is the affirmative action decision in Students for Fair Admission v. Harvard and the University of North Carolina.

Pratik and I actually wrote an amicus brief for the National School Boards Association in that case, which Justice Jackson cited in her dissent. And to situate that case a bit in terms of tying it to the Chief, the project of eliminating any sort of racial preferences or really any consideration of race at all in public life has been on the Chief's agenda pretty much since day one.

And his view, which he's made very clear over time, is that the Equal Protection Clause requires colorblindness on the government's part. And throughout his time at the Court, he’s seized on pretty much any opportunity to cement that view from his very earliest days. And one of the decisions I would mention there is his 2007 decision in Parents Involved [in Community Schools] v. Seattle School [District No. 1], where, in just his second Term on the Court, he basically dismantled K- 12 schools' ability to consider race expressly as part of their assignment processes.

And so, it's not surprising, I don't think anyone was shocked by the outcome in the Harvard case that he took the further step of also essentially eliminating universities’ ability to consider race as part of a holistic admissions process. And in the Harvard opinion, one of his signature lines was, "Eliminating racial discrimination means eliminating all of it," which sounds very similar to me to his one-liner from Parents Involved, which was “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

And so, you can really draw a very clear line from those two decisions. And what we also see come through in this decision is another bit of a classic Chief maneuver in that as sweeping as the decision is, he skims over the fact that over 40 years of precedent had recognized that universities have a compelling interest in diversity. And he's very careful not to say that the Court is explicitly overruling that line of cases, like Bakke out of California or Grutter out of the University of Michigan, but the end result is totally at odds with those opinions.

And that departure wasn't lost on the dissenting Justices. Both Justice Sotomayor and Justice Jackson wrote vigorous dissents in this case. Impassioned dissents in cases like this one are, of course, nothing new, as we've talked about on previous podcasts. But what is new is to have several Justices with very personal views on the subject, which led to, I think, unusually personal disagreements between some of the opinions.

And I would point you especially to the dialogue between Justice Jackson, who wrote a dissent, and Justice Thomas, who wrote a concurrence. She says, directing it particularly to Justice Thomas, accusing the majority of “let-them-eat-cake obliviousness to the ongoing relevance of race for so many Americans in everyday life.” And these are strong words, right, from any Justice, especially a new Justice. And that's something that I think we’ll want to return to unpack a bit more later.

And in response, Justice Thomas took some unusually direct jabs at the newest Justice. And it is no secret that Justice Thomas has written many times about why he thinks affirmative action is unconstitutional. He's written about his own experience with affirmative action from his time at Yale Law School. But many lines in his concurrence take an even more strident approach than he has in the past.

For instance, he says of Justice Jackson, whose name he mentioned 18 times in his opinion, which is far from typical, "As she sees things, we are all inexorably trapped in a fundamentally racist society with the original sin of slavery still determining our lives today." And he took the further unusual step of reading this concurrence from the bench. And all of this, I think, what you see here is an elevated rhetoric and elevated passions that reflect how high emotions continue to run at the Court on these issues.

And I think you can compare those exchanges at a certain level with those in another 6-3 case that the Chief also wrote in Biden v. Nebraska, which Pratik also mentioned at the beginning, which struck down President Biden's student loan forgiveness program. The main part of the case on the merits is about whether statutory language allowing the Secretary of Education to waive or modify any student loan obligations allowed President Biden's cancellation of student loan debt.

The Chief said that it did not because that language, broad as it might sound, was in fact, limited to the Secretary of Education's ability to make more modest changes to loan obligations. And in response to this, Justice Kagan wrote a truly, from my perspective, blistering dissent that really pulled no punches on this textual analysis as well as some other features of the Chief's opinion. And her dissent included lines like, "From the first page to the last, today's opinion departs from the demands of judicial restraint."

She also says that, "Congress would not have written so insane a law as the one that the Chief articulated." And we've seen this division between Justice Kagan and the Chief in other cases about executive power and statutory interpretation. I think the West Virginia v. EPA case that we discussed last year, cutting back the EPA's authority to regulate carbon dioxide emissions using the major questions doctrine, is the best example.

But here, the exchange between those two rose to, I think, even more of a heated level than it has in the past. And if you look at the Chief's majority, and the Chief is usually much more temperate in these exchanges, but he also responded directly to Kagan's dissent, saying that she was misleading the public and giving the public the misperception that the Court is doing anything other than straightforward statutory interpretation.

And the last opinion I'll talk about that I think is also revealing on some of these dynamics and alignments is the case 303 Creative v. Elenis which is, you might have heard of it as a wedding website case. It is the latest chapter in a long-running battle between state and local governments that have enacted laws protecting LGBTQ people from discrimination, and religious business owners who argue that the First Amendment gives them an exemption from those laws, at least in some circumstances.

And also, here, we wrote an amicus brief for the National League of Cities in this case, and here, the Court held that the Free Speech Clause does allow such an exemption for expressive business owners who can decline to create products that they claim go against their religious or other personal beliefs. Specifically, in this case, a wedding website designer can refuse to design websites for gay couples. But beyond that sweeping, substantive ruling, I think it's also an interesting example of the changes in Court lineups and the entrenchment of the conservative majority.

Because listeners will remember a similar issue is that before the Court just a few years ago in a case involving a baker who didn't want to make wedding cakes for gay and lesbian weddings, but, at the time, Justice Kennedy was on the Court, so the Court didn't actually squarely decide the issue, and they punted. And now, only five years later, we have a definitive full-throated 6-3 ruling. And in terms of dynamics, I think this case demonstrates an interesting interplay, and I talked about the interplay between Justice Kagan and the Chief, and here you see one between Justice Sotomayor and Justice Gorsuch, both of whom have written competing decisions in other cases involving religion and public life.

Last year, we talked a bit about Kennedy v. Bremerton School District, where Justice Sotomayor accused Justice Gorsuch of expanding the protections for religious activity quietly and without acknowledging how sweeping his ruling was. And it's a very similar story here. Justice Sotomayor in her dissent points out, and I think correctly, that the Court has, for the first time, recognized a constitutional right to refuse to serve members of a protected class, and she points out the ramifications of that ruling, including the example she gave of a school photographer who could refuse to take pictures of multiracial children because of an objection to interracial marriage.

But in his opinion, Justice Gorsuch doesn't respond directly really to any of this. And he just says, that isn't this case; we don't need to answer those questions now. And while this isn't the bitterness and vitriol that you see in some of the other exchanges, I think, it's still notable because usually majority opinions tend to respond more directly to the key arguments raised in the dissent. And the fact that we don't see that here suggests to me that the conservative majority is so cohesive and cemented at this point that at least some Justices think they don't need to do that even in the most high-profile cases like this one.

Jose Garriga: Thank you, Aileen. Pratik, circling back, then, on some other highlights from the past Term that you alluded to, what else would you like to add?

Pratik Shah: I think it's important to note, look, if those three cases that Aileen discussed—and, as Aileen mentioned, those are really the three biggest cases of the Term and pretty significant and decisive victories for the conservative groups bringing those challenges—if it ended there, one would say, "Geez, this is just a full-throated extension of what we saw last Term." But as I mentioned, I think, the story is slightly more complex this Term. And we did see, in some other significant cases, the Court pumping the brakes a bit and not going as far as those on the left may have feared.

And I want to talk about three sets of examples there from voting rights, Indian law, and immigration law. Now, make no mistake, these cases, the outcomes didn't really move the law to the left, but from the liberal perspective, a status quo, maintaining the status quo, is a victory, right? In this Court, if you can maintain the status quo, that's a victory, and I think we saw that in those three areas.

Let me start with the voting rights examples. There are two cases here, Allen v, Milligan and Moore v, Harper. Allen presented the question whether the redistricting plan adopted by Alabama, the Republican state legislature in Alabama, for its 2022 congressional elections violated Section 2 of the Voting Rights Act. After the Supreme Court effectively nullified Section 5 of the Voting Rights Act back in 2013, Section 2 has become the primary tool of civil rights groups to enforce the Act's protections for racial minorities.

Though, of course, that project has been precarious in light of the Court's decision just two Terms ago, limiting Section 2’s scope. The plaintiff sued because the new Alabama map after the 2020 census had only one district in which black voters constituted a majority. The three-judge district court found a clear likelihood of a Section 2 violation in writing a 227-page opinion, and the Supreme Court affirmed that opinion.

That was a 5-4 decision written by the Chief Justice, joined in full by the three liberals and also by Justice Kavanaugh. That decision preserved the four-decade-old framework from a Supreme Court case called Gingles for evaluating Section 2 claims, that is, in the Gingles framework, the question is whether racial minority voters are submerged in a majority voting population that regularly defeats their choices.

It's a fact-dependent multi-pronged test. The Supreme Court, Chief Justice writing for the Court, declined to disturb the district court's factual findings, or, perhaps more critically, to remake the established Section 2 framework. And the Chief Justice cited what he called statutory stare decisis that basically, look, this Supreme Court case has been on the books for nearly 40 years. Congress has tinkered with the Voting Rights Act on many occasions since then, and yet it has not disturbed that framework that the Court has set up. And so, the Court shouldn't disturb it now.

Now, this outcome, as I mentioned, was a surprise to many. I think many thought it was a serious risk to the viability of Section 2 claims. But the Chief Justice was able to bring along Justice Kavanaugh to avoid gutting Section 2. Now, that was over a dissent by Justice Thomas, who was joined by Justices Gorsuch, Barrett and Alito. Justice Thomas, consistent with his concurrence in the affirmative action case, really advocated for a colorblind interpretation of Section 2, that is, you shouldn't assume that racial minorities will vote in a bloc, and it's not a question of trying to figure out creating blocs in which there are a majority and minority voters. He said that you should really take a colorblind interpretation and this whole line of inquiry is wrong, but, of course, that did not prevail.

The other voting case I'll mention is Moore v Harper. Now that raised the novel independent state legislature theory based on the constitution's Election Clause, which says, basically, that the legislature of each state shall prescribe rules governing federal elections. Now, if accepted, that theory would deprive state courts of the power to review for compliance with state constitutions, including restrictions on partisan gerrymandering that federal courts can no longer review the Supreme Court's decision in Rucho [v. Common Cause] from a few years ago.

Again, when the Court granted cert in this case, I think there were a lot of dire warnings in the press and from every, really, all quarters that this theory could really create a lot of havoc, right? You can imagine situations in which very partisan state legislatures really don't abide by any limitations, and if it's essentially unreviewable, then a lot of mischief could happen.

But the Chief Justice, again, joined by the three liberals and this time by both Justices Kavanaugh and Barrett, rejected that novel independent state legislature theory. And, again, it was over the dissent of Justice Thomas joined by Justices Gorsuch and Alito. Now, again, that really doesn't move the law in any significant direction, but it avoided a potential sea-change and all the nightmare hypotheticals of state legislatures running amok with elections.

That was the first category, elections. I think another interesting case that fell within this theme of the Court perhaps bucking the notion that it's going to move in a rightward direction as fast as it can in every case is the Indian Child Welfare Act case. I will also note that we here at Akin submitted an amicus brief supporting the tribes on behalf of the American Historical Association. But that case, Halaand v Brackeen, really was creating significant distress in the Indian law community and amongst Indian tribes. As those familiar with this area of law know, ICWA, as it's called, governed state court adoption and foster care proceedings involving Indian children in response to a long and sordid history of separating Indian children from their tribal homes.

ICWA accords, and this was a law passed by Congress decades ago, ICWA accords preferences to tribal families over non-Indian families when it comes to placement of those children. There were a host of constitutional challenges brought by the petitioners, which included states as well as non-Indian foster and adoptive parents. The Supreme Court rejected all of those challenges, some on threshold standing grounds, some on the merits, and that was an opinion by Justice Barrett joined by the Chief Justice, Justice Gorsuch, Justice Kavanaugh, the three Liberals; only Justices Thomas and Alito dissented.

As I said, Indian country and its supporters had really been bracing for the worst, but that did not come to pass, at least, for now in that case.

And the last example I would bring up that kind of falls within this category is immigration law. Again, there were a couple immigration cases that threatened to cut back on the rights of non-citizens. The first and big one was United States v. Texas.  In that case, Texas and Louisiana challenged new DHS enforcement guidelines prioritizing removal of certain non-citizens with criminal records and particularly dangerous crimes, which would've had the effect of less enforcement against other non-citizens.

This was a big part of the ongoing feud between the red states and the Biden administration over immigration policy. And the Supreme Court dismissed the case for lack of Article 3 standing. It said the exercise of enforcement discretion is not the sort of thing that states can challenge in this context. That was an opinion written by Justice Kavanaugh joined by the Chief Justice and the three liberals. So you have another 5-4 decision with the Chief and Kavanaugh joining with the liberals, and you had Justice Gorsuch concurring in the judgment only with Justice Thomas and Barrett, and then Justice Alito dissenting.

And I think that's an interesting case because it was not a foregone conclusion that the Court was going to find that they didn't have standing. In fact, the Court kind of went out of its way to find standing in the student loans case that Aileen discussed. And yet here, I think, it did the opposite. It chronicled a lot of reasons why it just wouldn't be prudent to allow states to bring these sorts of challenges involving executive enforcement discretion.And because it dismissed for lack of standing, of course, that gets rid of the challenge, and the policy remains intact.

There was also the Title 42 case, and again, Akin, I'll disclose, we did file an amicus supporting the challengers there. That was the pandemic-era immigration policy about returning folks immediately across the border. And the red states tried to intervene on appeal to maintain that policy, which the Biden administration had wanted to end.

But because of the expiration of the COVID public health emergency order, the Court ended up, even though it had granted a stay and scheduled oral argument, it ended up remanding that case for dismissal as moot after the emergency declaration had ended. So, again, another bullet dodged. And so, I think, there were several instances this Term in which the Court could have gone certainly much farther, and yet it didn't. And I think that's worth noting.

Jose Garriga: Thank you, Pratik. That's interesting. Circling back to something that Aileen had discussed, and actually, Aileen, I'll throw this one over to you, what are your initial impressions of the new Justice, Justice Jackson, and the impact that she's having? You've covered some of the ground in terms of her dissents and her vigorous dissent, really, what else would you like to share with us about your thoughts on that?

Aileen McGrath: I would say that Justice Jackson really bucked some of the trends that we've seen with new Justices in recent years. The conventional idea with new Justices is that you are sort of quiet, you stay in your lane, you don't write separately all that often; when you do, you keep it fairly straightforward. And we discussed, over the last couple of years, that that's what we saw more or less from Justice Barrett when she first joined the Court.

And that is not what we saw at all with Justice Jackson, who, from day one, made clear that she's here to ask hard questions. She's not shy about writing separate opinions. And she is ready to be an active outspoken participant at the Court. And with respect to her questioning, she led some of the most probing questions in the Alabama Voting Rights Act case that Pratik mentioned a moment ago. And that was her second day of arguments at the Court. And that really set the stage for the rest of the Term.

The statistics showed that she was the most active questioner among the Justices according to some metrics, eclipsing even Justice Sotomayor by as much as 50%. And Justice Sotomayor is also typically a very active questioner. And in terms of her impact, those questions do seem to have had a real impact in at least a handful of cases. An example I would point to is in the affirmative action arguments, she asked a question about why a student who wrote an essay about being a legacy applicant would be treated differently from a student who wrote an essay about the impact of his or her race on the trajectory of their life.

She pointed out that, under the reasoning that was coming through from the majority in the argument, it seemed like that first essay would be read quite differently than the second. And fast-forward to the Chief's opinion, that exact example shows up in the opinion, and the Chief actually carves out for universities the possibility that they can continue to consider race in that more-limited way in terms of an applicant's discussion in an essay of how their background has influenced their life and their goals.

In terms of opinions, Justice Jackson didn't write any significant majority opinions. That's pretty typical for the junior Justice and especially the new junior Justice. But she did write six dissents, including three solo dissents, which is more unusual; by comparison, the Chief didn't write a solo dissent in an argued case until he had been on the Court for 16 years. And of course, as we discussed, she wrote her own dissent in the affirmative action cases separate from Justice Sotomayor's lead dissent. And that's not something we would typically see from a Justice in her debut Term.

Often, the junior Justice would go along with the more-senior Justice taking the principal dissent and here, instead, we saw Justice Jackson speaking out quite strongly. And in terms of her voting patterns, I think a lot was unsurprising. She voted with the liberal Justices in virtually every case. She voted with Justice Sotomayor 95% of the time and with Justice Kagan 89% of the time.

But one of the alignments that got some media attention was she occasionally aligned with Justice Gorsuch in some surprising cases. She actually only agreed with him in about 69% of cases, which is not a very different number than the numbers reflecting her agreement with the other conservative Justices. But there are some interesting nuances to cases where they wrote together.

One is she joined Justice Gorsuch's concurrence in Tyler v. Hennepin County, which is a case about whether the government can keep the surplus value from a property tax lien sale. Everyone agreed that the answer is no, but Justice Gorsuch and Justice Jackson would' havegone a bit further and found a pretty significant Eighth Amendment constitutional violation.

Another interesting example is Polselli v. IRS, a case about whether the IRS has the authority to demand bank records without telling taxpayers who are under investigation. And in both of those cases, you see an interesting thread that suggests that Justice Gorsuch and Justice Jackson might share some views about the impact of government power on ordinary people in their everyday lives and when due process provides protection for people in those circumstances.

And so, I think, that any suggestion that those two will continue to vote together is pretty overblown. But it is an interesting example of Justice Jackson certainly seems to be unafraid of expressing her own views and being her own person and sharing her own perspective. And I think that is absolutely something that we'll continue to see as her tenure at the Court lengthens.

Jose Garriga: Thank you, Aileen. Pratik, what's your take on Justice Jackson and within the larger context, then, of the Court dynamics?

Pratik Shah: Yeah, I agree with a lot of what Aileen said. I think all of that is right, and she's taken a unusually active role from the beginning and had an impact. I think this portends she's going to be a more forceful questioner than her predecessor and our old boss, Justice Breyer, and also perhaps more aggressive in writing solo dissents than he was as well.

I do agree with Aileen where there is—well, I don't want to make too much of it—there has been several instances in which she's teamed up with Justice Gorsuch on separate opinions. I think both of them have a maverick streak, in different ways, obviously. Another example, in addition to the one that Aileen gave us, the Title 42 case on the shadow docket when the Court granted that stay, Justice Jackson joined Justice Gorsuch in dissenting from the Court's emergency stay and decision to hear the intervention appeal.

And so, again, I think she's willing to go out and look across the aisle when it seems sensible to her to do so. Now, as to whether her replacement of Justice Breyer will have a significant effect on the broader dynamic of the Court, I think it's too early to say. And, really, to me, at least looking at things, the real question about the dynamic on the Court remains the same one that we've been talking about since Justice Barrett's arrival a few Terms ago.

And that is, is there really going to be this kind of three, three, three composition of the Court where you have the three liberals; you have, more or less, Alito, Thomas and Gorsuch on the other end of the spectrum; and is it true that Justices Kavanaugh and Barrett will join with the Chief in forming a more-moderate right coalition? Now, that will be a conservative coalition, make no mistake. But will it pull back in certain cases as the ones that I mentioned here, the election cases, the immigration, the Indian law context. Are there contexts in which those three will find a middle ground even if that middle ground is to the right of where it used to be rather than going full to the right?

I think that still remains unclear. I think it's a work in progress. I think that's ebbed and flowed in the last couple of years that we've had that dynamic. I think there's greater hope for that this Term than probably folks had at the end of last Term, right, when the narrative was the Chief has lost that battle. I don't think that's at all the case necessarily. But I think time will tell. And I think that's going to inform a lot about, perhaps not the ultimate direction of the Court, which is going to be to the right regardless, but I think it will inform significantly the pace and nature of that movement to the right.

And so, I think, that's what we're going to be looking out for.

Jose Garriga: Thank you, Pratik. Now, one topic that I know is perennially of interest for our listeners, particularly our business interest, is where the Court has made decisions that could impact their situation. And so, Aileen, if I could ask you to lead off here, which cases would you point to in the last Term that you think would be particularly significant for our business audience?

Aileen McGrath: So, I think there are a couple of pro-business cases that I would point to, although, similar to previous Terms, I wouldn't say that either is a blockbuster in the traditional sense. One is Sackett v. EPA, which is the decision, it was actually unanimous in terms of its outcome, but sharply divided 5-4 along the methodology employed. And Justice Alito wrote the majority, it's a Clean Water Act case about the scope of federal jurisdiction over wetlands, which the Clean Water Act defines as those that are adjacent to other waters of the United States, like lakes and rivers and streams and those kinds of waterways.

And the EPA has long relied on a decision that Justice Kennedy wrote about 20 years ago, to construe adjacent wetlands to mean those that had a "significant nexus" to larger bodies of water, which meant that if you polluted that wetland, it would affect the larger body of water even if those two aren't actually connected to one another in any observable way.

And here, the Court applying a textual interpretation of “adjacent” that not even Justice Kavanaugh could endorse, he joined the Liberals here in concurring in the judgment, but disagreeing in the analysis, the Court significantly cut back that definition to require that type of, the Court calls it “contiguous surface connection” between a wetland and the other body of water that will have the effect of narrowing the definition significantly.

I think the estimate is that 118 million acres, which is about half of the total number of wetlands that are currently under federal jurisdiction, no longer will be, under the Court's reasoning. And the case has some direct benefits for businesses. It will make it easier to develop property that's adjacent to waterways and things like that, and the ability to have control over property is something that Justice Alito emphasized throughout the opinion.

But I think the bigger takeaway for business is that this is another case, yet another case, and I touched on West Virginia v. EPA earlier, cutting back on agency power, particularly in the environmental context and suggesting that Congress has to speak with greater clarity or more specificity when it gives power to agencies to act in this area, In arriving at its textual reading, Justice Alito applied various clear statement rules to say that Congress hadn't spoken clearly enough here.

And all of that methodology has real ramifications for the regulation of businesses and other contexts. And it suggests that the Court is going to continue to look very carefully at regulations in the environmental and similar contexts.

The other case that I would point to, another one that is not a blockbuster but still potentially interesting for businesses, is Coinbase v. Bielski, which is an arbitration case. And you'll remember the last Term we talked a bit about, there were a number of relatively arbitration-unfriendly decisions and we talked about whether that was indicative of some larger trend.

But Coinbase suggests that the answer is probably not, that last year was a blip and not a harbinger of some larger skepticism towards arbitration because here the Court rules in favor of the corporate defendant seeking arbitration. So, the Federal Arbitration Act allows an immediate appeal, an interlocutory appeal from an order denying a motion to compel arbitration. And courts had been split about whether that appeal stays the underlying trial court proceedings, which meant that defendants who had good appellate arguments for why the whole thing should be arbitrated sometimes found themselves having to litigate that case in the trial court while their appeal was proceeding.

And so, you can imagine why they didn't like that very much. And here, the Court agreed with the majority of circuits that an appeal automatically stays the trial court proceedings and prevents that scenario, which will streamline motions to compel arbitration for defendants in future cases.

Jose Garriga: Thank you, Aileen. Pratik, what's your thinking in terms of pro-business cases coming up? Are you on the same page as Aileen, or do you think there might be some other ones?

Pratik Shah: I think there's two other cases that I would mention. I think these two cases reveal that what we have here is not really a pro-business Court in the traditional sense. It's certainly a conservative Court. And that will often map onto interests of the business community, but certainly not always. And this is not like the Court we had in the era of the old Chief Justice, where, really, I think, corporations did have a sense that the Court cared about their views as corporations, and that is just not where this Court is.

There's no special dispensation for corporations, even if certain rulings, like the Sackett ruling that Aileen discussed, might inure to their benefit because it also furthers an agenda of cutting down agency power, limiting the administrative state and so on. And the two cases that I've mentioned are National Pork Producers [v. Ross] and Mallory [v. Norfolk Southern Railway Co.].

Now, Pork Producers is a case in which the Supreme Court upheld California's controversial animal welfare law and, in doing so, rejected a Dormant Commerce Clause challenge by the pork industry.

That law barred the sale and currently bars the sale in California of pork products when the meat comes from pigs that are confined in too-cramped conditions. And the issue is that California imports basically all of its pork. And so, the law, the state law, would have the practical effect of forcing out-of-state pork producers to change their conditions on their farms and how they raise pigs in order to sell pork in California.

And they alleged, the pork industry, basically, alleged that this was improper extraterritorial regulation in violation of the Dormant Commerce Clause, which is the notion that states shouldn't be able to regulate commerce beyond their borders. That's the general notion in Dormant Commerce Clause because, as you can guess from the name, that's not an explicit constitutional provision, but it flows from the Commerce Clause, which gives Congress authority to regulate interstate commerce. And the Court has developed a jurisprudence around the Dormant Commerce Clause that limits state from regulating beyond their borders.

Now, the Supreme Court here affirmed the Ninth Circuit's rejection of the pork industry's Dormant Commerce Clause claim. It was a splintered majority, and it had multiple sub-issues. But the takeaway is: This wasn't a decision along ideological lines; it was a divided decision. But it came out against the pork industry, and it just shows, I think, this Court, again, doesn't have any special thumb on the scale in support of industry interest.

The other case I'll mention, the other business case, and this is actually a potentially pretty significant personal jurisdiction case. And personal jurisdiction, of course, is the power of a court to hear a lawsuit against a particular defendant. Does that court have jurisdiction over a particular defendant? And Mallory involved a challenge to a Pennsylvania law that allows any company registering to do business in a state to be sued there, even if that company is not based in Pennsylvania and even if the conduct underlying the lawsuit occurred outside Pennsylvania.

The Supreme Court rejected a due process challenge by the corporate interest in that case. And that decision upholding that Pennsylvania law creates the possibility now that corporations may be sued for all types of claims in any state where they do business, right? States can now pass laws similar to Pennsylvania and therefore allow claimants to sue in that particular state as long as the state has registered there, which they can require if that state wants to do business there.

That is a pretty plaintiff-friendly rule. And that decision was a Justice Gorsuch decision joined by Justices Thomas, Alito, Sotomayor and Jackson, and then you had a dissent from Justice Barrett, the Chief Justice, Justice Kagan and Justice Kavanaugh. So again, here you have another non-ideologically splintered decision against the business community. I think this shows, again, a complexity when it's not simply a pro-business Court. It's a conservative Court whose decisions may sometimes inure to the benefit of the business community, but certainly not always.

Jose Garriga: That's very interesting, thank you. So just to wrap up, looking forward a bit at the next Term, the October Term, what should the audience be paying attention to? Aileen, I'll ask you to start, please.

Aileen McGrath: So we're still a bit in our early days when it comes to seeing how the next Term is going to shake out. But I think from where we sit right now, next Term looks like it might be a bit different than the past couple of Terms. As we've discussed, the last two Terms, the Court decided blockbuster cases on high-profile social issues, like abortion and race and guns and all of that.

But next Term looks to be a bit different, other than a pretty high-profile Second Amendment case the Court took a few weeks ago to review a federal law that prohibits people with domestic violence restraining orders from possessing firearms. The rest of the docket next Term as of now is populated mostly with administrative law cases. But while those cases might lack the same resonance with the public and the same sense of sweeping impact, I would say they're really no less a critical part of the Court's and the Chief's calculated movement to the right, because curtailing agency power by reshaping administrative law doctrine has been one of the hallmarks of the Roberts Court, especially in its current form. And the Court has granted a number of cases that, depending how they come out, could very dramatically reshape that doctrine.

The first one I would point to is a case called Loper Bright Enterprises v. Raimondo. It's about a National Oceanic and Atmospheric Administration rule. But in case that might lead you to think that it is limited, it is certainly not because the Court granted exclusively on the question whether to overturn the Court's 1984 decision in Chevron [v. Natural Resources Defense Council].

And as our listeners will know, Chevron is the principle that when an agency is responsible for implementing a statute, and that statute is ambiguous, the agency's interpretation typically receives deference in court as long as it is reasonable. And just to give you a sense of context, there are 19,000 judicial decisions that cite the Chevron principle. And so, if the Court does overturn it, that would dramatically transform the relationship between courts and agencies and significantly, I'm sure, expand the way that courts assess and analyze agency rules in a much more intrusive way for the administrative state.

Another case is CFPB v. Community Financial Services Association. One of the key features of the CFPB [Consumer Financial Protection Bureau] is that it receives funding that's controlled by the Federal Reserve rather than through Congress via the usual appropriations process. And last year, the Fifth Circuit said that this is unconstitutional because it violates the Constitution's Appropriations Clause. And the court went even further and said, not only is the funding scheme unconstitutional, but the rule that was at issue there that the CFPB had promulgated was unconstitutional too.

And so, that result threatens, I mean, the end result of this case could be to undo virtually everything that the CFPB has done over its 12-year history and potentially call into question the powers of other agencies like the Postal Service, for instance, that receive funding outside the appropriations process. So there's potential for quite sweeping impact.

And last but not least, I think another case in this category is another Fifth Circuit case Securities and Exchange Commission v. Jarkesy. And it relates to the SEC's enforcement power. The SEC by statute is allowed to decide whether to enforce securities laws either through lawsuits or through hearings in front of an administrative law judge. And the Fifth Circuit last year also found a host of problems with that scheme. They said it violates the Seventh Amendment, that it violates the Constitution's appointments and removal provisions.

But the issue that I would say is the one to watch in this case is the Fifth Circuit said that it also violates the non-delegation doctrine. And non-delegation is the idea that Congress can't give away its lawmaking power to agencies through expansive statutory language giving agencies broad discretion. The limiting principle that courts articulated in the past is an intelligible principle.

But the Court has not struck down a law on non-delegation grounds in almost 80 years. But there have been some pretty clear signs that at least several of the conservative Justices are ready to reinvigorate that approach. The issue came up a couple of Terms ago in a case where four Justices were prepared to take up the non-delegation mantle. And so, this case where the issue is squarely presented gives them another opportunity.

And as is true with the other cases I've mentioned, if the Court does resurrect this doctrine here, it could have profound implications in a wide range of areas because many agencies operate under broad grants of statutory authority. And resurrecting that doctrine also, like I said, is a key agenda item of the conservative right. And so, I think, Jarkesy will show us just how far the Court is willing to go in cutting back on the administrative state.

So to answer your question, Jose, I think right now those are the key cases that I would point our listeners to as the ones to watch.

Jose Garriga: Thank you, Aileen. Pratik, I'll give you the last word. What are you thinking that our audience should be looking at next Term?

Pratik Shah: Well, I think Aileen has it exactly right. I think this is the Term of the war on the administrative state and perhaps the culmination of that. I think we really will get a better sense of what I'm going to call the post-Barrett Court and how it's going to move in cases involving what I'll call the non-culture war issues, i.e., non-socially divisive cases. The administrative law state and those issues are very important, but I think that's true and most closely followed by those of us that are lawyers and not necessarily front page news in The New York Times or Washington Post.

But I think that's how this, at least so far, the docket is shaping up, focused on that area. And those cases, I think, should give us a better barometer as to whether the current Court will move more incrementally. There are ways to cut back on Chevron, cut back on some of these uses of the administrative state and administrative power rather than outright overruling them, as I suspect the Chief Justice might prefer. Or does the Court move more robustly, as I suspect that at least several members of the more conservative wing of the Court might prefer?

I think that this next Term is going to be telling in that way. Now the docket could change, perhaps staying a little bit more out of the front page limelight than the Court has been in the last Terms, but still having potentially profound consequences for the law moving forward.

Jose Garriga: Thank you. Listeners, you have been hearing Akin Supreme Court and appellate practice head Pratik Shah and partner Aileen McGrath looking back at the Supreme Court's most recent Term and giving a bit of a preview to an important theme in the upcoming Term. Thank you both, as always, for your very valuable time and insights on this dramatic and changing judicial landscape.

And thank you, listeners, of course, for your time and attention. Please make sure to subscribe to OnAir with Akin at your favorite podcast provider to ensure you do not miss an episode. We're on, among others, iTunes, YouTube and Spotify.

To learn more about Akin and the firm's work in, and thinking on, Supreme Court matters, search “Supreme Court and appellate” on akingump.com and then take a moment to read Pratik and Aileen's bios on the site.

Until next time.

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