Upcoming Supreme Court cases that could change America

Clean Water Act

The 2022-2023 Supreme Court term begins next month with a case that could gut the Clean Water Act and, at the very least, remove wetlands from federal protection.

The case revolves around the Sackett family, who began building a house on their Idaho land over 15 years ago. Shortly after the Sacketts filled the lot with sand and gravel, the EPA notified them that the property contained wetlands subject to protection under the Clean Water Act and ordered them to remove the fill and restore the property to its natural state. Instead, the Sacketts sued the EPA, contending that the agency’s jurisdiction under the Clean Water Act does not extend to their property.

The central conflict of Sackett v. EPA is whether a plurality decision by the Supreme Court in 2006 (Rapanos v. United States) should be adopted to allow wetlands to be regulated only when they themselves have a continuous surface water connection to regulated waters. The EPA argues that wetlands separated from other waters of the United States by barriers are accurately defined as wetlands under protection of the Clean Water Act.

Real life example: At least 20% of the Yukon Delta National Wildlife Refuge in Alaska is isolated wetlands. If the Supreme Court rules in favor of the Sacketts, this important and unique ecosystem will no longer be under federal protection.

Further reading: Amicus brief by Waterkeeper organizations. “Over one hundred environmental and community groups urge U.S. Supreme Court to uphold federal clean water protections,” NRDC.

Voting rights

On the second day of the 2022-2023 term, the Supreme Court will hear arguments in Merrill v. Milligan, a case that could further degrade the Voting Rights Act.

Merrill v. Milligan originated from a challenge to Alabama’s 2020 redistricting cycle congressional map. A coalition of civil rights organizations and Alabama voters alleged that the plan is an unconstitutional racial gerrymander because race was the predominant consideration when creating numerous districts, and that the plan as a whole was enacted with the intent and the result of diluting African-American voting strength in violation of Section 2 of the Voting Rights Act.

In February 2022, the Supreme Court suspended a lower court’s order to draw at least two districts “in which Black voters … have an opportunity to elect a representative of their choice,” and scheduled oral arguments for the new term. Alabama asks the Court to invent a new test to determine if a map is racially gerrymandered—a test that, coincidentally, will be near impossible for voters and civil rights groups to satisfy.

Death penalty

The Supreme Court already has a high-profile death penalty case on its schedule: Reed v. Goertz, centering on Texas’ refusal to conduct DNA testing to confirm Reed’s guilt or clear his name.

Rodney Reed, a Black man, was convicted in 1998 for the abduction, rape, and murder of Stacey Stites, a white woman, by an all-white jury. The most damning evidence against Reed was DNA matching Reed collected from her body. However, Reed and Stites had a consensual sexual relationship at the time and he admits to having sex with her the day before her death. At the time of the trial, prosecutors allegedly concealed statements from Stite’s co-workers that proved the pair were romantically involved.

At trial, prosecutors repeatedly told Mr. Reed’s jury — falsely — that investigators “talked to all these people, and not one of them … ever said she was associated with that defendant. Ever. They weren’t dating according to anyone, there weren’t friends, they weren’t associates.”…

On June 25, 2021, the State disclosed for the first time to Mr. Reed’s lawyers that Suzan Hugen, a friend and co-worker of Ms. Stites, gave a statement to police that she saw Mr. Reed and Ms. Stites at the H.E.B. where the women worked and she introduced Mr. Reed to Ms. Hugen as a “good or close friend.” Ms. Hugen told police that Ms. Stites and Mr. Reed appeared “friendly, giggling, and flirting.” …Two other H.E.B. co-workers of Ms. Stites also told police that Mr. Reed and Ms. Stites knew each other. These pre-trial interviews were not disclosed to Mr. Reed’s attorneys for 23 years, until the eve of the July, 2021 evidentiary hearing.

Furthermore, Jimmy Fennell, Stacey’s fiancé, was the prime suspect in the case. Friends and witnesses have since come forward and given testimony that Fennell provided inconsistent accounts of his whereabouts on the night of the murder and allegedly made threats on Stites’ life.

Reed’s execution has already been postponed numerous times, including once at the request of a bipartisan group of 16 Texas state senators. Reed is asking the Supreme Court to order DNA testing on the murder weapon, which has never been tested.

Indian Child Welfare Act

The last scheduled case for the 2022-2023 term, so far, is Haaland v. Brackeen. It is a complex case that could ultimately result in the Indian Child Welfare Act being declared unconstitutional.

Congress passed the Indian Child Welfare Act (ICWA) in 1978 to provide tribal governments with a voice in the removal and out-of-home placement of Native American children. Prior to the ICWA, many Native American children were forcibly taken away from their parents and extended relatives under the power of the federal government and placed in predominantly non-Native homes, which had no relation to Native American cultures.

Haaland v. Brackeen involves numerous non-Native couples who wanted to adopt Native children but were opposed by the respective tribal governments. Texas, Louisiana, and Indiana joined the couples to ask the courts to declare the ICWA unconstitutional. District Court Judge Reed O’Connor, a George W. Bush appointee, ruled that the ICWA violated the non-delegation doctrine, the Tenth Amendment, and the Administrative Procedure Act. It was the first time a constitutional challenge to the ICWA had been successful.

A three-judge panel of the 5th Circuit Court of Appeals reversed O’Connor’s ruling, but a subsequent en banc hearing found that the ICWA’s adoptive placement and preference for an “Indian foster home” violates equal protection.

Further reading: Briefs from hundreds of governmental entities, child welfare organizations, and civil rights groups. “My family was torn apart before the Indian Child Welfare Act passed. Will SCOTUS upend it?” Desert Sun op-ed.

Other cases

Arellano v. McDonough: Whether the one-year filing deadline for veterans to submit disability claims after they are discharged can be extended for good cause. Adolfo Arellano developed post-traumatic stress disorder and other mental health conditions from his military service. 30 years later, he applied for disability benefits, which were approved by the VA and backdated to his 2011 filing date. Arellano contends that he was unable to file sooner due to his mental health conditions and asks the court to allow a more flexible time frame for veterans claims.

National Pork Producers Council v. Ross: Farmers and companies in the pork industry are challenging California’s Proposition 12, which prohibits the sale within the state of certain pork products that were produced using breeder pigs that were housed in a cruel manner.

Helix Energy Solutions Group, Inc. v. Hewitt: A supervisor on oil rigs for Helix Energy Solutions Group, Inc., who was paid a daily rate of at least $963 sued the company seeking overtime pay. The district court ruled he was exempt from overtime pay. On appeal, the 5th Circuit ruled that he was not exempt.

Axon Enterprise, Inc. v. Federal Trade Commission: A case to determine if federal courts have the authority to review constitutional challenges to the structure of the Federal Trade Commission (FTC) without first going through administrative proceedings.

Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard: To determine whether colleges and universities can factor in students’ race and ethnicity in determining which students are admitted, a process known as affirmative action.

Jones v. Hendrix: A man convicted of being a felon in possession of a firearm (18 U.S.C. § 922) was denied relief even after the Supreme Court (in Rehaif v. United States (2019)) changed the requirements for a conviction under 18 U.S.C. § 922. He asks the Supreme Court to clarify that he is allowed to challenge his conviction under the Rehaif ruling.

Cruz v. Arizona: John Cruz, convicted of murder, was prevented from telling the jury that he was not eligible for parole when they were considering whether to impose the death penalty. In 2016, the Supreme Court ruled that Arizona must allow defendants facing the death penalty to do so, but the Arizona Supreme Court has so far refused to grant Cruz post-conviction review.

Mallory v. Norfolk Southern Railway: A former employee of Norfolk Southern Railway Company sued, claiming that he had been exposed to toxic chemicals while working for the company. He filed the lawsuit against Norfolk Southern, a Virginia company, in Pennsylvania. The state dismissed the case because the claims in question do not arise out of or relate to Norfolk Southern’s conduct in Pennsylvania. The former employee argues that Norfolk Southern consented to personal jurisdiction in Pennsylvania by registering to do business there.

Health and Hospital Corporation of Marion County v. Talevski: Whether third parties can initiate lawsuits against public institutions for violations of Congressional spending bills under claims of Section 1983, which was established to protect individual rights from constitutional violations from public institutions.

Unscheduled cases

Moore v. Harper: Whether state legislatures have ultimate power over election matters, e.g. the creation of redistricting maps that the state supreme court ruled illegally gerrymandered. Implicates the “inde­pend­ent state legis­lature theory” and could potentially allow state legislatures to override state courts and state constitutions on electoral rules and regulations.

  • Leonard Leo’s (of the Federalist Society) “Honest Elections Project” filed a Supreme Court brief arguing state legislatures are not constrained by even state constitutions protecting voting rights when they regulate federal elections.

303 Creative LLC v. Elenis: Challenge to Colorado’s anti-discrimination law (similar to Masterpiece Cakeshop).

Percoco v. United States: Whether a private citizen who can influence governmental decision-making owes a fiduciary duty to the public and can be convicted of bribery

United States v. Texas: Whether the Biden administration’s 2021 guidance directing immigration enforcement officials to prioritize the arrest and deportation of certain groups of individuals who entered the country is legal.