Supreme Court Hints That It May Duck Two Big Cases

Recent orders suggest that the justices are thinking of dismissing cases involving the “independent state legislature” theory and Title 42, an immigration measure imposed during the pandemic.

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Supreme Court Hints That It May Duck Two Big Cases |

The U.S. Supreme Court may await a ruling from the North Carolina Supreme Court before it acts on a case concerning the role of state legislatures in conducting federal elections.

WASHINGTON — Two of the most consequential Supreme Court cases this term may fizzle out, recent orders from the justices suggest, meaning the court may not rule on the role of state legislatures in conducting federal elections or on whether Republican-led states may challenge a pandemic-era immigration measure.

The end of the term, probably in late June, will still be busy, with the court poised to deliver decisions on affirmative action, a clash between gay rights and claims of religious liberty, the scope of a law protecting internet platforms and the Biden administration’s plan to cancel more than $400 billion in student debt.

But the justices may dismiss two of the thorniest questions before them.

In the case on state legislatures, the U.S. Supreme Court hinted that it might not render a decision after control of the North Carolina Supreme Court shifted.

The case arose from a decision by the State Supreme Court last year to block North Carolina’s congressional voting map, drawn by Republican lawmakers, as an unconstitutional partisan gerrymander under the state Constitution.

North Carolina selects its justices in partisan elections. The court that issued last year’s decision included four Democratic justices and three Republican ones, and it split along party lines.

Understand the U.S. Supreme Court’s Term

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A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returned to the bench in October — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the term:

Affirmative action. The marquee cases of the term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedent at risk.

Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.

Discrimination against gay couples. The justices heard an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.

Tech companies’ legal shield. The court is reviewing a sweeping law that prevents tech companies such as Facebook and Google from being held responsible for the content posted on their site. The case could have potentially seismic ramifications for social media platforms and alter the very structure of the internet.

Student loan cancellation challenges. The justices will hear arguments about President Biden’s plan to forgive an estimated $400 billion in federal student loan debt. Conservative states have called the plan an abuse of executive authority. The first question the court will explore is whether the states are even entitled to sue.

The Republican lawmakers appealed to the U.S. Supreme Court, saying the state court was not entitled to second-guess the Legislature, citing a clause of the federal 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.”

The lawmakers argued that the reference to the legislature meant the state court had no role to play, at least when it applied state law. This idea is called the independent state legislature theory.

When the U.S. Supreme Court heard arguments in the case in December, the justices seemed divided, if not fractured, over the theory in its strongest form.

Justice Samuel A. Alito Jr. asked a telling question: “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”

Indeed, the composition of the North Carolina Supreme Court changed after elections in November, now favoring Republicans by a 5-to-2 margin. In what a dissenting justice called a “display of raw partisanship,” the court split along those party lines last month and ordered a rehearing of the gerrymandering dispute, scheduling arguments for March 14.

The U.S. Supreme Court last week took notice of the development, asking the parties to file briefs on whether it has jurisdiction to rule in the case in light of the rehearing order or “any subsequent state court proceedings.” Those briefs are due in two weeks.

The U.S. Supreme Court may await a ruling from the state court before it acts. In the immigration case, concerning the pandemic-era measure known as Title 42, the justices seem likely to wait until May to decide whether to dismiss it.

The court last month canceled arguments in the case after the Biden administration announced that the health emergency that had been used to justify Title 42 would end on May 11.

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  • New York Gun Law: The court’s decision last year to overturn the state’s century-old gun regulations has produced scores of new lawsuits, sowing confusion as to what is legal now.
  • Ethics Code: As calls for the Supreme Court to adopt an ethics code mount, the justices continue to wrestle with whether to adopt a policy similar to one that applies to all other federal judges.
  • Road to a Clerkship: A study found that the chances of obtaining a coveted Supreme Court clerkship are considerably higher for people with undergraduate degrees from Harvard, Yale or Princeton.

“Absent other relevant developments, the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot this case,” Solicitor General Elizabeth B. Prelogar wrote in a brief filed early last month.

The court’s action indicated that it was inclined to agree and that, barring other developments, it would dismiss the case and lift a stay that had kept the measure in place.

Title 42 has allowed migrants who might otherwise qualify for asylum to be swiftly expelled at the border with Mexico. The policy, introduced by the Trump administration in March 2020, has been used to expel migrants — including many asylum seekers — about 2.5 million times.

Should the court dismiss the cases on voting and immigration, which seems a distinct possibility, a term that had seemed especially momentous will become a little less so. But cases that broach related issues will remain on the docket.

One centers on whether Alabama lawmakers violated the Voting Rights Act by diluting the power of Black voters. At issue in the other are the Biden administration’s immigration enforcement guidelines that had set priorities for deciding which unauthorized immigrants should be arrested and detained.


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