“Our role is very clear. We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them.”
— Chief Justice John Roberts
“I am acutely aware that, as a judge in our system, I have limited power, and I am trying in every case to stay in my lane.”
— Justice Ketanji Brown Jackson
The Supreme Court’s 2022 term is underway, with several cases having already been argued. This is the first time the court has begun a term without Justice Stephen Breyer in nearly three decades — following Breyer’s retirement in June — and the first time the court has ever had four female justices. Justice Jackson is also only the second Protestant on a court that includes one Jewish justice and six Catholics.
The term includes 40 cases that are scheduled to be decided, though the court can agree to accept other cases as the term progresses. Among the cases that will be most closely watched:
Gonzalez v. Google, LLC and Twitter v. Taamnah: Gonzalez, the father of a U.S. citizen killed by an ISIS terrorist attack in Paris, has sued Google, Twitter and Facebook alleging that the algorithms they use to target information to their users also aided the terrorist organization in recruiting members. The internet services defended themselves by pointing to a section of the Communications Decency Act and a lower court judge dismissed the complaint. The Supreme Court is being asked to reinstate the case by ruling that the act does not protect the tech companies from liability.
Haaland v. Brackeen: Here, the High Court is reviewing the constitutionality of ICWA — the Indian Child Welfare Act — after a federal court in Texas struck down portions of it. ICWA restricts the removal of Native American children from their homes and provides a preference that they be placed with Native American foster homes or with family members. Because there are no Native American nations in Ohio, the act is rarely implicated here (I have had two cases in which it applied in 20 years at the juvenile court), but in some states, the act is a major driver of how child welfare cases are handled.
In re Grand Jury: A wonderfully simple name for a wonderfully complex case. A grand jury investigating a corporate executive subpoenaed information from both his company and his lawyer. Both refused to comply with the subpoena, saying that the communications were legal advice and thus protected. The prosecutor claims that the conversations were merely about tax advice and so not protected. The High Court will decide when the attorney-client privilege applies in mixed communication situations.
Merrill v. Milligan: When Alabama redrew its congressional districts after the 2020 Census, it created one district that had a majority of African American voters. Voters in other districts have sued claiming that the state’s act of packing those voters into a single district violates the Voting Rights Act.
Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina: These two cases, combined, are the most closely watched of the term. They squarely place the issue of the constitutionality of affirmative action in university admissions back before the court.
United States v. Texas: In September of 2021, the Department of Homeland Security issued new directives for the enforcement of civil litigation in immigration proceedings. The State of Texas sued and the Supreme Court will now decide whether Texas has standing to sue, and if it does, whether the directives violated the Administrative Procedures Act.
The court will also address the intersection of religious beliefs and state laws on discrimination, the Fair Use Doctrine of the Copyright Act, the timeline for filing veterans’ disability cases, water rights between the federal government and the Navajo Nation, a question of authority over election laws between states and the federal government, a school disability rights matter, and several cases on criminal procedural issues.
Oral arguments have already begun and some decisions will begin to flow from the court soon. But decisions in major cases, as well as those argued late in the term, will likely not be issued until June, when the term draws to a close. Only two sitting justices are over the age of 70 (Alito and Thomas) and four are under 60. As such, any further retirements are highly unlikely in the next two terms, meaning that the decisions themselves will supply the high drama as the term draws to a close early next summer.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.