Bloomberg Law
Jan. 3, 2023, 9:00 AM

These Civil Rights Cases at the Supreme Court Could Make History This Year

Damon T.  Hewitt
Damon T. Hewitt
Lawyers' Committee for Civil Rights Under Law

With its supermajority of conservatives, the US Supreme Court has all but invited challenges to settled precedent, especially in civil rights cases. After a stunning 2022, the cases before the court this year could have an especially devastating impact, threatening decades of racial justice progress.

Of the battles ahead, these are those we are most closely watching, and in which the Lawyers’ Committee for Civil Rights Under Law has argued or filed amicus briefs.

Voting Rights

Anti-democratic actors are working to weaken the voting power of Black and Brown voters across the country through voter suppression legislation and hyper-partisan racial gerrymandering. The Supreme Court seems willing to enable this political project.

After dismantling the preclearance formula that powered Section 5 of the Voting Rights Act in Shelby County v. Holder nearlya decade ago, the court has also made it harder to prove violations of Section 2 of the Act, which prevents measures that have the intent or result of denying or diluting Black voting strength. Now it could weaken Section 2 even further.

In Merrill v. Milligan a unanimous three-judge panel found that Alabama’s congressional redistricting map violated Section 2 because it failed to create a majority Black district. Among Alabama’s most dangerous arguments is its claim that requiring creation of a majority Black district under Section 2 to remedy racial discrimination is an unconstitutional consideration of race. If adopted, Alabama’s argument would make Section 2 enforcement nearly impossible in the redistricting context.

In Moore v. Harper, the court is considering the “independent state legislature theory,” which claims that the Constitution’s Elections Clause gives state legislatures exclusive authority to set elections rules for federal elections without state court oversight—even to ensure compliance with their state constitutions.

This radical and widely discredited theory would allow state legislatures to pass voter suppression legislation and gerrymandered redistricting maps that violate state law, without state courts being able to do anything about it.

Digital Justice

As our lives and daily interactions are increasingly online, civil rights protections should apply in the data world as they do in person. Complex algorithms and poor data management allow malicious actors to use digital platforms to target people of color. These actions may slip through regulatory or legal cracks.

Social media platforms can function as information superhighways amplifying and disseminating White supremacist ideology and misinformation. Telecom and digital platforms are also being used to fuel new forms of voter suppression targeting voters of color.

In Gonzales v. Google, the Supreme Court will consider for the first time Section 230 of the Communications Decency Act, a law that shields online platforms from liability. The parents of a young woman killed in a terrorist act in Paris in 2015 are suing the company, which owns YouTube, accusing it of violating the Anti-Terrorism Act because its algorithms’ allegedly promoted ISIS-related content.

The Lawyers’ Committee and allies filed an amicus brief urging the court to adopt a balanced approach because an immoderate decision in either direction could imperil civil rights online—either undercutting anti-discrimination enforcement in one direction, or causing increased censorship of creators of color in the other.

In a case still in the lower courts, National Coalition on Black Civic Participation v. Wohl, the Lawyers’ Committee is suing fraudsters who targeted 85,000 illegal robocalls to Black voters, spreading fallacious information and threats to frighten them from voting by mail during the 2020 election. This potentially precedent-setting case could mark the first time the Voting Rights Act will be applied to address electronic communications.

Affirmative Action

For over 40 years, the Supreme Court has consistently upheld the constitutionality of race-conscious admissions in higher education. That may change next year in a case that the Lawyers’ Committee argued in the Supreme Court, Students for Fair Admissions v. University of North Carolina and the companion case involving Harvard.

The petitioners asked the court to upend decades-old precedent to impose a new color-blindness standard that could slam the door on educational opportunities for talented students of color, despite evidence that race continues to be impactful in our daily lives.

Although framed as a focus on “merit,” this is really an attempt at “erasure” of Black and Brown students whose talent and potential are systematically underpredicted by normative admissions criteria such as standardized tests. All students deserve a chance to share the whole story of who they are and the paths they have traveled.

In this time of racial reckonings and increased racial violence, we need as many avenues as possible to create opportunities for Black and Brown students. The loss of affirmative action would further divide communities and workplaces and undermine this nation’s greatest strength—the multiracial diversity of its people.

The Lawyers’ Committee has been active in each of these cases, in an effort to protect civil rights principles and the interests of the Black community, including presenting oral argument before the court in the affirmative action cases. These cases and others will shape the lives and futures of people throughout the US, and will determine whether the nation can advance racial equity and the just future that Black people, people of color, and Americans of all backgrounds deserve.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Damon T. Hewitt is president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Hewitt has more than 20 years of civil rights litigation and policy experience, including prior leadership roles in the nonprofit, philanthropic, and public sectors.

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