The Hill: Expect fireworks from the Supreme Court’s 2022-2023 term

September 26, 2022 | By JAMES BURLING , ALISON SOMIN
Sackett Attorneys at Supreme Court

Although the Supreme Court likely won’t be talking much about guns and abortions this term, there will be fireworks on issues ranging from race preferences at colleges, to California’s politically correct bacon regulations, to the perennial question of what the heck is a wetland subject to federal control? Wrapped up in the court’s cases will be continuing questions over the fundamental nature of government — and what power the different branches of government may have under the structure of our Constitution.

On the first day of oral argument, there will be a return visit from Mike and Chantell Sackett. They were last before the court a decade ago when they won a unanimous decision that allowed them to challenge the Environmental Protection Agency’s (EPA) determination that there were wetlands on their small residential lot where they were trying to build a home.

After years of battles over evidence and delays, the 9th Circuit Court of Appeals agreed with the EPA that a small patch of wetland on the property meant the Sacketts could not build unless and until they applied for and received a permit. But the Sacketts, represented by Pacific Legal Foundation (PLF), are arguing that EPA’s very definition of a wetland subject to federal control is inconsistent with the Clean Water Act and a prior Supreme Court decision in another wetland case (where PLF attorneys represented another landowner).

The following week, the court will take up National Pork Producers Council v. Ross, a case that might help draw the line on how much regulatory control one state can impose on businesses in another state. Many Californians may love their bacon, but in 2018 the voters of California passed Proposition 12, which forbids, starting in 2022, the sale or importation of pork products unless the pigs are raised in sufficiently large pens. The problem is that California imports 99.87 percent of its pork — virtually none is raised in the state. Anyone caught selling “illegal bacon” in California will be subject to a $1,000 fine and up to 180 days in state prison. Because the California market is huge, pork producers in other states must alter their feedlots and pens to meet the California rules. Otherwise, California retailers won’t risk selling illegal ham sandwiches.

But under the Constitution’s Commerce Clause, states cannot regulate interstate commerce — a job left to the federal government. The court will decide whether the impact of California rules in other states is enough to violate the Commerce Clause. As Pacific Legal Foundation’s amicus brief puts it, “Allowing states to leverage their market power to reach beyond their borders and control activity is properly subject to direct regulation by other states undermines the basic principles of federalism on which this nation was founded.”

On the last day of October, the court will hear arguments in what might be the most controversial cases of the term: Students for Fair Admissions v. Harvard and a companion case against the University of North Carolina. At issue is the question of admissions policies tilted to favor students of particular minority groups at the expense of others, especially Asian students. The statistics are striking: Asian students who are at the top of their classes and have stellar SAT scores are less likely to gain admission than minority students who are merely in the middle of the pack of selective colleges’ admissions pools.

In 2003, Justice Sandra Day O’Connor wrote in Grutter v. Bollinger that colleges could favor minority students in admissions in order to promote “diversity.” But she said such discrimination no longer might be necessary after 25 years. In fact, it was never necessary, and any college or university that uses federal funds in a discriminatory way is violating the Fourteenth Amendment’s Equal Protection Clause, which was adopted in the wake of the Civil War. PLF’s amicus brief notes “the diversity rationale is unsound” and “rests upon arbitrary racial classifications.” Moreover, “preferences not only deny students their right to equal justice before the law but harm the very students they purportedly benefit.”

The following week, the court will take up Axon Enterprise v. Federal Trade Commission and Securities and Exchange Commission v. Cochran, both cases involving separation of powers. Although each involves a different federal agency, the core question is the same: Can courts hear constitutional challenges involving an administrative agency’s structure immediately, or must such claims first percolate internally through the administrative agency? As the old maxim has it, “justice delayed is justice denied.” To vindicate individual rights that are threatened by unconstitutionally structured administrative agencies, courts should be able to hear these challenges.

We are heartened that the Supreme Court is beginning to hear cases that have the potential for returning the nation to the liberty-defining principles of our Constitution. As shown in PLF’s “Pulling Back the Curtain” series, it long has been a goal of public interest lawyers such as those at PLF to argue that government must respect property rights; that the government must not discriminate; and that the three branches of government must not compete for power at the expense of individual freedoms.

This op-ed was originally published at The Hill on September 26, 2022.