The U.S. Supreme Court on May 25, 2023, unanimously held in Sackett v. Environmental Protection Agency (EPA) that the EPA’s regulatory jurisdiction over the nation’s wetlands is limited. The decision echoes the court’s 2022 ruling in West Virginia v EPA, in which the justices limited the scope of the agency’s authority to regulate greenhouse gas emissions.
The decision brings to a close a 14-year legal battle between the Sacketts and the EPA, in which the EPA claimed that the Sackett’s residential lot in Idaho contained wetlands subject to its jurisdiction pursuant to the Clean Water Act (CWA). The Sacketts disagreed and the dispute worked its way through the federal courts in the years following the initial lawsuit.
Justice Samuel Alito delivered the opinion of the unanimous court, arguing that the EPA’s regulatory authority over wetlands only extends to those with “a continuous surface connection to bodies that are ‘waters of the United States.’”
In an opinion concurring in the judgment, Justice Elena Kagan agreed that the EPA’s authority does not extend to the Sackett’s property but expressed concern that the court’s reasoning “substitutes its own ideas about policymaking for Congress’s.”
The U.S. Supreme Court on May 4 directed the parties in Moore v. Harper to file supplemental letter briefs in the case by May 11. The court’s order asked the parties, “What is the effect on this Court’s jurisdiction of the April 28, 2023 order of the North Carolina Supreme Court?
On April 28, the North Carolina Supreme Court overturned its February 2022 decision that the state’s enacted congressional and legislative maps were unconstitutional due to partisan gerrymandering. It struck down the maps the legislature enacted in 2021 and the remedial maps used for the 2022 elections. The court’s order also said that the legislature’s original 2021 maps were developed based on incorrect criteria and ruled that the General Assembly should create new congressional and legislative boundaries for use starting with the 2024 elections.
In its ruling, the court said, “we hold that partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution. Accordingly, the decision of this Court in Harper I is overruled. We affirm the three judge panel’s 11 January 2022 Judgment concluding, inter alia, that partisan gerrymandering claims are nonjusticiable, political questions and dismissing all of plaintiffs’ claims with prejudice.”
Amy Howe wrote at SCOTUSBlog that the U.S. Supreme Court “asked lawyers…to weigh in on whether the court can still hear the case in the wake of a recent ruling by the North Carolina Supreme Court, which reversed its earlier decision in the underlying redistricting dispute that sparked the case…Once those briefs have been filed, the justices could dismiss the case (as one set of challengers has already suggested they should), or they could continue to decide the case on the merits.”
Howe also wrote, “The timing of the justices’ decision likely could depend on the result that it reaches. An order simply dismissing the case could come relatively quickly after the supplemental briefs are filed on May 11, although such an order could take longer if it is accompanied by separate dissents or statements from one or more justices. In any event, the justices are expected to act on the case by late June or early July, when they begin their summer recess.”
The parties in the case also filed supplemental briefs with the U.S. Supreme Court on March 20 at SCOTUS’ request after the North Carolina Supreme Court announced it would re-hear the case. The briefs outlined each party’s view on whether SCOTUS still had jurisdiction in light of the state court’s decision. The legislators that brought the case and one of the respondents—Common Cause—told the justices that the court should still decide the case. The other respondents wrote that the U.S. Supreme Court should dismiss the case for lack of jurisdiction because the original case was still under appeal.
As a result of state supreme court elections in 2022, the North Carolina Supreme Court flipped from a 4-3 Democratic majority to a 5-2 Republican majority. In the 2022 legislative elections, the state elected 7 Democratic U.S. House members and 7 Republican ones. Republicans won partisan control of the state Senate, 30-20, and the state House of Representatives, 71-49.
The Wisconsin Supreme Court issued two opinions from May 1-7. As of May 7, the court issued 30 opinions in 2023 — nine more than this point a year ago. One of two opinions is below:
Gahl v. Aurora Health Care, Inc., where the court “affirmed the decision of the court of appeals reversing the circuit court’s issuance of an injunction compelling Aurora Health Care, Inc. to administer Ivermectin to Petitioner’s uncle (Patient), holding that the circuit court abused its discretion in issuing the injunction without analyzing Petitioner’s reasonable probability of success on the merits.”
From May 1-7, state supreme courts issued 156 opinions nationally. The Supreme Court of Appeals of West Virginia issued the most with 22. State supreme courts in Illinois, Kentucky, Maine, Maryland, Michigan, New York, North Carolina, North Dakota, South Carolina, and South Dakota issued the fewest with zero. Courts where judges are elected have issued 91 opinions, while courts whose members are appointed have issued 65.
The Wisconsin Supreme Court is the state’s court of last resort and has seven judgeships. The current chief of the court is Annette Ziegler. The court issued 68 opinions in 2022 and 79 in 2021. Nationally, state supreme courts issued 7,423 opinions in 2022 and 8,320 in 2021. The courts have issued 2,357 opinions in 2023. Courts where judges are elected have issued 1,315 opinions, while courts whose members are appointed have issued 1,042. Wisconsin is a divided government, meaning neither party holds trifecta control.
According to the latest vacancy data from the U.S. Courts, there were 24 total announced upcoming vacancies for Article III judgeships. Article III judgeships refer to federal judges who serve on the U.S. Supreme Court, the U.S. Court of International Trade, or one of the 13 U.S. courts of appeal or 94 U.S. district courts. These are lifetime appointments made by the president and confirmed by the U.S. Senate.
These positions are not yet vacant but will be at some point in the future with every judge having announced his or her intent to either leave the bench or assume senior status. In the meantime, these judges will continue to serve in their current positions.
The president and Senate do not need to wait for a position to become vacant before they can start the confirmation process for a successor. For example, Ana de Alba was nominated to replace Judge Paul Watford after he resigns on May 31, 2023. There are currently two nominees pending for upcoming vacancies.
Six vacancy effective dates have not been determined because the judge has not announced the date he or she will leave the bench. The next upcoming scheduled vacancy will take place on May 15, 2023, when U.S. District Court for the Northern District of Texas Judge Barbara Lynn assumes senior status.
In addition to these 24 upcoming vacancies, there are 76 current Article III vacancies in the federal judiciary out of the 870 total Article III judgeships. Including non-Article III judges from the United States Court of Federal Claims and the United States territorial courts, there are 78 vacancies out of 890 active federal judicial positions.
President Biden has nominated 160 individuals to federal judgeships on Article III courts. Of those nominees, 121 have been confirmed and 34 are going through the confirmation process. Of those going through the confirmation process, 22 are awaiting a vote in the U.S. Senate, seven are awaiting a committee vote, and five are awaiting a committee hearing.
The U.S. Supreme Court on May 1, 2023, agreed to hear Loper Bright Enterprises v. Raimondo—a case that could curb or clarify future applications of Chevron deference by the federal courts.
Chevron deference is an administrative law principle that compels federal courts to defer to a federal agency’s reasonable interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. In other words, when Congress passes a law that is unclear or silent on an issue, the agency administering the law may interpret the statute and issue rules to fill in the details. If a court deems the agency’s interpretation reasonable, it will exercise Chevron deference to accept the agency’s position rather than replace the agency’s view with its own.
While supporters of Chevron deference broadly argue that the doctrine leverages agency expertise, opponents contend that it prevents judges from exercising their constitutional duty to independently interpret the law.
Inconsistent applications of Chevron deference, including by the U.S. Supreme Court, have led scholars and judicial commentators to raise questions about the doctrine’s longevity and anticipate rulings limiting its scope. For example, some analysts suggested the 2021 case American Hospital Association v. Becerra would provide the U.S. Supreme Court with an opportunity to limit Chevron deference. But while the question reviewed by the court centered on Chevron deference, Justice Brett Kavanaugh made no mention of the doctrine in the majority opinion, leading SCOTUSblog analyst James Romoser to question whether “the doctrine may be shunned into oblivion” rather than explicitly overturned.
Similar questions about potential limits to Chevron deference surround Loper Bright Enterprises v. Raimondo in light of the court’s grant of review. The case concerns a group of commercial fishermen challenging a court ruling that applied Chevron deference to uphold an agency interpretation of a federal fishery law requiring the fishermen to foot the bill for compliance monitors. The U.S. Supreme Court granted review of the petitioner’s question asking whether the court should overturn Chevron deference or, at a minimum, clarify when certain instances of statutory silence constitute the type of ambiguity that would compel deference. Stay tuned!
The U.S. Supreme Court announced on March 27 that it had denied certiorari in Alonzo v. Schwab, a lawsuit regarding Kansas’ congressional district boundaries. The Court did not release the vote results on the matter, and there were no published dissents to the decision. The Supreme Court’s action closes the case, which was the state’s only active redistricting litigation. According to Devan Cole of CNN, “The court’s decision to not hear the case means that the newly redrawn map will remain in play.”
On Nov. 23, 2022, the plaintiffs in Alonzo v. Schwab filed a petition asking SCOTUS to hear the case, which challenged the Kansas Supreme Court’s May 2022 decision upholding the state’s congressional redistricting plan. The petitioners argued that the Kansas Supreme Court erroneously ruled “that intentional racial discrimination in redistricting is unconstitutional only if it prevents the formation of a majority-minority district.”
On June 21, 2022, the Kansas Supreme Court overturned a state district court’s decision finding the state’s congressional district boundaries were unconstitutional. The state supreme court’s order said, “on the record before us, plaintiffs have failed to satisfy their burden to meet the legal elements required for a showing of unlawful racial gerrymandering or unlawful race-based vote dilution.”
On April 25, 2022, Wyandotte County District Court Judge Bill Klapper struck down Kansas’ enacted congressional map. The judge’s ruling stated that the state’s new district boundaries “intentionally and effectively dilutes minority votes in violation of the Kansas Constitution’s guarantee of equal protection.”
Klapper ruled on a case resulting from the consolidation of three lawsuits challenging congressional district boundaries enacted when the legislature overrode Gov. Laura Kelly’s (D) veto on Feb. 9, 2022. The House of Representatives overrode Kelly’s veto 85-37, with all votes in favor by Republicans, and 36 Democrats and one Republican voting to sustain the veto. The Senate overrode Kelly’s veto 27-11 strictly along party lines, with all votes in favor by Republicans and all votes opposed by Democrats.
After the legislature overrode Kelly’s veto, Andrew Bahl of the Topeka Capital-Journal wrote that the “maps were hotly contested, largely for the decision to split Wyandotte County and put part of the Kansas City, Kan., area in the 2nd Congressional District, a move that endangers the state’s lone Democrat in Congress, U.S. Rep. Sharice Davids, and, Democrats argue, unfairly divides minority communities.”
Davids defeated Amanda Adkins (R) and Steve Hohe (L) in the Nov. 8, 2022, general election for Kansas’ 3rd Congressional District, receiving 55% of the vote. Davids was first elected to the U.S. House in 2018.
On November 23, 2022, the plaintiffs in Alonzo v. Schwab filed a petition for a writ of certiorari with the U.S. Supreme Court (SCOTUS). The petition—which asks SCOTUS to hear the case— challenges the Kansas Supreme Court’s May 2022 decision upholding that state’s congressional redistricting plan.
The petitioners allege that the Kansas Supreme Court erroneously ruled “that intentional racial discrimination in redistricting is unconstitutional only if it prevents the formation of a majority-minority district.” The petition also states that “The court did not disagree with the district court’s factual finding, based upon substantial evidence, that the Legislature split Wyandotte County (home to Kansas City) along starkly racial lines in order to eliminate the ability of minority voters to continue electing their preferred candidate; the court simply held that it was irrelevant because those voters were insufficiently numerous to constitute a majority-minority district.”
On June 21, 2022, the Kansas Supreme Court overturned a state district court’s decision that had found that the state’s congressional district boundaries were unconstitutional. The state supreme court’s order said, “The record below demonstrates that plaintiffs did not ask the district court to apply the correct applicable legal tests to their race-based claims. The district court, in turn, did not apply these legal tests to plaintiffs’ race-based claims. Perhaps unsurprisingly then, the district court did not make the requisite fact-findings to satisfy either legal test applicable to plaintiffs’ race-based equal protection claims. Therefore, on the record before us, plaintiffs have failed to satisfy their burden to meet the legal elements required for a showing of unlawful racial gerrymandering or unlawful race-based vote dilution.”
On April 25, 2022, Wyandotte County District Court Judge Bill Klapper struck down Kansas’ enacted congressional map. The judge’s ruling stated, “The Court has no difficulty finding, as a factual matter, that Ad Astra 2 is an intentional, effective pro-Republican gerrymander that systemically dilutes the votes of Democratic Kansans.” Klapper’s opinion also said that the state’s new district boundaries “intentionally and effectively dilutes minority votes in violation of the Kansas Constitution’s guarantee of equal protection.”
Klapper ruled on a case that resulted from the consolidation of three lawsuits challenging congressional district boundaries that were enacted when the legislature overrode Gov. Laura Kelly’s (D) veto on February 9, 2022. The House of Representatives overrode Kelly’s veto 85-37, with all votes in favor by Republicans, and 36 Democrats and one Republican voting to sustain the veto. The Senate overrode Kelly’s veto 27-11 strictly along party lines, with all votes in favor by Republicans and all votes opposed by Democrats.
After the legislature overrode Kelly’s veto, Andrew Bahl of the Topeka Capital-Journal wrote that the “maps were hotly contested, largely for the decision to split Wyandotte County and put part of the Kansas City, Kan., area in the 2nd Congressional District, a move that endangers the state’s lone Democrat in Congress, U.S. Rep. Sharice Davids, and, Democrats argue, unfairly divides minority communities.”
Davids defeated Amanda Adkins (R) and Steve Hohe (L) in the November 8, 2022, general election for Kansas’ 3rd Congressional District, receiving 55% of the vote. Davids was first elected to the U.S. House in 2018 and was one of the first two Native American women elected to Congress, alongside former Rep. Deb Haaland (D-N.M.).
The U.S. Supreme Court is scheduled to hear oral argument in Moore v. Harper on Dec. 7, the last day of its’ December sitting.
Moore v. Harper concerns the elections clause in Article I, section 4 of the Constitution and whether state legislatures alone are empowered by the Constitution to regulate federal elections without oversight from state courts.
The petitioner—North Carolina House of Representatives Speaker Tim Moore (R)—presented to the court the following question: “Whether a State’s judicial branch may nullify the regulations governing the ‘Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,’ U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.
Below is a timeline of the major developments in the case:
November 4, 2021: The North Carolina General Assembly adopted new congressional district boundaries after the 2020 census. Subsequently, a group of Democratic Party-affiliated voters and nonprofit organizations challenged the boundaries in state court, alleging that the new map was a partisan gerrymander that violated the state constitution.
February 4, 2022: The North Carolina Supreme Court ruled that the state could not use the map in the 2022 elections and remanded the case to the trial court for further proceedings. The trial court adopted a new congressional map drawn by three court-appointed experts.
February 25, 2022: Prior to the state’s May 17 primary, Republican state legislators filed an emergency appeal with the U.S. Supreme Court, asking to halt the state court’s order until SCOTUS could review the case. The court denied the request with Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissenting. In the dissent and in a concurrence by Justice Brett Kavanaugh, the justices stated that the independent state legislature doctrine was an important question for the court to resolve.
March 17, 2022: North Carolina House Speaker Moore filed a petition to the Court for a writ of certiorari.
June 30, 2022: The U.S. Supreme Court granted review of the case.
Seventy amicus briefs have been filed in the case, with 17 filed in support of the petitioners, 48 filed in support of the respondents, and five in support of neither party. An amicus curiae is a person or group who is not a party to a legal action, but has a strong interest in the matter and has petitioned the court to submit a brief offering relevant information or arguments.
If the court rules in favor of the petitioners, the power and authority to regulate federal elections would become more concentrated in state legislatures and with the federal judiciary in the event of appellate review. When the case was granted, Republicans controlled 54.1% of all state legislative seats nationally, while Democrats held 44.3%. Republicans held a majority in 62 chambers, Democrats held the majority in 36 chambers, and one chamber—the Alaska House of Representatives—was organized under a multipartisan, power-sharing coalition.
The U.S. Supreme Court on December 1 said it will hear oral arguments in a lawsuit filed by six states over the Biden administration’s plan to forgive up to $20,000 of federal student loan debt per borrower in February.
The announcement came after Solicitor General Elizabeth Prelogar asked the court on November 18 to lift the U.S. Court of Appeals for the Eighth Circuit’s pause on the plan. The appeals court initially blocked the plan on October 21 and extended the pause on November 14.
The six states (Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina) filed a joint lawsuit against the Biden administration on September 29. The states alleged the administration overstepped its executive authority under the HEROES Act. The states also argued that the Department of Education was legally required to collect student loans and could not stop collecting without congressional approval. They also alleged the administration’s forgiveness plan would harm their investments and reduce their tax revenues, which was, in their view, a sufficient basis to sue.
If the forgiveness plan survives court challenges, it would cancel $10,000 in student loan debt per person for individual tax filers making less than $125,000 or married filers with less than $250,000 in income. Pell Grant recipients are eligible to have an additional $10,000 forgiven under the plan.
Texas Attorney General Ken Paxton (R) sued the Biden administration July 14 after Department of Health and Human Services (HHS) Secretary Xavier Becerra released guidance July 11 requiring doctors to provide abortions in medical emergencies when “abortion is the stabilizing treatment necessary to resolve [the emergency] condition.” The guidance went on to say that “when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”
Paxton argued the guidance was too broad and that the Emergency Medical Treatment and Labor Act did not cover abortions. He said, “The Biden administration seeks to transform every emergency room in the country into a walk-in abortion clinic.”
Texas law prohibits all abortions unless a pregnancy “places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”
The HHS guidance came after the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization on June 24, overturning Roe v. Wade (1973) and ruling there is no constitutional right to abortion. Dobbs returned most abortion policy decisions to the states.
For more information on Dobbs and its effect on abortion policy, click here. To learn more about state responses to federal mandates, click here.
