The Supreme Court has officially wrapped up its first week of oral arguments for the 2022-2023 term. Two cases cases that especially stand out are Sackett v. Environmental Protection Agency and Merrill v. Milligan. The Sackett oral arguments seemed to suggest that the Court may be heading towards changing the standard used for determining whether the federal government has regulatory jurisdiction over an issue:
If oral argument was any indication, the justices recognize the need for greater regulatory certainty, but also recognize the difficulty in drawing a clear line to demarcate where "waters of the United States" end and non-federal waters or lands begin. Much of the argument focused on precisely this question, causing the justices to explore the meaning of the word "adjacent," as the Court previously upheld the EPA and Army Corps' authority over wetlands adjacent to navigable waters in United States v. Riverside Bayview Homes, perhaps the high-water mark of Court acquiescence to broad assertions of federal regulatory power under the CWA. Accordingly, the justices considered whether "adjacent wetlands" must be physically connected to navigable waters, must be neighboring to such waters, or must merely be nearby, and most seemed unconvinced with the answers they received from the advocates.
Over the course of the argument it became rather clear that a majority of the Court is unwilling to embrace Justice Kennedy's "significant nexus" test for federal regulatory jurisdiction. This is significant because the federal government sought to defend this test, as opposed to the more expansive tests urged by the EPA, Army Corps, and Justice Department in prior CWA jurisdiction cases. It seems the "significant nexus" test is simply too malleable and uncertain to constrain federal regulatory authority and provide landowners with sufficient regulatory certainty.
While the justices seemed unlikely to reaffirm "significant nexus" as the relevant test, it was not clear many were sold on the petitioners' proposed alternative, a variant of the test Justice Scalia proposed in his Rapanos plurality, which would generally require a continuous surface connection between wetlands-to-be-regulated and navigable waters. Chief Justice Roberts, in particular, seems surprised that the petitioners would advance a test that would effectively eliminate federal regulatory authority over wetlands with seasonal hydrological connections to navigable waters.
In Milligan, Justice Jackson's questioning took center stage—and not necessarily for a good reason:
A district-court decision by a three-judge panel finding such a violation and ordering a new map to be drawn was stayed by a 5–4 margin of the Supreme Court earlier this year. Alabama’s map made only minor changes to the previous district lines, and it contained one majority-black district (out of seven total), as had the last several maps stretching back decades. The question is whether the Voting Rights Act requires a second majority-minority district, a requirement which as Alabama argues “is virtually impossible” to satisfy “unless traditional principles” of district-drawing “yield to race-based line-drawing from the start.”
Justice Jackson’s position seems to be that line-drawing based on race is not only permissible but required under the law. Justice Sonia Sotomayor’s comments during argument suggest her agreement on that point.
But Jackson advanced a peculiar understanding of history. She asserted that the Framers adopted the 14th Amendment’s equal-protection clause and the 15th Amendment “in a race-conscious way.”
Finally, the Court announced that it will be taking up Gonzalez v. Google LLC. This case presents the Court with an opportunity to hand down a major ruling on Section 230:
The question presented in Gonzalez is whether Section 230(c)(1) of the Communications Decency Act immunizes interactive online providers (like YouTube) from liability when they make targeted recommendations of information provided by another information content provider (like ISIS), or only limits the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) concerning that information.
Thus far, the modern-day Roberts court is largely guided by textualism—faithfulness to the plain and ordinary meaning of words within the laws they interpret. So, the Gonzalez case provides a golden opportunity for the court to clarify exactly what the Communications Decency Act Section 230 shield covers and what it doesn’t.
Knowing that most Americans consume their news on digital devices , and knowing that the flurry of midterm elections will shortly be upon us, the stakes couldn’t be higher.
The 2022-2023 Supreme Court term is shaping up to be a consequential one!