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The Morning Dispatch: Previewing the SCOTUS Term
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The Morning Dispatch: Previewing the SCOTUS Term

The court will consider affirmative action, voting districts, and free speech cases.

Happy Monday! A cheating scandal has rocked the professional fishing world after two men competing in a tournament Friday were caught stuffing their fish with golf ball-sized weights and fish fillets to, er, tip the scales in their favor. 

Quick Hits: Today’s Top Stories

  • The National Weather Service warned central Florida to expect “major to record river flooding” this week in the wake of Hurricane Ian’s rainfall. Orlando officials on Sunday asked residents to limit water usage because heavy rainfall had damaged the sewer system, while nearby St. Cloud issued a voluntary evacuation order ahead of rising floods. At least 61 people have died in Florida because of Ian.

  • Venezuela released seven Americans Saturday—including five Citgo executives held for nearly five years—after President Joe Biden agreed to grant clemency to two nephews of Cilia Flores, Venezuela’s first lady, who had been sentenced in 2017 to 18 years in prison on charges of conspiring to smuggle cocaine into the United States.

  • Ukrainian President Volodymyr Zelensky said Sunday that Ukraine had retaken the eastern city of Lyman, a strategic logistics hub located in the Donetsk region—one of four provinces that Russian President Vladimir Putin announced on Friday that Russia had annexed after staged referendums. Also Friday, Zelensky announced he had signed an “accelerated” NATO bid, though it’s unclear whether a Ukrainian request to join NATO would receive the required unanimous approval from the 27 member states. Meanwhile, reporters and United Nations human rights officials have found evidence of at least 10 sites used for torture during Russia’s occupation of Izium, a city near Lyman that was liberated in September.

  • The Danish Energy Agency said Sunday that the Nord Stream leaks have been stopped and the undersea pipelines are no longer releasing natural gas into the Baltic Sea. Explosions damaged the pipelines in three separate places last week in what officials from several European countries said was an act of sabotage. 

  • Russian state-controlled gas giant Gazprom halted natural gas deliveries to Italy via Austria on Saturday, seemingly the latest example of Russia throttling down energy sales to Europe. Gazprom blamed the Austrian operator for refusing to “confirm the transport nominations,” while Austrian regulator E-Control said Gazprom didn’t approve routine contractual adjustments announced months ahead. Since Russia invaded Ukraine in February, Italy has increased gas imports from other suppliers including Norway and Qatar to prepare for a potential Russian gas cutoff, and Russia now accounts for less than 10 percent of Italy’s supply.

  • Iranian security forces reportedly clashed with students at Sharif University in Tehran Sunday amid the third week of protests over the death in police custody of Mahsa Amini—a young woman detained for allegedly violating Iran’s dress code. Iran’s crackdowns on protesters have killed at least 52 people, according to Amnesty International. Students and Kurdish shopkeepers went on strike Saturday.

  • The National Archives has informed the House Oversight Committee that it’s still missing presidential records from the Trump administration, despite the Federal Bureau of Investigation retrieving documents from former President Donald Trump’s Mar-a-Lago resort. “While there is no easy way to establish absolute accountability, we do know that we do not have custody of everything we should,” acting archivist Debra Steidel Wall wrote in a letter to the committee.

What We’re Watching on This Season of SCOTUS

(Photograph by Chip Somodevilla / Getty Images.)

It’s finally October, and we all know what that means: sweater weather, hot apple cider, and the start of a new Supreme Court term. We thought about devoting today’s TMD to photos of fall foliage but decided a preview of some of the biggest cases on the court’s docket might be more helpful.

Merrill v. Milligan: The one with the maps

About 27 percent of Alabama’s population is black, but the state’s seven new House districts—redrawn after the 2020 census—include only one majority-black district. Registered Alabama voters, the state NAACP chapter, and a local nonprofit have challenged the new map, arguing the state illegally diluted black voters’ power by spreading them out among the districts.

Alabama’s representation insists the state drew the map using “race-neutral” criteria and says plaintiffs need to prove that 1) the current map could only be the fruit of racial discrimination and 2) the state could create more majority-minority districts without using race as a primary criterion. Otherwise, according to the state’s arguments, a ruling in the plaintiff’s favor would amount to requiring Alabama to engage in “racial targets” and “race-based sorting” to draw district maps.

Moore v. Harper: The other one with the maps

North Carolina’s Republican-controlled legislature drew up a new congressional map that would likely give the GOP two more seats, and Democratic plaintiffs say it’s a political gerrymander that violates the state’s constitution. The state supreme court agreed and blocked the map, and the trial court in the case appointed three experts to draw a new map.

Republican state legislators didn’t like this end-run. They appealed to the Supreme Court, asking it to consider the “independent state legislature” theory, which holds that, constitutionally, only state legislatures have the power to set their states’ federal election rules —a state’s judiciary doesn’t get a veto. 

If SCOTUS agrees with that interpretation, it could chop down state courts’ ability to oversee voting laws and maps for federal elections, opening the door to more partisan voting rules. But SCOTUS could also issue a narrower ruling that simply blocks courts from redrawing maps themselves, even with the help of appointed experts.

Students for Fair Admissions v. President and Fellows of Harvard College (and v. the University of North Carolina): The ones with the long names

Students for Fair Admissions, Inc. has sued both Harvard University and the University of North Carolina in a bid to end affirmative action in college admissions.

In the first case, the plaintiff argues that Harvard’s “race-conscious” admissions process discriminates against Asian American applicants, admitting them less often than similarly qualified candidates of other races. Harvard’s legal team counters that the school’s policy matches SCOTUS precedent—the court held in 2003, for example, that the University of Michigan could consider race as part of its efforts to create a diverse student body.

But SCOTUS may now be looking to overturn that precedent. “I do expect the court to strike down Harvard’s affirmative action policy,” Adam White, a senior fellow focusing on American constitutionalism and the Supreme Court at the American Enterprise Institute, told The Dispatch. “The Supreme Court intended for affirmative action to no longer be necessary or recognized after 25 years. We’re not quite there yet in terms of time, but we’re getting close.”

The case against UNC is similar, but the plaintiffs also argue that the school’s admissions policy violates the Constitution because UNC is a public university and therefore subject to the 14th Amendment’s guarantee of equal protection.

303 Creative LLC v. Elenis: The one with the graphic designer

About four years ago, SCOTUS avoided deciding whether requiring a Colorado baker to make wedding cakes for same-sex couples violated his right to freedom of speech—it instead focused on state officials’ impermissible hostility toward the baker. Now that question is back at the high court’s door, this time featuring a graphic designer who says she’s happy to serve gay customers but has religious objections to building a wedding website for same-sex couples.

Bonus: The one with Florida and the tech titans 

Florida has asked SCOTUS to consider approving a law passed last year—and subsequently struck down in the courts—which limits how social media companies can moderate content in the state. SCOTUS hasn’t yet agreed to hear the case, but it seems likely to do so. Its ruling would have implications for a similar law in Texas.

The sunshine state argues that platforms are the modern version of a public square. According to Florida, that means the state can block tech companies from violating people’s First Amendment rights by shutting them out of that public square because of the content of their speech. Under this law, the platforms couldn’t remove any content from news outlets, and people could sue if they think moderation rules aren’t being consistently applied—accusing Twitter of unfairly booting conservatives, for example. The law could also mean fines for social media companies that ban political candidates.

As oral arguments kick off today, we’ll be watching for signs of how the court will rule on various cases, of course—but also for hints of how the justices are thinking about recent accusations of politicization of the court. After several hotly debated decisions last term—most notably the end of Roe v. Wade—the court’s popularity has taken a hit. A Gallup poll released Thursday found 58 percent of Americans disapproved of the job SCOTUS is doing, up from 53 percent in late 2021 and the highest disapproval rate since Gallup started asking the question in 2000. 

Justice Elena Kagan has warned repeatedly about the risk of courts becoming politicized, but others seem less concerned. “The court has always decided controversial cases, and decisions always have been subject to intense criticism, and that is entirely appropriate,” Chief Justice John Roberts said in September. “I don’t understand the connection between opinions that people disagree with and the legitimacy of the court.”

“A lot of the criticism of the court’s legitimacy is basically a heckler’s veto,” White said. “You now have waves of Democrats and progressive activists denouncing the court as illegitimate and then pointing to complaints about the court’s legitimacy as proof of their own accusations.”

But that doesn’t mean the court’s justices can’t help shore up trust in the institution. “The best thing the court can do is first to act collegially,” White argued. “Decide cases in good faith and decide cases, whenever possible, on narrow grounds with broad majorities.”

Worth Your Time

  • For The Atlantic, Yair Rosenberg considers whether his favorite former anti-Semite would have been able to change if he’d been born in the age of Twitter. “Critics of forgiveness correctly argue that it can entail real costs when improperly bestowed: Insincere offenders can take advantage of society’s grace to perpetuate their abuse,” Rosenberg writes. “This is a real concern, and underscores the need for accountability. But erring too far in the opposite direction carries a steep price as well … After all, it is rarely the powerful who are permanently penalized by social media’s insatiable inquisition. Whether they are forgiven or not, they will always have another podcast, TV show, or Substack. Rather, it is the confused teenager raised on the prejudices of his peers who is most hurt by our collective resistance to granting second chances. When we provide no path for a person to progress beyond their past, we prevent them from reaching their potential, and risk locking them into a life of moral mediocrity.”

  • American citizens Alex Drueke and Andy Tai Huynh traveled to Ukraine to fight against Russia’s invasion. They were captured and held for months before their release in a recent prisoner exchange. The Washington Post reports on their captivity. “What followed was an excruciating, often terrifying 104 days in captivity,” reporter Dan Lamothe writes. “They were interrogated, subjected to physical and psychological abuse, and given little food or clean water, Drueke and Huynh recalled. Initially, they were taken into Russia, to a detention complex dotted with tents and ringed by barbed wire, they said. Their captors later moved them, first to a ‘black site’ where the beatings worsened, Drueke said, and then to what they called a more traditional prison run by Russian-backed separatists in the Donetsk region of eastern Ukraine.  … Each man lost nearly 30 pounds during the ordeal, they said, suffering injuries most evident in the red and purple welts still present where their wrists were bound.”

Presented Without Comment

 Also Presented Without Comment

Toeing the Company Line

  • Saturday’s Remnant/Ruminant saw Jonah combining current events, history, and philosophy to theorize about the differences between German and Italian fascism, the conservative movement’s roots in American exceptionalism, and more. There’s also a bit about the consequences of rat incest.

  • In the story of Greyfriars Bobby—a Scotland terrier who overcame myriad obstacles to keep vigil at the grave of his master—Peter Meilaender finds a hint of why we love stories of animal loyalty. Also on the site this weekend, Timothy Sandefur revisits the hall of fame rock band Creedence Clearwater Revival.

  • Rice University sociology professor Ruth López Turley joins David and Curtis on Saturday’s Good Faith to talk about educational equity and what the phrase “pull yourself up by your bootstraps” means in a world where not everyone has those metaphorical boots.

  • In Sunday’s French Press, David argues states are taking culture war fights too far by disrupting parent-child relationships. “States have many ways to express their values, and they can and should strictly limit access to permanent, life-altering medical procedures for minors,” he writes. “But they can express their values and pass their regulations while still remembering a singular moral and constitutional command—leave loving families alone.”

  • As we learn more about the devastation of Hurricane Ian, Price goes past the partisan narratives to report on the nuanced answer to a question underlying many weather headlines—are hurricanes getting worse?

  • For Friday’s G-File, Jonah examines the U.S.’s habit of electing the elderly: “Add up the ages of Biden, Trump, Nancy Pelosi, and Mitch McConnell, and the most powerful politicians in our country right now are older than the United States itself.” Plus: What if Biden pardoned Trump in exchange for Trump agreeing not to run again?

  • Our illustrious managing editor Rachael Larimore will be taking questions for this month’s mailbag. Curious about her life in the Ohio bureau, the evolution of journalism in the internet age, being a “boy mom,” or craft beer? Subscribers can ask them here.

  • Haley covered Congress’ last-minute wrangling before a recess in Friday’s Uphill (🔒), including averting a government shutdown and debating how to protect national security as American companies invest abroad.

  • On the site today, Nick Catoggio offers a midterms vibe check, Kevin Williamson breaks down Say’s Law—the economic concept that supply produces demand—and Chris Stirewalt presents a philosophical defense of sports fandom.

Let Us Know

Which Supreme Court case’s outcome are you most interested in this term?

Esther Eaton is a former deputy editor of The Morning Dispatch.