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October 24, 2023 - MoFo Diversity, MoFo Women

From Dobbs to Biden v. Nebraska – A Look at the 2022-2-23 SCOTUS Terms


On September 12, 2023, MoFo litigation partner and co-chair of the Employment & Labor Group and the Women’s Strategy Committee, Tritia Murata, along with Jamie Levitt, managing partner of MoFo’s New York office, hosted a panel discussion with some of the nation’s leading Supreme Court and constitutional scholars: Dahlia Lithwick, Melissa Murray, and Kenji Yoshino, about the legal implications of the Supreme Court’s most recent cases. The panelists broke down the decisions of the Supreme Court’s six-justice conservative supermajority which ended race-conscious college admissions, shelved President Biden’s student loan forgiveness program, and created a free speech exception for to a state anti-discrimination law. Collectively, these decisions raise important issues as it relates to diversity and inclusion, and they came on the heels of the Court’s controversial landmark decision in Dobbs reversing Roe v. Wade just a year earlier. 

To start the program, Tritia began by revisiting Dobbs v. Jackson Women’s Health, discussing with the panelists the implications of the decisions that have since had significant effects across jurisdictions, including Alabama announcing it will prosecute anyone who assists a pregnant person crossing state lines in search of an abortion, a lawsuit filed in attempt to remove FDA-approved abortion medication Mifepristone from the market, and numerous other new, creative ways to attempt to block abortions. Dahlia Lithwick noted that, the only thing seemingly clear from the reversal is that uncertainty remains across the board, not only for patients and providers, but also for society as a whole, given that in the Dobbs decision the Court declared that the Ninth Amendment’s unenumerated rights will only be respected if they are “deeply rooted in this nation’s history and traditions.”  

Next, the conversation segued from Dobbs to the deeply divided 2023 affirmative action cases, SSFA v. President and Fellows of Harvard and SSFA vs. University of North Carolina (UNC). During this part of the program, the panelists noted that challenges to affirmative action have been around for years, and the Supreme Court’s decision to end race-based affirmative action policies in American college admissions marked the first legal victory, by the group Students for Fair Admissions (SFFA). Melissa Murray highlighted that the court’s analysis into Harvard’s admission practice [was] an infirmity that could have been corrected without removing race-based admissions altogether.

The conversation then shifted from the affirmative action cases to 303 Creative, which was decided one day later. In discussing the Supreme Court’s ruling which found that the creation of wedding websites for same-sex couples by a Christian web designer violated her free speech rights under the First Amendment, Kenji Yoshino discussed the similarities and distinctions of 303 Creative against the 2018 case Masterpiece Cakeshop. Kenji articulated that the free speech exemptions are more dangerous because of two factors: they can be asserted against anyone, and they can be asserted by anyone.

Finally, the panelists discussed the case of Biden v. Nebraska, which rejected the Biden administration’s debt forgiveness program by interpreting the statutory text as well as by applying the major questions doctrine. Dahlia noted that while the major questions doctrine was relevant to the Court’s opinion as Chief Justice Roberts invoked it by name for the first time, actually has no constitutional or statutory roots.

Tritia wrapped up the discussion by asking the panelists their opinions of the Supreme Court’s new session, which reconvenes in October, and which includes pivotal cases on gender discrimination and gun rights. In closing, the panel reflected on MoFo alumni Justice Ketanji Brown Jackson’s rookie year with the Supreme Court, and their conviction that she has already made a real difference, especially towards issues impactful to diversity and inclusion.

Listen to a recording of the panel discussion.