October 2023 Legislative/Policy Update

The words “Equal Justice Under Law” are written above the main entrance to the Supreme Court Building. These words express the primary responsibility of the Court as the highest court in the land for all cases and controversies arising under the Constitution or laws of the United States, serving as the ultimate guardian and interpreter of the Constitution and therefore, playing the greatest role in ensuring the promise of equal justice under the law for the American people. 

Supreme Court decisions are crucial in shaping public policy for several reasons and, as we’ve seen in recent years, can create huge shifts in the policy landscape as we have come to know and understand it. Supreme Court rulings establish legal precedents that lower courts must follow. This shapes the interpretation and application of laws, setting the standard for future cases. The Court’s decisions often clarify the meaning of the U.S. Constitution, influencing the scope and limits of government power. The Court can protect individual and civil rights by striking down laws or government actions that violate constitutional guarantees, such as free speech or equal protection, or conversely, they can hold that there is no constitutional guarantee to such rights which then allows laws and government actions regulating or restricting those “rights” without impediment. Supreme Court decisions can also directly impact public policies by upholding, striking down, or modifying laws affecting issues like healthcare, immigration, and environmental regulations. 

The Supreme Court has played a pivotal role in advancing equity throughout its history. Through landmark decisions such as Brown v. Board of Education, Loving v. Virginia, and Roe v. Wade, the Court has addressed issues of racial segregation, marriage equality, reproductive rights, and more, significantly impacting the pursuit of social justice. These rulings have reshaped American society by upholding principles of equal protection under the law, paving the way for greater inclusivity and equality. As we have witnessed in recent years, the Court’s decisions are not always uniformly in favor of equity. Ideological divides among the justices can lead to contentious decisions, and the Court’s interpretations can and have evolved over time. The significance of Supreme Court decisions in advancing equitable public policy depends on the specific cases, broader societal factors, and more importantly than ever, the composition of the Court. 

As state legislators across the South are preparing to pre-file their legislative measures for the 2024 legislative sessions, we decided to focus this month’s update on two cases on the U.S. Supreme Court’s October 2023 docket that have the potential to impact equity and fairness in this country. 

Acheson Hotels, LLC v. Laufer – Laufer has been a prominent litigant in the legal landscape relative to enforcement of the Americans with Disabilities Act (ADA), often serving as a “tester” for individuals with physical disabilities and vision impairments. Laufer’s role as a tester involves evaluating businesses’ compliance with the ADA, a crucial piece of legislation aimed at ensuring accessibility for all. “Testers” are instrumental in safeguarding civil rights by covertly uncovering instances of discrimination and bias, particularly within the framework of civil rights legislation. Their significance lies in their ability to identify subtle or concealed discrimination that might otherwise go unnoticed, thus providing vital, concrete evidence to support legal actions. Through their work, testers hold individuals and organizations accountable for their actions, initiate legal proceedings, raise public awareness about civil rights violations, and contribute to policy development. Their investigations often serve as a catalyst for positive change, encouraging businesses and institutions to adopt more inclusive and fair practices, and ultimately, their efforts help protect and promote the civil rights of vulnerable and historically marginalized communities while challenging systemic discrimination within various sectors of society. Testers play a pivotal role in ensuring equal treatment and upholding the principles of nondiscrimination in our society.

In this case, her claim centered on a hotel’s failure to provide essential information regarding its accessibility features on its website, a requirement mandated by the ADA. The district court initially dismissed Laufer’s lawsuit, citing her lack of legal standing. The rationale behind this decision was her absence of concrete plans to visit the hotel, leading to the perception that she had not suffered any injury due to the website’s lack of information. However, the U.S. Court of Appeals for the First Circuit took a different stance, overturning the district court’s ruling. Their verdict hinged on the belief that Laufer’s absence of immediate intent to book a room at the hotel should not negate the very real injury she had suffered. This case holds significant implications for the interpretation of standing in ADA-related lawsuits and highlights the ongoing battle for accessibility and equal rights. 

  • Question for the Court: Does an ADA “tester” have standing to challenge a hotel’s failure to provide accessibility information on its website, even if she has no plans to visit the hotel?
  • Why It’s Relevant Advancing Equity: “Testing” is also used to enforce fair housing laws. The NAACP and other fair housing organizations have filed amicus briefs in this case. The standing of “testers” has been an essential tool in enforcing civil rights laws. If the Supreme Court rolls back this decision, it could be detrimental to the ability to address discrimination and segregation beyond just ADA and have a harmful impact on protected classes across a range of statutes, such as employment and housing. Preserving standing for testers of civil rights laws is vital for upholding the principles of equality, justice, and nondiscrimination. It enables the legal system to address and rectify instances of discrimination, promotes accountability, and ultimately contributes to a more inclusive and fair society.

Alexander v. South Carolina State Conference of the NAACP – Following the 2020 Census, South Carolina’s legislature, controlled by Republicans, introduced a fresh congressional map. This map entailed the relocation of tens of thousands of Black voters to a different district, effectively securing the district as a safe seat for Republican candidates.

In response, the South Carolina State Conference of the NAACP filed a lawsuit, leading to a three-judge panel’s determination that the district amounted to an unconstitutional racial gerrymander. In an attempt to challenge this ruling, the legislators took the case directly to the Supreme Court, contending that the map was, in fact, a political gerrymander (a practice deemed permissible) that had merely resulted in a racial impact. South Carolina’s main contention is that the state’s Republican-controlled Legislature based its decisions on partisanship rather than race when they redrew the congressional map following the 2020 census. During oral arguments and in their legal briefs, the state consistently argued that their primary motivation for relocating more than 30,000 Black voters from Charleston County out of the state’s 1st Congressional District was to strengthen the district’s position as a reliable Republican stronghold. They emphasized that their actions were politically motivated rather than racially driven.

  • Question for the Court: Does South Carolina’s redistricting map, which has the effect of moving tens of thousands of Black voters to a different district, constitute an impermissible racial gerrymander, even if the legislature’s purported intent was merely a political gerrymander?
  • Why It’s Relevant to Advancing Equity: This is the Court’s first racial gerrymandering case since its landmark decision in 2019 on political gerrymandering Rucho v. Common Cause. Political gerrymandering and racial gerrymandering are two distinct practices related to the manipulation of electoral district boundaries in the context of elections, but they have different primary objectives and legal considerations. Political gerrymandering is driven by partisan political interests and seeks to manipulate district boundaries to favor one political party, while racial gerrymandering involves manipulating district boundaries based on the race or ethnicity of voters, aiming to either protect or undermine the voting power of specific racial or ethnic groups. The legal status and acceptability of each type of gerrymandering vary, with racial gerrymandering generally facing greater legal scrutiny and restrictions. If the Court embraces South Carolina’s arguments, it could become much more difficult for plaintiffs to provide their claims and prevail in racial gerrymandering cases. This would in turn make it more difficult for voters to fight unfairly drawn maps in the future.