NC College Admission and Congressional Maps Take Center Stage at SCOTUS This Fall
By Dan Gibson 
October and December will be big months for North Carolina at the U.S. Supreme Court. The Justices will hear two cases involving North Carolina in upcoming months.
On Halloween, the Court will face the specter of race-conscious university admissions. Some justices may be spooked by the ghosts of Bakker, Grutter and Fisher, the Court’s earlier decisions on considering race when deciding which undergrads to admit. The challengers in Students for Fair Admissions v. Chapel Hill directly ask the Court to exorcise Grutter because it has had “significant negative consequences” and is “a jurisdictional outlier.” “[E]xplicit racial preferences” always violate the equal protection clause, it argues, regardless of their results. UNC responds that it “needs race-conscious admissions to achieve diversity,” which is “critical to its mission.”
And it isn’t just the arguments that are interesting in Students for Fair Admissions. The procedure is paranormal too. Supreme Court petitioners normally have to go through the federal courts of appeals. But, the Court can — and did here —review a case before the court of appeals decides it. The Court had originally consolidated the case with Students for Fair Admissions v. Harvard (which may be one reason the Court granted certiorari). After Justice Jackson joined the Court, it split the cases so she could recuse herself from Harvard but participate in UNC. Between precedential poltergeists and paranormal procedure, the arguments on October 31 promise to be interesting. Whether the case turns out to be a thriller or a horror remains to be decided.
On December 7, the Court will consider Moore v. Harper. This case is more complicated than the politics at your family’s Thanksgiving dinner. North Carolina’s General Assembly drew new congressional maps after the 2020 Census. A state trial court rejected those maps and appointed special masters to draw new ones. Now, North Carolina is no stranger to having its election maps struck down and having to go back to the drawing board — but a judge has never before appointed an outside expert to draw the maps themselves. Moore says this violates the text of the U.S. Constitution’s Election’s cause, which says the “manner of holding elections . . . shall be prescribed in each State by the Legislature thereof.” The courts and any experts they appoint are not the legislature, so, Moore argues, they can’t draw election maps. The Supreme Court has never held as much, and Harper asserts upholding Moore’s theory would “upend this nation’s federalist system” and “threaten to nullify dozens of state constitutional provisions.” When a state legislature cannot agree on congressional maps, the Supreme Court has allowed courts to draw the maps. Harper says that’s what happened here: the General Assembly didn’t act in time, so the courts had to act. And act they will on December 7, when the Supreme Court hears this case.
I’ll be livestreaming both arguments at my office. If you come, bring some popcorn and Halloween candy.