Policy Matters: SCOTUS Cases & Considerations
This edition of Policy Matters looks at key cases in the 2022-2023 term of the Supreme Court of the United States (SCOTUS), which concludes at the end of June. As with last year’s term, blockbuster cases are on the docket – and there have already been some notable decisions.
In May, the Court declined to hold tech companies liable for content posted on social media sites; lawmakers, academics and activists had argued that the companies have been legally shielded from consequences of disinformation, discrimination and violent material.
On June 8, two conservative justices joined the Court’s three liberal justices in rejecting a Republican-led effort to weaken the Voting Rights Act; the ruling could affect control of the closely divided House of Representatives because it requires new congressional maps to be drawn in Alabama and Louisiana.
Several of the pending rulings may have far-reaching social impact and implications for the business community:
- Two matters involving affirmative action policies in higher education
- Another case related to democracy and redistricting, including the power of state legislatures
- A case that considers whether businesses may, based on religious beliefs, refuse creative services to LGBTQ+ customers
- A dispute related to employer accommodations for religious observations
Below are summaries of key pending cases and overarching communications guidance.
SCOTUS CASES TO WATCH
The following cases may involve stakeholder and communications implications:
In previous cases, the Court has affirmed the right of colleges and universities to consider race as a factor in student admissions, but the Court’s conservative majority have questioned the legality of this practice. If the Court overturns precedent, it is expected to precipitate further criticism – and legal challenges – around organizations’ diversity, equity and inclusion (DEI) policies and practices. This could have future consequences for efforts to recruit, hire and retain diverse employees.
In the wake of the 2020 presidential election, this case considers state legislatures’ authority in congressional redistricting and elections rules and the oversight of state courts. Eliminating the role of state courts would be a major shift in election law and some worry it would undermine voter protections and exacerbate disenfranchisement – consequences that motivated corporate engagement around voting rights in recent years.
This case will determine whether the First Amendment protects business owners who, based on their religious beliefs, decline to provide creative services for LGBTQ+ customers. The Court considered a similar issue in 2018, in a case involving a Colorado baker and a gay couple but decided the case on a narrower issue. Amid an already highly charged Pride month in the U.S., this case could drive corporate and employee activism.
Two other cases on which the Court will rule this month may have operational ramifications for organizations and could influence the financial lives of millions of Americans:
The Court will determine the standard for accommodating employees’ religious rights in the workplace in a dispute over whether an evangelical Christian must work on Sundays.
This case will determine whether President Biden has the authority to forgive some or all federal student loan debt for as many as 40 million borrowers.
STAKEHOLDER CONSIDERATIONS AND COMMUNICATIONS RECOMMENDATIONS
Reaffirm the company’s values
An organization’s expressed commitment to diversity, equity and inclusion (DEI) is not contingent upon the Supreme Court’s decisions. That commitment can be reiterated to stakeholder audiences, particularly as it relates to the cases regarding affirmative action, voting rights, serving LGBTQ+ customers and providing religious accommodations to employees. For companies whose brands and reputations are strongly associated with these values, this could also be a moment to assert a leadership position and make a move that garners attention. Such actions may draw fire, but certain companies may feel the benefits outweigh the risks.
Maintain a sensitive environment
The workplace continues to represent one of the last spaces in society where many employees avoid discussing sensitive topics to maintain civility. Be mindful that diversity of thought allows for different viewpoints on all SCOTUS decisions – and any communications relating to rulings should focus on business and stakeholder impact and not veer into opinion or politics.
Conduct scenario planning
In preparation for SCOTUS rulings, organize and partner with legal counsel, human resources and other stakeholders to consider how they could impact your organization’s ways of working. While specific scenario planning must await the nuances of each ruling, organizing now will inform response strategy in case the decision prompts immediate stakeholder reaction.
Consider the impacts of the ruling(s) on critical stakeholders, especially employees
The Court’s rulings may not have immediate or obvious implications for your client’s business or operations, but they may prompt strong engagement among key audiences – internal and external – and as it relates to affirmative action, legal challenges in the private sector.
Prepare communications
Take the time now to identify key audiences and develop potential communications approaches for them. Prepare reactive messages for leaders in management and stakeholder relationship roles.
