C-SPAN Cameras on the House Floor

When the 118th Congress convened on January 3, what is usually a quick procedural vote for speaker turned into a contentious five days of voting on the floor of the House of Representatives.1 The frustrations, negotiations, and heated debates were on display on C-SPAN. Since the House could not adopt rules without a speaker—members-elect could not even take their oaths of office—C-SPAN cameras had a period of unprecedented access to roam the chamber, using three cameras to broadcast the proceedings without the usual constraints of House rules.

C-SPAN’s videos went viral online and gave viewers a previously unseen look at what happens on the House floor. Cameras captured raw reactions, candid conversations, and revealing body language, along with tension, humor, and boredom. We saw Representative George Santos, R-N.Y., alienated by his peers in the wake of reports that he fabricated his biography.2 Representatives Alexandria Ocasio-Cortez, D-N.Y., and Paul Gosar, R-Ariz., polar opposites on the political spectrum who share a hostile relationship, were engaged in a friendly conversation.3 And Representative Mike Rogers, R-Ala., had to be forcibly held back during confrontation with several of his colleagues.4 These were scenes rarely seen outside the chamber, as they occurred out of frame of the cameras traditionally used in the House.

Representative Mark Pocan, D-Wis., said C-SPAN’s coverage was “worthy of an Oscar.”5 Comedian Jon Stewart called it “the best season … ever.”6 Now that Representative Kevin McCarthy, R-Calif., has been elected speaker and the House has adopted its rules, C-SPAN’s cameras are no longer allowed in the chamber.7 So, should C-SPAN cameras be allowed greater access to the House floor?

Cameras in the House of Representatives

The Cable-Satellite Public Affairs Network (C-SPAN) was created in 1979 as a nonprofit public service from cable providers in cooperation with Congress. This marked the first time cameras were installed in the House and video was regularly broadcast. Previously, cameras were only occasionally allowed in the House for special occasions, the first live broadcast being the start of the 80th Congress on January 3, 1947.8

C-SPAN offers 24-hour programming and covers both chambers of Congress, namely their public committees, floor debates, and final votes. It aims to “promote open and transparent dialogue between the public and their elected and appointed officials—and those campaigning for office.”9 C-SPAN also covers the executive and judicial branches, though it does not have access to the Supreme Court chamber.

Although C-SPAN taps into the House feed and broadcasts it nationally, it does not control the cameras used to shoot the footage. Those are owned and operated by the federal government. According to House rules from when cameras were first installed, they are restricted to “head-on shots of members at the podium and committee tables and they are prohibited from taking reaction shots or shots of the chamber.”10

Two angles typically broadcast by C-SPAN from government-operated cameras: a wide shot showing the full speaker’s dais and a medium shot of a representative delivering a speech.

Additional cameras from C-SPAN and the press pool (ABC, CBS, NBC, CNN, and Fox) are allowed on the floor only for major events like the State of the Union and joint sessions of Congress.11 They are, however, routinely allowed outside the chamber—throughout the Capitol building, on the grounds outside, and nearby in congressional office buildings.

Resolutions and Requests for Greater Access

Representative Pocan introduced the Leave the Cameras On Resolution, calling on the House to allow C-SPAN to operate its own cameras and film freely within the chamber, just as it did that first week of January.12 The resolution has been cosponsored by more than 20 House Democrats.13 “If this truly is the People’s House, Americans deserve to see the inside of that House,” said Representative Pocan. “There’s nothing wrong with more transparency and sunlight. This change will hopefully encourage more Americans to be interested in government and embolden some to even run for elected office.”14

A similar amendment to the rules was introduced by Representative Matt Gaetz, R-Fla., who was one of 21 House Republicans whose objections to McCarthy drew out the speaker vote. “Last week, America watched in real time how our government is functioning,” said Representative Gaetz. “Broader transparency in Congress is a net positive, and we need more of it.”15 His amendment would allow at least four C-SPAN cameras in the chamber, updating what he calls the “antiquated and a little boomer-fied” camera angles that have not changed in decades.16

Representative Chip Roy, R-Texas, praised how the cameras showed the “inner workings” of government and provided a “good thing for our democracy.”17 Supporters like him argue that viewers gain invaluable insight from coverage that highlights bipartisanship and relationship-building—key tenets of Congress’ work. Elected officials would also be held accountable for what they do and how they interact with each other, as their actions would be visible to the public eye.

READ C-SPAN’s letter to Speaker McCarthy: “Request for Ongoing Access to House Chamber”

C-SPAN has previously asked Democratic and Republican speakers of the House for greater access to the House floor, but its requests have been rejected.18 Robin Newton, a spokesperson for C-SPAN, drew upon the compelling coverage of the speakership to make the case for broader access. “Allowing C-SPAN into the House chamber allowed Americans to get a better understanding of how Congress operates, learning from different, rarely-seen camera angles,” she said. “We certainly hope to gain greater access to at least key legislative proceedings.”19 Similar request have also been made to Senate leadership.

Are More Cameras Actually Needed?

Critics say that additional cameras are not needed, as there is already an abundance of congressional coverage, both inside and outside the chambers. Would more cameras actually draw in more viewers? More cameras do not necessarily mean more content, or even more care for what is being streamed.

Right now, the only cameras within the House are owned and operated by the federal government. If C-SPAN is permitted their own cameras, would other news organizations be allowed the same privilege? What would the criteria be for determining who is granted access? Could the next Democratic speaker allow MSNBC exclusive access or a Republican speaker allow only Fox News in the chamber?

In showing Congress “behind the scenes,” viewers would get a glimpse of the mundane and unflattering sides of government. Lawmakers could be seen having private conversations, yawning, or texting on their phones in the background. There is concern that these types of “gotcha!” moments could be manipulated and disseminated to make someone look bad and serve a political purpose.

There is also the question of how representatives would react to constantly being on camera. Would it lead to better behavior or more disruptions and disorder? Members might turn to stunts and spectacles to play to a base audience, gain attention, and go viral online for attention or fundraising. A push for greater transparency could even backfire and lead to more secrecy if members decide to conduct their business—deals, negotiations, and conversations—in more private settings away from camera lenses.

Although action has yet to be taken on these resolutions and requests, a spokesperson for Speaker McCarthy said he is “exploring a number of options to open up the People’s House to ensure a more transparent and accessible Congress for the American people.”20

Discussion Questions

  1. Do you think the House should allow C-SPAN greater camera access on the chamber floor? What about the Senate?
  2. What are the most convincing reasons for and against this proposed change?
  3. Have you followed any of C-SPAN’s congressional coverage on television, radio, or online?
  4. Have you followed any of your local government proceedings (such as city council meetings, candidate forums, or school board meetings) on television, radio, or online?
  5. There is bipartisan consensus that transparency is “good for democracy.”21 Besides increasing camera access, what changes or reforms do you think Congress could institute in order to increase transparency and build trust with constituents?

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: C-SPAN / WVXU
[1] CNN: https://www.cnn.com/2023/01/06/politics/mccarthy-speaker-fight-friday/index.html
[2] Newsweek: https://www.newsweek.com/george-santos-sat-alone-house-speaker-vote-kevin-mccarthy-video-1771255
[3] Aaron Rupar via Twitter: https://twitter.com/atrupar/status/1610351410331123713
[4] New York Times: https://www.nytimes.com/2023/01/07/us/politics/house-floor-confrontation-gaetz-rogers.html
[5] Representative Mark Pocan via Twitter: https://twitter.com/RepMarkPocan/status/1612554303213916182?s=20&t=ObGkruoA9H9Zn2gnFvO8wA
[6] Jon Stewart via Twitter: https://twitter.com/jonstewart/status/1610705363451494426?s=20&t=tQ-5Drvd0C9K_TkDkzS8qg
[7] U.S. Congress: https://www.congress.gov/bill/118th-congress/house-resolution/5
[8] House of Representatives: https://history.house.gov/Exhibitions-and-Publications/Electronic-Technology/Television/
[9] C-SPAN: https://www.c-span.org/about/history/
[10] C-SPAN: https://static.c-spanvideo.org/assets/documents/letters/CSPANLettertoBoehnerNov2010.pdf
[11] C-SPAN: https://static.c-spanvideo.org/assets/documents/letters/Letter%20to%20Speaker%20Pelosi%202007.pdf
[12] Website of Representative Mark Pocan: https://pocan.house.gov/sites/pocan.house.gov/files/documents/Leave%20The%20Cameras%20On%20Resolution%20Text.pdf
[13] Website of Representative Mark Pocan: https://pocan.house.gov/media-center/press-releases/pocan-introduces-the-leave-the-cameras-on-resolution
[14] Website of Representative Mark Pocan:https://pocan.house.gov/media-center/press-releases/pocan-introduces-the-leave-the-cameras-on-resolution
[15] Miami New Times: https://www.miaminewtimes.com/news/rep-matt-gaetz-wants-more-tv-camera-access-on-house-floor-for-c-span-16099974
[16] Fox News: https://www.foxnews.com/politics/gaetz-introduces-amendment-bring-c-span-cameras-back-house-floor
[17] The Hill: https://thehill.com/homenews/sunday-talk-shows/3804675-mccarthy-holdout-calls-restriction-free-c-span-cameras-during-speaker-vote-a-good-thing/
[18] C-SPAN: https://www.c-span.org/about/letters/
[19] Yahoo Finance: https://finance.yahoo.com/news/why-video-house-chamber-look-225050953.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAC08po-6M1lBQ0jdg-78lZ29WXzRTIjZ6Fyvm_e0G__jY60DfTPF271bXQDksK0WSxVOZjgn8E8c9w99cS7TR9Rl3oga81ktv3NgR00FRMRtzSassSK-Wz1Lpc5LIg-8wXsu-3jfVcxtgqIk1Er_asQ9gFrh1Ev8o-LMFUjgDPhi
[20] Deadline: https://deadline.com/2023/01/c-span-house-congress-kevin-mccarthy-1235215263/
[21] The Hill: https://thehill.com/homenews/media/3806751-house-democrat-planning-legislation-to-allow-c-span-cameras-free-range-in-chamber/


A New Rule Results in Cost-Of-Living Reimbursement for House Members

An under-the-radar rule change proposed by Democrats in the House of Representatives in the waning days of 117th Congress could potentially increase members’ yearly compensation. The provision, approved by the House Administration Committee, would allow reimbursement for a number of living expenses, including lodging, food, and travel in Washington, D.C.

How Much Do Members of Congress Get Paid? How Is this Salary Determined?

Since 2009, the annual salary of a member of Congress is $174,000. Due to the additional responsibilities tied to their jobs, members in congressional leadership positions receive a higher salary. The speaker of the House receives $223,500 annually, and the Senate president pro tempore (the second-highest-ranking official in the Senate) receives $193,400.1 These salaries are determined by provisions in laws, most recently the Ethics Reform Act of 1989. The Bureau of Labor Statistics determines year-to-year salary increases. However, Congress has consistently voted down these specific increases, staving off potential political backlash from taxpayers for over a decade.

What Does This Compensation Change Mean? How Was the Decision Made?

Last week, members and staffers were notified via email of the change first proposed by the bipartisan House Select Committee on the Modernization of Congress. The rule was passed unanimously by the committee in December 2022. However, this type of action is not subject to debate on the House floor and was only included in a narrowly publicized final report. According to the New York Times, individual members could be reimbursed up to about $34,000 this year. If each of the 440 current members and delegates requested the maximum amount allowed by the rule change, the costs would total about $15.1 million.2

Why Was This Decision Made? What Is the Potential Impact?

The report justified the compensation change, stating: “Unlike their counterparts in the executive branch and private sector, members do not receive a per diem or reimbursement for their out-of-pocket living expenses when they are at work in Washington.”3 The report conceded that $174,000 is far beyond the average American income, but it included the defense that members must maintain homes in Washington, D.C., as well as in their local districts.

During a 2022 committee hearing, former Representative Gregg Harper, R-Miss., testified that he had to end his congressional service because he could not afford to serve and provide care for his son, who had a rare medical condition.4 Although this is a single experience, it does echo a growing salary issue for rank-and-file members of Congress. Washington, D.C., boasts some of the highest cost of living in the nation. As of January 2023, the average cost of rent for a studio apartment is upwards of $2,300.5

Supporters of the plan argue that it would broaden who could afford to serve in an elected position in Congress. In an effort to address growing costs and provide a living wage to Capitol Hill staffers, $35 million was added to members’ annual office budget. However, any costs that members incur under this new rule would be taken from that budget and, possibly, the pockets of congressional staff.

In an interview with the Washington Examiner, former Representative Mo Brooks, R-Ala., was critical of the new rule giving House representatives cost-of-living pay. ”You can have a reasonable public policy debate on whether congressmen should be paid more or less. … It’s the people’s money. It’s the people’s business,” he said. “Any pay raise or improvement and compensation package ought to be done in the public arena. And this one was not.”6

Discussion Questions

  1. Do you agree with the compensation rule change? Why or why not?
  2. What are the arguments for reimbursement? Why do you think they are valid or invalid?
  3. Do you believe that congressional members are compensated fairly for their service? Why or why not?
  4. Do you believe that salary transparency is important for those who serve in elected positions? Explain your answer.

As always, we encourage you to join the discussion with your comments or questions below.


Featured Image Credit: AP Photo/Alex Brandon
[1] Congressional Institute: https://www.congressionalinstitute.org/2019/02/21/how-much-do-members-of-congress-get-paid-2/
[2] New York Times: https://www.nytimes.com/2023/01/12/us/politics/congress-pay-raise.html
[3] Final Report of the Select Committee on the Modernization of Congress: https://www.govinfo.gov/content/pkg/GPO-CRPT-117hrpt646/pdf/GPO-CRPT-117hrpt646.pdf
[4] Pathways to Congressional Service: https://www.govinfo.gov/content/pkg/CHRG-117hhrg48600/html/CHRG-117hhrg48600.htm
[5] Renthop.com: https://www.renthop.com/average-rent-in/washington-dc
[6] Washington Examiner: https://www.washingtonexaminer.com/news/house/congress-reimburse-expenses


The Supreme Court Weighs the First Amendment and Minority Rights

The case of a Christian website designer from Colorado who opposes same-sex marriage reached the Supreme Court on December 5. Because the Court said it would only address freedom of speech issues, the hearing pitted concerns over discrimination against freedom of artistic expression.1

Why Did This Case Reach the Supreme Court?

Lorie Smith wants to expand her web design business (303 Creative LLC) to include wedding websites, which she says she has dreamed of doing since childhood.2 Smith has religious objections to same-sex marriage and wants to post that message on her website, but doing that would likely violate the Colorado Anti-Discrimination Act. That law prohibits businesses open to the public from discriminating against customers on the basis of legally protected characteristics (in this case, sexual orientation) or communicating that such groups of people are unwelcome.3

Smith says that she has LGBTQ-identifying clients and would “happily” design graphics for their other endeavors, but creating their custom-made wedding websites would imply her approval of their marriage.4 Smith considers her artwork a form of speech, explaining, “It matters not to me how an individual identifies. What’s important to me is what message is I’m being asked to create and design for. And those messages must be consistent with my convictions.”5

Colorado argues that its law looks only at sales, not speech, to prevent marketplace discrimination, consistent with a longstanding legal tradition of ensuring public accommodations for all groups of people.6 Colorado argues that many businesses could claim their work is creative, and thus “speech,” thereby excusing discriminatory treatment.7 According to the state’s lawyer, “Your product can be a book or a painting, but once you make your product you can’t discriminate against certain customers based on who they are.”8

Lower courts have ruled for Colorado, citing “dignity interests” of members of marginalized groups.9 Many observers point to similarities between Smith’s case and the 2018 case of a baker (represented by Smith’s same lawyers) who claimed free speech and religious exercise should allow him to avoid serving same-sex couples.10 Then, the Supreme Court did not address freedom of speech and reaffirmed a precedent that prevents business owners from denying services due to religious objections.11 In 2021, the Court chose not to hear a similar objection from a florist who declined service for a same-sex wedding.12

What Arguments Shaped the Supreme Court Hearing?

The lengthy hearing considered whether Colorado’s law compels an artist to speak or stay silent, in violation of Free Speech rights.13 To address that question, the justices posited numerous hypothetical situations—a common tactic used to make a point or consider implications the specific case might have for other laws.14 Justice Amy Coney Barrett asked if Smith would design a website for a heterosexual couple marrying after divorcing previous spouses.15 In Justice Barrett’s words, “It’s about the message and not about the sexuality of the couple that asked her to express it.”16

Justice Ketanji Brown Jackson offered a hypothetical asking if a mall photographer who wanted to take “nostalgia photographs” of children with Santa evoking the 1950s could enact a policy “that only white children can be photographed with Santa.”17 Smith’s lawyer indicated that it would depend if the objection related to the speech or to the person’s demographics, noting, “When there is an overlap between message and status, message does win.”18 The lawyer also said, “There are difficult lines to draw, and that may be an edge case.”19 When Justice Samuel Alito expanded on the hypothetical, asking if a Black Santa would have to take a photo with a child in a Ku Klux Klan outfit, Colorado’s lawyer said no, since the clothing is not a protected characteristic.20 When Justice Elena Kagan pointed out that in this case, the child’s race would not matter, Justice Alito joked about Black children in KKK outfits (this and other comments have drawn public backlash).21

Justice Sonia Sotomayor argued that the message was the couple’s “story,” but Justice Neil Gorsuch likened it to a freelance writer who declines to work for clients of a different faith.22 Justice Kagan noted that denying a same-sex couple a standard website would be different than refusing to create one saying “God blesses this union,” and Colorado’s lawyer agreed that such “direct speech” is “trickier.”23

The hearing also considered how sweeping an exemption would be. Justice Clarence Thomas observed, “This is not a hotel. This is not a restaurant. This is not a riverboat or a train.”24 Considering whether caterers or chair vendors could claim a speech exemption, Smith’s lawyer argued that “art is different.”25 Justice Sotomayor wondered who else could be denied service, asking, “How about people who don’t believe in interracial marriage? Or about people who don’t believe that disabled people should get married? Where’s the line?”26 Smith’s lawyer called the scenario “highly unlikely” and said, “The line is that no one on any side of any debate has to be compelled to express a message that violates their core convictions.”27

Regarding broader implications, Justice Sotomayor said, “This would be the first time in the Court’s history that it would say that a commercial business, open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.”28 The lawyer for President Joe Biden’s administration warned that a ruling for Smith could allow a private school to exclude children on the basis of race by saying their teaching message changes when delivered “to students of a different race.”29 By contrast, Chief Justice John Roberts noted that the Supreme Court has never approved efforts to compel speech that is contrary to the speaker’s belief.30

What May Happen Next?

Many Supreme Court observers anticipate a ruling in favor of Smith.31 According to Notre Dame Law School professor Rick Garnett, justices spent the hearing asking about lines and limits when public accommodations laws tangle with First Amendment rights.32 The Court will provide its answer by July 2023.33

Discussion Questions

  1. During the hearing, Justice Brett Kavanaugh said, “The case comes down to a fairly narrow question of, how do you characterize website designers? Are they more like the restaurants and the jewelers and the tailors, or are they more like the publishing houses and the other free speech analogues that are raised on the other side?”34
    1. Do you think a restaurant, jeweler, tailor, florist, or caterer’s work is creative enough to represent their freedom of expression? Why or why not?
    2. Do you think a restaurant, jeweler, tailor, florist, or caterer should be able to deny service on the basis of sexual orientation because of their religious beliefs? Why or why not?
    3. Do you think a website designer’s work is so creative that it represents their free speech? Why or why not?
  2. Imagine a custom-made Smith wedding website that includes photos, stories, and details about wedding event times and places. Which of this website content, if any, is Smith’s speech and which, if any, is her clients’ speech? Why?
  3. Do you think a freelance writer should be able to deny service to someone on the basis of their political viewpoint? Why? Do you think that writer can deny service to a group of people on the basis of race or sexual orientation? Why or why not?
  4. People supporting Smith worry that ruling against her would mean that other Christian and religious business owners will not be able to open businesses without having to violate their speech and/or religious beliefs by serving clients whose viewpoints or identities they oppose. People opposing Smith worry that ruling for her would allow a wide variety of businesses to use speech or religious grounds for discriminating against minority groups (akin to the Jim Crow era). Which set of consequences are you more concerned about? Why?
  5. If you had final legal authority to decide this case, would you allow Smith to create wedding websites only for heterosexual couples? Why or why not?
  6. What principles would you use to determine which businesses could deny service to groups of people and which, if any, could not claim an exemption to public accommodation laws based on free speech?

Additional Resources

  • LISTEN to the Supreme Court oral argument of 303 Creative LLC v. Elenis and download the audio file and transcript.
  • WATCH Smith and her lawyer comment on the case.
  • WATCH a civil rights attorney and a progressive judicial activist comment on the hearing and its implications.
  • REVIEW a chart of every state’s public accommodation laws from the National Conference of State Legislatures (NCSL).
  • DISCUSS other controversial issues in the current Court term. See this blog’s posts on cases addressing the Voting Rights Act, affirmative action, and the Indian Child Welfare Act.
  • READ previous posts from this blog with discussion questions on the Respect for Marriage Act and a proposed 2019 Labor Department religious exemption rule for more on LGBTQ+ rights and religious exemptions.

As always, we encourage you to join the discussion surrounding minority rights and the first amendment with your comments or questions below.



Featured Image Credit: Caitlyn Kim, Colorado Public Radio (CPR) News
[1] Roll Call: https://rollcall.com/2022/12/05/supreme-court-hears-arguments-in-same-sex-wedding-website-clash/
[2] Associated Press: https://apnews.com/article/us-supreme-court-religion-colorado-discrimination-360d60888809823779d033acce40c9bf
[3] Oyez: https://www.oyez.org/cases/2022/21-476
[4] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/01/this-colorado-web-designer-doesnt-want-to-make-wedding-sites-for-same-sex-couples-the-u-s-supreme-court-will-decide-whether-thats-legal/
SCOTUSblog: https://www.scotusblog.com/2022/12/colorado-web-designers-first-amendment-supreme-court-lgbtq-anti-discrimination-laws/
[5] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/01/this-colorado-web-designer-doesnt-want-to-make-wedding-sites-for-same-sex-couples-the-u-s-supreme-court-will-decide-whether-thats-legal/
[6] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/uscode/text/42/2000a
SCOTUSblog: https://www.scotusblog.com/2022/12/colorado-web-designers-first-amendment-supreme-court-lgbtq-anti-discrimination-laws/
U.S. Department of Justice: https://www.justice.gov/crt/title-ii-civil-rights-act-public-accommodations
[7] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/01/this-colorado-web-designer-doesnt-want-to-make-wedding-sites-for-same-sex-couples-the-u-s-supreme-court-will-decide-whether-thats-legal/
[8] Ibid.
[9] Associated Press: https://apnews.com/article/us-supreme-court-lifestyle-religion-couples-a5edfc7184a85dde5775994b8bd86a7c
[10] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/wedding-cake-lawyer-back-to-supreme-court-in-new-same-sex-case
[11] Oyez: https://www.oyez.org/cases/2017/16-111
Slate: https://slate.com/news-and-politics/2022/03/supreme-court-303-creative-coordinated-anti-lgbt-legal-strategy.html
[12] USA Today: https://www.usatoday.com/story/news/politics/2021/07/02/same-sex-marriage-supreme-court-religious-fight-weddings/2836274001/
[13] Politico: https://www.politico.com/news/2022/12/05/lqbtq-supreme-court-arguments-00072468
Supreme Court of the United States: https://www.supremecourt.gov/oral_arguments/calendars/MonthlyArgumentCalDecember2022.html
[14] Politico: https://www.politico.com/news/2022/12/05/lqbtq-supreme-court-arguments-00072468
USA Today: https://www.usatoday.com/story/news/politics/2013/10/23/supreme-court-hypothetical-questions/3108881/
[15] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/
[16] MSNBC: https://www.msnbc.com/opinion/msnbc-opinion/lgbtq-rights-case-gets-conservative-supreme-court-treatment-rcna59800
[17] NPR: https://www.npr.org/2022/12/05/1140824371/supreme-court-gay-marriage-colorado
[18] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/05/supreme-court-seems-poised-to-side-with-colorado-web-designer-in-303-creative-case/
[19] MSNBC: https://www.msnbc.com/opinion/msnbc-opinion/lgbtq-rights-case-gets-conservative-supreme-court-treatment-rcna59800
[20] Associated Press: https://apnews.com/article/us-supreme-court-entertainment-religion-race-and-ethnicity-discrimination-9f2a76e9c72b6e0dc2a513a968328799
[21] Associated Press: https://apnews.com/article/us-supreme-court-entertainment-religion-race-and-ethnicity-discrimination-9f2a76e9c72b6e0dc2a513a968328799
CNN: https://www.cnn.com/2022/12/05/politics/black-white-santa-alito-jackson-kagan-ashley-madison/index.html
Deseret News: https://www.deseret.com/2022/12/6/23496821/samuel-alito-comments-black-santa-kkk
MSNBC: https://www.msnbc.com/11th-hour/watch/critical-week-for-scotus-156326469557
Reuters: https://www.reuters.com/legal/government/us-supreme-court-makes-jokes-ignores-facts-lgbtq-rights-hang-balance-2022-12-14/
The Week: https://theweek.com/laws/1019026/supreme-court-303-creative-v-elenis-whats-at-stake
[22] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/
[23] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/05/supreme-court-seems-poised-to-side-with-colorado-web-designer-in-303-creative-case/
[24] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/
[25] SCOTUSblog: https://www.scotusblog.com/2022/12/conservative-justices-seem-poised-to-side-with-web-designer-who-opposes-same-sex-marriage/
[26] Associated Press: https://apnews.com/article/us-supreme-court-entertainment-religion-race-and-ethnicity-discrimination-9f2a76e9c72b6e0dc2a513a968328799
[27] The Center Square: https://www.thecentersquare.com/national/u-s-supreme-court-hears-colorado-case-over-free-speech-lgbt-rights/article_06c66b20-74df-11ed-9cde-dfade9e2a638.html
[28] Colorado Public Radio (CPR) News: https://www.cpr.org/2022/12/05/supreme-court-seems-poised-to-side-with-colorado-web-designer-in-303-creative-case/
[29] SCOTUSblog: https://www.scotusblog.com/2022/12/conservative-justices-seem-poised-to-side-with-web-designer-who-opposes-same-sex-marriage/
[30] Ibid.
[31] CNN: https://www.cnn.com/2022/12/05/politics/303-creative-supreme-court-conservatives/index.html
Deseret News: https://www.deseret.com/faith/2022/12/13/23500136/how-will-supreme-court-rule-gay-rights
Newsweek: https://www.newsweek.com/no-chance-amy-coney-barrett-will-recuse-herself-lgbt-rights-case-1761395
Reuters: https://www.reuters.com/legal/government/us-supreme-court-makes-jokes-ignores-facts-lgbtq-rights-hang-balance-2022-12-14/
Washington Examiner: https://www.washingtonexaminer.com/restoring-america/fairness-justice/justices-dive-into-wild-hypotheticals-in-free-speech-case
[32] Deseret News: https://www.deseret.com/faith/2022/12/13/23500136/how-will-supreme-court-rule-gay-rights
[33] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/
SCOTUSblog: https://www.scotusblog.com/2022/12/conservative-justices-seem-poised-to-side-with-web-designer-who-opposes-same-sex-marriage/
[34] CBS News: https://www.cbsnews.com/live-updates/supreme-court-same-sex-marriage-lgbtq-rights-303-creative-v-elenis/


A Close Supreme Court Case Entangles Indigenous Children, Tribal Sovereignty, States’ Rights, and Race

What began as a child custody lawsuit evolved into a lengthy hearing of four consolidated cases before the Supreme Court on November 9, 2022.1 The law in question is the Indian Child Welfare Act (ICWA) and the Court’s eventual ruling on it could impact laws about race, states’ rights, and the sovereignty of Native American tribes.2

Why Did Congress Create the ICWA? What Does It Include?

Congress passed the ICWA in 1978 following over 100 years of federal policies such as American Indian boarding schools and the Indian Adoption Project. From the late 1800s through the middle-to-late 20th century, American Indian boarding schools aimed to assimilate Native American youth by forbidding tribal languages, beliefs, clothing, and names—a practice critics have labeled cultural genocide.3 From 1958 until 1967, the Indian Adoption Project operated with the stated goal of having Native American children adopted by white families.4

Extensive hearings and research prior to the ICWA’s passage showed that public and private child-welfare-oriented agencies had removed hundreds of thousands of American Indian children from their homes and placed 85 percent of them with non-tribal families.5 Few of these removals were due to abuse; most were based on social workers’ judgments that caretaking by extended family members (a common cultural practice in many Native American communities) demonstrated parental abandonment or that poverty (disproportionately present in Indian Country) amounted to neglect.6

In response, Congress passed the ICWA to stop a “white, middle-class standard” from dictating care decisions.7 The legislation set minimum standards for removing American Indian children (federal law uses the term “Indian” to refer to indigenous and Native American peoples of the United States).8 The ICWA also required states to notify tribes of an off-reservation American Indian child’s removal, and it set up a framework to give preferences for foster or adoption placements, first to extended family members, then to other tribal members, and subsequently to members of a different tribe—with some exceptions for “good cause.”9

Supporters of the ICWA say it has set a “gold standard” for other child welfare practices, both nationally and globally, especially with regard to its favoring of family placements.10 Critics argue that the ICWA places tribal needs over individual children’s needs by presuming that an American Indian tribe can always best serve the interest of an American Indian child.11 Other supporters contend that the ICWA especially benefits American Indian girls who are more likely than non-American Indian children to become human trafficking victims when placed in state foster homes.12 Still, state agencies and courts have often failed to enforce the Indian Child Welfare Act.13

READ part one of this blog’s series on the lead-up to the current Supreme Court case for more detailed historical context surrounding the ICWA.

Who Is Involved in the Current Case?

When a white Texas couple, Chad and Jennifer Brackeen, sought to foster and later adopt a 10-month-old Navajo and Cherokee boy, referred to in court as A.L.M., the ensuing legal battle led to a dispute over the boy’s half-sister, identified as Y.R.J.14 When the Brackeens learned that Y.R.J. would enter foster care, they filed for custody with the support of the child’s biological mother.15 An initial court ruling ordered shared custody between the Brackeens and Y.R.J.’s great aunt, who is of Navajo descent.16 Both parties appealed the decision, leading to the current Supreme Court case.17 In the meantime, Y.R.J., now 4, has lived with the Brackeens since infancy.18 According to Chad Brackeen, “It’s heartbreaking to us that there are laws out here that say it’s better for her to live in a tribal home, any tribal home … before she is allowed to stay in our home with her brother.”19

READ part two of this blog’s series on the lead-up to the current Supreme Court case for more information about the parties involved, the arguments at hand, and the prior legal steps of Brackeen v. Haaland.

What Could the Supreme Court Decide?

The case presents multiple legal questions that the Supreme Court may address.20 One is whether the ICWA can allow tribes to establish child placement preferences that state courts would have to follow.21 Texas argues that this unlawfully delegates a state’s legislative power to tribes, but President Joe Biden’s administration contends that the ICWA incorporates tribal preferences into federal law.22 Two related constitutional arguments also question state and federal authority: one asks if Congress’ Article I powers over Native Americans include child custody; the other asks if the ICWA violates the 10th Amendment’s “anticommandeering doctrine” by forcing state courts to implement a federal law.23

A separate legal question is over the Constitution’s equal protection guarantee, notably included in the 14th Amendment, which prevents racial, ethnic, and gender discrimination.24 The tribes and the Biden administration claim that the ICWA treats American Indians politically, based on their status as sovereign tribes, but the challengers argue that the law treats indigenous children and prospective adoptive parents on the basis of race.25 The distinction is significant because if the law is based on race, it must pass the stringent legal test of strict scrutiny rather than a lower bar called rational basis.26

What Implications Could This Decision Have?

Challengers to the ICWA note that Native American children are disproportionately represented in the foster care system, and they argue that the ICWA’s placement preferences add additional barriers between American Indian children and loving adoptive homes.27 “There are Americans out there who are eager to help these children out, and the Indian Child Welfare Act says they are not allowed to because their skin is the wrong color,” said Timothy Sandefur, an adjunct scholar at the libertarian-leaning Cato Institute.28 Texas Attorney General Ken Paxton wrote, “Knowing the difficulties that await them if they attempt to adopt a Native child, many couples simply turn elsewhere at the outset.”29

Kate Fort, director of the Indian Law Clinic at Michigan State University, said the Supreme Court’s decision could “lead to a fundamental re-understanding of how Congress can or cannot pass laws for tribes.”30 She pointed to a case in Washington, where challengers are echoing Brackeen’s arguments in opposition to an alleged gambling monopoly by Native Americans.31 According to Mary Kathryn Nagle, a Native American rights attorney, “For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court.”32 Nagle has noted the oil and gas experience of the Brackeens’ law firm, suggesting it as a motivating factor in its work on the case.33 Robert Miller, a member of the Eastern Shawnee Tribe, tribal court judge, and Arizona State University professor of federal American Indian law, extended concern more broadly, saying, “All of a sudden, lands would be owned by ‘a race of Indian people,’ not a tribal government. Your borders, your police laws, everything on the reservation would be in question. I’m not being hyperbolic. I am afraid of this case.”34

What Did the Supreme Court Hearing Reveal?

Given the number of parties involved, the Supreme Court scheduled an extended hearing of one hour and 40 minutes, but the arguments exceeded three hours.35 Texas’s lawyer argued that Congress lacks the authority to enlist state governments in enforcing the ICWA, but Justice Sonia Sotomayor cited other laws with federal impact on state custody hearings, such as those involving deployed service members.36 Justice Amy Coney Barrett noted possible commandeering with regard to recordkeeping duties and the “active efforts” that the ICWA requires states to use to avoid breaking up Native American families.37 Justice Neil Gorsuch expressed disagreement, suggesting that since the “active efforts” provision applies to both state and private entities, it doesn’t attempt to co-opt state government.38 While Justices Barrett and Gorsuch, along with Justice Elena Kagan, indicated support for upholding Congress’s authority over American Indian affairs as “plenary,” or near-absolute, Justice Samuel Alito and Chief Justice John Roberts indicated concern that this could give Congress unlimited power over Native American law.39 In response, the Biden administration’s lawyer contended that Congress holds such power only if there is a rational relationship to Congress’ unique responsibilities regarding Native Americans.40

The “rational” standard seemed to draw criticism from justices who focused on race and equal protection questions, thereby implying a need for strict scrutiny in this case. Justice Brett Kavanaugh suggested Congress “couldn’t give a preference for white families for white children, for Black families for Black children, for Latino families for Latino children, for Asian families for Asian children.”41 The lawyer representing the Biden administration agreed that those decisions would be based on race but noted that the ICWA treated Native Americans as sovereign tribal entities rather than a racial group.42 Justice Kagan seemed to agree, noting the Supreme Court’s “long history of cases where we’ve understood legislation relating to the tribes as political.”43 Justice Sotomayor compared the ICWA to an existing international treaty that addresses child abduction and removal across national borders.44

Several justices questioned the racial/political distinction regarding the ICWA’s “third preference” that would place an American Indian child with a different tribe before a non-American Indian family.45 Justice Barrett said, “Let’s assume I agree with you that these are political classifications—this is just treating Indian tribes as fungible.”46 In response, the tribes’ lawyer noted that the Supreme Court could strike down that third preference alone and let the ICWA stand otherwise.47 He also said that the hypothetical transfer of an American Indian child from a tribe in Arizona to one in Maine “has never happened that we’ve been able to find or that counsel on the other side has been able to find.”48

Justice Gorsuch seemed to side with tribal lawyers over the implications of treating the ICWA as a race-based law, expressing concern that much of Title 25 of the U.S. Code (a section of laws governing Indian Country) wouldn’t survive an equal protection challenge.49 “There’ll be a lot that would be bitten out of Title 25,” said Justice Gorsuch. “We’d be busy for the next many years striking things down.”50

Justice Kavanaugh encapsulated the debate as a choice “between two fundamental and critical constitutional values.”51 On one side, Justice Kavanaugh described respecting tribal government and recognizing “the history of oppression and discrimination against tribes.” On the opposing side, he noted “the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry.”52

How Does This Case Relate to Other Supreme Court Cases This Year?

Supreme Court observers have noted that many of the current term’s significant cases deal with race, either directly or indirectly.53 The Court has already heard cases on affirmative action and congressional redistricting (as related to the Voting Rights Act), and the December schedule features a case on the power of state legislatures over election law and voting restrictions (which often disproportionately affect people of color).54 Also in December, a case requesting a religious freedom exemption for a business that seeks to deny service to same-sex couples could see the Court discuss why that same exemption would or would not apply on racial lines.55

In the three cases the Supreme Court has already heard, one side was arguing for a “color-blind” application of the Constitution, to the perceived detriment of a minority group.56 In the Voting Rights Act case, for example, Alabama argued that a state cannot use race to benefit Black voters in drawing district maps.57 Supporters of a color-blind constitutional view see racial discrimination in all three cases, but opponents note that the post-Civil War Reconstruction amendments were never intended to be race-neutral but rather to use race-conscious laws to protect newly freed slaves.58 Those on both sides of the debate have pointed to the current makeup of the Court as potentially receptive to a color-blind constitutional reading.59

READ this blog’s posts on the Voting Rights Act case and the affirmative action cases for further discussion about this term’s Supreme Court cases focused on race.

What May Happen Next?

The ICWA has drawn significant support, with briefs in support of the law coming from hundreds of tribes and tribal organizations, over two dozen child welfare and adoption organizations, a bipartisan group of 87 members of Congress, and more than 20 states (ten of which have created state laws that mirror or exceed the ICWA’s standards).60 States could bolster those laws if the Supreme Court narrowly strikes down portions of the ICWA for federal overreach.61 Tribal advocates have said they will continue to fight for American Indian children, regardless of the Court’s decision.62

Based on the hearing, Supreme Court observers have speculated that Justice Gorsuch, a tribal rights proponent, could join with the three justices appointed by Democratic presidents in upholding portions of the ICWA, but that the group of four seems unlikely to draw the needed fifth justice to their side.63 A 5-4 ruling could chart a middle path that would uphold portions of the ICWA, strike down others, and avoid some of the far-reaching implications of a more sweeping decision. But such an outcome remains speculative until the Court issues its decision around June 2023.64

Discussion Questions

  1. During the hearing, Justice Kagan said, “The first thing you need for self government is a functioning polity,” and that Congress clearly “thinks that this statute is critical to the continuing existence of the tribe as a political entity.”65 In response, the Brackeens’ lawyer said that placing a Native American child with a white family wouldn’t change the child’s membership or reduce the size of the tribe.66
    1. How important do you think it is for Native American tribes to be given first preference to foster and adopt children that could be considered tribal members? Why do you think that?
    2. How important do you think it is for Native American children to be raised by extended family members or other members of their tribe? Why do you think that?
  2. Should state governments, the federal government, or tribal governments have primary jurisdiction over Native American children? Why?
  3. Do you think the ICWA should stay in place as it currently exists? Consider the following questions:
    1. Do you think the ICWA infringes on states’ rights to run their own adoption and custody systems? Why or why not?
    2. Do you think that having the federal government make laws about American Indian children is the best way to protect tribal rights? Why or why not?
    3. Does it discriminate against families like the Brackeens if a Native American child’s extended family gets preference over them to foster or adopt? Why or why not?
    4. Does it discriminate against families like the Brackeens if a Native American child’s tribe gets preference over them to foster or adopt? Why or why not?
    5. Does it discriminate against families like the Brackeens if a Native American tribe receives preference over them to foster or adopt a Native American child from a different tribe? Why or why not?
  4. Read the following two quotes to determine with which you agree more: “The precedent of the Supreme Court is that Indian tribes are political groups of people, they are not racial groups of people,” Chrissi Ross Nimmo, the deputy attorney general of Cherokee Nation, told reporters last month. “Tribes determine citizenship … just like countries.”67 Matthew D. McGill, a lawyer for the people challenging the law, said the children at issue had made no political choices. “They are human beings,” he said. “They are citizens of the United States and the states in which they reside. They are persons within the meaning of the Fifth Amendment. And they have liberty interests that the tribe cannot override simply by unilaterally enrolling them.”68
    1. Does giving preferential placement to tribes infringe on the liberty of American Indian children? Or would removing American Indian children from tribes do more to infringe on their liberty?
  5. The Brackeens are an Evangelical Christian couple.69 In a now-defunct blog, Jennifer Brackeen described religious inspiration for wanting to foster and adopt, and when it looked as though A.L.M. would be placed with a Navajo non-relative, Jennifer Brackeen wrote about how her family offered the boy access to their culture, which “he would not have had in his biological family.” By contrast, Sarah Kastelic, executive director of the National Indian Child Welfare Association, has said, “For a long time, non-Native people have been trying to ‘save’ Native children who don’t need saving.” Based on these quotes, consider the following question:
    1. Does having a religious motivation strengthen either party’s case? Why or why not?
  6. If you had final legal authority to determine the custody of now-four-year-old Y.R.J., how would you assign custody? To her great aunt of Navajo descent, to the Brackeens who adopted her half-brother, or to someone else? Would you prioritize any sort of shared custody? What factors most determined your decision?
  7. How concerned are you that this case could impact other laws about Native Americans? Why?
  8. Angelique EagleWoman, the director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law, refers to the ICWA as “a remedial statute because it has been the U.S. government’s policy for hundreds of years to destroy the Native American family.”70
    1. Do you think Congress should pass laws aimed at remedying past historical injustices? Why or why not?
    2. Do you think the Constitution should be read as “color-blind,” even if that disadvantages groups that some laws, like the ICWA, were historically created to protect? Why or why not?

Additional Resources

WATCH the Brackeens and Mary Kathryn Nagle (a Cherokee lawyer) comment on the case.

LISTEN to the Supreme Court hearing of Haaland v. Brackeen and consolidated cases.

WATCH “Blood Memory: A Story of Removal and Return,” an episode of “America ReFramed.”71  It presents an in-depth, first-hand account of a woman who was removed from her tribe in the Indian Adoption era and sought out her Native American culture as an adult. For a preview, watch the trailer here.

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Shuran Huang for The Texas Tribune
[1] SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[2] The Hill: https://thehill.com/regulation/court-battles/3720368-supreme-courts-sleeper-case-is-major-clash-over-native-american-adoptions/
NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
Vox: https://www.vox.com/policy-and-politics/2022/11/8/23440460/supreme-court-brackeen-haaland-indian-child-welfare-act
Washington Post: https://www.washingtonpost.com/nation/2022/11/07/icwa-supreme-court-arizona/
[3] Equal Justice Initiative: https://eji.org/news/history-racial-injustice-cultural-genocide/
The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[4] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[5] The Hill: https://thehill.com/regulation/court-battles/3720368-supreme-courts-sleeper-case-is-major-clash-over-native-american-adoptions/
NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
[6] Washington Post: https://www.washingtonpost.com/nation/2022/11/07/icwa-supreme-court-arizona/
[7] The Economist: https://www.economist.com/united-states/2022/11/10/native-american-children-come-before-the-supreme-court
[8] ABA Journal: https://www.abajournal.com/web/article/supreme-court-to-consider-future-of-indian-child-welfare-act
Cornell Law School Legal Information Institute: https://www.law.cornell.edu/supct/cert/21-376
[9] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
[10] The Hill: https://thehill.com/regulation/court-battles/3720368-supreme-courts-sleeper-case-is-major-clash-over-native-american-adoptions/
Native American Rights Fund: https://narf.org/cases/brackeen-v-bernhardt/
Slate: https://slate.com/news-and-politics/2022/11/supreme-court-indian-child-welfare-erase-ancestry.html
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
Washington Post: https://www.washingtonpost.com/nation/2022/11/07/icwa-supreme-court-arizona/
[11] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/supct/cert/21-376
[12] Ibid.
[13] The Economist: https://www.economist.com/united-states/2022/11/10/native-american-children-come-before-the-supreme-court
The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
[14] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
[15] Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
[16] Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
[17] Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
[18] Associated Press: https://apnews.com/article/us-supreme-court-texas-race-and-ethnicity-africa-319ff13d4d5b45ee648aab2bb8ec361f
[19] NPR: https://www.npr.org/2022/11/08/1134668931/supreme-court-icwa
[20] Oyez: https://www.oyez.org/cases/2022/21-376
Cornell Law School Legal Information Institute: https://www.law.cornell.edu/supct/cert/21-376
[21] SCOTUSblog: https://www.scotusblog.com/2022/11/in-challenge-to-indian-child-welfare-act-court-will-weigh-the-rights-of-states-and-the-role-of-race/
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/supct/cert/21-376
Cornell Law School Legal Information Institute: https://www.law.cornell.edu/wex/rational_basis_test
SCOTUSblog: https://www.scotusblog.com/2022/11/in-challenge-to-indian-child-welfare-act-court-will-weigh-the-rights-of-states-and-the-role-of-race/
[27] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[28] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
[29] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[30] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
[31] Ibid.
[32] The Hill: https://thehill.com/regulation/court-battles/3720368-supreme-courts-sleeper-case-is-major-clash-over-native-american-adoptions/
[33] Associated Press: https://apnews.com/article/videos-81e8f6644f4e4389a31f400f920073d1
[34] Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
[35] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
Supreme Court of the United States: https://www.supremecourt.gov/oral_arguments/calendars/MonthlyArgumentCalNovember2022.html
USA Today: https://www.usatoday.com/story/news/politics/2022/11/09/supreme-court-custody-native-american-children-icwa/8314156001/
[36] NPR: https://www.npr.org/2022/11/09/1135619252/supreme-court-hears-arguments-challenging-the-indian-child-welfare-act
[37] SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
[38] Ibid.
[39] The Hill: https://thehill.com/regulation/court-battles/3727987-supreme-court-grapples-with-native-american-adoption-law/
SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
[40] SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
[41] Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[42] USA Today: https://www.usatoday.com/story/news/politics/2022/11/09/supreme-court-custody-native-american-children-icwa/8314156001/
Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[43] SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
[44] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[45] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/native-american-adoption-law-splits-supreme-court-conservatives
SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[46] Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[47] Ibid.
[48] The Hill: https://thehill.com/regulation/court-battles/3727987-supreme-court-grapples-with-native-american-adoption-law/
[49] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[50] Ibid.
[51] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/native-american-adoption-law-splits-supreme-court-conservatives
[52] New York Times: https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html
[53] SCOTUSblog: https://www.scotusblog.com/2022/10/the-court-is-poised-to-set-jurisprudence-on-race-for-generations-and-not-just-in-affirmative-action/
[54] Ibid.
[55] Ibid.
[56] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/indian-child-welfare-law-is-third-high-court-color-blind-test
[57] Ibid.
[58] Ibid.
[59] Ibid.
[60] Associated Press: https://apnews.com/article/us-supreme-court-texas-race-and-ethnicity-africa-319ff13d4d5b45ee648aab2bb8ec361f
Deseret News: https://www.deseret.com/2022/11/7/23445212/supreme-court-native-american-icwa
The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
Source New Mexico: https://sourcenm.com/2022/03/21/the-platinum-standard-of-the-indian-child-welfare-act/
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
U.S. Senate Committee on Indian Affairs: https://www.indian.senate.gov/news/press-release/schatz-murkowski-davids-cole-lead-bipartisan-bicameral-members-congress-amicus
[61] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[62] Ibid.
[63] New York Times: https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html
Washington Post: https://www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/
[64] New York Times: https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html
SCOTUSblog: https://www.scotusblog.com/2022/11/closely-divided-court-scrutinizes-various-provisions-of-indian-child-welfare-act/
Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
USA Today: https://www.usatoday.com/story/news/politics/2022/11/09/supreme-court-custody-native-american-children-icwa/8314156001/
[65] USA Today: https://www.usatoday.com/story/news/politics/2022/11/09/supreme-court-custody-native-american-children-icwa/8314156001/
[66] Ibid.
[67] Fox News: https://www.foxnews.com/politics/supreme-court-hear-case-texas-couple-fighting-race-based-law-keep-adopted-native-child
[68] New York Times: https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html
[69] Texas Tribune: https://www.texastribune.org/2022/11/10/indian-child-adoption-scotus/
[70] The Guardian: https://www.theguardian.com/us-news/2022/nov/07/supreme-court-native-american-families-indian-child-welfare-act
[71] PBS: https://www.pbs.org/show/america-reframed/


Close Up’s Election Recap

By the end of the day on Election Day, 47 percent of eligible voters in the United States had cast a ballot in the 2022 midterm elections.1 After a week of waiting with several races still uncalled, heading to a runoff, or requiring a recount, it looks like Republicans will have a slim majority in the House of Representatives and Democrats will keep control of the Senate.2

Governing with a divided Congress generally means that legislation moves more slowly, as a highly polarized legislature must reach agreement over issues that deeply divide the nation before President Joe Biden can sign anything into law. While the current Congress is likely to pass funding the government by its December 16 deadline, things might be much more difficult next October when the time comes to find the government again. In addition, newly elected representatives and senators must work together to raise the debt ceiling or the United States will no longer be allowed to legally borrow money to fund federal programs.3

The two parties are starting to lay out their priorities for the new 118th Congress. Some House Republicans are hoping to investigate the president and his son, Hunter Biden, believing Hunter’s business dealings have compromised the White House.4 Senate Democrats will continue to prioritize filling vacancies in the judiciary by confirming judges nominated by President Biden.5

TRACK House Election Results on CNN 

Beyond the congressional races that took place nationwide, 36 states and three territories held gubernatorial elections on November 8.6 In four races, the party holding the governorship flipped, with Democrats gaining control in three states and Republicans gaining control in one. New milestones were marked, as the largest number of women governors will take office next year, two of whom are serving with lieutenant governors who are also women—the first time women hold both of those positions at the same time.7

Ballots in 37 states included a total of 132 measures for voters to consider.8 A diverse set of initiatives affected elections and voter identification, and most states rejected measures to enhance ID requirements or reduce early voting. Recreational cannabis use was legalized in Maryland and Missouri but rejected in North Dakota, South Dakota, and Arkansas.9 In the five states where abortion access was on the ballot, voters added protections for abortion or rejected additional restrictions.10

Many political pundits and journalists have expressed surprise regarding the midterm outcomes. Weeks before the election, these commentators told Americans to get ready for a “red wave” of Republican victories.11 There were reasons for this argument—inflation is high, the party in power usually loses seats, President Biden is unpopular, and past polls have overrepresented Democratic support. However, it turns out high-quality polls (conducted by professional polling companies that are unaffiliated with a political party) were quite accurate this year, with the only significant miss in Florida where Republican support was underestimated.12

Party officials are still examining what succeeded and what failed in their campaign strategies, but some trends have emerged. Abortion access was important to many voters this year.13 Candidates who campaigned on overturning the 2020 election results and those who placed doubt in election security tended to lose or do more poorly than expected.14 In some key states with close races, “split-ticket” voters were willing to vote for Republicans in some races and Democrats in others. For example, voters in both New Hampshire and Nevada elected a Republican governor and a Democratic senator.15

National and state elected officials are just getting ready to start their terms next year, but attention is already starting to aim toward 2024. The Senate map currently looks more challenging for Democrats, Donald Trump has announced he is running for president again, and Republican leadership is already assessing the best campaign strategies to use in two years.16 In the meantime, those in power face governing a public divided over issues such as climate, the economy, and individual rights.

Discussion Questions

  1. Did the results of the midterm elections surprise you? Why or why not?
  2. If you had been able to vote in this election, how would you have voted and why?
  3. Which issues are the most important for elected officials to address in the next two years? How, if at all, do your newly elected officials plan to solve these issues?
  4. Young voters (aged 18-29) are the age group least likely to vote. This time around, voter turnout among young people was at its second highest level for a midterm election in the last 30 years.17 Why do you think so many young people voted this year?

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: REUTERS/Marco Bello
[1] FiveThirtyEight: https://fivethirtyeight.com/features/turnout-was-high-again-is-this-the-new-normal/
[2] CNN: https://www.cnn.com/politics/live-news/midterm-election-results-updates-11-15-22/index.html
[3] Vox: https://www.vox.com/future-perfect/2022/11/16/23433281/congress-debt-ceiling-house-midterms-spending-cuts-lame-duck-session
[4] CBS News: https://www.cbsnews.com/news/potential-next-house-oversight-chair-says-hes-ready-to-subpoena-hunter-biden/
[5] Politico: https://www.politico.com/news/2022/11/12/democratic-senate-biden-judges-00066623
[6] National Governors Association: https://www.nga.org/governors/elections/
[7] New York Times: https://www.nytimes.com/2022/11/09/us/politics/diverse-candidates-midterms.html
[8] New York Magazine: https://nymag.com/intelligencer/2022/10/abortion-gambling-marijuana-2022s-big-ballot-initiatives.html
[9] CBS News: https://www.cbsnews.com/live-updates/elections-2022-marijuana-legalization-voting-rules-gun-rights-ballot-initiatives-states/
[10] CNN: https://www.cnn.com/2022/11/09/politics/abortion-rights-2022-midterms
[11] Fox News: https://www.foxnews.com/opinion/democrats-beware-red-wave-coming-because-voters-know-not-better-off-biden-took-office
[12] The New Yorker: https://www.newyorker.com/news/the-political-scene/the-accurate-election-polls-that-no-one-believed
[13] The Hill: https://thehill.com/opinion/3737248-mellman-why-no-red-wave/
[14] Business Insider: https://www.businessinsider.com/mitch-mcconnell-never-predicted-red-wave-voters-frightened-republicans-2022-11
[15] WBUR: https://www.wbur.org/onpoint/2022/11/16/split-ticket-voters-and-their-impact-on-the-latest-election
[16] The Hill: https://thehill.com/homenews/campaign/3737570-republicans-divided-as-trump-kicks-off-2024-bid/
[17] CIRCLE. https://circle.tufts.edu/latest-research/millions-youth-cast-ballots-decide-key-2022-races


Will the Supreme Court End Affirmative Action?

On October 31, 2022, the Supreme Court heard two cases regarding the use of race in college admissions.1 Rulings on these affirmative action cases could force many universities to reshape their admissions processes.

The History of Affirmative Action and the Supreme Court

The present-day context of the term “affirmative action” grew from executive orders by Presidents John F. Kennedy and Lyndon B. Johnson in the 1960s, which stated that government contractors should “take affirmative action” to ensure nondiscrimination in employment.3 After the idea expanded to education, the Supreme Court issued a landmark decision in Regents of the University of California v. Bakke (1978), a case dealing with a California medical school that had set aside 16 of 100 spots for minority applicants.4 A fractured Court ruled that schools could use race as one of several admissions criteria, but the rigid quota in this instance was impermissible.5

In 2003, the Supreme Court found that the University of Michigan’s points system was too broadly preferential to minority candidates.6 Simultaneously, the Court ruled that race could still be considered a factor in admissions if done so in the individualized manner used by the University of Michigan Law School.7 One of the named plaintiffs in the Michigan case went on to advocate for a ballot initiative banning the state’s public universities from considering race (the Court upheld the ban in 2014).8 To date, in the 10 states with policies to this effect, universities have attempted other methods of increasing minority enrollment.9 In reviewing a 2016 case out of Texas, the Court largely upheld its 2003 decisions.10

What Are the Current Legal Arguments Surrounding Affirmative Action?

The cases presently under consideration center on the University of North Carolina (UNC) and Harvard University.11 As a state institution, UNC is subject to the clause of the 14th Amendment that guarantees equal protection of the laws.12 That clause does not apply to Harvard as a private institution, but Title VI of the Civil Rights Act of 1964—which prohibits racial discrimination in any recipient of federal funding—applies to both schools.13

The legal test that the Supreme Court uses in cases that involve equal protection and race is called strict scrutiny.14 To meet the burden, the schools must show that their policies serve a compelling government interest and use a narrowly tailored means to further that interest.15 In the Bakke decision, the Court ruled that addressing historical racial injustice was not a compelling government interest given its impact on individuals not responsible for that harm.16 However, in that case and all relevant rulings that have followed, the Court has cited the creation of a diverse student body as a compelling interest.17 In the cases presently before the Court, the justices will again decide if diversity is a compelling enough interest to allow the schools to use race as a factor in admissions.18

Even if the Supreme Court continues to uphold diversity as a compelling interest, it must still answer the other question that strict scrutiny poses: are the methods used to gain diversity narrowly tailored? Previous rulings have said that meeting that standard requires a holistic, individual review of candidates in which race is not a determining factor, that the process doesn’t cause undue harm to nonminority candidates, and that no workable alternatives would serve the school’s goal.19

What Happened at the Supreme Court Hearing This Week?

During Monday’s hearings, a majority of justices expressed skepticism about whether the current cases meet strict scrutiny.

Justice Samuel Alito seemed to suggest that there were no means schools could use that would be sufficiently narrowly tailored when he asked, “What is your response to the simple argument that college admissions are a zero-sum game?”20 Justice Amy Coney Barrett and Chief Justice John Roberts questioned the need to explicitly list race to achieve diversity. Justice Roberts asked if Harvard could consider “what an applicant would say in an essay about having to confront discrimination growing up and how he or she did that?”21 The lawyer challenging Harvard indicated that such a method would be acceptable.22

Justice Ketanji Brown Jackson suggested that UNC’s current methods are narrowly tailored since the school examines 40 different factors, thereby “looking at the full person.”23 Justice Elena Kagan expressed support for diversity as a compelling interest, saying, “I thought part of what it meant to be an American and to believe in American pluralism is that actually our institutions … are reflective of who we are as a people in all our variety.”24

LISTEN to the Supreme Court Hearing of Students for Fair Admissions v. University of North Carolina

LISTEN to the Supreme Court Hearing of Students for Fair Admissions v. President and Fellows of Harvard

What’s Next?

If the Supreme Court ends affirmative action, how it does so could be significant. A finding that affirmative action policies violate Title VI would be more limited than a ruling finding a violation of the 14th Amendment.25 The latter, as a constitutionally based ruling, could have implications on voting rights and other policy areas.26

Leading up to the hearing, both supporters and opponents of affirmative action rallied in Washington, D.C.27 The rallies included affected university students who promised to continue their advocacy beyond the Supreme Court’s hearing and ruling.28 The Court will likely issue its decision next year.29

Discussion Questions

  1. Is it important and valuable for universities to have a diverse student body?
  2. Justice Kagan called universities “pipelines to leadership in our society.”30 Do you agree with this idea? Why or why not? Does developing effective leaders require a diverse student body?
  3. President Joe Biden’s administration argued that it was critical for national security that service academies and universities provide the military a racially diverse officer corps, citing racial tensions and violence during the Vietnam War when the officer corps was largely white and the enlisted force was largely made up of minorities.31 In the words of White House officials, “At present, it’s not possible to achieve that diversity without race-conscious admissions.”32
    • Do you agree with this idea? Why or why not?
    • Is diversity in the military a compelling enough government interest to warrant affirmative action policies at universities? Why or why not?
  4. Is there any fair, narrowly tailored way for universities to execute an affirmative action program?
  5. During the hearing, Justice Alito cast doubt on whether any means used to execute affirmative action programs can be narrowly tailored, saying, “Two people are in a race, and you give a plus factor to one of the runners, so that runner gets to start … five yards closer to the finish line. The one who doesn’t get that plus factor is disadvantaged, right?”33
    • Do you agree with this reasoning? Why or why not?
    • Do you think this analogy fits well with college admissions? Why or why not?
  6. During the hearing, some justices asked about other programs to address diversity, such as offering significant financial aid or dedicated outreach to low-income students and those who would be the first generation of their family to attend college.34 University lawyers argued that they have tried these methods with less success than the race-conscious policies currently in use.35
    • Is socioeconomic status a good metric to use to achieve diversity? Why or why not?
    • Do you think these or other race-neutral methods can ensure an effectively diverse student body?
    • In order to effectively ensure diversity, do you think colleges must explicitly consider race? Why or why not?
  7. Consider the following two quotes from Supreme Court justices:
    • “The way to stop discrimination on the basis of race, is to stop discriminating on the basis of race.” —Chief Justice Roberts, 200736
    • “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” —Justice Sonia Sotomayor, 201437
    • Which of these quotes do you think is most relevant to the issue of affirmative action?
    • Which justice do you agree with more? Why?

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Andrew Lichtenstein/Corbis via Getty Images
[1] NBC News: https://www.nbcnews.com/politics/supreme-court/supreme-court-hears-challenges-affirmative-action-college-admissions-rcna54564
[2] Politico: https://www.politico.com/news/2022/10/28/supreme-court-affirmative-action-end-00063931
[3] Smithsonian Magazine: https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/
[4] Ibid.
[5] Oyez: https://www.oyez.org/cases/1979/76-811
[6]. Ballotpedia: https://ballotpedia.org/Gratz_v._Bollinger; Oyez: https://www.oyez.org/cases/2002/02-516
[7] Justia: https://supreme.justia.com/cases/federal/us/539/306/; Oyez: https://www.oyez.org/cases/2002/02-241
[8] Center for Individual Rights: https://www.cir-usa.org/case/gratz-v-bollinger-grutter-v-bollinger/gratz-grutter-frequently-asked-questions/; NPR: https://www.npr.org/sections/thetwo-way/2014/04/22/305850221/supreme-court-affirms-ban-on-race-conscious-college-admissionsTime: https://time.com/71871/supreme-court-affirmative-action-michigan/
[9] Associated Press: https://apnews.com/article/bbe0f81d2b4ef63102d749879c045a10; Associated Press: https://apnews.com/article/voting-rights-ketanji-brown-jackson-us-supreme-court-college-admissions-affirmative-action-196ab930c799bcdc8b2a4a220641dd48Atlanta Journal-Constitution: https://www.ajc.com/news/local-education/court-ruling-changed-georgia-approach-race-based-college-admissions/vT9wYxSGa0kCv7EqkdczdK/; Century Foundation: https://tcf.org/content/commentary/what-can-we-learn-from-states-that-ban-affirmative-action/?agreed=1; James G. Martin Center for Academic Renewal: https://www.jamesgmartin.center/2019/10/did-you-know-eight-states-ban-racial-preferences-in-college-admissions/; Politico: https://www.politico.com/news/magazine/2022/10/31/supreme-court-affirmative-action-ban-00064058
[10] Oyez: https://www.oyez.org/cases/2015/14-981Texas Tribune: https://www.texastribune.org/2016/06/23/us-supreme-court-rules-fisher-case-involving-ut-au/
[11] CNN: https://edition.cnn.com/2022/08/03/politics/affirmative-action-supreme-court-harvard-north-carolina/index.html
[12] CNN: https://edition.cnn.com/2022/08/03/politics/affirmative-action-supreme-court-harvard-north-carolina/index.html; Oyez: https://www.oyez.org/cases/2022/21-707
[13] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/elite-college-admissions-cases-put-justices-on-collision-course
[14] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/wex/strict_scrutiny
[15] Ibid.
[16] CNN: https://edition.cnn.com/2022/10/27/politics/affirmative-action-supreme-court-1978-bakke-harvard-north-carolina/index.html; Vox: https://www.vox.com/policy-and-politics/23405267/affirmative-action-supreme-court-race-harvard-unc-chapel-hill
[17] Ibid.
[18] Oyez: https://www.oyez.org/cases/2022/20-1199; Oyez: https://www.oyez.org/cases/2022/21-707
[19] Oyez: https://www.oyez.org/cases/2002/02-241; Oyez: https://www.oyez.org/cases/2015/14-981
[20] Georgia Public Broadcasting: https://www.gpb.org/news/2022/10/31/supreme-courts-conservatives-appear-skeptical-of-affirmative-action-in-admissions
[21] NBC News: https://www.nbcnews.com/politics/supreme-court/supreme-court-hears-challenges-affirmative-action-college-admissions-rcna54564
[22] Ibid.
[23] Associated Press: https://apnews.com/article/voting-rights-ketanji-brown-jackson-us-supreme-court-college-admissions-affirmative-action-196ab930c799bcdc8b2a4a220641dd48
[24] Ibid.
[25] Bloomberg Law: https://news.bloomberglaw.com/us-law-week/elite-college-admissions-cases-put-justices-on-collision-course
[26] Ibid.
[27] Georgia Recorder: https://georgiarecorder.com/2022/10/31/affirmative-action-supporters-rally-outside-the-u-s-supreme-court/Harvard Crimson: https://www.thecrimson.com/article/2022/10/31/duel-rallies-admissions-dc-scotus/
[28] Harvard Crimson: https://www.thecrimson.com/article/2022/10/31/duel-rallies-admissions-dc-scotus/
[29] SCOTUSblog: https://www.scotusblog.com/2022/10/affirmative-action-appears-in-jeopardy-after-marathon-arguments/
[30] Associated Press: https://apnews.com/article/voting-rights-ketanji-brown-jackson-us-supreme-court-college-admissions-affirmative-action-196ab930c799bcdc8b2a4a220641dd48
[31] Georgia Public Broadcasting: https://www.gpb.org/news/2022/10/31/supreme-courts-conservatives-appear-skeptical-of-affirmative-action-in-admissions; SCOTUSblog: https://www.scotusblog.com/2022/10/affirmative-action-appears-in-jeopardy-after-marathon-arguments/
[32] Georgia Public Broadcasting: https://www.gpb.org/news/2022/10/31/supreme-courts-conservatives-appear-skeptical-of-affirmative-action-in-admissions
[33] Ibid.
[34] SCOTUSblog: https://www.scotusblog.com/2022/10/affirmative-action-appears-in-jeopardy-after-marathon-arguments/
[35] Ibid.
[36] Smithsonian Magazine: https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/
[37] Politico: https://www.politico.com/news/2022/10/28/supreme-court-affirmative-action-end-00063931


Biden’s Student Loan Forgiveness: Too Much, Not Enough, Just Right, or Beyond the President’s Authority?

In August, President Joe Biden’s administration announced a student loan forgiveness plan which would cancel up to $10,000 in debt for most borrowers and up to $20,000 for some borrowers.1 Current federal student loan borrowers who earn less than $125,000 per year (less than $250,000 per household) can have up to $10,000 forgiven and those who received Pell Grants can have up to $20,000 forgiven.2 Pell Grants are a type of federal financial aid for undergraduates who demonstrate the most need.3 As many as 43 million Americans could see their debt reduced through this plan.4

The plan is currently being challenged in court by several Republican state attorneys general. These states are arguing that President Biden is overstepping his authority and that the plan may harm some private lenders “because it would prompt millions of borrowers … to consolidate their debt into the main federal student program.”5

In addition, 22 Republican governors have argued that the plan is unfair to those who have already paid off their debt. “For many borrowers, they worked hard, made sacrifices, and paid off their debt,” wrote the governors. “For many others, they chose hard work and a paycheck rather than more school and a loan. Americans who did not choose to take out student loans themselves should certainly not be forced to pay for the student loans of others.”6

Democrats, including members of the Biden administration, have pushed back against these arguments. “Let’s be clear about what they would be trying to do here: The same folks who voted for a $2 trillion tax giveaway for the rich and had hundreds of thousands of dollars of their own small business loan debt forgiven would be trying to keep millions of working middle-class Americans in mountains of debt,” said White House spokesperson Abdullah Hasan.7

However, the Biden administration is also receiving pushback from members of its own party who believe the plan does not go far enough. For example, campaign strategist Angelo Greco said, “It’s a small, small addition. … I just don’t see how anyone who has been pushing for at least $50,000 and citing all the racial equity stats as motivation to do it can be thrilled about something that scratches the surface of a systemic crisis.”8

“We think roughly 20 million people will be debt-free,” said Thomas Gokey, an organizer with the Debt Collective. “For many others this will do very little. We have more work to do.”9 For his part, Senator Bernie Sanders, I-Vt., called the move “a big deal” but added he believes “we have got to do more” to make higher education more affordable, such as making public colleges tuition free.10

It is not clear how the courts will rule on the various challenges being raised against the student loan forgiveness plan, but it is clear that this issue will be on voters’ minds during the midterms and other elections to come.

Join Us! On November 16, Close Up will host a free online panel discussion about student loan forgiveness and the costs of higher education (register here). The webinar will be followed by a reflection session for students from across the country to share their views on this pressing issue (register here).

Discussion Questions

  1. Are you worried about the costs of college? Why or why not?
  2. Do you support President Biden’s student loan forgiveness plan? Why or why not?
  3. Do you think the federal government should take other steps relating to the cost of college? If so, what actions would you support?


As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Paul Morigi/Getty Images
[1] The College Investor: https://thecollegeinvestor.com/40628/president-bidens-student-loan-forgiveness/
[2] CBS News: https://www.cbsnews.com/news/student-loan-forgiveness-application-biden-relief-plan/
[3] CNN: https://www.cnn.com/2022/08/25/politics/pell-grant-student-loan-forgiveness/index.html
[4] Axios: https://www.axios.com/2022/09/20/biden-student-loan-forgiveness-legal-challenges
[5] CNBC: https://www.cnbc.com/2022/10/24/bidens-student-loan-forgiveness-plan-is-on-hold-what-borrowers-need-to-know.html
[6] Business Insider: https://www.businessinsider.com/gop-governors-block-student-debt-relief-states-millions-would-benefit-2022-9
[7] CNBC: https://www.cnbc.com/2022/09/07/republicans-may-try-to-block-student-loan-forgiveness.html
[8] The Hill: https://thehill.com/homenews/administration/3614316-progressives-hail-biden-for-action-on-student-loans/
[9] Ibid.
[10] Forbes: https://www.forbes.com/sites/nicholasreimann/2022/08/24/progressives-praise-bidens-student-debt-cancellation-as-gop-and-moderates-voice-concern/?sh=3ab17b8074da


Despite White House Push for Updated COVID-19 Boosters, Americans Are Slow to Roll Up Their Sleeves

Last Wednesday, the Food and Drug Administration expanded eligibility for updated COVID-19 booster shots to include children as young as five. Prior to this announcement, the revised Pfizer vaccine was restricted to those 12 and older and the Moderna vaccine was restricted to those 18 and older.1

These updated booster shots address the BA.4 and BA.5 subvariants of the omicron variant that first appeared in November 2021. They also address the original strain of the COVID-19 virus and have been shown to be highly effective in combating the worst effects of the virus. While widespread vaccination continues to be a critical element in White House efforts to combat the pandemic, many Americans young and old have not received all of the booster shots recommended to them.

The updated booster shots have had a slow uptake nationally among both adults and children, proving to be a significant challenge to the pandemic strategy of President Joe Biden’s administration. The administration continues to grapple with dwindling public interest and shrinking funding for the pandemic response.

While the initial vaccines were highly sought after and widely distributed, successive boosters have received significantly less public interest. Of the 226 million Americans who completed the initial round of vaccination, only about half received at least one booster shot. Since the updated booster shots were authorized in August, only around 13 million Americans have received them.2 This may be in large part because Americans are unaware of the existence of this revised booster. According to one survey, half of adults said they had heard little or nothing about the new booster shots.3

Many families are particularly hesitant to vaccinate their children against COVID-19. According to the Centers for Disease Control and Prevention, only about a third of children aged 5-11 have received an initial round of vaccination.4 Within that group, only about 16 percent of children received the original booster shot, which became available to them in May.5 Public health officials are working to increase this number and to encourage parents to vaccinate their children with the revised booster.

Weekly Increase in the Number of US Children Ages 5-11Recieving their Initial Covid-19 Vaccination”

The Biden administration has prioritized vaccination amidst its struggle to secure funding for the continued fight against COVID-19. This summer, the administration requested that Congress allocate billions of dollars to pay for more vaccines, testing, therapeutics, and research to combat future variants.6

In March, House Democrats dropped a COVID-19 aid package from a broader spending package to fund the government after some in their caucus disagreed with plans to pay for it by redirecting money set aside for some state governments to address their pandemic needs as part of the American Rescue Plan. A few weeks later, a smaller bipartisan deal came together in the Senate, but it ultimately collapsed when Republicans insisted the chamber vote on keeping pandemic border restrictions in place.7

To date, Congress has been unable to pass a new pandemic relief package. White House officials instead decided to repurpose federal COVID-19 funds meant for tests and protective equipment in order to supply more vaccines and antiviral pills.8 Around $10 billion in funds from the Department of Health and Human Services was rerouted, and about half of it was used to purchase vaccines for Americans ahead of a possible winter wave of virus cases. These reallocated funds were used to buy over 170 million doses of COVID-19 vaccine—enough to vaccinate most of the roughly 225 million Americans who have had an initial round of vaccination.9 Despite the Biden administration pouring resources into vaccination efforts, whether Americans will respond by rolling up their sleeves remains to be seen.

Discussion Questions

  1. What are some additional reasons that Americans who received the initial COVID-19 vaccine might not be getting the booster and updated booster shots?
  2. Given the low fatality rates among children, should the federal government prioritize efforts to get children vaccinated and boosted? If not, which groups should it prioritize and why?
  3. Do you support increased spending on vaccination efforts? Why or why not?


As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: Sarah ReingeWirtz/Medianews Group/ Los Angeles Daily News Via Getty Images
[1] Center for Disease Control and Prevention: https://www.cdc.gov/media/releases/2022/s1012-COVID-19-Vaccines.html
[2] New York Times: https://www.nytimes.com/2022/10/15/us/politics/covid-booster-shots.html
[3] New York Times: https://www.nytimes.com/2022/09/30/health/omicron-booster-covid.html
[4] American Academy of Pediatrics: https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-vaccination-trends
[5] New York Times: https://www.nytimes.com/2022/10/12/us/politics/covid-booster-shots-kids.html
[6] CBS News: https://www.cbsnews.com/news/covid-vaccines-updated-boosters-new-ad-campaign-biden-administration/
[7] Washington Post: https://www.washingtonpost.com/politics/2022/09/20/gop-balks-covid-funding-after-biden-declares-pandemic-is-over/
[8] New York Times: https://www.nytimes.com/2022/06/08/us/politics/vaccines-white-house-funding.html
[9] New York Times: https://www.nytimes.com/2022/10/15/us/politics/covid-booster-shots.html


Does Religious Freedom Guarantee Abortion Access?

On October 6, three Jewish women filed a lawsuit against the state of Kentucky claiming that the state’s current abortion restrictions are vague and violate their religious freedom.1 Kentucky’s state legislature passed a series of bills in 2019 that banned abortion from fertilization, only allowing for abortion if the mother’s life is in danger. There are no exceptions for rape or incest.2

These laws were allowed to go into effect after the Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization (2022). That decision overturned Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), both of which previously found that access to abortion was a constitutional right. Because of the Dobbs decision, access to and restrictions on abortion are now in the hands of the states.3

The women in the Kentucky lawsuit all argue that the abortion ban violates Jewish law and practices and forces pregnant Jews to conform to another set of religious beliefs. For over a millennium, Jewish scholars have developed answers to questions regarding when life starts, reproductive rights, and abortion. The majority of Jewish denominations teach that a fetus becomes a human life at birth; therefore, a fetus does not have the same rights as a person. They believe that the life and health of the mother (frequently understood to include mental and emotional health) must take precedence over that of the fetus.4

The case claims that Kentucky law forces Jewish women who screen their pregnancies and in vitro fertilization (IVF) embryos for genetic anomalies to violate their religious beliefs by continuing unviable pregnancies. The case also states that families are harmed financially by requiring storage for embryos indefinitely.5

Jessica Kalb, who has struggled with infertility, has nine embryos currently frozen from her previous round of IVF and wants another child. However, the embryos have not been screened to see if they are compatible with life, and under Kentucky law, it is unclear if disposing of incompatible embryos would be illegal. She has decided not to go forward with another pregnancy.

Lisa Sobel’s daughter is also a result of IVF, and the Sobel family wants more children. However, she had a very difficult first pregnancy and worries what might happen in the second. “At this point, I’m scared to try and have another child,” she said. “If I miscarry, I could bleed out before the doctors and the lawyers could decide whether or not they could treat me or if I needed to be prosecuted, and that’s not a risk I’m willing to take for myself or my child or my husband.”6

Finally, Sarah Baron claims in the lawsuit that as an Ashkenazi Jew, she has a higher risk of passing on genetic diseases such as Tay-Sachs disease, which is always fatal.7 The suit states that without the option of abortion, nonviable pregnancies cause psychological harm to the mother and cannot be terminated as is expected under Jewish law.8 The case is scheduled to be heard on November 15.

In response, Kentucky Attorney General Daniel Cameron indicated that he would defend the law. “The General Assembly has made it clear that Kentucky will protect unborn life and these laws are an important part of the commonwealth,” he said on October 6.9 Cameron is running for governor in 2023 and his platform addresses his support for ending abortion in the state.

Other states’ abortion restrictions are also being challenged in court by Jewish communities. In Indiana, Hoosier Jews for Choice are plaintiffs in a case suing the state over its abortion restrictions, and in Florida, a synagogue is taking the issue to court.10 Also in Florida, three rabbis joined a suit that includes a United Church of Christ reverend, a Unitarian Universalist minister, an Episcopal Church priest, and a Buddhist lama in order to challenge the restrictions in the state.11 It is likely that other organizations in states where abortion is restricted will follow.

Discussion Questions

  1. Kentucky law states that human life starts at fertilization. Does it matter if that law is at odds with a person’s deeply held religious beliefs? Why or why not?
  2. IVF is a medical intervention that relies on extracting and fertilizing multiple eggs at a time, knowing that not all will be used. What should be done with the unused embryos?
  3. Deeply held religious beliefs have granted individuals and organizations permission to refuse vaccination compliance or to refuse to cover certain types of health care for their employees. How is the Kentucky case similar to or different from those religious arguments?


As always, we encourage you to join the discussion about abortion and religious freedom with your comments or questions below.



Featured Image Credit: Bruce Schreiner/AP
[1] Sobel et al. v. Cameron: https://htv-prod-media.s3.amazonaws.com/files/sobel-complaint-against-cameron-1665079005.pdf; Washington Post: https://www.washingtonpost.com/religion/2022/10/10/kentucky-abortion-law-2022-jewish-lawsuit/
[2] Kentucky Legislature: https://apps.legislature.ky.gov/recorddocuments/bill/19RS/hb148/bill.pdf
[3] Supreme Court: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
[4] National Council of Jewish Women: https://www.ncjw.org/wp-content/uploads/2019/05/Judaism-and-Abortion-FINAL.pdf; Rabbi Susan Grossman: https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/grossman_partial_birth.pdf
[5] Sobel et al. v. Cameron: https://htv-prod-media.s3.amazonaws.com/files/sobel-complaint-against-cameron-1665079005.pdf
[6] Lexington Herald-Leader: https://www.kentucky.com/news/politics-government/article266756996.html
[7] Boston Medical Center: https://www.bmc.org/genetic-services/jewish-genetic-disease-screening
[8] Sobel et al. v. Cameron: https://htv-prod-media.s3.amazonaws.com/files/sobel-complaint-against-cameron-1665079005.pdf
[9] ABC News: https://abcnews.go.com/Health/wireStory/jewish-women-cite-faith-contesting-kentucky-abortion-ban-91135292
[10] Indy Star: https://www.indystar.com/story/news/2022/09/08/indiana-abortion-law-runs-afoul-of-religious-freedom-restoration-act-lawsuit-claims/66888195007/; NPR. https://www.npr.org/2022/06/15/1105229512/florida-abortion-law-synagogue-lawsuit-15-weeks
[11] Reuters: https://www.reuters.com/world/us/florida-clergy-lawsuits-say-abortion-ban-violates-religious-freedom-2022-08-02/


The Voting Rights Act Goes to Court, Again

On October 4, the Supreme Court heard oral argument in the case of Merrill v. Milligan. In that case, the Court is considering whether the Voting Rights Act of 1965 should apply to Alabama’s recent congressional redistricting. One section of the Voting Rights Act requires that states provide minority voters with “an equal opportunity to participate in the political process.”1

Close Up Classroom Resources

Gerrymandering: Should the federal government mandate that states end partisan gerrymandering?

What Are the Details of the Case?

Alabama has a large Black population but that population does not have a significant impact on the election of Alabama’s members of the House of Representatives.2 Only one of Alabama’s seven districts is set up so that minority voters have the potential to sway the election. According to the National Conference of State Legislatures, Black voters have less opportunity than other Alabamians to elect congressional candidates of their choice.3 As NPR reports, ”Black voters are either concentrated in that district so they are a supermajority there or spread out across the remaining six districts so that their voting power is diluted. It’s a practice known as packing and cracking.”4

A summary of the case’s road to the Supreme Court from Axios states:

  • A three-judge lower court, including two appointees of former President Donald Trump, found in January that Alabama’s congressional map violated Section 2 of the Voting Rights Act. “The appropriate remedy is a congressional redistricting plan that includes either an additional majority-Black congressional district, or an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice,” the judges said in a 225-page ruling.
  • The state of Alabama asked the Supreme Court to put the lower court ruling on hold while it appealed, which the justices allowed, the Associated Press reports.5

WATCH: The Supreme Court Hears Oral Argument in Alabama Racial Gerrymandering Case, from NBC News

What Were Alabama’s Arguments?

The state of Alabama argues that its districts are legal and that they were drawn in a race-neutral manner.6 During oral argument, the attorney for Alabama argued that there are many possible configurations of the congressional districts, and that computer models did not necessarily produce a map that was more favorable to minority voters. They stated that even the “plaintiffs’ [the other side’s] own witnesses testified about millions of possible race-neutral plans that, like Alabama’s plan, have no more than one majority-minority district. Plaintiffs were able to produce comparator plans with more majority-Black districts only by starting with a ‘nonnegotiable’ racial target and backfilling with other redistricting criteria after that target had been hit.”7

What Were the Plaintiffs’ Arguments?

Deuel Ross, senior counsel for the NAACP Legal Defense Fund, argued for the plaintiffs. “There is nothing race-neutral about Alabama’s map,” he said. “The Black Belt is a historic and extremely poor community of substantial significance. Yet Alabama’s map cracks that community and allows [a] white block voting to deny Black voters the opportunity to elect representation responsive to their needs.”8

Ross also argued that the plaintiffs were not asking for guarantees that Black voters would be a majority or the major force in any district. Instead, they were asking for a plan that drew Black voters in districts where they are given “at least a fair chance—not even a guaranteed chance—to elect their candidates of choice in a second district.”9

WATCH: A Starting Point’s Divide & Conquer

What’s Next?

While the Supreme Court has already heard the case, it is unlikely that its decision will be handed down before June 2023.

Discussion Questions

  1. What have you learned about redistricting in Alabama, gerrymandering, and the Voting Rights Act?
  2. What other issues relating to elections and voting do you think are important to discuss?
  3. How do you think the Supreme Court should rule in this case? Why?
  4. Do you believe that the U.S. system of campaigns, elections, and voting is fundamentally fair? Why or why not?

As always, we encourage you to join the discussion with your comments or questions below.



Featured Image Credit: William Hennessy, featured in SCOTUSblog
[1] Axios: https://www.axios.com/2022/10/04/supreme-court-voting-rights-act-merrill-milligan
[2] SCOTUSblog: https://www.scotusblog.com/2022/10/conservative-justices-seem-poised-to-uphold-alabamas-redistricting-plan-in-voting-rights-act-challenge/
[3] National Conference of State Legislatures: https://www.ncsl.org/blog/2022/07/26/-supreme-court-to-decide-alabama-redistricting-case.aspx
[4] NPR: https://www.npr.org/2022/10/04/1126804414/supreme-court-voting-rights-act
[5] Axios: https://www.axios.com/2022/10/04/supreme-court-voting-rights-act-merrill-milligan
[6] CBS News: https://www.cbsnews.com/news/supreme-court-hears-alabama-redistricting-case/
[7] National Conference of State Legislatures: https://www.ncsl.org/blog/2022/07/26/-supreme-court-to-decide-alabama-redistricting-case.aspx
[8] NPR: https://www.npr.org/2022/10/04/1126804414/supreme-court-voting-rights-act
[9] CBS News: https://www.cbsnews.com/news/supreme-court-hears-alabama-redistricting-case/