By Katelynn Richardson for the Daily Caller Foundation | May 14, 2023
- The Supreme Court has issued 18 opinions so far this term, with rulings in 40 more cases expected to be released before the end of June.
- The most consequential cases on the 2022-2023 term docket, including ones on affirmative action and religious accommodations, are yet to come.
- Other cases deal with compelled speech, Biden’s student loan forgiveness plan, social media companies’ liability, First Amendment issues and EPA water regulations.
Among the dozens of opinions yet to be released by the Supreme Court this term are cases on affirmative action, compelled speech and social media companies’ liability for content posted on their platforms.To date, the Court has released 18 opinions, issuing rulings that enabled those facing complaints from administrative agencies to press constitutional challenges in federal court and allowed a death row inmate’s request for a DNA test to proceed. But opinions in 40 more cases are expected to be released before the end of June, including some of the most consequential cases on this term’s docket.
Affirmative Action
Two cases heard in November, Students for Fair Admissions v. University of North Carolina (UNC), and Students for Fair Admissions v. President and Fellows of Harvard, weighed whether universities’ use of racial preferences in the admissions process is constitutional.
After five hours of oral arguments on the two cases, experts noted several justices appeared to be leaning towards ruling against affirmative action, which would force many institutions of higher education to reevaluate their policies.
Some colleges are already taking a second look at their admissions process in anticipation of the decision. The American Association of Collegiate Registrars and Admissions Officers advised its members in January to “begin to examine any admissions or recruitment practices that target populations of a specific race” in preparation for “possible major change.”
Compelled Speech
Lorie Smith, the plaintiff in 303 Creative LLC v. Elenis, challenged the Colorado Anti-Discrimination Act (CADA) because she wants to create wedding websites that reflect her belief that marriage is between one man and one woman. But Colorado’s law, which bans companies deemed public accommodations from restricting services based on sexual orientation, would compel her to also create websites for same-sex couples.
The Supreme Court’s decision in her case will impact creative professionals in 22 states with similar laws, including multiple states with pending lawsuits in the lower courts, clarifying whether the government can compel artists to express a message with which they disagree. (RELATED: SCOTUS’ Decision In Upcoming Case Could Have Massive Implications For Small Business Owners Of Faith)
It could also finally put an end to years of legal troubles for Masterpiece Cakeshop owner Jack Phillips. Despite the Supreme Court’s narrow 2018 decision vindicating his refusal to create a custom cake celebrating a same-sex wedding, Phillips is still fighting activist lawsuits—in April, he appealed his latest case, which stems from his decision to decline a request for a custom cake symbolizing gender transition, to the Colorado Supreme Court.
“We’re hopeful the Supreme Court affirms that artists are free to create consistent with their beliefs,” Alliance Defending Freedom Legal Counsel Bryan Neihart previously told the Daily Caller News Foundation.
Biden’s Student Loan Forgiveness Plan
Biden’s plan to grant loan forgiveness to nearly 40 million Americans could be undone, depending on how the Supreme Court’s decisions comes down in Biden v. Nebraska, and Department of Education v. Brown, two cases it heard on February 28.
The Biden administration justifies its plan to cancel up to $10,000 in student loan debt for non-Pell Grant recipients and up to $20,000 for Pell Grant recipients by citing a section of the 2003 HEROES Act that allows the secretary of education to “waive or modify” provisions of student financial assistance programs during a national emergency. Justices appeared skeptical during oral arguments that Congress intended the emergency authority to extend this far, raising separation of powers concerns.
Yet plaintiffs in both cases, a group of six states in the first, and two individual loan holders in the second, were faced with questions of standing that could allow the Court to sidestep the core issue if it is determined they lack the grounds to sue.
Social Media Companies’ Liability
The Supreme Court is considering a case on the scope of Section 230 of the Communications Decency Act of 1996, a hotly-debated law designed to protect online platforms from being held liable as the speaker of third-party content hosted on their website while providing leeway for them to restrict “objectionable” material.
The plaintiff in Gonzalez v. Google, the family of a 23-year old American student killed in a 2015 ISIS terrorist attack in Paris, argues YouTube aided and abetted in the attack through its targeted recommendations of ISIS videos designed to recruit members. The question before the Court is the extent of Google’s liability for content recommended by its algorithms under the law.
During oral arguments on February 21, justices appeared wary of wading into an area of policy Congress has yet to clarify: “We’re not the nine greatest experts on the internet,” Justice Elena Kagan quipped.
Religious Accommodations
In 2019, Gerald Groff sued his former employer, the U.S. Postal Service (USPS), for failing to exempt him from working on Sundays, a religious exemption he argues is required under federal law.
His case, which came before the Supreme Court on April 18, will have broad impacts for religious liberty in the workplace—potentially overturning decades-old precedent that found protections for religious employees could be limited if the accommodation would impose more than a trivial burden on the employer.
‘True Threats’ And The First Amendment
Speech ranging from online jokes to religious expression could be impacted by the Court’s definition of “true threats” in Counterman v. Colorado, a variety of groups who filed amicus briefs noted.
Billy Raymond Counterman was sentenced to four-and-a-half years in prison for repeated Facebook messages he sent to a local musician — saying things like “Die” and “Was that you in the white Jeep?” Counterman says he did not intend his words to be threatening and asks the Court to consider his mental state, rather than deferring to Colorado’s test of how a “rational person” would interpret the statement.
Now, the Court is tasked with answering the question: what constitutes a “true threat?” Oral arguments on April 19 revealed at least some justices are concerned that failing to account for the speaker’s intent will chill speech under the First Amendment.
Environmental Protection Agency (EPA) Water Regulations
The Supreme Court heard oral arguments on October 3 for Sackett v. Environmental Protection Agency (EPA), a case that considers the agency’s “waters of the United States” rule, which defines what waters are federally protected under the Clean Water Act. The case stems from a couple’s 15-year-long legal battle against the EPA, which told them they cannot build a house on land they own near Priest Lake, Idaho, because it contains wetlands.
The decision in Sackett could roll back the extent of the EPA’s authority to regulate under the Clean Water Act and force the Biden administration to reconsider its expansive new WOTUS definition. The administration’s rule has already been blocked in some states by a federal court pending the Supreme Court’s decision.
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