As the justices enter the final week of June (and, presumably, the final week before they begin their summer recess), they have 10 cases remaining — almost all of which are among the biggest cases of the term, presenting issues such as the role of race in college admissions, the legality of the Biden administration’s student-loan forgiveness program, and the extent to which employers must accommodate the religious practices of their employees.
The justices are scheduled to issue opinions on Tuesday. The court has not yet announced what other days this week it will issue opinions, but we know that Tuesday is not the last opinion day before the summer recess.
Here are brief summaries of all 10 as-yet-undecided cases, along with (when possible) discussion about who may be writing which opinions:
- Students for Fair Admissions v. University of North Carolina (argued Oct. 31, 2022): Students for Fair Admissions, the group bringing the lawsuit, contends that UNC violates the 14th Amendment’s equal protection clause, which bars racial discrimination by government entities, by considering race in its admissions process when it does not need to do so to achieve a diverse student body. It is not yet possible to predict precisely which justice may be writing the opinion, but three justices – Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh – have not yet written opinions for the court’s November argument session, so they are the likely pool of authors for the UNC and Harvard cases. Moreover, Kavanaugh has already written seven opinions, while Roberts and Alito have only written three each, so Roberts and Alito are more likely to be writing the remaining November cases. Look for Roberts to be writing the Harvard and UNC cases, and Alito to be writing Mallory.
- Students for Fair Admissions v. Harvard College (argued Oct. 31, 2022): This is a lawsuit brought by Students for Fair Admissions, the same group that filed the lawsuit against UNC, alleging that Harvard violates Title VI of the Civil Rights Act, which bars entities that receive federal funding from discriminating based on race, because Asian American applicants are less likely to be admitted than similarly qualified white, Hispanic, or Black applicants. Justice Ketanji Brown Jackson, who until recently served on Harvard’s board of overseers, recused herself from the case.
- Mallory v. Norfolk Southern Railway Co. (argued Nov. 8, 2022): This case is a major dispute over personal jurisdiction – that is, a court’s power to hear a lawsuit against a defendant. The question before the court is whether a Pennsylvania court can hear a lawsuit brought against a Virginia-based railroad company by a Virginia man who worked for the railroad in Virginia and Ohio. The employee, Robert Mallory, blames his exposure to asbestos and other chemicals on the job for his diagnosis of colon cancer. To sue Norfolk Southern in Pennsylvania, he relied on a state law that requires out-of-state corporations to register with the state as a condition of doing business there; under state law, that registration gives state courts jurisdiction over the companies. But the Pennsylvania state courts ruled that Pennsylvania’s registration scheme violates the 14th Amendment’s due process clause by giving state courts jurisdiction over out-of-state corporations in all circumstances.
- 303 Creative v. Elenis (argued Dec. 5, 2022): In this case, the justices are grappling with the tension between legal protections for LGBTQ people and the rights of business owners who are opposed to same-sex marriage. Lorie Smith, a Colorado website designer, is a devout Christian who believes that marriage is limited to unions between heterosexual couples only. She wants to expand her business to include wedding websites, but does not want to create wedding websites for same-sex couples. She seeks a declaration that Colorado cannot enforce its anti-discrimination law against her. Roberts and Justice Neil Gorsuch are the only justices who have not yet written for the court’s December session. There’s obviously no way to know for sure, but Gorsuch seems to be the most likely candidate to write the opinion in 303 Creative, while Roberts would be more likely to write the court’s opinion (assuming there is one) in Moore.
- Moore v. Harper (argued Dec. 7, 2022): In this major election case, a group of Republican legislators from North Carolina argue that the “independent state legislature” theory – the idea that the Constitution’s elections clause gives state legislatures nearly unfettered authority to regulate federal elections, without interference from state courts – barred the North Carolina Supreme Court from setting aside a congressional map adopted by the state’s legislature. But it’s not clear whether the justices will reach that question. In April, the North Carolina Supreme Court, with a new 5-2 Republican majority, reversed its earlier ruling, holding that it lacked the power to review the challenges to the map.
- Biden v. Nebraska (argued Feb. 28, 2023): One of two challenges to the Biden administration’s student-debt relief plan, this case was filed by six states with Republican attorneys general. The debt relief plan relied on the HEROES Act, a law passed after the Sept. 11 attacks that gives the Secretary of Education the power to respond to a “national emergency” by “waiv[ing] or modify[ing] any statutory or regulatory provision” governing the student-loan programs so that borrowers are not “placed in a worse position financially” as a result of the emergency. The states contend that the HEROES Act does not give the secretary of education the power to implement the debt relief program and, moreover, that the program violates the laws governing federal agencies. Before the justices can consider those questions, however, they must decide whether the states have a legal right to sue at all. The states’ primary argument is that one of the challengers, Missouri, controls one of the largest holders and servicers of student loans in the country. If the program is allowed to go forward, the states say, it could cost the agency as much as $44 million each year. The student loan cases are the only cases from the court’s February argument session that have not yet been decided. However, there are six justices who have not yet written for the court’s February session – Roberts, Alito, Gorsuch, and Justices Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson – so one (or two) of those justices is likely writing in the student loan cases.
- Department of Education v. Brown (argued Feb. 28, 2023): The second challenge to the debt relief program comes from two individual student-loan borrowers. One is not eligible for any relief under the Biden plan because she does not have any federal student loans, while the other cannot obtain the full $20,000 in relief available to some borrowers under the Biden plan. They too question the Biden administration’s reliance on the HEROES Act, but they too must first overcome questions about their right to sue.
- Abitron Austria GmbH v. Hetronic Int’l (argued Mar. 21, 2023): Under the Lanham Act, an individual who “uses in commerce” a trademark that she does not own in a manner that is likely to cause consumer confusion can face civil liability. The question before the justices in this case is whether and when the Lanham Act applies to trademark infringement that occurs outside the United States. This is the only case remaining from the justices’ March argument session; Justice Sonia Sotomayor, the only justice who has not yet written for March, is almost certainly the author.
- Groff v. DeJoy (argued April 18, 2023): In the case of an evangelical Christian who declined to work as a postal carrier on Sundays, the justices are considering how far employers must go to accommodate the religious practices of their employers. Under federal law, employers cannot discriminate against workers for practicing their religion unless the employer can show that the worker’s religious practice cannot “reasonably” be accommodated without “undue hardship.” The former postal worker, Gerald Groff, has asked the justices to overturn a 1977 decision indicating that an “undue hardship” is anything that would require more than a trivial or minimal cost. Alito and Kagan are the only justices who have not yet written for the court’s April argument session, so they are the likely authors of Groff and Counterman.
- Counterman v. Colorado (argued April 19, 2023): “True threats” are not protected by the First Amendment. The question before the justices is how courts should determine what constitutes a “true threat.” The defendant in the case, Billy Counterman, was sentenced to four-and-a-half years in prison for stalking after he sent Facebook messages to a local musician that left her feeling “extremely scared.” Counterman contends that, to determine whether speech is a “true threat,” courts must consider the speaker’s intent; the state, by contrast, argues that courts should apply an objective test that looks at whether a reasonable person would regard the statement as a threat of violence.