With the announcement of their decision in Allen v. Milligan last week, the justices have finally released all of the opinions from the court’s October argument session. Chief Justice John Roberts wrote for the majority in Allen, bringing his total number of opinions for the term so far to three and (at least for now) leaving Justice Samuel Alito in sole possession of last place with just two opinions released. Justice Neil Gorsuch did not announce any opinions last week, but he still remains out in front of the pack with five opinions released so far.
As of June 14, the court has 23 cases left to decide. For purposes of comparison, between June 13, 2022, and the last opinion day of the 2021-22 term (June 30, 2022), the court issued 29 decisions. The court had two opinion days during the week of June 13, three opinion days during the week of June 20, and three opinion days during the week of June 27. There are two opinion days – June 15 and June 16 – scheduled for this week, so recent history suggests that the justices should easily be able to finish up all of the remaining decisions by the end of the month.
Here are brief summaries of all 23 as-yet-undecided cases:
- 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.
- 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.
- Jones v. Hendrix (argued Nov. 1, 2022): This is a case filed by a federal inmate, Marcus Jones, who in 2000 was convicted of being a felon in possession of a firearm and was sentenced to more than 27 years in prison. In 2019, the Supreme Court ruled that the statute under which Jones was convicted requires prosecutors to show that the defendant knew that he was barred from possessing a gun – something that the government did not do for Jones, who contended that he believed that his record had been expunged. The question before the court is whether and how Jones can now challenge his detention when federal habeas corpus laws generally prohibit inmates from filing more than one petition for habeas corpus.
- 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.
- Haaland v. Brackeen (argued Nov. 9, 2022): This case is a challenge to the constitutionality of the Indian Child Welfare Act, a 1978 law that seeks to keep Native American children with Native American families. In child-custody proceedings in state court for the millions of Native American children who do not live on tribal land, ICWA establishes minimum standards for the removal of Native American children from their families and creates a preference that Native American children who are removed from their families be placed with extended family members or in Native foster homes.
- United States v. Texas (argued Nov. 29, 2022): Texas and Louisiana brought this challenge to a Biden administration policy that prioritizes certain groups of unauthorized immigrants – suspected terrorists, people who have committed crimes, and those caught recently at the border – for deportation. The states argue that federal immigration law requires the government to detain and deport far more noncitizens than the three groups identified as priorities; the Biden administration counters that it has broad discretion to deal with unauthorized immigrants. But before the justices can reach this question, they must decide a threshold issue: whether the states have a legal right to sue, known as standing, at all.
- 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.
- United States ex rel. Polansky v. Executive Health Resources (argued Dec. 6, 2022): At issue in this case is whether and when the government has the power to dismiss a whistleblower lawsuit filed under the False Claims Act when it initially declined to take over the case.
- 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.
- 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.
- Arizona v. Navajo Nation (argued Mar. 20, 2023): Rights to the water of the main stem of the Colorado River are at the center of this dispute between the Navajo Nation, on the one hand, and the United States (which controls tribal water rights) and three states – Arizona, Colorado, and Nevada – on the other. The question before the court centers on the federal government’s obligation to assess the Nation’s water needs and develop a plan to meet those needs.
- Coinbase v. Bielski (argued Mar. 21, 2023): The latest of the court’s many arbitration cases, this case arose from two disputes with Coinbase, a cryptocurrency exchange. Coinbase sought to compel the plaintiffs to arbitrate, but two federal district judges in California rejected its requests, and the U.S. Court of Appeals for the 9th Circuit allowed the litigation to continue while Coinbase appealed those rulings. The question before the Supreme Court is whether that litigation should move forward while the court of appeals decides whether arbitration is required.
- 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.
- United States v. Hansen (argued Mar. 27, 2023): The defendant in this case, Helaman Hansen, ran an “adult adoption” scheme: He persuaded more than 450 people to pay him a substantial fee, promising – falsely – that in return they would become U.S. citizens through adoption. Hansen was convicted on fraud charges, but he was also convicted of violating a federal law that makes it a crime to encourage or induce unlawful immigration. In this case, the justices are considering whether such a law violates the First Amendment’s guarantee of freedom of speech.
- Lora v. United States (argued Mar. 28, 2023): In this case, the justices are considering whether federal criminal sentencing laws require a New York man convicted for his role in a drug-trafficking-related murder to be sentenced to consecutive, rather than concurrent, sentences.
- Smith v. United States (argued Mar. 28, 2023): This case arises from the criminal prosecution of Timothy Smith, an Alabama software engineer and avid fisherman who was convicted and sentenced to 18 months in prison for hacking into the website of a Florida company that identifies and sells the locations of artificial fishing reefs. A federal appeals court agreed with Smith that he had been tried in the wrong place; the question for the justices is what the remedy for that mistake should be: Smith argues that he cannot be retried on that count anywhere, while the federal government contends (and the court of appeals agreed) that prosecutors can try him again somewhere else.
- Samia v. United States (argued Mar. 29, 2023): The Sixth Amendment’s confrontation clause guarantees a defendant in a criminal case the right to be “confronted with the witnesses against” him. In this case, the justices are considering whether Adam Samia’s Sixth Amendment right was violated in a murder-for-hire case by the introduction of a co-defendant’s confession that identified Samia as the person who pulled the trigger, but which replaced Samia’s name with neutral terms such as the “other person.”
- Pugin v. Garland (argued April 17, 2023): In a pair of immigration cases argued together, the justices are considering whether a criminal offense that does not interfere with an existing investigation or judicial proceeding – for example, being an accessory after the fact or discouraging a witness from reporting a crime – qualifies as an “offense relating to obstruction of justice,” which is a serious crime that can result in deportation and additional criminal punishment for noncitizens.
- 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.
- 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.
- Lac du Flambeau Band v. Coughlin (argued April 24, 2023): A provision of the Bankruptcy Code strips “governmental units” of their immunity from lawsuits for purposes of a variety of bankruptcy laws, including the automatic stay that bars all other efforts to collect debts. The law defines “governmental unit” to include (among other things) states, territories, and “other foreign or domestic government[s].” The question before the justices is whether that law is sufficiently clear to divest a Native American tribe of its sovereign immunity.
- Yegiazaryan v. Smagin (argued April 25, 2023): In this international racketeering dispute involving two Russian citizens, the justices are considering whether a foreign plaintiff whose only injury was to intangible property – such as a court judgment – has suffered the kind of “domestic” injury required to bring a claim under the Racketeer Influenced and Corrupt Organizations Act.