34. "What a Difference Five Years Makes..."

The justices wrapped up their scheduled annual business with a series of blockbuster rulings reinforcing just how far to the right the Court has moved since 2018

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

One editorial note about this week’s issue: Although I usually include a “Long Read” section—with a deeper dive into some historical or current aspect of the Court’s work—there’s enough straight news from the Court that it seems … unrealistic … to do both. Fear not; long reads will be back starting next Monday (probably beginning with why Jones v. Hendrix is such a massively important—and disappointing—ruling, even alongside last week’s more visible blockbusters).

But before turning to the news, it seems worth saying a few words about the headlines. As you may have noticed, there’s a significant split in mainstream media coverage of the (practical)¹ end of the Term—between those outlets playing up the idea that the Court moderated itself compared to the blockbuster series of conservative victories one year ago, and those pushing back and suggesting that this Term reflected, in many ways, just as significant a series of significant ideological shifts in American law.

Everyone’s going to have their own take on this debate. My own is far more sympathetic to the latter claim than the former. It’s hard to look at the Court’s 6-3 rulings on affirmative action; in the Colorado website designer case; and in striking down President Biden’s student loan program as anything other than massive shifts in both the law on the books and the law on the ground. Indeed, the implications of those cases are, in some respects, even more important than the rulings themselves. In contrast, the cases painted as “liberal victories” typically involve coalition majorities that, while ruling against the most visibly “right” position in a case, either left the matter open for another day (e.g., United States v. Texas and Haaland v. Brackeen); or still endorsed a narrower version of the claim that it would’ve been unthinkable to see the Court adopt as recently as 2018 (Moore v. Harper).

More fundamentally, I am growing increasingly allergic to attempts to characterize the Court’s work by aggregating statistics about the Court’s decisions in argued cases. (See, e.g., this New York Times recap.) I have an op-ed up this morning over at MSNBC that unpacks this issue in a lot more detail (with numbers of its own); here’s the short version:

these kinds of “judge the Supreme Court by its data” assessments are even worse than just an ordinary statistical error. First, they fail to account for the Supreme Court’s own role in choosing the cases it decides — so that the data is not random to begin with. Second, they ignore all of the Supreme Court’s significant rulings in other cases — those that don’t receive full briefing and argument. Finally, even within the carefully cultivated subset of cases on which these claims generally focus, these commentaries both miscount the divisions and treat as equal disputes that bear no resemblance to each other. It’s not that this data is completely irrelevant, but anyone relying upon it should take it with a very substantial grain of salt.

In all, my own view, which I’ll unpack in some detail in coming issues of this newsletter, is that the story of the Term was the Court’s continued assertion (and expansion) of judicial power to resolve virtually any and every conceivable contemporary legal dispute—and the conservative majority’s use of that expanded power to reach a series of results that, to quote Justice Sotomayor’s dissent in 303 Creative, underscores “what a difference five years makes.” It is the difference between a Court in which the median vote was held by Justice Anthony Kennedy and one in which it’s some combination of Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett; and it’s a difference that’s going to continue to produce profound effects in the shape and direction of American law going forward. It also ought to reignite public debate (and congressional investment) in the fundamental question of whether this is the role that we want nine unelected justices to play in our lives.

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On the Docket

Because the Court did so much last week, I’m going to break down the summary into four categories: Tuesday’s merits decisions; Thursday’s merits decisions; Friday’s merits decisions; and the Court’s two Order Lists (Monday and Friday).

Tuesday’s Merits Decisions

1. Mallory v. Norfolk Southern R. Co.: In a fractured decision that largely split the Court 5-4 (with Justices Thomas, Alito, Sotomayor, Gorsuch, and Jackson in the majority), the Court upheld against a due process challenge a Pennsylvania law that requires out-of-state businesses to consent to being sued in Pennsylvania as a condition of doing business in the state. In other words, states can require businesses to consent to “personal jurisdiction” in order to operate in the state—at least without violating the Due Process Clause. Justice Alito, whose vote was necessary to the result, wrote separately to suggest that he thinks the Pennsylvania law violates the Dormant Commerce Clause—leaving the door open to other challenges to laws like Pennsylvania’s going forward. Students and teachers of first-year Civil Procedure, beware.

2. Counterman v. Colorado: For what was basically a 7-2 majority, Justice Kagan clarified the standard for when the First Amendment does and doesn’t protect against criminal prosecution for online harassment in a “true threats” case. Instead of siding with the lower courts (which held that the question is only whether the defendant’s speech would be perceived as threatening by a reasonable observer), or the defendant (who argued that the government should have to prove that he specifically intended to threaten the victim), the Court forged what is at least superficially an intermediate position: “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.” Whether the first sentence or the second turns out to be more important will have a lot to do with how significant the ruling is going forward.

3. Moore v. Harper: This one got a lot of headlines. For a 6-2 majority (Justice Alito dissented only on procedural grounds), Chief Justice Roberts rejected the broadest view of the “independent state legislature” theory, holding that, in general, the federal Constitution does not bar state courts from striking down state laws governing federal elections on the ground that they violate the state constitution. But, the majority specifically endorsed the possibility that there could be cases in which a state supreme court’s interpretation of its own constitution is so unjustified as to run afoul of the Elections Clause and warrant federal judicial intervention. The Court refused to explain where that line is, but holding that it exists is a pretty significant step in its own right, and opens the door to lots of fighting, including in the middle of an election cycle, over whether state courts have or haven’t crossed it (with the U.S. Supreme Court getting the last word). So the Court avoided what would have been a truly stunning holding today in exchange for the possibility of a series of election-outcome-altering rulings later.

Thursday’s Merits Decisions

1. Abitron Austria GmbH v. Hetronic Int’l, Inc.: The five Justices in the majority, in an opinion by Justice Alito, held that federal trademark law applies “only to claims where the claimed infringing use in commerce is domestic,” so that litigants can’t sue based on infringing use of a trademark that takes places overseas. Concurring in the judgment, Justice Sotomayor (joined by Chief Justice Roberts and Justices Kagan and Barrett) would have held that trademark law “extends to activities carried out abroad when there is a likelihood of consumer confusion in the United States.” This is a good example of the dangers of relying on data about “unanimity.” The result in Abitron was unanimous because, under either test, the lower court went too far. But the Court actually split 5-4 on what the test should be going forward, which is the far more significant holding going forward. (See also Sackett v. EPA.)

2. Groff v. DeJoy: For a unanimous Court, Justice Alito held that “Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business” in order for the accommodation to be the kind of “undue hardship” exempted from the statute. In other words, religious accommodations are not required by federal employment discrimination law, but they require more justification than prior case law had demanded.

3. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College: The Court resolved the two affirmative action cases in a single, 237-page ruling. By now, you’ve surely seen the headlines; for a 6-3 majority, Chief Justice Roberts struck down the race-based admissions policies at both Harvard and the University of North Carolina (the former for violating Title VI of the Civil Rights Act; the latter for violating the Equal Protection Clause of the Fourteenth Amendment). The real question going forward is whether the ruling only “guts” affirmative action programs, or whether it categorically forecloses them. Justice Thomas’s concurrence and the dissents suggest it’s the latter; the Chief’s majority opinion says it’s the former (e.g., by leaving open the possibility that an applicant could rely upon the role their race played in shaping their upbringing in a personal statement; and by not resolving the validity of race-based affirmative action at the military’s service academies). Suffice it to say, there’s a lot more to say about the ruling. Stay tuned for a future issue.

Friday’s Merits Decisions

1. 303 Creative LLC v. Elenis: For a 6-3 Court, Justice Gorsuch held that “the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” There’s a lot of discussion out there about the New Republic’s reporting re: the dubious origins of the lawsuit in this case. I’ll just say that, the reporting aside, the Court has long been (in my view, appropriately) generous in allowing pre-enforcement challenges to state laws that allegedly infringe First Amendment rights. (Indeed, to the chagrin of many conservatives.) And Colorado agreed to a number of stipulations in the trial court that may have been … less than wise, and that also go a long way toward why there was standing here. To me, the real issue here is the merits of the Court’s First Amendment analysis, and whether, once a business chooses to be a “place of public accommodation,” it can nevertheless claim the same expressive rights that we all have as private individuals. Even if the answer is yes, drawing the line going forward between when business speech is “expressive” and when it isn’t is going to be a minefield.

2. Department of Education v. Brown: For a unanimous Court, Justice Alito held that private plaintiffs lacked standing to challenge President Biden’s student loan debt forgiveness program. The ruling was yet another reversal in a case from the Fifth Circuit (which had denied a stay of the district court’s nationwide injunction against the program). But it also was quickly overtaken by the next—and last—ruling.

3. Biden v. Nebraska: For a 6-3 Court, Chief Justice Roberts held that Missouri, at least had standing to challenge the Biden administration’s student loan debt forgiveness program, and that the program was not authorized by the 2003 HEROES Act. I’ll have a lot more to say about this ruling, which strikes me as very wrong on both fronts (and, doctrinally, perhaps the most troubling decision of the entire Term). For now, let me just note the significance of the ruling not just for the student loan program, but for challenges to federal policies going forward: First, if a state has standing to challenge any federal policy that injures any state actor, that could be used by states going forward to bring an array of lawsuits that would previously have not been possible. Second, on the merits, the Court’s continued expansion of the so-called “major questions doctrine” will only empower lower-court judges going forward to decide for themselves whether a challenged federal policy is of sufficient “economic or political significance,” and, if so, to require that Congress have expressly authorized the policy. Given the growing abuse of single-judge divisions, these holdings are, together and separately, a recipe for government by injunction.

(Lots of) Orders

The nine decisions in argued cases were only a minority of the Court’s overall output last week. Between Monday’s and Friday’s Order Lists, the Court also issued a whole bunch of orders—adding eight cases to its docket for the October 2023 Term, including a major Second Amendment case (about which I’ve written before) and a potentially enormous case about the power of administrative agencies like the Securities and Exchange Commission to take enforcement actions against private parties.

There were also nine summary dispositions of cases the Court had either already granted or was asked to grant. Some of these were unsurprising and/or totally technical. But the Court sent the Louisiana redistricting case back to the Fifth Circuit in light of its decision in the Alabama case earlier in June. And it dumped a case about whether a minority of members of a congressional committee can demand executive branch documents that it had previously agreed to take up next Term.

Finally, Friday’s Order List (from the “clean-up Conference”) included separate opinions from the Justices in eight different cases:

1. McClinton v. United States: Three of the opinions involve an issue the Court has been urged to resolve for years—whether federal courts can take conduct for which a defendant has been acquitted into account in sentencing the defendant for the conduct for which he was convicted. The U.S. Sentencing Commission is currently considering revisions to the practice, which four Justices (Sotomayor, Gorsuch, Kavanaugh, and Barrett) flagged as reason to wait to see if the issue is resolved through that process.

2. Harness v. Watson: Justice Jackson, in an opinion joined by Justice Sotomayor, dissented from the denial of certiorari in a case about whether Mississippi’s felon disenfranchisement laws can be challenged based upon their clearly racist origins. (The Fifth Circuit had said no because Mississippi had re-adopted the laws later, and without the obvious racist intent.)

3. Lombardo v. City of St. Louis: In a qualified immunity case, Justice Jackson noted that she would have granted certiorari, and Justice Sotomayor wrote an opinion dissenting from the denial, explaining that “the Eighth Circuit improperly seized the jury’s role and went too far in holding that there is no claim for unconstitutionally excessive force when six police officers handcuff, leg-shackle, and surround a man in a secure cell, put him face down on the floor, and push into his back for 15 minutes until he slowly dies.”

4. N.S. ex rel. Lee v. Kansas City Bd. of Police Comm’rs: Another Sotomayor dissent in another qualified immunity case arising out of another police killing.

5. Kincaid v. Williams: Joined by Justice Thomas, Justice Alito dissented from the Court’s refusal to take up a Fourth Circuit ruling holding that discrimination based upon gender dysphoria violates the Americans with Disabilities Act.

6. Roberts v. McDonald: In a statement “respecting” the denial of certiorari joined by Justice Thomas, Justice Alito took issue with a Second Circuit decision arising out of how New York City had prioritized access to oral antivirals at the height of the COVID pandemic—and whether those priorities could be challenged on the ground that they were based upon racial classifications.

7. Thompson v. Henderson: In another statement joined by Justice Thomas, Justice Alito took issue with a Washington Supreme Court decision that vacated a jury verdict after finding the possibility of racial prejudice in statements made by defense counsel during closing argument.

8. Clark v. Mississippi: In the only three-Justice dissent of the bunch (meaning the Court was one vote short), Justice Sotomayor wrote for herself and Justices Kagan and Jackson in criticizing the Court for not taking up a Mississippi Supreme Court ruling that had flown in the face of the U.S. Supreme Court’s 2019 decision in Flowers v. Mississippi—about how criminal defendants could demonstrate that prosecutors violated the “Batson” rule, barring the use of peremptory challenges to exclude jurors based upon race. Clark was the fourth case of the Term in which the three Democratic Justices publicly dissented from the denial of certiorari—cases that would likely have been grants before Justice Ginsburg’s death.

Other than housekeeping orders or orders on emergency applications, that should be it until the Court’s “Long Conference,” set for Tuesday, September 26 (happy birthday to me).

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SCOTUS Trivia: July Decisions

By clearing its docket on Friday, the Court avoided slipping into July for merits decisions. With the exception of 2020 (when, with COVID-related postponements, the Court didn’t issue its last decisions in argued cases until July 9), the Court has been assiduous about wrapping up its business by (or shortly after) July 4 for decades.

Hence today’s trivia: The last time the Court handed down decisions in argued cases after July 9 was 1974—when the Court had … a lot on its mind. It heard oral argument in United States v. Nixon on July 8 (handing down its ruling 16 days later). But Nixon wasn’t alone. The day after Nixon, on July 25, 1974, the Court handed down its final ruling of the October 1973 Term—holding, by a 5-4 vote, that a Michigan district court had gone too far in the desegregation plan it had put in place as a remedy for prior segregation of the Detroit schools (in a case that had been argued in February).

Those were the days.

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Happy Monday, everyone! I hope you have a great week.

1. Technically, the October 2022 Term doesn’t end until Sunday, October 1. So it’s possible that the Court could still hand down significant rulings that are part of “this” Term. But such a ruling would almost certainly have to come, if at all, on an emergency application. Everything else gets pushed to OT2023.