October 2022 Supreme Court term nearing its end (which will likely be 6/27 and 6/28) (and possibly 6/29)

Politics
1

The Supreme Court has indicated it will release decisions later this morning (6/27).

11 cases remain, with 2 sets of consolidated cases, meaning 9 decisions are forthcoming. Or possibly 8 decisions and a dismissal as improvidently granted (Moore).

So likely two days, though it could drag to a third day.

October sitting

All cases decided.

November sitting

Students for Fair Admissions v. University of North Carolina, No. 21-707 [Arg: 10.31.2022]

Issue(s): (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.

Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199 [Arg: 10.31.2022]

Issue(s): (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

Mallory v. Norfolk Southern Railway Co., No. 21-1168 [Arg: 11.8.2022]

Issue(s): Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.

December sitting

303 Creative LLC v. Elenis, No. 21-476 [Arg: 12.5.2022]

Issue(s): Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

Moore v. Harper, No. 21-1271 [Arg: 12.7.2022]

Issue(s): Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

January sitting

In re Grand Jury, No. 21-1397 [Arg: 1.9.2023; Decided 01.23.2023]

Issue(s): Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication.

February sitting

Biden v. Nebraska, No. 22-506 [Arg: 2.28.2023]

Issue(s): (1) Whether six states have Article III standing to challenge the Department of Education’s student-debt relief plan; and (2) whether the plan exceeds the secretary of education’s statutory authority or is arbitrary and capricious.

Department of Education v. Brown, No. 22-535 [Arg: 2.28.2023]

Issue(s): (1) Whether two student-loan borrowers have Article III standing to challenge the Department of Education’s student-debt relief plan; and (2) whether the department’s plan is statutorily authorized and was adopted in a procedurally proper manner.

March sitting

Abitron Austria GmbH v. Hetronic Int’l, No. 21-1043 [Arg: 03.21.2023]

Issue(s): Whether the U.S. Court of Appeals for the 10th Circuit erred in applying the Lanham Act, which provides civil remedies for infringement of U.S. trademarks, extraterritorially to Abitron Austria GmbH’s foreign sales, including purely foreign sales that never reached the United States or confused U.S. consumers.

April sitting

Groff v. DeJoy, No. 22-174 [Arg: 04.18.2023]

Issue(s): (1) Whether the court should disapprove the more-than-de-minimis-cost test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 stated in Trans World Airlines, Inc. v. Hardison; and (2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.

Counterman v. Colorado, No. 22-138 [Arg: 04.19.2023]

Issue(s): Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

1 Like
2

A few guesses.

The Court will strike down affirmative action once and for all.

If the Supreme Court goes to the merits on the student loan case, they will strike down the student loan forgiveness. However, a distinct possibility (and in line with a decision recently released) that they find the Plaintiffs lacked standing.

In 303 Creative, I believe the Supreme Court will justly rule for the Petitioner.

In Moore, I believe the Supreme Court will likely dismiss as improvidently granted or in the alternative, issue a very tight ruling in favor of the Petitioner’s, but not adopting the Independent State Legislature Theory.

In Groff v DeJoy, I think there will be a tight decision in favor of the Petitioner.

3

303 Creative should have been tossed for standing, but I’m not bent out of shape about it. Let’s get that decision, and put this burgeoning theocracy on the road.

4

from the opinion

“We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial re- view.”

cold hard reject by SCOTUS.

Allan

5

Link to Opinion of the Court in Moore v Harper.

Well, the Supreme Court actually did the unexpected and swung and hit a home run, for the Respondents that is.

Interestingly, it has no immediate effect on the situation in North Carolina, due to the reversal of the North Carolina Supreme Court.

But it ensures that State Courts around the country retain full power to review State Legislative redistricting plans.

I have posted parts two and three of the summary of the holding of the court in full, which outlines the majorities decision.

  1. The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.

Marbury v. Madison, 1 Cranch 137, famously proclaimed this Court’s authority to invalidate laws that violate the Federal Constitution. But Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society’s “fundamental principles.” Id., at 177…

The Elections Clause does not carve out an exception to that fundamental principle. When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review. Pp. 11–26.

(a) In Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, this Court examined the Elections Clause’s application to a provision of the Ohio Constitution permitting the State’s voters to reject, by popular vote, any law enacted by the State’s General Assembly. This Court upheld the Ohio Supreme Court’s determination that the Federal Elections Clause did not preclude subjecting legislative acts under the Clause to a popular referendum, rejecting the contention that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I [the Elections Clause].” Id., at 569. And in Smiley v. Holm, 285 U. S. 355, this Court considered the effect of a Governor’s veto, pursuant to his authority under the State’s Constitution, of a congressional redistricting plan. This Court held that the Governor’s veto did not violate the Elections Clause, reasoning that a state legislature’s “exercise of . . . authority” under the Elections Clause “must be in accordance with the method which the State has prescribed for legislative enactments.” Id., at 367. The Court highlighted that the Federal Constitution contained no “provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.” Id., at 368.

This Court recently reinforced the teachings of Hildebrant and Smiley in Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, a case concerning the constitutionality of an Arizona ballot initiative to amend the State Constitution and to vest redistricting authority in an independent commission. Significantly for present purposes, the Court embraced the core principle espoused in Hildebrant and Smiley: Whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the State Constitution. The Court dismissed the argument that the Elections Clause divests state constitutions of the power to enforce checks against the exercise of legislative power.

The basic principle of these cases—reflected in Smiley’s unanimous command that a state legislature may not “create congressional districts independently of” requirements imposed “by the state constitution with respect to the enactment of laws,” 285 U. S., at 373—commands continued respect. Pp. 15–18.

(b) The precedents of this Court have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution. The argument to the contrary does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Thus, when a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the state legislature’s exercise of power.

This Court’s decision in McPherson v. Blacker, 146 U. S. 1, in which the Court analyzed the Constitution’s similarly worded Electors Clause, is inapposite. That decision did not address any conflict between state constitutional provisions and state legislatures. Nor does Leser v. Garnett, 258 U. S. 130, which involved a contested vote by a state legislature to ratify a federal constitutional amendment, help petitioners. That case concerned the power of state legislatures to ratify amendments to the Federal Constitution. But fashioning regulations governing federal elections “unquestionably calls for the exercise of lawmaking authority.” Arizona State Legislature, 576 U. S., at 808, n. 17. And the exercise of such authority in the context of the Elections Clause is subject to the ordinary constraints on lawmaking in the state constitution. Pp. 18–22.

(c) Petitioners concede that at least some state constitutional provisions can restrain a state legislature’s exercise of authority under the Elections Clause, but they read Smiley and Hildebrant to differentiate between procedural and substantive constraints. But neither case drew such a distinction, and petitioners do not in any event offer a defensible line between procedure and substance in this context. Pp. 22–24.

(d) Historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. Two state constitutional provisions adopted shortly after the founding expressly constrained state legislative action under the Elections Clause. See Del. Const., Art. VIII, §2 (1792); Md. Const., Art. XIV (1810). In addition, multiple state constitutions at the time of the founding regulated the “manner” of federal elections by requiring that “elections shall be by ballot.” See, e.g., Ga. Const., Art. IV, §2. Moreover, the Articles of Confederation—from which the Framers borrowed—provided that “delegates shall be annually appointed in such manner as the legislature of each state shall direct.” Art. V. Around the time the Articles were adopted, multiple States regulated the appointment of delegates, suggesting that the Framers did not understand that language to insulate state legislative action from state constitutional provisions. See, e.g., Del. Const., Art. XI (1776). Pp. 24–26.

  1. Although the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, federal courts must not abandon their duty to exercise judicial review. This Court has an obligation to ensure that state court interpretations of state law do not evade federal law. For example, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation, 524 U. S. 156, 167. While the Court does not adopt a test by which state court interpretations of state law can be measured in cases implicating the Elections Clause, state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.

The Court need not decide whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause, as petitioners did not meaningfully present the issue in this Court. Pp. 26–29.

380 N. C. 317, 868 S. E. 2d 499, affirmed.

6

basically keeps the current checks and balances on each of the state legislatures.

Allan

7

Look like they are going to skip Wednesday (6/28) and have announced Thursday (6/29) as an opinion day. Since only three opinions were released today, Friday (6/30) will now likely be the final day. Generally they try to avoid slipping into July.

Possible they are still trying to hammer out the final language in the concurrences and dissents on the affirmative action cases.

8

who do you think will author the opinion. Roberts again?

Allan

9

Chief Justice will almost certainly write the affirmative action cases.

10

what, the court will sidestep the issue and fail in the duty it claimed existed to strike down laws anathema to the constitution in Marburry? Yeah, they will

of course they will… they certainly aren’t going to rule to give up their own power

11

Its in and done.

“The student must be treated based on his or her experiences as an individual—not on the basis of race,” Roberts wrote. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

https://www.washingtonpost.com/politics/2023/06/29/affirmative-action-supreme-court-ruling/

1 Like
12

Kill it!

1 Like
13

Link to Opinion of the Court in Groff v DeJoy.

Opinion by Alito for a UNANIMOUS court.

Postal Service cannot deny workers the religious accommodation of Sunday off under Title VII, unless it would substantially raise costs.

Very surprised that this was unanimous.

But I am glad to see that it was.

2 Likes
14

Opinion of the Court in the affirmative action cases.

2 Likes
15

It was beyond time for affirmative action to die for good.

It was intended as a TEMPORARY prophylactic in the wake of organized segregation, but was never intended to be a permanent state of affairs.

3 Likes
16

The Supreme Court has announced that all remaining decisions will be released tomorrow and that tomorrow will be the last day of the October 2022 Term.

1 Like
17

So I guess tomorrow is the day all those college kids find out that they aren’t going to magically be $20,000 dollars richer.

18

Opinion of the Court in 303 Creative by Justice Gorsuch for a 6 to 3 majority.

Victory, as expected, for the Petitioner.

1 Like
19

Next opinion is running late because both Gorsuch and Sotomayor are reading at length from their opinions from the bench.

20

Hooray for theocracy!