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Affirmative Action, Child Custody, and “Expressive” Websites: The Supreme Court’s 2022–2023 Term

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Abstract

The Supreme Court’s 2022–2023 Term included several cases that will interest mental health professionals. One demonstration of this interest was that the American Psychological Association filed amicus curiae briefs in three cases. In those cases, the Court struck down racial preferences in college admissions, upheld child custody provisions of the Indian Child Welfare Act, and permitted a creative web designer to refuse to create a website that amounted to “compelled speech.” The Court also struck down a “loan forgiveness” plan, clarified the False Claims Act’s relevance to false billing for psychological testing, and decided several disability cases. The article reviews these and other significant decisions and notes that “the shadow docket” continues to be a controversial but important way for the Court to oversee the work of lower courts. An analysis of the Term concludes that the Court was less divided this Term than last. The Court struggles with ethics and the appearance of ethical problems. It has accepted cases for the next Term involving the insanity defense, taxing “unrealized” income, funding for the Consumer Finance Protection Bureau, and social media.

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Notes

  1. Dobbs v. Jackson Women’s Health, decided June 24, 2022, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.

  2. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 10–1199, decided June 29, 2023.

  3. Haaland v. Brackeen, No. 21–376, decided June 15, 2023.

  4. 303 Creative LLC v. Elenis, No. 21–476, decided June 30, 2023.

  5. United States ex rel. Schutte v. Supervalu Inc., No. 21–1326, decided June 1, 2023.

  6. Dubin v. United States, No. 22–10, decided June 8, 2023.

  7. Amgen Inc. v. Sanofi, No. 21–757, decided May 18, 2023.

  8. Biden v. Nebraska, No. 22–506, decided June 30, 2023.

  9. Health and Hospital Corporation of Marion City. v. Talevski, No. 21–806, decided June 8, 2023.

  10. United States v. Hansen, No. 22–179, decided June 23, 2023.

  11. Sackett v. EPA, No. 21–454, decided May 25, 2023.

  12. Cruz v. Arizona, No. 21–846, decided Feb. 22, 2023, and Reed v. Goertz, No. 21–442, decided April 19, 2023.

  13. Moore v. Harper, No. 21–1271, decided June 27, 2023, and Allen v. Milligan, No. 21–1086, decided June 8, 2023.

  14. Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, No. 21–869, decided May 18, 2023.

  15. Twitter, Inc. v. Taamneh, No. 21–1496, decided May 18, 2023, and Gonzalez v. Google LLC, No. 21–1333, decided May 18, 2023.

  16. Jack Daniel’s Properties, Inc. v. VIP Products LLC, No. 22–148, decided June 8, 2023.

  17. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20–1199, decided June 29, 2023. This was a 6–2 decision. Chief Justice Roberts wrote for the majority, with Justices Thomas, Gorsuch, and Kavanaugh each joining the majority opinion but writing concurrences. Justices Sotomayor and Kagan dissented. (Justice Jackson was recused in this case because she had been on the board of Harvard). This case was combined with, Students for Fair Admissions, Inc. v. University of North Carolina, No. 21–707, in which Justice Jackson did participate. That was a 6–3 decision.

  18. It was also a complex alignment of justices. Here is how the Reporter of Decisions described it, “ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and in which JACKSON, J., joined as it applies to No. 21–707. JACKSON, J., filed a dissenting opinion in No. 21–707, in which SOTOMAYOR and KAGAN, JJ., joined. JACKSON, J., took no part in the consideration or decision of the case in No. 20–1199.”.

  19. Chief Justice Roberts briefly explained this in footnote 2 as follows: “Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003).”.

  20. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). In that case Justice Powell provided the majority opinion, although no other justice signed on to it. The Court was otherwise split 4–4.

  21. Grutter v. Bollinger, 539 U. S. 306, 326 (2003).

  22. Footnote 4 of the opinion has created some confusion. [“The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.” Id., footnote 4 at 22].Some commentators have incorrectly interpreted it to say that the military academies are exempt from the limitation on race-conscious admissions. [Nell Gluckman, The Supreme Court’s Ruling on Admissions Exempts Military Academies. What’s Up With That?, Chronicle of Higher Education (June 30, 2023), https://www.chronicle.com/article/the-high-courts-ruling-on-admissions-exempts-military-academies-whats-up-with-that?sra=true&cid=gen_sign_in.] That is an overreading of the note. The government raised the issue in a brief, but the Court did not decide that issue in this case.

  23. Students for Fair Admissions at 16–21. The Court noted that the First Circuit found that “Harvard’s consideration of race has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard.” The Court went on to say, “Respondents nonetheless contend that an individual’s race is never a negative factor in their admissions programs, but that assertion cannot withstand scrutiny.” Id. at 21.

  24. Id. at 39.

  25. Id. at 39–40.

  26. Id. at 39. Chief Justice Roberts said he gave this warning because of the dissent’s assertion that colleges might simply reestablish racial preferences “through application essays” other means. The Chief Justice added, “A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.” Id.

  27. Id. Footnote 4 of the opinion has created some confusion. Some commentators have incorrectly interpreted it to say that the military academies are exempt from the limitation on race-conscious admissions. That is an overreading of the note. The government raised the issue in a brief, but the Court did not decide that issue in this case.

  28. He concluded, “I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.” Justice Thomas, concurring at 58.

  29. Gorsuch, concurring, at 25, quoting Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 418, opinion of Stevens (internal quotation marks removed).

  30. Id. at 6–7. In a footnote Justice Gorsuch addressed the issue of whether it really was 25 years. “The Court’s decision will first apply to the admissions process for the college class of 2028, which is the next class to be admitted. Some might have debated how to calculate Grutter’s 25-year period—whether it ends with admissions for the college class of 2028 or instead for the college class of 2032. But neither Harvard nor North Carolina argued that Grutter’s 25-year period ends with the class of 2032 rather than the class of 2028. Indeed, notwithstanding the 25-year limit set forth in Grutter, neither university embraced any temporal limit on race-based affirmative action in higher education, or identified any end date for its continued use of race in admissions.”.

  31. Justice Kavanaugh, concurring.

  32. Justice Sotomayor, dissenting at 2.

  33. Id. at 25–26.

  34. Justice Jackson, dissenting at 1.

  35. Id. at 28–29, note 105.

  36. Clarence Thomas, My Grandfather's Son, Harper Perennial (2008).

  37. This statement is widely attributed to Justice Sotomayor at different times.

  38. Supreme Court Rule 37.1 specifical discourages repetitious amicus briefs. “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”.

  39. American Psychological Association, Massachusetts Psychological Association and North Carolina Psychological Association, Brief Amici Curiae in Support of Respondents in Students for Fair Admissions v. University of North Carolina (Aug. 1, 2022), https://www.supremecourt.gov/DocketPDF/21/21-707/232435/20220801152748025_2022-08-01%20Nos.%2020-1199%20and%2021-707%20%20American%20Psychological%20Assn%20Amici%20Brief.pdf.

  40. Id. at 5–15.

  41. APA brief at 4, 16, 21–23. Such “mismatched” students may receive lower grades and class rank, become frustrated, fall behind, or drop out because of the mismatch, which would not have occurred if they attended an institution more closely matched to their own academic qualifications.

  42. “Schools properly care about preventing racial isolation on campus because research shows that it matters for students’ ability to learn and succeed while in college if they live and work with at least some other people who look like them and are likely to have similar experiences related to that shared characteristic.” Citing See, e.g., Brief for University of Michigan as Amicus Curiae 6, 24; Brief for President and Chancellors of University of California as Amici Curiae 20–29; Brief for American Psychological Association et al. as Amici Curiae 14–16, 21–23 (APA Brief). Justice Jackson, dissenting at 22.

  43. Amici explain that students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality.” Citation in the opinion is: “See APA Brief 14–20, 23–27 (collecting studies); AFT Brief 11–12 (same); Brief for National School Boards Association et al. as Amici Curiae 6–11 (same); see also 567 F. Supp. 3d, at 592–593, 655–656 (factual findings in this case with respect to these benefits).” Justice Jackson, dissenting at 23.

  44. APA Brief in Students for Fair Admission. at 2.

  45. 92 Stat. 3069, 25 U. S. C. §1901(4).

  46. ICWA as 25 USC §1901(3).

  47. Haaland v. Brackeen, decided June 15, 2023, at 2–3. This was a 7–2 decision, with Justice Barrett writing for the Court. Justices Gorsuch and Kavanaugh wrote concurring opinions. Justices Thomas and Alito dissented.

  48. Haaland at 6–7. Justice Barrett describes the facts of each of the three cases before the Court.

  49. Id.

  50. Id.

  51. Id. at 2.

  52. Id. at 12–16. Further, the Court turned aside arguments that ICWA coerced state actions in violation of federalism principles.

  53. Justice Cavanaugh, concurring. Justices Sotomayor and Jackson joined the concurrence in the portion relating to the historical mistreatment of Native American children, but not join two other parts setting out a “view of the Indian-law bargain struck in our Constitution.” Id. at 12–36.

  54. Justice Thomas, dissenting.

  55. Justice Alito, dissenting at 1–2.

  56. Kavanaugh, concurring.

  57. Brief of the American Psychological Association, Society of Indian Psychologists, Indiana Psychological Association, Louisiana Psychological Association, And Texas Psychological Association as Amici Curiae in Support of the Federal and Tribal Petitioners, in Haaland v. Brackeen (Aug. 19, 2022), https://www.supremecourt.gov/DocketPDF/21/21-376/234093/20220819161628388_APA%20Amicus%20Brief.pdf.

  58. Id. at 10–24.

  59. Id. at 4.

  60. The ICWA “requires a state court to place an Indian child with an Indian caretaker if one is available. That is so even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.” Haaland Justice Barratt’s majority opinion at 2.

  61. E.g., note 48 is: “Sinclair, supra note 21, at 71.” But note 21 is “Ibid.” It is likely the reference is to note 41. The Walters citation in note 7 was harder to find because the volume number (92) was missing.

  62. Gorsuch, concurring at 12.

  63. APA Brief at 1.

  64. Arizona v. Navajo Nation, 21–1484, decided June 22, 2023. This was a 5–4 decision. Justice Kavanaugh wrote for the Court. Justice Thomas concurred (but joined the majority opinion). Justice Gorsuch dissented and was joined by Justices Sotomayor, Kagan, and Jackson.

  65. Justice Thomas, concurring.

  66. Justice Gorsuch, dissenting at 1.

  67. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 22–227, decided June 15, 2023. Justice Jackson wrote for the eight-justice majority. Justice Gorsuch dissented.

  68. Justice Gorsuch, dissenting.

  69. As described below, no client had actually requested the service and, therefore, Ms. Smith had not refused service to anyone. (See the stipulations below.).

  70. 303 Creative LLC v. Elenis, No. 21–476, decided June 30, 2023. This was a 6–3 decision. Justice Gorsuch wrote for the majority, and Justice Sotomayor wrote for the dissent, joined by Justices Kagan and Jackson.

  71. Petition GRANTED limited to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.” Grant of certiorari on Feb. 22, 2022, ScotusBlog.com, https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/.

  72. To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts (the Court’s citation to the stipulation are removed):

    • Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation.

    • She will not produce content that “contradicts biblical truth” regardless of who orders it.

    • Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction.

    • All of the graphic and website design services Ms. Smith provides are “expressive.”.

    • The websites and graphics Ms. Smith designs are “original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates.

    • Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.”.

    • Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage.

    • Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.”.

    • To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.” Id., at.

    The Court set out the critical stipulations at pages 4–5 of the majority opinion.

  73. National Institute of Family and Life Advocates v. Becerra, 585 U.S. ___, 138 S. Ct. 464 (2018); Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

  74. 303 Creative at 25–26.

  75. Id. at 12, and 24 note 7. The amici brief is Brief for Website and Graphic Designers as Amici Curiae in Support of Neither Party, 303 Creative v. Elenis (May 2022), https://www.supremecourt.gov/DocketPDF/21/21-476/226564/20220531091249418_21-476%20Amicus%20Brief%20of%20Website%20and%20Graphic%20Designers.pdf.

  76. 303 Creative at 12.

  77. Id. at 26.

  78. Justice Sotomayor, dissenting, at 30.

  79. Id. at 30.

  80. Id. at 20–21, and 27–28.

  81. Brief of the American Psychological Association, National Association of Social Workers, and Colorado Psychological Association as Amici Curiae in Support of Respondents, in 303 Creative v. Elenis (Aug. 19, 2022), https://www.supremecourt.gov/DocketPDF/21/21-476/234101/20220819163541588_21-476%20bsac%20American%20Psychological%20Association.pdf

  82. The full statement is: “At the outset, amici note that APA has a rigorous approval process for amicus curiae briefs, the touchstone of which is an assessment of whether there is sufficient scientific research, data, and literature on a question before a court such that APA can usefully contribute to the court’s understanding and resolution of that question. For each study this brief cites, APA has critically evaluated its methodology, including the reliability and validity of the measures and tests the study employed and the quality of the study’s datacollection procedures and statistical analyses. Scientific research is a cumulative process, and no empirical study is perfect in its design and execution. Accordingly, the conclusions drawn from the studies cited in this brief are based as much as possible on findings replicated across studies rather than on the findings of any single study. Even well-executed studies may be limited in their implications and generalizability. Many studies discuss their own limitations and provide suggestions for further research. This is consistent with the scientific method and does not impeach these studies’ overall conclusions.” Id. at 5.

  83. APA Brief, at 5–6, note 13. “One group of amici curiae attack the credibility of other researchers whose work is cited in this brief on the grounds that those researchers have a personal connection to the subject of their research. See Brief of Scholars of Family and Sexuality as Amici Curiae in Support of Petitioners at 8. Ad hominem attacks of this kind are not consistent with the standards of science, which call for evaluating research based on the quality of the conceptualization, reliability of the methodology, and objectivity of the interpretation of the results, not on the researchers’ personal connection to the research topic.” [The note concludes with a disagreement with the other amici about “self-report” rather than “objective measurement” of stigma.] Id.

  84. It is unclear what the “ad hominem attacks” are. The APA brief’s citation to page 8 of the Scholars amici brief apparently refers to this sentence in the Scholars brief, “Scholars of LGB discrimination, few of whom are not personally motivated by the topic, have often overstated estimates of its extent and uniqueness.” The remainder of the paragraph and next page refer to three or four studies, but it was not clear which, if any of these were the reference to “ad hominem” attacks. Brief of Scholars of Family and Sexuality as Amici Curiae in Support of Petitioners, in 303 Creative v. Elenis at 8 (June 1, 2022), https://www.supremecourt.gov/DocketPDF/21/21-476/226919/20220602121930046_21-476%20Amicus%20Brief%20of%20%20Scholars%20of%20Family%20and%20Sexuality.pdf.

  85. U.S. Department of Justice, False Claims Act (April 4, 2023), https://www.justice.gov/civil/false-claims-act#:~:text=The%20FCA%20provides%20that%20any,that%20is%20linked%20to%20inflation%20.

  86. U.S. Department of Justice, False Claims Act Settlements and Judgments Exceed $2 Billion in Fiscal Year 2022, (Feb. 7, 2023), https://www.justice.gov/opa/pr/false-claims-act-settlements-and-judgments-exceed-2-billion-fiscal-year-2022.

  87. US Department of Justice, False Claims Act (April 4, 2023), supra.

  88. Id.

  89. United States ex rel. Schutte v. Supervalu Inc., No. 21–1326, decided June 1, 2023. This was a unanimous decision, with Justice Thomas writing for the Court.

  90. Id. at 16.

  91. United States ex rel. Polansky v. Executive Health Resources, Inc., No. 21–1052, decided June 16, 2023. This was a 8–1 decision with Justice Kagan writing for the majority. Justice Thomas dissented.

  92. Justice Thomas, dissenting at 9. Justice Thomas also noted that this is a complicate question because “Under the FCA, the relator brings suit “for [himself]” as well as “for the United States Government.” §3730(b)(1) (emphasis added). In Stevens, we read this language “as effecting a partial assignment of the Government’s damages claim,” which provided “the theoretical justification” for our holding “that a qui tam relator under the FCA has Article III standing.” 529 U. S., at 773, 778.” That is, even if the intervenor is not representing the government, he is still representing himself pursuing the interests of the government. That would make a constitutional review of the FCA statute complex.

  93. Dubin v. United States, No. 22–10, decided June 8, 2023. This was a unanimous opinion, with Justice Sotomayor writing for the majority. Justice Gorsuch wrote a concurring opinion.

  94. 18 U.S.C. §1347.

  95. 18 U.S.C. §1028A(a)(1).

  96. Dubin at 3.

  97. “David Dubin helped his father manage a psychological services company. This company submitted a claim for reimbursement to Medicaid for psychological testing by a licensed psychologist. In fact, however, the claim overstated the qualifications of the employee who actually performe the testing and who was only a licensed psychological associate. This falsehood inflated the amount of reimbursement. Petitioner also changed the date on which the examination occurred. Even with the inflation, the total reimbursement was only $338. Petitioner was accordingly charged with healthcare fraud, a federal offense under 18 U. S. C. §1347.” Id. at 2.

  98. Department of Education v. Brown, No. 22–535, decided June 30, 2023. This was a unanimous decision, with Justice Alito writing for the Court.

  99. Biden v. Nebraska, No. 22–506, decided June 30, 2023. This was a 6–3 decision with Chief Justice Roberts writing for the majority. Justice Barrett joined the majority but also wrote a concurring opinion to consider the Justice Kagan, joined by Justices Sotomayor and Jackson, dissented.

  100. Id. at 7–12. The dissent argued that even though the loan servicer was a state corporation, controlled by the state, it was not really part of Missouri and therefore did not have standing.

  101. Id. at 12.

  102. Congressional Research Service, The Major Questions Doctrine (Nov. 2, 2022), https://crsreports.congress.gov/product/pdf/IF/IF12077.

  103. Biden v. Nebraska Justice Kagan dissenting.

  104. Health and Hospital Corporation of Marion Cty. v. Talevski, No. 21–806, decided June 8, 2023. This was a 7–2 opinion. Justice Jackson wrote for the majority. Justices Thomas and Alito dissented.

  105. Federal Nursing Home Reform Act of 1987, which was added to the Social Security Act by the Omnibus Budget Reconciliation Act of 1987.

  106. Luna Perez v. Sturgis Public Schools, No. 21–887, decided March 21, 2023. This was a unanimous decision. Justice Gorsuch wrote for the Court.

  107. “From ages 9 through 20, Miguel Luna Perez attended schools in Michigan's Sturgis Public School District (Sturgis). Because Mr. Perez is deaf, Sturgis provided him with aides to translate classroom instruction into sign language. For years, Mr. Perez and his parents allege, Sturgis assigned aides who were either unqualifed (including one who attempted to teach herself sign language) or absent from the classroom for hours on end. Along the way, Sturgis allegedly misrepresented Mr. Perez's educational progress too, awarding him inflated grades and advancing him from grade to grade regardless of his progress. Based on Sturgis's misrepresentations, Mr. Perez and his parents say, they believed he was on track to graduate from high school with his class. But then, months before graduation, Sturgis revealed that it would not award him a diploma.” Id. at 146.

  108. Id. at 146 (the pagination by the Reporter of Decisions in this case was intended to reflect the likely U.S. Reports).

  109. Arellano v. McDonough, No. 21–432, decided Jan. 23, 2023. Justice Barrett wrote for a unanimous court.

  110. Id. at 7. Another provision in the law regarding disability benefits says, “In no event shall [an award] be retroactive for more than one year from the date of application.” Id. at 8.

  111. Amgen Inc. v. Sanofi, No. 21–757, decided May 18, 2023. Justice Gorsuch wrote for a unanimous court.

  112. Id. at 1.

  113. United States v. Hansen, No. 22–179, decided June 23, 2023. This was a 7–2 decision. Justice Barrett wrote for the majority and Justice Jackson dissented joined by Justice Sotomayor.

  114. Id. at 4–5.

  115. United States v. Texas, No. 22–58, decided June 23, 2023. Justice Kavanaugh wrote the opinion for five justices. Justices Gorsuch, Thomas, and Barrett concurred in the judgment but did not join Justice Kavanaugh’s opinion. Justice Alito dissented.

  116. Santos-Zacaria v. Garland, No. 21–1436, decided May 11, 2023. This was a unanimous opinion. Justice Jackson wrote for the Court; Justices Alito and Thomas joined in the judgement, but not the majority opinion.

  117. Pugin v. Garland, No. 22–23, decided June 22, 2023. This was a 6–3 decision with Justice Kavanaugh writing for the majority. Justice Sotomayor wrote for the dissenters (Justices Gorsuch and Kagan).

  118. Reed v. Goertz, No. 21–442, decided April 19, 2023. The decision was 6–3. Justice Kavanaugh wrote for the majority. Justice Thomas and Justice Alito (joined by Justice Gorsuch) dissented.

  119. Cruz v. Arizona, No. 21–846, decided Feb. 22, 2023. This was a 5–4 decision. Justice Sotomayor wrote for the majority. Justice Barrett wrote for the dissent, joined by Justices Thomas, Alito, and Gorsuch.

  120. Simmons v. South Carolina, 512 U. S. 154 (1994).

  121. Alexis Hoag-Fordjour, In Rare Win for People on Death Row, Justices Chide Arizona for Ignoring Supreme Court Precedent, Scotusblog (Feb 23, 2023), https://www.scotusblog.com/2023/02/in-rare-win-for-people-on-death-row-justices-chide-arizona-for-ignoring-supreme-court-precedent/.

  122. Jones v. Hendrix, No. 21–857, decided June 22, 2023. This was a 6–3 decision. Justice Thomas wrote for the majority, and Justices Sotomayor, Kagan, and Jackson dissented.

  123. Moore v. Harper, No. 21–1271, decided June 27, 2023. The decision was 6–3, with Chief Justice Roberts writing for the majority. Justices Thomas, Gorsuch, and Alito dissented.

  124. Id. at 28–29.

  125. Allen v. Milligan, No. 21–1086, decided June 8, 2023. This was a 5–4 decision with Chief Justice Roberts writing for the majority. Justices Thomas, Alito, Gorsuch, and Barrett dissented.

  126. Sackett v. EPA, No. 21–454, decided May 25, 2023. The decision of the Court was unanimous, but the basis for the decision varied. Justice Alito wrote for a five-justice majority, but two of those justices (Thomas and Gorsuch) indicated they would go even farther in limiting the EPAs regulations. Four justices (Kavanaugh wrote for Justices Sotomayor, Kagan, and Jackson), but three of them (the four not including Justice Kavanaugh) also wrote a separate opinion.

  127. Michael and Chantell Sackett have spent well over a decade navigating the CWA, and their voyage has been bumpy and costly. In 2004, they purchased a small lot near Priest Lake, in Bonner County, Idaho. In preparation for building a modest home, they began backfilling their property with dirt and rocks. A few months later, the EPA sent the Sacketts a compliance order informing them that their backfilling violated the CWA because their property contained protected wetlands. The EPA demanded that the Sacketts immediately ‘undertake activities to restore the Site’” pursuant to a “‘Restoration Work Plan’ that it provided. The order threatened the Sacketts with penalties of over $40,000 per day if they did not comply.

    “At the time, the EPA interpreted “the waters of the United States” to include ‘[a]ll... waters’ that could affect interstate or foreign commerce,’ as well as ‘[w]etlands adjacent’ to those waters. ‘[A]djacent’ was defined to mean not just ‘bordering’ or ‘contiguous,’ but also ‘neighboring’….

    “According to the EPA, the ‘wetlands’ on the Sacketts’ lot are ‘adjacent to’ (in the sense that they are in the same neighborhood as) what it described as an ‘unnamed tributary’ on the other side of a 30-foot road. App. 33. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the EPA designated as traditionally navigable. To establish a significant nexus, the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as ‘similarly situated.’ According to the EPA, these properties, taken together, ‘significantly affect’ the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto ‘the waters of the United States.’” Id. at 4–6 (citations omitted).

  128. Id. at 22 (internal quotation marks deleted).

  129. Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, No. 21–869, decided May 18, 2023. This was a 7–2 decision. Justice Sotomayor wrote for the majority. Chief Justice Roberts and Justice Kagan issued a strong dissent (written by Justice Kagan).

  130. Twitter, Inc. v. Taamneh, No. 21–1496, decided May 18, 2023. Justice Thomas wrote for a unanimous Court. Justice Jackson wrote a concurring opinion.

  131. Gonzalez v. Google LLC, No. 21–1333, decided May 18, 2023. This was a per curium opinion (for the court, without a named justice).

  132. Groff v. DeJoy, No. 22–273, decided June 29, 2023. This was a unanimous decision. Justice Alito wrote for the Court, and justices Sotomayor and Jackson wrote a concurring opinion.

  133. National Pork Producers Council v. Ross, No. 21–468, decided May 11, 2023. This was a 5–4 decision although the Court was badly split on various aspects of the decision. Justice Gorsuch delivering the opinion of the Court.

  134. Coinbase, Inc. v. Bielski, No. 22–105, decided June 23, 2023. This was a 5–4 decision with Justice Kavanaugh writing for the Court. Chief Justice Roberts and Justices Alito, Gorsuch, and Barrett joined the opinion. Justice Jackson wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Thomas dissented, and joined most of Justice Jackson’s opinion.

  135. Counterman v. Colorado, No. 22–138, decided June 27, 2023. This was a 7–2 decision, with Justice Kagan writing for the majority (Justices Sotomayor and Gorsuch concurred in the judgment but did not join Justice Kagan’s opinion). Justices Thomas and Barrett dissented.

  136. Glacier Northwest, Inc. v. Teamsters, No. 21–1449, decided June 1, 2023. This was a 8–1 decision. Justice Barrett wrote for the Court. Justices Thomas, Gorsuch, and Alito concurred. Justic Jackson dissented.

  137. Tyler v. Hennepin County, No. 22–166, decided May 25, 2023. This was a unanimous decision. The Court’s opinion was written by Chief Justice Roberts.

  138. Jack Daniel’s Properties, Inc. v. VIP Products LLC, No. 22–148, decided June 8, 2023. This was a unanimous decision. Justice Kagan wrote for the Court. There were two concurring opinions.

  139. Orders of the Court—Term Year 2022, available at https://www.supremecourt.gov/orders/ordersofthecourt/22.

  140. Opinions Related to Orders—2022, available at https://www.supremecourt.gov/opinions/relatingtoorders/22.

  141. President Obama famously said in 2014, “"If Congress won't act, I will. I have a pen and a phone–-".

  142. Stephen Vladeck, the shadow docket: How the supreme court uses stealth rulings to amass power and undermine the republic (2023).

  143. The figures reported here are from as list of shadow docket cases compiled by Scotublog.com. https://www.scotusblog.com/case-files/emergency/emergency-docket-2022/ (accessed July 20, 2023).

  144. In one of these, the Court technically vacated the stay of a lower court that had halted the execution. Hamm v. Smith, No. 22A441, decided Nov. 17, 2022. Justices Sotomayor, Kagan, and Jackson would have left the lower court stay in place.

  145. Glossip v. Oklahoma, No. 22A941, decided May 5, 2023. This was an extraordinary case. The Oklahoma Attorney General joined the request to stay the execution. The state courts had failed to do so, but the AG determined that there were serious violations in Gossip’s trial.

  146. There were two cases during April 2023, Food and Drug Administration v. Alliance For Hippocratic Medicine (No. 22A901, decided April 21, 2023) and Danco Laboratories v. Alliance for Hippocratic Medicine (No. 22A902, decided April 4, 2023).

  147. Harrington v. Purdue Pharma, 23–124 (23A87), https://www.supremecourt.gov/orders/courtorders/081023zr1_986b.pdf.

  148. Garland v. Vanderstok, case 23–10,718, (Aug. 8, 2023), https://www.supremecourt.gov/orders/courtorders/080823zr_dc8f.pdf.

  149. The term was first used by Professor William Baude, Foreword: The Supreme Court's Shadow Docket, 9 N.Y.U. J.L. & Liberty 1 (2015), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1961&context=public_law_and_legal_theory.

  150. Scotublog has started a helpful list, but on the Court’s own website, it is difficult to find easily the cases lawyers have come to call the “shadow docket.”.

  151. One site that summarizes the cases in a single table is BallotPedia, Supreme Court Cases, October Term 2022–2023, https://ballotpedia.org/Supreme_Court_cases,_October_term_2022-2023#Term_data. Accessed July 20, 2023.

  152. These data are from Adam Feldman, Another One Bites the Dust: End of 2022/2023 Supreme Court Term Statistics, Empirical SCOTUS (June 30, 2023), https://e.piricalscotus.com/2023/06/30/another-one-bites-2022/.

  153. Chinn v. Shoop, No. 22–5058, decided Nov. 7, 2022. Justice Sotomayor joined the dissent.

  154. Delaware v. Pennsylvania, Orig. 145, decided Feb. 28, 2023. This was a unanimous decision, with the opinion written by Justice Jackson. The case involved what should happen to MoneyGram “prepaid” checks that are never cashed by recipients. These unclaimed funds ultimately escheat (revert) to the state. This case was about which state should receive the escheatment. Delaware had taken all the money over years (it represented 8% of the state’s revenues), but 30 other states wanted their share (based on the state in which the MoneyGram check was purchased). The Court held that the 30 states were correct—the state in which the check was purchased is the state that should receive the escheatment.

  155. Jess Krochtengel, Jackson Debuts as Chattiest Justice, Law360 (July 3, 2023), https://www.law360.com/articles/1692839/jackson-debuts-as-chattiest-justice.

  156. Katy Lin & Carroll Doherty, Favorable Views of Supreme Court Fall to Historic Low, Pew Research Center (July 21, 2023), https://www.pewresearch.org/short-reads/2023/07/21/favorable-views-of-supreme-court-fall-to-historic-low/; Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historical Lows, Gallup Survey (Sep. 29, 2022), https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx.

  157. Adam Liptak & Eli Murray, The Major Supreme Court Decisions in 2023, New York Times (June 29, 2023), https://www.nytimes.com/interactive/2023/06/07/us/major-supreme-court-cases-2023.html. The poll was conducted by YouGov April 5 to 11, 2023 with a representative sample of 2,029 American adults.

  158. Kathy Frankovic, Taylor Orth & Carl Bialik, How Americans Evaluate the Supreme Court and its Recent Rulings, YouGov/Economist Poll (July 10, 2023), https://today.yougov.com/topics/politics/articles-reports/2023/07/10/how-americans-evaluate-supreme-court-and-rulings. The poll was conducted on July 1–5, 2023, among 1,500 U.S. adult citizens. The poll announces a margin of error of approximately 3%.

  159. Although these surveys are well done, there are problems with comparing the public opinion with the Court. The Court’s job is essentially constitutional and statutory interpretation, not public policy. On the other hand, the public is likely to focus on the public policy (rather than the technical legal) issues.

  160. This is not the full list of topics/decisions covered. A few of the questions the NYT used did not turn out to be the precise decided by the Court. For example, the NYT question on the Indian Child Welfare Act asked about whether the act “discriminates on the basis of race,” but the Court specifically did not address that question. The question on the Clean Water Act asked whether the Act should be read broadly to “include things like wetlands” but the Court held that some wetlands are included.

  161. Supreme Court of the United States, Statement of the Court Concerning the Leak Investigation (Jan. 19, 2023), https://www.supremecourt.gov/publicinfo/press/Dobbs_Public_Report_January_19_2023.pdf.

  162. Mark Walsh, No Summer Break for Supreme Court Ethics Debate, A.B.A. J. (July 27, 3023), https://www.abajournal.com/web/article/no-summer-break-for-supreme-court-ethics-debate?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email.

  163. Recent Ethical Lapses by Supreme Court Justices, Fix the Court (July 12, 2023), https://fixthecourt.com/wp-content/uploads/2023/07/Recent-Ethical-Lapses-by-the-Justices-FTC-July-2023-3-1.pdf.

  164. Kimberly Strawbridge Robinson, Alito, Kagan Top Justices in Supreme Court Recusal “Black Box,” Bloomberg Law (Feb. 13, 2023). Note these included recusals only through Jan. 29, 2023. Most recusals were in the consideration of cert. petitions.

Acknowledgements

I am grateful for the excellent suggestions and assistant with this article from colleagues and friends, including Eric Drogin, Daniel Elchert, Morgan Sammons, Glenn Smith, and Lera Smith.

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Smith, S.R. Affirmative Action, Child Custody, and “Expressive” Websites: The Supreme Court’s 2022–2023 Term. J Health Serv Psychol 49, 191–210 (2023). https://doi.org/10.1007/s42843-023-00093-w

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