United States Supreme Court Watch

[Abhorsen]

This is the likely the last week in which SCOTUS will hand down opinions until next year. Currently, there are 10 cases left, and as usual, the last opinions to be issued tend to be big ones:

EDIT: The Case Summaries also have the result of the case right below the summary, a link to a wikipedia/Scotusblog summary of the case (this link is the case name), and another link to the opinion pdf itself on the .gov website.

Spoiler: Case Summaries

First, Affirmative Action (the Harvard and UNC cases) (opinion here). Is giving a bonus based on race allowed under the Civil Rights Act? The last time this was a case, in the early 2000s, it was upheld, but barely, and also limited in scope what could be done. One part of the majority ruling was that in 25 years, it would no longer be needed. Note that Justice Jackson has recused herself from this case, as she worked at Harvard when the case was being talked about, IIRC.

Answer: No. The time ran out, preferences based on race are banned. If a person's admissions essay is about how being X race impacted their life, sure that's fine, but no using that as a way around this.

Second is the Bake the Cake 2.0 case (only now it's make the website, but basically the same thing), 303 Creative v. Elenis (opinion here). Very similar to the bake the cake case, but it isn't going to be a technicality. This isn't going to end up like the previous Masterpiece ruling, where it was in favor of the baker, but because of a technicality. The question is limited to whether Colorado's law violates the Free Speech clause of the first amendment (interestingly, not the religious clauses).

Answer: Colorado's law does violate the free speech clause of the 1st amendment.

Third are the student loan cases (Biden v. Nebraska and Department of Education v. Brown) (first opinion here, dismissal of standing) (second opinion here). Basically, is Biden's student loan forgiveness under the HEROES act lawful? There is an issue about standing here, but Missouri specifically has a strong case for it (Missouri being one of the unnamed parties in the lawsuit).

Answer: The student loan forgiveness is unlawful and standing was reached, for the second case. For one of the two cases, there is no standing (Alito writing, decision unanimous).

Fourth, what constitutes a 'True Threat' (Counterman v. Colorado) (opinion here). A long acknowledged exception to the 1st amendment is a 'True Threat'. But what constitutes a True Threat? SCOTUS has never actually specified, until now. Basically, is the standard proving reasonableness or only intent? Do you have to prove that the person intended to threaten, or only that a reasonable person would have inferred it as a true threat?

Answer: Recklessness is the bar necessary to provide an adequate mens rea.

Fifth is a religious accommodation case (Groff v DeJoy) (opinion here). Basically, a USPS worker refused to work Sundays. The USPS, despite attempts, failed to be able to accommodate this. Basically, this hits Employment Division v Smith, if I'm understanding it. This does NOT hit Employment Division v Smith. Instead, this is a case about what the limit of 'undue hardship' is. Basically an employer can't discriminate against an employee for practicing their religion unless the practice cannot 'reasonably' be accommodated without undue hardship. The question asked to the court is whether to overturn a previous 1977 decision that an undue hardship is anything that would require more than a minimal/trivial cost.

Answer: The undue burden standard is 'substantial', not 'more than minimal'. There's some other clarification as well in the opinion itself.

Sixth is a Gerrymandering case (Moore v. Harper) (opinion here). But there's a good chance it's declared moot. If it isn't, it's about the independence of state legislatures, basically.

Answer: Not moot, State Legislature decisions on redistricting are court reviewable, and it goes back to the State Supreme Court to decide.

Seventh is a weird case on requiring businesses to have jurisdiction in a state (Mallory v. Norfolk Southern Railway Co.) (opinion here).

Answer: Yes, they are subject to jurisdiction.

And eighth is a Trademark case (Abitron Austria v Hetronic International) (opinion here). It's on if the US has jurisdiction on trademark infringement that only happens outside of the US and in no way affects US consumers.

Answer: No, the US does not have jurisdiction.

The next opinion announcement will start Tuesday at 10AM EST, and there'll likely be another one or 2, probably Thursday or Friday (always starting at 10AM EST). You can watch the live release of opinions through SCOTUSblog.

EDIT: Next opinion day is now Thursday.
EDIT EDIT: The final opinion day is Friday, in which the Student Loan cases and the Bake the Cake 2.0 case will be released.
EDIT EDIT: EDIT: All opinions for the October 2022 term have been released. SCOTUS will begin hearing oral arguments in cases again probably in October 2023. Until then, all that we'll here are things about whether SCOTUS is taking up a case (cert or certiorari) and maybe a few orders (emergency injuctions for death penalty cases being a prominent example, but there are countless other ones).

 

[Sergeant Foley]

This is the likely the last week in which SCOTUS will hand down opinions until next year. Currently, there are 10 cases left, and as usual, the last opinions to be issued tend to be big ones:

Spoiler: Case Summaries

First, Affirmative Action (the Harvard and UNC cases). Is giving a bonus based on race allowed under the Civil Rights Act? The last time this was a case, in the early 2000s, it was upheld, but barely, and also limited in scope what could be done. One part of the majority ruling was that in 25 years, it would no longer be needed. Note that Justice Jackson has recused herself from this case, as she worked at Harvard when the case was being talked about, IIRC.

Second is the Bake the Cake 2.0 case (only now it's make the website, but basically the same thing), 303 Creative v. Elenis. Very similar to the bake the cake case, but it isn't going to be a technicality. This isn't going to end up like the previous Masterpiece ruling, where it was in favor of the baker, but because of a technicality. The question is limited to whether Colorado's law violates the Free Speech clause of the first amendment (interestingly, not the religious clauses).

Third are the student loan cases (Biden v. Nebraska and Department of Education v. Brown). Basically, is Biden's student loan forgiveness under the HEROES act lawful? There is an issue about standing here, but Missouri specifically has a strong case for it (Missouri being one of the unnamed parties in the lawsuit).

Fourth, what constitutes a 'True Threat' (Counterman v. Colorado). A long acknowledged exception to the 1st amendment is a 'True Threat'. But what constitutes a True Threat? SCOTUS has never actually specified, until now. Basically, is the standard proving reasonableness or only intent? Do you have to prove that the person intended to threaten, or only that a reasonable person would have inferred it as a true threat?

Fifth is a religious accommodation case (Groff v DeJoy). Basically, a USPS worker refused to work Sundays. The USPS, despite attempts, failed to be able to accommodate this. Basically, this hits Employment Division v Smith, if I'm understanding it.

Sixth is a Gerrymandering case (Moore v. Harper). But there's a good chance it's declared moot. If it isn't, it's about the independence of state legislatures, basically.

Seventh is a weird case on requiring businesses to have jurisdiction in a state (Mallory v. Norfolk Southern Railway Co.).

And eighth is a Trademark case (Abitron Austria v Hetronic International). It's on if the US has jurisdiction on trademark infringement that only happens outside of the US and in no way affects US consumers.

The next opinion announcement will start Tuesday at 10AM EST, and there'll likely be another one or 2, probably Thursday or Friday (always starting at 10AM EST). You can watch the live release of opinions through SCOTUSblog.

Bold Prediction: Affirmative action and race-neutral policies in colleges and universities in the United States will likely get dismantled.

Watch for CBS, NBC, ABC, CNN, MSNBC to get their pearl-clutching acts going once the inevitable happens this week.

 

[Poe]

Bold Prediction: Affirmative action and race-neutral policies in colleges and universities in the United States will likely get dismantled.

Watch for CBS, NBC, ABC, CNN, MSNBC to get their pearl-clutching acts going once the inevitable happens this week.

Yep. Likely to be as big of a backlash as Roe v Wade in the MSM

 

[Husky_Khan]

303 Creative v. Elenis is the one I'm looking at. I didn't realize there weren't any religious questions to be addressed in the case, just freedom of speech issues.

And there are a lot of cases like this still going on where Militant Activist Queers are engaging in the most pathetic and petty legal activism to force Christians to take part in rituals, events and otherwise compel them to support degeneracy they're morally and religiously opposed to. Even the Masterpiece Baker Jack Phillips was in legal news recently over much the same issue.

 

[Sergeant Foley]

Yep. Likely to be as big of a backlash as Roe v Wade in the MSM

Let's see if it'll energize Democrats for 2024. Although I suspect this will be forgotten by next Fall.

 

[Abhorsen]

The question with regards to affirmative action is more how clear a victory will it be, not which way they will rule, IMO. Basically, I want a decision that isn't narrow.

Yep. Likely to be as big of a backlash as Roe v Wade in the MSM

Honestly, I doubt it. Affirmative Action is not popular. People simply do not like it. If anything, this would enhance the courts credibility.

303 Creative v. Elenis is the one I'm looking at. I didn't realize there weren't any religious questions to be addressed in the case, just freedom of speech issues.

And there are a lot of cases like this still going on where Militant Activist Queers are engaging in the most pathetic and petty legal activism to force Christians to take part in rituals, events and otherwise compel them to support degeneracy they're morally and religiously opposed to. Even the Masterpiece Baker Jack Phillips was in legal news recently over much the same issue.

There were religious issues but SCOTUS wanted to focus on the free speech part. The way appeals work is that one appeals on specific issues in a case, not the case as a whole, basically asking specific legal questions of a higher court. The plaintiff (303 Creative) had at least 2 questions: one was the one listed about infringement on free speech that SCOTUS agreed to hear, another was whether Employment Division v Smith was correct (dealing with the 1st amendment's religious clauses), which the court declined to hear.

The core of this problem will still exist for some professions even with a favorable ruling for 303 Creative. For example, a Limo Driver can't decline to serve at a same sex wedding, because what he is doing is not legally considered speech, but instead economic activity. The Limo Driver can, given a favorable ruling for 303 Creative, decline to decorate his limo, and refuse service if a core part of the service is the Limo Decoration.

He doesn't have a religious objection because of Employment Division v Smith, which basically holds that a law that applies generally and isn't targeted at religion doesn't need to make exceptions for religious beliefs. Basically, because without this, the day after there would be a million religions that have beliefs saying that lying on your tax returns is morally required, or the like. This is why 303 Creative asked for a ruling against Employment Division v Smith, but that question was declined.

Congress responded to this by passing the Religious Freedom Restoration Act in 1993, but SCOTUS found that applying this law to the states was unconstitutional as it violated federalism.

 

[Sergeant Foley]

The question with regards to affirmative action is more how clear a victory will it be, not which way they will rule, IMO. Basically, I want a decision that isn't narrow.


Honestly, I doubt it. Affirmative Action is not popular. People simply do not like it. If anything, this would enhance the courts credibility.


There were religious issues but SCOTUS wanted to focus on the free speech part. The way appeals work is that one appeals on specific issues in a case, not the case as a whole, basically asking specific legal questions of a higher court. The plaintiff (303 Creative) had at least 2 questions: one was the one listed about infringement on free speech that SCOTUS agreed to hear, another was whether Employment Division v Smith was correct (dealing with the 1st amendment's religious clauses), which the court declined to hear.

The core of this problem will still exist for some professions even with a favorable ruling for 303 Creative. For example, a Limo Driver can't decline to serve at a same sex wedding, because what he is doing is not legally considered speech, but instead economic activity. The Limo Driver can, given a favorable ruling for 303 Creative, decline to decorate his limo, and refuse service if a core part of the service is the Limo Decoration.

He doesn't have a religious objection because of Employment Division v Smith, which basically holds that a law that applies generally and isn't targeted at religion doesn't need to make exceptions for religious beliefs. Basically, because without this, the day after there would be a million religions that have beliefs saying that lying on your tax returns is morally required, or the like. This is why 303 Creative asked for a ruling against Employment Division v Smith, but that question was declined.

Congress responded to this by passing the Religious Freedom Restoration Act in 1993, but SCOTUS found that applying this law to the states was unconstitutional as it violated federalism.

This will trigger a backlash from NAACP, National Urban League, Congressional Black Caucus, etc.,

 

[S'task]

Employment Division v Smith is terrible case law and it should be overturned. There's been some beating around the bush of what the actual decision was, but fundamentally the decision in Smith made the Free Exercise of Religion clause a second class Constitutional clause compared to literally every other part of the 1st Amendment. See, what isn't being explained is that that case, and all these other cases, hinge on what type of scrutiny laws should be addressed by by the courts. All of the 1st Amendment, save for the Free Exercise clause, are considered at the highest level of scrutiny, that is "Strict Scrutiny", which demands that the government show that infringements on that clause not only is absolutely necessary, but also that there's no ways around infringing on it with accommodations even if those accommodations cost the government more money or are inefficient. Further the weight of evidence to show that a law doesn't infringe is on the government to prove. Strict Scrutiny is a very, VERY hard bar to pass.

However, due to Employment Division v Smith, the Free Exercise Clause is not considered under Strict Scrutiny, but rather Intermediate Scrutiny. At this level the government only needs to claim "compelling governmental interest" on infringements of a Constitutional Right, and the burden of evidence to show that the infringement is beyond the pale is on the people bringing the case, not the government. Basically, Intermediate Scrutiny isn't and only the most egregious of laws fail under this test. That the Free Exercise of Religion is considered under this level basically shows that the court doesn't actually consider Free Exercise of Religion a Real Constitutional Right and one of the biggest efforts of the Legal Left over the past decades has been to continually devalue Free Exercise and instead label it "Freedom of Worship" specifically to diminish the value and breadth of what this clause actually entails.

 

[Abhorsen]

Employment Division v Smith is terrible case law and it should be overturned. There's been some beating around the bush of what the actual decision was, but fundamentally the decision in Smith made the Free Exercise of Religion clause a second class Constitutional clause compared to literally every other part of the 1st Amendment. See, what isn't being explained is that that case, and all these other cases, hinge on what type of scrutiny laws should be addressed by by the courts. All of the 1st Amendment, save for the Free Exercise clause, are considered at the highest level of scrutiny, that is "Strict Scrutiny", which demands that the government show that infringements on that clause not only is absolutely necessary, but also that there's no ways around infringing on it with accommodations even if those accommodations cost the government more money or are inefficient. Further the weight of evidence to show that a law doesn't infringe is on the government to prove. Strict Scrutiny is a very, VERY hard bar to pass.

However, due to Employment Division v Smith, the Free Exercise Clause is not considered under Strict Scrutiny, but rather Intermediate Scrutiny. At this level the government only needs to claim "compelling governmental interest" on infringements of a Constitutional Right, and the burden of evidence to show that the infringement is beyond the pale is on the people bringing the case, not the government. Basically, Intermediate Scrutiny isn't and only the most egregious of laws fail under this test. That the Free Exercise of Religion is considered under this level basically shows that the court doesn't actually consider Free Exercise of Religion a Real Constitutional Right and one of the biggest efforts of the Legal Left over the past decades has been to continually devalue Free Exercise and instead label it "Freedom of Worship" specifically to diminish the value and breadth of what this clause actually entails.

Yeah, I'm generally in favor of overturning Employment Division v Smith as well.

Mostly, I've just been trying to convey the arguments by the courts concerning the case. Scalia was worried that applying Strict Scrutiny would lead to anarchy as it would overly limit governmental authority. I tend to agree with him there, but view that as a good thing. Basically, once Employment Decision falls, the gates will open, and you'll have people arguing that their religion bans everything from participation in Social Security to not putting kids in drag shows. Overall, although the freedom will be costly, I am in favor of it.

Sadly I don't think it will change enough. Federally, it will change nothing, as the RFRA basically re-imposed strict scrutiny on Federal laws. Statewise, many states have an equivalent to the RFRA, but sometimes it's not really an equivalent, and on top of that it's highest authority is the state's high court, not SCOTUS (SCOTUS is only the final authority on Federal law and the constitution, which do trump state law & constitutions when they come into conflict, but when they don't conflict, SCOTUS and other federal courts will sometimes remand to the state high court to ask questions of law).

 

[S'task]

Yeah, I'm generally in favor of overturning Employment Division v Smith as well.

Mostly, I've just been trying to convey the arguments by the courts concerning the case. Scalia was worried that applying Strict Scrutiny would lead to anarchy as it would overly limit governmental authority. I tend to agree with him there, but view that as a good thing. Basically, once Employment Decision falls, the gates will open, and you'll have people arguing that their religion bans everything from participation in Social Security to not putting kids in drag shows. Overall, although the freedom will be costly, I am in favor of it.

Sadly I don't think it will change enough. Federally, it will change nothing, as the RFRA basically re-imposed strict scrutiny on Federal laws. Statewise, many states have an equivalent to the RFRA, but sometimes it's not really an equivalent, and on top of that it's highest authority is the state's high court, not SCOTUS (SCOTUS is only the final authority on Federal law and the constitution, which do trump state law & constitutions when they come into conflict, but when they don't conflict, SCOTUS and other federal courts will sometimes remand to the state high court to ask questions of law).

Yeah, and one of the things the Left has really, REALLY pulled out all the stops on is stopping states from passing their own RFRA type laws. If a State these days even hints at passing their own, the Progressives and their big money come out in force to oppose the bill.

Want to see how evil the Democrats have gotten over the years? The Federal RFRA passed with near unanimous votes in the House and Senate. Now they demonize those very laws. Why? Because the Free Exercise of Religion, and all it entails, ends up opening massive loopholes in their efforts to indoctrinate and control people. And here's the thing, while it's formally called "Free Exercise of Religion" the actual Natural Right in question is Freedom of Conscious. That is, the ability to live one's life as one's own Conscious demands, that means both acting and not acting on things. That means being able to associate with some people and not others (this, of course, is the most offensive part to the Left). It is the right to live your own life without being told how to by outsiders. That's what at stake with Free Exercise of religion, and why they seek to gut RFRAs, keep the Free Exercise clause as a second-class right, AND change the popular understanding of the clause to "Freedom of Worship" which effectively guts the actual purpose of the clause.

 

[Abhorsen]

Figured I'd add this as well, but a quick guide to release days (the next one is tomorrow):

The Supreme Court does not release all their opinions at once. Instead, beginning at 10AM EST on an opinion day, the most junior member with a controlling opinion (usually a majority, sometimes the plurality, rarely something else) to release that day reads out their opinion. As they begin to read it, it's posted simultaneously to the Scotus's website, here abouts. This continues from most junior to most senior (with the Chief Justice always going last regardless of seniority).

So how many opinions will be announced? No one outside the court knows until it happens, but we have a few clues. 2 key things are the number of boxes, which is how many boxes were needed to transport the printed off opinions. Note that it's not a perfect indicator, as a long opinion might take almost all of a box, or a short one hardly any. Second is what's called an R-Number. Basically each opinion has a number. Sometimes that number ends with an R. If it does, that's the last opinion to be released that day.

How do you know how many boxes are there, and how to get a link to the opinion and know which side won? SCOTUSblog.com has main page live updates on every opinion day, with commenters noting the number of boxes ahead of time, and keeping people updated re: what opinion just got decided, a link to the opinion, and what was decided.

More FAQ stuff here:

FAQs: Announcements of orders and opinions - SCOTUSblog

FAQs: Announcements of orders and opinions - SCOTUSblog

www.scotusblog.com

 

[Husky_Khan]

They declined to hear the case about the charter school mandating their students girls wear skirts after an appeal court said it violated the students freedom of speech!!! Damn that government funding banning the independence of being able to coerce mandatory skirt wearing!

Just my two cents anyways.

 

[Sergeant Foley]

They declined to hear the case about the charter school mandating their students girls wear skirts after an appeal court said it violated the students freedom of speech!!! Damn that government funding banning the independence of being able to coerce mandatory skirt wearing!

Just my two cents anyways.

I've heard the US Supreme Court ruled that the Republican-controlled Louisiana State Legislature will have to redraw their congressional redistricting maps including drawing a second minority-majority congressional district.

Any thoughts on this ruling?

 

[Poe]

Honestly, I doubt it. Affirmative Action is not popular. People simply do not like it. If anything, this would enhance the courts credibility.

I don't mean the populace will actually care. Rather that it will be played up in the media as they came for womens rights first and now they're coming for the rights of non-white people.

Let's see if it'll energize Democrats for 2024. Although I suspect this will be forgotten by next Fall.

that will be the hope

 

[Captain X]

They declined to hear the case about the charter school mandating their students girls wear skirts after an appeal court said it violated the students freedom of speech!!! Damn that government funding banning the independence of being able to coerce mandatory skirt wearing!

Just my two cents anyways.

Honestly I don't think a school should mandate skirts. If anything they should mandate slacks for all their students.

 

[Sergeant Foley]

I don't mean the populace will actually care. Rather that it will be played up in the media as they came for womens rights first and now they're coming for the rights of non-white people.


that will be the hope

Obama didn't do jack squat in 2013 when the US Supreme Court gutted Section 5 of 1965 Voting Rights Act.

I doubt Biden will lift a finger once Affirmative Action gets dismantled altogether.

 

[Abhorsen]

Decisions begin arriving in 15 minutes if anyone wants to watch SCOTUSblog's live blog.

Apparently it's a 2 box day. This makes me guess maybe 3-4 opinions today, so there will likely be 2 more opinion days (maybe Thursday and Friday).

 

[Abhorsen]

Opinions:
Mallory v Norfolk Southern Railway Co. (link to opinion)
Ruling in favor of Mallory, the court found that "Norfolk Southern argues that the Due Process Clause entitles it to a more favorable rule, shielding it from suits even its employees must answer. We reject the company's argument. Nothing in the Due Process Clause requires such an incongruous result."

Opinion by Gorsuch, joined by Thomas, Sotomayor, and Jackson, with Alito joining enough parts (a judge does not need to agree to an entire opinion, only part of one). Alito wrote his own opinion, concurring in the judgement. Only the parts of the opinion agreed to by 5 or more justices become iron-clad precedent.

Counterman v Colorado:
Ruling in favor of Counterman regarding what a true threat is.
"The State must prove in true-threats cases that the defendant had some subjective understanding of his statements' threatening nature, but the First Amendment requires no more demanding a showing than recklessness."

Elaboration on what a recklessness standard is legally, from the opinion:

a recklessness standard—i.e., a showing that a person "consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another,"

And the last case for the day, Moore v Harper:
It was not declared moot, and also:

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

So the North Carolina Supreme Court has jurisdiction over whether the redistricting violates the state constitution, and the case was sent back to North Carolina for them to decide.


Next opinion day is Thursday.

 

[Abhorsen]

New opinions are a coming in 7 minutes.

Also update on the Religious Discrimination case: I didn't read enough. It isn't an Employment Division v Smith case. Instead, this is a case about what the limit of 'undue hardship' is. Basically an employer can't discriminate against an employee for practicing their religion unless the practice cannot 'reasonably' be accommodated without undue hardship. The question asked to the court is whether to overturn a previous 1977 decision that an undue hardship is anything that would require more than a minimal/trivial cost.

There are obvious limits where discriminating against someone for religious practice would be acceptable, such as a steakhouse not employing a Hindi cook who refuses to work with beef.

 

[Abhorsen]

We have a 2 box day, so expect 3-4 opinions, and another opinion day (likely tomorrow (EDIT: it is tomorrow, and it will be the final day)).

Alito has 2 opinions. The first is Abitron Austria. v. Hetronic International, holding that parts of the Lanham Act (trademark/copyright stuff) do not have extraterritoriality.

The second is Groff v Dejoy, holding that "undue burden" isn't just any non-trivial cost, but instead is a substantial cost.

The third and final is the Harvard and UNC admissions cases. Roberts writes that affirmative action admission is race based discrimination that violates the constitution when done by the government (i.e. UNC), and since the Civil Rights Act extends that to cover private entities, Harvard violates the Civil Rights act.