Other notable decisions
Student loans
The Court struck down the Biden Administration’s student loan forgiveness program, which would have cost approximately $430 billion.14 The central issue was whether the administration had the authority for such massive loan forgiveness; that is, whether Congress had authorized the broad loan forgiveness. The administration claimed authority from the post ̶ 9/11 HEROES Act, which allows the Secretary of Education to “waive or modify” loan provisions during national emergencies. The temporary hold on loan payments during COVID was based on this provision. However, in a 6-3 decision, the Court held that the act did not allow the secretary to cancel $430 billion in loans. “The Act allows the Secretary to ‘waive or modify’ existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.”14
Free speech and the wedding web designer
303 Creative v Elenis involved a creative website designer who did not want to be required to create a website for a gay wedding.15 The designer had strong beliefs against same-sex marriages, but Colorado sought to force her to do so under the state “public accommodations” law. In a 6-3 decision, the Court held that the designer had a “free speech” right. That is, the state could not compel her to undertake speech expressing things she did not believe. This was because the website design was an expressive, creative activity and therefore was “speech” under the First Amendment.
Wetlands and the Clean Water Act
The essential issue in Sackett v Environmental Protection Agency (EPA) was the definitions of waters of the United States and related wetlands. The broad definition the EPA used meant it had jurisdiction to regulate an extraordinary amount of territory. It had, for example, prevented the Sacketts from building a modest house claiming it was part of the “waters of the United States because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake.” The Court held that the EPA exceeded its statutory authority to define “wetlands.”16
The Court held that under the Clean Water Act, for the EPA to establish jurisdiction over adjacent wetlands, it must demonstrate that16:
1. “the adjacent body of water constitutes waters of the United States (ie, a relatively permanent body of water connected to traditional interstate navigable waters)…”
2. “…the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends, and the wetland begins.”
Under this definition, the Sacketts could build their house. This was a statutory interpretation case. Therefore, Congress can expand or otherwise change the EPA’s authority under the Clean Water Act and other legislation.
Conclusions: A new justice, “shadow docket,” and ethics rules
SCOTUS’ newest member. When the Marshall called the Court into session on October 3, 2022, it had a new member, Justice Ketanji Brown Jackson. She was sworn in on June 30, 2022, when her predecessor (Justice Breyer) officially retired. She had been a law clerk for Justice Breyer in 1999, as well as a district court judge and court of appeals judge. Those who count such things described her as the “chattiest justice.”17 She spoke more than any other justice—by one count, a total of 75,632 words (an average of 1,300 words in each of the 58 arguments).
A more balanced Court? Most commentators view the Court as more balanced or less conservative than the previous Term. For example, Justice Sotomayor was in the majority 40% last Term but 65% this Term. Justice Thomas was in the majority 75% last Term but 55% this Term. Put another way, this Term in the divided cases, the liberal justices were in the majority 64% of the time, compared with the conservative justices 73%.18 Of course, these differences may reflect a different set of cases rather than a change in the direction of the Court. There were 11 (or 12, depending on how 1 case is counted) 6-3 cases, but only 5 were considered ideological. That suggests that, in many cases, the coalitions were somewhat fluid.
“Shadow docket” controversy continues.19 Shadow docket refers to orders the Court makes that do not follow oral arguments and often do not have written opinions. The orders are all publicly available. This Term a close examination of the approximately 30 shadow docket opinions shows that the overwhelming majority were dissents or explanations about denials of certiorari. The Court ordered only a few stays or injunctions via the shadow docket. One shadow docket stay (that prevented a lower court order from going into effect) is particularly noteworthy. A federal judge had ordered the suspension of the distribution of mifepristone while courts considered claims that the US Food and Drug Administration (FDA) had improperly approved the drug. In a shadow docket order, the Court issued the stay to allow mifepristone to be sold while the case challenging its approval was heard.20 The only opinion was a dissent from Justice Alito. But it also demonstrates the importance of the shadow docket. Without this intervention, in at least part of the country, the distribution of mifepristone would have been interrupted pending the outcome of the FDA cases.
In August, the Court delayed a settlement in the Purdue Pharma liability bankruptcy case.21 It also stayed an injunction of a lower court, thereby permitting federal “ghost guns” regulations to go into effect at least temporarily.22
More ethics rules to come? Another area in which the Court faced criticism was formal ethics rules. The justices make financial disclosures, but these are somewhat ambiguous. There is likely to be increasing pressure for a more complete disclosure of non-financial relationships and more formal ethics rules. ●
Coming attractions: Next Term
The Court had, by September 1, 2023, accepted 22 cases for hearing next Term.1 The cases include a challenge to the extraordinary funding provision for the Consumer Financial Protection Bureau, another racial challenge to congressional districts (South Carolina), the status of Americans with Disability Act “testers” who look for violations without ever intending to use the facilities, the level of deference courts should give to interpreting federal statutes (so-called “Chevron” deference), the opioid (OxyContin ) bankruptcy, and limitations on gun ownership. This represents less than half of the cases the Court will likely hear next Term, so the Court will add many more cases to the docket. It promises to be an appealing Term.
Reference
1. October Term 2023. SCOTUSblog website. Accessed August 29, 2023. https://www.scotusblog.com/case-files/terms/ot2023/
Other interesting decisions made by SCOTUS
When the Court adjourned on June 30, 2023, it had considered 60 cases, plus hundreds of petitions asking it to hear cases. Most commentators count 55 cases decided after briefing and oral argument and where there was a signed opinion. The information below uses 55 cases unless otherwise noted. During the 2022-2023 Term, the Court:
- upheld liability for the involuntary administration of psychotropic drugs in nursing home1
- permitted disabled students, in some instances, both to make Individuals with Disabilities Education Act (IDEA) claims for services and to file Americans with Disabilities Act (ADA) lawsuits against their schools2
- upheld a statute that makes it illegal to “encourage or induce an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” The defendant had used a scam promising noncitizens “adult adoptions” (of which there is no such thing) making it legal for them to come to and stay in the United States.3
- narrowed the “fair use” of copyrighted works. It held that Andy Warhol’s use of a copyrighted photograph in his famous Prince prints was not “transformative” in a legal sense largely because the photo and prints “share the same use”—magazine illustrations.4
- in another intellectual property case, held that Jack Daniel’s might sue a dog toy maker for a rubber dog toy that looked like a Jack Daniel’s bottle5
- further expanded the Federal Arbitration Act by holding that a federal district court must immediately stay court proceedings if one party is appealing a decision not to require arbitration6
- held that two social media companies were not responsible for terrorists using their platforms to recruit others to their cause. It did not, however, decide whether §230 of the Communication Decency Act protects companies from liability.7
- made it easier for employees to receive accommodation for their religious practices and beliefs. Employers must make religious accommodations unless the employer can show that “the burden of granting an accommodation would result in substantial increased [financial and other] costs in relation to the conduct of its particular business.”8
- declined to hear an appeal from Johnson & Johnson (through a subsidiary, Ethicon) about pelvic mesh. In this case, the California Attorney General filed a lawsuit against Ethicon for false advertising by failing to detail the risks of pelvic mesh. The lower courts estimated 240,000 written violations of the law by Ethicon between 2008 and 2017. The trial and appeal to California courts resulted in a judgment of $302 million against Johnson & Johnson. The company asked the Court to review that judgment, but the Court denied certiorari. That likely means the $302 million is final.
References
1. Health and Hospital Corporation of Marion Cty. v Talevski, Docket no. 21-806; June 8, 2023.
2. Luna Perez v Sturgis Public Schools, Docket no. 21-887; March 21, 2023.
3. United States v Hansen, Docket no. 22-179; June 23, 2023.
4. Andy Warhol Foundation for Visual Arts, Inc. v Goldsmith, Docket no. 21-869; May 18, 2023.
5. Jack Daniel’s Properties, Inc. v VIP Products LLC, Docket no. 22-148; June 8, 2023.
6. Coinbase, Inc. v Bielski, Docket no. 22-105; June 23, 2023.
7. Gonzalez v Google LLC, Docket no. 21-1333; May 18, 2023.
8. Groff v DeJoy, Docket no. 22-273; June 29, 2023.