What’s at stake: US Supreme Court 2022-2023 Term
The Supreme Court term began on October 3, 2022 with a new associate justice on the bench. Justice Ketanji Brown Jackson, President Biden’s nominee and the first Black woman on the highest court, replaced Justice Stephen Breyer who retired last year. Justice Jackson joins the conservative majority and will be among the nine justices hearing what already promises to be an extremely significant docket including cases on voting rights, affirmative action, and immigration, among other hot-button issues.
We will be updating this document as the Supreme Court adds cases to its docket — check back regularly!
Last updated June 2023.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Students for Fair Admissions, Inc. v. University of North Carolina
Initially, the Supreme Court indicated these two affirmative action cases would be argued and considered together, since they concern similar questions. But after Justice Ketanji Brown Jackson, who until recently served on Harvard’s board of overseers, was confirmed, the Court announced it would hear the cases separately, though on the same day, allowing Justice Jackson to participate in the UNC case.
Despite the fact that for 40 years the Supreme Court has said that educational institutions are allowed to take race into account as one factor in admission decisions with some caveats, Students for Fair Admissions (SFFA) sued both Harvard University and the University of North Carolina (UNC) for doing just that.
SFFA alleges that Harvard’s admissions policy discriminates against Asian Americans in violation of Title VI of the Civil Rights Act of 1964. Although Harvard admits that it does consider race as one factor in admission, they assert that their policy strictly adheres to rules for race-based admissions laid down in the Supreme Court’s 2003 Grutter v. Bollinger decision, which has guided universities in their efforts to maintain a qualified and diverse student body. Both the district court and the First Circuit ruled for Harvard.
SSFA argues that the admissions policies of the University of North Carolina discriminate against White and Asian American applicants, in violation of both Title VI of the Civil Rights Act of 1964 and the Constitution’s 14th Amendment (unlike Harvard, UNC is a public university and covered by the 14th Amendment’s equal protection guarantee). Like Harvard, UNC admits that it considers race among many other factors in admission decisions but follows the requirements for race-based admission set forth in Grutter. After a seven-year legal battle in the district court, the UNC policy was upheld — a decision affirmed by the Fourth Circuit.
Oral argument: October 31, 2022
Why we’re watching: These cases could decide the fate of the precedent set in the Supreme Court’s Grutter decision. NCJW supports and works for equal opportunity for all in the public and private sectors through policies and programs that support diversity, equity, and inclusion, such as affirmative action.
Decision: On June 28, the Supreme Court ruled that both the Harvard College and UNC affirmative action policies violated the Equal Protection Clause of the 14th Amendment. Chief Justice Roberts wrote the majority opinion, joined by the Court’s five other conservative justices. Justice Sotomayor wrote the dissent in the Harvard case and strongly criticized the majority opinion’s reading of the 14th Amendment. In her dissent in the UNC case, Justice Jackson also delivered a strong rebuke to the majority’s interpretation of the clause and cautioned that stark “race-based gaps” still exist today.
303 Creative LLC v. Elenis
Lorie Smith, the owner of 303 Creative, a Colorado graphic design company, wanted to begin designing wedding websites but not for same-sex couples. Her plan to post a notice on her website to that effect violated a Colorado law that prohibits businesses from discriminating on the basis of sexual orientation, among other characteristics, and from publishing any communication that says or implies that the business excludes certain customers or patrons. When Smith sued claiming that the law violated her artistic free speech rights under the First Amendment, the district court and, later the Tenth Circuit, sided with the state of Colorado. The Supreme Court will decide whether a public accommodation law that prohibits or requires communication violates an artist’s right to free speech and expression.
Oral argument: December 5, 2022
Why we’re watching: This case could allow business owners who are engaged in expressive activities to claim religious-based exemptions from laws protecting civil rights. NCJW believes that all forms of discrimination must be eliminated and supports the enactment, enforcement, and preservation of laws and regulations that protect civil rights and individual liberties for all.
Decision: In a 6-3 decision, issued on June 30, Justice Gorsuch overruled the lower court, ruling that the First Amendment barred Colorado from forcing Lorie Smith from creating “expressive designs” with which she disagrees. In her dissent, Justice Sotomayor pointed out that this was the first time in history that the court allowed a business open to the public to refuse service to members of a protected class.
Groff v. DeJoy
Gerald Groff, an evangelical Christian who works for the US Postal Service (USPS), refused to work on Sunday because of his religious beliefs and practices. USPS initially offered to find other employees to swap shifts with him, but eventually began disciplining Groff when he did not work, leading to his termination. Groff sued under Title VII of the Civil Rights Act of 1964, claiming that USPS did not reasonably accommodate his religion. The district court ruled against Groff, citing a prior Supreme Court ruling from 1977, Trans World Airlines v. Hardison, that defined how an employer could demonstrate “undue hardship” with regard to whether or not it accommodated an employee’s religious practice per Title VII. The US Court of Appeals for the Third Circuit agreed, and Groff is asking the Supreme Court to overturn its 1977 ruling.
Oral Argument: April 18, 2023
Why We’re Watching: NCJW believes that employers should respect and accommodate workers’ religious beliefs and practices in most cases.
Decision: In a unanimous decision on June 28, the Court overturned the Third Circuit’s decision against Gerald Groff, requiring employers to reasonably accommodate employees’ religious beliefs. The Court modified but did not reverse past precedent when it comes to determining when such accommodation would not be required.
Perez v. Sturgis Public Schools
A deaf student, Miguel Perez, was assigned an aide by his Michigan school district who was not trained to work with deaf people and did not know American Sign Language (ASL). When it came time to graduate from high school, Miguel Perez’s parents were informed that their child did not meet the requirements for a diploma. Perez sued the school district for violating the Americans with Disability Act (ADA) as well as the IDEA (Individuals with Disability Education Act), among other laws. The family reached a settlement under the IDEA to pay for Miguel’s education at a deaf school, post-secondary education assistance, but the administrative judge threw out the ADA claim on the grounds that he lacked authority to hear the case. Perez then sued the school system under the ADA in federal district court, which dismissed the case without hearing arguments due to the IDEA settlement — a move that was affirmed by the Sixth Circuit. Perez is asking the Supreme Court whether a family must exhaust all administrative proceedings under the IDEA before pursuing a claim under the ADA, and whether settling, as Perez’ family did, counts as exhausting his claims.
Oral Arguments: January 18, 2023
Why We’re Watching: NCJW works for comprehensive supports, opportunities, services, and policies that enable all children and youth to succeed in school. We do not believe a child and their family must exhaust their administrative remedies in order to bring claims under civil rights laws, including the ADA.
Decision: On March 21, the Court ruled unanimously in favor of Miguel Perez, agreeing that he can sue the school system for damages. They sent the case back to the lower court so that his litigation might continue.
US v. Texas
In September 2021, the Secretary of Homeland Security (DHS) Alejandro Mayorkas issued Guidelines for the Enforcement of Civil Immigration Law, a memo directing immigration officials to prioritize the arrest and deportation of unlawfully present individuals and groups who are a threat to national security, public safety, or border security. Texas, along with Louisiana, sued DHS over the guidance. A Texas district court judge ruled that the memo was arbitrary and violated the Administration Procedure Act, a 1946 law that stipulates the ways in which federal agencies may make and enforce regulations, suspending the memo’s application nationwide. This decision was affirmed by the Fifth Circuit. On appeal, the US asked the Supreme Court to halt the district court’s ruling. In a 5-4 decision, they declined but did decide to hear arguments in the case. It is highly unusual for the Court to step in regarding a departmental guidance memo.
Oral argument: November 29, 2022
Why we’re watching: This case could restrain the executive branch’s ability to issue guidance concerning immigration policy or federal policy writ large. NCJW supports comprehensive, equitable, and humane immigration policies and practices.
Decision: In an 8-1 decision announced on June 23, the Court decided that Texas and Louisiana did not have standing to challenge the Biden Administration immigration-enforcement guidelines — a victory for the Administration which, according to Justice Kavanaugh’s majority opinion has broad discretion when it comes to enforcing immigration laws.
Arizona v. Mayorkas
Early in the COVID-19 pandemic, the Trump Administration implemented a policy known as Title 42 which used a public-health rationale — widely disputed by public health experts — to exclude certain immigrants from entering the US to exercise their legal right to apply for asylum. The policy has been used to expel millions of asylum seekers and left tens of thousands stranded in inhumane and dangerous conditions in Mexico. The Biden Administration announced in April that it intended to phase out Title 42, and in November. A district court in Louisiana found that the administration did not follow proper procedure and ordered Title 42 to remain in place; an appeal is pending in the Fifth Circuit. Meanwhile, a federal district court judge in Washington, DC, found the policy unlawful and ordered it to end by December 21. When the DC Circuit Court rejected the request of 19 states to join the case, the states went to the Supreme Court which issued a brief, unsigned (5-4) order putting the district court ruling on hold and agreeing to take up the case on whether the attorneys general can step in to defend the policy.
Oral Argument: March 1, 2023
Why We’re Watching: NCJW believes that Title 42 is an unjust policy that uses widely repudiated public health excuses to keep millions of asylum-seekers out of the United States, in violation of international law. NCJW supports comprehensive, humane, and equitable immigration, refugee, and asylum laws, policies, and practices.
Decision: With the Biden Administration ending the COVID emergency on May 11, the Title 42 policy expired. The Supreme Court sent the case back to the lower court with instructions to dismiss the case as moot.
Haaland v. Brackeen
In 1978, Congress passed the Indian Child Welfare Act (ICWA) which was a response to the fact that one-quarter to one-third of Native American children were placed in adoptive or foster families, primarily with non-Native families. The practice was documented to have harmed Native children and threatened the future of Native tribes. The Act provides for the welfare of Native children, requiring an active effort to provide services to at-risk families before removing a child and, in the event that a child is sent elsewhere, the Act preferences placing the child a member of their extended family or with a member of the child’s tribe. Three non-Indian parents in Texas sued in district court which found the ICWA unconstitutional. A three-judge panel of the Fifth Circuit unanimously reversed the lower court decision, but the full Fifth Circuit issued a divided opinion, leading to the Supreme Court appeal. Among the issues before the Court is whether the families have standing to bring the suit since they suffered no injuries and whether Congress had the authority to pass the ICWA.
Oral Argument: November 9, 2022
Why We’re Watching: This case could have broader implications connected to the status and well-being of Native Americans as the outcome could have detrimental consequences for the state of Indian law, tribal sovereignty, American Indian and Alaska Native children, and reproductive justice for Indigenous communities across the United States. NCJW seeks to improve the quality of life for women, children, and families and supports laws and policies like the Indian Child Welfare Act, one of our nation’s key tools to protect the rights and culture of American Indian and Alaska Native children and families.
Decision: In a 7-2 decision issued on June 15, 2023, the Supreme Court affirmed that Congress has the power to make laws governing Native American tribes and upheld the Indian Child Welfare Act which aims to keep adopted Native children within their families and tribes.
Health and Hospital Corp of Marion County, Indiana v. Talevski
On behalf of her husband, a resident of a Medicaid-participating, state-run nursing home in Indiana living with dementia, Ivanka Talevski brought suit against the facility alleging that they violated the Federal Nursing Home Reform Act (FNHRA) by providing inadequate medical care, using unnecessary psychotropic drugs and chemical restraint, and improperly discharging and transferring him. A district court judge dismissed the case, finding that the FNHRA did not provide for the private right of action afforded under a law known as Section 1983, which allows citizens to seek relief from violations of rights or injuries. The Seventh Circuit reversed the ruling, saying that Section 1983 did allow for the suit. Although the Medicaid Act does not include a provision to allow individuals to enforce the law in court, people have relied on Section 1983 as an enforcement mechanism throughout Medicaid’s 50-year history. Beyond the particulars of the Talevski case involving the FNHRA and Medicaid, the Supreme Court, which took the appeal, must decide whether to stick with precedent and allow individuals to use Section 1983 to seek redress in cases where the specific statute doesn’t have its own right for individuals to sue for enforcement of the statute.
Oral Arguments: November 8, 2022
Why We’re Watching: The outcome of this case will have an impact on access to reproductive and sexual health. An adverse outcome could significantly impede a Medicaid beneficiary or applicant’s right to enforce the act’s provisions (or any other social program’s provisions) when they are violated by the state.
Decision: On June 8, in a 7-2 decision, the Supreme Court upheld the right of individuals to sue under Section 1983 when state officials or agencies violate constitutional or statutory rights. Justice Ketanji Brown Jackson wrote the majority opinion.
Allen v. Milligan
In redrawing congressional districts after the 2020 Census, Alabama created one majority-Black district but divided other clusters of Black voters among the other six districts. A group of Alabama voters and organizations sued, alleging that the new congressional map diluted the power of Black voters to elect a candidate of their choice — a violation of Section 2 of the 1965 Voting Rights Act, which bars racial discrimination in voting policies. A panel of three district court judges agreed and ordered the state to draw a new map with a second majority-Black district. Instead, the state appealed to the US Supreme Court, which in February 2022 stayed the lower court’s decision. Alabama has argued that drawing a majority-minority district is a form of racial discrimination and that all consideration of race should be prohibited.
Oral argument: October 4, 2022
Why we’re watching: The outcome of this case could decide the fate of Section 2 of the Voting Rights Act. NCJW works for election laws, policies, and practices to eliminate obstacles to the electoral process so that every vote counts and can be verified.
Decision: In an important (and unexpected) decision on June 8, the Supreme Court upheld Section 2 of the Voting Rights Act. They ruled 5-4 that Alabama must redraw its redistricting map which had diluted the power of voters of color by failing to include a second majority Black district. They reaffirmed that race can and must be taken into account when drawing remedial districts that provide equal opportunity for voters of color to choose the candidate of their choice.
Moore v. Harper
This case will test the ‘independent state legislature theory,’ a controversial and extreme interpretation of election law that would give state legislatures nearly exclusive power to regulate federal elections. The theory would bar state courts or even governors from intervening in issues of federal election law and administration. The case comes out of North Carolina, where a majority-Republican state legislature approved a gerrymandered redistricting map to assure a Republican supermajority among the state’s 14 congressional seats. A 2019 Supreme Court ruling (Rucho v. Common Cause) held that partisan gerrymandering was beyond the reach of federal courts, so voters objecting to the partisan map sued in state court. In February 2022, the state supreme court struck down the map, finding it to be intentionally partisan, and ordered three court-selected experts to draw a new map. Republican state lawmakers then asked the US Supreme Court to reinstate their map, citing the independent state legislature theory. Although the US Supreme Court declined to reinstate the gerrymandered map, they did agree to hear the case.
Oral argument: December 7, 2022
Why we’re watching: This dangerous and extreme concept could provide state legislatures exclusive and near-absolute power to regulate federal elections. NCJW works for election laws, policies, and practices that ensure safe, easy, and equitable access to the ballot.
Decision: On June 27, by a 6-3 vote, the Court repudiated the ‘independent state legislature theory.’ In a surprising strongly worded opinion, Chief Justice Roberts writing for the majority emphasized that judicial review was one of the “fundamental principles of our society.” This decision rejects the North Carolina legislature’s attempt to erase checks and balances for election laws.
Glacier Northwest v. International Brotherhood of Teamsters Local 174
Truck drivers from Teamsters Local 174 went on strike to secure a better contract at Glacier Northwest, a company that provides ready-mix concrete to construction projects in Washington state. Some cement was spoiled during the strike, and Glacier sued the union under state tort law for intentional destruction of property. The Washington State Supreme Court dismissed the suit because they found it was not appropriate to apply state law to a labor dispute covered under the federal National Labor Relations Act. Their ruling followed longstanding Supreme Court precedent dating back to a 1959 ruling in San Diego Building Trades Council v. Garmon that held that federal labor law preempts the application of state law to labor disputes. Glacier appealed, arguing that because damage had been done, the strike would not be protected by federal law in the first place. The Supreme Court may well revisit this 60-year precedent protecting unions from lawsuits when workers exercise their federally protected right to strike, which would seriously undermine the protection of labor rights.
Oral Argument: January 10, 2023
Why We’re Watching: NCJW has long supported the right of workers to organize and form unions to collectively bargain for better working conditions. This case has the potential to seriously erode the protection of labor rights, including the right for workers to strike.
Decision: On June 1, in an 8-1 decision written by Justice Amy Coney Barrett, the Supreme Court reversed the Washington State Supreme Court decision and remanded the case. The opinion affirmed the overall power of the NLRB and the right to strike despite siding with Glacier. Justice Ketanji Brown Jackson urged the lower court to dismiss the company’s complaint.
Biden v. Nebraska
Department of Education v. Brown
In August, President Biden announced a student-loan debt relief program to forgive up to $10,000 in federal student-loan debt for some borrowers. Six states — Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina — sued the federal government asserting that the plan exceeds the administration’s authority, claiming it violated the Higher Education Relief Opportunities for Students Act which the White House had used to justify their action. A Missouri district court dismissed the suit, saying the states lacked standing to bring the case, but the Eighth Circuit issued an injunction, freezing the program. At about the same time, two student borrowers who did not qualify for debt forgiveness under the relief plan sued in a Texas district court claiming that the administration did not undertake a formal notice and comment process required under the Administrative Procedure Act. The district court judge issued a ruling striking down the entire program. The Fifth Circuit declined to issue a hold, essentially stopping the program nationwide. The Supreme Court has agreed to hear arguments in both cases jointly.
Oral Argument: February 28, 2023
Why We’re Watching: NCJW is aware that these lawsuits are part of a continuing strategy mounted by conservatives to use the courts to stop this administration’s agenda, utilizing what some consider to be faulty lawsuits brought in federal courts packed with conservative judges. In this case, women and students of color are more likely to access student loans and incur debt — putting them most at risk should the administration’s loan-forgiveness program end.
Decision: Although the court ruled unanimously that the plaintiffs in Board of Education v. Brown lacked standing, they did decide the similar case from Nebraska, allowing Missouri standing. In another invocation of the “major questions doctrine,” popular with this court’s conservatives, Chief Justice Roberts’ majority opinion rejected the Executive and Legislative Branches right to enact programs like student loan forgiveness. This is a blow to millions of student borrowers as well as the administration’s ability to enact its agenda.