15 Supreme Court Updates

Constitutional Law – 1st Amendment

303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023)

A graphic designer challenged Colorado’s Anti-Discrimination Act (“CADA”), stating it violated her free exercise and speech rights under the First Amendment. Lorie Smith declined to design a website for a same-sex wedding, stating it was against her religious beliefs. The Court held that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. The Court stated “tolerance, not coercion, is our Nation’s answer.” The majority’s ruling propels freedom of speech arguments while limiting equal protection claims. Justice Sotomayor in a strong dissenting opinion stated “[o]ur Constitution contains no right to refuse service to a disfavored group.”

Counterman v. Colorado, 143 S. Ct. 2106 (2023)

Colorado charged Counterman with stalking after he sent many, many Facebook messages to a singer, including statements such as, “You’re not being good for human relations. Die. Don’t need you,” and “Staying in cyber life is going to kill you.” Counterman claimed his speech was protected under the First Amendment freedom of speech. The issue was whether his statements amounted to “true threats,” which are not protected by the First Amendment. The Colorado trial and appellate courts held that Counterman’s statements were not protected under the First Amendment, and Counterman was found guilty. However, Counterman claimed that his statements were protected because he did not have a subjective understanding that his messages were threatening.

The case ended up in the Supreme Court because the federal courts of appeals disagreed about what the true threats analysis required by the First Amendment was—specifically, the courts disagreed about whether the government needed to satisfy a subjective-intent requirement in addition to an objective standard to establish that a statement was a true threat unprotected by the First Amendment. The Supreme Court held that subjective intent is required. However, the Court specified that the subjective intent standard requires no more than a showing of recklessness (disregard of a substantial risk). In short, the true threats analysis includes both an objective and a subjective standard. The objective standard asks whether a reasonable person would foresee the statement being interpreted as a serious expression of intent to harm. The subjective standard asks whether the speaker intended to threaten by making the statement. The Court vacated the Colorado state judgment and remanded the case, which means that the Court sent the case back to the lower court for reconsideration of the case with the new standard.

Gonzalez v. Google, 143 S. Ct. 1191 (2023)

Nohemi Gonzalez, a 23-year-old American student at California State University, Long Beach, was killed in the 2015 terrorist attacks in Paris. Gonzalez’s parents sued Google under the U.S. Anti-Terrorism Act, which allows plaintiffs to recover against those who provided “substantial assitance” to those committing acts of international terrorism. The central allegation was that YouTube’s algorithm recommended terrorist content to prospective terrorists based on their past viewing history, in effect aiding in the radicalization of the terrorists and ultimately to the attack that killed Gonzalez. Google argued that Section 230 of the Communications Decency Act of, which shields platforms from liability for third-party content, precluded the suit. The Supreme Court ultimately did not rule upon the largest issue at hand, the scope of Section 230, holding in the companion case of Twitter, Inc. v. Taamneh, that “[t]he fact that these algorithms matched some ISIS content with some users thus does not convert defendants’ passive assistance into active abetting.”

Groff v. DeJoy, 143 S. Ct. 2279 (2023)

A U.S. Postal Service employee refused to work on Sundays due to his religious beliefs. USPS attempted to accommodate the plaintiff’s schedule by helping him find people to switch shifts with; however, on numerous occasions co-workers refused to swap shifts and ultimately the plaintiff was fired for not showing up to work. The issue in front of the Court was to decide what is an “undue hardship” for an employer under the Civil Rights Act of 1964’s Title VII. The Court held “Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” The ruling strengthens religious protections for employees as employers cannot refuse to accommodate religious practices due to trivial costs but instead the costs of accommodation must be substantial.

 Kennedy v. Bremerton, 142 S. Ct. (2407)

A high school football coach, Joseph Kennedy, prayed in the middle of the field after each game. The First Amendment, which applies to the states by virtue of the 14th Amendment, forbids any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” This provision has been interpreted to encompass official acts respecting religion, rather than solely formal laws. The school board, concerned that the practice ran afoul of the Establishment Clause, instructed Kennedy to stop doing so. Kennedy, stating that he felt compelled to do so, refused. The Court held that not only was Kennedy’s post-game ritual not government speech, and thus that it was not prohibited by the Establishment Clause, but additionally that the school board’s termination of Kennedy because of that speech violated his right to free exercise of religion.

Constitutional Law – Other Amendments

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022)

2nd Amendment

In N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, the Court addressed the question of whether a New York law violated the Second Amendment.[1] The New York law at issue required individuals who sought to carry a pistol for self-defense outside of their home or business to apply for an unrestricted concealed carry license, which required a showing of “proper cause.”[2] To establish a “proper cause,” the applicant was required to establish a “special need,” above and beyond that of the general public.[3] The Court ruled that the law violated the Fourteenth Amendment by denying citizens their Second Amendment right to keep and bear arms for self-defense.[4]  The Court declined to follow a two-step test used by lower courts which first looked at whether the conduct being regulated was within the original scope of the Second Amendment, and if it was, whether the restriction advanced a significant public interest.[5] Instead, the Court held “that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct” and the burden is on the government to “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”[6] Using a historical analysis, the Court found that the right to public carry is protected by the Second Amendment and there was no historical tradition of prohibiting public carry for self-defense.[7] Justice Thomas wrote the opinion of the Court. Justice Alito, Kavanaugh, and Barrett wrote concurrences. Justice Breyer wrote a dissent.

Samia v. U.S., 143 S. Ct. 2004 (2023)

6th Amendment

Samia was convicted of murder and sentenced to life imprisonment. One piece of evidence the government used to convict him was a confession a co-defendant named Stillwell made. The court admitted Stillwell’s confession into evidence at Samia’s trial after redacting Samia’s name from the confession. The court redacted Samia’s name because of the Sixth Amendment’s Confrontation Clause, which requires that a defendant have a right to confront the witnesses against them. Confronting the witnesses against them generally means face-to-face questioning. So, because Samia could not cross examine Stillwell at trial, the court redacted Samia’s name to avoid a Confrontation Clause issue.  However, Samia argued that the redaction of his name and substitute of “another person” was insufficient because jurors would immediately infer that the confession’s references to “other person” were referring to him. The Supreme Court addressed the issue of whether admitting a codefendant’s redacted statement that inculpates the defendant based on context violates the Confrontation Clause. The Court held no, so long as the modification or redaction does not directly inculpate the defendant. In this case, the descriptor “other person” was fine. The Court affirmed Samia’s conviction.

Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022)

9th Amendment

Mississippi passed a law which prohibited all abortions after 15 weeks. Jackson Women’s Health Organization filed a lawsuit to challenge the law. The Mississippi federal district court granted Jackson’s challenge and stopped Mississippi from enforcing the law, holding that Mississippi did not provide evidence that a fetus would be viable at 15 weeks and that the Supreme Court had previously held that states could not ban abortions prior to viability. Mississippi appealed. The Supreme Court addressed the issue of whether Mississippi’s law was constitutional. The Court held that the law was constitutional because the Constitution does not confer a right to abortion. In holding so, the Court overruled Roe v. Wade and Planned Parenthood v. Casey, which are cases in which the Supreme Court previously held there was a constitutional right to abortion. The Court assessed whether the right to abortion was deeply rooted in the nation’s history and an essential component of ordered liberty. The Court found that the right to abortion was neither.

Bostock v. Clayton County, 140 S. Ct. 1731 (2020)

14th Amendment, Civil Rights Law

Gerald Bostock was fired from his government job after he started playing in a gay softball league. His employer said it fired him for conduct “unbecoming” of a government employee. He sued his employer for gender discrimination under Title VIII of the Civil Rights Act (Title VII). Title VII prohibits employment discrimination based on an individual’s “sex,” among other things. The Court found that the term “sex” includes both the individual employee’s gender and the gender they find’s sexually attractive. The Court reasoned that if an employer fires a male employee who finds men sexually attractive, but keeps a female employee who finds men sexually attractive, the only difference is a gender-based distinction. Therefore, because Bostock was fired because of his sexual orientation, he was unlawfully discriminated against per Title VII.

Students for Fair Admissions v. President and Fellows of Harvard, 143 S. Ct. 2141 (2023)

14th Amendment, Civil Rights Law

The Court reviewed its prior precedent regarding the constitutionality of affirmative action in higher education. This issue in this case was whether institutions of higher education may use race as a factor in their admissions process. The Court held that admissions programs that use affirmative action could not be reconciled with the “guarantees of the [Constitution’s] Equal Protection Clause.” The outcome of the case prohibits higher education programs from specifically asking students their race or ethnicity in hopes of achieving a diverse student population. In her dissent, Justice Sotomayor said the decision “rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits.”

Education Law

Biden v. Nebraska, 143 S. Ct. 2355 (2023)

In August 2022, via executive order, President Biden purported to forgive $10,000 per qualified borrower in federal student loans, with an additional $10,000 for Pell Grant recipients. The legal authority for the loan forgiveness was claimed to be the HEROES Act of 2002, which allowed for waivers of student loan debt “in connection with a war or other military operation or national emergency.” The Supreme Court held that debt forgiveness on the scale at issue required clear congressional authorization, that the HEROES Act did not provide that authorization, and thus that the debt forgiveness was unlawful.

Election Law

Allen v. Milligan, 143 S. Ct. 1487 (2023)

In Allen v. Milligan, the Court was asked to address whether Alabama’s congressional districts for the 2022 election violated Section 2 of the Voting Rights Act.[12] Alabama’s new congressional map contained seven districts.[13] In one district, Black voters would have constitute a majority under the new plan, while Black residents were 27% of the population.[14] Section 2 of the Voting Rights Act prohibits voting procedures and practices that discriminate on the basis of race or color.[15] The Court reaffirmed the Gingles test as the proper standard for Section 2 claims and found that the proposed maps would likely have violated Section 2.[16] Thus, future Section 2 claims will require the plaintiffs to meet three preconditions: 1) the minority group is “sufficiently large” and “geographically compact” to be a majority in a district following traditional redistricting criteria; 2) the minority group is “politically cohesive”; and 3) “the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate.”[17] After the three preconditions have been met, the courts will then conduct a totality of the circumstances review that focuses on the history and present conditions of the area in question to determine if there has been a violation of Section 2.[18]

Moore v. Harper, 143 S. Ct. 2065 (2023)

In Moore v. Harper, the Court addressed the Independent State Legislature theory when it answered the question “whether . . . [the Elections] Clause vests state legislatures with authority to set rules governing federal elections free from restrictions imposed under state law.”[8] Following the adoption of new congressional maps in North Carolina, the North Carolina Supreme Court ruled that the new map was a partisan gerrymander that violated North Carolina’s constitution.[9] Article 1, section 4, clause 1 of the Constitution provides that: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”[10] The Court rejected the Independent State Legislature theory, which argued state courts could not interfere with state legislatures exercising their power under the Elections Clause, and ruled that “state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause.”[11] This holding reaffirms the ability of state courts to act as a check on state legislatures when they are making rules for federal elections. Chief Justice Roberts wrote the opinion of the Court. Justice Kavanaugh wrote a concurrence. Justice Thomas wrote a dissent.

Indian Law

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)

An Oklahoma state court convicted Jimcy McGirt, a Seminole tribal member, of crimes that allegedly occurred on tribal land. After the conviction, McGirt argued that the state did not have jurisdiction over him because he was a tribal member acting on alleged tribal land. The Major Crimes Act (MCA) states that tribal members must be tried in federal court, not state court, for certain offenses occurring on tribal land.

Here, the court had to determine whether the land where the alleged crime occurred was tribal land. Congress originally reserved the land in question as the Seminole nation’s reservation. However, during the Allotment Era, Congress split up the reservation into individually owned plots. Today, these plots are often owned by non-tribal members. Still, the Court said that since Congress never expressly extinguished the reservation, the land was nonetheless tribal land, regardless of whether it was owned by a tribal member. Because the land was still a reservation and McGirt was a tribal member, the Court ruled that the state did not have jurisdiction to try him.

Intellectual Property Law 

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258 (2023)

Lynn Goldsmith took photos of Prince in the 1980. Andy Warhol used those photos as references to make 15 art pieces. After Prince died in 2016, Vanity Fair printed some of those 15 pieces without crediting Goldsmith as the artistic reference. Goldsmith sued the Andy Warhol Foundation (the Foundation) for copyright infringement. The Foundation argued that it was protected by the fair-use doctrine. The fair-use doctrine allows for some uses of copyrighted works. The Court applies a factor test to determine if the use is fair. Here, the Court found that the use was not fair because Goldsmith and the Foundation’s work had the same use: publishing images of celebrities in magazines. Because the two pieces were used for the same objective, the use was not fair. Therefore, the Foundation infringed on Goldsmith’s copyright.