June 2023 – Prof. Zachary Wolfe, Esq.

Decision days lines (and more)

June 27, 2023case suggestions

I went to the Court today to hear the announcement of decisions, so I can offer some information for people considering attending the final sessions of the term.

The public section did look full (around 50 people) just before the session opened, but there was no need to wait in line from early hours. I spoke with someone who had number 35, and he got in line at 8:00 that morning. For members of the Supreme Court Bar: I was one of no more than a dozen people in that section, plus members of the Solicitor General’s office. (So I really did not need to get there at 7:30, as I did….) They let us into the building about 8:30 and handed out cards for the courtroom at 9:00. I believe the public line got into the building just before 9:00, although they had just started handing out numbered cards for the public line when I got there at 7:30.

Presumably the crowds will be larger and will line up earlier for the final day(s). Thursday, June 29 is already on the calendar. The Chief Justice announced that today from the bench but did not say anything like “when all remaining decisions will be released” (I forget the exact traditional language, but there at least used to be something like that). So if that’s still the tradition, they’re not yet promising to be done on Thursday. But note that we get to “7” remaining cases by counting the two cases each on affirmative action and student loan forgiveness — so really 5 major issues to be resolved. They could do that in one day. I plan to be there on Thursday.

The remaining cases are:

The affirmative action cases (argued Oct. 31), Students for Fair Admissions, Inc. v. University of North Carolinaand Students for Fair Admissions v. President and Fellows of Harvard
303 Creative LLC v. Elenis (argued Dec. 5) — the latest chapter in challenges to anti-discrimination laws involving LGBTQ rights.
Biden v. Nebraska and Dept. of Educ. v. Brown (argued Feb. 28), the student loan forgiveness cases.
Groff v. DeJoy (argued Apr. 18), involving the scope of an employer’s Title VII obligation to accommodate religious observances.
And one I hadn’t been highlighting: Abitron Austria GmbH v. Hetronic International, Inc., involving extraterritorial application of trademark law.

Final decision days

June 20, 2023case suggestions

The Court has only two more decision days on its calendar as of this post on June 20: the usual Thursday release on June 22 and a Friday “non-argument” day that recently was added for June 23. But by my count, there are 18 cases argued earlier this term but not resolved as of June 20. We are still awaiting decisions on some of the most highly watched cases of the term — involving affirmative action, LGBT discrimination, the “independent state legislature theory” (preventing state courts from altering election laws), student loan forgiveness, employer accommodations of religious observances, and other significant cases noted below:

The affirmative action cases (argued Oct. 31), Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard
Mallory v. Norfolk Southern Railway Co (argued Nov. 8): a bit of a sleeper case that deserves more attention: Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.
US v. Texas (argued Nov. 29), challenging immigration law enforcement priorities.
303 Creative LLC v. Elenis (argued Dec. 5) — the latest chapter in challenges to anti-discrimination laws involving LGBTQ rights.
Moore v. Harper (argued Dec. 7), involving the “independent state legislature theory” that would undermine state court authority to address election law issues. This case is in a strange procedural posture because of state court actions since argument.
Biden v. Nebraska and Dept. of Educ. v. Brown (argued Feb. 28), the student loan forgiveness cases.
Groff v. DeJoy (argued Apr. 18), involving the scope of an employer’s Title VII obligation to accommodate religious observances.
Counterman v. Colorado, concerning what constitutes a “true threat” (rather than speech protected by the First Amendment) in the context of social media.

So I would anticipate decision announcements next week as well, but we’ll have to watch the calendar on the front page of supremecourt.gov. I have no way to knowing when the final decisions will come down, or even if it will be next week (as I’m guessing) or if they will instead issue an extraordinary number of decision this Thursday and Friday. It would be very surprising if they are not wrapped up by the end of June.

I will note that Monday, June 26 is already on the calendar as an “order list issuance day,” that Mondays were common opinion release days in years past, and that June 26 is a storied day in LGBT history, as the date on which the Court issued Obergefell v. Hodges (in 2015), US v. Windsor (2013), and Lawrence v. Texas (2003). So with 303 Creative being among the unresolved cases, I have to wonder….

Remaining Decisions

June 2, 2023case suggestions

After the decisions announced on June 1 (which included a distressing 8-1 blow against the right to withhold one’s labor) we still have a large number of cases argued earlier this term that have not yet been resolved.

Decisions are announced on Thursdays beginning at 10:00am from the bench and released almost simultaneously on supremecourt.gov (which apparently means the end of “the running of the interns”!). June 22 is the last “non-argument day” on the Court’s calendar, although there is also an “order list issuance” day set for the following Monday and the Court often alters its calendar in the closing weeks. It would be extremely unusual for there to be any decision from this term after the end of June. After that, the Court will be in recess until First Monday in October (and this blog will be in recess until about a month before).

Below are a few highlights of what remain — not all of them, but the ones I am most watching. There is no way to know which decisions will be announced each day. The most significant cases often are held until the last day, with the others being released as they are ready, which typically corresponds to when the case was argued (and that’s the order below).

Allen v. Milligan (agued Oct. 4): Whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.
The affirmative action cases (argued Oct. 31), Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard
Mallory v. Norfolk Southern Railway Co (argued Nov. 8): a bit of a sleeper case that deserves more attention: Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.
Haaland v. Brackeen (argued Nov. 9), involving the Indian Child Welfare Act.
US v. Texas (argued Nov. 29), challenging immigration law enforcement priorities.
303 Creative LLC v. Elenis (argued Dec. 5) — the latest chapter in challenges to anti-discrimination laws involving LGBTQ rights.
Moore v. Harper (argued Dec. 7), involving the “independent state legislature theory” that would undermine state court authority to address election law issues. This case is in a strange procedural posture because of state court actions since argument.
Biden v. Nebraska (argued Feb. 28), the student loan forgiveness case.
The Jack Daniel’s / Bad Spaniels trademark case (argued Mar. 22).
Groff v. DeJoy (argued Apr. 18), involving the scope of an employer’s Title VII obligation to accommodate religious observances.
Counterman v. Colorado, concerning what constitutes a “true threat” (rather than speech protected by the First Amendment) in the context of social media.