The Supreme Court has been front and center in recent years due to a series of landmark decisions, and the year 2023 will likely be another important year for the court. Here is a look at the major cases at the court at this moment.
During the court’s last term, the abortion decision in Dobbs v. Jackson Women’s Health Organization had a major impact on the legal and political landscape. Dobbs overturned two longstanding decisions, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and it also raised questions about the court majority’s willingness to revisit other landmark decisions.
Other significant rulings included West Virginia v. Environmental Protection Agency, which limited the Environmental Protection Agency’s authority to regulate carbon emissions; New York State Rifle & Pistol Association Inc. v. Bruen, where the court clarified the individual right to keep and bear arms travels outside of the home; and Carson v. Makin, which held that Maine’s law that barred public funding for religious schools under certain circumstances violated the First Amendment’s free exercise of religion clause.
In the current term that started in October 2022, the justices have already heard arguments in significant cases, with new Justice Ketanji Brown Jackson replacing Stephen Breyer on the bench. Here is a brief list of those cases, along with several cases yet to be heard.
Cases Argued But Not Yet Decided
Sackett v. Environmental Protection Agency (21-454)
Argued on October 3, 2022
This case goes back over a decade when an Idaho couple sought to develop a property lot that the EPA later determined was in a wetland area, which the EPA said it could regulate under the Clean Water Act. The question for the justices is about “the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.” The decision could affect the number of properties subject to such regulations.
Merrill v. Milligan (21-1086)
Argued on October 4, 2022
Related Podcasts: Redistricting in Alabama and the Voting Rights Act Part 1 | Part 2
This case involves election redistricting and Section 2 of the Voting Rights Act (VRA). The court is considering whether Alabama’s 2021 redistricting plan for seven seats in the United States House of Representatives violated Section 2 of the VRA because the map “packed” Black voters into one of the state’s voting districts, diminishing their voting power. A federal court ruled that the map violated Section 2; the state countered that it used neutral criteria when drawing the map and that the lower court’s ruling would force it to use race as a more important factor than neutral considerations.
National Pork Producers Council v. Ross (21-468)
Argued on October 4, 2022
Related Podcast: Pork, The Dormant Commerce Clause, and Legislating Morality
In 2018, California voters passed Proposition 12, which banned the sale of pork products in the state—even if the pigs were raised in other states—if the animals were kept in an environment that did not meet state standards of 24 square feet of open space per animal. The plaintiffs argue that California raises very few pigs, but consumes 13% of the nation’s pork, and that market conditions would force out-of-state producers to bear an unreasonable financial burden – in conflict with the Supreme Court’s dormant Commerce Clause cases.
Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard College (21-707 and 20-1199)
Argued on October 31, 2022
Related Podcasts: Affirmative Action and the 14th Amendment Part 1 | Part 2
Affirmative action was back at the court during five hours of arguments in these two cases in late October. The justices are reconsidering precedents set in Grutter v. Bollinger (2003). In Grutter, a divided court concluded that race-sensitive college admissions programs were permitted if they were narrowly tailored and considered race as one among many factors in the admissions process. Students for Fair Admissions argues that affirmative action runs afoul of the 14th Amendment’s Equal Protection Clause and the nation’s civil rights laws.
303 Creative LLC v. Elenis (21-476)
Argued on December 5, 2022
Related Podcast: Free Speech, Same-Sex Marriage, and Anti-Discrimination Laws
Lorie Smith, a Colorado website designer, said that she would not design a website for same-sex marriage ceremonies. Her position conflicted with a state public accommodation law, the Colorado Anti-Discrimination Act (CADA). A federal appeals court ruled against the designer. Smith and her attorneys argue the CADA violates her First Amendment free speech rights as an artist.
Moore v. Harper (21-1271)
Argued on December 7, 2022
Related Podcast: The Supreme Court Considers the Independent State Legislature Theory
Like Merrill v. Milligan, this case involves redistricting but presents a much different question: Do state lawmakers alone have the power to determine election maps and election rules, or is there a role for state courts in reviewing whether legislative decisions comport with the requirements of state constitutions and federal law? In 2022, the North Carolina supreme court rejected a new election map drawn by the state’s Republican-controlled legislature. The lawmakers argue that the Constitution’s Elections Clause gives them the exclusive power to regulate federal elections held within the state, with their decisions not reviewable by the state court—an argument known as the Independent State Legislature theory.
Upcoming Arguments
These significant cases have not yet been scheduled for arguments, both involving giant technology companies. The earliest these cases would be considered is February 2023.
Gonzalez v. Google LLC (21-1333)
Granted on October 3, 2022; arguments on February 21, 2023
These arguments involve Section 230 of the Communications Decency Act, a law dating back to the 1990s that grants Internet companies such as Google, Facebook, and Twitter immunity from lawsuits about content posted by third parties on their public services. Reynaldo Gonzalez sued Google after his daughter’s death in a 2015 ISIS terrorist attack. In this case, the petitioners argue that Google lost its Section 230 immunity after ISIS members were able to leverage Google’s recommendation algorithms to recruit terrorists on YouTube, which Google owns. The petitioners are asking the court to distinguish between automatic content recommendations and traditional editorial decisions under Section 230’s immunity provisions, a decision that could have far-reaching consequences.
Twitter, Inc. v. Taamneh (21-1496)
Granted on October 3, 2022; arguments on February 22, 2023
In a case related to Gonzalez v. Google, the Taamneh family sued Twitter, Google, and Facebook after a 2017 fatal ISIS attack in Turkey. The Gonzalez and Taamneh cases were considered together by the Ninth Circuit Court of Appeals. But in the Taamneh case, the Ninth Circuit decided that the three companies faced liability for aiding-and-abetting under Section 2333 of the Anti-Terrorism Act, reversing a lower court decision. Twitter is seeking to have the Ninth Circuit ruling overturned.
Biden v. Nebraska (22-506) and Dept. of Education v. Brown (22-535)
Granted on December 1, 2022 and December 12, 2022; arguments on February 28, 2023
The Court has accepted two challenges to the Biden Administration’s student loan forgiveness program on an expedited schedule.
In the first challenge, Nebraska and five other states want the program blocked from going into effect, citing an adverse negative impact on the states and the Biden administration’s lack of a clear grant of power under the Higher Education Relief Opportunities for Students (HEROES) Act of 2003. The second challenge is from two borrowers mostly excluded from the forgiveness program who question if the program “was statutorily authorized and was adopted in a procedurally proper manner.” In both cases, the Court will consider whether the applicants have standing to pursue their cases in court.
Scott Bomboy is the editor in chief of the National Constitution Center.
