This article was updated on Aug. 10 at 11:10 a.m.

Lawyers for a self-appointed civil rights “tester” have asked the Supreme Court to dismiss her case as moot – that is, no longer a live controversy. Deborah Laufer, who has physical disabilities and vision impairments, told the justices that she has voluntarily dismissed her case in the district court after an attorney who represented her in other cases was disciplined by a federal court in Maryland. But lawyers for the hotel company that Laufer is suing urged the justices to go ahead and decide the case, telling them that they “should not pull the rug out from under” the company “when it is on the cusp of its day in this Court.”

In a brief unsigned order on Aug. 10, the court declined to dismiss the case. The justices indicated, however, that they could still consider whether the case is moot at the oral argument on Oct. 4. 

Laufer filed her lawsuit in federal court in Maine against Acheson Hotels, alleging that the website for an inn that Acheson operates there did not contain enough information about the inn’s accommodations for people with disabilities. That dearth of information, she contended, violated the Americans with Disabilities Act.

The district court threw out Laufer’s lawsuit, holding that she did not have a legal right to sue because she had no plans to visit the hotel and therefore was not injured by the lack of information on the hotel’s website. But when the U.S. Court of Appeals for the 1st Circuit reinstated her lawsuit, Acheson Hotels went to the Supreme Court, which agreed to decide whether Laufer can sue. The case is scheduled for oral argument on Oct. 4.

In its brief on the merits, filed on June 5, Acheson Hotels renewed its argument that Laufer does not have a legal right to bring the lawsuit. It argued that, in any event, the case should be dismissed because the hotel’s website now indicates that its rooms are not accessible for people with disabilities, so that Laufer has received the information she sought.

In a 10-page filing earlier this week, lawyer Kelsi Brown Corkran of the Georgetown University Law Center asked the justices to dismiss Laufer’s case as moot. Corkran cited recent disciplinary proceedings in a federal court in Maryland against Tristan Gillespie, who has filed over 600 lawsuits under the ADA on behalf of Laufer and other “testers.”

A report issued on June 30 by three federal judges recommended that Gillespie be suspended from practicing before the Maryland court for six months. It noted that Gillespie had filed as many as 16 “tester” complaints in one day, each seeking $10,000 in attorneys’ fees even though it was “highly improbable” that he had actually spent that much time on each lawsuit. The report found that Gillespie had violated the rules governing the conduct of lawyers “not once, or twice, but hundreds of times,” and that he had “litigated his cases with his clients as an afterthought” – failing, for example, to keep his clients up to date on settlement agreements or to inform them of his decision to dismiss over 100 cases when facing the prospect of disciplinary action.

In considering factors that might weigh in favor of a lighter sanction for Gillespie, the report acknowledged that Gillespie had not acted on his own, but instead “at the direction of his boss, Thomas B. Bacon,” who represented Laufer in the 1st Circuit and in opposing Supreme Court review. (Corkran’s filing indicates that Bacon no longer represents Laufer in the Supreme Court.) The panel believed that Gillespie had “joined a pre-existing scheme that raises serious ethical concerns—including repeat clients, a compromised investigator, and a method for extracting unwarranted attorneys’ fees from targeted hotels based on a well-worn settlement script.”

Gillespie was not involved in the dispute that is currently before the Supreme Court, Corkran told the justices, while Corkran and her team only became involved in the case after the justices granted review. But Laufer nonetheless opted to voluntarily dismiss her case in the district court so that the allegations against Gillespie do not become a distraction “from the merits of her ADA clams and everything she has sought to achieve for persons with disabilities like herself.” Because she has dismissed her district court case, Corkran contended, there is no longer a live controversy for the Supreme Court to decide. And because Laufer is responsible for the fact that there is no longer a case for the justices to decide, Corkran continued, the 1st Circuit’s decision in her favor should not stand.

Adam Unikowsky, the lawyer for Acheson Hotels, countered that it would be “extraordinarily unfair to” the company, as well as a “disaster for the rule of law,” to dismiss the case now. “Laufer’s litigation program,” Unikowsky contended, “was recently revealed to have been an unethical extortionate scheme, and the unapologetic purpose of Laufer’s effort to moot this case is to ensure that she or similar plaintiffs can continue pursuing similar schemes” by avoiding a ruling from the Supreme Court in Acheson’s favor, which would block all such “test” cases nationwide.

If Laufer’s case is dismissed, Unikowsky suggested, Acheson could be sued again, even though it has spent substantial resources defending against her lawsuit. And more broadly, he added, it will “set the precedent that it is perfectly fine for the plaintiff to abandon her case at the last minute to avoid an adverse ruling.”

There is no specific timetable for the justices to act on Laufer’s request. Laufer’s brief on the merits is due on Aug. 2.

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Just two weeks after the justices finished releasing their opinions from the 2022-23 term, the court is now looking ahead to next term. The Supreme Court on Friday released the calendar for its October oral argument session. The justices will hear just six cases over five days between Oct. 2 and Oct. 11. The session will, however, include several high-profile cases, such as the challenge to a purported racial gerrymander in South Carolina’s congressional map and a challenge to the constitutionality of the law providing funding for the Consumer Financial Protection Bureau.

The justices will hear argument in Consumer Financial Protection Bureau v. Community Financial Services Association on Oct. 3, the second day of the session. The case began as a challenge by the payday-lending industry to a CFPB rule that barred lenders from trying to withdraw payments from borrowers’ bank accounts after two unsuccessful attempts due to lack of funds in the accounts.

The U.S. Court of Appeals for the 5th Circuit struck down the rule. It explained that the CFPB was receiving its funding directly from the Federal Reserve, which collects fees from member banks, rather than through money allocated to it by Congress through the normal appropriations process. And that, the court of appeals reasoned, violates the Constitution’s appropriations clause, which directs that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

The CFPB asked the justices to take up the case, warning that the 5th Circuit’s ruling “calls into question virtually every action the CFPB has taken in the 12 years since it was created,” and the justices agreed to do so in February.

In Alexander v. South Carolina Conference of the NAACP, the justices will consider a challenge to the congressional redistricting map that South Carolina’s Republican-controlled legislature enacted after the 2020 census. A three-judge panel ruled earlier this year that the state’s 1st congressional district, which is now represented by Republican Nancy Mace, was an unconstitutional gerrymander because the legislators had deliberately moved tens of thousands of Black voters to a different district in order to make the district a safe seat for Republicans. The panel ordered the state to draw a new map.

The legislators appealed to the Supreme Court, telling the justices that that they had focused on politics, rather than race, in drawing the district. Allowing the lower court’s decision to stand, they said, would put future legislatures in an “impossible bind.” But the challengers countered that the legislators’ reliance on race was “impermissible even if mapmakers used race as a proxy for politics.”

Here’s the full list of cases scheduled for argument in the October 2023 argument session:

Pulsifer v. United States (Oct. 2) – How should courts interpret the federal sentencing law that allows a defendant convicted of some nonviolent drug crimes to avoid what would otherwise be a mandatory minimum sentence?

Consumer Financial Protection Bureau v. Community Financial Services Association (Oct. 3) – Whether the funding scheme for the CFPB is constitutional.

Acheson Hotels v. Laufer (Oct. 4) – Whether a civil rights “tester” can bring a lawsuit challenging a hotel’s failure to provide information about its accessibility for people with disabilities when the “tester” has no intention of actually visiting that hotel.

Murray v. UBS Securities (Oct. 10) – What showing must an employee alleging discrimination make under the whistleblower protection provision of the Sarbanes-Oxley Act, which bars publicly traded companies from discriminating against employees who report wrongdoing?

Great Lakes Insurance v. Raiders Retreat Realty (Oct. 10) – Whether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the state whose law is displaced.

Alexander v. S.C. Conference of the NAACP (Oct. 11) – Whether South Carolina’s congressional redistricting map constitutes an illegal racial gerrymander.

This article was originally published at Howe on the Court.

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Last week the Supreme Court held in Abitron Austria GmbH v. Hetronic International, Inc. that the Lanham Act, the federal trademark statute, reaches only conduct “where the claimed infringing use in commerce is domestic” and that confusion to consumers in the United States is not relevant to the analysis. In setting aside a jury verdict of about $90 million for infringing acts that largely occurred in Europe, the court unanimously concluded that under step one of its test to determine whether a statute applies extraterritorially, Congress did not provide the requisite clarity in the Lanham Act’s text to overcome the presumption against applying a law abroad.

But the court was deeply divided on how to apply step two of the test: whether the focus of the statute allows it to be applied outside the United States. The five-member majority, in an opinion written by Justice Samuel Alito, held that the conduct related to the statute’s focus, which is “use in commerce,” must occur in the United States. By specifically refusing to say what “use in commerce” means, the majority opinion is almost certainly a recipe for significant future litigation in the lower courts. In a concurring opinion joined by three colleagues, Justice Sonia Sotomayor would have held that a defendant can be liable under the Lanham Act for infringement that took place abroad if there was a likelihood of consumer confusion in the United States.

The background

Hetronic International Inc. makes, sells, and services radio remote controls for construction equipment, which have a distinctive trademark registered in the United States. It licensed Abitron, a German company, to distribute its products in Europe. Hetronic claims that Abitron engaged in secret reverse engineering and, after the companies parted ways, began selling Hetronic-branded products without Hetronic’s permission. Even though Abitron largely made sales in Europe, Hetronic sued on its home turf, the Western District of Oklahoma. Hetronic invoked two provisions of the Lanham Act that prohibit use in commerce of a trademark in a manner that is likely to cause confusion. A jury awarded Hetronic $90 million in damages.

The issue before the Supreme Court was whether and to what extent the Lanham Act applies extraterritorially. The case did not arrive at the court on a blank slate. In 1952, the court held in Steele v. Bulova Watch Co. that the Lanham Act covered the conduct of a United States citizen who sold in Mexico luxury watches falsely stamped with a U.S. trademark. The Steele court zeroed in on the harmful effects the counterfeit watches had in the United States. In the decades after Steele, the court has developed a two-step test to ascertain whether a federal law applies outside the United States. The test is premised on the presumption that a U.S. law does not generally apply abroad. In step one of this analysis, a court asks if there is an affirmative indication that Congress intended for a particular law to reach foreign conduct. If the answer is no, a court then determines in step two the “focus” of the statute to see if the lawsuit triggers a permissible domestic application of the statute.

Alito’s majority opinion

All members of the court agreed that under step one of the test, the Lanham Act has no extraterritorial application. It is not contested that the act does not have an express statement of extraterritoriality. Hetronic, however, argued that an extraterritorial intent could be inferred from Congress’s adoption of a uniquely broad definition of commerce in the act, which applies to “all commerce which may lawfully be regulated by Congress.” But Alito stated that “[i]t is a ‘rare statute that clearly evidences extraterritorial effect despite lacking an express statement of extraterritoriality.’” “Generic” phrases referring to what Congress may regulate as a constitutional matter, Alito wrote, do not rebut the presumption against extraterritoriality..

Turning to step two and writing only for a five-member majority, Alito emphasized that identifying the focus of a statute is not enough. The key is the “conduct relevant to the statute’s focus,” and that conduct must occur in the United States. Alito held that the focus of the Lanham Act is the infringing use of a trademark in commerce; consumer confusion is not a focus of the statute. In the view of the majority, confusion is only “a necessary characteristic of an offending use.” Because the issue “turns on the location of the conduct relevant to the focus,” “use in commerce” of a trademark in the United States “provides the dividing line between foreign and domestic applications of these Lanham Act provisions.” In other words, if a false trademark is not used in commerce domestically, the Lanham Act does not apply even if the use creates confusion in the United States.

In reaching his conclusion, Alito dismissed the precedential value of Steele, explaining that (i) the case was decided before the modern two-part test was developed, and (ii) at least some of the “essential steps” of infringement in that case took place on American soil.

Alito also rested his decision in part on international comity. Citing a brief from the European Commission, he noted that if each country were allowed to enforce its trademark law on the basis of extraterritorial effects, the international trademark system “would collapse.” He thereby ignored the position of the Biden administration, which had suggested in a friend-of-the-court brief that a focus based on consumer confusion in the United States would best adhere to the intent of the Lanham Act and would be most consistent with the Steele precedent. It is unusual for the court to accept the view of a foreign state over that of the executive branch on the foreign policy implications of a legal interpretation.  

Jackson’s concurring opinion

Justice Ketanji Brown Jackson provided the decisive fifth vote for Alito’s majority opinion applying the “use in commerce” standard. But she wrote a separate concurring opinion stating that the standard should be applied broadly. In her view, “a ‘use in commerce’ does not cease at the place the mark is first affixed, or where the item to which it is affixed is first sold.” During oral argument, Jackson asked a series of hypothetical questions involving how the Lanham Act would apply if American college students studying in Germany brought home counterfeit bags manufactured and sold in that country. In her concurring opinion, Jackson expanded on that and stated that if the students decided to resell the bags in the United States, then the German manufacturer may be liable under the Lanham Act because the bags have now been placed in domestic commerce – even though, as Jackson acknowledged, the foreign manufacturer “never sold the bags in, or directly into, the United States.” In a footnote, Jackson also suggested that a foreign defendant can be liable if its infringing products are sold into the United States through a website operated by a third party even though it has no control over those sales. In response, Alito stated that this case does not provide the “occasion to address the precise contours of” the phrase “use in commerce.” 

Sotomayor’s concurring opinion

In an opinion joined by Chief Justice John Roberts, Justice Elena Kagan, and Justice Amy Coney Barrett (a highly unusual ideological line-up for sure), Sotomayor would have adopted, consistent with the position of the Biden administration, consumer confusion as the focus of the Lanham Act. On this view, infringing conduct that took place overseas would come within the purview of the statute as long as American consumers were confused. Sotomayor contended that the majority has the statute backward: In her view, the law’s prohibition of “the use in commerce” of offending trademarks is designed to protect U.S. consumers from confusion. Preventing confusion is the ultimate statutory goal. As a result, it would be appropriate to apply the Lanham Act to extraterritorial conduct that has the proscribed effects in the United States.

Sotomayor wrote that the majority’s reading of the law, by carving out most foreign infringement activity, frustrates clear congressional intent. She also argued that her interpretation of the Lanham Act would have been more faithful to Steele. In her view, the majority has crafted a third step to the two-step test for extraterritoriality and converted the test “into a myopic conduct-only test.”

Uncertain scope

The bottom-line result of Abitron is that the Lanham Act does not generally cover conduct outside the United States. Going forward, it will be more difficult for American brand owners to protect their intellectual property rights internationally. But significant uncertainty exists regarding the scope of “use in commerce” for purposes of invoking the Lanham Act. Lower courts could apply Alito’s majority opinion to mean that a foreign defendant is liable only if it directly sells products in or into the United States. Or, they can embrace Jackson’s view to hold a foreign defendant liable based on what happened with the infringing product after the defendant has relinquished control over it.

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The Supreme Court agreed to decide what protections Title VII of the Civil Rights Act of 1964 provides to employees who contend they were the victim of a discriminatory transfer. The justices announced on Friday that they had granted review in Muldrow v. St. Louis and six other cases, two of which will be argued together. (I covered one of those cases, United States v. Rahimi, in a separate article.)

The question comes to the court in the case of Jatonya Muldrow, a sergeant with the St. Louis Police Department. She filed a lawsuit against the department, alleging that she was the victim of sex discrimination because she was involuntarily transferred from her position in the Intelligence Division to a patrol position because her supervisor wanted to hire a man for her job. The U.S. Court of Appeals for the 8th Circuit ruled for the police department, reasoning that Muldrow’s transfer had not resulted in a significant employment disadvantage for her.

Muldrow went to the Supreme Court, asking the justices to take up her case. After considering the cases at a conference in early January, the justices sought the Biden administration’s views. In a brief filed last month, the Biden administration urged the justices to grant review. U.S. Solicitor General Prelogar told the court that the rulings by the U.S. Court of Appeals for the 8th Circuit had “no foundation in Title VII’s text, structure, or purpose.”

After considering the case again at two conferences in June, the justices agreed to take up the case. But they instructed Muldrow and the city of St. Louis to brief a slightly narrower question than Muldrow had asked them to decide – whether Title VII bars discrimination in transfer decisions if a court has not determined separately that the transfer decision caused a significant disadvantage.

The other cases (in addition to Rahimi) in which the court granted review are:

• Wilkinson v. Garland, in which the justices will consider whether federal courts have the power to review an agency’s determination that a noncitizen did not meet the “exceptional and extremely unusual” hardship requirement to cancel deportation;
• Campos-Chaves v. Garland and Garland v. Singh (consolidated for one hour of oral argument), in which the justices will consider notice requirements in immigration cases;
• McElrath v. Georgia, in which the justices will consider double jeopardy issues in the case of a Georgia man who was found not guilty by reason of insanity on one charge arising from the stabbing death of his mother, while he was found guilty but mentally ill on another charge. The Georgia Supreme Court threw out both of the jury’s verdicts and sent the case back for a new trial on both charges. McElrath argues that the Constitution’s ban on double jeopardy bars the state from trying him again on the charge on which he had been acquitted.
• SEC v. Jarkasy, in which the justices will review a ruling by the U.S. Court of Appeals for the 5th Circuit finding constitutional defects in the agency’s enforcement proceedings.

Several denials of review garnered separate writings by one or more justices.

In McClinton v. United States, the justices declined to decide whether the Constitution bars federal courts from basing a criminal defendant’s sentence on conduct for which he was acquitted. The question came to the court in the case of Dayonta McClinton, who was convicted for his role in the armed robbery of a CVS pharmacy. Although the jury found that McClinton was not guilty of the shooting death of one of his accomplices, Malik Perry, during a dispute over dividing up the drugs that they stole, the judge nonetheless relied on Perry’s death to increase McClinton’s sentence for the robbery charges. McClinton was sentenced to 19 years in prison – a sentence three times longer than he would have otherwise received. Justice Sonia Sotomayor wrote a statement in which she indicated that the denial of review in McClinton’s case and others presenting similar issues “should not be misinterpreted.” She explained that the U.S. Sentencing Commission will consider questions relating to acquitted-conduct sentencing next year. But if it “does not act expeditiously or chooses not to act,” she wrote, the court may need to step in.

Justice Brett Kavanaugh wrote a short statement that was joined by Justices Neil Gorsuch and Amy Coney Barrett. He echoed Sotomayor’s admonition that the denial of review “should not be misinterpreted.” But because the question is before the Sentencing Commission now, he stressed, the court should wait before granting review.

In a six-page opinion concurring in the denial of review, Justice Samuel Alito outlined some of the arguments against McClinton’s position. In particular, he noted, federal criminal laws in the late 18th century “often gave sentencing judges the authority to impose any sentence that fell within a prescribed range, and in exercising that authority, judges necessarily took into account facts that the jury had not found at trial.”

The court denied review in Roberts v. McDonald, a lawsuit seeking to bar New York and New York City from considering race or ethnicity in connection with the allocation of COVID-19 treatments. In a statement regarding the denial of review joined by Justice Clarence Thomas, Alito wrote that he agreed with that decision because there is no longer a shortage of such treatments. But if “any government again resorts to racial or ethnic classifications to ration medical treatment,” Alito said, “there would be a very strong case for prompt review by this Court.”

Alito, joined by Thomas, also penned a statement regarding the denial of review in Thompson v. Henderson, a case arising from a car accident in Washington state. The jury awarded the victim of the accident, who is Black, $9,200 in damages from the driver, who is white. The Washington Supreme Court awarded the victim a hearing on her motion for a new trial, concluding that the jury’s award may have been tainted by racial prejudice. Alito argued that the state supreme court’s “decision raises serious and trouble issues of due process and equal protection” and “threatens to inject racial considerations into every litigation decision parties make.”

Justice Ketanji Brown Jackson, joined by Sotomayor, dissented from the denial of review in Harness v. Watson, a challenge by two Mississippi men to the enforcement of a provision of the state’s constitution, adopted in 1890, that prohibits people convicted of eight crimes – bribery, theft, arson, fraud, perjury, forgery, embezzlement, and bigamy – from voting. In 1985, the challengers note, the Supreme Court struck down a similar provision in the Alabama constitution that had been enacted to disenfranchise African Americans. The same is true here, the challengers contend: “Just as in Alabama, in Mississippi the offenses set forth in the 1890 Constitution were those that the drafters believed were disproportionately committed by African Americans.”

The U.S. Court of Appeals for the 5th Circuit upheld the 1890 provision. Although the majority conceded that the 1890 state constitutional convention was “steeped in racism” and that the 1890 provision, as originally enacted, would be unconstitutional. But since 1890, the majority explained, Mississippi voters had re-enacted the disenfranchisement provision twice – in 1950 and 1968 – and the challengers do not contend that the 1968 amendment was motivated by an intent to discriminate. In so doing, the majority reasoned, the discriminatory intent behind the 1890 provision became “irrelevant” and “purg[ed] the original taint.”

The challengers came to the Supreme Court last fall, asking the justices to weigh in. After repeatedly rescheduling the case and then considering it at seven separate conferences, the justices on Friday denied review.

Jackson argued that the Supreme Court could have corrected what she characterized as the 5th Circuit’s “clear and constitutionally momentous errors” in a “straightforward and narrow (but significant) manner.” Quoting from the court’s decision on Thursday ending the use of race-conscious admissions at Harvard and the University of North Carolina, in which the court “declared that the Constitution deals with substance, not shadows, and the constitutional prohibition against racial discrimination is levelled at the thing, not the name,” Jackson contended that there “are no shadows in” the Mississippi provision, “only the most toxic of substances.”

Jackson also indicated that she would have granted review in Lombardo v. St. Louis, in a case brought by the family of a homeless man who died in 2015 in police custody. Nicholas Gilbert was arrested on charges that included trespassing and failing to appear in court for a traffic violation. For 15 minutes, six police officers applied pressure to Gilbert, who was face down on the floor of his cell with his legs shackled and his hands cuffed behind us back. Gilbert tried to lift his body up to breathe and pleaded with the officers to stop, saying “It hurts.” He was pronounced dead at a nearby hospital.

Gilbert’s family sued the city and the police officers, arguing (among other things) that the officers had used excessive force against Gilbert, which violated his constitutional rights. The 8th Circuit dismissed their claims, holding that the officers could not be held liable because no reasonable jury could find that the officers had used excessive force.

Over a dissent by Alito that was joined by Thomas and Gorsuch, the justices sent the case back to the 8th Circuit for another look. In a brief opinion, the Supreme Court explained that because the court of appeals had apparently either “failed to analyze such evidence or characterized it as ‘insignificant,’” it had not conducted the kind of “careful, context-specific analysis required by this Court’s excessive force precedent.”

When the case returned to the 8th Circuit, the court of appeals once again concluded that the officers were entitled to immunity. Gilbert’s family, the court of appeals concluded, had not met one of the criteria to overcome the police officers’ immunity – specifically, it had not shown that Gilbert had a clearly established right not to be restrained while lying prone on the floor and resisting.

The family returned to the Supreme Court late last year, once again asking the justices to review the 8th Circuit’s ruling. The justices denied review on Friday, over a dissent from Sotomayor. She wrote that she would have sent the case back to the 8th Circuit again for the court of appeals to “resolve the question of qualified immunity without assuming that Gilbert’s final movements were those of a dangerously non-compliant person posing a threat, rather than of a dying man struggling to breathe while adequately restrained by handcuffs and leg shackles and surrounded by six officers in a secure cell.” She added that courts should “give officers leeway to use judgment in close situations, but not so much leeway that we nullify the Constitution’s protections or permit officers to escape scrutiny by juries.”

Sotomayor dissented from the denial of review in another case involving immunity for police officers: a case brought by the family of Ryan Stokes, an unarmed Black man who was surrendering to police when a police officer shot him in the back and killed him. The 8th Circuit held in Stokes’ case that it was not clearly established that the officer had used excessive force. Sotomayor indicated that she would have summarily reversed – that is, ruled in the family’s favor without additional briefing or oral argument. “It is time,” she wrote, “to restore some reason to a doctrine that is becoming increasingly unreasonable. If this Court is unwilling to do so,” she concluded, “then it should reexamine its judge-made doctrine of qualified immunity writ large.”

Alito, joined by Thomas, dissented from the denial of review in Kincaid v. Williams, in which they had been asked to decide whether the Americans with Disabilities Act covers gender dysphoria – that is, the psychological distress caused by a conflict between a person’s gender identity and the sex that person was assigned at birth.

The question arose in a federal civil rights case filed by Kesha Williams, a transgender woman who suffers from gender dysphoria. By the time Williams was incarcerated at the Fairfax County Adult Detention Center, in northern Virginia, in 2018, she had been receiving hormone therapy for 15 years.

Williams was originally assigned to the women’s side of the detention center, but she was later moved to the men’s side of the prison and required to wear men’s clothing. She contends that she did not consistently receive her hormone therapy, and she was harassed by both prison deputies and male inmates.

After her six months in the detention center ended, Williams went to federal court, where she contended that the Fairfax County sheriff and other prison officials had violated (among other things) the Americans with Disabilities Act. A federal district court in Virginia dismissed Williams’ case, agreeing with the defendants that gender dysphoria is not a “disability” under the ADA. But the U.S. Court of Appeals for the 4th Circuit reversed that ruling, prompting the sheriff to come to the Supreme Court in January.

After considering the case at four consecutive conferences, the justices denied review. In his dissent, Alito described the question before the court as one “of great national importance that calls out for prompt review.” The court of appeals, he contended, “has effectively invalidated a major provision of the Americans with Disabilities Act (ADA), and that decision is certain to have far-reaching and highly controversial effects.” Moreover, he added, the ruling is likely to “raise a host of important and sensitive questions regarding such matters as participation in women’s and girls’ sports, access to single-sex restrooms and housing, the use of traditional pronouns, and the administration of sex reassignment therapy.”

And in Clark v. Mississippi, Justice Elena Kagan and Jackson joined Sotomayor’s dissent from the denial of review in the case of Tony Clark, who was sentenced to death for the 2014 shooting death of 13-year-old Muhammad Saeed. Saeed was working with his father at the family’s convenience store when Clark and his nephew attempted to rob the store.

Clark came to the Supreme Court in November, asking the justices to overturn his conviction and death sentence. Clark, who is Black, emphasized that although the pool of 38 potential jurors included 8 Black people, prosecutors struck all but one of those potential Black jurors, leaving a nearly all-white jury. In rejecting his challenge to the constitutionality of the jury selection process, Clark argued, the Mississippi Supreme Court should have reviewed the prosecutors’ strikes, and the circumstances in which they were made, collectively, rather than looking at each one in isolation.

Sotomayor noted that four years ago, the Supreme Court threw out the conviction of a Mississippi man, Curtis Flowers. Flowers, who is Black, was sentenced to death by a jury that included just one Black member after prosecutors struck five other potential Black jurors from the jury pool. By a vote of 7-2, the court held that the jury selection in Flowers’ case violated the Constitution. By denying review in Clark’s case, Sotomayor asserted, “this Court tells the Mississippi Supreme Court that it has called our bluff, and that this Court is unwilling to do what is necessary to defend its own precedent. The result is that Flowers will be toothless in the very State where it appears to be still so needed.”

This article was originally published at Howe on the Court.

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The court handed a major victory to business owners who oppose same-sex marriage for religious reasons on Friday. A six-justice majority agreed that Colorado cannot enforce a state anti-discrimination law against a Christian website designer who does not want to create wedding websites for same-sex couples because doing so would violate her First Amendment right to free speech.

Justice Neil Gorsuch wrote for the majority, in a decision joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett. He explained that Colorado cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” And he indicated that the court’s decision would provide similar protection to other business owners whose services involve speech, such as artists, speechwriters, and movie directors.

But in her dissent, Justice Sonia Sotomayor – in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson – called the decision “a sad day in the American constitutional law and in the lives of LGBTQ people.”

The court’s decision came just over five years after its ruling in the case of another Colorado resident, Jack Phillips, a baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. By a vote of 7-2, the court gave Phillips a narrow victory, holding that the Colorado administrative agency that had ruled against him had treated him unfairly by being too hostile to his sincere religious beliefs. But the justices did not determine whether or to what extent a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, nor did they decide whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

In the five years since the court’s decision in Phillips’ case, the composition of the court has changed significantly. Kennedy, who wrote for the majority in 2018, retired less than a month later. He was succeeded by the more conservative Brett Kavanaugh. And two years after that, the court’s senior liberal justice, Ruth Bader Ginsburg, died at the age of 87, allowing then-President Donald Trump to appoint another conservative jurist, Amy Coney Barrett, to replace her.

It was therefore a more conservative court that this term considered the case of Lorie Smith, a devout Christian who owns a website- and graphic-design business in Littleton, Colorado. Smith wanted to expand her business to include wedding websites – but only for heterosexual couples, and she wanted to post a message on her own website to make that clear. But such a statement would run afoul of Colorado’s public-accommodations law, which bars businesses that are open to the public from discriminating against (among others) LGBTQ people or announcing their intent to do so. Roughly half of U.S. states have similar laws.

Smith went to federal court, seeking a ruling that enforcing the law against her would violate her First Amendment right to freedom of speech. On Friday, the justices agreed.

The First Amendment, Gorsuch explained, “protects an individual’s right to speak his mind,” even when others may regard that speech as “deeply misguided” or it may cause “anguish.” And the First Amendment generally also protects an individual from being required by the government to voice a particular message.

In this case, Gorsuch observed, even the U.S. Court of Appeals for the 10th Circuit agreed that the websites that Smith wants to create are speech. But if Smith wants to speak, he stressed, she must choose between following her conscience, which means only creating wedding websites for opposite-sex couples, and violating Colorado law, or following the law and violating her religious beliefs. Under the Supreme Court’s cases interpreting the First Amendment, Gorsuch concluded, “that is enough, more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.”

Gorsuch conceded that in some cases it may be difficult for courts to determine “what qualifies as expressive activity protected by the First Amendment.” But this is not one of those cases, he insisted, because Colorado and Smith both agree that Smith’s wedding websites would be expressive activity.

And Gorsuch warned that Colorado’s position could lead to “dangerous” consequences. As Chief Judge Timothy Tymkovich noted in his dissent from the 10th Circuit’s decision, Gorsuch wrote, “governments could force ‘an unwilling Muslim movie director to make a film with a Zionist message,’ they could compel ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages.”  

Sotomayor’s 38-page dissent argued that the Constitution “contains no right to refuse service to a disfavored group.” Colorado’s public accommodations law, she contended, only bars business owners from discriminating against members of the public based on (among other things) their sexual orientation. It does not regulate or compel speech at all. If a business owner like Smith “offers [her] goods or services to the public,” Sotomayor suggested, she “remains free under state law to decide what messages to include or not to include.” But what Smith can’t do, Sotomayor stressed, is “offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.”

Sotomayor lamented that Friday’s decision “declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class.” More broadly, she continued, “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

The Alliance Defending Freedom, which represented Smith, hailed Friday’s decision. In a statement, lawyer Kristen Waggoner said that the court had “rightly reaffirmed that the government can’t force Americans to say things they don’t believe.” “Disagreement,” Waggoner continued, “isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it.”

Colorado Attorney General Phil Weiser criticized the ruling, saying that it “threatens to destabilize our public marketplace and encourage all kinds of businesses — not just those serving weddings — to claim a First Amendment free speech right to refuse service to certain customers.” Colorado officials, he said, “will work hard to ensure that, within the confines of the Court’s opinion, we take action to hold accountable those who engage in unlawful discrimination.”

This article was originally published at Howe on the Court.

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The Supreme Court will hear oral argument next fall in a major gun-rights case challenging the constitutionality of a federal ban on the possession of guns by individuals who are subject to domestic violence restraining orders. The Biden administration had asked the justices to weigh in after a federal appeals court struck down the ban earlier this year, and on Friday the justices agreed to do so.

The announcement that the justices had granted review in United States v. Rahimi came on a list of orders released by the justices on Friday at noon. The justices held their last regularly scheduled conference before their summer recess on Thursday, June 22, and issued orders from that conference on Monday, June 26. But the justices traditionally hold another conference, colloquially known as the “clean-up” conference, after they release all of their decisions for the term, to dispose of any petitions for review that have been on hold awaiting the outcome of related cases on the merits. In recent years, the justices have also added new cases to their docket for the upcoming term, and they did so again on Friday, granting review in seven new cases, including Rahimi.

The challenge to the gun-possession ban comes to the court in the case of Zackey Rahimi, a Texas man who during a 2019 argument in a parking lot knocked his girlfriend to the ground and dragged her back to his car, causing her to hit her head on the car’s dashboard. In a telephone call after the incident, Rahimi told the woman that he would shoot her if she told anyone about the assault.

A few months later, a Texas state court entered a domestic violence restraining order against Rahimi. The order also barred Rahimi from possessing a gun and warned him that doing so while the order was in effect could be a federal felony.

Roughly a year later, while the order was still in effect, Rahimi was a suspect in a series of shootings. When police officers searched his home pursuant to a warrant, they found (among other things) a pistol, a rifle, and ammunition – along with a copy of the restraining order.

Rahimi was charged with violating the federal ban on the possession of a firearm by anyone who is the subject of a domestic violence restraining order. He pleaded guilty and was sentenced to just over six years in prison, followed by three years of supervised release.

The conservative U.S. Court of Appeals for the 5th Circuit initially upheld his conviction. But after the Supreme Court’s June 2022 decision in New York State Rifle & Pistol Association v. Bruen, striking down New York’s handgun-licensing scheme, the court of appeals issued a new opinion that threw out Rahimi’s conviction. Despite the restraining order, the court reasoned, Rahimi was still retained his right to bear arms under the Second Amendment unless, as the Supreme Court explained in Bruen, the federal government could show that the ban was consistent with the country’s historical tradition of regulating firearms. Because it was not, the court of appeals concluded, the law is unconstitutional.

The Biden administration came quickly to the Supreme Court, asking the justices to grant review and reverse the 5th Circuit’s ruling. Emphasizing that “[g]overnments have long disarmed individuals who pose a threat to the safety of others,” and that the law “falls comfortably within that tradition,” U.S. Solicitor General Elizabeth Prelogar told the justices that allowing the 5th Circuit’s decision to stand would “threaten[] grave harms for victims of domestic violence.”

Rahimi urged the justices to deny review and leave the 5th Circuit’s ruling in place. He depicted the decision of the court of appeals as a “faithful application of Bruen.” But in any event, he continued, it has been only a short time since the Supreme Court’s decision in Bruen, and the lower courts are “now hard at work applying the new historical framework and re[e]valuating firearm restrictions that were previously upheld under” the less stringent test in place before Bruen. The justices should wait to step in until more lower courts have had a chance to interpret federal and state gun laws in light of Bruen, Rahimi concluded.

After considering the case at two consecutive conferences, the justices granted review without comment. The case will likely be argued in the fall, with a decision to follow sometime next year.

This article was originally published at Howe on the Court.

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This article was updated on June 30 at 4:00 p.m.

By a vote of 6-3, the justices ruled that the Biden administration overstepped its authority last year when it announced that it would cancel up to $400 billion in student loans. The Biden administration had said that as many as 43 million Americans would have benefitted from the loan forgiveness program; almost half of those borrowers would have had all of their student loans forgiven.

Chief Justice John Roberts wrote for the court in Biden v. Nebraska, characterizing the decision as a straightforward interpretation of federal law.

Justice Elena Kagan dissented, in an opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

When the Biden administration announced the program in August 2022, student-loan repayments had already been on hold for over two years. Betsy DeVos, who served as the secretary of education during the Trump administration, suspended both repayments and the accrual of interest on federal student loans at the start of the COVID-19 pandemic. She relied on the HEROES Act, a law passed in the wake of the Sept. 11 attacks that gives the secretary of education the power to respond to a national emergency by “waiv[ing] or modify[ing] any statutory or regulatory provision” governing the student-loan programs so that borrowers are not worse off financially because of the emergency.

President Joe Biden’s decision to permanently cancel up to $20,000 in loans for borrowers who qualify would have fulfilled a pledge that he made during his 2020 run for president. But after federal courts in Missouri and Texas put the program on hold last year, the Biden administration came to the Supreme Court, asking the justices to weigh in.

The challengers – six states with Republican attorneys general and two individuals with student loans — had urged the justices to strike down the debt-relief plan, arguing that it does not comply with the HEROES Act and other federal laws. But before the court could reach that question, it had to determine whether any of the challengers had a legal right to sue, known as standing.

To challenge a government policy in federal court, it is not enough that a plaintiff disagrees with the policy. Instead, the plaintiff must show (among other things) that she has been injured by the policy. If there is more than one plaintiff in a lawsuit, it can go forward as long as at least one plaintiff has standing.

In a 15-page opinion issued shortly before the Roberts opinion in Biden v. Nebraska, the court ruled unanimously in Department of Education v. Brown that two individual borrowers lacked standing to challenge the debt-relief plan.

But in the states’ case, the U.S. Court of Appeals for the 8th Circuit ruled last year that Missouri has a right to sue because it created and controls the Missouri Higher Education Loan Authority, one of the country’s largest servicers and holders of student loans. If the debt-relief program goes into effect, the states contended, it could cost MOHELA as much as $44 million per year, which will in turn limit the company’s ability to contribute funds to support the state’s higher-education programs.

Chief Justice John Roberts with Justices Samuel Alito and Elena Kagan. (William Hennessy)

On Friday the justices upheld that ruling, finding that Missouri has standing to challenge the debt-relief program because the financial harms to MOHELA from the program will also harm Missouri. Missouri created MOHELA to help state residents obtain student loans to pay for college, Roberts reasoned. It is operated by “state officials and state appointees, reports to the State, and may be dissolved by the State.” If the debt-relief program goes into effect, he observed, MOHELA’s revenues will fall, “impairing its efforts to aid Missouri college students” – which in turn “is necessarily a direct injury to Missouri itself.”

Having determined that Missouri (and therefore the rest of the states) had a right to challenge the debt-relief program, the court then turned to the heart of the case – whether the debt-relief program complies with federal law. Here the court agreed with the challengers that it did not. The HEROES Act, Roberts emphasized, gives the secretary of education the power to “waive or modify” laws and regulations governing the student-loan programs. Congress’s use of the word “modify” means that the Biden administration can make “modest adjustments and additions to existing provisions,” Roberts wrote, “not transform them.” But the debt-relief program, Roberts stressed, instead “created a novel and fundamentally different loan forgiveness program.” The plan “modifies” student-loan laws and regulations, Roberts suggested, “only in the same sense that the French Revolution ‘modified’ the status of the French nobility — it has abolished them and supplanted them with a new regime entirely.”  

Roberts rejected the Biden administration’s contention that the secretary of education also has the power to “waive” laws and regulations relating to the student-loan program. When the secretary has invoked this power in the past, Roberts observed, he has done so for a specific legal requirement, such as the requirement that a student provide a written request for a leave of absence. But in this case, Roberts noted, the secretary has not indicated that he is waiving a specific provision.

Roberts also rebuffed the Biden administration’s argument that the debt-relief program is consistent with the purpose of the HEROES Act – that is, to give the secretary of education the power to provide relief to borrowers during a national emergency. “The question here,” Roberts countered, “is not whether something should be done; it is who has the authority to do it.” On this point, Roberts invoked the “major questions” doctrine, which is the idea that if Congress wants to give an administrative agency the power to make decisions of vast economic or political significance, it must say so clearly. But in this case, Roberts said, the HEROES Act did not authorize the debt-relief program at all, much less clearly.

Roberts concluded his 26-page opinion with a broader discussion of the dynamics on the court that appeared to be directed at both his dissenting colleagues and concerns about public perception of the court more broadly. “It has become a disturbing feature of some recent opinions,” Roberts wrote, “to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” But Friday’s decision, Roberts insisted, relied on “traditional tools of judicial decisionmaking.” Although “[r]easonable minds may disagree with our analysis,” including the court’s liberal justices,” Roberts acknowledged, “[w]e do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

Barrett joined the Roberts opinion but also wrote a separate concurring opinion in which she emphasized that the major questions doctrine “reinforces” the court’s conclusion that the HEROES Act does not give the Biden administration the power to adopt the debt-relief plan “but is not necessary” for it to reach that conclusion.

Barrett then discussed the major questions doctrine more generally, indicating that she took “seriously the charge” – made by Kagan in an opinion last year – “that the doctrine is inconsistent with textualism.” For Barrett, the doctrine is a tool that judges should use to try to determine “the text’s most natural interpretation.” And in particular, she suggested, judges should use common sense about whether this is the kind of question that Congress would have intended to delegate to an administrative agency. In this case, Barrett continued, it does appear that the Biden administration “has gone far ‘beyond what Congress could reasonably be understood to have granted’ in the HEROES Act.”

In Kagan’s view, the court should not have reached the merits of the states’ claims at all because none of the states had standing. The theory of standing advanced by the states, and accepted by the majority, she explained, “points to MOHELA as the proper plaintiff,” because MOHELA – rather than Missouri – would be injured by the debt-relief plan. But although MOHELA could have filed its own lawsuit, it did not, she stressed.

In any event, she continued, the debt-relief plan is authorized by the text of the HEROES Act. The act, she contended, “provides the Secretary with broad authority to give emergency relief to student-loan borrowers, including by altering usual discharge rules” – precisely what the Biden administration did. The majority reaches the opposite conclusion, she contended, only by “picking the statute apart, and addressing each segment of Congress’s authorization as if it had nothing to do with the others.” That construction, she wrote, “makes the Act inconsequential,” leaving the secretary “with no ability to respond to large-scale emergencies in commensurate ways.”  

Kagan also took aim at the court’s invocation of the major questions doctrine, arguing that Friday’s decision reflects “the Court’s own ‘concerns over the exercise of administrative power.’” Kagan explained that Congress “delegates to agencies often and broadly” for a variety of reasons, ranging from the expertise of those agencies to their ability to keep up with changing times and circumstances and the limits on Congress’s own ability to address everything that needs to be done. The Supreme Court’s reliance on the major questions doctrine, Kagan asserted, overrules Congress’s decisions about when and how to delegate. “And that is a major problem,” Kagan argued, “not just for governance, but for democracy too,” because when the Supreme Court steps in, it “becomes the arbiter — indeed, the maker — of national policy.”

In a statement issued by the White House, President Joe Biden called the court’s decision “wrong” and promised that “[t]his fight is not over.” He indicated that he planned to discuss the decision and “provide more detail on all that my Administration has done to help students and the next steps my Administration will take” in an address on Friday afternoon.

Nebraska Attorney General Mike Hilgers, one of the state officials who brought the challenge to the program, praised the decision. In a statement, Hilgers said that Friday’s decision “is a timely reminder that the President is no king” but must instead “work with, and not around, Congress.” “Our elected federal representatives are closest to the people, have the power of the purse, and are entrusted with the responsibility of tackling difficult policy issues.”

This article was originally published at Howe on the Court.

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Federal law bars employers from discriminating against workers for practicing their religion unless the employer can show that the worker’s religious practice cannot “reasonably” be accommodated without “undue hardship.” The Supreme Court on Thursday ruled that a trivial burden is not the kind of “undue hardship” that will justify an employer’s failure to accommodate an employee’s religious beliefs. Instead, the court explained, an employer must accommodate an employee’s religious beliefs unless it can show that doing so would “result in substantial increased costs in relation to the conduct of” the employer’s business.

Justice Samuel Alito wrote for a unanimous court. Justice Sonia Sotomayor wrote a concurring opinion, which was joined by Justice Ketanji Brown Jackson.

The ruling was largely a victory for the plaintiff in the case, Gerald Groff. Groff, an evangelical Christian who believes that Sundays should be reserved for rest and worship. Groff began working for the U.S. Postal Service in 2012, but he was disciplined after he refused to come to work on Sundays and he resigned in 2019. Groff had urged the court to overturn Trans World Airlines v. Hardison, a 1977 decision on the meaning of the “undue hardship” provision. Instead, Groff contended, the justices should hold that employers must accommodate their employees’ religious practices unless doing so would require significant difficulty and expense. The justices declined either to reconsider their earlier ruling or adopt that high bar, but they sent Groff’s case back to the lower court for another look under the standard they outlined on Thursday.

In a 21-page opinion, Alito explained that although lower courts since Hardison have interpreted the phrase “undue hardship” to mean “any effort or cost that is ‘more than … de minimis,’” that interpretation is “a mistake.” The court’s decision in Hardison, Alito observed, focused primarily on whether federal employment discrimination laws required the airline and the union to accommodate an employee’s religious practices at the expense of the seniority rights of more senior employees.

The question of when additional costs constitute an “undue hardship” received relatively little attention, Alito stressed. So, although the court’s opinion in Hardison indicated that it would be an “undue hardship” to require the airline to “bear more than a de minimis cost in order to give Hardison Saturdays off” to observe the Sabbath, that language, Alito reasoned, was not necessarily intended as an “authoritative interpretation” of what it means for something to be an “undue hardship.” To the contrary, Alito noted, elsewhere in Hardison the court indicated “three times that an accommodation is not required when it entails ‘substantial’ ‘costs’ or ‘expenditures.’”

A more demanding standard, Alito added, is also more consistent with the text of the phrase “undue hardship.” The term “hardship,” Alito wrote, “is more severe than a mere burden.” And if the hardship is “undue,” Alito continued, it must be “excessive” or “unjustifiable” – which is something “very different from a burden that is merely more than de minimis, i.e., something that is ‘very small or trifling.’”

Alito rejected both Groff’s suggestion that the employer must accommodate the employee’s religious practices unless the employer would incur significant difficulty or expense and the Biden administration’s suggestion, which focused on the “substantial expenditures” or “substantial additional costs” that the employer would incur. Instead, Alito concluded, “it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”

Alito then sent Groff’s case back to the lower courts for more proceedings. Because the U.S. Court of Appeals for the 3rd Circuit had relied on the “more than de minimis cost” standard, he wrote, it may have overlooked other possible accommodations, such as “the cost of incentive pay, or the administrative costs of coordination with other nearby stations with a broader set of employees.” The lower courts, he indicated, should apply “the clarified context-specific standard” that the court had outlined on Thursday.

Sotomayor, joined by Jackson, wrote separately to note that although Groff had asked the justices to hold that the employer must show “undue hardship to its business” from accommodating an employee’s religious practices, the court on Thursday had indicated only that the employer must show “undue hardship on the conduct of the employer’s business” – which, Sotomayor emphasized, could include burdens on the business’s employees. “Indeed,” Sotomayor stressed, “for many businesses, labor is more important to the conduct of the business than any other factor.”

In a press release, the First Liberty Institute, which represented Groff, hailed the decision as a “far-reaching” one that means “fewer religious employees will have to choose between their faith and their job.” Thursday’s ruling, the group said, “means that more employers will be legally required to respect their religious employees by granting them accommodations,” which religious employees “often seek” “to honor their holy days, to take prayer breaks during the day, to dress according to their religious beliefs, or to otherwise not be forced to violate their religious beliefs on the job.” 

The Baptist Joint Committee for Religious Liberty, a group that often stakes out a position on the opposite side from First Liberty, also praised Thursday’s decision. The BJC’s general counsel, Holly Hollman, called the ruling a “victory for religious minorities, who disproportionately claim the need for workplace accommodations.” Although “there will certainly be future disputes,” Hollman acknowledged, “today’s unanimous decision points us in a positive direction where all Americans across ideological and religious differences can come together to defend faith freedom for all.”

This article was originally published at Howe on the Court.

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This article was updated on June 29 at 4:09 p.m.

In a historic decision, the Supreme Court severely limited, if not effectively ended, the use of affirmative action in college admissions on Thursday. By a vote of 6-3, the justices ruled that the admissions programs used by the University of North Carolina and Harvard College violate the Constitution’s equal protection clause, which bars racial discrimination by government entities.

Writing for the majority, Chief Justice John Roberts explained that college admissions programs can consider race merely to allow an applicant to explain how their race influenced their character in a way that would have a concrete effect on the university. But a student “must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote. The majority effectively, though not explicitly, overruled its 2003 decision in Grutter v. Bollinger, in which the court upheld the University of Michigan Law School’s consideration of race “as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.” Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined the Roberts opinion.

Justice Sonia Sotomayor – a graduate of Princeton and Yale Law School who once called herself “the perfect affirmative action baby” – dissented, in an opinion that was joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor emphasized that the majority’s decision had rolled “back decades of precedent and momentous progress” and “cement[ed] a superficial rule of colorblindness as a constitutional principle in an endemically segregated society.”

Thursday’s ruling was the latest in a series of challenges to the role of race in university admissions. In both the North Carolina and Harvard cases, the plaintiffs had asked the justices to overrule Grutter. In her opinion for the majority in that case, Justice Sandra Day O’Connor reaffirmed that “student body diversity is a compelling state interest that can justify the use of race in university admissions,” but she warned that race-conscious admissions policies should not last forever. In 25 years, she suggested, “the use of racial preferences will no longer be necessary to further the interest” in diversity.

Eleven years after the court’s decision in Grutter, a group called Students for Fair Admissions filed the North Carolina and Harvard cases in federal court. The group was founded by Edward Blum, a conservative activist who had also spearheaded a challenge to the admissions policy at the University of Texas at Austin as well as to Shelby County v. Holder, the 2013 case that narrowed the Voting Rights Act.

After the lower courts upheld both North Carolina’s and Harvard’s admissions policies, the Blum’s group came to the Supreme Court, where it asked the justices to overrule their decision in Grutter and bar the consideration of race in university admissions altogether. The court that agreed to take up both cases last year was a very different, and much more conservative, court than the one that had upheld the UT-Austin policy seven years before. Justice Anthony Kennedy, the author of the UT-Austin decision, retired in 2018 and was replaced by Justice Brett Kavanaugh, while Justice Ruth Bader Ginsburg was succeeded by Justice Amy Coney Barrett.

In a 40-page opinion that addressed both the Harvard and UNC cases, Roberts began with a review of the Supreme Court’s past decisions interpreting the equal protection clause. Those decisions, he concluded, reflect the clause’s “core purpose”: “doing away with all governmentally imposed discrimination based on race.” He emphasized that the Supreme Court had only allowed universities to use race-based admissions programs “within the confines of narrow restrictions.” But the Harvard and UNC programs, “however well intentioned and implemented in good faith,” Roberts explained, do not comply with those restrictions.

Both programs, Roberts began, consider race as part of their admissions program for commendable goals, such as “training future leaders in the public and private sector” and “promoting the robust exchange of ideas.” But those goals are too vague for courts to measure, Roberts reasoned. How, he queried, do courts determine whether future leaders have been sufficiently trained, or “whether the exchange of ideas is ‘robust’”? And even if courts could measure them, he continued, how would courts determine whether universities had accomplished those goals, “and when the perilous remedy of racial preferences may cease?”

The programs also use race in a “negative” manner, Roberts next explained, despite the Supreme Court’s admonition that “an individual’s race may never be used against him in the admissions process.” Although both universities contend that an applicant’s race is never a negative factor, Roberts wrote, “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” Moreover, Roberts added, the programs also rely on prohibited racial stereotyping – the idea that minority students will always have the same views or perspectives on a particular issue.

Finally, Roberts observed, the Harvard and UNC programs lacked the “logical end point” suggested by Grutter: Both Harvard and UNC acknowledged that their programs do not have a “sunset” date. Indeed, Roberts noted, “UNC suggests that it might soon use race to a greater extent than it currently does.”

Roberts stressed that the court’s decision did not bar universities from ever considering race on a case-by-case basis. Schools, he indicated, can consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” However, he cautioned, a “benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.” By contrast, he complained, programs like the ones used by Harvard and UNC have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

The majority’s decision left the door open for service academies like the U.S. Naval Academy and West Point to continue to use, at least for now, race-conscious admissions programs. The Biden administration, which filed a brief as a “friend of the court” in support of Harvard and UNC, had emphasized that senior military leaders believe that it is important to have a diverse officer corps, which in turn requires the consideration of race for admission to the service academies. But the service academies did not participate in the Harvard and UNC cases and the lower courts did not consider that argument. Therefore, Roberts indicated in a footnote, the Supreme Court did not weigh in on the issue, “in light of the potentially distinct interests that military academies may present.”

Thomas filed a concurring opinion and took the relatively rare step of reading a summary of his opinion from the bench. He pushed back against the idea, advanced by Sotomayor in her dissent, that the 14th Amendment “does not impose a blanket ban on race-conscious policies.”

But Thomas, who in his memoir discussed the “stigmatizing effects of racial preference” that he felt after he was admitted to Yale Law School in the 1970s under a race-conscious admissions program, was also sharply critical of the UNC and Harvard programs from a practical perspective. Such programs, he argued, “do nothing to increase the overall number of blacks and Hispanics able to access a college education” but instead “simply redistribute individuals” among colleges and universities, “placing some into more competitive institutions than they otherwise would have attended” – and where they may be less likely to succeed academically. And if they do succeed, Thomas wrote, they may still be harmed by the stigma that race-conscious admissions programs create. Rather than solving existing issues of inequality, Thomas argued, these policies themselves divide students and “lead[] to increasing racial polarization and friction.”

Kavanaugh wrote his own concurring opinion in which he acknowledged that “racial discrimination still occurs and the effects of past racial discrimination still persist.” He observed that other paths, such as federal and state civil rights laws, can “deter and provide remedies for current acts of racial discrimination,” while governments and universities can also use race-neutral methods to remedy past discrimination. But he suggested that Thursday’s decision – which, he noted, will first apply to the admissions process for the class of 2028 – was consistent with Grutter’s “explicit” 25-year sunset.  

Sotomayor’s 69-page dissent emphasized that the “limited use of race” by colleges and universities “has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses.” “Although progress has been slow and imperfect,” she wrote, “race-conscious college admissions have advanced the Constitution’s guarantee of equality and have promoted” Brown v. Board of Education’s “vision of a Nation with more inclusive schools.” “The devastating impact of” Thursday’s decision, she concluded, “cannot be overstated.”

Justice Elena Kagan joined Sotomayor’s dissent. Justice Ketanji Brown Jackson, who until last year served on Harvard’s board of overseers, recused herself from the Harvard case and therefore joined Sotomayor’s dissent as it applied to the UNC case. Jackson also filed a dissent in the UNC case, joined by Sotomayor and Kagan, in which she argued that American society “has never been colorblind.” “Given the lengthy history of state-sponsored race-based preferences in America,” Jackson wrote, “to say that anyone is now victimized if a college considered whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”

Although Thursday’s ruling essentially ended the use of race-conscious college admissions programs, the justices could soon consider whether the Constitution bars other efforts to increase diversity, even if those efforts to do not expressly take race into account. In May, the U.S. Court of Appeals for the 4th Circuit upheld the admissions policy at a prestigious Virginia magnet school over a challenge from a parent group, which alleged that although the policy was “race neutral” it nonetheless discriminated against Asian American students. The group is likely to appeal that ruling to the Supreme Court – possibly as early as this summer.

This article was originally published at Howe on the Court.

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The justices narrowly rejected a challenge to the constitutionality of a Pennsylvania law that allows any company doing business in the state to be sued there – even if the corporation is not headquartered in Pennsylvania and the conduct at the center of the lawsuit occurred somewhere else. It was a major decision in personal jurisdiction – a court’s power to hear a lawsuit against a particular defendant. The court’s ruling creates the possibility that, if other states pass similar laws, corporations may be sued for all types of claims in many or all of the states where they do business.

Justice Neil Gorsuch wrote for a five-justice majority that included Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Ketanji Brown Jackson. Justice Amy Coney Barrett dissented, in an opinion joined by Chief Justice John Roberts and Justices Elena Kagan and Brett Kavanaugh.

The plaintiff in the case was Robert Mallory, a Virginia man who worked for Norfolk Southern, a Virginia-based railroad, in Virginia and Ohio. After Mallory was diagnosed with colon cancer, he went to court in Pennsylvania and argued that he had been exposed to asbestos and other toxic chemicals while working for Norfolk Southern.

Norfolk Southern was required to register with the state as a condition of doing business there. Under Pennsylvania law, that registration gives Pennsylvania courts general jurisdiction over Norfolk Southern and any other company that register to do business in the state.

Norfolk Southern urged the state court to throw out Mallory’s lawsuit. It argued that the Pennsylvania scheme violates the 14th Amendment’s due process clause, which guarantees fair treatment by the government, by giving state courts jurisdiction over out-of-state corporations in all circumstances. The lower courts agreed, but on Tuesday the Supreme Court reversed.

In the majority’s view, the case was squarely controlled by the Supreme Court’s 1917 decision in Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., in which the court upheld a similar Missouri law.

Norfolk Southern had urged the court to overrule Pennsylvania Fire. It argued that a decision from 1945, International Shoe Co. v. Washington, had “seriously undermined” the “foundations” of Pennsylvania Fire. In particular, Norfolk Southern had argued, the court’s decision in International Shoe had made clear that the due process clause only allows two types of personal jurisdiction over corporations: lawsuits relating to a corporation’s activities in the state where the lawsuit is filed; and lawsuits in states where the corporation is incorporated or has its principal place of business.

Gorsuch rejected Norfolk Southern’s reading of International Shoe as undermining Pennsylvania Fire. Rather, he wrote, “[t]he two precedents sit comfortably side by side.” International Shoe did not rule out all other bases for personal jurisdiction, Gorsuch explained, but instead “stake[d] out an additional road to jurisdiction over out-of-state corporations.” “Pennsylvania Fire held that an out-of-state corporation that has consented to in-state suits in order to do business in the forum is susceptible to suits there. International Shoe held that an out-of-state corporation that has not consented to in-state suits may also be susceptible to claims in the forum State based on ‘the quality and nature of [its] activity’ in the forum,” Gorsuch explained.

“Not every case,” Gorsuch concluded, “poses a new question. This case poses a very old question indeed — one this Court resolved more than a century ago in Pennsylvania Fire. Because that decision remains the law,” Gorsuch continued, the state supreme court’s decision in Norfolk Southern’s favor “is vacated, and the case is remanded” to the state courts for another look. 

In a brief concurring opinion, Jackson noted that the court’s 1982 opinion in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee makes clear that personal jurisdiction is a right that can be waived. Because “Norfolk Southern waived that right by choosing to register as a foreign corporation in the circumstances presented in this case,” Jackson wrote, she saw no due process problems with the Pennsylvania law.

Alito agreed with Gorsuch that Pennsylvania’s registration requirement does not violate the due process clause. However, in his concurring opinion he suggested that the registration requirement could violate other provisions in the Constitution, such as the dormant commerce clause – that is, the idea that the Constitution’s delegation of power over interstate commerce to Congress bars states from passing laws that discriminate against that commerce. Because only the due process question was before the justices in this case, Alito agreed that the Pennsylvania Supreme Court’s decision should be invalidated and the case sent back to the state courts.

In an 18-page dissent, Barrett lamented that Tuesday’s decision “flies in the face” of 75 years’ worth of precedent holding that the due process clause bars state courts from asserting personal jurisdiction over out-of-state defendants based solely on their business activities in the state.

The majority’s ruling, Barrett suggested, created a workaround for “this settled rule”: States simply have to impose a registration requirement like Pennsylvania’s. Then any company that does business in the state can be sued there, regardless of whether it has any connections to the state.

“Such an approach,” Barrett contended, “does not formally overrule our traditional” approach to jurisdiction, which looks to a defendant’s contacts with the state in which it is sued, “but it might as well. By relabeling their long-arm statutes,” she wrote, “States may now manufacture ‘consent’ to personal jurisdiction.”

This article was originally published at Howe on the Court.

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