SCOTUS Update | October 2023

Recent Decisions

303 Creative v. Elenis

Oral argument date: December 5, 2022
Decided on: June 30, 2023

Facts:  Lorie Smith, the owner and founder of a graphic design firm named 303 Creative LLC, wants to expand her business to include wedding websites. Smith opposes same-sex marriage on the basis of her religion and does not want to design websites for same-sex weddings. Smith wants to post a message on her website sharing her religious objections to same-sex weddings. 

The Colorado AntiDiscrimination Act (“CADA”) prohibits businesses that are open to the public from discriminating on the basis of several characteristics, including sexual orientation. According to CADA, publishing any communication that says or implies that an individual’s patronage is unwelcome because of a protected characteristic is considered discrimination. Smith and 303 Creative LLC challenged the law in federal court, alleging numerous constitutional violations. The district court granted summary judgment for the state, and the U.S. Court of Appeals for the Tenth Circuit affirmed. The ABA filed an amicus brief in this case and held a Showcase Program discussing the case during the ABA Annual Meeting in Denver, CO.

Issue(s):

1. Whether compelling an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.

Holding: The Court ruled 6-3 in favor of 303 Creative LLC, finding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs containing messages with which the designer disagrees.

Significance: Historically, the Court has held that public accommodation laws do not violate the First Amendment. Consequently, the Court’s ruling on this case threatens years of legal precedent upholding anti-discrimination policies and could open the door for future discrimination. The Court’s decision bolsters the sentiments of several commercial establishments and individuals who believe that they have a free-speech or free-association right to discriminate, regardless of antidiscrimination laws. Due to Smith’s narrow focus on her work as an “artist,” the Court’s ruling incites other individuals or businesses to portray themselves as “artists” and perpetuate this discrimination. For more information about this case from the ABA, visit here.

Students for Fair Admissions Inc. v. President and Fellows of Harvard College

Oral argument date: October 31, 2022
Decided on: June 29, 2023

Facts: Students for Fair Admissions (SFFA) sued Harvard College alleging that its admissions process violates Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants. Harvard uses race as one of many factors in its admissions process, according to the requirements for race-based admissions outlined in the Supreme Court’s decision in Grutter v. Bollinger. The district court issued a detailed opinion in favor of Harvard. SFFA appealed and the U.S. Court of Appeals for the First Circuit affirmed. The ABA filed an amicus brief in this case.

Issue(s):

1. Whether or not race can be used as a factor in admissions in higher education; and 
2. Whether Harvard College’s race-conscious admissions process violates Title VI of the Civil Rights Act of 1964.

Holding: The Court ruled 6-2 in favor of Students for Fair Admissions finding that the admissions program at Harvard College violates the equal protection clause of the 14th Amendment. Justice Jackson took no part in the consideration or decision of the case.

Significance: One of the implications of this decision is a large decrease in the enrollment of Black, Hispanic, and Native students. This alone could also damage the workforce and society in general because the benefits of diversity in higher education would be absent. Furthermore, this decision has implications for other areas in higher education beyond the scope of admissions, such as recruitment, financial aid, scholarships, employment, and data collection. While the scope of the ruling is limited to higher education, it could have future implications for employers, who could face increased scrutiny and disputes over their diversity initiatives. Find more information about this case from the ABA here.

Students for Fair Admissions Inc. v. University of North Carolina

Oral argument date: October 31, 2022
Decided on: June 29, 2023

Facts: Students for Fair Admissions (SFFA) sued the University of North Carolina (UNC) alleging that its admissions process violates Title VI of the Civil Rights Act of 1964 by using race as a factor in admissions. UNC uses race as one of many factors in its admissions process, according to the requirements for race-based admissions outlined in the Supreme Court’s decision in Grutter v. Bollinger. The district court ruled that UNC’s admissions policy was consistent with Grutter v. Bollinger. SFFA appealed, and the U.S. Court of Appeals for the Fourth Circuit agreed to hold the case in abeyance after the U.S. Supreme Court Granted Review. The ABA filed an amicus brief in this case.

Issue(s):

1. Whether or not race can be used as a factor in admissions in higher education; and
2. Whether Harvard College’s race-conscious admissions process violates Title VI of the Civil Rights Act of 1964.

Holding: The Court ruled 6-3 in favor of Students for Fair Admissions finding that the admissions program at the University of North Carolina violates the equal protection clause of the 14th Amendment.

Significance: One of the implications of this decision is a large decrease in the enrollment of Black, Hispanic, and Native students. This alone could also damage the workforce and society in general because the benefits of diversity in higher education would be absent. Furthermore, this decision has implications for other areas in higher education beyond the scope of admissions, such as recruitment, financial aid, scholarships, employment, and data collection. While the scope of the ruling is limited to higher education, it could have future implications for employers, who could face increased scrutiny and disputes over their diversity initiatives. Find more information about this case from the ABA here.

Groff v. Dejoy

Oral argument date: April 18, 2023
Decided on: June 29, 2023

Facts: Gerald Groff, a Christian and a U.S. Postal Service worker, refused to work on Sundays due to his religious beliefs. USPS offered to find employees to swap shifts with Groff, however on several occasions, no co-worker would swap, and Groff did not work. USPS subsequently fired him. Consequently, Groff sued USPS under Title VII of the Civil Rights Act of 1964 claiming that USPS failed to reasonably accommodate his religion because of the shift swaps and did not fully eliminate the conflict. The district court concluded the requested accommodation would pose an undue hardship on USPS and granted summary judgment for USPS. The U.S. Court of Appeals for the Third Circuit affirmed. 

Issue(s):

1. Whether inconvenience to coworkers is an “undue burden” under Title VII of the Civil Rights Act of 1964 such that it excuses an employer from providing an accommodation requested for religious exercise; and
2. Whether Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

Holding: The Court unanimously ruled in favor of Groff finding that Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

Significance: The Court’s ruling clarifies the strength of protections for religious employees under Title VII. The ruling makes clear that employers cannot avoid accommodating employees’ religious practices by citing any cost above the trivial.

Haaland v. Brackeen

Oral argument date: November 9, 2023
Decided on:  June 15, 2023

Facts:  The Indian Child Welfare Act (ICWA), a federal law enacted in 1978, restricts the removal of Native American children from their families and establishes a preference that Native children who are removed from their families be placed with extended family members or Native foster homes. Several couples who wished to adopt or foster Native children, a woman who wished for her Native biological child to be adopted by non-Native people, and the states of Texas, Louisiana, and Indiana filed a lawsuit challenging the ICWA as violating constitutional anti-commandeering principles of the Tenth Amendment. The district court ruled in favor of the plaintiffs and struck down portions of ICWA. The defendants appealed, and a panel of the U.S. Court of Appeals for the Fifth Circuit reversed. In a fractured ruling, the Fifth Circuit sitting en banc upheld portions of the district court’s decision and reversed other portions. The ABA filed an amicus brief in this case.

Issue(s):

1. Whether the Indian Child Welfare Act’s restrictions on the placement of Native American children violate anti-commandeering principles of the Tenth Amendment.

Holding: The Court ruled 7-2 in favor of the defendant finding that in child custody proceedings governed by the Indian Child Welfare Act, the court affirms the U.S. Court of Appeals for the 5th Circuit’s conclusion that ICWA is consistent with Congress’s Article I authority, rejects petitioners’ anti commandeering challenges under the Tenth Amendment, and finds the parties lack standing to litigate their other challenges to ICWA’s placement preferences.

Significance: Historically, significant numbers of Native children were taken away from their families and adopted by non-Indians. Gradually, this had the effect of reducing the number of tribal members and disrupting any ties the children had to tribal culture. Thus, the Court’s ruling affirms protections for Native children and tries to keep them as close to family and kinship ties as possible. The Court’s ruling also affirms the rights of tribes to their sovereignty. Additionally, the Court’s ruling recognizes that in general, states may not supersede federal proceedings with tribes. Find more information about this case from the ABA here.

Upcoming Decisions

Pulsifer v. United States

Oral argument date: October 2, 2023

Facts: Mark Pulsifer pleaded guilty to distributing at least fifty grams of methamphetamine. Relying on 18 U.S.C. § 3553(f), Pulsifer asked the district court for a sentence lower than the otherwise applicable statutory minimum term of imprisonment. That provision permits a district court to impose a sentence lower than the statutory minimum upon finding that the defendant does not have: “(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

It was undisputed that Pulsifer had a criminal history that meets the criteria in subsections (A) and (B), due to having more than four criminal history points and a prior three-point offense. The district court concluded that this history alone made him ineligible for sentencing under § 3553(f), notwithstanding that he did not also have a prior two-point violent offense that would meet the condition in subsection (C). It therefore denied his request under 18 U.S.C. § 3553(f).

Pulsifer appealed, and the U.S. Court of Appeals for the Eighth Circuit affirmed, concluding the statutory word “and” means a defendant must not have any of the criteria, not that he must not have all of them.

Issue(s):

1. Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).

Significance: The ruling of this case has serious implications for defendants seeking to avoid mandatory minimum sentences for certain nonviolent drug crimes. A ruling in favor of the defendant in this case could allow judges to enforce sentences tailored to the defendant’s individual circumstances.

Acheson Hotels, LLC v. Laufer

Oral argument date:  October 4, 2023

Facts:  Deborah Laufer, a litigant with physical disabilities and vision impairments, sued Acheson Hotels for failing to publish information about their accessibility on their website, which is required under the Americans with Disabilities Act (ADA).

The district court dismissed the lawsuit, finding that Laufer lacked standing to sue because had no plans to visit the hotel and thus suffered no injury as a result of the lack of information on the website. The U.S. Court of Appeals for the First Circuit reversed, concluding that Laufer’s lack of intent to book a room at the hotel operated by Acheson does not negate the fact of injury.

Issue(s):

1. Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.

Significance: A ruling in favor of the plaintiff would uphold “tester” standing as a crucial method for enforcing civil rights laws. This ruling will also have important implications for disability rights.

Alexander v. South Carolina State Conference of the NAACP

Oral argument date: October 11, 2023

Facts: After the 2020 Census, South Carolina’s Republican-controlled legislature adopted a new congressional map that moved tens of thousands of Black voters to a different district. The South Carolina State Conference of the NAACP sued, and a three-judge panel concluded that the district was an unconstitutional racial gerrymander. The legislators appealed directly to the Supreme Court, arguing that the map was actually a political gerrymander (which is permissible) that merely had a racial effect.

Issue(s):

1. Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent;
2. Whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case;
3. Whether the district court erred when it failed to disentangle race from politics;
4. Whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles;
5. Whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and
6. Whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect.

Significance: The ruling in this case will have significant implications for the application of the Equal Protection Clause of the 14th Amendment. Furthermore, as a result of these changes by the South Carolina Legislature, many Black voters lacked a meaningful opportunity to elect their preferred candidates.

Lindke v. Freed

Oral argument date: October 31, 2023

Facts: James Freed made a private profile on Facebook. Over time, he reached Facebook’s 5,000-friend limit on profiles, and consequently, converted his profile to a “page” so that he could have unlimited “followers.” This “page” is public, and Freed designated the page category as “public figure.”

In 2014, Freed was appointed city manager for Port Huron, Michigan, and updated his Facebook page to include his new title. He shared both personal and professional updates on the page, including directives and policies he initiated in his official capacity. 

Kevin Lindke discovered Freed’s page and was unsatisfied with how Freed was handling the pandemic. Lindke posted criticism of Freed in response to Freed’s Facebook page, to which Freed responded by deleting the comment and “blocking” Lindke. 

Lindke sued Freed under 42 U.S.C. § 1983 for violating his First Amendment rights by deleting his comments and blocking him. The district court granted summary judgment to Freed, and the U.S. Court of Appeals for the Sixth Circuit affirmed. 

Issue(s):

1. Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.

Significance: The ruling of this case will have a significant impact on how public officials interact on social media and make use of their public and private social media accounts.

O’Connor-Ratcliff v. Garnier

Oral argument date:  October 31, 2023

Facts: Christopher and Kimberly Garnier are parents of children in the Poway Unified School District in the city of Poway, California. The Garniers frequently criticized the District’s Board of Trustees via public comments on the Trustees’ social media pages, including Michelle O’Connor-Ratcliff and T.J. Zane. O’Connor-Ratcliff and Zane created personal Facebook and Twitter pages for their school board campaigns, which they updated with their official titles once elected and continued to use to post about school-district business and news.

Issue(s):

1. Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.

Significance: The ruling of this case will have a significant impact on how public officials interact on social media and make use of their public and private social media accounts.

Cases Not Yet Set for Argument

Muldrow v. City of St. Louis, Missouri

Facts:   Muldrow is employed with the St. Louis, Missouri, Police Department (SLMPD). Muldrow was transferred out of a position with an intelligence unit with prestige and desirability to a different department. She alleges that this transfer occurred to make way for a man who wanted the position, thus discriminating against her on the basis of gender. Both positions had similar monetary benefits, however, Muldrow claims that the new position had significantly fewer special FBI-related privileges, opportunities for upward mobility, and scheduling flexibility. The US District Court Eastern District of Missouri ruled in favor of the SLMPD in 2019, granting summary judgment. 

Issue(s):

1. Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage.

Significance: This case will have implications for employee rights, and determine whether an employee can sue under Title VII of the Civil Rights Act for discrimination based on bias-motivated transfers in the workplace.

NetChoice, LLC v. Paxton

Facts: NetChoice is a trade association representing large social media platforms including TikTok and Meta. In September 2021, NetChoice filed suit against Texas in September 2021 before H.B.20, which prohibits large social media platforms from “censoring” content on the basis of viewpoint or geographic location within the state, took effect. The district court issued a preliminary injunction on the grounds that H.B. 20 violated social media platforms’ First Amendment-protected editorial discretion. The Fifth Circuit granted a stay of the preliminary injunction, but this stay was overturned by the Supreme Court in May 2022. NetChoice appealed, arguing that H.B. 20 was unconstitutional, and the Fifth Circuit rejected these arguments and upheld H.B. 20. This places the Fifth Circuit in conflict with the 11th Circuit, which struck down the Federal law.  

Issue(s):

1. Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech — or otherwise burdening those editorial choices through onerous operational and disclosure requirements.

Significance: This case has serious implications for freedom of speech and the role of social media platforms in controlling their platforms.

McElrath v. Georgia

Facts: The Georgia Supreme Court vacated an acquittal and two convictions arising from the same trial, finding that the verdicts were inconsistent and vacated them all. Consequently, McElrath faces retrial on a charge for which he was acquitted.

Issue(s):

1. Whether the double jeopardy clause of the Fifth Amendment prohibits a second prosecution for a crime of which a defendant was previously acquitted.

Significance: The ruling of this case will have implications for the interpretation of the Double Jeopardy Clause.

Learn More

Curious about past Supreme Court terms and the status of case decisions? Check previous editions of our SCOTUS Updates (Summer 2021, Fall 2021, Spring 2021, Winter 2021) from the Section's quarterly e-Newsletter on cases related to civil rights and social justice. 

Additionally, the Section of Civil Rights and Social Justice routinely hosts webinars and panels, discussing social inequities and their legal connection. If you are interested in learning more about these issues, recordings of past webinars can be found on the Section’s YouTube channel. 

Please refer to the directory of Amicus Curiae Briefs on the Section’s website, which contains amicus briefs filed by the ABA pertaining to civil rights cases. 

For existing policy, check out the Policy Project, featuring a compilation of all policy drafted by the ABA relating to the committees of the Section of Civil Rights and Social Justice. 

The ABA has also created a Law, Society and the Judiciary Task Force to consider the range of issues implicated in Dobbs and Bruen.