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Evaluating Significant Decisions from the 2022-2023 Supreme Court Term

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

August 9, 2023

The United States Supreme Court reviews only a few dozen legal cases every year, however, the significance of these cases is often immense. In the 2022-2023 Supreme Court term, the Justices reviewed fifty-two cases in total, and issued rulings on cases involving free speech, religious accommodations, University admissions, and true threats. The Supreme Court’s 2022-2023 term concluded on June 28th, 2023, and the court is now in recess until October. Due to the importance of several rulings made during this term, it seems fitting to evaluate some of the decisions made by the court and analyze their significance. Each case analysis will be separated, and will include a review of the case background, arguments made by the petitioners and respondents, and finally, the holding issued by the Supreme Court.

[1] 303 Creative LLC et al. v. Elenis et al. 600 U.S. ___ (2023)

Lorie Smith owns a graphic design business, 303 Creative LLC, in Colorado and wanted to expand her business to include website design for couples seeking wedding websites. She worried, however, that the Colorado Anti-Discrimination Act (CADA) would compel her to create websites that celebrate marriages between individuals of the same sex, which she does not endorse due to her religious beliefs. CADA prohibits “all public accommodations” from denying “the full and equal enjoyment” of its services to any customer based on his race, creed, sexual orientation, or other statutorily enumerated trait. Either state officials or private citizens may seek enforcement action for the statute. Ms. Smith filed a lawsuit with a Colorado District Court seeking an injunction that would prevent the state from forcing her to create websites celebrating marriages that defy her religious belief: That marriage should be reserved for the unification of a man and a woman. Before the District Court, Ms. Smith stated that she is willing to work with people regardless of their sexual orientation and will create graphics for them without protest. She added that she will not, however, produce content that “contradicts biblical truth” regardless of who orders it. Ms. Smith stated that her view of marriage is a sincerely held conviction, and that her services “express 303 Creative’s message celebrating and promoting her view of marriage” as she is the sole employee. The State of Colorado rebutted that Ms. Smith’s case does not implicate pure speech, but rather the sale of an ordinary product that should be available to not some, but all, and that any burden on her speech is purely “incidental”. The state also insisted that Supreme Court precedent from Rumsfeld v. FAIR, 547 U.S. supports their argument.

The District Court held that Ms. Smith was not entitled to the injunction in which she sought, and the Tenth Circuit Court of Appeals affirmed. A divided panel cited that the state had shown a compelling government interest in forcing Ms. Smith to create speech, and that no reasonable alternative existed, satisfying the criteria for strict scrutiny. The Supreme Court granted certiorari and reviewed the Tenth Circuit’s disposition.

The Supreme Court began by reviewing several cases that were argued on similar grounds as Ms. Smith’s. In West Virginia Board of Education v. Barnette 319 U.S. 624, 642, The Supreme Court held that West Virginia’s efforts to compel schoolchildren to salute the American Flag during the Pledge of Allegiance “invaded the sphere of intellect and spirit, which it is the purpose of the First Amendment… to reserve from all official control.” In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, the court held that a Massachusetts public accommodations statute was not able to compel veterans organizing a parade to include a group of homosexual individuals because the parade itself was protected speech and requiring them to include a group they wished to exclude would “alter the expressive content of their parade”. Finally, in Boy Scouts of America v. Dale 530 U.S. 640, 660-661, the court held that the Scouts’ decision to exclude a homosexual man from participation was entitled to First Amendment protection, because the Boy Scouts are an “expressive association”. The Supreme Court stated these cases illustrate that the First Amendment protects an individual’s right to speak his mind regardless of the government’s belief on intention or sensibility.

The Supreme Court agreed with the Tenth Circuit in many aspects, including that the websites Ms. Smith seeks to create qualify as pure speech, which is protected by The First Amendment. The Supreme Court further recognized that Colorado sought to compel Ms. Smith to speak in ways that align with its beliefs but defy her own conscience, and since The First Amendment “envisions the United States as a place where people are free to think and speak as they wish,” the court ruled that Colorado cannot compel Ms. Smith to create websites for marriages she does not endorse.

[2] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S.___ (2023)

Harvard College and the University of North Carolina (UNC) are two of the oldest and most prestigious educational institutions in the United States, and while thousands of students apply to these institutions annually, only a small percentage are accepted to attend. Admission to these institutions is dependent on many variables including, but not limited to, the applicants’ academic prestige, extracurricular involvement, recommendation letters, and even their race. Students for Fair Admissions (SFFA), a nonprofit organization that seeks to “defend human civil rights secured by law” filed two separate lawsuits against Harvard and UNC, arguing that the race-based admissions used by these institutions violate Title VI of the Civil Rights Act of 1964, and the Equal Protections Clause of The Fourteenth Amendment. The respondents’ claim that SFFA lacks standing due to their lack of membership organizational status was rejected by the court.

Separate bench trials found that both admissions programs were lawful under the Equal Protections Clause and Supreme Court precedent. The Supreme Court granted certiorari for the Harvard case after the First Circuit Court of Appeals affirmed judgment, and for the UNC case prior to an issued judgment.

The Supreme Court began by reviewing the admissions processes used by both institutions. At Harvard, each application is screened by a “first reader” who assigns a numerical score to applicants in six different categories, including one titled “overall”. Overall is a compilation score of the preceding categories, where the reader can, and does take applicant race into consideration. Harvard’s subcommittees then review applications by geographic area, and make recommendations to the admissions committee, who also takes race into account. When deliberations begin, applicants are grouped by race to prevent “a dramatic drop-off” in minority admissions. Applicants who receive a majority of the committee’s votes are tentatively accepted for admission, and at the conclusion of voting, the racial composition of the acceptance pool is disclosed to the committee. Then begins the “lop” process, where the tentatively accepted applicants are winnowed, and race is again a deciding factor. UNC’s admission process is like that of Harvard’s. Applications are first read by an admissions office reader who assigns a numerical score to multiple categories and is required to consider applicant race. The reader then makes a recommendation, which can be aided by the applicant’s race. A “school group review” is then conducted where this recommendation is either approved or rejected. In making these final decisions, the race of the applicant can be a deciding factor.

The justices then turned their focus to the Fourteenth Amendment and the Equal Protections Clause. Prior decisions of the court had interpreted the Equal Protections Clause as a guarantee that “all persons, whether colored or white, shall stand equal before the laws of the states.” Exceptions to this standard must withstand strict scrutiny. Further, citing Brown v. Board of Education, 347 U.S. 483, the court stated the decision of this case was clear in ruling that education “must be made available to all on equal terms.” Although the court recognized that precedent allows race-based admissions decisions at universities, they also acknowledged the attached limitations: That the programs must comply with strict scrutiny, applicant race may not be used negatively, and that there must be a “logical end point.”

After review of both admissions systems, the court determined that the universities had fallen short of the burden to operate their programs in a manner that is “sufficiently measurable to permit judicial review.” Citing the respondents’ goals for race consideration, the court found immeasurable how the specific ethnic mix of a student body can further produce these goals. The court’s opinion also asserts that the admissions processes fail to create a connection between their methodology, and their goals, specifically noting that the racial classifications the institutions use are overbroad, arbitrary, and underinclusive. Secondly, the universities’ admissions systems fail to comply with the Equal Protections Clause, which states that race may not be used as a negative, nor a stereotype. The First Circuit Court found that Harvard’s consideration of race resulted in reduced admissions for specifically Asian students, and the Supreme Court found that by considering race, the universities were engaging in the stereotype that “students of a particular race, because of their race, think alike.” Finally, the court reasoned that the universities’ race-based admissions lack an end point, which was required by the decision of Grutter v. Bollinger, 539 U.S. 306, 326. Respondents’ argued that they will end their race considering programs when their goals have been met, or once meaningful representation occurs, which the court had found immeasurable.

Due to the respondents’ lack of measurable objectives requiring race consideration, use of applicant race in a negative manner, use of stereotyping, and lack of a logical end to race consideration, the Supreme Court found the admissions programs impermissible under the Equal Protections Clause of the Fourteenth Amendment.

[3] Counterman v. Colorado 600 U.S.___ (2023)

Billy Counterman sent hundreds of Facebook messages to a local singer named “C.W.” from 2014 to 2016. The two had never met, and C.W. made repeated attempts to block Counterman from contacting her through the platform. Each time, Counterman created a new Facebook account and continued sending her messages, several of which pictured harm befalling her. C.W. claims this activity put her in fear and halted her daily activities, which ultimately caused her to notify law enforcement. The state of Colorado charged Counterman under a statute that prohibits making any form of repeated communication in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress." Counterman moved to dismiss these charges on First Amendment grounds, claiming that his messages were not “true threats” and because of this, cannot be the basis for criminal prosecution.

The trial court rejected this argument following Colorado law, which uses a “reasonable person” standard and found that Counterman’s statements were indeed true threats. Counterman was convicted by a jury and appealed, arguing that the state is required to show his subjective intent to threaten C.W. The Colorado Court of Appeals affirmed his conviction, relying on its precedent, and the Colorado Supreme Court denied review. The United States Supreme Court granted certiorari due to division amongst the lower courts regarding the requirement for proof of subjective mindset in true-threats cases.

First, The Supreme Court reviewed the First Amendment’s restrictions upon the content of speech, including incitement to unlawful conduct, defamation of another, obscenity, and true threats of violence. True threats are classified as “serious expressions” conveying that the speaker intends to “commit acts of unlawful violence.” The existence of this threat is dependent on the conveyance of the statement, yet the court found that the First Amendment still may require the showing of a subjective mental-state of the speaker. Since prohibitions on speech have the potential to deter an individual from creating speech, requiring the state to show proof of a “culpable mental state” or a mens rea can be a tool to prevent this. The court reasoned that such showings are required to punish other areas of unprotected speech. Defamation, while serving no value to this nation, cannot be recovered from unless it can be shown that the speaker made a false statement “with knowledge that it was false, or with reckless disregard of whether it was false or not.” Incitement to unlawful conduct can often incur consequences even if the speaker did not intend to convey violent messages, but the First Amendment still protects that individual from prosecution unless it can be shown that his words were intended to produce unlawful actions. Similarly, obscenity requires proof of the defendant’s mindset, as neglecting scienter would inadvertently affect protected speech. Ultimately, the court ruled that utilizing an “objective ‘reasonable person’ standard” would discourage speech that the First Amendment seeks to protect.

The Justices then sought to determine the appropriate mens rea for prosecuting true-threats, and found that in this context, a recklessness standard stood sufficient. A person acts recklessly when he “consciously disregards a substantial, and justifiable risk that his conduct will cause harm to another.” The court reasoned that this standard offers wiggle room for protected speech without impeding too many aspects of criminal prosecution for true-threats. While other areas of unprotected speech may require a stronger showing of intent, the court found that is not necessary in cases of true-threats.

The Supreme Court ruled that Counterman was prosecuted, and convicted under an objective standard that is based on the interpretation of a “reasonable person.” The state was not required to show that Counterman was aware of the threatening nature of his statements, and thus, his conviction violates the First Amendment. The Supreme Court vacated judgment of the Colorado Court of Appeals and remanded the case for further proceedings that require a showing of at least recklessness.

[4] Groff v. DeJoy, Postmaster General 600 U.S. ___ (2023)

Gerald Groff is an Evangelical Christian who believes for religious reasons that Sundays should be reserved for rest and worship, not work-related duties. Groff was hired to work for the United States Postal Service (USPS) in 2014, and his duties did not typically include working on Sunday. After his employer agreed to start handling Sunday deliveries for Amazon, this changed, and a memorandum was signed by USPS that mandated Sunday duties upon request. Groff requested and was granted transfer to a rural delivery hub in Holtwood, Pennsylvania, who did not make Sunday deliveries. In 2017 however, Amazon deliveries also began at this hub. Groff continued refusing Sunday work, and USPS was forced to hand off his deliveries to his peers. Groff received “progressive discipline” for his refusals, and ultimately resigned in January 2019. Subsequently, Groff sued USPS under Title VII of the Civil Rights Act of 1964, claiming that the service could have accommodated his religious practice “without undue hardship on the conduct of their business.”

The District Court granted summary judgment to USPS, and the Third Circuit Court affirmed, feeling bound to their holding in Trans World Airlines Inc. v. Hardison, 432 U.S. 63, which ruled that requiring an employer to bear more than “de minimis cost” to provide a religious accommodation is an undue hardship. The Third Circuit found that Groff’s refusal to work “imposed on his coworkers, disrupted workflow, and diminished employee morale.” The Supreme Court granted Groff’s petition for a writ of certiorari.

The court first reviewed Title VII of the Civil Rights Act of 1964, which made it unlawful for employers to “refuse to hire or terminate any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of religion.” The Equal Employment Opportunity Commission interpreted this as meaning that employers are sometimes required to make accommodations to the religious needs of employees, so long as it does not present “undue hardship” to the business. In 1972, Congress amended Title VII, providing that “religion” includes all aspects of religious observance and belief, and that employers must abide by these guidelines unless they can reasonably show that they are unable to do so without “undue hardship” on the conduct of their business.

Switching their focus, the court reviewed the decision of Hardison, the basis of the de minimis cost standard. Similarly to Groff, Hardison was hired to work for Trans World Airlines (TWA) in 1967, and he underwent a religious conversion that would entail absenting from work on Saturday’s. This conflicted with his work schedule and attempts at accommodation still presented a substantial burden on the business. His refusal to work concluded with his discharge on ground of insubordination. Hardison sued both his workers union, and TWA, and the Supreme Court granted certiorari. The decision of this case focused little on constitutional issue, rather, it placed prominence on the seniority rights of employee’s, which is also provided by Title VII. Ultimately, the court ruled in Hardison that requiring TWA to bear more than “de minimis cost” (i.e., something so small or trifling that the law will not recognize it) to accommodate religious needs is an undue hardship, and that since there was no alternative solution without revoking the seniority rights of others, they were not required to accommodate.

The Supreme Court, applying aspects of Hardison to their review of Groff, concluded that TWA’s undue hardship defense in Hardison continually referenced proffered accommodations as “substantial burdens.” Therefore, the court reasoned that an “undue hardship” is presented when a burden is “substantial in the overall context of an employer’s business” rather than “more than a de minimis cost.” Further, the court asserted that Title VII requires that employers reasonably accommodate an employee’s practice of religion, not that it simply assesses the reasonableness of said accommodations. Specifically, the majority found that USPS had not considered the totality of the accommodations it was able to provide to Groff.

The Supreme Court held that the Third Circuit court utilizing a “more than de minimis cost” test may have led them to neglect numerous possible accommodations. Since this test was discovered to be flawed by the justices, the judgment of the Third Circuit Court was vacated, and Groff’s case was remanded for further proceedings.

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[1] 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)

https://caselaw.findlaw.com/court/us-supreme-court/21-476.html

[2] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. ___ (2023)

https://caselaw.findlaw.com/court/us-supreme-court/20-1199.html

[3] Counterman v. Colorado, 600 U. S. ___ (2023)

[4] Groff v. DeJoy, 600 U. S. ___ (2023)

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