Rule and Run: The New Style of Handing Down Supreme Court Opinions
Student Article
By Claire A. Campbell*
Introduction
Think back to June 2022 and June 2023. Law students, judges, attorneys, professors, lawmakers, and people around the world alike sat, eagerly waiting to hear the decisions of the Supreme Court of the United States on the most controversial cases of the year. By June 2022, the Court had yet to rule on cases involving gun restrictions,[1] Medicare,[2] the right to abortion,[3] crimes of violence,[4] religious freedom,[5] immigration,[6] and environmental protection.[7] However, the cases that stood out to the world were New York State Rifle & Pistol Association v. Bruen and Dobbs v. Jackson Women’s Health Organization, cases regarding gun rights and abortion, respectively.[8] Likewise, in June 2023, the Court was still sitting on its decisions regarding voting,[9] affirmative action,[10] elder rights,[11] the rights of Native Americans,[12] the right to free speech,[13] student loan debt,[14] and immigration.[15] Specifically, we eagerly awaited to hear the Court’s ruling on Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and 303 Creative LLC v. Elenis.[16] These cases concerned affirmative action and the right to free speech, respectively.[17]
The media was inundated with discussion of the possible effects of the decisions, while people around the country organized protests and the Supreme Court held oral arguments. But yet, still we all waited. And we waited. At the last possible opportunity, the Court ruled. Then it ran.
The Supreme Court of the United States has undertaken a new method of delivering its opinions. Instead of issuing opinions relative to the date on which the Court heard oral arguments, the Supreme Court appears to be waiting until the last minute to issue its opinions on the most contentious cases of the Term. In other words, the Court rules—and then it runs. We do not know exactly why the Court is ruling in this way, but a recent uptick in protests[18] and acts of violence[19] following controversial decisions are likely causes.
This Article first details the Supreme Court’s process for accepting and scheduling cases,[20] then discusses the most controversial cases of the October 2021 and 2022 Terms, highlighting the extended decision time for those cases.[21] Finally, this Article presents notable cases from the October 2023 Term and predicts which of those cases will be decided last.[22]
I. Behind the Bench: The Supreme Court’s Process
In order to appreciate the abnormality in which the Supreme Court is issuing these decisions, one must first understand the process by which the Court agrees to hear and schedule cases.
The Supreme Court Term begins on the first Monday in October and typically lasts until late June or early July.[23] The Term alternates between “sittings” and “recesses” at approximately two-week intervals.[24] The Justices hear cases and deliver written opinions during a sitting while utilizing recesses to consider business before the Court and draft opinions.[25] In order for a case to be heard by the Supreme Court, four of the nine Justices must vote in favor of accepting the case, a requirement known as the “Rule of Four.”[26]
Oral arguments before the Supreme Court typically take place on Monday, Tuesday, and Wednesday mornings.[27] The Court will generally hear two arguments per day beginning at 10:00 a.m.[28] Beyond this, little public information is available regarding how the arguments are actually scheduled and the order in which the Court will hear cases.
Once oral arguments have concluded, the Justices then deliberate in order to resolve the case.[29] This deliberation happens during the “Justices’ Conference.”[30] During a sitting, these conferences take place twice per week.[31] Supreme Court protocol dictates that all Justices may express their views and opinions on the case without interruption.[32] Each Justice speaks in order of seniority, beginning with the Chief Justice.[33] Once the most junior Justice concludes his or her thoughts on the case, the Chief Justice will cast the first vote; the remaining Justices will then vote, again in order of seniority.[34]
Once all votes have been cast, the Justices then pick the author of the opinions.[35] The author of the majority opinion is assigned by the Chief Justice, or the next most senior Justice if the Chief Justice is in the dissent.[36] The same process is followed for the dissenting and concurring opinions, if applicable.[37]
II. Discovering a New Pattern by Delving into Past Supreme Court Terms
There are no guidelines or rules dictating when Supreme Court opinions should be released.[38] The Supreme Court has not always waited until the last minute to rule on controversial decisions before ducking out of the public eye. Historically, the Court decided cases relative to when oral arguments were held, rather than according to the case’s degree of controversy.[39] In fact, a brief review of landmark Supreme Court cases demonstrates that past Courts treated these decisions with the reception as any other case. However, a review of the most recent terms shows a marked departure from this method and begins to demonstrate an arguably purposeful withholding of controversial decisions until the end of the Term.
A. Past Controversial Supreme Court Decisions With No Discernible Link Between the End of the Term and the Decision
In previous Terms, the Supreme Court released controversial decisions as early as January, February, and March—as opposed to releasing them in late June like recent Terms. Roe v. Wade, Buckley v. Valeo, and Citizens United v. Federal Electoral Commission were landmark decisions released in January of their respective Terms, well before the end of the Terms.[40] The Roe decision was released 103 days after oral arguments were held,[41] and it recognized a constitutional right to an abortion.[42] In this case, the Supreme Court itself addresses the inherent controversy regarding this issue, writing: “We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.”[43] Despite this acknowledgement of the contention surrounding the case, the Supreme Court issued its decision five months before the end of Term.[44]
In Buckley, a decision arising out of the wake of the Watergate scandal,[45] the Supreme Court ruled on the constitutionality of various election campaign acts.[46] Even with the scandalous backdrop, the Court ruled in Buckleyonly eighty-one days after oral arguments took place and five months before the end of the Court’s Term.[47] In a similar vein, the Supreme Court quickly ruled on Citizens United despite its controversial nature regarding elections.[48] The Court held that the First Amendment bars the government from restricting any amount spent on elections.[49] This decision overruled and reversed over one hundred years of campaign finance law, but the Court released the decision with an abundance of time before the end of the Term.[50]
The Supreme Court has also ruled on contentious cases in February of past Terms. Tinker v. Des Moines Independent Community School District was a highly controversial decision in 1968 as it concerned suppressing the public objection to the conflict in Vietnam.[51] The Court again acknowledged the inherent controversy of the case, recognizing that the district court found that “the [Vietnam] war and the involvement of the United States therein has been the subject of a major controversy for some time.”[52] However, the Court did not appear to let this controversy affect the date of their ruling as it issued the decision just 104 days later, four months before the end of the Term.[53]
Finally, in the past, the Supreme Court has released decisions on controversial cases in March, still three months before the end of its Term. Both Gideon v. Wainwright and Schenk v. United States are examples of such cases. In the landmark case of Gideon, the Supreme Court held that the Constitution guarantees the right of legal counsel to those accused of a crime.[54] Undeniably, this decision had major impacts on the criminal law field.[55] Regardless, the Court did not hold off on issuing this decision; instead, the Court ruled on this case just sixty-three days after oral argument.[56] The Supreme Court ruled on Schenk even more quickly with only fifty-three days between oral argument and the date the decision was released.[57] Schenk—a case “[i]n a series of controversies resolved in the wake of World War I”[58]—established the highly criticized and later abandoned “clear and present danger” test under the First Amendment.[59] The Supreme Court’s decision came three months before the end of the Term,[60] leading to the conclusion that the Supreme Court does not have a history of leaving the most controversial cases to the end of the Term.[61]
The aforementioned cases demonstrate decades of accepted Supreme Court procedure. However, the trends are changing. In recent years, it is increasingly common to see the most contentious cases withheld until the end of the Term. This new phenomenon of “rule and run” is best demonstrated by reviewing the October 2021 and October 2022 Terms.
B. October 2021 Term: The Starting Pistol for the Rule and Run
The Supreme Court heard sixty-two cases during the October 2021 Term.[62] Arguments were held beginning October 4, 2021, and lasted until April 27, 2023.[63] The first case decided for the term was Mississippi v. Tennessee on November 22, 2021.[64] However, New York State Rifle & Pistol Association, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization, the two most controversial cases, were not decided until June 23, 2022, and June 24, 2022.[65] On average, it took the Supreme Court 111 days to decide a case after oral arguments were held. The shortest period in which the Court decided a case was six days. The scatterplot below illustrates the relationship between argument dates and decision dates in the October 2021 Term. The oral argument dates are plotted along the x-axis, and the Court’s decision dates—the dates when it released its opinions—are plotted along the y-axis.[66] Also represented on the graph is the R^2 value, or the line of best fit, that represents the relationship between the data.[67]
Represented as a percentage, the R^2 value is 43.3%, thus demonstrating that there is no significant relationship between the date the Court hears oral argument versus when the decision is released.[68] Indeed, “there are no rules concerning when decisions must be released.”[69]
Notably, the October 2021 Term was unique in that it was the first full term after Justice Amy Coney Barrett’s confirmation, which tilted the Court to a 6-3 conservative majority.[70] The Nation watched in anticipation to see how this new Court would rule on contentious issues.[71] This Term was also the first time in over a year that the Court would meet in-person following the COVID-19 pandemic.[72] Leading up to the start of the Term, several Justices worked to address the public’s perception of the new Court, claiming that they are not “‘partisan hacks,’ but are simply divided by their judicial philosophies.”[73] Regardless, polls showed a distinct decrease in public support of the Supreme Court.[74] At the time, only 40% of Americans approved of the Court’s ability to do their job.[75] This rate of approval is the lowest since 2000, the first time this specific poll was conducted.[76] In response, Justice Alito chastised critics, claiming the Court has been characterized “as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. This portrayal . . . feeds unprecedented efforts to intimidate the [C]ourt and to damage it as an independent institution.”[77]
Much of the contention placed on the Court concerns partisanship.[78] Consequently, the cases with the most controversy were those whose issues fell on party lines. The October 2021 Term saw cases concerning gun rights,[79] abortion,[80] the death penalty,[81] the rights of Guantanamo Bay detainees,[82] and freedom of religion.[83] However, of the sixty-two cases the Supreme Court heard during that Term,[84] two cases were particularly controversial: New York State Rifle & Pistol Association, Inc. v. Bruen, and Dobbs v. Jackson Women’s Health Organization.[85] Given the surrounding controversy, media widely reported on both cases during the Term.[86]
1. Staring Down the Barrel of Gun Rights in New York State Rifle & Pistol Association, Inc. v. Bruen
The Court heard oral arguments for Bruen on November 3, 2021, and decided the case on June 23, 2022.[87] This gap between argument and decision was the longest gap between argument and decision in the October 2021 Term, lasting 226 days. This case took 121 days longer than the average decision time. Other cases with similar oral argument dates were decided in December through March, up to six months prior to the release of the Bruen decision.[88]
Leading up to the oral argument and decision of Bruen, people held protests and demonstrations in support of both sides.[89] The timing of the case did not aid public perception. Months after oral arguments, but before the Court pronounced its decision, a mass shooter open fired in a Brooklyn subway.[90] The next month, another mass shooter killed ten people in a New York grocery store.[91] Days later, a gunman killed twenty-one children in a Texas elementary school.[92]
In the years preceding Bruen, gun rights were at their strongest in the United States but still bowed to state and local authority in some respects.[93] Bruen stood to change this and became one of the most impactful Second Amendment cases the Supreme Court has ever decided, second only to District of Columbia v. Heller in 2008.[94] In Bruen, New York State Rifle & Pistol Association challenged a New York law that required an applicant to show “proper cause” to obtain a license to carry a handgun in public. [95] The license did not apply to any person who wished to use a gun for hunting, target practice, or carrying in an area not “frequented by the general public.”[96] Specifically, in order to carry a handgun in a public place, the applicant “must demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”[97]
Before the case was decided, the potential implications of the impending decision reached far beyond New York and became the basis for widespread controversy and criticism. Six other U.S. states—whose populations make up one quarter of the U.S. population—had similar laws that would be affected by this case.[98] Supporters of the challenge argued that marginalized groups inherently face greater danger in their lives and should be allowed to carry firearms in public.[99] The “proper cause” test also brought its own criticism. Critics claimed that the test was subjective and could not pass any level of scrutiny because it required an applicant to prove they had already been a victim of a violent crime in order to obtain a license to protect against that exact violence.[100] However, an overwhelming majority of the supporters of New York State Rifle & Pistol Association attested to the fact that the Second Amendment guarantees a broad right to carry guns in public.[101] Additionally, they argued that legislatures have no place “second-guess[ing] the policy judgments made by the Framers and enshrined in the Constitution.”[102]
Although many people challenged the New York law, an equal number supported it. Some argued that imposing less restrictions on firearms jeopardizes First Amendment Rights.[103] There are concerns that unrestricted gun rights will “chill rights of speech, assembly, and prayer.”[104] In other words, there are concerns that without such restrictions, there will be an increase in vigilantism and marginalized groups will be fearful of expressing their opinions in public with an increased presence of firearms.[105] Many critics contended that ruling against New York infringes on the authority of state and local governments to legislate in response to public safety concerns.[106] Others argued that the challengers misinterpret the Second Amendment.[107] They argued that it does not create a right to private gun ownership, but that “keep and bear arms” signifies a “collective, militaristic meaning,” and the Founders understood the right to be subject to limitation or regulation.[108] Criminal law academics argued that self-defense is misconstrued.[109] They asserted that self-defense is not a personal right, but a defense against a criminal charge; and because the meaning of self-defense differs across jurisdictions, states must have the right to fashion their gun regulation in accordance.[110] The controversy underlying this case is apparent.
Ultimately, the Supreme Court waited 226 days—the longest gap of the entire Term—to release the controversial Bruen decision. The Court struck down the New York concealed carry law in a 6-3 decision.[111] Specifically, the Court found that the broad right “to keep and bear arms” allows the carrying of a handgun outside the home for self-defense.[112] The Court issued this decision just two business days before the last session of the Term.[113]
2. The Abortion Debate: Dobbs v. Jackson Women’s Health Organization
The Supreme Court heard oral arguments on Dobbs on December 1, 2021.[114] The case was not decided until 205 days later on June 24, 2022—ninety-four days longer than the average argument-decision period of the term and 199 days longer than the shortest of the Term.[115] Other cases with similar oral argument deadlines were decided between January and April of 2022.[116]
Dobbs was a contentious case from the beginning. The steps of the Supreme Court became the grounds for many protests.[117] The already-present controversy increased exponentially after Justice Alito’s draft opinion was leaked before the Supreme Court’s official ruling.[118] Justice Alito’s draft was described as “a full-throated, unflinching repudiation of [Roe v. Wade].”[119] Justice Alito wrote, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”[120] He also wrote, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”[121] While it is normal practice to have fluid deliberations on controversial decisions,[122] the inflammatory language of the draft only cemented the views of the divided public.[123] The news story that first published the draft wrote that this “unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.”[124] Those in favor of the opinion praised the decision, while those opposed denounced it.[125] However, people from both sides of the debate agreed that the leak was an “extraordinary beach of the covert deliberation process of the nation’s highest court.”[126]
Protests only increased once the draft opinion was leaked.[127] The Court went as far as to erect eight-foot-tall fences around the building to protect against protesters.[128] However, some protests moved from the steps of the Supreme Court to the homes of the Justices, leading the Court to enlist U.S. Marshals to guard their homes.[129] In response to the surge of public disapproval, Congress passed the Supreme Court Police Parity Act in order to grant federal protection to the immediate family of the Justices.[130] While Justice Barrett joked about the protests in response to audience applause at a Federalist Society Dinner by saying, “Thank you. It’s really nice to have a lot of noise made that’s not by protesters outside my house,” Justice Kavanaugh was targeted in an assassination attempt.[131] That attempt was the only act of violence attempted or committed against any Justice.[132]
The leak of Justice Alito’s opinion was the first time a draft opinion of the Court has ever been publicly disclosed.[133] It has yet to be revealed how the draft was actually leaked.[134] However, the news received the draft “from a person familiar with the [C]ourt’s proceedings in the [] case along with other details supporting the authenticity of the document.”[135] Chief Justice Roberts ordered an investigation into the leak but claimed that “[t]o the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.”[136] However, the Chief Justice stressed that the draft in no way represents a final decision by the Court.[137]
The draft opinion was leaked on May 2, 2022, but the Court refrained from officially ruling until June 24, 2022.[138] The issue before the Court in Dobbs involved a Mississippi law that banned almost all abortions after fifteen weeks, providing exceptions only for medical emergencies or severe fetal abnormalities. [139] Dobbs presented the Court with the opportunity to overrule Roe v. Wade and Planned Parenthood v. Casey by determining whether there was a constitutional right to an abortion.[140]
By the time the Supreme Court officially announced their ruling, 205 days had passed since oral arguments were held, marking Dobbs as the case with the second longest decision time after Bruen.[141] The Court released the decision only one business day before the Court ended activities relating to the October 2021 Term.[142] Justice Alito’s official majority opinion was substantially the same as the leaked draft, save for the addition of Justice Alito’s criticisms of the dissenting and concurring opinion.[143] In the five-Justice majority, the Supreme Court overruled Roe v. Wade, asserting that “the Constitution makes no reference to abortion,” and that the right is not protected by the Due Process Clause because it is not “deeply rooted in this Nation’s history and tradition.”[144] Justice Alito claimed that Roe was “egregiously wrong and deeply damaging,” “outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed,” and “on a collision course with the Constitution from the day it was decided.”[145]
In response to the official ruling, hundreds of people protested at the courthouse.[146] The sheer number of protesters shut down traffic which resulted in the arrest of more than 180 people.[147] Activists on both sides congregated to either praise the ruling or express their frustrations.[148] The protests generally remained peaceful, but there remained a sizable police presence.[149]
C. October 2022 Term: The Pattern Continues
The October 2021 Term was not the only time that the Court has waited until the end of the term to rule. The Court heard fifty-eight cases during the October 2022 Term.[150] Arguments were held beginning October 2, 2022, and lasted until April 26, 2022.[151] The first cases decided for the term were Arellano v. McDonough and In re Grand Jury on January 23, 2022.[152] However, the two most controversial cases were not decided until June 29, 2023, and June 30, 2022.[153] On average, it took the Court 124 days to decide a case after oral arguments were held. The quickest the Court ever decided a case was fourteen days. The scatterplot below represents this data in the same manner as the above October 2021 Term graph.[154]
The R^2 value for the October 2022 term is roughly seventeen percent, significantly lower than the previous term, again showing no likely correlation between the date of oral argument and the date the decision was released.[155]
Many believed this term would continue the Court’s conservative arc.[156] With the backdrop of the October 2021 Term’s gun rights expansion, overturning of abortion rights, and general exercise of the conservative supermajority, the world anticipated similar, conservative rulings on the new issues before the Court.[157]
The Court’s approval ratings plummeted to historic lows.[158] In response to these low ratings, Chief Justice Roberts defended the Court by saying that “‘[d]ecisions have always been subject to intense criticism, and that is entirely appropriate . . . but lately, the criticism is phrased in terms of . . . the legitimacy of the [C]ourt.’ That, he said, is ‘a mistake.’”[159] Chief Justice Roberts made it clear that “public opinion [is not] the guide of what the appropriate decision is.”[160] However, Justice Kagan disagreed, claiming that the Court’s legitimacy is earned.[161] Justice Kagan criticized the increase in overturning precedent, claiming that precedent is a “foundation” of law and it “tells people they can rely on the law, [but] all of a sudden everything is up for grabs, [and the] very fundamental principles of law are being overthrown . . . then people have a right to say, ‘You know, what’s going on there? That doesn’t seem very law-like.’”[162]
While the Supreme Court has discretion to decide which cases to grant a writ of certiorari, Justice Kagan believes that “[t]he [C]ourt shouldn’t be wandering around just inserting itself into every hot-button issue in America, and it especially shouldn’t be doing that in a way that reflects one set of political views over another.”[163] Nonetheless, the October 2022 Term saw numerous contentious and controversial cases that happened to fall right on party lines.[164] This Term, the Court would hear cases on affirmative action, race, LGBTQIA+ rights, election law, and student debt.[165]However, the most highly discussed were the consolidated Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and 303 Creative LLC v. Elenis.[166]
1. Fair or Unfair, That is the Question: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
Students for Fair Admissions, Inc. v. University of North Carolina was consolidated with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.[167] Oral arguments for these cases occurred on October 31, 2023, but the case was not decided until June 29, 2023.[168] In other words, the Court waited 241 days to issue a decision, a wait which was 117 days longer than the average decision time during the Term.[169] Other cases with similar oral argument dates were decided in February, five months before Fair Admissions.[170]
At the time the Court was deliberating over the issues in this case, overturning the affirmative action programs in academics would have been the second time within one year the Court “ha[d] jettisoned decades of precedent to overturn a policy that has helped define American life.”[171] This repeat action could threaten to raise questions about the Court’s approach to precedent, furthering the divisive dialogue regarding the Court’s legitimacy.[172]
The Supreme Court first considered race-based affirmative action in 1974 in Regents of the University of California v. Bakke.[173] Then, Justice Powell ruled that these programs must be reviewed under strict scrutiny.[174]Bakke informed the Court’s decisions in Grutter v. Bollinger and Gratz v. Bollinger, the next time the Supreme Court discussed affirmative action.[175] In these cases, the Court held that the Equal Protection Clause allowed race to be considered in higher education admissions.[176] Specifically, the Court found that universities have a compelling interest in a diverse student body.[177] The Court reviewed these programs again in Fisher v. University of Texas.[178] The Court upheld the university’s “race-conscious admissions policy.”[179]
Despite these precedents, many observers still predicted this Supreme Court to rule in favor of Students for Fair Admissions—that considering race in higher education admissions is unconstitutional.[180] This prediction came to fruition when, 241 days after oral arguments took place, the Supreme Court reversed decades of precedent and declared race-based affirmative action unconstitutional because it violates the Equal Protection Clause.[181] The Supreme Court waited to release the decision until seven days after the last scheduled event of the October 2022 Term.[182]
Chief Justice Roberts, the author of the majority opinion, and staunch critic of affirmative action, wrote, “Many universities have for too long . . . 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.”[183] Justice Sotomayor responded by saying “the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”[184]
However, Chief Justice Roberts did not completely seal off the discussion of race in admissions, writing “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life.”[185] Regardless, universities around the nation can no longer use diversity as a rationale for the admissions process.[186]
As the Court continues to upend settled law, observers are starting to lose faith in the Court. Once viewed as a prestigious, non-partisan body, the Court is now being seen through a new lens, one colored by politics. From 1789 to 2020, 25,544 Supreme Court opinions were issued.[187] During that time, the Court reversed itself only 145 times.[188] Recently, however, we have seen the Court overturn a line of cases twice in just one year.[189] This behavior is not just being called to attention by the public and legal minds, but by the Supreme Court itself. Sitting Supreme Court Justices are beginning to agree with the criticism and the concerns of the erosion of the Court’s legitimacy.[190] Justice Sotomayor described Students for Fair Admissions as an “unjustified exercise of power.”[191] Additionally, Justice Sotomayor claims, and many practitioners and academics agree, that the Court is moving the goal posts in order to reach its own desired outcome.[192] If this practice continues, one can only wonder if any of our rights are truly “settled.”
2. The Hypothetical Case with Standing: 303 Creative LLC v. Elenis
Another controversial case of the October 2022 Term was 303 Creative LLC v. Elenis. The Supreme Court heard oral arguments for this case on December 3, 2022.[193] The Court eventually ruled on June 30, 2023—207 days after oral arguments and eighty-three days longer than the average time. Cases with similar oral argument dates were decided between February and April, three to five months before 303 Creative was decided.[194]
303 Creative concerned a website designer who sought to expand her business to crafting wedding websites but asserted that designing wedding websites for same-sex couples would violate her religious beliefs.[195] However, at the time, a refusal to do so would violate Colorado Law.[196] 303 Creative’s controversy does not begin with the facts of the case, but with its procedural posture. The designer filed suit before any interaction with Colorado law, leading many commentators to call this a “fake” or “made-up” case.[197] Some have gone as far to claim that the case is “a world of pure hypotheticals”[198] or “simply a vehicle to manufacture an excuse for this Supreme Court to open the floodgates of legalized discrimination.”[199] The District Court agreed to an extent, finding that the designer lacked standing to bring certain claims.[200] However, the Tenth Circuit agreed to hear the merits of the case, along with the Supreme Court.[201]
The Supreme Court held that the Colorado law did in fact violate the designer’s First Amendment right to free speech.[202] The majority opinion, penned by Justice Gorsuch, claimed 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”[203] Justice Gorsuch said that the First Amendment protects from having to choose between free speech or violating the law or their religious beliefs.[204]
Many criticize this case for abridging the rights of the LGBTQIA+ community on a “what if.”[205] This decision also faced backlash as being “a green light for people to engage in what was previously understood as discrimination.”[206] Others opine that 303 Creative is far too tailored to sanction such widespread discrimination.[207] However, legal experts state that the case could consequently stand as precedent for such discrimination in the future.[208] Obviously, the impact of this case was well known to the Supreme Court. Because of this, the Court held onto this decision until the last possible moment and waited to rule so they could run. This decision was released over a week after the last scheduled activity for the October 2022 Term.[209]
III. Applying Recent Trends to Predict on Which Cases the Supreme Court will Rule Before It Runs
When viewed through the lens of the past two Terms, there is little doubt that it will be late June before we will hear the decisions of the most controversial cases of the October 2023 Term. The only difference is that instead of a docket full of hot-button issues, this Term’s docket consists of an abundance of federal regulatory cases. The Court is set to hear arguments on the powers of various federal agencies, including the Securities and Exchange Commission, the National Marine Fisheries Service, and the Consumer Financial Protection Bureau.[210] The current Supreme Court has slowly been trimming the power of administrative agencies, and it is expected to continue the trend this Term.[211] However, it wouldn’t be the Supreme Court without a few contentious cases that the whole nation will scrutinize. Thus, the Court is also set to hear cases regarding expanding gun rights for people subject to domestic violence restraining orders, and regulations on social media.[212]
Preeminent constitutional law scholar Erwin Chemerinsky remarked:
We are in the midst of dramatic changes in many areas of constitutional law. Thirty years ago, I wrote the first edition of a constitutional law casebook. I have just completed the seventh edition, and never has so much changed from the prior edition or since I began writing the book.[213]
Chemerinsky adds that three areas will be exceptionally important in the October 2023 Term: administrative agency power, gun rights, and social media.[214]
Beginning with administrative law, Chemerisnky posits that Securities and Exchange Commission v. Jarkesy has the potential to radically change administrative law.[215] The Fifth Circuit held in Jarkesy that Congress granted unconstitutional authority to the Securities and Exchange Commission (SEC) because Congress proffered no intelligible principle to guide the SEC’s use of its delegated power to adjudicate securities violations.[216] Additionally, the Fifth Circuit found that the SEC’s administrative proceedings violated the Seventh Amendment and such proceedings are unconstitutional if they are against those violating federal law.[217] After the Fifth Circuit denied the SEC’s petition for en banc rehearing, the Supreme Court all but begged to hear the case.[218] Justice Alito extended SEC’s deadline to file its petition for certiorari twice until the SEC finally appealed the Fifth Circuit’s decision during the second extension period.[219]
Should the Supreme Court agree with the Fifth Circuit, there will be manifold ripple effects, reaching innumerable federal agencies.[220] This ruling would severely limit every administrative agency’s power to enforce federal law.[221] It would also constitute a departure from the general flow of administrative law—the last time federal agency power has been drastically limited was over ninety years ago.[222]
Another significant administrative agency case—perhaps the most important—on the Court’s docket this term is Loper Bright Enterprises v. Raimondo.[223] Loper sets up the Court to overrule the powerful 1984 decision of Chevron v. Natural Resources Defense Council.[224] That case granted strong deference to federal agencies’ decision-making in exercising their authority under federal law, commonly referred to as “Chevron Deference.”[225]
Chevron is one of the most cited cases in Supreme Court history, despite only being decided forty years ago.[226] Overruling Chevron could have an enormous impact on the function and power of administrative agencies. Commenters opine that this is just another case in “an ongoing deregulatory effort leveraging litigation, along with strong judicial skepticism of the administrative state, to restrain federal agencies from effectively implementing the law.”[227] The effect is not just limited to the agency; it can also create a domino effect that ends at Congress. The curbing of administrative agency power will also severely limit Congress’ ability to turn to these agencies’ technical and specialized expertise.[228] With the growing concern of a partisan bench, observers note that without Chevron deference, judges will have “free rein to implement their own partisan policy agendas and disregard scientific analysis, the opinions of policy experts, and the will of Congress.”[229]
The power of other administrative agencies is also on the chopping block. The Supreme Court will also hear cases related to the Consumer Financial Protection Bureau[230] and the Food and Drug Administration.[231] As it relates to the Consumer Financial Protection Bureau, the Court will decide whether certain funding practices violate the Constitution.[232] The FDA, on the other hand, is facing a challenge to its actions in 2016 and 2021 regarding the drug mifepristone—specifically whether certain decisions were arbitrary and capricious.[233]
While the aforementioned cases have the potential for significant legal impacts, and therefore are likely to be retained until the end of the term, this Article predicts that United States v. Rahimi and the consolidated cases of Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton will be two of the last cases decided by the Supreme Court in 2024.
In United States v. Rahimi, relying on the recently decided Bruen case,[234] the Fifth Circuit declared unconstitutional a federal law that criminalized owning a firearm by those who were subject to an active domestic violence restraining order.[235] In that case, the defendant had an active restraining order after assaulting his ex-girlfriend,[236] threatening “to shoot her if she told anyone about the assault.”[237] Then, the police searched the defendant’s home in furtherance of an investigation into a recent series of shootings.[238] After finding the defendant in possession of firearms, he was convicted and sentenced to six years in prison.[239]
The Fifth Circuit reversed the defendant’s conviction and held that because the Second Amendment did not have domestic violence-related restrictions when the Amendment was ratified, there are no grounds to apply such restrictions now.[240] Furthermore, the Fifth Circuit held that Bruen forecloses any discussion of policy goals in deciding the case, but hints that perhaps, pre-Bruen, the court could have found that the societal benefits outweigh the burden on the defendant’s Second Amendment rights.[241]
As the Supreme Court gears up to address this issue, the public has already started to weigh in. Gun rights activists claim that those who are subject to a restraining order have not actually been convicted of a crime, suggesting possible due process issues with the subsequent infringement on their Second Amendment rights.[242] Yet, legal experts claim that it isn’t that simple to receive a domestic violence restraining order.[243] Instead, not only does the target of the order have an opportunity to participate in the hearing, a court must find that the person is a credible threat against their partner.[244] Rahimi will also give the Supreme Court a chance to elaborate further on the new Second Amendment interpretation strategy that Bruen set forth.
Another case on the Supreme Court’s docket concerns something that almost everyone interacts with on a daily basis: social media. The Court has granted certiorari to Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton to determine whether content moderation on social media and deplatforming violates the First Amendment.[245]
These cases involve Florida and Texas laws that were enacted in response to the states’ beliefs that social media platforms were censoring conservative users.[246] In Texas, the law bars social media platforms from “censor[ing] users or content based on viewpoint or the user’s geographic location in the state.”[247] The Florida law prohibits platforms from banning political candidates.[248] The Fifth Circuit upheld the Texas law,[249] whereas the Eleventh Circuit blocked the Florida law from taking effect.[250]
This circuit split is a prime opportunity for the Supreme Court to expand or limit our First Amendment rights. One side asserts that the First Amendment is not applicable because “no reasonable viewer could possibly attribute what a user says to the [p]latforms themselves.”[251] Additionally, Texas claims that social media is just the modern version of traditional common carriers, meaning that the company generally must accept all customers.[252] However, in an earlier encounter with this issue, Justice Alito stated that “[s]ocial media platforms have transformed the way people communicate with each other and obtain news,” leaving the issue ripe for Supreme Court consideration.[253] In the United States’ amicus brief, the United States urges the Supreme Court to rule in the companies’ favor: “When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment.”[254]
In the past years, social media’s role in news, information and misinformation, and political debates has only increased. This case before the Court will decide how much power the state and federal government can have over these issues. While we are eager to hear how the Court will rule, we will likely have to wait until June before our questions are answered.
Conclusion
Recent Terms indicate that the Supreme Court is purposefully holding off on releasing controversial decisions until the end of the Term. What is not clear is why. One possible reason is the safety of the Justices. As discussed above, protesting on the steps of the courthouse has increased recently, leading to an elevation of security measures both at the Court and around the Justices’ own homes. Justice Kavanaugh knows firsthand how far people’s opinions on these cases will take them. Another possible reason is magnification of the view that the Supreme Court is no longer as non-partisan as it claims. Coupled with the fact that more and more issues are being politicized, the Supreme Court has become the target of much criticism and many allegations. Conceivably, it could be easier for the Justices to deliberate over other, less public-instigating cases without the public outcry from a recently released controversial decision. Perhaps it is just easier for the Court to function in a given Term without the constant barrage of public opinion.
Over the past two Terms, we have seen the contentious cases being released in late June. That leads this Article to conclude that we will not see the decision of Rahimi, Loper, Jarkesy, and Moody and Paxton until such time. Of course, this proposition is just speculation. However, there is one thing we can predict about this Term with near certainty. The Supreme Court will rule. And then it will run.
Footnotes:
*J.D. Candidate 2024, Loyola University New Orleans College of Law; BA in Chinese and International Business 2020, Clemson University. The idea for this Article started last summer with a humorous observation about the U.S. Supreme Court's tendency to "rule and run" after deciding contentious cases. Like all good jokes, however, the observation seemed to contain some truth. After some cursory research, a pattern emerged that begged to be explored. This piece is that exploration. Special thanks to the Loyola Law Review Online Team for their indispensable assistance in developing an offhand joke into an article.
[1] N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
[2] Becerra v. Empire Health Found., for Valley Hosp. Med. Ctr., 142 S. Ct. 2354 (2022); American Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022); Marietta Mem’l Hosp. Emp. Health Benefit Plan v. DaVita Inc., 142 S. Ct. 1986 (2022).
[3] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
[4] United States v. Taylor, 142 S. Ct. 2015 (2022).
[5] Carson v. Makin, 142 S. Ct. 1987 (2022); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).
[6] Garland v. Gonzalez, 142 S. Ct. 2057 (2022); Johnson v. Arteaga-Martinez, 142 S. Ct. 1827 (2022); Biden v. Texas, 142 S. Ct. 2528 (2022).
[7] West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587 (2022).
[8] See discussion infra Section II.A.
[9] Allen v. Milligan, 599 U.S. 1 (2023); Moore v. Harper, 600 U.S. 1 (2023).
[10] Students for Fair Admissions, Inc v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023).
[11] Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166 (2023).
[12] Haaland v. Brackeen, 599 U.S. 255 (2023); Arizona v. Navajo Nation, 599 U.S. 555 (2023).
[13] 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).
[14] Dep’t of Educ. v. Brown, 600 U.S. 551 (2023); Biden v. Nebraska, 600 U.S. 477 (2023).
[15] Pugin v. Garland, 599 U.S. 600 (2023); United States v. Hansen, 599 U.S. 572 (2023).
[16] See discussion infra Section II.B.
[17] See Students for Fair Admissions, 143 S. Ct. 2141; 303 Creative, 600 U.S. 570.
[18] See, e.g., Jacqueline Thomsen, Judge Sentences Abortion Rights Protesters Who Disrupted U.S. Supreme Court, Reuters (Jan 13, 2023, 5:43 PM), https://www.reuters.com/legal/government/judge-sentences-abortion-rights-protesters-who-disrupted-us-supreme-court-2023-01-13/; Amy Howe, Security Fencing Around Court Is Removed, but Building Remains Closed to Public, SCOTUSblog (Aug. 29, 2022, 4:23 PM), https://www.scotusblog.com/2022/08/security-fencing-around-court-is-removed-but-building-remains-closed-to-public/.
[19] Ken Klippenstein, After Overturning Roe v. Wade, SCOTUS Treats Itself to Sprawling Security Detail, Intercept (June 27, 2023, 5:29 PM), https://theintercept.com/2023/06/27/supreme-court-security-us-marshals-abortion/.
[20] See discussion infra Part I.
[21] See discussion infra Part II.
[22] See discussion infra Part IV.
[23] The Court and Its Procedures, Sup. Ct. U.S., https://www.supremecourt.gov/about/procedures.aspx (last visited Jan. 18, 2023).
[24] Id.
[25] Id.
[26] Id.; Supreme Court Procedures, U.S. Cts., https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (last visited Jan. 27, 2024); The U.S. Supreme Court, Jud. Learning Ctr., https://judiciallearningcenter.org/the-us-supreme-court/ (last visited Jan. 27, 2024).
[27] Oral Arguments, Sup. Ct. U.S., https://www.supremecourt.gov/oral_arguments/oral_arguments.aspx (last visited Jan. 29 2024).
[28] Id.
[29] Supreme Court Procedures, supra note 26.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. (“All opinions of the Court are, typically, handed down by the last day of the Court’s term . . . . With the exception of this deadline, there are no rules concerning when decisions must be released.”).
[39] See discussion infra Section II.A.
[40] See Roe v. Wade, 410 U.S. 113, 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022); Buckley v. Valeo, 424 U.S. 1, 1 (1976) (per curiam); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 310 (2010).
[41] Roe, 410 U.S. at 113.
[42] Id. at 154.
[43] Id. at 116.
[44] Id. at 113.
[45] See Buckley v. Valeo, 519 F.2d 821, 913 (D.C. Cir. 1975), aff’d in part per curiam, 424 U.S. 1 (1976).
[46] Buckley v. Valeo, 424 U.S. 1, 6 (1976) (per curiam).
[47] See id. at 1.
[48] See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 310 (2010); Tim Lau, Citizens United Explained, Brennan Ctr. Just. (Dec. 12, 2019), https://www.brennancenter.org/our-work/research-reports/citizens-united-explained.
[49] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365 (2010).
[50] See Buckley, 424 U.S. at 1.
[51] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969).
[52] Id. at 510 n.4 (internal quotation mark omitted).
[53] See id. at 503.
[54] Gideon v. Wainwright, 372 U.S. 335, 343, 345 (1963).
[55] See, e.g., 60 Years Later, Gideon’s Legacy Lives On, U.S. Cts. (Mar. 16, 2023), https://www.uscourts.gov/news/2023/03/16/60-years-later-gideons-legacy-lives (“In addition to its impact on state courts, Gideon opened a period of intense activity to ensure competent counsel for federal defendants.”).
[56] See Gideon, 372 U.S. at 335.
[57] See Schenk v. United States, 249 U.S. 47, 47 (1919).
[58] Robert L. Tsai, Fire, Metaphor, and Constitutional Myth-Making, 93 Geo. L.J. 181, 195 (2004).
[59] See Schenk, 249 U.S. at 52; see also, e.g., Brandenburg v. Ohio, 395 U.S. 444, 450–52 (1969) (Douglas, J., concurring).
[60] See Schenk, 249 U.S. at 47.
[61] Several other cases also indicate this lack of history. Obergefell v. Hodges, when the Court ruled same-sex marriages legal nationwide, took the court only fifty-nine days to release a decision. See Obergefell v. Hodges, 576 U.S. 644, 644 (2015). Similarly, the Court took sixty-three days to rule interracial marriages legal in Loving v. Virginia. See Loving v. Virginia, 388 U.S. 1, 1 (1967). The decision of Heart of Atlanta Motel, Inc. v. United States was released seventy days after oral argument. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 241 (1964). Additionally, Texas v. Johnson, the notorious flag burning case, was decided within eighty-seven days. See Texas v. Johnson, 491 U.S. 397, 397 (1989). Finally, the decisions of both Burwell v. Hobby Lobby Stores, Inc. and National Federation of Independent Business v. Sebelius were released within ninety-two days. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 682 (2014); Nat’l Fed’n of Indep. Bus v. Sebelius, 567 U.S. 519, 519 (2012).
[62] October Term 2021, SCOTUSblog, https://www.scotusblog.com/case-files/terms/ot2021/ (last visited Jan. 27, 2024).
[63] Id.
[64] Id.
[65] See id.
[66] Id.
[67] See generally Ashish Gulati, How to Interpret R Squared and Goodness of Fit in Regression Analysis, Knowledgehut (Jan. 17, 2024), https://www.knowledgehut.com/blog/data-science/interpret-r-squared-and-goodness-fit-regression-analysis.
[68] The R2 value is measured on a scale of 0–100% and is used in regression analysis as an indicator for when a data set may or may not demonstrate a relationship. Id. An R2 value of 0% demonstrates no relationship between the independent and dependent variable while an R2 of 100% suggests a stronger relationship between the values. Id. In other words, the lower the value, the less likely the data corresponds to a meaningful relationship.
[69] Supreme Court Procedures, supra note 26.
[70] See Adam Liptak, Back on the Bench, the Supreme Court Faces a Blockbuster Term, N.Y. Times, https://www.nytimes.com/2021/10/03/us/politics/supreme-court-new-term.html (Dec. 1, 2021).
[71] See Madeleine Carlisle, The Major Supreme Court Cases to Watch This Fall, TIME (Sept. 29, 2021, 3:06 PM), https://time.com/6102509/supreme-court-cases-to-watch-2021/.
[72] Ariana de Vogue, Supreme Court’s New Term Could See Landmark Rulings on Abortion, Guns and Vouchers, CNN, https://www.cnn.com/2021/10/03/politics/supreme-court-term-opener/index.html (Oct. 4, 2021).
[73] Id.
[74] Liptak, supra note 70.
[75] Id.
[76] Id.
[77] Id. (internal quotation marks omitted).
[78] See e.g., id.; de Vogue, supra note 72.
[79] See Bruen, 597 U.S. 1.
[80] See Dobbs, 597 U.S. 215.
[81] See United States v. Tsarnaev, 595 U.S. 302 (2022).
[82] See United States v. Zubaydah, 595 U.S. 195 (2022).
[83] See Ramirez v. Collier, 595 U.S. 411 (2022); Carson v. Makin, 142 S. Ct. 1987 (2022); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022); see also Liptak, supra note 70.
[84] October Term 2021, supra note 62.
[85] See Ariane de Vogue, Supreme Court Rushes to End a Term like No Other, CNN, https://www.cnn.com/2022/06/20/politics/supreme-court-june-preview/index.html (June 21, 2022, 1:14 PM); Brannon P. Denning & Glenn H. Reynolds, Retconning Heller: Five Takes on New York State Rifle & Pistol Association, Inc. v. Bruen, 65 Wm. & Mary L. Rev. 79, 82 (2023) (“[Bruen] was one of the most highly anticipated cases of the 2021-22 Term.”). The Court also ruled on other controversial cases during this term: Kennedy v. Bremerton School District, Biden v. Texas, and Carson v. Makin. Carson was decided on June 21, 2022; Kennedy was decided on June 27, 2022; and Biden was decided June 30, 2022. October Term 2021, supra note 62.
[86] See e.g., Ian Millhiser, The Supreme Court Case that Could Gut America’s Gun Laws, Explained, Vox (Oct. 27 2021, 8:30 AM), https://www.vox.com/22745312/supreme-court-guns-second-amendment-nyc-bruen.
[87] Bruen, 597 U.S. at 1.
[88] October Term 2021, supra note 62. The Supreme Court held oral arguments on Whole Woman’s Health v. Jackson and United States v. Texason November 1, 2021, two days before Bruen. Id. Those cases were decided on December 10, 2021. Id. Oral arguments on Houston Community College System v. Wilson and Badgerow v. Walters were held on November 2, 2021, one day before Bruen, and the decisions were released on March 24, 2022 and March 31, 2022, respectively. Id. Cases that were heard after Bruen had decisions released before the Bruen decision’s release date. Id. The decisions of the three cases that held oral arguments days after Bruen were released in February and March. Id.
[89] Ariana de Vogue, Supreme Court May Soon Loosen Gun Laws as Nation Reels from Massacres, CNN, https://www.cnn.com/2022/05/25/politics/supreme-court-second-amendment-guns-new-york-bruen-uvalde/index.html (May 26, 2022, 6:42 AM) (depicting a demonstrator holding American and National Rifle Association Flags); Millhiser, supra note 86 (depicting a demonstrator holding a sign with “NRA” behind the general prohibition symbol); Amy Howe, In Major Second Amendment Case, Court Will Review Limits on Carrying a Concealed Gun in Public, SCOTUSblog (Oct. 27, 2021, 10:51 AM), https://www.scotusblog.com/2021/10/in-major-second-amendment-case-court-will-review-limits-on-carrying-a-concealed-gun-in-public/ (depicting supporters of gun regulations holding a sign that says “300+ Gun Safety Laws Passed Since 2013); Eric Ruben, First Major Second Amendment Case Before the Supreme court in Over a Decade Could Topple Gun Restrictions, Conversation (Oct. 6, 2021, 3:16 PM), https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703 (depicting a demonstrator holding a sign that says ‘Gun Laws Save Lives”).
[90] de Vogue, supra note 89.
[91] Id.
[92] Id.
[93] Millhiser, supra note 86 (“[T]he right to own a gun is . . . weak enough that state and local governments can prevent most americans from carrying a gun on city streets and in other heavily populated areas.”).
[94] See, e.g., Denning & Reynolds, supra note 85; see also District of Columbia v. Heller, 554 U.S. 570 (2008).
[95] See Bruen, 597 U.S. at 11. This law has been in place for 108 years. Millhiser, supra note 86.
[96] Bruen, 597 U.S. at 16.
[97] Millhiser, supra note 86.
[98] Jessica Gresko, High Court Seems Ready to Strike Down New York Gun Law, AP (Nov. 3, 2021 4:09 PM), https://apnews.com/article/us-supreme-court-new-york-los-angeles-gun-politics-d7481cb9fd55626abec33e50f1b1a639.
[99] See Brief for The DC Project et al. as Amici Curiae Supporting Petitioners at 1, Bruen, 597 U.S. 1 (No. 20-843).
[100] See Brief for Arizona et al. as Amici Curiae Supporting Petitioners at 2, Bruen, 597 U.S. 1 (No. 20-843).
[101] See Brief for United States Senator Ted Cruz et al., as Amici Curiae Supporting Petitioners at 2, Bruen, 597 U.S. 1 (No. 20-843).
[102] Id. at 3.
[103] See Brief for Giffords Law Center to Prevent Gun Violence as Amicus Curiae Supporting Respondents at 4–5, Bruen, 597 U.S. 1 (No. 20-843).
[104] Id. at 5.
[105] Id.
[106] See Brief for the City of New York as Amicus Curiae Supporting Respondents at 1, Bruen, 597 U.S. 1 (No. 20-843); Brief for American Medical Association et al. as Amicus Curiae Supporting Respondents at 4, Bruen, 597 U.S. 1 (No. 20-843); Brief for Citizens Crime Commission of New York City as Amicus Curiae Supporting Respondents at 9, Bruen, 597 U.S. 1 (No. 20-843); Brief for the City of Chicago et al. as Amici Curiae Supporting Respondents at 1–2, Bruen, 597 U.S. 1 (No. 20-843); Brief for the American Bar Association as Amicus Curiae Supporting Respondents at 4, Bruen, 597 U.S. 1 (No. 20-843); Brief For the Partnership for New York City as Amicus Curiae Supporting Respondents at 2, Bruen, 597 U.S. 1 (No. 20-843).
[107] Brief for Corpus Linguistics Professors and Experts as Amici Curiae Supporting Respondents at 3–4, Bruen, 597 U.S. 1 (No. 20-843).
[108] Id.
[109] See Unopposed Motion for Leave to File Brief and Brief for Criminal Legal Scholars as Amici Curiae Supporting Respondents, Bruen, 597 U.S. 1 (No. 20-843).
[110] Id. at 3–4.
[111] Bruen, 597 U.S. at 2, 71.
[112] See id. at 71.
[113] See Sup. Ct. U.S., Supreme Court Calendar: October Term 2021 (2021), https://www.supremecourt.gov/oral_arguments/2021TermCourtCalendar.pdf.
[114] Dobbs, 597 U.S. at 215.
[115] See October Term 2021, supra note 62.
[116] Id. The Supreme Court held oral arguments on Hughes v. Northwestern University on December 6, 2021, five days after Dobbs. Id.However, the Court decided Hughes on January 24, 2022, exactly five months before deciding Dobbs. Id.
[117] See Associated Press, Abortion Rights Protesters Briefly Interrupt Supreme Court Arguments, PBS (Nov. 2, 2022, 2:38 PM), https://www.pbs.org/newshour/politics/abortion-rights-protesters-briefly-interrupt-supreme-court-arguments; Liptak, supra note 70.
[118] See, e.g., Thomsen, supra note 18.
[119] Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows, Politico, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 (May 3, 2022, 2:14 PM).
[120] Id. This quote remained unchanged in the official Dobbs decision. See Dobbs, 597 U.S. at 231.
[121] Gerstein & Ward, supra note 119. This quote likewise remained unchanged in the official Dobbs decision. See Dobbs, U.S. at 232.
[122] Gerstein & Ward, supra note 119.
[123] Morgan Winsor, Nation Reacts to Leaked Draft Supreme Court Decision that Could Overturn Roe v. Wade, ABC News (May 3, 2022, 9:22 AM), https://abcnews.go.com/Politics/nation-reacts-leaked-draft-supreme-court-decision-overturn/story?id=84463079.
[124] Gerstein & Ward, supra note 119.
[126] Id.
[127] See, e.g., Thomsen, supra note 18 (“National protests erupted after a draft version of the U.S. Supreme Court’s decision in Dobbs was leaked last April . . . .”).
[128] Amy Howe, supra note 18.
[129] Klippenstein, supra note 19.
[130] Id.; see also S. 4160, 117th Cong. (2022).
[131] Klippenstein, supra note 19; see also S. 4160, 117th Cong. (2022).
[132] Klippenstein, supra note 19; see also S. 4160.
[133] Gerstein & Ward, supra note 119.
[134] See, e.g., Amy Howe, Supreme Court Investigators Fail to Identify Who Leaked Dobbs Opinion, SCOTUSblog (Jan 19, 2023), https://www.scotusblog.com/2023/01/supreme-court-investigators-fail-to-identify-who-leaked-dobbs-opinion/.
[135] Gerstein & Ward, supra note 119.
[136] Id. (internal quotation marks omitted).
[137] Id.
[138] See id.; Dobbs, 597 U.S. at 215.
[139] Amy Howe, Roe v. Wade Hangs in Balance as Reshaped Court Prepares to Hear Biggest Abortion Case in Decades, SCOTUSblog (Nov. 29, 2021, 8:00 AM), https://www.scotusblog.com/2021/11/roe-v-wade-hangs-in-balance-as-reshaped-court-prepares-to-hear-biggest-abortion-case-in-decades/.
[140] Id.
[141] Dobbs, 597 U.S. 215.
[142] See Sup. Ct. U.S., supra note 113.
[143] John Keefe et al., Track Changes Between the Abortion Decision and the Leaked Draft, CNN (June 27, 2022), https://www.cnn.com/interactive/2022/06/us/supreme-court-abortion-dobbs-decision-changes/.
[144] Dobbs, 597 U.S. at 231 (internal quotation marks omitted).
[145] Id. at 268.
[146] Madison Alder, Alicia Diaz, & Maia Spoto, Protesters Arrested at Supreme Court Abortion Rights Rally (2), Bloomberg L. (June 30, 2022, 3:29 PM), https://news.bloomberglaw.com/us-law-week/supreme-court-draws-abortion-rights-protesters-to-street-sitdown.
[147] Id.; Howe, supra note 18.
[148] Demonstrators Converge Outside Supreme Court After Dobbs Decision, SCOTUSblog (June 24, 2022, 6:33 PM), https://www.scotusblog.com/2022/06/demonstrators-converge-outside-supreme-court-after-dobbs-decision/.
[149] Id.
[150] October Term 2022, SCOTUSblog, https://www.scotusblog.com/case-files/terms/ot2022/ (last visited Jan. 27, 2024).
[151] Id.
[152] Id.
[153] Id.
[154] See supra Section II.A.
[155] See supra note 68.
[156] Ariane de Vogue, Takeaways from the Latest Controversial and Contentious Supreme Court Term, CNN, https://www.cnn.com/2023/07/01/politics/supreme-court-term-takeaways/index.html (July 1, 2023, 2:27 PM).
[157] See Morgan Marietta, The Supreme Court Is Back in Session, with New Controversial Cases that Stand to Change Many Americans’ Lives – Here’s What to Expect, Conversation (Sept. 20, 2022, 3:19 PM), https://theconversation.com/the-supreme-court-is-back-in-session-with-new-controversial-cases-that-stand-to-change-many-americans-lives-heres-what-to-expect-190819.
[158] Nina Totenberg, The Supreme Court Will Begin a New Term with More Contentious Cases on Its Docket, NPR (Oct. 3, 2022, 5:00 am), https://www.npr.org/2022/10/03/1126041958/supreme-court-new-term.
[159] Id.
[160] Id.
[161] Id.
[162] Id. (third alteration in original) (internal quotation marks omitted).
[163] Id. (internal quotation marks omitted).
[164] See id.
[165] de Vogue, supra note 156; Marietta, supra note 157.
[166] See, e.g., de Vogue, supra note 156; Totenberg, supra note 158; Marietta, supra note 157; Shay Dvoretzky & Emily Kennedy, Surprises Abound in Supreme Court’s 2022 Term, Reuters (July 24, 2023, 10:54 AM), https://www.reuters.com/legal/litigation/surprises-abound-supreme-courts-2022-term-2023-07-24/.
[167] See Students for Fair Admissions, 143 S. Ct. 2141.
[168] Id.
[169] See October Term 2022, supra note 150.
[170] Id. The Supreme Court heard oral arguments for Helix Energy Solutions Group v. Hewitt earlier in that month, but the decision was released February 22, 2023. Id. The Court heard oral arguments for Cruz v. Arizona the day after Fair Admissions, and that decision was announced on February 22, 2023. Id. Finally, two days after Fair Admissions, the Court heard Bittner v. United States. Id. That case was decided on February 28, 2023. Id.
[171] Adam Liptak, Supreme Court Seems Ready to Throw Out Race-Based College Admissions, N.Y. Times, https://www.nytimes.com/2022/10/31/us/supreme-court-harvard-unc-affirmative-action.html (Nov. 1, 2022).
[172] Id.
[173] See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978); Margaret Kruzner, Redlining Reimagined: Exploring “Race-Neural Alternatives” in the Likely Wake of Affirmative Action, 18 Duke J. Const. Law & Pub. Pol’y 323, 331 (2023).
[174] Bakke, 438 U.S. at 290-91; Kruzner, supra note 173, at 332.
[175] See Grutter v. Bollinger, 539 U.S. 306, 322 (2003); Gratz v. Bollinger, 539 U.S. 244, 271 (2003); Kruzner, supra note 173, at 332.
[176] Grutter, 539 U.S. at 343; Gratz, 539 U.S. at 275; April J. Anderson, Cong. Rsch. Serv., LSB10893, The Supreme Court Strikes down Affirmative Action at Harvard and the University of North Carolina 1 (2023).
[177] Grutter, 539 U.S. at 343; Gratz, 539 U.S. at 275; Anderson, supra note 176, at 1.
[178] Fisher v. Univ. of Tex., 579 U.S. 365, 369 (2016); Anderson, supra note 176, at 2.
[179] Fisher, 579 U.S. at 388; Anderson, supra note 176, at 2.
[180] Students for Fair Admissions, 143 S. Ct. at 2175.
[181] Id.
[182] Sup. Ct. U.S., Supreme Court Calendar: October Term 2022 (2022), https://www.supremecourt.gov/oral_arguments/2022TermCourtCalendar_rev1.pdf.
[183] Students for Fair Admissions, 143 U.S. at 2176.
[184] Id. at 2177 (Sotomayor, J., dissenting).
[185] Id. at 2176 (majority opinion).
[186] Nina Totenberg, Supreme Court Guts Affirmative Action, Effectively Ending Race-Conscious Admissions, npr, https://www.npr.org/2023/06/29/1181138066/affirmative-action-supreme-court-decision (June 29, 2023).
[187] David Schultz, The Supreme Court Has Overturned Precedent Dozens of Times, Including Striking Down Legal Segregation and Reversing Roe, Conversation (June 30, 2022, 8:22 AM), https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-including-striking-down-legal-segregation-and-reversing-roe-185941.
[188] Id.
[189] See Students for Fair Admissions, 143 S. Ct. 2141; Dobbs, 597 U.S. 215.
[190] Hassan Kanu, Even Some Justices are Raising Question About the U.S. Supreme Court’s Legitimacy, Reuters (July 10, 2023, 3:0 PM), https://www.reuters.com/legal/government/column-even-some-justices-are-raising-questions-about-us-supreme-courts-2023-07-10/.
[191] Students for Fair Admissions, 143 S. Ct. at 2263 (Sotomayor, J., dissenting).
[192] Id. at 2239; Kanu, supra note 190.
[193] 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2298 (2023).
[194] October Term 2022, supra note 150. The Supreme Court decided a case it heard just the day after 303 Creative on February 22, 2023, five months before 303 Creative. Id. The Supreme Court also issued a decision in March and April of cases they heard five days before, and the same day of 303 Creative, respectively. Id.
[195] 303 Creative, 143 S. Ct. at 2308–09.
[196] Id.
[197] Richard M. Re, Does the Discourse on 303 Creative Portend a Standing Realignment?, 99 Notre Dame L. Rev. Online 67, 84 (2023).
[198] Adam Liptak, A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court, N.Y. Times (Dec. 4, 2022), https://www.nytimes.com/2022/12/04/us/politics/gay-rights-supreme-court-first-amendment.html.
[199] Mark Joseph Stern, The Real Story of 303 Creative v. Elenis, Slate (June 1, 2023, 5:52 AM), https://slate.com/news-and-politics/2023/06/real-story-behind-gay-marriage-case.html.
[200] Kenji Yoshino, Rights of First Refusal, 137 Harv. L. Rev. 244, 247 (2023).
[201] Id.
[202] 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2321–22 (2023).
[203] See id. at 2321.
[204] Id. at 2313.
[205] See, e.g., Laura K. Chapin, 303 Creative: A Fake Case with Real Consequences, Colo. Newsline (July 3, 2023, 1:29 PM), https://coloradonewsline.com/2023/07/03/303-creative-a-fake-case-with-real-consequence/.
[206] Solcyré Burga, The Implications of Supreme Court’s 303 Creative Decision are Already Being Felt, Time (July 16, 2023, 12:32 PM), https://time.com/6295024/303-creative-supreme-court-future-implications/ (quoting Katherine Franke, Professor of Law and Director of the Center for Gender & Sexuality Law at Columbia University).
[207] Id. (“It’s not reasonable to interpret 303 Creative to allow that salon to engage in discrimination.”).
[208] Id.
[209] Sup. Ct. U.S., supra note 182.
[210] See Nina Totenberg, The Controversial Cases that Lie Ahead in the Supreme Court’s New Term, npr (Oct. 2, 2023, 4:30 PM), https://www.npr.org/2023/10/02/1203097235/the-controversial-cases-that-lie-ahead-in-the-supreme-courts-new-term.
[211] See id.
[212] See United States v. Rahimi, 143 S. Ct. 2688 (2023); NetChoice, LLC v. Paxton, No. 22-555, 2023 U.S. LEXIS 2953 (U.S. Sept. 29, 2023); Moody v. NetChoice, LLC, No. 22-277, 2023 U.S. LEXIS 2964 (U.S. Sept. 29, 2023).
[213] Erwin Chemerinsky, Chemerinsky: Big Cases in Administrative Law, Gun Rights and Social Media are Scheduled for October Term, ABA J. (Sept. 27, 2023, 10:21 AM), https://www.abajournal.com/columns/article/chemerinsky-supreme-court-to-consider-big-cases-in-administrative-law-gun-rights-internet-and-social-media?utm_sour.
[214] Id.
[215] Id.
[216] Sydney G. Rusovich, Note, Jarkesy v. SEC: The U.S. Fifth Circuit’s Crucial Challenge to Administrative Agency Adjudicative Authority, 69 Loy. L. Rev. 577, 579 (2023).
[217] Chemerinsky, supra note 213.
[218] See Rusovich, supra note 216, at 579.
[219] Id.
[220] Chemerinsky, supra note 213; Rusovich, supra note 216, at 599.
[221] Chemerinsky, supra note 213.
[222] See id.
[223] Id.
[224] Id.
[225] Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 866 (1984); Chemerinsky, supra note 213.
[226] Three-Minute Legal Talks: Loper Bright Enterprises v. Raimondo, Sch. L. Univ. Wash. (Oct. 23, 2023), https://www.law.uw.edu/news-events/news/2023/loper-bright-enterprises-v-raimondo; compare Marbury v. Madison, 5 U.S. 137 (1903) (approximately 6,300 citations), andScott v. Sandford, 60 U.S. 393 (1856) (500 decisions), and Brown v. Bd. of Educ., 347 U.S. 483 (1954) (3,000 citations), and Gideon v. Wainwright, 372 U.S. 335 (1963) (approximately 10,000 citations), with Chevron, 467 U.S. 837 (approximately 21,000 citations); but see Miranda v. Arizona, 384 U.S. 436 (1966) (approximately 79,000 citations).
[227] Suhasini Ravi, What the Supreme Court’s Rulings on Chevron in Loper Bright Enterprises and Relentless Could Mean for Health Care, O’Neill Inst. For Nat’l & Glob. Health L. (Oct. 31, 2023), https://oneill.law.georgetown.edu/what-the-supreme-courts-rulings-on-chevron-in-loper-bright-enterprises-and-relentless-could-mean-for-health-care/.
[228] Id.
[229] Jeevna Sheth & Devon Ombres, Loper Bright and Relentless: Ending Judicial Deference to Cement Judicial Activism in the Courts, Ctr. For Am. Progress (Jan. 10, 2024), https://www.americanprogress.org/article/loper-bright-and-relentless-ending-judicial-deference-to-cement-judicial-activism-in-the-courts/.
[230] Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 143 S. Ct. 978 (2023).
[231] FDA v. All. for Hippocratic Med., 144 S. Ct. 537 (2023).
[232] See Cmty. Fin. Servs. Ass’n of Am., Ltd. v. Consumer Fin. Prot. Bureau, 51 F.4th 616, 643–44 (5th Cir. 2022).
[233] All. For Hippocratic Med v. United States Food & Drug Admin., 78 F.4th 210, 256 (5th Cir. 2023).
[234] See supra Section II.A.1.
[235] United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023) (“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is laudable policy goal. The question is whether . . . a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of [Bruen], it is not.”).
[236] Id. at 449.
[237] Chemerinsky, supra note 213.
[238] Rahimi, 61 F.4th at 449.
[239] Chemerinsky, supra note 213.
[240] Rahimi, 61 F.4th at 460–61.
[241] Id. at 461.
[242] Sanya Mansoor, Supreme Court to Decide Whether Some Domestic Abusers Can Have Guns, Time, https://time.com/6332044/supreme-court-rahimi-guns-domest-violence-case/ (Nov. 6, 2023, 2:04 PM).
[243] Id.
[244] Id.
[245] See NetChoice, LLC v. Att’y Gen., 34 F.4th 1196 (11th Cir. 2022); NetChoice, LLC v. Paxton, 49 F.4th 439 (5th Cir. 2022).
[246] Amy Howe, Justices Take Major Florida and Texas Social Media Cases, SCOTUSblog (Sept. 29, 2023, 9:48 AM), https://www.scotusblog.com/2023/09/justices-take-major-florida-and-texas-social-media-cases/; S. 7072, 2021 Comm. on Governmental Oversight & Accountability, 2021 Sess. (Fla. 2021); H. 20, 2021, 87th Leg., 1st Spec. Sess. (Tex. 2021).
[247] Valerie C. Brannon, Cong. Rsch. Serv., LSB10748, Free Speech Challenges to Florida and Texas Social Media Laws 4 (2022) (alteration in original); Tex. H. 20.
[248] Howe, supra note 246; Fla. S. 7072.
[249] NetChoice, 49 F.4th at 494.
[250] NetChoice, 34 F.4th at 1231.
[251] Supplemental Brief for Respondent at 3–4, NetChoice, LLC v. Paxton, No. 22-555 (U.S. filed Aug. 28, 2023).
[252] Respondent’s Opposition to Application to Vacate Stay of Preliminary Injunction at 6, NetChoice, LLC v. Paxton, 142 S. Ct. 1715 (2022) (No. 21A720).
[253] NetChoice, 142 S. Ct. at 1716.
[254] Brief for the United States as Amicus Curiae at 13, NetChoice, LLC v. Paxton, No. 22-555 (U.S. filed Aug. 14, 2023).
