Supreme Court Term October 2022: A Review of Selected Major Rulings
Congressional research reportSep 12, 2023
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Supreme Court Term October 2022: A Review
of Selected Major Rulings
September 12, 2023
Congressional Research Service
https://crsreports.congress.gov
R47689
SUMMARY
Supreme Court Term October 2022: A Review
of Selected Major Rulings
The Supreme Court issued a number of opinions of interest to Congress in the term that began on
October 3, 2022. Over the course of the term, the Court decided cases addressing issues including
affirmative action, freedom of speech under the First Amendment, redistricting and the Voting
Rights Act, and the environment. The Court also weighed in on the executive branch’s regulatory
authority, the authority of states to enact various types of laws, and principles of judicial review
such as standing and the standard for review of agency action.
Among the decisions of particular note are: (1) Sackett v. Environmental Protection Agency,
narrowing the test for when wetlands are considered “waters of the United States” subject to
federal jurisdiction under the Clean Water Act; (2) Biden v. Nebraska, holding that the Biden
Administration lacked authority to implement its student loan cancellation policy; (3) Students
for Fair Admissions Inc. v. President and Fellows of Harvard College and Students for Fair
Admissions v. University of North Carolina, striking down the use of race-based affirmative
action in higher education admissions; and (4) 303 Creative LLC v. Elenis, ruling that the First
Amendment’s Free Speech Clause barred a state from enforcing its nondiscrimination law
against a website designer who did not want to create websites for same-sex weddings.
An Appendix at the end of this report lists all of the Court’s merits decisions from this term,
states their holdings in summary form, and provides references to CRS resources that address
selected cases in more detail.
Congressional Research Service
R47689
September 12, 2023
Kate R. Bowers,
Coordinator
Legislative Attorney
April J. Anderson
Legislative Attorney
Valerie C. Brannon
Legislative Attorney
Sean M. Stiff
Legislative Attorney
David Gunter
Section Research Manager
Supreme Court Term October 2022: A Review of Selected Major Rulings
Contents
Sackett v. EPA: Scope of “Waters of the United States” .................................................................. 2
Background ............................................................................................................................... 2
Prior Supreme Court Rulings Regarding WOTUS ............................................................. 3
Regulatory History .............................................................................................................. 3
Litigation History ................................................................................................................ 4
The Supreme Court’s Opinion .................................................................................................. 5
Concurring Opinions ................................................................................................................. 6
Considerations for Congress ..................................................................................................... 8
Biden v. Nebraska: Student Loan Cancellation ............................................................................. 10
Background ............................................................................................................................. 10
The Supreme Court’s Opinion ................................................................................................ 12
Dissenting and Concurring Opinions ...................................................................................... 14
Considerations for Congress ................................................................................................... 16
Students for Fair Admissions Inc. v. President & Fellows of Harvard College and
Students for Fair Admissions v. University of North Carolina: Race-Based Affirmative
Action in Higher Education........................................................................................................ 18
Background ............................................................................................................................. 19
The Supreme Court’s Opinion ................................................................................................ 20
A “Color-Blind” Interpretation of the Fourteenth Amendment and Brown v. Board
of Education ................................................................................................................... 20
Measurable Objectives, Race as a Disadvantage, and Time Limits .................................. 21
The Decision and Grutter ................................................................................................. 23
Concurring and Dissenting Opinions ...................................................................................... 23
Considerations for Congress ................................................................................................... 25
303 Creative LLC v. Elenis: Free Speech Exceptions to Nondiscrimination Law ........................ 26
Background ............................................................................................................................. 26
The Supreme Court’s Opinion ................................................................................................ 28
Dissenting Opinion.................................................................................................................. 30
Considerations for Congress ................................................................................................... 30
Appendixes
Appendix. List of Cases ................................................................................................................ 34
Contacts
Author Information........................................................................................................................ 60
Congressional Research Service
Supreme Court Term October 2022: A Review of Selected Major Rulings
O
ver the course of its October 2022 term, the Supreme Court issued 56 merits decisions
addressing numerous significant issues, including affirmative action, freedom of speech
under the First Amendment, redistricting and the Voting Rights Act, and the environment.
The Court also weighed in on the executive branch’s regulatory authority, the authority of states
to enact various types of laws, and principles of judicial review such as standing and the standard
for judicial review of agency action. In contrast to the October 2021 term, which saw fewer
unanimous opinions and more 6-3 opinions than any term in the past decade, nearly half of the
October 2022 term’s merits decisions were unanimous, a fraction that more closely aligns with
the Court’s decisions over the past decade.1 Similarly, the Court in the October 2022 term
produced fewer 6-3 decisions with Republican-appointed Justices in the majority and
Democratic-appointed Justices in dissent than in the previous term.2 The 6-3 split between
Justices appointed by Republican and Democratic Presidents continued to surface in major cases,
however—including all four of the cases discussed in this report.
One notable development3 at the Court this term was the arrival of Justice Ketanji Brown
Jackson. The arrival of Justice Jackson, who replaced Justice Stephen Breyer, did not change the
balance of Republican and Democratic appointees.4 Justice Jackson wrote five majority opinions
and six dissents and was noted for her active participation in oral arguments: She spoke more at
argument than any other Justice this term, and more than any other first-term Justice in recent
memory.5
This report focuses on four important decisions from this term. Two of the cases addressed issues
of statutory interpretation: Sackett v. EPA, a case with significant implications for the scope of
1 Adam Feldman, Another One Bites the Dust: End of 2022/2023 Supreme Court Term Statistics, EMPIRICAL SCOTUS
(June 30, 2023), https://empiricalscotus.com/2023/06/30/another-one-bites-2022/; see also Angie Gou, As Unanimity
Declines, Conservative Majority’s Power Runs Deeper than the Blockbuster Cases, SCOTUSBLOG (July 3, 2022),
https://www.scotusblog.com/2022/07/as-unanimity-declines-conservative-majoritys-power-runs-deeper-than-theblockbuster-cases/.
2 Feldman, supra note 1.
3 Among other developments was an increased scrutiny of some Justices’ recusal patterns and financial disclosures.
E.g., Friends of the Court: SCOTUS Justices’ Beneficial Relationships with Billionaire Donors, PROPUBLICA,
https://www.propublica.org/series/supreme-court-scotus (last visited Sept. 6, 2023). While the Code of Conduct for
United States Judges does not explicitly apply to Supreme Court Justices, some commentators have called for ethical
rules that would be binding on the Court. Members have recently introduced legislation that would impose ethics rules
on the Justices as well as federal judges. Judicial Ethics and Anti-Corruption Act of 2023, S. 1908 and H.R. 3973 118 th
Cong. (2023). The Justices themselves have differing opinions about whether such legislation would be valid. E.g.,
David B. Rivkin Jr. and James Taranto, Samuel Alito, the Supreme Court’s Plain-Spoken Defender, WALL STREET
JOURNAL (July 28, 2023), https://www.wsj.com/articles/samuel-alito-the-supreme-courts-plain-spoken-defenderprecedent-ethics-originalism-5e3e9a7?st=8kujgcb6f0h7nr7; Claire Rush, Justice Kagan Supports Ethics Code but Says
Supreme Court Divided on How to Proceed, ASSOCIATED PRESS, Aug. 3, 2023, https://apnews.com/article/elena-kagansupreme-court-oregon-ethics-4b70b05db01eabfee58fd245d75b8cbb. For additional discussion of judicial conduct and
financial disclosure requirements, see CRS Legal Sidebar LSB10255, A Code of Conduct for the Supreme Court? Legal
Questions and Considerations, by Joanna R. Lampe; and CRS Legal Sidebar LSB10949, Financial Disclosure and the
Supreme Court, by Whitney K. Novak.
4 E.g., Nat’l Pork Producers Council v. Ross, 143 S. Ct. 1142, 1167 (2023) (joining opinion of Chief Justice Roberts
concurring in part and dissenting in part to argue that a state animal welfare law imposed substantial burdens on
interstate commerce in violation of the dormant Commerce Clause); Pugin v. Garland, 143 S. Ct. 1833 (2023) (joining
majority opinion of Justice Kavanaugh to hold that the government could deport noncitizens for offenses related to
obstruction of justice for offenses that do not require a pending investigation or proceeding); Abitron Austria GmbH v.
Hetronic Int’l, 143 S. Ct. 2522 (2023) (joining majority opinion of Justice Alito holding that the Lanham Act’s
prohibitions on trademark infringement generally do not apply when an infringing ‘use in commerce’ occurs outside
the United States).
5 Adam Feldman, A New Landscape Unfolds: Supreme Court Oral Arguments in the 2022-2023 Term, EMPIRICAL
SCOTUS (May 8, 2023), https://empiricalscotus.com/2023/05/08/a-new-landscape-unfolds-supreme-court-oralarguments-in-the-2022-2023-term/.
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Supreme Court Term October 2022: A Review of Selected Major Rulings
federal jurisdiction under the Clean Water Act; and Biden v. Nebraska, involving the Biden
Administration’s student loan cancellation policy. The other two decisions focused on
constitutional issues: a combined decision in Students for Fair Admissions Inc. v. President and
Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina,
involving the use of race-based affirmative action in higher education admissions; and 303
Creative LLC v. Elenis, a case regarding the applicability of the First Amendment’s Free Speech
Clause to a state nondiscrimination law. The Appendix lists all of the Court’s merits decisions
this term, summarizes the decisions’ key holdings, and provides references to CRS resources that
address selected cases in more detail.
Sackett v. EPA: Scope of “Waters of the United
States”6
In Sackett v. EPA, the Supreme Court addressed the standard for determining when wetlands are
considered “waters of the United States” (WOTUS) under the Clean Water Act (CWA) based on
their adjacency to other waters.7 While the Court unanimously agreed that the lower court applied
the wrong standard, it split 5-4 on the appropriate test. This is the fourth case in which the Court
has considered the scope of wetlands covered by the CWA. The Court in Sackett construed the
reach of the CWA more narrowly than previous regulatory and judicial interpretations. It also
evinces the Court’s decreasing reliance on deferential modes of statutory construction as well as
its increasing insistence on clear congressional authorization for agency action. Following the
Court’s decision in Sackett, the U.S. Army Corps of Engineers (Corps) and the U.S.
Environmental Protection Agency (EPA)—the two agencies tasked with implementing the
CWA—have issued a new rule revising the regulatory definition of WOTUS to conform to the
Court’s ruling.8
Background
The CWA prohibits discharging certain pollutants into navigable waters without a permit.9 The
statute defines “navigable waters” as “waters of the United States, including the territorial seas,”
but it does not further define WOTUS.10 The definition of WOTUS is important because it
determines which waters are subject to federal government regulations and protections, including
CWA permitting programs. For decades, Congress, the courts, stakeholders, and the Corps and
EPA have debated how to define the term, and how to interpret the scope of waters that are
federally regulated.11
6 Kate R. Bowers, CRS Legislative Attorney, authored this section of the report.
7 143 S. Ct. 1322 (2023).
8 For further analysis, see CRS Legal Sidebar LSB10981, Supreme Court Narrows Federal Jurisdiction Under Clean
Water Act, by Kate R. Bowers; CRS Report R47408, Waters of the United States (WOTUS): Frequently Asked
Questions About the Scope of the Clean Water Act, by Kate R. Bowers and Laura Gatz.
9 33 U.S.C. § 1311(a).
10 Id. § 1362.
11 See Bowers and Gatz, supra note 8; CRS Report R44585, Evolution of the Meaning of “Waters of the United States”
in the Clean Water Act, by Stephen P. Mulligan.
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Prior Supreme Court Rulings Regarding WOTUS
The Supreme Court has considered the scope of WOTUS in prior cases.12 Most recently, in 2006,
the Court decided Rapanos v. United States, a pair of consolidated cases regarding the extent of
CWA jurisdiction over wetlands near ditches or man-made drains that emptied into traditional
navigable waters.13 Some had hoped that Rapanos would provide clarity on jurisdictional
questions that lingered after previous decisions. Instead, the Court rejected the Corps’ assertion of
jurisdiction, but issued a fractured 4-1-4 decision with two different standards and no majority
opinion providing a rationale indicating how to determine whether a particular waterbody is a
water of the United States.
Writing for a four-Justice plurality, Justice Scalia would have applied a bright-line rule holding
that WOTUS includes only “relatively permanent, standing or continuously flowing bodies of
water,” such as streams, rivers, or lakes; and wetlands that have a “continuous surface
connection” to other waters subject to the CWA.14 Writing separately and concurring in the
Court’s judgment, Justice Kennedy wrote that the Corps should determine on a case-by-case basis
whether wetlands have a “significant nexus” to traditionally navigable waters.15 Justice Kennedy
further wrote that a significant nexus exists when the wetland, either alone or in connection with
similarly situated properties, significantly impacts the chemical, physical, and biological integrity
of a traditionally navigable water.16 Justice Stevens, joined by three Justices, dissented and would
have upheld the Corps and EPA’s assertion of jurisdiction.
Following Rapanos, lower courts considered which Justice’s opinion should apply. Every court of
appeals to consider the two standards held either that Justice Kennedy’s significant nexus
standard was controlling or that jurisdiction may be established under either standard.17 Some
courts declined to identify which opinion was controlling, either because the parties stipulated
that the significant nexus standard applied or because both tests had been met.18 The Ninth Circuit
held in 2007 that Justice Kennedy’s concurrence was “the narrowest ground to which a majority
of the Justices would assent if forced to choose in almost all cases” and therefore provided the
controlling standard for cases within its circuit.19
Regulatory History
The Corps and EPA have also defined WOTUS through successive regulations. The Obama and
Trump Administrations both issued comprehensive regulations to define the term—the Clean
12 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Solid Waste Agency of N. Cook Cty. v. Army
Corps of Eng’rs, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).
13 547 U.S. 715.
14 Id. at 739, 742.
15 Id. at 782 (Kennedy, J., concurring).
16 Id. at 780 (Kennedy, J., concurring).
17 See, e.g., N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999 (9th Cir. 2007); United States v. Gerke
Excavating, Inc., 464 F.3d 723, 724–725 (7th Cir. 2006). Cf. United States v. Cundiff, 555 F.3d 200, 210–213 (6th Cir.
2009) (declining to decide which Rapanos test controls because jurisdiction was proper under both tests). See also Brief
for the Respondents in Opposition at 14, Sackett v. EPA, No. 21-454 (U.S. Nov. 24, 2021) (collecting cases).
18 See Wade Foster, Parsing Rapanos, VA. ENV’T L.J. (2018), syndicated on Envtl. L. Rev. Syndicate,
http://www.velj.org/elrs/parsing-rapanos.
19 N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999–1000 (9th Cir. 2007).
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Water Rule in 2015, and the Navigable Waters Protection Rule in 2020.20 The Clean Water Rule
was repealed in 2019, and a court vacated the Navigable Waters Protection Rule in 2021.21
On January 18, 2023, the Corps and EPA issued a new rule (the 2023 WOTUS Rule) revising the
definition of WOTUS.22 Of particular relevance in the context of Sackett, the 2023 WOTUS Rule
provided that certain wetlands were jurisdictional based on their adjacency to other covered
waters and, as in previous regulations, defined adjacent as “bordering, contiguous, or
neighboring.”23 Specifically, the rule included wetlands that were adjacent to a traditional
navigable water, the territorial seas, or an interstate water, as well as wetlands that were adjacent
to jurisdictional impoundments or tributaries and met either the relatively permanent or
significant nexus standard.24
Litigation History
The petitioners, Chantell and Michael Sackett, own a parcel of land in Idaho near Priest Lake and
across the road from a wetlands complex that drains into an unnamed tributary of a creek that in
turn feeds into the lake. In 2007, after they began backfilling the property with sand and gravel,
EPA issued a compliance order directing them to restore the site. In 2008, the Corps issued a
jurisdictional determination (JD) concluding that the property contained wetlands subject to
regulation under the CWA, after which EPA issued an amended compliance order that extended
the compliance deadlines. The Sacketts sued EPA, arguing that the compliance order’s underlying
jurisdictional basis was flawed.25 The district court granted summary judgment in favor of EPA,
ruling that the Sacketts’ property contained jurisdictional wetlands.26
The Ninth Circuit affirmed the district court’s grant of summary judgment in EPA’s favor.27 On
the merits, the court held that it was bound by its precedent to apply Justice Kennedy’s
concurrence as the controlling opinion.28 Applying Justice Kennedy’s significant nexus test, and
looking to the regulations that were in effect when EPA issued the amended compliance order, the
court held that the record “plainly supports” EPA’s conclusion that the wetlands on the Sacketts’
property were adjacent to a jurisdictional tributary.29 The court also upheld EPA’s conclusion that
those wetlands, together with the similarly situated wetlands complex across the road, had a
significant nexus to Priest Lake, a traditional navigable water.30 The court thus concluded that
EPA reasonably determined that the Sacketts’ property was subject to federal jurisdiction under
the CWA and the relevant regulations.31
20 Definition of “Waters of the United States,” 80 Fed. Reg. 37,053 (June 29, 2015); The Navigable Waters Protection
Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020).
21 Definition of “Waters of the United States”—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56626 (Oct. 22,
2019); Order, Pascua Yaqui Tribe v. EPA, No. 4:20-cv-00266 (D. Ariz. Aug. 30, 2021).
22 Revised Definition of “Waters of the United States,” 88 Fed. Reg. 3004 (Jan. 18, 2023).
23 Id. at 3143.
24 Fact Sheet, Final Rule: Revised Definition of “Waters of the United States” (Dec. 2022),
https://www.epa.gov/system/files/documents/2022-12/Public%20Fact%20Sheet.pdf.
25 Id.
26 Order, Sackett v. EPA, No. 2:08-cv-00185 (D. Idaho Mar. 31, 2019).
27 Sackett, 8 F.4th 1075.
28 Id.at 1089.
29 Id. at 1092.
30 Id. at 1093.
31 Id.
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The Supreme Court’s Opinion
The Supreme Court granted review to address “whether the Ninth Circuit set forth the proper test
for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.”32
On review, the Court unanimously reversed the Ninth Circuit. Although all nine Justices agreed
that the lower court applied the wrong standard for identifying WOTUS, the Court was split 5-4
on the appropriate test. Justice Alito wrote the majority opinion and was joined by Chief Justice
Roberts and Justices Thomas, Gorsuch, and Barrett. Under the majority’s test, “waters” are
limited to relatively permanent bodies of water connected to traditional navigable waters and to
wetlands that are “waters of the United States” in their own right by virtue of a continuous
surface connection to other jurisdictional waters so that there is no clear demarcation between the
bodies.33 Wetlands that are neighboring covered waters but are separated by natural or artificial
barriers are excluded.34
With respect to what constitutes “waters,” the majority reaffirmed the Rapanos plurality’s
interpretation, holding that “the CWA’s use of ‘waters’ encompasses only those relatively
permanent, standing or continuously flowing bodies of water forming geographic[al] features that
are described in ordinary parlance as streams, oceans, rivers, and lakes.”35 The majority
acknowledged that the Court’s prior jurisprudence interpreted CWA jurisdiction to extend beyond
traditional navigable waters but cautioned that those earlier cases “refused to read ‘navigable’ out
of the statute, holding that it at least shows that Congress was focused on its traditional
jurisdiction over waters that were or had been navigable in fact or which could reasonably be so
made.”36 The majority reasoned that this interpretation was consistent with definitions of waters
elsewhere in the CWA and in other statutes.37
The majority acknowledged that some but not all wetlands are covered under the CWA and held
that jurisdictional wetlands “must be indistinguishably part of a body of water that itself
constitutes ‘waters’ under the CWA.”38 Quoting the Rapanos plurality, the majority held that
WOTUS includes “only those wetlands that are ‘as a practical matter indistinguishable from
waters of the United States,’ such that it is ‘difficult to determine where the water ends and the
wetland begins.’ That occurs when wetlands have ‘a continuous surface connection to bodies that
are waters of the United States in their own right, so that there is no clear demarcation between
waters and wetlands.’”39
The majority reasoned that its interpretation harmonized the statutory term waters of the United
States with Section 404(g)(1) of the CWA, which was added in 1977 and authorizes states to
apply to EPA for approval to administer permits for certain kinds of discharges into any WOTUS
except for certain traditional navigable waters, “including wetlands adjacent thereto.”40 The
majority explained that because the adjacent wetlands in Section 404(g)(1) “are ‘includ[ed]’
within ‘waters of the United States,’” the term navigable waters could not include WOTUS and
adjacent wetlands, but only those adjacent wetlands that qualify as WOTUS “in their own
32 Sackett v. EPA, No. 21-454, 142 S. Ct. 896 (2022) (mem.) (granting petition for writ of certiorari).
33 Sackett v. EPA, 143 S. Ct. 1322, 1339 (2023).
34 Id. at 1341.
35 Id. at 1336.
36 Id. at 1337.
37 Id.
38 Id. at 1339.
39 Id. at 1340 (quoting Rapanos v. United States, 547 U.S. 715, 742, 755 (2006)).
40 See 33 U.S.C. § 1344(g)(1).
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right.”41 As a result, the majority concluded that wetlands “that are separate from traditional
navigable waters cannot be considered part of those waters, even if they are located nearby.”42
In addition to reaffirming the Rapanos plurality’s standard, the majority also rejected the
significant nexus test.43 The majority stated that Congress must “enact exceedingly clear language
if it wishes to significantly alter the balance between federal and state power and the power of the
Government over private property” and cautioned that an overly broad interpretation of the
CWA’s reach would impinge on the regulation of land and water use, an area at the core of
traditional state authority.44 The majority also wrote that EPA’s interpretation “gives rise to
serious vagueness concerns in light of the CWA’s criminal penalties.”45 In particular, the majority
emphasized that the boundary between a significant nexus and an insignificant one was “far from
clear,” that “similarly situated” waters was also a vague concept, and that application of the
significant nexus test required consideration of “a variety of open-ended factors that evolve as
scientific understandings change.”46 According to the majority, the significant nexus test
amounted to a “freewheeling inquiry” that “provides little notice to landowners of their
obligations under the CWA.”47
The majority also rejected EPA’s interpretation of WOTUS as including wetlands that are
“neighboring” to covered waters but separated by dry land.48 In particular, the majority disagreed
with EPA’s argument that the reference to adjacent wetlands in Section 404(g)(1) indicates that
Congress implicitly ratified the Corps’ regulatory definition of adjacent wetlands that was in
place when Congress added that section of the CWA in 1977.49 Contrary to EPA’s argument, the
majority found that the definition of adjacent wetlands was “[f]ar from [] well settled” as of the
1977 CWA amendments.50 The majority also disputed EPA’s policy arguments regarding the
environmental consequences of a narrower definition, noting that “the CWA does not define the
EPA’s jurisdiction based on ecological importance.”51
Concurring Opinions
Sackett generated three concurring opinions. Justice Thomas joined the judgment in full and
wrote a separate concurring opinion, joined by Justice Gorsuch, to discuss the historical meaning
of the terms navigable and of the United States in the phrases navigable waters and waters of the
United States.52 Justice Thomas wrote that, prior to the enactment of the CWA, navigable waters
were generally understood to be those waters that were or could be used for interstate or foreign
commerce and that wetlands were historically excluded from the term.53 Justice Thomas further
wrote that “[i]t would be strange indeed” if, in enacting the CWA, “Congress sought to effect a
41 Sackett, 143 S. Ct. at 1339.
42 Id. at 1340.
43 Id. at 1341.
44 Id.
45 Id. at 1342.
46 Id.
47 Id.
48 Id. at 1341.
49 Id. at 1343.
50 Id.
51 Id.
52 Id. at 1344 (Thomas, J., concurring).
53 Id. at 1349–1352.
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fundamental transformation of federal jurisdiction over water through phrases that had been in
use to describe the traditional scope of that jurisdiction for well over a century and that carried a
well-understood meaning.”54 Applying this reasoning, Justice Thomas concluded that the
wetlands on the Sacketts’ property were not jurisdictional because they lack a surface connection
with a traditional navigable water; the nonnavigable tributary across the street from the Sacketts’
property is not, has never been, and cannot reasonably be made a highway of interstate or foreign
commerce; Priest Lake is purely intrastate and has not been shown to be a highway of interstate
or foreign commerce; and EPA did not establish that the Sacketts’ actions would obstruct or
otherwise impede navigable capacity or the suitability of a water for interstate commerce.55
Consistent with his long-standing views, Justice Thomas criticized federal environmental law’s
dependence on an “expansive interpretation” of the Commerce Clause, which deviates from the
original meaning of the Constitution.56 Justice Thomas characterized EPA’s interpretation as “a
federal police power, exercised in the most aggressive possible way,” and argued that it “renders
the use of the term ‘navigable’ a nullity and involves an unprecedented and extravagant reading of
the well-understood term of art ‘the waters of the United States.’”57
Justice Kavanaugh, joined by Justices Kagan, Sotomayor, and Jackson, wrote an opinion
concurring in the judgment.58 Although he agreed with the majority’s decision not to adopt the
significant nexus test and its conclusion that the wetlands on the Sacketts’ property are not
covered by the CWA, Justice Kavanaugh disagreed with the holding that only wetlands with a
continuous surface connection are jurisdictional.59 Instead, Justice Kavanaugh argued that
wetlands are jurisdictional if they are bordering, contiguous, or neighboring to covered waters,
even if they are separated from those waters by a natural or artificial barrier.60 Justice Kavanaugh
criticized the majority’s ruling as “depart[ing] from the statutory text, from 45 years of consistent
agency practice, and from this Court’s precedents.”61
Justice Kavanaugh criticized the majority for narrowing the test to cover only “adjoining”
wetlands—those contiguous to or bordering a covered water—as opposed to “adjacent” wetlands,
which he defined as including both wetlands contiguous to or bordering a covered water and
wetlands separated from a covered water only by a man-made dike or barrier, natural river berm,
beach dune, or the like.62 According to Justice Kavanaugh, adjacent and adjoining are commonly
understood to have distinct meanings, and Congress’s use of the broader term adjacent in the
1977 CWA amendments unambiguously means that the statute does not require wetlands to
adjoin (or touch) covered waters.63
Addressing the environmental impacts of the majority’s decision, Justice Kavanaugh warned that
the majority’s narrowing of coverage to adjoining wetlands would exclude “long-regulated and
long-accepted-to-be-regulable wetlands” and would have significant repercussions for water
quality and flood control throughout the United States, such as by excluding wetlands separated
54 Id. at 1353.
55 Id. at 1357.
56 Id. at 1358.
57 Id. at 1354.
58 Id. at 1362 (Kavanaugh, J., concurring in the judgment).
59 Id.
60 Id.
61 Id.
62 Id.
63 Id. at 1366–1367.
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by flood control levees from the Mississippi River and wetlands adjacent to but not adjoining
Chesapeake Bay and its covered tributaries.64 He also identified several areas in which the
majority’s decision would generate regulatory uncertainty.65
Justice Kagan wrote a concurring opinion in which Justices Sotomayor and Jackson joined.66
Justice Kagan expressed agreement with Justice Kavanaugh and argued that there was no
ambiguity or vagueness around the meaning of adjacent in the text of the CWA.67 Citing her
dissent last term in West Virginia v. EPA, she asserted that it was therefore inappropriate for the
majority to rely on a “judicially manufactured clear-statement rule” not to deal with statutory
vagueness or ambiguity but instead to correct the perceived overbreadth of the CWA.68 Justice
Kagan argued that this approach amounted to “a thumb on the scale for property owners—no
matter that the [CWA] ... is all about stopping property owners from polluting.”69
Considerations for Congress
The Court’s ruling in Sackett narrows the scope of jurisdiction under the CWA as compared to
both its longstanding regulatory implementation and the interpretation adopted by lower courts
post-Rapanos. The majority’s exclusion of wetlands that are separated from covered waters by
natural or artificial barriers means that fewer wetlands will be covered than under any regulatory
framework developed by the Corps or EPA since the 1970s. Additionally, while the majority
recognized that “temporary interruptions in surface connection” such as from low tides or dry
spells would not defeat jurisdiction, it is not clear how temporary such an interruption must be in
order to preserve a wetland’s jurisdictional status.70 Furthermore, with respect to the bodies of
water that are considered “waters” under the CWA, the majority’s ruling covers “only those
relatively permanent, standing or continuously flowing bodies of water forming geographical
features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” The
majority opinion does not explicitly address ephemeral waters, which flow only in response to
precipitation, or intermittent waters, which flow continuously during certain times of year (such
as when snowpack melts). At a minimum, however, the majority’s interpretation would appear to
exclude ephemeral waters.
Neither the 2023 WOTUS Rule nor any prior regulation was presented to the Supreme Court for
review in Sackett, so the Court’s decision did not automatically affect the status of the 2023
WOTUS Rule. The majority opinion nevertheless rejects jurisdictional interpretations that were
reflected in the 2023 WOTUS Rule. On September 8, 2023, the Corps and EPA signed a new final
rule amending the regulations defining WOTUS to conform to Sackett.71 Invoking the “good
cause” exception to the Administrative Procedure Act’s notice and comment requirements for
rulemakings, the agencies found that providing notice and an opportunity for comment on a
proposed rule was unnecessary because the rule’s sole purpose was to conform the 2023 WOTUS
Rule to Sackett and did not involve the exercise of the agencies’ discretion.72 The amendments
64 Id. at 1368.
65 Id. at 1368–1369.
66 Id. at 1359 (Kagan, J., concurring in the judgment).
67 Id. at 1361.
68 Id. at 1360–1361 (quoting West Virginia v. EPA, 142 S. Ct. 2587, 2630 (2022) (Kagan, J., dissenting)).
69 Sackett, 143 S. Ct. at 1361.
70 Id. at 1341.
71 Revised Definition of “Waters of the United States,” 88 Fed. Reg. 61,964 (Sept. 8, 2023).
72 Id. at 61,964–61,965. For more information, see CRS Report R44356, The Good Cause Exception to Notice and
Comment Rulemaking: Judicial Review of Agency Action, by Jared P. Cole.
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revise the 2023 rule to remove the significant nexus standard as a basis for jurisdiction and define
adjacent as “having a continuous surface connection.”73 The amendments also remove certain
categories of waters, including interstate wetlands, from federal coverage unless they also fall
within one or more of the remaining categories of jurisdictional waters.74 The amendments do not
define “continuous surface connection,” nor do they address other questions Justice Kavanaugh
identified as unresolved by Sackett, including how to determine whether a wetland is
“indistinguishable” from a covered water; how the test applies to wetlands with temporary
interruptions in surface connection due to seasonal variations or to wetlands in areas where
storms, floods, and erosion frequently shift or breach natural barriers; and whether ditches,
swales, pipes, or culverts can establish a continuous surface connection.75
The 2023 WOTUS Rule has been challenged in five lawsuits across three federal district courts.
Some courts have issued either preliminary injunctions or injunctions pending appeal that bar
implementation of the 2023 WOTUS Rule while litigation is pending.76 As of the date of this
report, a total of 27 states and six industry associations and their members are covered by the
preliminary injunctions and injunction pending appeal.77 The Corps and EPA have stated that they
will interpret WOTUS “consistent with the pre-2015 regulatory regime and the Sackett decision”
as to those states and plaintiffs.78 Further litigation regarding the recent amendments to the 2023
WOTUS Rule is likely.
The Sackett majority’s emphasis on clear statement rules is also indicative of a shift in how the
Supreme Court views the relationship between Congress and agencies’ regulatory authority. This
is the second consecutive term in which the Supreme Court has curtailed EPA’s regulatory
authority by holding that Congress was required to provide clear authorization to EPA and had
failed to do so in the relevant statutory text. In West Virginia v. EPA, the Court applied the major
questions doctrine to hold that, because regulation of greenhouse gas emissions from power
plants presented a question of vast economic or political significance and there was not clear
evidence of congressional intent to task EPA with balancing the nationwide energy mix, the Clean
Air Act did not authorize EPA to issue emission guidelines that were based in part on shifting
electricity generation from higher-emitting sources to lower-emitting ones.79 Similarly, in Sackett,
the majority reasoned that because broadening the scope of WOTUS would “alter the balance
between federal and state power and the power of the Government over private property,” the
Court would require “exceedingly clear language” from Congress in support of EPA’s
interpretation.80
Congress could address the uncertainty remaining after Sackett by providing more specific
instruction to the agencies and regulated parties as to the interpretation of the CWA or by
proposing legislation to provide a definition of WOTUS. The Supreme Court’s increasing
73 Revised Definition of “Waters of the United States,” 88 Fed. Reg. at 61,966, 61,969.
74 Id. at 61,966.
75 Sackett v. EPA, 143 S. Ct. 1322, 1368–1369 (2023) (Kavanaugh, J., concurring).
76 Memorandum Opinion and Order Granting Preliminary Injunction, Texas v. EPA, No. 3:23-cv-17 (S.D. Tex. Mar.
19, 2023), ECF No. 60; Order Granting Plaintiffs’ Motion for Preliminary Injunction, West Virginia v. EPA, No. 3:23cv-00032 (D.N.D. Apr. 12, 2023), ECF No. 131; Order, Kentucky v. EPA, No. 23-5343 (6th Cir. May 10, 2023), ECF
No. 24.
77 EPA, Definition of “Waters of the United States”: Rule Status and Litigation Update (last updated Aug. 29, 2023),
https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
78 Id.
79 142 S. Ct. 2587 (2022).
80 Sackett, 143 S. Ct. at 1341. The Court also invoked the major questions doctrine in striking down President Biden’s
student loan forgiveness program. See infra “Biden v. Nebraska: Student Loan Cancellation.”
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insistence on clear congressional intent to delegate regulatory authority, and its decreasing
reliance on or reference to more deferential modes of judicial review, suggest that any regulatory
actions taken pursuant to such legislation would be subject to close judicial scrutiny.
Biden v. Nebraska: Student Loan Cancellation81
On the last day of the term, the Supreme Court handed down a second significant decision
interpreting an agency’s authority under a federal statute. Biden v. Nebraska82 determined the fate
of a policy designed to pursue a Biden Administration policy priority, federal student loan
cancellation. The Court first ruled that the State of Missouri had Article III standing to challenge
Secretary of Education Miguel Cardona’s planned use of the Higher Education Relief
Opportunities for Students (HEROES) Act of 2003 to cancel all or part of the federal student loan
balances of up to 40 million borrowers.83 Then, turning to the merits of Missouri’s claims, the
Court ruled that this cancellation policy exceeded Secretary Cardona’s HEROES Act authority.84
Beyond forestalling loan cancellation under the HEROES Act, Nebraska could shape the
Department of Education’s (ED’s) future management of the $1.64 trillion federal student loan
portfolio.85 The Biden Administration is exploring whether to cancel loans balances under
different statutory authority. Nebraska could bear on the scope of that other authority, as well as
the ability of third parties to show injury sufficient to challenge a new cancellation rule. Nebraska
could also shape ED’s use of the HEROES Act in future national emergencies. The decision also
provides another example of an issue of major political and economic significance that is subject
to the major questions doctrine, a rule of statutory interpretation that the Court named for the first
time in its previous term.
Background
In August 2022, Secretary Cardona announced two related actions affecting federal student
loans.86 The Secretary first stated that on December 31, 2022, the pause on monthly loan
payments, interest accrual, and involuntary collections would end.87 This payment pause had been
in place since March 2020, and after September 2020 was effectuated through successive uses of
the HEROES Act.88 The statute authorizes the Secretary to pursue certain objectives by waiving
or modifying “any statutory or regulatory provision applicable to” federal student loan programs
81 Sean M. Stiff, CRS Legislative Attorney, authored this section of the report.
82 143 S. Ct. 2355 (2023).
83 Id. at 2368. On the same day, the Court ruled that two borrowers lacked Article III standing to set aside the
cancellation policy on certain procedural grounds. See Dep’t of Educ. v. Brown, 143 S. Ct. 2343, 2355 (2023). For
discussion of the arguments presented in both cases, see CRS Report R47505, Student Loan Cancellation Under the
HEROES Act, by Edward C. Liu and Sean M. Stiff.
84 Nebraska, 143 S. Ct. at 2371, 2375–76.
85 U.S. Dep’t of Educ., Federal Student Aid Portfolio Summary, Fed. Student Aid,
https://studentaid.gov/sites/default/files/fsawg/datacenter/library/PortfolioSummary.xls (last accessed Sept. 11, 2023).
86 Memorandum from Miguel Cardona, Jr., Secretary of Education, to Richard Cordray, Chief Operating Officer of
Federal Student Aid 1 (Aug. 24, 2022) [hereinafter Cardona Memo] (filed as Exhibit B to Decl. of James Richard
Kvaal, Nebraska v. Biden, No. 4:22-cv-01040 (E.D. Mo. filed Oct. 7, 2022)).
87 See Cardona Memo, supra note 86, at 1.
88 See id. Between March 27, 2020 and September 30, 2020, the Coronavirus Aid, Relief, and Economic Security Act
instituted a payment pause. See Pub. L. No. 116-136, § 3513, 134 Stat. 281, 404 (2020).
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under the Higher Education Act of 1965 (HEA) as necessary “in connection with a war or other
military operation or national emergency.”89
This first action would thus return borrowers to repayment. ED found that a subset of borrowers
could fall into delinquency or default, at rates higher than before the pandemic.90 To avoid this
consequence of a return to repayment, Secretary Cardona also announced the cancellation policy,
an initiative to cancel certain federal student loan balances.91 If all borrowers eligible under the
policy applied, ED estimated that up to 43 million would have received cancellation.92 Up to 20
million of those would have no balances remaining after cancellation.93 The policy could have
canceled up to $430 billion in loan balances.94
The Secretary announced two primary eligibility rules for the policy,95 which were later detailed
in an October 2022 Federal Register notice.96 First, borrowers with an adjusted gross income
(AGI) in tax years 2020 or 2021 of less than $125,000 (for those filing individually) or less than
$250,000 (for those filing in other statuses) would be eligible.97 Second, cancellation would apply
only to certain federal student loans, chiefly those made under the Federal Direct Loan Program,
if disbursed before June 30, 2022.98 ED would then use a third criterion to determine the
cancellation benefit for those eligible. All eligible borrowers would have received up to $10,000
in cancellation.99 Prior federal Pell Grant recipients would have received up to $20,000 in
cancellation.100
Along with five other states, Missouri sued in September 2022, claiming that the cancellation
policy exceeded the Secretary’s HEROES Act authority.101 Among other theories, Missouri
argued it had Article III standing based on a theory of loan servicer injury.102 ED contracts with
several loan servicers to administer the millions of borrower accounts associated the federal
89 20 U.S.C. § 1098bb(a)(1).
90 Cardona Memo, supra note 86, at 1.
91 Id.
92 Attachment 1 to Memorandum from James Richard Kvaal, Under Secretary of Education, to Miguel A. Cardona,
Secretary of Education, on the Rationale for Pandemic-Connected Loan Cancellation Program 5 (Aug. 24, 2022)
[hereinafter Supporting Analysis] (filed as Exhibit A to Decl. of James Richard Kvaal, Nebraska v. Biden, No. 4:22-cv01040 (E.D. Mo. filed Oct. 7, 2022)).
93 Id.
94 Letter from Phillip L. Swagel, Director, Congressional Budget Office, to Richard Burr, Ranking Member, Committee
on Health, Education, Labor, and Pensions, U.S. Senate, and Virginia Foxx, Ranking Member, Committee on
Education and Labor, U.S. House of Representatives at 3 (Sept. 26, 2022), https://www.cbo.gov/system/files/202209/58494-Student-Loans.pdf (last visited Sept. 11, 2023).
95
Cardona Memo, supra note 86, at 1.
96 Federal Student Aid Programs (Federal Perkins Loan Program, Federal Family Education Loan Program, and
William D. Ford Federal Direct Loan Program), 87 Fed. Reg. 61,512 (Oct. 12, 2022).
97 Id. at 61,514. The $250,000 threshold would have applied to those filing a joint return, as Head of Household, or as a
qualifying widow(er). Id.
98 Id.
99 Id.
100 Id.
101 Compl., Nebraska v. Biden, No. 4:22-cv-01040 (E.D. Mo. Sept. 29, 2022).
102 Br. of Resp’ts at 16–20, Biden v. Nebraska, No. 22-506 (U.S. Jan. 27, 2023) [hereinafter State Pls.’ Br.].
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student loans that it holds.103 ED pays its servicers based on, among other factors, the accounts
allocated to a servicer.104
Missouri contended that if all eligible borrowers applied for cancellation, the Higher Education
Loan Authority of the State of Missouri (MOHELA), an ED loan servicer, could lose “at least
half of” the accounts allocated to it. MOHELA’s total operating revenue could then decline by
“nearly 40 percent.”105 MOHELA is a public corporation, chartered by the Missouri General
Assembly.106 Though MOHELA did not join the state in suing, the state argued that, as a legal
matter, harms that MOHELA suffered were shared by the state and thus the state could sue
because of those injuries.107
After a federal district court dismissed Missouri’s complaint for lack of standing in October
2022,108 the U.S. Court of Appeals for the Eighth Circuit enjoined the cancellation policy pending
the states’ appeal of that decision.109 In December 2022, the Supreme Court granted certiorari
before judgment to consider the Article III standing and merits questions raised by the suit.110
The Supreme Court’s Opinion
In a 6-3 decision, the Supreme Court vacated the district court’s judgment of dismissal, holding
that Missouri had standing and that the HEROES Act did not authorize the cancellation policy.111
Chief Justice Roberts’s majority opinion began by considering whether Missouri had standing to
challenge the cancellation policy.112 Chief Justice Roberts first identified the financial harm that
MOHELA would suffer under the policy: lost servicer revenue resulting from borrower account
closures.113 Next, the Chief Justice concluded that MOHELA’s threatened financial loss would
harm Missouri as well.114 The state created MOHELA to further the public function of helping
state residents finance a postsecondary education.115 The state also exercises control over
MOHELA by, for example, appointing or removing board members.116 While MOHELA is a
corporation separate from the state and can sue in its own name, the Court explained that the
same had been true in a prior case where it allowed a state to sue on behalf of a public
103 See, e.g., 20 U.S.C. § 1087f(b)(2) (authorizing the Secretary to enter into contracts for “the servicing and collection
of loans made or purchased under” the FDLP program).
104 See, e.g., U.S. Dep’t of Educ., Contract No. ED-FSA-11-D-0012 with MOHELA 15 (2011) (describing account
allocation) (filed as Exh. B to Decl. of Michael E. Talent, Nebraska v. Biden, No. 4:22-cv-01040 (E.D. Mo. filed Sept.
29, 2022)).
105 State Pls.’ Br., supra note 102, at 16.
106 See, e.g., MO. REV. STAT. § 173.360.
107 See State Pls.’ Br., supra note 102, at 16–20.
108 Nebraska v. Biden, No. 4:22-cv-1040, 2022 WL 11728905, at *7 (E.D. Mo. Oct. 20, 2022).
109 Nebraska v. Biden, 52 F.4th 1044 (8th Cir. 2022).
110 Dkt. Entry, Biden v. Nebraska, No. 22-506 (U.S. Dec. 1, 2022). Certiorari before judgment is a rarely-used process
that allows the Supreme Court to hear a case before a court of appeals has issued a final judgment. 28 U.S.C. § 2101(e).
111 Biden v. Nebraska, 143 S. Ct. 2355, 2376 (2023).
112 Id. at 2365.
113 Id. at 2365–2366.
114 Id. at 2366.
115 Id. (explaining that MOHELA’s “profits help fund education in Missouri: MOHELA has provided $230 million for
development projects at Missouri colleges and universities and almost $300 million in grants and scholarships for
Missouri students”).
116 Id.
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corporation.117 As the Court summarized its conclusion, when “a State has been harmed in
carrying out its responsibilities, the fact that it chose to exercise its authority through a public
corporation it created and controls does not bar the State from suing to remedy that harm
itself.”118
The Court then turned to the merits.119 The HEROES Act authorizes the Secretary to “waive or
modify” statutory or regulatory provisions applicable to HEA student loan programs to assist
“affected individuals,” a category that includes those who reside or are employed in a declared
disaster area in connection with a national emergency.120 All states, permanently inhabited
territories, and the District of Columbia had major-disaster declarations stemming from COVID19, which President Trump also designated a national emergency.121 For affected individuals, the
Secretary may waive or modify statutory or regulatory provisions to ensure they “are not placed
in a worse position financially in relation to” their federal student loans “because of their status as
affected individuals.”122 The October 2022 Federal Register notice described the cancellation
policy as a “modifi[cation]” of existing HEA provisions and regulations dealing with loan
discharges upon a borrower’s death or disability, upon an institution of higher education’s (IHE’s)
closure, or in connection with certain false certifications by an IHE.123
The Court explained that the “authority to ‘modify’ statutes and regulations allows the Secretary
to make modest adjustments and additions to existing provisions, not transform them.”124 The
Secretary’s action, though, would not reflect such “modest adjustments” to existing discharge
provisions.125 By purporting to modify “narrowly delineated” existing discharge provisions, the
Court wrote, the Secretary had extended cancellation to “nearly every borrower in the country.”126
Because the policy was not properly a “modification” of existing statutory or regulatory
provisions, it could not be justified under the HEROES Act on that basis.127
The Court also held that the policy could not be justified as a “waive[r]” of statutory or regulatory
provisions.128 A waiver in the HEROES Act sense, the Court explained, makes “compliance” with
“a particular legal requirement” “no longer necessary.”129 The cancellation policy could not have
been crafted through waivers alone, though, because no “specific provision” in the HEA
“establishes an obligation on the part of student borrowers to pay back the Government.”130 As
compared to the existing discharge authorities cited in the Federal Register notice, the policy
included new features—“particular sums to be forgiven and income-based eligibility
117 Id. at 2366–67 (discussing Arkansas v. Texas, 346 U.S. 368 (1953)).
118 Id. at 2368.
119 Id.
120 20 U.S.C. §§ 1098bb(a)(2)(A), 1098ee(2)(C).
121 See Liu and Stiff, supra note 83, at 42–43.
122 20 U.S.C. § 1098bb(a)(2)(A).
123
Federal Student Aid Programs (Federal Perkins Loan Program, Federal Family Education Loan Program, and
William D. Ford Federal Direct Loan Program), 87 Fed. Reg. 61,512, 61,514 (Oct. 12, 2022) (citing purportedly
modified statutory and regulatory provisions).
124 Nebraska v. Biden, 143 S. Ct. 2355, 2369 (2023).
125 Id.
126 Id.
127 Id. at 2369–2370.
128 Id. at 2370.
129 Id.
130 Id.
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requirements”—that could not “be said to be a ‘waiver’” of the existing requirements “in any
meaningful sense.”131
Even “when examined using the ordinary tools of statutory interpretation,” the Court wrote, the
policy could not be justified under the HEROES Act.132 In addition, though, the Court determined
that the policy warranted scrutiny under the Court’s major questions doctrine.133
Under the major questions doctrine, the Court has explained that for an agency to regulate on an
issue of major significance, it must have “clear” congressional authorization for its action.134 The
cancellation policy, in the Court’s view, would resolve an issue with “staggering” economic and
political significance, and the Secretary had not “previously claimed powers of this magnitude
under the HEROES Act.”135 Given the policy’s stakes, the Court reasoned that Congress would
likely have reserved “for itself” the decision of whether to establish a “mass debt cancellation
program,” not delegated that decision to the Secretary.136 Because the major questions doctrine
applied, the Secretary had to “point to ‘clear congressional authorization’” for the cancellation
policy.137 The HEROES Act did not provide sufficiently clear authority, the Court concluded,
pointing to its interpretation of the statute’s key verbs earlier in the decision.138
Dissenting and Concurring Opinions
Justice Kagan, joined by Justices Sotomayor and Jackson, dissented, disagreeing with the
majority’s standing and merits analysis.139 Justice Kagan did not dispute that the policy likely
would cause MOHELA to lose revenue, but she wrote that this harm could not be the basis of a
suit by the state.140 MOHELA is separate from the state, Justice Kagan noted, with the ability to
sue in its own name.141 Justice Kagan thus would have held that Missouri could not rely on the
legal rights of MOHELA, a third party, to bring suit.142
On the merits, Justice Kagan viewed the HEROES Act’s phrase “waive or modify” as allowing
the Secretary to “amend, all the way up to discarding, those provisions” pertaining to existing
loan discharge programs “and fill the holes that action creates with new terms designed to
counteract an emergency’s effects on borrowers.”143 Justice Kagan disagreed with the majority’s
reliance on the major questions doctrine. She contended that the majority’s approach “prevents
Congress from doing its policy-making job in the way that it thinks best,” which may be through
131 Id.
132 Id. at 2375.
133 Id. at 2372.
134 See CRS In Focus IF12077, The Major Questions Doctrine, by Kate R. Bowers.
135 Nebraska, 143 S. Ct. at 2372-73 (internal quotation marks omitted).
136
Id. at 2375 (internal quotation marks omitted).
137 Id. (quoting W. Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022)).
138 Id. (“[A]s we have already shown, the HEROES Act provides no authorization for the Secretary’s plan even when
examined using the ordinary tools of statutory interpretation—let alone clear congressional authorization for such a
program.” (internal quotation marks omitted)).
139 Id. at 2384 (Kagan, J., dissenting).
140 Cf. id. at 2386 (explaining that Missouri’s standing theory “points to MOHELA as the proper plaintiff”).
141 Id. at 2387 (describing structural and financial structure separation between Missouri and MOHELA).
142 Id. at 2388.
143 Id. at 2392–2393 (Kagan, J., dissenting).
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broadly worded delegations.144 Justice Kagan also argued that on its own terms, the major
questions doctrine did not apply to the Secretary’s actions because those actions lacked the
hallmarks of actions reviewed under the doctrine in prior cases.145
Justice Kagan has previously described the major questions doctrine as inconsistent with
textualism.146 She reiterated this critique in her Nebraska dissent.147 Justice Barrett, in turn, wrote
a separate concurrence to respond to this critique.148 Textualists argue that “courts should read”
words “statutory text as any ordinary Member of Congress would have read them,” within the
context of a broader body of law.149
According to Justice Barrett, some view the major questions doctrine as “inconsistent with
textualism” because it may yield results that seem inconsistent with a textual analysis.150
According to these critics, traditional tools of statutory interpretation might yield two plausible
readings of a statute, one “better” than the other.151 When the major questions doctrine is then
applied, the critics say, the “better” reading under a textual analysis “will not necessarily prevail”
if it leads to a “disfavored result.”152 The “disfavored result[s]” that the major questions doctrine
seeks to avoid include reading a statute to contain a “significant” delegation of rule-making
authority absent “unequivocal[]” language supporting the delegation.153
For Justice Barrett, though, this view misunderstands the Court’s cases.154 Rather than disfavor
broad delegations to agencies, Justice Barrett wrote, the Court’s major questions doctrine
“situates” statutory “text in context, which is how textualists” approach interpretation.155 The
relevant context that the doctrine emphasizes is the “Constitution’s structure.”156 Under that
structure, “‘all legislative Powers’” are vested in Congress.157 A “reasonable interpreter” would
therefore expect Congress “to make the big-time policy calls itself, rather than pawning them off
to another branch.”158 When the Court applies the major questions doctrine as means of
144 Id. at 2397 (contending that the doctrine requires Congress to “delegate in highly specific terms”). In prior cases,
Justice Kagan made similar arguments about the major questions doctrine’s effects on lawmaking. See W. Virginia v.
EPA, 142 S. Ct. 2587, 2643 (2022) (Kagan, J., dissenting) (arguing that “Congress knows about how government
works in ways courts don’t” and that in some cases Congress determines that the making of “good policy” necessitates
broad delegations to agencies).
145 See Nebraska, 143 S. Ct. at 2398–2399 (arguing that the Secretary’s action made use of a “recently enacted,” rather
than “long extant,” statute, did not stray outside the ED’s “particular domain,” and had been preceded by the payment
pause, itself a broad use of HEROES Act authority (internal quotation marks omitted)).
146 W. Virginia, 142 S. Ct. at 2641 (“The current Court is textualist only when being so suits it. When that method
would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-textfree cards.”) (Kagan, J., dissenting).
147 Nebraska, 143 S. Ct. at 2397 (Kagan, J., dissenting) (“The new major-questions doctrine works not to better
understand—but instead to trump—the scope of a legislative delegation.”).
148 Id. at 2376 (Barrett, J., concurring). Though she wrote a separate concurrence, Justice Barrett joined the majority
opinion “in full.” Id.
149 CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon, at 14 (internal
quotation marks omitted).
150 Nebraska, 143 S. Ct. at 2376 (Barrett, J., concurring).
151 See id. at 2377.
152 Id.
153 Id. at 2378.
154 Id.
155 Id.
156 Id. at 2380.
157 Id. (quoting U.S. CONST. art. I, § 1).
158 Id.
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incorporating this context into statutory interpretation, Justice Barrett argued that the Court does
not choose an “inferior-but-tenable” reading of a statute to protect a “judicially specified value”
and avoid a disfavored result.159 Rather, the Court adopts the reading of the statute that is “most
plausible,” considering context (i.e., constitutional structure) “that would be important to a
reasonable observer.”160
Considerations for Congress
Though ED announced the cancellation policy in August 2022, lower court orders prevented ED
from cancelling any federal student loan balances while the Nebraska litigation proceeded.161 The
Court’s subsequent decision in Nebraska ensured that no balances would be canceled under the
policy.162 ED is no longer pursuing cancellation under the HEROES Act.
Hours after the Court’s decision, President Biden announced a “new approach” to providing
“student debt relief to as many borrowers as possible as quickly as possible.”163 This new
approach will be “ground[ed]” in provisions of the Higher Education Act of 1965 (HEA) rather
than in the HEROES Act.164 Section 432 of the HEA states that, with respect to Federal Family
Education Loan Program loans,165 the Secretary may “enforce, pay, compromise, waive, or
release any right, title, claim, lien, or demand, however acquired, including any equity or any
right of redemption.”166
ED is exploring a new cancellation effort through negotiated rulemaking, which governs “all
regulations pertaining to” Title IV of the HEA, the authority for the primary federal student loan
programs.167 ED has completed the first steps in that process, soliciting written comment and
holding a virtual public hearing to “obtain public involvement in the development of proposed
regulations.”168 ED has solicited nominations for negotiators “who represent the communities of
interest that would be significantly affected by the proposed regulations.”169 ED plans to select
negotiated rulemaking committee members from these nominations and work with them to
159 Id. at 2381, 2383.
160 Id. at 2383.
161 Liu and Stiff, supra note 83, at 16–19.
162 Nebraska, 143 S. Ct. at 2375.
163 President Joseph R. Biden, Remarks on the United States Supreme Court Decision on the Federal Student Loan
Debt Relief Program and an Exchange With Reporters, DCPD202300589, at 2–3.
164 Id.
165 Liu and Stiff, supra note 83, at 3–5 (describing the Federal Family Education Loan Program). The large majority of
the federal government’s student loan portfolio, measured in terms of balances owing, originated under the Federal
Direct Loan Program (FDLP). See id. at 5. Loans made under the FDLP generally have the “same terms, conditions,
and benefits” as Federal Family Education Loan Program (FFELP) loans. 20 U.S.C. § 1087e(a)(1). In other litigation,
the federal government has argued that the Secretary’s Section 432 authority is “naturally construed” as either a loan
term or condition of a loan, and thus available for FDLP as well as FFELP loans. See Fed. Resp’ts’ Oppo. to the Appl.
to Stay the J. Entered by the U.S. Dist. Ct. for the N. Dist. of Cal. at 29, Everglades College, Inc. v. Cardona, No.
22A867 (U.S. Apr. 12, 2023).
166 20 U.S.C. § 1082(a)(6).
167 Id. § 1098a(b)(2); see also CRS Report R46756, Negotiated Rulemaking: In Brief, by Maeve P. Carey.
168 20 U.S.C. § 1098a(a)(1); see also Negotiated Rulemaking Committee; Public Hearing, 88 Fed. Reg. 43,069, 43,069
(2023).
169 88 Fed. Reg. at 43,069; see also Negotiated Rulemaking Committee; Negotiator Nominations and Schedule of
Committee Meetings, 88 Fed. Reg. 60,163 (2023).
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propose regulations.170 Proposed regulations could then be submitted for notice-and-comment
rulemaking under the Administrative Procedure Act.171
The Court’s decision in Nebraska could bear on whether a party could establish standing to
challenge a new cancellation rule adopted under Section 432. If a new rule could result in enough
borrower accounts closing to impose a revenue loss on a servicer, that threatened financial injury
could support standing as it did in Nebraska.
Nebraska may also shed light on whether, as a substantive matter, Section 432 would authorize a
new cancellation rule. The majority described its analysis as primarily an application of “the
ordinary tools of statutory interpretation” to the HEROES Act’s operative verbs and their
objects.172 For example, the Secretary could not cancel loan balances using a HEROES Act
waiver alone because such waivers operate as to “statutory or regulatory requirements,”173 and no
“specific provision” of the HEA created “an obligation on the part of student borrowers to pay
back the Government.”174 Section 432, by contrast, uses different relevant verbs and objects.
Section 432 permits waiver (or compromise or release) of “right[s]” the United States has
acquired under certain federal student loans.175 A textual analysis of Section 432 could thus lead
to a different result than the Court’s analysis of the HEROES Act.
The Court’s opinion also shows a broad-based loan cancellation rule could be subject to major
questions scrutiny. Such a new rule could address an issue, federal student loan cancellation, that
the Court has already identified to have political significance.176 A new rule could also have
economic significance on the order of prior agency actions scrutinized under the doctrine.177 In
deciding to apply the major questions doctrine, the Court in Nebraska also compared past uses of
the HEROES Act to the cancellation policy, concluding that the Secretary “never previously
claimed powers of this magnitude” under the statute.178 Unlike the Secretary’s prior HEROES Act
uses, ED claims that in recent years it has used Section 432 to provide group-based discharges,
some of which discharged (or will discharge) substantial aggregate amounts.179
Outside the Section 432 context, the Court’s decision will likely guide future uses of HEROES
Act authority. Under the Court’s interpretation, ED may, in connection with a war or other
military operation or national emergency, use the HEROES Act to excuse (i.e., “waive”)
compliance with particular legal requirements that apply to Title IV programs to pursue
authorized ends.180 ED may also modestly adjust (i.e., “modify”) such Title IV-relevant
170 88 Fed. Reg. at 43,069; see also 88 Fed. Reg. at 60,164 (scheduling committee sessions starting in October 2023).
171 See 5 U.S.C. § 553.
172 Nebraska v. Biden, 143 S. Ct. 2355, 2375 (2023).
173 20 U.S.C. § 1098bb(a)(1).
174 Nebraska, 143 S. Ct. at 2370.
175 20 U.S.C. § 1082(a)(6).
176 Nebraska, 143 S. Ct. at 2373 (“Congress is not unaware of the challenges facing student borrowers.”).
177 See id. at 2373 (noting that prior to Nebraska the Court had applied major questions scrutiny to agency actions with
economic significance one-tenth as much as the cancellation policy).
178 Id. at 2372.
179 See Liu and Stiff, supra note 83, at 35 (describing prior claimed uses of Section 432 authority). The largest of these
group-based discharges, the product of a settlement agreement in the case captioned Sweet v. Cardona, is ongoing. See
U.S. DEP’T OF EDUC., FIRST QUARTERLY REPORT UNDER SETTLEMENT AGREEMENT IN SWEET ET AL. V. CARDONA (2023)
(reflecting settlement administration as of May 30, 2023).
180 Nebraska, 143 S. Ct. at 2370.
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provisions.181 Broader authority than that—such as the authority that Justice Kagan’s opinion
would have found182—would require statutory amendment.
Finally, the Court’s decision underscores the continued relevance of the major questions doctrine
for Congress and agencies alike. The federal government urged a relatively limited application of
the doctrine. It argued that the doctrine had applied before only to “assertions of regulatory
authority” and not also to exercises of authority “over a government benefit program to provide
additional relief to beneficiaries.”183 The Court rejected this distinction, endorsing a relatively
broader scope. Chief Justice Roberts wrote that it “would be odd to think that separation of
powers concerns evaporate simply because the Government is providing monetary benefits rather
than imposing obligations.”184 Thus, if Congress intends to broadly delegate decisionmaking
authority to an agency on an issue with major economic and political significance—including for
a benefits program—Congress might wish to factor potential major questions scrutiny into the
terms of its delegation.
Students for Fair Admissions Inc. v. President &
Fellows of Harvard College and Students for Fair
Admissions v. University of North Carolina: RaceBased Affirmative Action in Higher Education185
In addition to deciding questions of statutory interpretation in Sackett and Nebraska, the Supreme
Court’s term also featured important questions of constitutional law. Among those constitutional
issues, the Court’s consideration of race-based affirmative action is particularly notable.
On June 29, 2023, the Court issued a decision186 upending precedent187 that had previously
permitted limited consideration of race in higher education admissions. In an opinion deciding a
pair of cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College188 and
Students for Fair Admissions, Inc. v. University of North Carolina,189 the Court held that the
schools’ use of race in admissions violated the Constitution’s equal protection principles.190 Many
commentators had been expecting this outcome.191 The case will constrain race-based affirmative
action in higher education admissions at private and public colleges and universities.
181 Id. at 2369.
182 See supra note 143 and accompanying text.
183 Br. of Pet’rs at 48, Biden v. Nebraska, No. 22-506, and Dep’t of Educ. v. Brown, No. 22-535 (U.S. Jan. 4, 2023)
(internal quotation marks omitted).
184 Nebraska, 143 S. Ct. at 2375 (referring to King v. Burwell, 576 U.S. 473 (2015), as an example of the Court
applying the major-questions-type considerations to a statute that “involved government benefits”).
185 April J. Anderson, CRS Legislative Attorney, authored this section of the report.
186 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023).
187 Grutter v. Bollinger, 539 U.S. 306 (2003).
188 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020), rev’d, 143
S. Ct. 2141 (2023).
189 Students for Fair Admissions, Inc. v. Univ. of N.C., 567 F. Supp. 3d 580 (M.D.N.C. 2021), cert. granted before
judgment, 142 S. Ct. 896 (2022), and rev’d 142 S. Ct. 896 (2022).
190 Students for Fair Admissions, 143 S. Ct. at 2141.
191 See Mark J. Drozdowski, Supreme Court Separates Harvard, UNC-Chapel Hill Affirmative Action Cases, BEST
(continued...)
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Background
The two Students for Fair Admissions cases build on a long history of affirmative action cases.
After failing to identify a precedential rule in its splintered 1978 decision in University of
California Regents v. Bakke,192 the Supreme Court in the 2003 case of Grutter v. Bollinger held
that the Fourteenth Amendment’s Equal Protection Clause allows limited consideration of race in
higher education admissions.193 In general, equal protection requires that government entities—
including state-run universities—avoid distributing benefits or burdens based on race, unless
those classifications meet a high bar.194 To justify race-based action, the government must identify
a compelling government interest and show that its policy is narrowly tailored to pursue that
interest.195 This test is known as “strict scrutiny.”196 Judges and commentators regularly observe
that government classifications using race most often fail strict scrutiny and are held
unconstitutional.197
In Grutter, the Court held that colleges and universities can have a compelling interest in building
student body diversity, justifying some use of race in higher-education admissions, at least as a
plus factor in a holistic consideration of applicants.198 To justify the use of race, however, a
university must first establish its interest in diversity and, second, show its policies consider race
no more than needed.199
The Grutter Court allowed schools to seek “the educational benefits that flow from a diverse
student body” and to “enroll a ‘critical mass’ of [underrepresented] minority students” so that
those students felt “encourage[d] ... to participate in the classroom.”200
The Court in Grutter also held that a school’s race-based admissions preference can be narrowly
tailored when it does not use numerical targets or a quota system.201 Rather, the Court required
schools to use an admissions plan “flexible enough to ensure that each applicant is evaluated as
an individual.”202 In a companion case, Gratz v. Bollinger, the Court rejected a state university
admissions program that “automatically” awarded admissions points to minority applicants.203
COLLEGES (Aug. 1, 2022), https://www.bestcolleges.com/news/analysis/supreme-court-separates-harvard-uncaffirmative-action-cases/; Michael Burke, Supreme Court Conservative Majority Signals Opposition to Affirmative
Action, EDSOURCE (Oct. 31, 2022), https://edsource.org/2022/supreme-court-conservative-majority-signals-oppositionto-affirmative-action/680730.
192 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
193 Grutter v. Bollinger, 539 U.S. 306, 333 (2003).
194 See Graham v. Richardson, 403 U.S. 365, 372 (1971).
195 Grutter, 539 U.S. at 326.
196 U.S. CONST. amend. 14 § 1.8.4.2.
197 See Fullilove v. Klutznick, 448 U.S. 448, 507 (1980) (Powell, J., concurring); Margaret A. Sewell, Note, Adarand
Constructors, Inc. v. Pena: The Armageddon of Affirmative Action, 46 DEPAUL L. REV. 611, 620 (1997). In the
Students for Fair Admissions cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 980
F.3d 157, (1st Cir. 2020); Students for Fair Admissions, Inc. v. University of North Carolina, 567 F. Supp. 3d 580
(M.D.N.C. 2021) and in the Court’s prior affirmative action precedent, Grutter, 539 U.S. at 306, the parties did not
dispute that they engaged in race-based decisionmaking. This report therefore does not address the legal meaning of
race or when a classification is based on race.
198 Id. at 340–34.
199 CRS Report R45481, “Affirmative Action” and Equal Protection in Higher Education, by Christine J. Back, at 32;
Grutter, 539 U.S. at 334.
200 Grutter, 539 U.S. at 318, 328–29 (cleaned up).
201 Id. at 330.
202 Id. at 337.
203 Gratz v. Bollinger, 539 U.S. 244 (2003).
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The Court also assumed that schools would continue to pursue race-neutral options and
contemplated that “25 years from now, the use of racial preferences will no longer be necessary to
further the interest approved today.”204 The Court never extended the diversity justification to
other contexts, such as employment or secondary school zoning.205
The Supreme Court later returned to the issue of affirmative action in higher education and
addressed these standards further, in two cases both named Fisher v. University of Texas.206 In
Fisher I, decided in 2013, the Court required universities to describe concretely the diversityrelated educational goals their policies serve.207 In Fisher II, decided in 2016, the Court upheld
the University of Texas’s race-conscious admissions policy against the challenger’s arguments
that the university must instead, as a race-neutral alternative, expand its policy of admitting the
top ten percent of students from the state’s high schools.208 The Court stated that the ten-percent
plan did not meet the university’s diversity goal and would require the university to give up other
admissions criteria.209
While Grutter and the Fisher cases considered constitutional constraints on public institutions,
the same rules apply to private schools (like Harvard) that accept federal funds, as they are bound
by the antidiscrimination requirements of Title VI of the Civil Rights Act of 1964.210 Thus far, the
Court has held that Title VI and the Constitution’s equal protection guarantees impose the same
standards.211
The Supreme Court’s Opinion
Students for Fair Admissions (SFFA), petitioner in both cases decided this term, includes
university applicants who allege that they were denied admission to the University of North
Carolina (UNC) or Harvard because of their race.212 The Court issued one majority opinion in
both cases.213 Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and
Barrett, concluded that the two schools’ affirmative action admissions policies, in seeking
student-body diversity, “lack sufficiently focused and measurable objectives warranting the use of
race,” among other things.214 Citing Grutter’s requirement that race-based decisions must “end”
at “some point,” the Court held that the admissions policies violated equal protection.215
A “Color-Blind” Interpretation of the Fourteenth Amendment and Brown v.
Board of Education
Although the Court majority in the Students for Fair Admissions cases acknowledged that strict
scrutiny affords the government a narrow pathway to make race-based decisions, it held that
204 Grutter, 539 U.S. at 343.
205 See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 722 (2007).
206 Fisher v. Univ. of Tex. (Fisher I), 570 U.S. 297 (2013); Fisher v. Univ. of Tex. (Fisher II), 579 U.S. 365 (2016).
207 Fisher I, 570 U.S. at 310.
208 Fisher II, 579 U.S. at 365.
209 Id. at 385.
210 Grutter, 539 U.S. at 306; Fisher I, 570 U.S. at 297; Fisher II, 579 U.S. at 365; 42 U.S.C. 2000d.
211 Grutter, 539 U.S. at 343.
212 Students for Fair Admissions v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2158 (2023).
213 Id. at 2154.
214 Id. at 2175.
215 Id. at 2165.
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pathway must comport with a “color-blind” approach to equal protection jurisprudence.216 In
other words, the majority reasoned that the Constitution required it to apply the same level of
scrutiny to classifications that purport to benefit racial minorities as it applies to classifications
seeking to harm them—all racial classifications are equally suspect. The Court pointed to
lawmakers’ statements from around the time of passage of the Fourteenth Amendment describing
“absolute equality of all citizens” and the law’s application “without regard to color.”217 The
Court also cited the United States’ brief in Brown v. Board of Education, the case ending public
school segregation, which argued that the Constitution “should not permit any distinctions of law
based on race or color.”218 In the Court’s view, Brown requires that public education “be made
available to all on equal terms,” and the Fourteenth Amendment means that a state cannot “use
race as a factor in affording educational opportunities among its citizens.”219 “Eliminating racial
discrimination,” the Court stated, “means eliminating all of it.”220
Measurable Objectives, Race as a Disadvantage, and Time Limits
The Court observed that Grutter “expressed marked discomfort with the use of race in college
admissions,” characterizing racial classifications as “dangerous.”221 As a result, the Grutter Court
deemed permissible race-based government action “subject to continuing oversight.”222 In
Students for Fair Admissions, the Court concluded that the schools’ admissions programs utilizing
race did not survive that oversight for three primary reasons: the schools’ plans (1) lacked
measurable objectives; (2) used race to disadvantage and to stereotype students; and (3) had no
end date or other goal to mark a stopping point.223
To begin with, the Court stated that it could not “license separating students on the basis of race
without an exceedingly persuasive justification that is measurable and concrete enough to permit
judicial review.”224 The Court found Harvard’s and UNC’s diversity goals lacking—too
“amorphous” and not “sufficiently measurable” to allow meaningful judicial review.225 The
schools argued that they aimed to promote diverse viewpoints, prepare productive citizens and
leaders, and foster cross-racial understanding.226 The Court concluded that courts cannot measure
these “elusive” and “standardless,” if “worthy,” goals.227 In the Supreme Court’s view, even if
courts could quantify these objectives, they could not declare them accomplished with sufficient
certainty to know when affirmative action should end.228 Student-body racial diversity is hard to
measure even in demographic terms, the majority concluded, because the schools omit some
categories (such as Middle Easterners) and lump others together (including South Asians and East
216 Students for Fair Admissions, 143 S. Ct. at 2161, 2175 (internal quotation marks omitted).
217 Id. at 2159.
218 Id. (quoting Supplemental Brief for the United States on Reargument at 41, Brown v. Bd. of Educ., 347 U.S. 483
(1954) (No. 1), 1953 WL 78291, at *41.
219 Id. at 2147, 2160 (cleaned up).
220 Id. at 2161.
221 Id. at 2165 (quoting Grutter, 539 U.S. at 342).
222 Id.
223 Id. at 2175.
224 Id. at 2168.
225 Id. at 2166.
226 Id. at 2166–67.
227 Id. at 2167.
228 Id. at 2141.
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Asians and all Hispanics).229 In contrast, the majority observed that other interests the Court has
recognized as justifying race-based action can be reliably assessed: courts can evaluate whether
the potential for racial violence so threatens prison security as to justify inmate segregation and
can gauge when race-based remedies have alleviated the effects of de jure segregation.230
In addition, the Supreme Court majority determined that the schools’ use of race disadvantaged
some students.231 While Grutter and Bakke allowed race be used as a “plus” factor for specific
applicants, the Court in the Students for Fair Admissions cases determined that the schools’
admissions programs reduced Asian and white admissions rates.232 The Court observed that since
admissions are “zero-sum,” providing a benefit “to some applicants but not to others necessarily
advantages the former group at the expense of the latter.”233
The Court also held that the schools’ admissions programs violated equal protection principles
barring racial stereotyping by establishing an “inherent benefit” in “race for race’s sake.”234
Quoting Grutter, the Court said that “universities may not operate their admissions programs on
the ‘belief that minority students always (or even consistently) express some characteristic
minority viewpoint on any issue.’”235 In the Court’s view, the schools’ admissions programs based
on fostering diversity evinced such a belief, assuming students “of a particular race, because of
their race, think alike.”236
Finally, the Court emphasized Grutter’s requirement that race-based admissions programs be
temporary.237 “This requirement was critical,” the majority stated, “and Grutter emphasized it
repeatedly.”238 A time limit was “the reason the Court was willing to dispense temporarily with
the Constitution’s unambiguous guarantee of equal protection,” in the Court’s view.239 Yet with
respect to Harvard’s and UNC’s admissions plans, the Court pointed out that some twenty years
after Grutter, the schools admitted they had no timeline in mind for ending consideration of
race.240 In addition to avoiding any specific timeline, the Court concluded, the institutions offered
no demographic “benchmark” or goal that could, if achieved, mark the end of the schools’ need
for affirmative action.241 The Court condemned what it termed the plans’ “numerical
commitment” to diversity, evidenced in consistent rates of minority admissions year-to-year.242
The results, the Court said, resembled the “‘racial balancing’” forbidden by precedent and
portended that consideration of race would continue.243 The parties’ intent to employ affirmative
229 Id. at 2167–68.
230 Id.
231 Id. at 2166.
232 Id. at 2164 (quoting Bakke, 438 U.S. at 317).
233 Id. at 2169.
234 Id. at 2170.
235 Id. at 2169 (quoting Grutter, 539 U.S. at 333).
236 Id. at 2170 (quoting Miller v. Johnson, 515 U.S. 900, 911–12 (1995)).
237 Id. at 2169 (quoting Grutter, 539 U.S. at 333).
238 Id. at 2165.
239 Id.
240 Id. at 2172.
241 Id. at 2170.
242 Id. at 2171.
243 Id. at 2172 (quoting Fisher I, 570 U.S. 297, 311 (2013)).
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action until racial “stereotypes have broken down” also promised no identifiable end point, in the
Court’s view.244
The Decision and Grutter
Although the Supreme Court in the Students for Fair Admissions cases invalidated Harvard’s and
UNC’s affirmative action admissions programs, it did not explicitly overrule Grutter.245 The Court
held that the schools’ programs were unconstitutional because they did not use measurable
objectives, used race to disadvantage some students, relied on stereotyping, and lacked
“meaningful end points.”246 The Court viewed these characteristics as contravening the
boundaries of race-based decisionmaking in the Court’s equal protection jurisprudence.247 In so
holding, the Court based its ruling, at least in part, on a conclusion that the schools’ policies did
not comply with Grutter.
Nevertheless, Students for Fair Admissions leaves in doubt whether any form of race-based
admissions program—even the program actually at issue in Grutter—could satisfy equal
protection principles. The majority in the case emphasized Grutter’s requirement that race-based
action be temporary, observing that the Court did not “bless[] such programs indefinitely.”248
While the Court in Students for Fair Admissions did not explicitly address Grutter’s application
to other institutions’ plans, it stated that “universities may not” use “the regime we hold unlawful
today.”249
The Court expressly avoided addressing one area where Grutter may still apply: military service
academies. Explaining that the government had argued that race-based admissions programs
further compelling government interests in diversity at the nation’s military academies, the Court
stated that these institutions were not parties and that its opinion did “not address the issue, in
light of the potentially distinct interests that military academies may present.”250
Concurring and Dissenting Opinions
In both cases, Justices Thomas, Gorsuch, and Kavanaugh wrote concurring opinions.251 Justice
Thomas argued that the Fourteenth Amendment bans legal distinctions based on race.252 It is not
designed, Thomas wrote, to thwart subordination of blacks by forbidding “only laws that hurt, but
not help, blacks.”253 It is, in his opinion, “colorblind.”254 “History has repeatedly shown that
244 Id.
245 Robert Barnes, Supreme Court Rejects Race-Based Affirmative Action in College Admissions, WASH. POST. (June
29, 2023, 8:24 PM), https://www.washingtonpost.com/politics/2023/06/29/affirmative-action-supreme-court-ruling/.
246 Students for Fair Admissions, 143 S. Ct. at 2175.
247
Id.
248 Id. at 2174.
249 Id. at 2176.
250 Id. at 2166 n.4.
251 Id. at 2176 (Thomas, J., concurring), 2208 (Gorsuch, J., with Thomas, J., concurring), 2221 (Gorsuch, J.,
concurring).
252 Id. at 2177, 2180 (Thomas, J., concurring). Justice Thomas acknowledged that strict scrutiny permits narrow
measures that compensate victims of past governmental discrimination. Id. at 2192.
253 Id. at 2185.
254 Id.
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purportedly benign discrimination may be pernicious, and discriminators may go to great lengths
to hide and perpetuate their unlawful conduct,” he reasoned.255
Justice Thomas also concluded that affirmative action may harm minority students by
stigmatizing them and placing some in educational environments where they are less prepared
than fellow students.256 In addition, he noted, race-based policies stoke resentment and “burden
millions of applicants who are not responsible for the racial discrimination that sullied our
Nation’s past.”257 Addressing the dissenters’ arguments that affirmative action promotes social
equality, Justice Thomas reasoned that “any statistical gaps between the average wealth of black
and white Americans is constitutionally irrelevant.”258
In his concurring opinion, joined by Justice Thomas, Justice Gorsuch focused on the
antidiscrimination requirements of Title VI, concluding that “a recipient of federal funds may
never discriminate based on race, color, or national origin—period.”259 Justice Kavanaugh also
concurred, emphasizing Grutter’s requirement that affirmative action have a 25-year time limit.260
Justice Sotomayor (joined by Justices Kagan and Jackson261) filed a dissenting opinion, stating
that the majority decision “rolls back decades of precedent and momentous progress.”262 In the
dissenters’ view, the “expansive,” race-neutral language of the Fourteenth Amendment does not
bar race-based decision making in all cases, and the schools’ use of race would pass strict
scrutiny.263 Black people were the intended beneficiaries of the Fourteenth Amendment and other
acts of the Reconstruction Congress, they stated.264 The dissenters claimed that educational
opportunity is a prerequisite for the racial equality that the Fourteenth Amendment and decisions
like Brown aimed to promote. From their perspective, Brown’s goal “was to achieve a system of
integrated schools that ensured racial equality of opportunity, not to impose a formalistic rule of
race-blindness.”265 The dissenters predicted a “devastating impact” and “a sharp decline” in
minority student enrollment in the nation’s colleges and universities, and stated that the majority
decision “further entrenches racial inequality by making these pipelines to leadership roles less
diverse.”266
Justice Jackson also authored a dissent, which Justices Sotomayor and Kagan joined, in the case
against UNC.267 Justice Jackson recounted the nation’s history with slavery, reconstruction, and
segregation, stating that “[t]he race-based gaps that first developed centuries ago are echoes from
the past that still exist today.”268 She characterized the majority’s “colorblindness” approach as
255 Id. at 2191.
256 Id. at 2198.
257 Id. at 2200, 2201.
258 Id. at 2202.
259 Id. at 2209 (Gorsuch, J., with Thomas, J., concurring).
260 Id. at 2224 (Kavanaugh, J., concurring).
261 Justice Jackson joined only in the case against UNC. She was recused in the case against Harvard.
262 Id. at 2225–26 (Sotomayor, J., with Kagan, J., and Jackson, J., dissenting), 2263 (Jackson, J., with Sotomayor, J.,
and Kagan, J., dissenting).
263 Id. at 2228, 2242 (Sotomayor, J., with Kagan, J., and Jackson, J., dissenting).
264 Id. at 2227–29.
265 Id. at 2231.
266 Id. at 2260, 2262, 2263.
267 Id. at 2263 (Jackson, J., with Sotomayor, J., and Kagan, J., dissenting).
268 Id. at 2268–69.
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“let-them-eat-cake obliviousness.”269 Citing disparities in wealth, education, employment,
homeownership, health, and other metrics, Jackson concluded that the school’s race-based
preferences amounted “to a personalized assessment of the advantages and disadvantages that
every applicant might have received by accident of birth.”270 “[R]equiring colleges to ignore the
initial race-linked opportunity gap between applicants,” Justice Jackson wrote, “will inevitably
widen that gap.”271
Considerations for Congress
While the Supreme Court struck down Harvard’s and UNC’s race-based admissions preferences,
it did not bar all use or mention of race in higher education admissions. For one thing, the Court
acknowledged that nothing barred schools from “considering an applicant’s discussion of how
race affected his or her life, be it through discrimination, inspiration, or otherwise,” in written
submissions such as admissions essays. The majority cautioned, however, that schools could “not
simply establish through application essays or other means the regime we hold unlawful today.”
Rather, consideration would have to be based on each applicant’s “experiences as an individual—
not on the basis of race.”
Additionally, other Supreme Court precedent recognizes that remedying educational institutions’
past discrimination is a compelling government interest that is distinct from an interest in
fostering student-body diversity. Remedying general, societal discrimination, however, is not a
sufficient compelling government interest. In the Students for Fair Admissions cases, the schools
did not claim to be remedying past discrimination.
The Court’s ruling in the Students for Fair Admissions cases will require changes in college and
university affirmative action programs that rely on race. Private institutions that accept federal
funds are subject to federal antidiscrimination requirements under Title VI, and will also be
expected to comply with the Court’s ruling. Nationwide, a minority of institutions—mostly
highly selective institutions—use such programs. Some states have banned affirmative action in
their institutions.
More broadly, the Court has recognized achieving diversity as a compelling government interest
only in higher education admissions. While the decision in the Students for Fair Admissions cases
shows the Court’s reluctance to approve race-based action, it does not control other areas such as
employment, grants, or contracts—areas in which the constitutionality of affirmative action
programs is already more restricted.
Congress cannot change the Supreme Court’s interpretation of the Equal Protection Clause.
Congress could, however, amend Title VI272 so that it is no longer interpreted congruently with
that provision.
Congress could expressly encourage or require diversity-enhancing measures under Title VI.273
Congress could not require unconstitutional action, such as mandating racial quotas or the kinds
of admissions programs struck down by the Court in Students for Fair Admissions.274 It could
require or encourage schools to take other measures, such as tracking minority recruiting,
269 Id. at 2277.
270 Id. at 2273.
271 Id. at 2274.
272 42 U.S.C. § 2000d.
273 Id.
274 Students for Fair Admissions, 143 S. Ct. at 2141.
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admission, and retention; developing plans to enhance minority recruiting or retention; or
appointment of diversity coordinators, Title VI coordinators, or advisory committees. Congress
could also consider encouraging or requiring colleges to employ non-racial admissions criteria
that may enhance diversity, although it is not clear how the Court might rule on such measures.
303 Creative LLC v. Elenis: Free Speech Exceptions
to Nondiscrimination Law275
In 303 Creative LLC v. Elenis, the Supreme Court ruled that the First Amendment’s Free Speech
Clause barred a state from enforcing its nondiscrimination law against a website designer who did
not want to create websites for same-sex weddings.276 In recent years, the Supreme Court has
been presented with a number of appeals involving religious objections to complying with
nondiscrimination laws.277 The Court’s rulings on these prior appeals addressed protections for
religious exercise. Although the plaintiff’s objections in 303 Creative were religiously motivated,
the case focused on the scope of Free Speech Clause protections for her speech. Accordingly,
while the case is relevant for those with religious objections to federal laws, it also has broader
free speech implications.
Background
The plaintiff in 303 Creative was a graphic artist and website designer who challenged Colorado’s
nondiscrimination law on behalf of herself and her company.278 Her business, 303 Creative,
creates custom websites for clients—but according to the petitioner, she will not create any
content that contradicts her religious beliefs, including her belief that marriage is “solely the
union of one man and one woman.”279 At the time she filed her lawsuit, she did not offer
wedding-related design services but alleged that she wanted to expand her business.280 If she did
offer services to weddings, she would not create websites or offer other services for same-sex
weddings.281
Colorado law prohibits “public accommodations” (essentially, businesses offering goods or
services to the public) from refusing service on the basis of certain protected characteristics,
including race, sex, or sexual orientation.282 The petitioner was concerned her refusal to serve
same-sex weddings would violate that law.283 She brought a pre-enforcement challenge arguing
that if Colorado enforced this law in a way that forced her to provide services to same-sex
275 Valerie C. Brannon, CRS Legislative Attorney, authored this section of the report.
276 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2321–22 (2023).
277 See, e.g., CRS Legal Sidebar LSB10833, Religious Objections to Nondiscrimination Laws: Supreme Court October
Term 2022, by Valerie C. Brannon; CRS Legal Sidebar LSB10311, Supreme Court Vacates Another Opinion Applying
Antidiscrimination Laws to Religious Objectors, by Valerie C. Brannon.
278 303 Creative LLC, 143 S. Ct. at 2308.
279 Brief for the Petitioners at 5, 303 Creative LLC, 143 S. Ct. 2298 (2023) (No. 21-476).
280 Id. at 6–7.
281 Id.
282 COLO. REV. STAT. § 24-34-601. Title II of the federal Civil Rights Act of 1964 also prohibits discrimination in
“public accommodations,” but more narrowly includes only four categories of business establishments. 42 U.S.C. §
2000a(b); see generally CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back.
283 Brief for the Petitioners at 8–9, 303 Creative LLC, 143 S. Ct. 2298 (2023) (No. 21-476).
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weddings, the state would violate the federal Constitution’s protections for speech and religion.284
As relevant to the Supreme Court decision, she argued that forcing her to design websites for
same-sex weddings would impermissibly compel her to speak in violation of the First
Amendment’s Free Speech Clause.285
The Free Speech Clause of the First Amendment prevents the government from “abridging the
freedom of speech.”286 It protects “both the right to speak freely and the right to refrain from
speaking at all.”287 The Supreme Court has applied a variety of different frameworks to assess
whether a government action compelling speech violates the First Amendment.288 For instance, in
a 2018 case considering disclosure requirements imposed on pregnancy centers, the Supreme
Court suggested that when the government compels a person “to speak a particular message,” it
will usually trigger strict scrutiny, requiring the government to prove a law is narrowly tailored to
a compelling interest.289 As in the context of the Equal Protection Clause doctrine that was at
issue in Students for Fair Admissions discussed earlier, this is a standard the government will
usually fail.290 However, the Court has applied lower levels of constitutional scrutiny in a variety
of contexts.291
One disputed issue in 303 Creative was whether the state would be targeting speech or conduct.
In general, a law that targets conduct is more likely to survive First Amendment review. The First
Amendment is not implicated if the government regulates only conduct that is not inherently
expressive.292 In some cases, the Court has said that even if the government is regulating
expression, if the law is primarily directed at conduct and only incidentally burdens speech,
courts should apply a lower constitutional standard known as intermediate scrutiny.293 This
intermediate scrutiny standard requires the government to show the statute “furthers an important
or substantial governmental interest ... unrelated to the suppression of free expression” and “the
incidental restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.”294 The Court had previously suggested this doctrine might be
relevant to nondiscrimination laws in a compelled speech case.295 In dicta, the Court said that a
nondiscrimination law will generally only regulate speech “incidental” to the law’s “regulation of
conduct,” so that it is unlikely to violate the First Amendment.296 For example, because Congress
284 303 Creative LLC v. Elenis, 6 F.4th 1160, 1170 (10th Cir. 2021), rev’d, 143 S. Ct. 2298 (2023).
285 303 Creative LLC, 143 S. Ct. at 2308. While her petition for certiorari raised arguments under both the Free Speech
and Free Exercise Clauses of the First Amendment, the Supreme Court granted certiorari only on the free speech issue.
286 U.S. CONST. amend. I.
287 Wooley v. Maynard, 430 U.S. 705, 714 (1977).
288 See CRS In Focus IF12388, First Amendment Limitations on Disclosure Requirements, by Valerie C. Brannon et al.
289 Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018).
290 See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (saying that a content-based law subject to strict scrutiny is
“presumptively unconstitutional”).
291 See, e.g., CRS Report R45700, Assessing Commercial Disclosure Requirements under the First Amendment, by
Valerie C. Brannon; PruneYard Shopping Center v. Robins, 447 U.S. 74, 88 (1980) (holding that a state could
constitutionally require a shopping center to provide access to third parties circulating petitions).
292 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006).
293 See Holder v. Humanitarian Law Project, 561 U.S. 1, 26–28 (2010) (outlining when this standard applies, but
concluding strict scrutiny applied in the case before the court, where the application of the statute depended on the
content of a message communicated by the plaintiffs).
294 United States v. O’Brien, 391 U.S. 367, 377 (1968).
295 Forum for Acad. & Institutional Rights, Inc., 547 U.S. at 62.
296 Id.
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can prohibit the conduct of racial discrimination in employment, it could also prohibit the
associated speech of “a sign reading ‘White Applicants Only.’”297
In contrast, in a 1995 case, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,
Inc., the Supreme Court held that a state could not use its laws prohibiting discrimination in
public accommodations to force a parade organizer to include a gay and lesbian group in a
parade.298 A state court had concluded that any infringement on the organizer’s First Amendment
rights was justified as “incidental” to the law’s regulation of conduct.299 In ruling to the contrary,
the Supreme Court ruled first that parades—and the selection of parade participants—qualify as
expressive conduct.300 The marchers were “making some sort of collective point, not just to each
other but to bystanders along the way.”301 The Court said this application of the state law “had the
effect of declaring the [parade] sponsors’ speech itself to be the public accommodation” and
violated “the fundamental rule ... that a speaker has the autonomy to choose the content of his
own message.”302 The Hurley opinion did not expressly clarify whether intermediate or strict
scrutiny applied to the state’s action or address the idea of incidental regulation of speech, but
merely said that, as a general rule, the government “may not compel affirmance of a belief with
which the speaker disagrees.”303
In 303 Creative, the federal appeals court agreed that forcing the plaintiff to create websites
would implicate the First Amendment’s protections against compelled speech, and it applied strict
scrutiny.304 It also ruled, however, that the state satisfied this rigorous standard, saying the state’s
interest in ensuring equal access to publicly available services could justify applying its
nondiscrimination law.305
The Supreme Court’s Opinion
In a 6-3 opinion authored by Justice Gorsuch, the Supreme Court sided with the graphic designer.
The Court first addressed the procedural posture of the case. Colorado had not sought to compel
297 Id. The Supreme Court cited a doctrine holding that speech integral to criminal conduct is generally considered to be
unprotected by the First Amendment, perhaps suggesting that no constitutional scrutiny should apply. Id. (citing
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)). See generally CRS In Focus IF11072, The First
Amendment: Categories of Speech, by Victoria L. Killion. However, as previously noted, other cases have applied
intermediate scrutiny to incidental regulations of speech, and this is the standard the state argued should apply if the
law incidentally regulated speech. Brief on the Merits for Respondents at 25, 303 Creative LLC v. Elenis, 143 S. Ct.
2298 (2023) (No. 21-476).
298 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 572–73 (1995). See also, e.g., Boy
Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000) (rejecting the application of intermediate scrutiny where a state’s
“public accommodations law directly and immediately affects associational rights,” and saying instead that the state’s
interests “do not justify such a severe intrusion on the ... freedom of expressive association”).
299 Hurley, 515 U.S. at 563.
300 Id. at 572–73.
301 Id. at 568.
302 Id. at 573.
303 Id. For this proposition, the Court cited West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642
(1943), a case in which the Court ruled a school could not force an unwilling student to recite the Pledge of Allegiance.
In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 62 (2006), in contrast, the Court said it
would “trivialize[] the freedom protected in Barnette” to pretend that the conduct at issue in that case (conditioning
federal funds on a school’s willingness to host military recruiters) was “the same.”
304 303 Creative LLC v. Elenis, 6 F.4th 1160, 1177–78 (10th Cir. 2021), rev’d, 143 S. Ct. 2298 (2023).
305 Id. at 1182.
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the designer to make any websites for marriages,306 and in its briefs, argued that the case was not
ripe for resolution.307 The Supreme Court, however, noted generally that the parties did not
dispute the appeals court’s conclusion that the designer established a “credible threat” of state
enforcement if she refused to create same-sex wedding sites.308
The Court then concluded that the custom wedding websites qualified as “pure speech,”
emphasizing the parties’ stipulation that the designer would “create these websites to
communicate ideas—namely, to ‘celebrate and promote the couple’s wedding and unique love
story’” as well as the designer’s ideas of “a true marriage.”309 The Court further held that the
websites would be “her speech.”310 Although the designer would be sharing a couple’s story and
acting at their direction, combining her speech with the couple’s, the First Amendment protected
her own speech, including her words and original artwork.311 Further, given that each website
would be custom-designed, the Court said the designer’s services could not merely be viewed as
akin to selling “an ordinary commercial product” off the shelves to all customers.312 Accordingly,
the Court ruled that Colorado sought to compel the designer to speak, celebrating marriages she
did not wish to celebrate and creating “an impermissible abridgment of the First Amendment’s
right to speak freely.”313 More broadly, the Court disclaimed a principle that would “allow the
government to force all manner of artists, speechwriters, and others whose services involve
speech to speak what they do not believe.”314 The majority indicated, for example, that the
government could not force “‘an unwilling Muslim movie director to make a film with a Zionist
message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal.’”315
The majority opinion in 303 Creative did not expressly state what level of constitutional scrutiny
it used to evaluate this application of the Colorado nondiscrimination law, although it seemed to
implicitly reject the application of the intermediate scrutiny standard. The Court rejected
Colorado’s argument that the burden on the designer’s speech was incidental to the regulation of
commercial activity, distinguishing prior cases where it had upheld requirements to disclose
factual or “logistical” information.316 The Court said Colorado was forcing a person to speak an
undesired message “about a question of political and religious significance,” which is “something
the First Amendment does not tolerate.”317 The Court said more generally that “[w]hen a state
public accommodations law and the Constitution collide, there can be no question which must
306 At the time of the decision, some media outlets reported that the web designer had never received any actual
requests to create a website for a same-sex marriage. Melissa Gira Grant, The Mysterious Case of the Fake Gay
Marriage Website, the Real Straight Man, and the Supreme Court, THE NEW REPUBLIC (June 29, 2023),
https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court.
The Court did not weigh in on this issue.
307 Brief on the Merits for Respondents at 23, 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023) (No. 21-476).
308 303 Creative LLC, 143 S. Ct. at 2310.
309 Id. at 2312 (quoting Petition for a Writ of Certiorari app. at 187a, 303 Creative LLC, 143 S. Ct. 2298 (2023) (No.
21-476)).
310 Id. at 2313.
311 Id.
312 Id. at 2316.
313 Id. at 2313.
314 Id. at 2313–14.
315 Id. at 2314 (quoting 303 Creative LLC v. Elenis, 6 F.4th 1160, 1199 (10th Cir. 2021) (Tymkovich, C.J., dissenting)).
316 Id. at 2316–18.
317 Id. at 2318.
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prevail.”318 As in Hurley, the Court did not conduct a strict scrutiny analysis, saying only that
requiring this speech would be “an impermissible abridgment” of the First Amendment.319
Dissenting Opinion
Justice Sotomayor wrote the dissent, joined by Justices Kagan and Jackson. She argued that
Colorado’s law “targets conduct, not speech, for regulation, and the act of discrimination has
never constituted protected expression under the First Amendment.”320 The dissent opened by
discussing the history and purposes of public accommodations laws: ensuring equal access and
equal dignity in the public market, and preventing businesses open to the public from engaging in
“unjust discrimination.”321 Justice Sotomayor asserted that the majority opinion “conflates denial
of service and protected expression,” and characterized Colorado’s law as a “valid regulation[] of
conduct.”322 In her view, the law did not dictate the content of the designer’s speech or prohibit
her from speaking her own message; for example, the law would allow the designer to “offer only
wedding websites with biblical quotations describing marriage as between one man and one
woman,” so long as she offered those websites “without regard to customers’ protected
characteristics.”323 Justice Sotomayor claimed that allowing a public business “to define the
expressive quality of its goods or services to exclude a protected group would nullify public
accommodations laws,” allowing a department store, for example, to “sell ‘passport photos for
white people,’” since portrait photography services “are customized and expressive.”324
The dissent would have applied an intermediate level of scrutiny to the law’s “neutral regulation
of commercial conduct.”325 Justice Sotomayor would have held that Colorado could satisfy that
level of scrutiny, noting the state’s compelling interest in eliminating discrimination and the law’s
tailoring to that goal.326 Justice Sotomayor acknowledged that this application of Colorado’s law
“would require the company to create and sell speech.”327 However, the critical factor, in her
view, was that Colorado was only applying the law “to the refusal to provide same-sex couples
the full and equal enjoyment of the company’s publicly available services,” and consequently was
only compelling speech incidental to the content-neutral regulation of conduct.328
Considerations for Congress
The past decade or so has seen a significant number of claims for religious exemptions from
nondiscrimination policies, and the Supreme Court ruled in two earlier cases that state and local
governments violated constitutional protections for religious exercise when Colorado ordered a
baker to make a wedding cake for a same-sex wedding and when Philadelphia attempted to apply
318 Id. at 2315.
319 Id. at 2313.
320 Id. at 2322 (Sotomayor, J., dissenting).
321 Id. at 2322–25.
322 Id. at 2333, 2336.
323 Id. at 2336.
324 Id. at 2337, 2339.
325 Id. at 2337.
326 Id.
327 Id. at 2338.
328 Id.
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nondiscrimination policies to a Catholic foster-care contractor.329 In recent years, however, the
Supreme Court had largely avoided the speech claims it confronted in 303 Creative.330
303 Creative prevents a state from applying its nondiscrimination law in certain circumstances.
The decision only specifically applies to this particular plaintiff, but it could more generally
prevent Colorado and other states from enforcing their nondiscrimination laws in ways that
require other businesses to create speech.331
The ruling also could have implications for the application of federal law. Many of the major
federal statutes prohibiting discrimination do not expressly include sexual orientation as a
protected class.332 However, a number of agencies have regulations expressly prohibiting such
discrimination in federal programs.333 In addition, in 2020, the Supreme Court interpreted Title
VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of
sex, to also prohibit discrimination based on sexual orientation or gender identity.334 This
interpretation raised the question whether other federal laws prohibiting sex discrimination
encompass similar protections,335 and the Department of Health and Human Services (HHS) and
the Department of Education have proposed rules that would interpret the Affordable Care Act
and Title IX to prohibit discrimination on the basis of sexual orientation and gender identity.336
Litigation is ongoing regarding the proper interpretation of these other federal laws.337
Some of these federal laws have limited exceptions for religious entities.338 Beyond these
exceptions, some regulated entities have cited the Religious Freedom Restoration Act (RFRA) to
seek broader religious exemptions from federal nondiscrimination requirements.339 One highprofile example came when HHS granted a waiver from nondiscrimination regulations for
religious foster care agencies in South Carolina in 2019—then rescinded the exemption in
329 See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1723 (2018); Fulton v. City of
Philadelphia, 141 S. Ct. 1868, 1882 (2021).
330 E.g., Masterpiece Cakeshop, Ltd., 138 S. Ct. at 1723.
331 Cf., e.g., Chris Geidner, 303 Creative: What Happens When an Arguably Narrow SCOTUS Decision Meets 2023,
LAW DORK (July 13, 2023), https://www.lawdork.com/p/303-creative-what-about-the-fallout (discussing the effects of
303 Creative and predicting business owners may cite the decision as justification for violating nondiscrimination laws
even if they are not engaged in expression protected under that decision).
332 See generally CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back.
333 See, e.g., 29 C.F.R. § 29.7(j) (requiring an equal opportunity statement in apprenticeship agreements); 31 C.F.R.
§ 700.13 (prohibiting discrimination in Federal Law Enforcement Training Centers); 41 C.F.R. § 60-1.4 (requiring
equal opportunity clauses in government contracts).
334 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).
335 See CRS Report R46832, Potential Application of Bostock v. Clayton County to Other Civil Rights Statutes, by
Christine J. Back and Jared P. Cole.
336 Nondiscrimination in Health Programs and Activities, 87 Fed. Reg. 47,824 (Aug. 4, 2022); Nondiscrimination on
the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41,390
(July 12, 2022).
337 See, e.g., CRS Legal Sidebar LSB10953, Transgender Students and School Bathroom Policies: Title IX Challenges
Divide Appellate Courts, by Jared P. Cole and Madeline W. Donley.
338 For example, Title VII, governing employment discrimination, contains exemptions allowing certain religious
organizations to hire and employ individuals of a particular religion in certain circumstances. 42 U.S.C. §§ 2000e-1–2;
see also CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back. Title IX of the
Education Amendments of 1972 also contains a religious exemption. See CRS Report R47613, Title IX’s Religious
Exemption: Agency Practice and Judicial Application, by Jared P. Cole and Christine J. Back.
339 For more information on RFRA, see CRS In Focus IF11490, The Religious Freedom Restoration Act: A Primer, by
Whitney K. Novak.
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2021.340 Ten days before the ruling in 303 Creative, a federal appeals court granted a RFRA
exemption from Title VII to an employer claiming a sincere religious objection.341
303 Creative illuminates another potential avenue to seek an exemption from nondiscrimination
laws, especially in non-religious contexts where RFRA does not apply. The availability of a
RFRA claim turns (in part) on whether the federal government has burdened a person’s religious
exercise.342 In comparison, the protections of the Free Speech Clause extend beyond religious
speech, though the Clause requires a plaintiff to show they were engaged in speech or inherently
expressive activity—that is, activity that communicates something to third parties.343
If plaintiffs can show they are engaged in protected expression, the Free Speech Clause would not
be limited to religiously motivated expression about same-sex marriage. In the future, a web
designer might hypothetically object to designing a site that would “celebrate and promote”344 an
interracial marriage, a gay pride parade, or a religious charity. As Justice Sotomayor’s dissent
highlighted, in the past, business owners have raised First Amendment objections to prohibitions
on race and sex discrimination.345 At least with respect to race discrimination, some have
suggested that applying nondiscrimination laws to First Amendment-protected activity may be
able to satisfy even strict constitutional scrutiny.346 However, the majority opinion in 303 Creative
did not specify the level of scrutiny it applied and could be read as taking an unqualified approach
to these compelled speech claims: nondiscrimination laws cannot be applied to compel speech,
regardless of how strong the government’s interest might be or how well-tailored the law is to that
interest.347
The Court’s decision in 303 Creative leaves significant issues for future litigation. Courts will
have to determine whether, for example, wedding venues or bakers are engaged in speech or
inherently expressive conduct.348 The majority opinion acknowledged that determining which
340 See Letter from Steven Wagner, Principal Deputy Assistant Sec’y, Administration for Children and Families, to
Gov. Henry McMaster (Jan. 23, 2019),
https://governor.sc.gov/sites/governor/files/Documents/newsroom/HHS%20Response%20Letter%20to%20McMaster.p
df; Letter from Joo Yeun Chang, Principal Deputy Assistant Sec’y, Administration for Children and Families, to Gov.
Henry McMaster (Nov. 18, 2021), https://www.acf.hhs.gov/sites/default/files/documents/withdrawal-of-exceptionfrom-part-75.300-south-carolina-11-18-2021.pdf.
341 Braidwood Mgmt., Inc. v. Equal Emp. Opp. Comm’n, 70 F.4th 914, 937 (5th Cir. 2023).
342 42 U.S.C. § 2000bb-1.
343 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006). See also, e.g., United States v.
O’Brien, 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be
labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”).
344 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2312 (2023).
345 Id. at 2331 (Sotomayor, J., dissenting).
346 Cf., e.g., Louise Melling, The New Faith-Based Discrimination, BOSTON REVIEW (Dec. 14, 2022),
https://www.bostonreview.net/articles/the-new-faith-based-discrimination/ (citing cases rejecting religious exercise
arguments in the context of racial discrimination); Bob Jones Univ. v. United States, 461 U.S. 574, 603 (1983) (holding
that the government’s interest “in eradicating racial discrimination in education” was so compelling that it outweighed
any burden imposed on schools’ religious exercise by denying them a tax benefit based on the schools’ racial
discrimination).
347 See 303 Creative LLC, 143 S. Ct. at 2318 (majority opinion) (saying “the First Amendment does not tolerate”
compelled speech absent any analysis of the government’s interest or the necessity of the law).
348 See, e.g., Wedding Venues Are Turning away Same-Sex Couples: A Look at Current Laws and Changing Attitudes,
AMERICAN MARRIAGE MINISTRIES (Apr. 17, 2021), https://theamm.org/articles/703-wedding-venues-are-turning-awaysame-sex-couples-a-look-at-current-laws-and-chan; Klein v. Or Bureau of Labor & Indus., 143 S. Ct. 2686 (2023)
(mem.) (vacating and remanding a case involving a baker’s free speech challenge to a state law prohibiting sexualorientation discrimination, in light of 303 Creative).
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businesses are expressive could “raise difficult questions” in the future.349 Future courts may also
have to decide what level of constitutional scrutiny should govern future free expression
objections to nondiscrimination laws in such circumstances—or whether they should now take an
unqualified approach to claims that “force an individual” to make a statement “about a question
of political and religious significance.”350
These issues may also surface, for example, in disputes over federal or state efforts to regulate
social media platforms. Social media platforms, like the anticipated wedding websites in this
case, “contain ‘images, words, symbols, and other modes of expression.’”351 The Supreme Court
has already been asked to consider free speech challenges to Florida and Texas laws limiting
websites’ ability to take down or restrict user content.352 These lawsuits allege that these state
laws would unlawfully compel the sites to convey speech with which they disagree.353 303
Creative casts doubt on states’ ability to compel websites to communicate messages they do not
wish to endorse: the Supreme Court stated that the government may not “coopt an individual’s
voice for its own purposes” by forcing a business to provide an “outlet for speech.”354 It may be
open to question whether websites that would not be producing custom-designed products for
customers are engaged in equivalent expressive activity to the website designer in 303
Creative.355 Social media platforms may not be considered to “speak[] for pay”356 in the same
way as the website designer. However, the Supreme Court has recognized in other contexts that
private businesses may exercise constitutionally protected “editorial discretion” over speech in
forums they host.357 Apart from forcing websites to host unwanted speech, 303 Creative could
also raise questions about the constitutionality of imposing disclosure requirements on websites to
the extent they would force the sites to make undesired statements “about a question of political
and religious significance.”358 The Court’s opinion could be read to suggest prior cases upholding
factual disclosure requirements in the commercial context might not apply under these
circumstances.359
If Congress were to disagree with the Court’s ruling in this case, its options to respond would be
somewhat limited. Congress cannot alter the protections of the First Amendment absent a
constitutional amendment, so the Free Speech Clause will continue to provide exceptions to
certain applications of federal laws. Future litigation in this area may inform congressional
consideration of issues like the application of federal nondiscrimination laws or other provisions
that could compel businesses to speak.
349 303 Creative LLC, 143 S. Ct. at 2319.
350 See id.
351 Id. at 2312 (quoting Petition for a Writ of Certiorari app. at 181a, 303 Creative LLC, 143 S. Ct. 2298 (2023) (No.
21-476)).
352 NetChoice, LLC v. Att’y Gen., 34 F.4th 1196 (11th Cir. 2022), cert. petitions filed, No. 22-277 (U.S. Sept. 21,
2022) & No 22-393 (U.S. Oct. 24, 2022); NetChoice, LLC v. Paxton, 49 F.4th 439 (5th Cir. 2022), cert. petition filed,
No. 22-555 (U.S. Jan. 18, 2023).
353 See CRS Legal Sidebar LSB10748, Free Speech Challenges to Florida and Texas Social Media Laws, by Valerie C.
Brannon.
354 303 Creative LLC, 143 S. Ct. at 2315.
355 See id. at 2316.
356 Id. at 2313.
357 E.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019).
358 303 Creative LLC, 143 S. Ct. at 2318.
359 See id.
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Appendix. List of Cases360
This table includes cases listed on the Supreme Court’s “granted and noted” list for its October
2022 Term,361 with the following exceptions: (1) cases in which the Court granted certiorari but
subsequently dismissed or remanded the case without a merits opinion; and (2) cases in which the
Court granted a writ of certiorari and set an argument date but subsequently removed that
argument from its calendar. The questions presented are adapted from the Supreme Court’s
statement of the questions presented, which itself often restates the question as framed by the
petitioner in the case. The holdings are adapted in some cases from the syllabus published by the
Supreme Court’s Reporter of Decisions.
Arellano v. McDonough
Argued: 10/4/2022
Decided: 1/23/2023
Topics:
Civil Procedure
Question Presented: In claims against the government related to veterans’ disability
compensation under 38 U.S.C. § 5110(b), is the applicable statute of limitations subject to
a rebuttable presumption that equitable tolling is available?
Holding: Section 5110(b) is not subject to equitable tolling because the statutory scheme
indicates that Congress did not want equitable tolling to apply.
Opinion: Justice Barrett (for the Court)
Bartenwerfer v. Buckley
Argued: 12/6/2022
Decided: 2/22/2023
Topics:
Bankruptcy Law
Question Presented: May an individual be liable for the fraud of another by imputation,
without any act, omission, intent or knowledge of her own, and therefore be barred from
discharge of a debt in bankruptcy under 11 U.S.C. § 523(a)(2)(A)?
Holding: Section 523(a)(2)(A) prevents a debtor from discharging in bankruptcy a debt
obtained by fraud, regardless of the debtor’s own culpability.
Opinions: Justice Barrett (for the Court); Justice Sotomayor (concurring)
360 David Gunter, CRS Section Research Manager, prepared this section of the report.
361 See Granted & Noted List, SUPREME COURT OF THE UNITED STATES,
https://www.supremecourt.gov/orders/22grantednotedlist.pdf.
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Cruz v. Arizona
Argued: 11/1/2022
Decided: 2/22/2023
Topics:
Criminal Law
Question Presented: Was the Arizona Supreme Court’s holding that state rules of criminal
procedure precluded post-conviction relief an adequate state-law ground for the
judgment, therefore precluding review of petitioners’ federal-law claim?
Holding: The Arizona Supreme Court holding was an exceptional case in which the statecourt judgment rests on such a novel and unforeseeable interpretation of a state-court
procedural rule that it is not adequate to foreclose review of the federal claim.
Opinions: Justice Sotomayor (for the Court); Justice Barrett (dissenting)
Helix Energy Solutions Group v. Hewitt
Argued: 10/12/2022
Decided: 2/22/2023
Topics:
Labor and Employment
Question Presented: When determining whether highly compensated supervisors are
exempt from the overtime-pay requirements of the Fair Labor Standards Act, does the
standalone regulatory exemption set forth in 29 C.F.R. § 541.601 remain subject to the
detailed requirements of 29 C.F.R. § 541.604?
Holding: Daily-rate workers, regardless of their income level, qualify as paid on a salary
basis only if the conditions set out in 29 C.F.R. § 541.604(b) are met.
Opinions: Justice Kagan (for the Court); Justice Gorsuch (dissenting); Justice Kavanaugh
(dissenting)
Bittner v. United States
Argued: 11/2/2022
Decided: 2/28/2023
Topics:
Tax Law
Question Presented: The Bank Secrecy Act and its implementing regulations require the
filing of an annual report for anyone with an aggregate balance of over $10,000 in foreign
accounts. Is a “violation” under the Act the failure to file the annual report (no matter the
number of foreign accounts), or is there a separate violation for each individual account
that was not properly reported?
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Holding: The statute’s maximum penalty for the non-willful failure to file a compliant
report accrues on a per-report, not a per-account, basis.
Opinions: Justice Gorsuch (for the Court); Justice Barrett (dissenting)
CRS Resources: CRS Legal Sidebar LSB10774, Supreme Court To Address Foreign
Account Reporting Penalties, by Alexander H. Pepper; CRS Legal Sidebar LSB10938,
Supreme Court Rules Against IRS on Foreign Account Reporting Penalties, by Alexander
H. Pepper
Delaware v. Pennsylvania362
Argued: 10/3/2022
Decided: 2/28/2023
Topics:
Commercial Law and Arbitration
Question Presented: Is a MoneyGram Official Check “a money order, traveler’s check, or
other similar written instrument (other than a third party bank check) on which a banking
or financial organization or a business association is directly liable,” pursuant to the
Federal Disposition Act, 12 U.S.C. § 2503?
Holding: The disputed instruments are sufficiently similar to a “money order” to fall
within the Federal Disposition Act.
Opinion: Justice Jackson (for the Court)
Perez v. Sturgis Public Schools
Argued: 1/18/2023
Decided: 3/21/2023
Topics:
Civil Procedure; Civil Rights
Questions Presented: (1) In what circumstances is exhaustion of administrative remedies
futile under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(l),
and should courts excuse the exhaustion requirement in those circumstances? (2) Does
Section 1415(l) require exhaustion of a non-IDEA claim seeking money damages that are
not available under the IDEA?
Holding: When a plaintiff brings claims under the Americans with Disabilities Act or
other federal laws seeking remedies, such as compensatory damages, that are not
available under the IDEA, exhaustion of administrative remedies under the IDEA is not
required, even when the underlying conduct that is the basis of the plaintiff’s claim was
or could have been the subject of an IDEA administrative claim.
362 Delaware v. Pennsylvania was consolidated with another case, Arkansas v. Delaware, for briefing, argument, and
decision.
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Opinion: Justice Gorsuch (for the Court)
CRS Resources: CRS Legal Sidebar LSB10907, Perez v. Sturgis Public Schools: the
Supreme Court Considers a Futility Exception to IDEA Administrative Exhaustion, by
Abigail A. Graber
Wilkins v. United States
Argued: 11/30/2022
Decided: 3/28/2023
Topics:
Civil Procedure
Question Presented: Is the Quiet Title Act’s statute of limitations a jurisdictional
requirement or a claims-processing rule?
Holding: The Quiet Title Act's statute of limitations is a non-jurisdictional claimsprocessing rule.
Opinions: Justice Sotomayor (for the Court); Justice Thomas (dissenting)
Axon Enterprises v. Federal Trade Commission363
Argued: 11/7/2022
Decided: 4/14/2023
Topics:
Civil Procedure; Statutory Interpretation
Question Presented: When Congress provided for court of appeals jurisdiction to review
cease-and-desist orders of the Federal Trade Commission (FTC), did it impliedly strip
district courts of jurisdiction over constitutional challenges to the Commission's structure,
procedures, and existence?
Holding: The statutory review schemes set out in the Securities Exchange Act and
Federal Trade Commission Act do not displace a district court’s federal-question
jurisdiction over claims challenging as unconstitutional the structure or existence of the
Securities and Exchange Commission or the FTC.
Opinions: Justice Kagan (for the Court); Justice Thomas (concurring); Justice Gorsuch
(concurring in the judgment)
New York v. New Jersey
363 Axon Enterprises v. FTC was consolidated with another case, Securities and Exchange Commission v. Cochran, for
briefing, argument, and decision.
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Argued: 2/27/2023
Decided: 4/18/2023
Topics:
Constitutional Law
Question Presented: Should the Supreme Court enjoin New Jersey from withdrawing
from its Waterfront Commission Compact with New York, which grants the Waterfront
Commission of New York broad regulatory and law enforcement powers over all
operations at the Port of New York and New Jersey?
Holding: New Jersey can unilaterally withdraw from the Waterfront Commission
Compact despite New York’s opposition.
Opinion: Justice Kavanaugh (for the Court)
Reed v. Goertz
Argued: 10/11/2022
Decided: 4/19/2023
Topics:
Civil Rights; Criminal Law
Question Presented: When a prisoner seeks DNA testing of crime-scene evidence in a
civil rights action under 42 U.S.C. § 1983, does the statute of limitations begin to run at
the end of the state-court litigation denying DNA testing, including any appeals, or at the
moment the state court denies DNA testing, regardless of any subsequent appeal?
Holding: When a prisoner pursues post-conviction DNA testing through the stateprovided litigation process, the statute of limitations for a Section 1983 claim begins to
run when the state litigation ends.
Opinions: Justice Kavanaugh (for the Court); Justice Thomas (dissenting); Justice Alito
(dissenting)
MOAC Mall Holdings LLC v. Transform Holdco LLC
Argued: 12/5/2022
Decided: 4/19/2023
Topics:
Bankruptcy Law
Question Presented: Does Bankruptcy Code § 363(m) limit the appellate courts’
jurisdiction over any sale order or order deemed “integral” to a sale order, such that it is
not subject to waiver, and even when a remedy could be fashioned that does not affect the
validity of the sale?
Holding: Section 363(m) is not a jurisdictional provision.
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Opinion: Justice Jackson (for the Court)
CRS Resources: CRS Legal Sidebar LSB10979, Unanimous Supreme Court Rules
Bankruptcy Sale Statute Is Not Jurisdictional, by Michael D. Contino; CRS Legal
Sidebar LSB10870, Supreme Court Ponders Bankruptcy Code’s Good-Faith Purchaser
Exception, by Michael D. Contino; CRS Report WPD00036, Supreme Court Considers
Limits on Appellate Review of Asset Sale Order in Sears Bankruptcy, by Michael D.
Contino and Sanchitha Jayaram (podcast)
Turkiye Halk Bankasi S.A. v. United States
Argued: 1/17/2023
Decided: 4/19/2023
Topics:
Criminal Law
Question Presented: May U.S. district courts exercise subject matter jurisdiction over
criminal prosecutions against foreign sovereigns and their instrumentalities under 18
U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act (FSIA)?
Holding: The FSIA’s comprehensive scheme governing claims of immunity in civil
actions against foreign states and their instrumentalities does not cover criminal cases.
Opinions: Justice Kavanaugh (for the Court); Justice Gorsuch (concurring in part and
dissenting in part)
CRS Resources: CRS Legal Sidebar LSB10967, The Foreign Sovereign Immunities Act:
Prosecuting Foreign States After the Supreme Court’s Decision in Halkbank, by Stephen
P. Mulligan; CRS Legal Sidebar LSB10927, Supreme Court Considers Whether the
United States Can Prosecute a Foreign-State-Owned Bank, by Stephen P. Mulligan
National Pork Producers Council v. Ross
Argued: 10/11/2022
Decided: 5/11/2023
Topics:
Civil Procedure; Constitutional Law
Question Presented: Did the plaintiffs adequately plead a claim under the Constitution’s
dormant Commerce Clause in their challenge to California’s Proposition 12, which bans
the sale of pork in the state unless the sow from which it was derived was housed with
particular space allowances?
Holding: The dormant Commerce Clause of the Constitution does not prohibit
Proposition 12, given that petitioners do not allege that Proposition 12 purposefully
discriminates against out-of-state economic interests.
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Opinions: Justice Gorsuch (for the Court); Justice Sotomayor (concurring in part); Justice
Barrett (concurring in part); Chief Justice Roberts (concurring in part and dissenting in
part); Justice Kavanaugh (concurring in part and dissenting in part)
CRS Resources: CRS Legal Sidebar LSB11031, Supreme Court Narrows Dormant
Commerce Clause and Upholds State Animal Welfare Law, by Kate R. Bowers
Ciminelli v. United States
Argued: 11/28/2022
Decided: 5/11/2023
Topics:
Criminal Law
Question Presented: Is the Second Circuit’s “right to control” theory of fraud, which
treats the deprivation of complete and accurate information bearing on a person’s
economic decision as a species of property fraud, a valid basis for liability under the
federal wire fraud statute, 18 U.S.C. § 1343?
Holding: Because the right to valuable economic information needed to make
discretionary economic decisions is not a traditional property interest, the Second
Circuit’s “right to control” theory cannot form the basis for a conviction under the federal
fraud statutes.
Opinion: Justice Thomas (for the Court)
CRS Resources: CRS Legal Sidebar LSB11025, Public Corruption and the Limits of
Federal Fraud Statutes, by Peter G. Berris and Michael A. Foster
Percoco v. United States
Argued: 11/28/2022
Decided: 5/11/2023
Topics:
Criminal Law
Question Presented: Does a private citizen who holds no elected office or government
employment, but has informal political or other influence over governmental
decisionmaking, owe a fiduciary duty to the general public such that he can be convicted
of honest-services fraud?
Holding: Although a person who is not a formal government employee may, under
limited circumstances, become an agent of the government and thus owe a fiduciary duty
to the government and the public, the Second Circuit’s jury instructions were erroneous to
the extent they implied that the public may have a right to a private person’s honest
services whenever that person’s influence exceeds a particular threshold.
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Opinions: Justice Alito (for the Court); Justice Gorsuch (concurring in the judgment)
CRS Resources: CRS Legal Sidebar LSB11025, Public Corruption and the Limits of
Federal Fraud Statutes, by Peter G. Berris and Michael A. Foster
Financial Oversight and Management Board for Puerto Rico v. Centro de
Periodismo Investigativo, Inc.
Argued: 1/11/2023
Decided: 5/11/2023
Topics:
Civil Procedure; Statutory Interpretation
Question Presented: Does 48 U.S.C. § 2126(a), granting jurisdiction to the federal courts
over claims against the Financial Oversight and Management Board for Puerto Rico and
claims otherwise arising under the Puerto Rico Oversight, Management, and Economic
Stability Act (PROMESA), abrogate the Board’s sovereign immunity with respect to all
federal and territorial claims?
Holding: Nothing in PROMESA categorically abrogates any sovereign immunity the
Board enjoys from legal claims.
Opinions: Justice Kagan (for the Court); Justice Thomas (dissenting)
CRS Resources: CRS Legal Sidebar LSB10965, SCOTUS Rules That PROMESA Does
Not Abrogate Puerto Rico Oversight Board’s Sovereign Immunity—If It Has Any, by
Mainon A. Schwartz
Santos-Zacaria v. Garland
Argued: 1/17/2023
Decided: 5/11/2023
Topics:
Immigration Law
Questions Presented: Prior to seeking judicial review of a removal order under 8 U.S.C.
§ 1252, an alien is required to exhaust “all administrative remedies available to the alien
as of right.” (1) Is Section 1252(d)(1)’s exhaustion requirement jurisdictional, or is it a
mandatory claims-processing rule that can be waived or forfeited? (2) To “exhaust all
administrative remedies available to the alien as of right,” must the petition file a motion
to reconsider with the Board of Immigration Appeals to first ask the Board to exercise its
discretion to correct its own error?
Holding: Section 1252(d)(1)’s exhaustion requirement is not jurisdictional, and it does
not require an alien to request discretionary forms of review, like reconsideration of an
unfavorable Board of Immigration Appeals determination.
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Opinions: Justice Jackson (for the Court); Justice Alito (concurring in the judgment)
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
Argued: 10/12/2022
Decided: 5/18/2023
Topics:
Intellectual Property
Question Presented: For purposes of considering whether the use of a work is a “fair use”
under 17 U.S.C. § 107, is a work of art “transformative” when it conveys a different
message or meaning from its source material, or is a court forbidden from considering the
meaning of the accused work where it “recognizably derives from” its source material?
Holding: Although a new expression, meaning, or message may be relevant to whether a
copying use has a sufficiently distinct purpose or character, it is not alone dispositive of
whether a work is “transformative” for purposes of a fair use analysis.
Opinions: Justice Sotomayor (for the Court); Justice Gorsuch (concurring); Justice
Kagan (dissenting)
Ohio Adjutant General’s Department v. Federal Labor Relations Authority
Argued: 1/9/2023
Decided: 5/18/2023
Topics:
Labor and Employment
Question Presented: Does the Civil Service Reform Act authorize the Federal Labor
Relations Authority to regulate the labor practices of state militias?
Holding: The Federal Labor Relations Authority may regulate a State National Guard
when it hires and supervises dual-status technicians serving in their civilian role, because
under those circumstances the State National Guard acts as a federal agency for purposes
of the Federal Service Labor-Management Relations Statute.
Opinions: Justice Thomas (for the Court); Justice Alito (dissenting)
CRS Resources: CRS Legal Sidebar LSB11005, Supreme Court Holds That Federal
Labor Relations Authority Has Jurisdiction to Regulate State National Guards, by Jimmy
Balser
Twitter, Inc. v. Taamneh
Argued: 2/22/2023
Decided: 5/18/2023
Topics:
Statutory Interpretation; Telecommunications Law
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Questions Presented: (1) Does a defendant that provides generic, widely available
services to its numerous users, and which regularly works to detect and prevent terrorists
from using those services, knowingly provide substantial assistance to terrorists under 18
U.S.C. § 2333 merely because it allegedly could have taken more meaningful or
aggressive action to prevent such use? (2) May a defendant be liable under Section 2333
if its generic, widely available services were not used in connection with a specific “act
of international terrorism” that injured the plaintiff?
Holding: Plaintiffs’ allegations that the defendant social media companies aided and
abetted terrorists in an attack on a nightclub in Turkey fail to state a claim under Section
2333(d)(2), which requires conscious, voluntary, and culpable participation in another’s
wrongdoing.
Opinions: Justice Thomas (for the Court); Justice Jackson (concurring)
CRS Resources: CRS Legal Sidebar LSB11033, The Supreme Court’s Narrow
Construction of Federal Criminal Laws: Historical Practice and Recent Trends, by Dave
S. Sidhu
Gonzalez v. Google LLC
Argued: 2/21/2023
Decided: 5/18/2023
Topics:
Statutory Interpretation; Telecommunications Law
Question Presented: Does Section 230(c)(1) of the Communications Decency Act
immunize interactive computer services when they make targeted recommendations of
information provided by another information content provider, or does Section 230(c)(1)
only limit the liability of interactive computer services when they engage in traditional
editorial functions with regard to such information?
Holding: In light of the Court’s decision in Twitter v. Taamneh, the plaintiffs’ complaint
states little if any claim to relief, independent of the possible application of Section
230(c)(1).
Opinion: Per Curiam
Amgen Inc. v. Sanofi
Argued: 3/27/2023
Decided: 5/18/2023
Topics:
Intellectual Property
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Questions Presented: Section 112 of the Patent Act, 35 U.S.C. § 112(a), includes the socalled “enablement” requirement for the description of an invention in a patent. (1) Is
enablement a question of fact to be determined by a jury? (2) Did the court of appeals
apply the correct standard in determining the scope of the enablement requirement?
Holding: In this case, the lower courts were correct to decide as a matter of law that
Amgen's patents failed to satisfy the “enablement” requirement, because the patent claims
swept more broadly than the patent itself enabled.
Opinion: Justice Gorsuch (for the Court)
CRS Resources: CRS Legal Sidebar LSB10971, Amgen v. Sanofi: Supreme Court Holds
Patents Claiming Antibody Genus Invalid as Not Enabled, by Kevin J. Hickey
Polselli v. Internal Revenue Service
Argued: 3/29/2023
Decided: 5/18/2023
Topics:
Tax Law
Question Presented: When the IRS summons the bank account records of a third party
associated with a delinquent taxpayer, is that third party entitled to notice and an
opportunity to bring an action to quash the summons, or does the notice exception of 26
U.S.C. § 7609(c)(2)(D) apply?
Holding: The notice exception in Section 7609(c)(2)(D)(i) may apply, and thus accounts
or records of a third party could be summoned without notice to that party, even when the
delinquent taxpayer does not have a legal interest in those accounts or records.
Opinions: Chief Justice Roberts (for the Court); Justice Jackson (concurring)
CRS Resources: CRS Legal Sidebar LSB10998, Polselli v. IRS: Supreme Court Clarifies
Notice Requirements for a Third-Party IRS Summons, by Justin C. Chung
Calcutt v. Federal Deposit Insurance Corporation
Argued: N/A
Decided: 5/22/2023
Topics:
Administrative Law
Question Presented: When a reviewing court identifies an error in an agency’s
adjudication of a case, may the court conduct its own review of the record and conclude
that substantial evidence supported the agency’s decision?
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Holding: Under SEC v. Chenery Corp., 332 U.S. 194 (1947), reviewing courts may
uphold an agency’s order only on the same basis articulated by the agency itself. If that
basis is erroneous, the court must remand to the agency for further consideration.
Opinion: Per Curiam
Sackett v. Environmental Protection Agency
Argued: 10/3/2022
Decided: 5/25/2023
Topics:
Environmental Law
Question Presented: Did the Ninth Circuit set forth the proper test for determining
whether wetlands are “waters of the United States” under the Clean Water Act, 33 U.S.C.
§ 1362(7)?
Holding: The statutory term “waters” is limited to only those relatively permanent,
standing or continuously flowing bodies of water that are described in ordinary parlance
as streams, rivers, oceans, and lakes. “Adjacent wetlands” may be considered “waters of
the United States” if they have a continuous surface connection to bodies that are “waters
of the United States” in their own right, so that there is no clear demarcation between
“waters” and wetlands.
Opinions: Justice Alito (for the Court); Justice Thomas (concurring); Justice Kagan
(concurring in the judgment); Justice Kavanaugh (concurring in the judgment)
CRS Resources: CRS Legal Sidebar LSB10981, Supreme Court Narrows Federal
Jurisdiction Under Clean Water Act, by Kate R. Bowers; CRS Legal Sidebar LSB10707,
Supreme Court Revisits Scope of “Waters of the United States” (WOTUS) Under the
Clean Water Act, by Kate R. Bowers; CRS Video WVB00503, The Supreme Court’s
October 2022 Term: A Preview of Select Cases, by April J. Anderson et al.
Tyler v. Hennepin County
Argued: 4/26/2023
Decided: 5/25/2023
Topics:
Constitutional Law
Question Presented: Does it violate the Takings Clause of the Fifth Amendment for the
government to take and sell a home to satisfy a debt to the government, keeping the
surplus as a windfall?
Holding: Allegations that the government took from the taxpayer more than the taxpayer
owes state a plausible claim for a violation of the Takings Clause.
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Opinions: Chief Justice Roberts (for the Court); Justice Gorsuch (concurring)
Dupree v. Younger
Argued: 4/24/2023
Decided: 5/25/2023
Topics:
Civil Procedure
Question Presented: When an issue is purely legal and rejected at summary judgment,
must a party reassert that issue in a post-trial motion in order to preserve it for appellate
review?
Holding: A post-trial motion is not required to preserve for appellate review a purely
legal issue resolved at summary judgment.
Opinion: Justice Barrett (for the Court)
Glacier Northwest, Inc. v. International Brotherhood of Teamsters
Argued: 1/10/2023
Decided: 6/1/2023
Topics:
Labor and Employment
Question Presented: Does the National Labor Relations Act (NLRA) impliedly preempt a
state tort claim against a union for intentionally destroying an employer’s property in the
course of a labor dispute?
Holding: The NLRA does not preempt an employer’s tort claim alleging that a union
intentionally destroyed the company’s property during a labor dispute.
Opnions: Justice Barrett (for the Court); Justice Thomas (concurring in the judgment);
Justice Alito (concurring in the judgment); Justice Jackson (dissenting)
Slack Technologies, LLC v. Pirani
Argued: 4/17/2023
Decided: 6/1/2023
Topics:
Securities Law; Statutory Interpretation
Question Presented: Do Sections 11 and 12(a)(2) of the Securities Act of 1933 require
plaintiffs to plead and prove that they bought securities registered under the registration
statement that they claim is misleading, or may a claim be based on the purchase of a
security that was not registered under the allegedly misleading statement?
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Holding: Section 11 of the Securities Act requires plaintiffs to plead and prove that they
purchased securities registered under a materially misleading registration statement.
Opinion: Justice Gorsuch (for the Court)
United States ex rel. Schutte v. SuperValu, Inc.364
Argued: 4/18/2023
Decided: 6/1/2023
Topics:
Statutory Interpretation
Question Presented: Under what circumstances, if any, is a defendant’s contemporaneous
subjective understanding or beliefs about the lawfulness of its conduct relevant to
whether it “knowingly” violated the False Claims Act (FCA), 31 U.S.C. § 3728(a)?
Holding: The scienter element of the FCA refers to a defendant’s knowledge and
subjective beliefs, not to what an objectively reasonable person may have known or
believed.
Opinion: Justice Thomas (for the Court)
CRS Resources: CRS Legal Sidebar LSB10978, Supreme Court Addresses Scope of False
Claims Act’s Knowledge Requirement, by Victoria L. Killion
Allen v. Milligan365
Argued: 10/4/2022
Decided: 6/8/2023
Topics:
Constitutional Law; Elections Law
Question Presented: Does the state of Alabama’s 2021 redistricting plan for its seven
seats in the U.S. House of Representatives violate Section 2 of the Voting Rights Act?
Holding: The plaintiffs have demonstrated a reasonable likelihood of success on their
claim that Alabama’s redistricting plan violates Section 2. The Voting Rights Act does not
require a race-neutral benchmark for redistricting, nor is Section 2 as applied to
redistricting unconstitutional under the Fifteenth Amendment.
Opinions: Chief Justice Roberts (for the Court); Justice Kavanaugh (concurring in part);
Justice Thomas (dissenting); Justice Alito (dissenting)
364 United States ex rel. Schutte v. SuperValu, Inc. was consolidated with another case, United States ex rel. Proctor v.
Safeway, Inc. for briefing, argument, and decision.
365 Allen v. Milligan was consolidated with another case, Merrill v. Caster, for briefing, argument, and decision. (Due
to a substitution of parties, the case was originally considered under the caption Merrill v. Milligan.)
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CRS Resources: CRS Legal Sidebar LSB11002, Allen v. Milligan: Supreme Court Holds
That Alabama Redistricting Map Likely Violated Section 2 of the Voting Rights Act, by L.
Paige Whitaker; CRS Legal Sidebar LSB10699, Supreme Court Agrees to Hear Voting
Rights Act Challenge to Congressional Redistricting Map and Stays Lower Court Ruling:
Implications for Congress, by L. Paige Whitaker
Health and Hospital Corp. of Marion County v. Talevski
Argued: 11/8/2022
Decided: 6/8/2023
Topics:
Civil Rights
Questions Presented: (1) Should the Court reexamine its holding that legislation under
the Spending Clause gives rise to privately enforceable rights under 42 U.S.C. § 1983?
(2) If Spending Clause legislation does give rise to such rights, do transfer and
medication rules under the Federal Nursing Home Reform Act of 1987 (FNHRA) do so?
Holding: The FNHRA provisions at issue unambiguously create Section 1983enforceable rights; there is no incompatibility between private enforcement under Section
1983 and the remedial scheme that Congress provided.
Opinions: Justice Jackson (for the Court); Justice Gorsuch (concurring); Justice Barrett
(concuring); Justice Thomas (dissenting); Justice Alito (dissenting)
CRS Resources: CRS Legal Sidebar LSB10853, Health & Hospital Corporation of
Marion County v. Talevski: Determining When A Statute Creates a Federal Right
Actionable Under 42 U.S.C. § 1983, by Whitney K. Novak; CRS Video WVB00503, The
Supreme Court’s October 2022 Term: A Preview of Select Cases, by April J. Anderson et
al.
Dubin v. United States
Argued: 2/27/2023
Decided: 6/8/2023
Topics:
Criminal Law
Question Presented: The federal aggravated identity theft statute, 18 U.S.C. §
1028A(a)(1), applies when, during the commission of a felony predicate offense, a person
“knowingly transfers, possesses, or uses, without lawful authority, a means of
identification of another person.” Does a person commit aggravated identity theft when
he mentions or otherwise recites another person’s name while committing a predicate
offense?
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Holding: Under Section 1028A(a)(1), a defendant “uses” another person’s means of
identication “in relation to” a predicate offense whe the use is at the crux of what makes
the conduct criminal.
Opinions: Justice Sotomayor (for the Court); Justice Gorsuch (concurring in the
judgment)
CRS Resources: CRS Legal Sidebar LSB10877, What Is Aggravated Identity Theft?, by
Charles Doyle; CRS Legal Sidebar LSB11033, The Supreme Court’s Narrow
Construction of Federal Criminal Laws: Historical Practice and Recent Trends, by Dave
S. Sidhu.
Jack Daniel’s Properties, Inc. v. VIP Products LLC
Argued: 3/22/2023
Decided: 6/8/23
Topics:
Intellectual Property
Questions Presented: (1) Is the humorous use of another’s trademark as one’s own on a
commercial product subject to the Lanham Act’s traditional likelihood-of-confusion
analysis, or does it instead receive heightened First Amendment protection from
trademark-infringement claims? (2) Is such a humorous use considered “noncommercial”
under 15 U.S.C. § 1125(c)(3)(C), thus barring a claim of dilution by tarnishment under
the Trademark Dilution Revision Act?
Holdings: (1) Precedents invoking the First Amendment are not applicable when an
alleged infringer uses another’s trademark as a designation of source for the infringer’s
own goods, the situation in which likelihoo
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