Looking Back on the Supreme Court’s 2022-23 Term

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Some end-of-term comments and an assessment of my end-of-term predictions.

Jonathan H. Adler |

After a slow start, and many opinions that confounded expectations, the Supreme Court closed the term with several decisions that split the justices along ideological lines. Yet overall, the 6-3 Court only decided twelve of fifty-seven cases by that margin, and in only five of those cases was the Court split along ideological lines (the two affirmative action cases, Biden v. Nebraska on student loans, 303 Creative v. Elenis on whether a web designer could be required to make websites celebrating same-sex marraige, and Jones v. Hendrix concerning habeas claims).

Several cases previewed as likely to split the justices along ideological lines produced unanticipated agreement (as in Groff v. DeJoy on religious accommodation in employment, Axon Cochran on challenges to agency adjudication, Glacier NW on labor disputes, and (to some degree), Sackett v. EPA on the scope of federal regulation under the Clean Water Act), while others did not produce the conservative result we were told to expect (Allen v. Milligan on the Voting Rights Act and Brackeen v. Haaland on the Indian Child Welfare Act), and still others splintered the Court in truly unexpected ways (Mallory v. Norfolk Souther Railway on personal jurisdiction and National Pork Producers Council on the dormant commerce clause).

Over at EmpiricalSCOTUS, Adam Feldman and Jake Truscott have compiled some other statistics for the term. Of note, Justice Brett Kavanaugh was in the majority in 96 percent of the Court’s cases, more than any other justice, followed closely by the Chief Justice. Interestingly, the Justice least likely to be in the majority was another conservative: Justice Thomas. The overall ranking on this score, as compiled by Feldman and Truscott, is quite unexpected, as shown below.

Also worth noting, three pairs of justices voted together in 95 percent of the term’s cases (Roberts-Kavanaugh, Sotomayor-Jackson, and Sotomayor-Kagan).

As for the Court’s final cases, here’s a quick round-up of my end-of-term predictions and how they fared.

  • Harvard/UNC Affirmative Action Cases—I correctly predicted Chief Justice Roberts would write and hold schools’ use of race unlawful. I did not anticipate the relative degree of unanimity among the conservatives, largely because I though the Chief’s opinion would be narrower than it turned out to be.
  • Mallory v. Norfolk Southern – I got neither the decision’s author (Justice Gorsuch) nor the outcome correct (and, like others, I am still unpacking what the decision’s splintered line-up actually means).
  • 303 Creative v. Elenis – I correctly predicted Justice Gorsuch would write an opinion concluding the state cannot compel a web designer to make websites contrary to her deeply held beliefs.
  • Moore v. Harper – I correctly predicted the author (Chief Justice Roberts), but not the outcome, as I thought the Court would avoid the merits.
  • Student Loan Cases—I correctly predicted Chief Justice Roberts would write an opinion finding that Missouri had standing and that the student loan forgiveness plan was unlawful, but I did not anticipate a separate opinion in the second case rejecting standing for those plaintiffs.
  • Abitron Austria GmbH v. Hetronic International – My guess as to the author was wrong. (It was Justice Alito and I had predicted Justice Sotomayor.) I dared not venture a substantive prediction as the case concerned a subject I know little about.
  • Groff v. DeJoy – I correctly predicted that Justice Alito would write an opinion siding with the employee who sought religious accommodation. I did not predict that it would be unanimous.
  • Counterman v. Colorado – I correctly predicted that Justice Kagan would write an opinion rejecting the objective “reasonable person” standard for determining what is a “true threat” and remanding back to the Colorado courts.

Overall, I think I did pretty well with these predictions, and definitely gave readers their money’s worth.

I am not about to make any sweeping predictions about next term, other than to note that it is likely to be quite significant for administrative law, particularly given some of the Court’s most recent cert grants. I discuss the administrative law cases on tap for next term here.

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