Supreme Court: A look at the key cases and questions pending before the nation's high court

WASHINGTON – Even as the fallout continues over its controversial abortion ruling in June, the Supreme Court is wading into questions about race, LGBTQ rights and federal elections.

The nation's highest court has agreed to hear 42 arguments so far  – about two thirds of its expected caseload for the term that will likely end in June 2023.

This guide will be updated throughout the nine-month term.

Affirmative action

Background: Perhaps the most closely watched cases at the Supreme Court this term involve race-conscious admissions policies at Harvard College and the University of North Carolina. Those schools consider race as one of many factors in deciding whether to accept prospective students, a policy that is consistent with current Supreme Court precedent. But an anti-affirmative action group has argued the policies discriminate against Asian American and white candidates in violation of federal law and the Constitution.

Harvard Yard on the campus of Harvard University in Cambridge, Mass., on March 12, 2020.
Harvard Yard on the campus of Harvard University in Cambridge, Mass., on March 12, 2020.

The cases were initially consolidated but then were split up to accommodate Associate Justice Ketanji Brown Jackson, who will recuse herself from the Harvard litigation because she had sat on that university's board of overseers. Jackson took part in the University of North Carolina arguments and and is expected to take part in that decision.

Argument: During nearly five hours of arguments on Oct. 31, several of the court's conservative justices appeared skeptical of race-conscious admissions and potentially willing to overturn prior precedent on the issue. Many of the conservatives zeroed in on a section of the 2003 Grutter v. Bollinger decision in which the court included a potential timeline of 25 years for ending race-conscious admissions.

"The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," Associate Justice Sandra Day O'Connor wrote for the majority.

There has been widespread debate about the legal significance of that statement but it was clear that many in the court's conservative wing were concerned that such policies could go on indefinitely. "I don't see how you can say that the program will ever end," Chief Justice John Roberts said.

The court's liberal justices, meanwhile, defended the need for race-conscious policies. "I thought that part of what it meant to be an American and to believe in American pluralism is that, actually, our institutions are reflective of who we are as a people in all our variety," Associate Justice Elena Kagan said.

Decision: Expected at the end of the term, perhaps in June.

Title: Students for Fair Admissions v. President and Fellows of Harvard College; Students for Fair Admissions v. University of North Carolina.

Read more: 

►Arguments: Supreme Court signals skepticism of race-conscious college admissions

►Roberts: Supreme Court fight over admissions puts focus on John Roberts

►Brown: Affirmative action cases spark debate over meaning of Brown v. Board

►Spillover: Supreme Court's affirmative action cases could affect private employment

Elections and voting

Background: The Supreme Court is deciding two major cases with profound implications for how federal elections are conducted.

After the 2020 census, North Carolina approved a congressional map that would have benefited Republican candidates. The North Carolina League of Conservation Voters and a group of voters sued in state court, alleging that the map was a partisan gerrymander in violation of the state constitution. The state courts agreed and ordered a new set of maps.

At issue for the high court is the meaning of a clause in the Constitution that delegates responsibility for federal elections to the "legislature" of each state. The state lawmakers say a plain reading of that clause makes it clear that state legislatures have the power to set election rules without interference from state courts. Others say the clause has long been interpreted to be more encompassing and that state courts have always been able to act as a check on state legislative power in other contexts.

Rea Egan, of Chesterfield, N.H., exits the voting booth after filling out her ballot at the Chesterfield polling station during the state's primary on Tuesday, Sept. 13, 2022.
Rea Egan, of Chesterfield, N.H., exits the voting booth after filling out her ballot at the Chesterfield polling station during the state's primary on Tuesday, Sept. 13, 2022.

Some fear the Supreme Court could give state legislatures broad authority to change election rules in ways that benefit one political party. Others say that some state courts have gone too far, usurping the legislative power of elected lawmakers.

The other election case involves the Voting Rights Act of 1965. At issue is an Alabama congressional redistricting map that includes only one majority Black district out of seven, even though African Americans make up more than a quarter of the state's population. The plaintiffs say the new map violates the Voting Rights Act by diluting the power of Black voters. Alabama counters that the Voting Rights Act prohibits states from approving discriminatory maps but that it does not act as a command compelling states to draw an additional minority-majority district at the expense of all other factors, such as keeping counties and other political subdivisions together.

Argument: The court heard oral arguments in the Alabama redistricting case on Oct. 4. There appeared to be a majority for supporting Alabama but perhaps on narrower grounds than the state is seeking. Associate Justice Samuel Alito was the most vocal of the conservative justices and he acknowledged that some of the state's arguments were "quite far-reaching." Some of the conservatives, including Associate Justice Brett Kavanaugh, appeared to be searching for a more limited way to decide the case. What was clear: The liberal wing of the court opposes Alabama. Associate Justices Elena Kagan and Ketanji Brown Jackson, the newest justice, repeatedly pummeled Alabama with questions about its position as well as the court's commitment to the Voting Rights Act.

The court's conservative majority seemed divided over the broadest reading of the independent state legislature theory during three hours of argument on Dec. 7 in the North Carolina case. Chief Justice John Roberts seemed to be searching for a limited resolution to the case and Associate Justices Brett Kavanaugh and Amy Coney Barrett asked difficult questions of both sides. The court's three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson were skeptical. "This is a theory with big consequences," Kagan said. "This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country and you might think that it gets rid of all those checks and balances at exactly the time that they are needed most."

Decisions: Uncertain.

Title: The redistricting case is Merrill v. Milligan. The voting administration case is Moore v. Harper.

Read more: 

►A novel theory: Supreme Court grapples with case some warn could upend federal elections

►Alabama: Supreme Court delves into Alabama brawl over race, redistricting and Voting Rights Act

►Elections clause: Supreme Court pressed to give state legislatures more power to oversee federal elections

►2020: How the Supreme Court is already influencing the November midterm elections

LGBTQ rights and speech 

Background: Seven years after the Supreme Court legalized same-sex marriage in a watershed civil rights decision, religious business owners and LGBTQ individuals remain locked in a battle over whether businesses that sell goods and services to the public may reject LGBTQ couples as customers. This term, the high court must decide whether a graphic designer may decline to make websites for same-sex marriages. The designer asserts that Colorado's anti-discrimination law forces her to create the websites – and to condone a message approving of same-sex marriages – against her will, which would violate the First Amendment's prohibition on compelled speech. The state counters that it is not attempting to regulate speech but rather commerce: The designer can say whatever she wants on her websites, but she can't deny selling them to same-sex couples.

Argument: A majority of the Supreme Court appeared sympathetic to the web designer, embracing the idea that Colorado's anti-discrimination law cannot compel her to communicate messages that she objects to on religious grounds. The two-and-a-half-hour debate centered on whether same-sex couples would be denied wedding websites because of their status as LGBTQ individuals – a result that might favor the state – or whether the designer has a right to refuse to endorse a message of approval of same-sex marriage. "This is not a hotel," Associate Justice Clarence Thomas said at one point, suggesting the state may have been defining the types of businesses covered under its anti-discrimination law too broadly. The court's three liberal justices appeared mostly aligned in favor of Colorado's law.

Decision: To be determined.

Title: 303 Creative v. Aubrey Elenis

►Arguments: Supreme Court signals support for website designer who wants to decline same-sex weddings

►LGBTQ rights: Supreme Court to decide latest LGBTQ same-sex wedding fight

►Granted: Supreme Court to decide if designer may decline same-sex weddings

Section 230 and social media

Background: Since 1996, more than a decade before the first iPhone was released, internet companies have been shielded from legal liability for the user-generated content on their platforms. That's important, the companies argue, because they might otherwise be forced to review every post on their sites. At issue in the case is whether companies may be held liable not for the content itself but rather the targeted recommendations of that content to specific users, a process that is often handled by an algorithm. The suit was filed by the family of a 23-year-old U.S. citizen who was killed in an Islamic State group attack in Paris in 2015. The family alleged the company was partly responsible because it promoted videos and other content that propagated the terrorist group’s message.

A related case, Twitter v. Taamneh, raises the question of whether Twitter, Google and other platforms may be held liable for "aiding and abetting" the Islamic State group and other terrorist organizations under the Anti-Terrorism Act.

Argument: Not set.

Decision: Uncertain.

Title: Gonzalez v. Google.

Read more: 

►Granted: Supreme Court to hear challenge to law that shields internet companies

►Explainer: Everything you need to know about Section 230 and why everyone hates it

►Thomas: Supreme Court dismisses case on Trump blocking of critics on Twitter

Native American adoptions

Justice Ketanji Brown Jackson, center left, is escorted by Chief Justice of the United States John Roberts following her formal investiture ceremony at the Supreme Court in Washington, Friday, Sept. 30, 2022. (AP Photo/J. Scott Applewhite) ORG XMIT: DCSA115
Justice Ketanji Brown Jackson, center left, is escorted by Chief Justice of the United States John Roberts following her formal investiture ceremony at the Supreme Court in Washington, Friday, Sept. 30, 2022. (AP Photo/J. Scott Applewhite) ORG XMIT: DCSA115

Background: Congress passed a law in 1978 to stop the forced removal of Native American children from their tribes – a practice that began in the 19th century and led to hundreds of thousands of removals. One of the law's many provisions at issue in the pending case is a mandate that authorities give preference to Native American families when a Native American child is placed for adoption. Several states and non-Native families seeking to adopt sued, arguing the preferential treatment violates the 14th Amendment's equal protection clause. In defending the law, President Joe Biden's administration says the preference is not racial but rather honors the legal framework that treats tribes as sovereign entities separate from the United States.

Argument: During more than three hours of oral argument on Nov. 9, several members of the court's conservative wing indicated that they were inclined to view the adoption preferences in the law as race-based, which suggests the court may be leaning toward finding the law unconstitutional – or at least some portions of it. Yet some of the justices appeared to be searching for a narrow outcome, focusing on specific provisions or debating if the correct parties are involved in the case. The high court's three-member liberal wing and Associate Justice Neil Gorsuch, who has often broken with his conservative colleagues on tribal issues, signaled their support for the law.

Decision: TBD.

Title: There are multiple consolidated cases, including Haaland v. Brackeen.

Read more: 

►Adoptions: For Native Americans, a 1978 adoption law protects children. Critics see a racial preference.

►Arguments: Supreme Court grapples with battle over adoption of Native American children

►Granted: Supreme Court takes up battle over adoption of Native American children

Immigration

Migrants walk along the U.S. Border fence after crossing the Rio Grande from Mexico to turn themselves in to the U.S. Border Patrol on September 22, 2022 in El Paso, Texas.
Migrants walk along the U.S. Border fence after crossing the Rio Grande from Mexico to turn themselves in to the U.S. Border Patrol on September 22, 2022 in El Paso, Texas.

Background: Like other administrations, Biden's Department of Homeland Security wants to prioritize for deportation immigrants it believes pose a threat to national security or public safety. Other immigrants would be less of a priority. Texas and Louisiana sued. The states assert that federal immigration law requires the administration to detain and deport specific categories of immigrants and that Biden is reading more leeway into the law than is permitted. A lower federal court blocked implementation of the Biden policy. The administration asked the Supreme Court to temporarily halt the lower court's ruling but a 5-4 majority of the justices in July backed the states. The Supreme Court agreed to hear the case on the merits and decide the broader legal questions it raises.

Argument: During more than two hours of at times intense oral argument, the justices appeared split in unconventional ways – particularly when it came to some of the procedural questions raised by the challenge from Texas and Louisiana. Chief Justice John Roberts pushed hard on the notion of reading the plain text of the law, which says the federal government "shall" detain certain immigrants (though he later noted that sometimes the high court doesn't read that word as a command). Associate Justice Brett Kavanaugh questioned whether a win for Texas and Louisiana would change anything practically, since the administration doesn't have the resources to apprehend every immigrant in the country illegally.

Associate Justice Elena Kagan questioned whether a ruling for the states would open the door to more states suing to stop policies they don't like from presidents of either party.  "We're just going to be in a situation where every administration is confronted by suits by states that can bring a policy to a dead halt, to a dead stop by just showing a dollar's worth of costs?" she said.

Decision: Because it was initially filed on the emergency docket and moved to the merits docket, this one could be decided faster than some of the other major cases this term.

Title: U.S. v. Texas.

Read more: 

►Arguments: Supreme Court grapples with challenge to Biden immigration policy 

►Preview: Supreme Court returns to immigration in test of Biden's power

►Granted: Supreme Court blocks Biden from implementing immigration policy 

Parliament staff view the work of Andy Warhol at the Pop, Power and Politics exhibition at the Scottish Parliament on October 10, 2013 in Edinburgh, Scotland.
Parliament staff view the work of Andy Warhol at the Pop, Power and Politics exhibition at the Scottish Parliament on October 10, 2013 in Edinburgh, Scotland.

Andy Warhol, Prince and copyright

Background: Photographer Lynn Goldsmith took a portrait of the musician Prince in 1981. The artist Andy Warhol, who died in 1987, relied on the image to create a work of art. Goldsmith sued Warhol's foundation for copyright infringement.  The Warhol foundation argued that the art was "transformative," one of the standards courts use to decide such claims. But the U.S. Court of Appeals for the 2nd Circuit said that a work of art is not transformative if it is "both recognizably deriving from, and retaining the essential elements of, its source material." Otherwise, the appeals court reasoned, movie adaptations of books could, for instance, make subtle changes to get around copyright laws. The question for the high court is whether an artwork is "transformative" if it conveys a different meaning or message than the original work it is based on.

Argument: Copyright litigation often blurs the traditional conservative-liberal divisions on the Supreme Court and it was not clear which way the justices are leaning. After nearly two hours of argument on Oct. 12, it seemed Associate Justice Samuel Alito was concerned about the implications of the Warhol foundation's position. "How is a court to determine the message or meaning of works of art?" he asked. Associate Justice Elena Kagan posed similar questions but also pressed the attorney for Goldsmith. "Why do museums show Andy Warhol? They show Andy Warhol because he was a transformative artist, because he took a bunch of photographs and he

made them mean something completely different," Kagan said. Though it was difficult to read which way the court is leaning, the argument was an entertaining tour through pop culture and art, with the justices in one moment debating the meaning of the color Leonardo da Vinci chose for Mona Lisa's dress and, in the next, discussing the audience for the ABC sitcom "Mork & Mindy."

Decision: Unclear.

Title: Andy Warhol Foundation for the Visual Arts v. Goldsmith.

Read more:

►Argued: Supreme Court debates Warhol copyright case with implications for art

►Impact: How a Supreme Court case could change the face of art

►Copyright: Supreme Court to hear dispute over Andy Warhol artwork

Biden's student loan forgiveness

Background: The months old legal fight over President Joe Biden's $400 billion student loan forgiveness program could finally be heading toward a resolution at the Supreme Court. After a flurry of emergency appeals, the high court agreed to hear arguments in the case, though it declined to revive it on a temporary basis while that process unfolds. Six conservative states – Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina – told the Supreme Court that Biden overstepped his legal authority with the program and violated the constitutional principle of separation of powers by embarking on a loan forgiveness program estimated to affect 40 million Americans. The administration says federal law allows it to forgive debt in cases of emergency, such as the COVID-19 pandemic. It's the latest instance in which the Supreme Court has moved a case off its emergency docket and onto its regular, merits docket.

Argument: The case is being expedited and will be scheduled for arguments in February or early March.

Decision: Unclear.

Title: Biden v. Nebraska.

Read more:

►Granted: Supreme Court agrees to hear arguments on Biden's student loan plan

►Power?: Biden's ability to bypass Congress faces 'major' legal hurdle

►Extension: Biden offers extension on student loan repayments

This article originally appeared on USA TODAY: A guide to the Supreme Court's momentous 2022-2023 term