June 29, 2022
Mike Fox

University of Virginia School of Law faculty listed here are available to speak to the media about the 2022 Supreme Court term. The list will be updated as more cases are announced.

​Some descriptions of cases or holdings are derived from SCOTUSBlog.

303 Creative LLC v. Elenis

Holding: “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”

Konnoth writes in health and civil rights, as well as on health data regulation. He is also active in LGBT rights litigation, and has filed briefs in the U.S. Supreme Court and the 10th Circuit on LGBT rights issues.

Schauer is a world-renowned expert in the areas of constitutional law, evidence, legal reasoning, freedom of speech, and jurisprudence and the philosophy of law. His expertise has been demonstrated in hundreds of books, book chapters, articles, essays, classes and personal appearances.

A scholar who focuses on law and religion, jurisprudence, political philosophy and constitutional law, Schwartzman is co-director of the Karsh Center for Law and Democracy.

Allen v. ​Milligan

Holding: Alabama’s 2021 redistricting plan likely violated Section 2 of the Voting Rights Act.

Ross teaches and writes in the areas of constitutional law, constitutional theory, election law, administrative law and statutory interpretation. He has served on the Presidential Commission on the Supreme Court.

In the News

Biden v. Nebraska

Holding: (1) “At least” Missouri has standing to challenge the program to forgive some federal student loan debt, and (2) the plan exceeds the secretary of education's authority to “rewrite that statute to the extent of canceling $430 billion of student loan principal.”

Mahoney teaches courses in property, government finance, constitutional law and nonprofit organizations.

Mahoney: “In Biden v. Nebraska, by a vote of 6-3, the court ruled that the administration’s student loan forgiveness plan is not authorized by the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act). Writing for the court, Chief Justice Roberts stressed that the secretary of education’s power under the HEROES Act to ‘waive or modify’ provisions relating to student financial assistance programs is limited and does not include the ability to make fundamental changes to a statutory scheme. Today’s decision reaffirms the Roberts court’s strong commitment to separation-of-powers principles.”

Counterman v. Colorado

Holding: To establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Citron writes and teaches about privacy, free expression and civil rights, and serves as the inaugural director of the school’s LawTech Center. He new book is “The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age.” Citron has co-authored an amicus brief in Counterman.

In the News

6.29.23 Supreme Court’s Ruling on Online Harassment Outrages Victims, Advocates (The Washington Post)

Department of Education v. Brown

Holding: Two student-loan borrowers do not have Article III standing to challenge the Department of Education's student-debt relief plan.

Mahoney teaches courses in property, government finance, constitutional law and nonprofit organizations.

Go​nzalez v. Google

Holding: The U.S. Court of Appeals for the 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.

Citron writes and teaches about privacy, free expression and civil rights, and serves as the inaugural director of the school’s LawTech Center. He new book is “The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age.” Citron has co-authored an amicus brief in Gonzalez.

In the News

Gro​ff v. DeJoy

Holding: Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

Laycock is perhaps the nation’s leading authority on the law of religious liberty and has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court, where he has served as lead counsel in six cases and has also filed influential amicus briefs. He co-authored an amicus brief in Groff.

Laycock: “The principal statute on employment discrimination requires employers to ‘reasonably accommodate’ their employees’ religious practices unless doing so would impose an ‘undue hardship’ on the employer's business. In 1977, the Supreme Court said that anything more than a ‘de minimis cost’ is an undue hardship. ‘De minimis’ means minimal or trivial. The court creatively reinterpreted its 46-year-old precedent to mean that only a cost or burden that is ‘substantial in the overall context of an employer’s business’ is an undue hardship. We will have to see what the lower courts make of this, but this is much more protection for religious minorities. This decision protects workers who strictly observe a Sabbath, whether on Saturday, Sunday or some other day. It protects workers who cover their head in a scarf or a yarmulke, or who dress more modestly than the employer prefers. We have other laws that protect workers who refuse on religious grounds to assist with particular medical tasks, like assisting with an abortion or a sterilization operation, but this decision provides another layer of protection for those workers too. None of this prevents the employer from getting the work done. But it may require rescheduling, or trading shifts with other employees, or tolerating religious dress from diverse faiths, or assigning some tasks to other employees.”

Verkerke directs the Program for Employment and Labor Law Studies, and teaches contracts, several employment law courses and a seminar on behavioral economic analysis of law.

In the News

Haaland v. Br​ackeen 

Holding: In child custody proceedings governed by the Indian Child Welfare Act, the court affirms the U.S. Court of Appeals for the 5th Circuit’s conclusion that ICWA is consistent with Congress’ Article I authority, rejects petitioners’ anticommandeering challenges under the 10th Amendment, and finds the parties lack standing to litigate their other challenges to ICWA’s placement preferences.

Cahn is an expert in family law, trusts and estates, feminist jurisprudence, reproductive technology, and aging and the law. She co-directs the school’s Family Law Center.

Cahn: “The court upheld the constitutionality of the Indian Child Welfare Act in a 7-2 opinion. ICWA, enacted in 1978, protects Indian families in child-placement proceedings. It was challenged as unconstitutional based on grounds of race discrimination and exceeding Congress' authority. The court did not address the race discrimination issues. An interesting concurrence by Justice Gorsuch, joined by Justices Sotomayor and Jackson reviewed the history of ICWA, explaining its enactment after a long history of removing Indian children from their families. Justices Thomas and Alito dissented.”

Health and Hos​pital Corporation of Marion County, Indiana v. Talevski

Holding: The provisions of the Federal Nursing Home Amendments Act of 1987 at issue unambiguously create rights enforceable under 42 U.S.C. Section 1983, and private enforcement under Section 1983 is compatible with the FNHRA’s remedial scheme.

Bayefsky’s work addresses both the practical workings of legal institutions and underlying philosophical ideas such as dignity and equality. Bayefsky clerked for Justice Ruth Bader Ginsburg.

Bayefsky: “The Supreme Court declined to narrow the scope of the important federal civil rights statute 42 U.S.C. Section 1983.  In particular, the court held that private plaintiffs could use Section 1983 to enforce a federal ‘spending clause’ statute imposing requirements on nursing homes that receive Medicaid funding.”

In Re Grand​ Jury

Holding: Dismissed as improvidently granted.

Cohen teaches contracts, professional responsibility, and agency and partnership, and has served as an ethics consultant and expert for several law firms.

Jack Daniel’s Properties Inc. v. VIP Products

Holding: When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny noncommerical use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution.

Rowe is an internationally renowned expert on trade secret law, intellectual property, trademark and patent law, and corporate espionage.

Rowe: “This case is a win for trademark owners whose trademarks are used by other companies to sell their own products. The Supreme Court made clear that calling such uses a parody does not provide a free pass to infringe.”

Jones v. Hendrix

Holding: The saving clause in 28 U.S.C. Section 2255(e) does not allow a prisoner asserting an intervening change in the interpretation of a criminal statute to circumvent the Antiterrorism and Effective Death Penalty Act of 1996’s restrictions on second or successive Section 2255 motions by filing a habeas petition under Section 2241.

Ortiz teaches constitutional law, administrative law, electoral law, civil procedure and legal theory, and is director of the Supreme Court Litigation Clinic, which is representing Jones. He clerked for Justice Lewis F. Powell Jr. and then-Judge Stephen G. Breyer.

In the News

Mallory v. Norfolk ​Southern Railway Co.

Holding: A Pennsylvania law requiring out-of-state companies that register to do business in Pennsylvania to agree to appear in Pennsylvania courts on “any cause of action” against them comports with the due process clause under Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co.

Frost writes and teaches in the fields of immigration and citizenship law, federal courts and jurisdiction, and judicial ethics.

Frost: “In a fractured decision, the Supreme Court held that the due process clause permits a state court to exercise personal jurisdiction over a defendant corporation that was required by state law to register and consent to suit in that state in order to do business there. That holding is significant because it will make it much easier for both states and plaintiffs to subject corporations to suit in states in which they do business. But the lack of a clear majority opinion is yet more evidence that the court is struggling to reconcile its conflicting personal jurisdiction precedents, and that it has yet to find a coherent rationale to govern this area of law going forward.”

Solum teaches civil procedure and works on problems of law and technology, including internet governance, copyright policy and patent law.

Solum: “Norfolk Southern involved what is called ‘personal jurisdiction’ — the power of a court to require a defendant to appear as a defendant in a civil lawsuit. The majority upheld a Pennsylvania statute that subjected corporations that ‘do business’ in the state to personal jurisdiction in that state. Five justices agreed that a 1917 decision of the court, Pennsylvania Fire, controlled. Four justices disagreed. On the surface, this would seem to greatly expand the power of the states to subject out-of-state corporations to personal jurisdiction, even when the lawsuit does not arise from events within the states borders. But Justice Alito concurred separately and raised the possibility that doing-business statutes may violate the so-called ‘dormant commerce clause.’ This leaves the future of personal jurisdiction uncertain and unsettled.”

Moore v. Harper

Holding: The federal elections clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections and therefore did not bar the North Carolina Supreme Court from reviewing the North Carolina legislature’s congressional districting plans for compliance with North Carolina law.

Gilbert teaches courses on election law, legislation, and law and economics, and his current research focuses on campaign finance law, corruption and the adjudication of “culture war” disputes.

Ross teaches and writes in the areas of constitutional law, constitutional theory, election law, administrative law and statutory interpretation. He has served on the Presidential Commission on the Supreme Court.

In the News

National Pork Producers Council v. Ross

Holding: The judgment of the U.S. Court of Appeals for the 9th Circuit — affirming the dismissal of a complaint challenging California’s Proposition 12 under a dormant commerce clause rationale not grounded in an allegation that the law purposefully discriminates against out-of-state economic interests — is affirmed.

Mason’s research focuses on the dormant commerce clause. She co-authored an amicus brief in Ross.

Nachbar’s research focuses on the nature of regulation: how the law is used (and by whom) to shape and control behavior. His current work is on the relationship between public and private regulation.

Solum teaches civil procedure and works on problems of law and technology, including internet governance, copyright policy and patent law.

In the News

Sackett v. Environmental Protection Agency

Holding: The Clean Water Act extends only to wetlands that have a continuous surface connection with “waters” of the United States — i.e., with a relatively permanent body of water connected to traditional interstate navigable waters, 33 U.S.C. Section 1362(7) — making it difficult to determine where the water ends and the wetland begins.

Jaffe is director of the Environmental Law and Community Engagement Clinic and serves on the Virginia Coal and Energy Commission. Jaffe co-authored an amicus brief in Sackett.

Solum is an expert in statutory interpretation, and public policy and regulation.

Jaffe: “All nine justices signed onto at least one opinion that rejected the old ‘significant nexus’ test (dating back to the SWANCC decision in 2001) as unworkable in practice. But from there, the court split very sharply. Justice Alito adopted an extremely limiting interpretation of the Clean Water Act — one that Justice Scalia had floated in a 2006 case (Rapanos) but that a majority of the court until now had refused to adopt. The concurrences by Justices Kagan and Kavanaugh, when read together, outline how dramatically the majority of the court has departed from 45 years of Clean Water Act practice. Justices Kavanaugh, Kagan, Sotomayor and Jackson all would have upheld Congress’ assertion of Clean Water Act jurisdiction over wetlands that are ‘adjacent’ to navigable waters — even when those wetlands are not directly ‘abutting,’ ‘adjoining’ or ‘touching’ a navigable water. Justice Kavanaugh, in his concurrence, leaned heavily on the fact that the U.S. Army Corps of Engineers and the EPA for at least 45 years have protected adjacent (but not touching) wetlands, with regulations adopted and enforced across eight presidential administrations — from Carter to Trump. Justice Kagan added a critically important gloss with her concurrence, underscoring how shocking it is that the court has chosen to ‘rewrite Congress’s plain instructions because they go further than preferred’ by some justices. She asserts that the ‘Court substitutes its own ideas about policymaking for Congress’s.’ This, she gravely warns, ‘is not how the Constitution thinks our Government should work.’ The bipartisan application of Clean Water Action protections — as described by Justice Kavanaugh — is what led to the cleanup of some of our nation’s dirtiest rivers. That application of the congressional text allowed eight straight presidential administrations to focus on the sources of pollution feeding into our rivers. The narrow, five-justice majority’s opinion is nothing short of astounding in turning away from that history.”

In the News

Students for Fair Admissions Inc. v. President & Fellows of Harvard College

Holding: Harvard College’s and the University of North Carolina’s race-conscious admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.

Ballenger is director of the Appellate Litigation Clinic and worked as a lawyer for the University of Michigan in Grutter and for the University of Texas in both Fisher cases. He clerked for Justice Antonin Scalia.

Forde-Mazrui teaches Constitutional Law, Employment Discrimination, Criminal Law, and Race and Law. His scholarship focuses on equal protection, especially involving race and sexual orientation. He is director of the Center for the Study of Race and Law.

Forde-Mazrui: “The Supreme Court ruled that UNC’s and Harvard’s consideration of race to create racially diverse student bodies violates the Constitution and federal civil rights laws. The decision invalidates virtually all governmental race-based decision-making in any context. This result is both tragic and perverse. The tragedy is that race-based affirmative action is necessary, though insufficient, to correct for the long and unjust history of racial oppression in America. The perversity is that the court holds, essentially, that the Constitution’s guarantee of equality prohibits rectifying inequality. The saving grace is that the Court has not foreclosed race-neutral means to achieve racial diversity, including consideration of applicants’ racial experiences. As we know from schools in states that ban affirmative action, however, such means are very expensive and fairly ineffective. People of all races and political persuasions need to come together to design race-neutral means that meaningfully enhance the educational opportunities of disadvantaged groups so that higher education reflects the rich diversity of America.”

Hellman is the author of “When Is Discrimination Wrong?” and co-editor of “The Philosophical Foundations of Discrimination Law,” and several articles related to equal protection. She directs the Center for Law & Philosophy.

Nachbar’s research focuses on the nature of regulation: how the law is used (and by whom) to shape and control behavior. His current work is on the relationship between public and private regulation.

Robinson is one of the nation’s leading education law experts and speaks throughout the United States about K-20 educational equity, school funding, education and democracy, equal opportunity, civil rights, Title IX and federalism. She wrote about the decision

In the News

Turkiye Halk Ban​kasi A.S. v. U.S.

Holding: The district court has jurisdiction of this criminal prosecution under 18 U.S.C. Section 3231, and the Foreign Sovereign Immunities Act's comprehensive scheme governing claims of immunity in civil actions against foreign states and their instrumentalities does not cover criminal cases.

Stephan is an expert on international business, international dispute resolution and comparative law. He recently served as special counsel to the general counsel of the U.S. Department of Defense.

In the News

Twitt​er v. Taamneh

Holding: Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Instanbul, Turkey, fail to state a claim under 18 U.S.C. Section 2333(d)(2).

Citron writes and teaches about privacy, free expression and civil rights, and serves as the inaugural director of the school’s LawTech Center. He new book is “The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age.” Citron has co-authored an amicus brief in Gonzalez.

In the News

U.S. v. Texas

Holding: Texas and Louisiana lack Article III standing to challenge immigration-enforcement guidelines promulgated by the secretary of homeland security that prioritize the arrest and removal of certain noncitizens from the United States.

Frost writes and teaches in the fields of immigration and citizenship law, federal courts and jurisdiction, and judicial ethics.

Frost: “The decision in U.S. v. Texas provides further evidence that the Supreme Court is reining in state standing to challenge the federal government’s policy choices. In an 8-1 decision, the court held that Louisiana and Texas lack standing to challenge most federal executive branch policies regarding enforcement of immigration laws. Upon taking office, the Biden administration had established priorities in immigration enforcement, declaring that it would use its limited resources to prioritize removal of undocumented immigrants who posed a danger to the United States or who had recently arrived. Texas and Louisiana sued, seeking to force the Biden administration to abandon those priorities and arrest more undocumented noncitizens. The court held that the executive has the constitutional authority to ‘take Care that the Laws be faithfully executed,’ and so the judicial branch has no authority to second-guess the executive’s enforcement policies, particularly in light of the executive’s limited resources. But the majority also carefully left open the door to future challenges of executive enforcement discretion in specific types of cases, such as if the executive completely abandons enforcement or if the executive’s enforcement choices are accompanied with the grant of legal benefits or legal status. (That last caveat is surely aimed at preserving the court’s power to review policies such as Deferred Action for Childhood Arrivals, or DACA, which gives undocumented immigrants work authorization along with an executive promise not to deport.) The decision suggests the court is serious about constraining the power of the states to challenge the federal government’s policy choices, which in turn will protect the court from being drawn into such politicized disputes. But the court also made clear that it is not completely abandoning its role in reviewing immigration enforcement policies going forward.”

In the News

Wilkin​s v. U.S.

Holding: The Quiet Title Act's 12-year statute of limitations is a nonjurisdictional claims-processing rule.

Bayefsky writes about constitutional law, federal courts, civil procedure and legal theory. She clerked for Justice Ruth Bader Ginsburg.

Bayefsky: “In Wilkins v. U.S., the Supreme Court revived a lawsuit by Montana plaintiffs against the federal government in a property dispute under the federal Quiet Title Act. In a 6-3 decision, the court held that the Quiet Title Act’s time limit for suing the government was not jurisdictional, so that the plaintiffs’ suit could not be dismissed for lack of subject-matter jurisdiction. It remains to be seen, however, whether the plaintiffs will be able to justify their filing timeline and, therefore, whether the lawsuit will ultimately be able to proceed.”

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