Columbia Law Experts Weigh In on 2023 Supreme Court Rulings

Law School faculty and legal experts offer insights into the high court’s recent decisions.

Interior of the U.S. Supreme Court

As the U.S. Supreme Court issues rulings on questions ranging from copyright law to voting rights, the news media looks to Columbia Law experts for context and insights into the justices’ opinions. Explore some of the latest news featuring Law School faculty.

This story may be updated as news articles are published. 

The exterior of the U.S. Supreme Court

First Amendment Exemption to Colorado’s Anti-Discrimination Law

303 Creative LLC v. Aubrey Elenis, et al.

“Supreme Court Sides With Web Designer Opposed to Same-Sex Marriage,” Katherine M. Franke on ABC News

“The court gave us no limiting principles for how this broad win for Lorie Smith would apply in other cases,” says Katherine M. Franke, James L. Dohr Professor of Law. “The ruling implicates pretty much any law, whether it’s one that protects against LGBT-based discrimination or race discrimination, religion, national origin.” Watch the segment.


“The Supreme Court Opens Pandora’s Box With New Rulings,” Katherine M. Franke on Ayman Mohyeldin Reports on MSNBC

The court is “tiering rights,” which “we’ve never seen in constitutional jurisprudence before,” Franke says. “There are some rights which are top-tier rights—free speech now, religious liberty, gun rights—and there are other rights that are kind of second-tier rights, and when those rights come into conflict with the first-tier rights, they must yield, and that’s exactly what Justice Gorsuch said in the 303 Creative case.” Watch the segment.


“Democrats Call Supreme Court Ruling a License to Discriminate; GOP Sees Win for Religious Rights,” Katherine M. Franke on Spectrum News

Franke says the religious right has “won a number of very significant religious liberty cases in the last few terms, but to transform those cases into free speech cases greatly expands the ability of people to dissent from—and be exempt from—laws they don’t agree with.” Watch the segment.


“LGBT Rights Yield to Religious Interests at U.S. Supreme Court,” Elizabeth Reiner Platt in Reuters

“We’ve seen a dramatic expansion of rights for conservative religious communities that has had a detrimental impact on equality rights, certainly for LGBTQ people,” says Elizabeth Reiner Platt, director of the Law, Rights, and Religion Project at Columbia Law School. Read more.

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Biden Administration’s Plan for Student Loan Cancellation Blocked

Biden v. Nebraska

“What the Supreme Court’s Student Loan Forgiveness Ruling Means for You, According to Experts,” Ashraf Ahmed in Yahoo News

“It’s just very unlikely—it’s extremely unlikely—that the Biden administration can make any headway on student debt relief absent Congress passing a statute,” says Ashraf Ahmed, Associate Professor of Law.

“This case is a continuation of something called ‘the major questions doctrine,’ which is basically this interpretive rule that the court has adopted over the last five to 10 years or so, especially over the last five years, which constrains the presidency, the executive branch and agencies from taking creative interpretations of past statutes on questions of major economic significance,” Ahmed says. “The major questions doctrine leads the court to be very skeptical of extreme claims of statutory authority over matters of great economic and social importance in the country. And basically at $400 billion, the economic impact here is obviously pretty major. The court says that, in those instances, we need explicit congressional authorization.” Read the Q&A.


“Supreme Court Axes Debt Relief, Threatens Climate Regs,” Michael Burger in E&E News

Michael Burger, executive director of the Sabin Center for Climate Change Law, says the Supreme Court’s ruling—which cites a legal theory known as the “major questions” doctrine—“doesn’t solve the riddle of what does and what does not constitute a major question, and why.” Read more.

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Curtailing Race as a Factor in College Admissions

Students for Fair Admissions v. President and Fellows of Harvard College
Students for Fair Admissions v. University of North Carolina, et al.

“Lee Bollinger Laments the Ruling by America’s Supreme Court Against Affirmative Action,” Lee C. Bollinger ’71 in The Economist

“Although the court’s decision is regrettable, I reject the notion that the only direction is backwards and that universities must start from scratch to achieve meaningful diversity,” writes Lee C. Bollinger ’71, Columbia University President Emeritus and Seth Low Professor of the University. “I believe that goal is within reach. In fact, universities are much closer than many may think, provided they let go of outdated admissions policies and develop ways to give themselves greater freedom to identify talent.” Read more.


“Lee Bollinger: Affirmative Action Decision Is a ‘Tragedy’ in the Fight Against Racial Discrimination,” Lee C. Bollinger ’71 on Andrea Mitchell Reports on MSNBC

“I think one has to say this is effectively overruling the Grutter decision, which was the landmark decision that commanded a majority of the Supreme Court,” Bollinger says. “This is a very serious change and, from my point of view, a tragedy in the efforts of this country and of higher education to try to deal with racial discrimination that has, of course, been part of our history and continues in various forms.” Watch the segment.

Note: The named defendant in the 2003 landmark decision Grutter v. Bollinger that upheld the narrowly tailored use of race in college admissions, President Emeritus Bollinger has shared his insights on the use of affirmative action in college admissions. Read more of his comments.


“I Worked With Anita Hill to Fight Clarence Thomas’ Confirmation. Our Worst Fears Came True,” Kimberlé W. Crenshaw in Politico Magazine

“As I sat on the steps of the Capitol with a colleague after the narrow confirmation of a man who opposed much of the legacy of Thurgood Marshall, the great American civil rights lawyer who Thomas was being tapped to replace, we both came to the same conclusion: This appointment was going to shape the rest of our lives. . . . This week’s Supreme Court ruling overturning affirmative action is further confirmation of those fears,” writes Kimberlé W. Crenshaw, Isidor and Seville Sulzbacher Professor of Law. Read more.


“The Supreme Court Overturns Affirmative Action in College Admissions,” Kimberlé W. Crenshaw in The 19th

“People have no idea how far a decision that claims that equity and inclusion is discriminatory will go to underscore demands that we stop talking about racism, we stop talking about sexism, we stop talking about homophobia and transphobia,” Crenshaw says. Read more.


“Another Right Wing Front Group Gets SCOTUS to Rule With a Predetermined Outcome, This Time Against Affirmative Action” Katherine M. Franke on Background Briefing With Ian Masters 

“In some respects, this case is about, ‘What does it mean for race to play a role in the application for higher education?’” says Katherine M. Franke, James L. Dohr Professor of Law. “The majority treats race in individualized terms—the skin color of this person, the national origin of this person. . . . and I think you’ve got a very different idea of what it means to take race into account in the dissent. In that sense, they’re thinking about societal forms of race and racism—what race means, and how it cashes out in American society.” Listen to the episode.


“The Supreme Court’s Decision on Affirmative Action Must Not Be the Final Word,” Olatunde C.A. Johnson in Time

“While a legal blow, the Supreme Court’s decision should not—and need not—be the final word,” writes Olatunde C.A. Johnson, Ruth Bader Ginsburg ’59 Professor of Law. “Our collective legal and democratic responsibility to address the racial and ethnic inequalities that persist in the U.S. education system is as important as ever. Because what the Supreme Court does not have the power to do is erase the history or language of our civil rights laws, or the principles underlying them.”


“SCOTUS Decides Major Affirmative Action Cases,” Olatunde C.A. Johnson on Here & Now on WBUR

“The court in the opinion today really moves away from several decades of precedent that said that universities could consider race and ethnicity as one factor in a broad admissions program to further diversity,” Johnson says. “The court really affirmed that interest in the 2003 decision in Grutter, and this case chips away from it.” Listen.


“Harvard Faces Another Legal Fight Over Its Admissions,” Olatunde C.A. Johnson in Newsweek

“The Supreme Court's opinion really opened the door to [the complaint] by abolishing race and ethnicity-based affirmative action admissions, so it left those practices—such as legacy preferences and donor preferences—as an easy target for groups that are concerned about fairness in admissions,” Johnson says.

The exterior of the U.S. Supreme Court

Affirming State Courts’ Authority Over State Laws for Federal Elections

Moore v. Harper

“Supreme Court Rejects Controversial Election Law Theory,” Richard Briffault on Bloomberg Law Podcast

“I think this decision is very important even if its significance is not entirely clear,” says Richard Briffault, Joseph P. Chamberlain Professor of Legislation. “It’s very clear that the court rejected the most extreme version of the argument that state courts cannot interpret state constitutions in a way that limits state election laws dealing with federal elections.” Listen to the episode.


“U.S. Supreme Court Affirms State Courts’ Authority Over Election Rules,” Richard Briffault in Financial Times

The court in recent years “has not been so protective of voting rights, but this was a very good year for voting rights in the U.S. Supreme Court,” Briffault says. “There is some effort to find balance,” he adds, pointing out that moderate conservative justices including Brett Kavanaugh joined the majority opinion in this case and in Allen v. Milligan, which were both written by Chief Justice John Roberts, also a conservative. “It does suggest the Supreme Court is protecting states’ rights, but it’s also protecting voting rights.” Read more.


“S4, E36: The Supreme Court Guts Affirmative Action,” Richard Briffault on The Term on Law360

Briffault says that at the end of its decision, the U.S. Supreme Court found that “although state courts clearly can apply their constitutions—they have a role to play—the Supreme Court also has a role in reviewing these state court judgments to make sure they are not . . . too far out of line, that they don’t seem to be too great a departure from state law, that the state Supreme Court is not making something up when it’s reviewing state election law.” Listen to the episode.


“Legal Scholar Expects More Litigation Following NC Supreme Court Case,” Richard Briffault on Flashpoint on WCNC Charlotte

“I think the court felt that they were going to have to decide this question sooner or later,” Briffault says. “It had been raised in a number of cases during the 2020 election, and the majority of the court never directly addressed it. There are cases from other states where it’s percolating.” Watch the segment (beginning at 12:33).

The exterior of the U.S. Supreme Court

Discriminatory Congressional Maps and the Voting Rights Act

Allen v. Milligan

“Roberts, Kavanaugh Shock With Liberal Voting Rights Victory,” Olatunde C.A. Johnson in Bloomberg Law

Olatunde C.A. Johnson, Ruth Bader Ginsburg ’59 Professor of Law, says that in many ways, the court did what it should have done “in terms of being faithful to its past precedent but also to what Congress articulated are the purposes of Section 2 of the Voting Rights Act.” 

“In some sense our surprise is just a product of a court that we had seen as willing to do pretty far-reaching revisiting of past opinions.” Read more.


“Turning Point or the Long Game: What’s Behind John Roberts’s Surprise Supreme Court Voting Rights Ruling?” Olatunde C.A. Johnson in The Guardian

“I understand the temptation to read this as Roberts making pronouncements about the institutional standing of the court,” Johnson says. “But we need to see what happens before we understand what he is trying to say here.” Read more.

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Suing Striking Unions Under Federal Labor Laws

Glacier Northwest, Inc. v. International Brotherhood of Teamsters

“Columbia Law Professor Discusses the Supreme Court Ruling Against Labor Unions,” Kate Andrias on Bloomberg Law Podcast

“The opinion basically said this conduct—the particular conduct that these workers engaged in—was not protected by the NLRA [National Labor Relations Act]—not even arguably protected by the NLRA. And because it wasn’t even arguably protected by the NLRA, the suit could go ahead,” says Kate Andrias, Patricia D. and R. Paul Yetter Professor of Law. “The opinion is actually pretty narrowly written, and it’s not holding that strikes are never protected by the NLRA or that the state tort suit can always go ahead when there’s damage resulting from a strike.” Listen to the episode (beginning at 12:50).

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Federal Regulation of Wetlands

Sackett v. Environmental Protection Agency

“Supreme Court Sides Against EPA in Wetlands Case,” Camille Pannu on Here & Now on WBUR

“The court put in a very narrow reading of what constitutes a water of the United States,” says Camille Pannu, founder and director of the Just Transition Clinic. “That's going to affect things like flood control when you have hurricanes—wetlands are what protect us from catastrophic flooding.

“Wetlands also filter water, so for community groups that rely on lakes or rivers for their drinking water supply, this is going to make it more likely that it will be difficult and expensive to treat their water to make it drinkable.” Listen.

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Fair Use in Art

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

“Generative AI Debate Braces for Post-Warhol Fair Use Impact,” Shyamkrishna Balganesh in Bloomberg Law

“To the extent that the prior argument was, ‘I’ve used input data to generate a new output, and look, that’s transformative,’ that is in some ways off the table,” says Shyamkrishna Balganesh, Sol Goldman Professor of Law. “Because what the court is saying is we have to look at the use.” Read more


“A Clear-Cut Win for Artists or a Stifling Effect on Artistic Creation? How Copyright Law Experts View the Supreme Court’s Warhol Decision,” Jane C. Ginsburg in Variety

“I think the court got it right,” says Jane C. Ginsburg, Morton L. Janklow Professor of Literary and Artistic Property Law, who co-wrote an amicus brief with Professor Shyamkrishna Balganesh and Berkeley Law Professor Peter S. Menell for the case.

“If the test is, did you create something new, then my problem is, where do you draw the line?” Ginsburg says. “I don’t think we really want judges being art critics and assessing what is the merit of the art from the artist who has been building on some other artist’s work.” Read more.


Warhol Fair Use Ruling Reframes Appropriation Art Legal Fights,” Shyamkrishna Balganesh in Bloomberg Law

Balganesh says the opinion “vindicated” a brief that he co-authored advising a return to the “holistic message” in Campbell v. Acuff-Rose Music, Inc.

“Courts and scholars have really focused on three or four lines from Campbell and ignored the fact that Justice Souter didn’t just tell you what transformative use was, but how to do the analysis,” Balganesh says. “Our brief said, ‘Go back and read Campbell, it gives you this beautiful blueprint.’” Read more.


“SCOTUS Says Warhol Not So Fast: The Limitations of Transformative Use,” Philippa Loengard ’03 on The Art Law Podcast

“Justice Sotomayor, who wrote the majority opinion, said we need to look at the original work more than we need to look at the use of the secondary work or the creation of the secondary work,” says Philippa Loengard ’03, executive director of the Kernochan Center for Law, Media and the Arts. “We need to remember that there are four factors in this test, even though we’re not looking at them right now. There are four of them and they need to be weighed equally.” Listen to the episode.


“Supreme Court Sides Against Andy Warhol Foundation in Copyright Infringement Case,” Timothy Wu in NPR

“If the underlying art is recognizable in the new art, then you've got a problem,” says Timothy Wu, Julius Silver Professor of Law, Science and Technology. Read more.