Kelly Shackelford: Court Preview

Supreme Court readies for new term as left takes aim

Kelly Shackelford: Court Preview

Supreme Court readies for new term as left takes aim

Although the United States Supreme Court will not start hearing oral arguments until its 2022 session begins on Oct. 3, there are already several important cases on the court’s docket, including some potential blockbusters. And while there are no major religious liberty cases docketed yet, there is reason to believe there will be at least one heard by the justices.

Currently, roughly 30 cases are already docketed for oral argument during the 2022 term. The court historically takes 70 to 80 cases each term, meaning there could be as many as 50 additional cases the court agrees to hear. Of the court’s docketed cases, several stand out.

In Students for Fair Admissions, Inc. v. Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, the high court will decide whether using race in college admissions decisions violates the Constitution and federal law. In both of these cases, students sued Harvard University and the University of North Carolina, arguing that certain racial and ethnic groups—Asians in particular—were held to higher admissions standards, despite possessing superior test scores. 

Another major case to keep an eye on is 303 Creative v. Elenis, which addresses whether a state law that requires artists to speak or remain silent violates the artist’s free speech rights under the First Amendment. Lorie Smith, 303 Creative’s owner, designs original, online content such as custom websites. Smith’s website makes clear that she is only able to create content that is consistent with her sincerely held religious beliefs. 

The state of Colorado, however, passed an all-or-nothing law that, in effect, requires artists to either create content that would violate the artist’s beliefs or to create no content at all. Smith’s only options are to compromise her faith or lose business. 

Although the court chose to address only the free speech question, the case’s outcome will undoubtedly have an impact on religious liberty. So the absence of religious liberty cases on the court’s docket could very well change. 

First Liberty Institute has asked the  Supreme Court to review the case of Sweet Cakes by Melissa this term, and will also seek Supreme Court review in at least one other major case: Groff v. DeJoy.   

Melissa and Aaron Klein were penalized $135,000 and put out of business by the state of Oregon because Melissa politely declined to make a custom wedding cake for a same-sex couple. Like tens of millions of Christians, the Kleins believe marriage is between one man and one woman. But Oregon and its Orwellian-named Bureau of Labor and Industries (BOLI) mercilessly punished the Kleins for their beliefs. At one point, the state even raided a bank account the couple had set aside to teach their children the value of tithing. The Oregon court system offered no relief as it rubber-stamped BOLI’s decision.

This is actually the second time First Liberty has asked the court to review the Kleins’ case. The first time, in 2019, the justices vacated the Oregon court’s decision and sent it back for a do-over. But the state simply doubled down and once again rubber stamped BOLI’s decision. Although the Oregon Court of Appeals agreed this time around that BOLI was biased against the Kleins’ faith, it still allowed BOLI to punish the Kleins. Thankfully, neither the Kleins nor First Liberty are undeterred in the fight for religious liberty. As the “Iron Lady,” Margaret Thatcher, once said, “Sometimes you have to fight a battle more than once to win it.”

Lady Thatcher’s prescient words also apply to the battle to preserve the Supreme Court as the Constitution’s framers intended. 

In the case of Groff v. Dejoy, Gerald Groff served as a U.S. Postal Service worker for nearly a decade. As a Sabbath-observant Christian, Groff obtained a religious accommodation to not work on Sundays. But in 2016, after the Postal Service began delivering Amazon packages on Sundays, it withdrew Groff’s accommodation, forcing him to work on Sunday in violation of his religious beliefs. 

Both the Klein and the Groff cases highlight a disturbing trend by which some government entities have become so hostile to religious freedom that Americans are forced to choose between their faith and their livelihoods. 

Contrary to what the mainstream media would have Americans believe, the Constitution and the rule of law are alive and well in America. Religious liberty is on an incredible winning streak. Indeed, First Liberty won two major religious liberty victories at the Supreme Court within the span of a single week last term. 

Those victories, combined with the court’s historic reversal of Roe v. Wade, led to shameful protests outside the justices’ homes and the ratcheting up of leftist threats to pack the court. 

Despite court-packing’s unpopularity—recent polling shows that two-thirds of Americans reject it—the far left continues to demand that President Biden try to accomplish what President Franklin Roosevelt famously failed to do. 

Other suggested reforms include term limits for the justices, or even removing Justice Clarence Thomas from the court because his wife happens to be an outspoken conservative. Thankfully, First Liberty and others continue to stand as a bulwark against any efforts to “reform” our judicial system that are not consistent with the Constitution. 

The effect of the 2021 term’s momentous decisions on the upcoming midterm elections, already in full swing, remains to be seen. There’s little doubt, however, that the court and its composition will remain a hot topic going into the 2024 presidential election. Regardless of which cases the justices decide to hear in the coming months, 2022 certainly promises to be another important term for the future of our republic. ©2022 Kelly Shackelford


Kelly Shackelford is president, CEO and chief counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Learn more at

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