Executive power, transgender sports, and birthright citizenship lead a docket crowded with immigration, gun rights, and election law cases — and much more.
Executive power, transgender sports, and birthright citizenship lead a docket crowded with immigration, gun rights, and election law cases — and much more.
T he Supreme Court is expected to hand down decisions again on Thursday, and to wrap up its term over the next three weeks ahead of the July 4 weekend. Assuming that it issues opinions in all of the argued cases and combines the cases that were argued together, we should expect 22 more opinions.
Here’s my back-of-the-envelope ranking of the remaining cases by importance, with a few thoughts on what we are likely to see:
1) Trump v. Barbara
Question Presented: Whether Executive Order 14,160 complies on its face with the citizenship clause of the 14th Amendment and with 8 U.S.C. § 1401(a), which codifies that clause.
The most sensational case, if not necessarily the most suspenseful, is the birthright citizenship case, on which I’ve written extensively (most recently here). It’s pretty widely expected that Donald Trump will lose this one and that the Court won’t disturb the very long-standing status quo under which people born in the United States get citizenship automatically, regardless of whether their parents are residents or in the country legally. The Trump team has tried to minimize the expected disruptions by arguing only for a prospective change in the rules on birthright citizenship, but nobody is fooled about where the logic of the administration’s position leads. A segment of the populist right is ready to spring into nuclear-level rage at the Court if Trump loses.
There are two possible ways that the Court could duck a clean sweep against Trump on constitutional grounds. One, which has some basis in the history of the ratification period for the 14th Amendment, would be to rule that it was intended to apply only to residents — which would mean that illegal alien residents can still have so-called “anchor babies” here, but “birth tourists” just passing through the country can’t. The other would be to rule that Congress in 1940 and 1952 settled the birthright citizenship question by statute, and therefore a constitutional decision is unnecessary unless and until the existing law gets repealed. Those two wrinkles may yet lead to a splintered majority.
2) West Virginia v. B.P.J.; Little v. Hecox
B.P.J. Question Presented: (1) Whether Title IX of the Education Amendments of 1972 prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth; and (2) whether the equal protection clause of the 14th Amendment prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.
Little v. Hecox Question Presented: Whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the equal protection clause of the 14th Amendment.
The Court in Skrmetti v. United States refused to buy into transgender ideology, but due to the ACLU’s tortured legal theory in the case, neither did the Court need to squarely rule against it. But the question of men in women’s sports puts the big-ticket questions of biological reality closer to the surface. From the argument, it seems likely that the Court will let states decide.
3) Trump v. Slaughter
Question Presented: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.
Conservatives have labored for many years to make the case that presidents can remove executive branch officials even if Congress tries to restrict that power, given the president’s sole personal power and duty to carry out the tasks given to the executive branch under Article II. As high as are the stakes of Slaughter, involving a Trump effort to remove a member of the Federal Trade Commission, the outcome seems predetermined by emergency docket decisions last summer on removal of members of the Consumer Product Safety Commission, the National Labor Relations Board, and the Merit Systems Protection Board, in which the Court all but declared the 91-year-old Humphrey’s Executor a dead letter.
4) Trump v. Cook
Question Presented: Whether the Supreme Court should stay a district court ruling preventing the president from firing a member of the Federal Reserve Board of Governors.
Does the Slaughter rule — assuming it comes down as expected — apply to the Federal Reserve? The Court has signaled that it may not, and in a display of strategic restraint unusual for this administration, it has decided not to press the issue, instead arguing that Trump could fire Lisa Cook from the Fed board for cause — thus complying with the statutory limitations. But the case for doing so, while raising some novel legal questions, fared poorly at argument. Still, even if Trump loses, the Court will have to decide how much guidance to offer on what it means to fire executive branch officials for cause based on personal misconduct predating their appointment for which they have never been found criminally guilty or civilly liable in court.
5) Mullin v. Doe (formerly Noem v. Doe); Trump v. Miot
Questions Presented: Whether the Supreme Court should stay a district court order preventing the Trump administration from ending Temporary Protected Status for Syrian nationals; Whether the Supreme Court should stay a district court order preventing the Trump administration from ending Temporary Protected Status for Haitian nationals.
These two cases were argued together, although they present questions with some distinctions regarding the withdrawal of TPS for Syrians and Haitians, respectively, that had previously been granted under the Obama and Biden administrations. A crucial question is whether a federal statute that bars judicial review of TPS decisions actually bars judicial review of TPS decisions, and whether Trump can be restrained from using powers that other administrations enjoyed, on the grounds that he has bad motives. The Syrian case is wrapped up in larger foreign policy questions following the change of regime in that country. Expect this one to be a bitter and divisive set of opinions.
6) Watson v. Republican National Committee
Question Presented: Whether the federal election-day statutes, 2 U.S.C. § 7, 2 U.S.C. § 1, and 3 U.S.C. § 1, preempt a state law that allows ballots that are cast by federal election day to be received by election officials after that day.
The Court already ruled, earlier this term, in Bost v. Illinois State Bd. of Elections, that candidates can sue to challenge laws that permit ballots arriving after Election Day to be counted, on the grounds that extending the length of the election injures them. But does federal law bar counting such ballots in federal elections? Mississippi’s law allowing that is in the hot seat and could well fall, and the ridiculous spectacle of California’s never-ending vote-counting system surely isn’t helping Mississippi’s cause.
7) National Republican Senatorial Committee v. Federal Election Commission
Question Presented: Whether the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in 11 C.F.R. § 109.37.
First Amendment challengers to restrictions on political speech and campaign spending have had a good run in the Roberts Court. If the Court clear-cuts rules on political party spending, that will be a big one — and sooner or later will lead to some garment-shredding on the left about money in politics. It won’t be lost on the Court that the parties are extremely weak these days.
8) Wolford v. Lopez
Question Presented: Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier.
Wolford is yet another Second Amendment case that boils down to whether the Court means what it has said, or whether it will let blue states keep resisting the Second Amendment. Hawaii’s shocking and silly effort to justify its law based on an analogy to the infamous Black Codes of the Reconstruction era now looks like further evidence that Neal Katyal has lost the plot.
9) United States v. Hemani
Question Presented: Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to respondent.
The other Second Amendment case involves what we now know as the Hunter Biden law: a statute criminalizing habitual drug users from owning guns. The case comes to the Court too late to matter for Hunter, who has since been pardoned. It involves some amusing historical inquiries into the drinking habits of the society that framed and ratified the Second Amendment, and more specific ones about whether barring drug addicts from guns entirely is really comparable to Founding-era laws that disarmed people temporarily while they were drunk.
10) Mullin v. Al Otro Lado (formerly Noem v. Al Otro Lado)
Question Presented: Whether an alien who is stopped on the Mexican side of the U.S.–Mexico border “arrives in the United States” within the meaning of the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., which provides that an alien who “arrives in the United States” may apply for asylum and must be inspected by an immigration officer.
The second immigration case on the docket isn’t as sensational as the TPS disputes, but it’s a recurring issue of broad significance: whether border officials can stop people from reaching the U.S. border as a way of preventing them from filing asylum claims. This isn’t the same as the Remain in Mexico policy, which requires people with pending asylum claims to wait outside the country until asylum is granted, but it’s a related issue. (In Biden v. Texas (2022), the Court let the Biden administration terminate Remain in Mexico, but that decision hasn’t stopped Trump from reinstating it.) In the administration’s favor this time, the asylum statute speaks of filing claims when “in” the United States, not just as close as you can get to a port of entry.
11) Pung v. Isabella County, Michigan
Question Presented: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the takings clause of the Fifth Amendment when the compensation is based on the artificially depressed auction sale price rather than the property’s fair market value; and (2) whether the forfeiture of real property worth far more than needed to satisfy a tax debt but sold for a fraction of its real value constitutes an excessive fine under the Eighth Amendment, particularly when the debt was never actually owed.
In Tyler v. Hennepin County (2023), the Court unanimously ruled that state and local officials can’t seize and sell a house to pay a tax bill, and then keep the profits if the sale is for much more than the due taxes. Pung is a sequel to that case, in which the homeowner’s grievance is that the home was sold at auction for much less than its fair market value. That’s a harder case, because sales at auction are traditionally how local officials collect unpaid taxes, and it’s a far easier rule to administer than estimating a hypothetical fair market value. So, the Court this time around may still sympathize with the homeowner but is less likely to offer much relief.
12) Chatrie v. United States
Question Presented: Whether the execution of a geofence warrant violated the Fourth Amendment.
Cutting-edge technological developments often provide novel Fourth Amendment issues, and Chatrie is no exception. A “geofence warrant” lets the government identify cellphones (and thus, in all likelihood, their users) that were in a particular place at a particular time, such as the scene of a bank robbery. Do you have a reasonable expectation of privacy in where your cellphone is while you’re out in public? The Framers of the Constitution wouldn’t have known the answer to that one, but they would doubtless have wanted the courts to think seriously about the answer with the tools that the Fourth Amendment gave them.
13) Landor v. Louisiana Department of Corrections and Public Safety
Question Presented: Whether an individual may sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000.
The hot religious liberty–related cases of this term have already been decided, but there’s one more left. A Rastafarian prison inmate claimed a religious right to keep his dreadlocks and sued prison officials when they shaved him. He’s already won on the question of his First Amendment rights; at issue is whether RLUIPA allows him to sue the prison officials for damages. The case isn’t just about the text of the law, however; it’s also got a number of complicating factors about how federal law applies and what notice the state officials had that they could be sued in this way.
14) Blanche v. Lau (formerly Bondi v. Lau)
Question Presented: Whether, to remove a lawful permanent resident who committed an offense listed in Section 1182(a)(2) and was subsequently paroled into the United States, the government must prove that it possessed clear and convincing evidence of the offense at the time of the lawful permanent resident’s last reentry into the United States.
The third of this term’s major immigration cases presents a more targeted issue. Green-card holders can be barred from reentering the country if they’ve committed certain crimes — but what if they haven’t been convicted yet? Can the government prove its case to an immigration judge with evidence it didn’t have at hand on the day the green-card holder tried to reenter? Lau himself, a Chinese national, is not a very sympathetic case for this, given that he unquestionably was guilty: He ultimately pleaded guilty to trademark counterfeiting after Obama-era immigration officials let him back into the country to have his day in court. Fourteen years later, he’s still here.
15) Cisco Systems, Inc. v. Doe I
Question Presented: (1) Whether the Alien Tort Statute allows a judicially-implied private right of action for aiding and abetting; and (2) whether the Torture Victim Protection Act allows a judicially-implied private right of action for aiding and abetting.
This and the next case both involve how far American law can or should reach in hearing lawsuits over things happening largely overseas. Cisco has been hauled into American courts over Chinese abuses of the Falun Gong movement inside China — which was done in part with American technology. The Court for some time has been skeptical of extending these sorts of cases too far.
16) Exxon Mobil Corp. v. Corporación Cimex, S.A.
Question Presented: Whether the Helms-Burton Act abrogates foreign sovereign immunity in cases against Cuban instrumentalities, or whether parties proceeding under that act must also satisfy an exception under the Foreign Sovereign Immunities Act.
I wrote previously on the Court’s decision in Havana Docks Corporation v. Royal Caribbean Cruises, Ltd., which tightened the screws of the U.S. embargo on Cuba. This is the second case on Cuba sanctions, and it could be an even stronger tool, allowing lawsuits against Cuban government instrumentalities without the protection that other governments enjoy under the FSIA.
17) FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd.
Question Presented: Whether Section 47(b) of the Investment Company Act creates an implied private right of action.
Among the laws governing my old area of practice — the federal securities laws — the Investment Company Act of 1940, commonly known as the “40 Act” and governing mutual funds and similar pooled investment entities, has drawn comparatively little interest from the Court in the past four decades. Still, the 40 Act was ground zero back in the 1970s for the Court’s hard turn away from recognizing implied rights of action — i.e., civil lawsuits under a federal statute that doesn’t explicitly say that anyone can use that statute to file a civil suit. The Court has held that “no new implied rights of action” line for a long time now, while de facto grandfathering in the rights of action previously recognized under what is recognized as an old regime. There’s a double wrinkle in FS Credit. On the one hand, Section 47(b) declares certain contracts with investment companies to be “unenforceable by either party” if those contracts violate the terms of the 40 Act, and even details the conditions under which “a court may not deny rescission at the instance of any party” — language that sounds as if Congress intended that courts could hear cases brought by the parties to contracts seeking rescission or a declaration of unenforceability. On the other hand, the fact that Section 47(b)’s list of prohibited contract provisions covers the whole rest of the statute could make it a vehicle for letting in suits over all manner of legal violations by the back door. The case will be a bellwether for the strength of the Court’s commitment to holding the line on no new implied rights of action.
18) T. M. v. University of Maryland Medical System Corp.
Question Presented: Whether the Rooker-Feldman doctrine, which prevents parties who lose in state courts from challenging injuries caused by state-court judgments, can be triggered by a state-court decision that remains subject to further review in state court.
A number of judicial doctrines about the relationship between state and federal courts are rules of prudence and federalism rather than interpretation of written law; the Rooker-Feldman doctrine is based loosely on a federal statute, and the Court has been paring back its application. The immediate question in T. M. is whether the doctrine is just supposed to prevent relitigation in federal court of losses in state court, or whether it also keeps federal courts out of cases where state-court appeals are ongoing. What could make this case a bigger deal is if the Court decides that the whole doctrine is unmoored from the law and overrules it entirely, which would rip a few pages out of every civil procedure textbook.
19) Abouammo v. United States
Question Presented: Whether venue is proper in a district where no offense conduct took place, so long as the statute’s intent element “contemplates” effects that could occur there.
Even the cases that are small by Supreme Court standards can still have fairly large consequences in the lower courts, and that’s the situation for the last four cases on this list. The question of venue for criminal offenses is often a highly case-specific one, but it can assume greater importance in a couple of situations: in internet-based cases, in organized crime and drug cartel cases, and in political cases where the venue determines the political sympathies of the jury pool. This case falls in the first category, with the dispute being sharpened by the defendant getting charged in the district where the FBI was conducting an investigation (the defendant was charged with sending them falsified documents).
20) Monsanto Company v. Durnell
Question Presented: Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a label-based failure-to-warn claim where EPA has not required the warning.
Federal preemption of state-law lawsuits is a hardy perennial on the Court’s docket, given the vast web of federal regulations and the huge volume of civil tort litigation. It is often the case that businesses get sued for negligence or some other wrong in how they write labels, design products, or otherwise do business in ways subject to federal regulation. At what point do these state lawsuits undermine a uniform federal rule or the uniform application of a regulatory regime such as the one in FIFRA? This one concerns a federal decision not to require a warning label: If the EPA concludes that a pesticide doesn’t cause cancer, can the company still be sued for not warning that it does?
Justice Clarence Thomas has been critical of the impingement of federal preemption doctrine on state law; in Durnell, he is likely to reiterate that posture, notwithstanding the fact that he began his legal career as an in-house lawyer for Monsanto back in the 1970s (employment so low-level and long ago that he doesn’t recuse from Monsanto cases).
21) Hunter v. United States
Question Presented: (1) Whether the only permissible exceptions to a general appeal waiver are for claims of ineffective assistance of counsel or that the sentence exceeds the statutory maximum; and (2) whether an appeal waiver applies when the sentencing judge advises the defendant that he has a right to appeal and the government does not object.
Courts typically draw some pretty hard lines when it comes to the appellate process, but that dynamic is apt to be reversed when the issue is a criminal defendant waiving a right to appeal — and in this case, there’s a separate question of whether the government waived its own objection to the defendant appealing a condition of his sentence, specifically a requirement that he stay on his medication for depression. How the Court writes the rules for when a criminal defendant does and doesn’t waive his right to appeal will be important to criminal practitioners.
22) Keathley v. Buddy Ayers Construction
Question Presented: Whether the doctrine of judicial estoppel can be invoked to bar a plaintiff who fails to disclose a civil claim in bankruptcy filings from pursuing that claim simply because there is a potential motive for nondisclosure, regardless of whether there is evidence that the plaintiff in fact acted in bad faith.
Judicial estoppel is the doctrine that if you take a position in litigation and win the argument, you can’t go back and change your tune on that point later on when it no longer benefits you. (My lawyer-brain always reaches for this concept in explaining why it is so skeevy for politicians to abandon stances that won the day for them in the past.) This particular case is mostly about whether that applies regardless of intent, given that bankruptcy cases are supposed to clear the decks in deciding how to divvy up the assets and liabilities of the debtor, whether those are the debtor’s own claims (as in this one) or those against the debtor. As in Hunter, convincing the Court to require a showing of bad faith before applying that rule might seem like an uphill climb, but it’s an equitable doctrine, and the justices seemed skeptical at the argument of applying an absolute rule where there is no misconduct.