The summer break did not feel like much of a break with all the emergency docket activity generated by liberal judges, but the new term of the Supreme Court has arrived. The cases on the docket present a number of important questions that include equal protection, free speech, federal versus state courts, the separation of powers, and voting.
Women’s Sports
Following last term’s decision in United States v. Skrmetti, which upheld Tennessee’s restrictions on risky gender-transition procedures for minors, the Court will now tackle the related question of biological males competing in women’s sports. In West Virginia v. B.P.J. and Little v. Hecox, the justices will consider whether West Virginia and Idaho laws protecting women’s sports from biological male participation violate the Equal Protection Clause and (in B.P.J.) Title IX. A major question in the cases is whether transgender status constitutes a quasi-suspect class meriting heightened scrutiny. The Fourth and Ninth Circuits held that it does, but that conflicts with the Tenth and Eleventh Circuits.
I suspect the Supreme Court is going to reverse. In Skrmetti, three justices—Barrett, Thomas, and Alito—were on record saying that transgender status is not a quasi-suspect class. If that question is resolved, at least two additional justices are likely to share their reluctance, consistent with both case law and common sense, to create another quasi-suspect class. Title IX would also be a strange basis for striking down the challenged laws since it has from the beginning contemplated the distinction between men’s and women’s teams and sought to protect women’s sports rather than undermine them.
The First Amendment
This term features several free speech cases, beginning with Chiles v. Salazar, which will be argued tomorrow. At issue is whether Colorado’s ban on counseling conversations with minors that help them overcome unwanted same-sex attraction or that encourage them to accept the sex they were born with violates the Free Speech Clause. Since this Alliance Defending Freedom case deals with speech rather than the administration of medicine, it is in a different category from Skrmetti. The law at issue is troublingly broad, restricting therapeutic conversations between licensed counselors and minors based solely on the viewpoints expressed. As Justice Thomas wrote for the Court in National Institute of Family and Life Advocates v. Becerra (2018), “Speech is not unprotected merely because it is uttered by ‘professionals.’”
Another First Amendment case on the docket is National Republican Senatorial Committee v. Federal Election Committee, which asks whether limits on coordinated campaign expenditures by party organizations violate the First Amendment. Campaign-finance decisions from Citizens United v. Federal Election Commission (2010) through Federal Election Commission v. Ted Cruz for Senate (2022) recognize how laws packaged under the label of campaign finance reform threaten core political speech rights. A number of these laws unconstitutionally police political contributions well beyond addressing actual corruption and instead put the government in a position to regulate the types of speech it deems acceptable. The Court now is asked to limit or overrule its 5–4 decision rejecting a facial challenge to coordinated spending limits in Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001). That case increasingly looks outdated, and the solicitor general to his credit refuses to defend either that precedent or the challenged statutory limits.
Federal Versus State Courts: Who Decides?
First Choice Women’s Resource Centers v. Platkin involves the New Jersey attorney general’s subpoena of a pregnancy resource center demanding disclosure of donors and other sensitive data. That is a harassment tactic reminiscent of what the Court struck down on First Amendment grounds in Americans for Prosperity Foundation v. Bonta (2021). The specific question before the Court in Platkin is procedural rather than constitutional: whether a litigant with a reasonably objective claim that their First Amendment rights have been chilled can be forced to move their case to state court even if they filed in federal court first. How the question is answered affects whether the constitutional rights involved in the case receive proper federal protection—the same protection accorded to other civil rights.
Another case on the docket involves questions about which forum—federal or state court—should resolve certain disputes. Chevron USA v. Plaquemines Parish asks whether federal contractors can remove cases to federal court when sued for oil-production activities undertaken to fulfill a federal oil-refinement contract. A federal-officer removal statute allows civil actions against those who act under an officer of the United States “for or relating to any act under color of such office” to be removed to federal court. The question is how broad or narrow the “relating to” requirement is. The underlying lawsuit involves Louisiana government entities suing oil and gas companies over their production of crude oil along the coast that went as far back as World War II. The companies involved had federal contracts to produce aviation gasoline, but the contracts did not specify crude production. Yet the companies’ production of crude, an ingredient of aviation gasoline, was done to meet their contractual obligations even if not specified.
As with First Choice, the question is who decides? State courts have incentives not to be fair to certain organizations, particularly in politically charged matters like environmental litigation. The Court’s answer will help establish whether federal contracting defendants can secure a neutral forum or must face potentially hostile state courts.
The Separation of Powers and Presidential Authority
The Court is also expected to address fundamental questions involving the separation of powers and presidential authority. The most consequential case as a matter of jurisprudence will probably be Trump v. Slaughter, which asks whether Article II empowers the president to remove FTC members at will. That squarely entails asking the Court to overrule Humphrey’s Executor v. United States, the 1935 decision involving another removed FTC commissioner that created a constitutionally dubious category of “independent agencies” insulated from presidential control—which in turn enabled much of the growth of an unaccountable administrative state.
The Constitution vests all executive power in the president, and agency heads exercising executive authority should be removable at will to ensure democratic accountability. The president cannot faithfully execute the laws if he cannot control those charged with executing them. The garbled analysis of Humphrey’s Executor failed to grasp the threat to executive authority that was at stake, and the overruling of that precedent might distinguish this term the way other recent terms have been remembered for removing other blights on constitutional law. Also at issue in this case is whether the lower court overreached by preventing the commissioner’s removal from office as opposed to reverting to a traditional remedy such as granting backpay.
The Court will hear arguments on the request for a stay in another case involving presidential removal, Trump v. Cook, in which Federal Reserve Governor Lisa Cook challenges her removal by President Trump. Unlike Slaughter, which broadly challenges presidential removal restrictions, the administration’s argument in Cook is that it had cause to remove her, without having to consider inherent Article II authority to remove Federal Reserve governors at will. At the stay request stage, do not expect this case to address the merits of the dispute, though analysis of the likelihood of prevailing may provide a revealing glimpse at where this case is headed.
Trump v. V.O.S. Selections asks whether the International Emergency Economic Powers Act authorizes presidents to impose tariffs, and if so, whether that constitutes an unlawful statutory delegation. The case is among the most visible of this term because of the gravity of the policy implicated. The legal questions themselves are complex enough to render a prediction in this case difficult. The Court might clarify its jurisprudence on both the major questions doctrine, which has played a role in several recent decisions, and the related nondelegation doctrine.
The Use of Race in Districting
Louisiana v. Callais, set for argument on October 15, is a redistricting case in which the state legislature drew a second majority-black district after the Middle District of Louisiana held that its map containing only one such district likely violated Section Two of the Voting Rights Act (VRA), only to have the redrawn map enjoined as an unconstitutional racial gerrymander by the Western District of Louisiana. A thorny array of questions follow: whether race predominated in the drawing of the map, whether it fails strict scrutiny, whether it should have been subject to the preconditions established by Thornburg v. Gingles (1986), and whether the action is non-justiciable. The case was held over from the last term, and the Court over the summer asked for supplemental briefing on whether the state’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendment.
I noted previously the confusion that remains in this area of law following the Court’s decision in Allen v. Milligan two years ago, which applied Gingles to invalidate Alabama’s congressional map. Louisiana finds itself caught between two irreconcilable strains of precedent. On one hand, Section Two, as interpreted in Gingles and reaffirmed in Milligan, requires states to consider race when drawing districts to ensure that minority voters have an opportunity to elect candidates of their choice. Yet another line of precedent—exemplified by Students for Fair Admissions v. President and Fellows of Harvard College (2023)—holds that race-based decision-making is presumptively unconstitutional and demands the most exacting scrutiny. This fundamental tension in the Court’s jurisprudence can no longer be ignored. Hopefully it will be resolved in favor of race neutrality.
Other Notable Cases
Also noteworthy in the upcoming term: Case v. Montana will consider a question of significance to Fourth Amendment jurisprudence—whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause. In Hamm v. Smith, the Court will consider whether and how courts may consider the cumulative effect of multiple IQ scores in assessing claims in death penalty cases under Atkins v. Virginia (2002), which barred the execution of mentally retarded criminals. The questions presented do not ask the Court to revisit that precedent, but they will naturally shape that category of death penalty cases going forward.
I go into every new term with awareness that Supreme Court litigation is often not conducive to prediction, and that is certainly true of a number of cases this year. But this term starts with an optimism that is justified by what we have witnessed in the vast majority of major decisions over the past several terms: an originalist majority committed to following the law and appreciative of the need to offer legal clarity where it is lacking. Most justices on this Court have been courageous enough, amid escalating harassment from the Left and even threats to their lives, to correct longstanding errors. This has the making of another eventful term that will be memorable for the right reasons.