Broadcast journalists work outside the U.S. Supreme Court in Washington, DC, September 15. The new term begins Monday.
Roberto Schmidt/AFP via Getty Images
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Roberto Schmidt/AFP via Getty Images
The U.S. Supreme Court officially opens a new term Monday, with important test cases on religion, banning semi-automatic weapons, climate change, immigration and – behind the scenes – election law cases.
In the past, the first Monday in October marked the start of a new term on the Supreme Court. And that’s still true, technically. But for all intents and purposes, the once quiet summer months after the court has finished issuing its opinion on all the cases argued no longer exist.
Indeed, as Stephen Vladeck, a law professor at Georgetown University, observes, the number of emergency calls has exploded under the Trump administration, while at the same time, fully informed and argued cases have fallen precipitously over the years.
“So we now have twice as many plenary court decisions on emergency requests as on the merits,” observes Vladeck, adding: “This is a very new phenomenon.”
The difference is that decisions on the emergency list are rendered quickly, with little briefing, no pleadings and ultimately little or no explanation of the decision. In contrast, a decision on the merits is generally developed over months after a comprehensive briefing and lengthy pleadings.
Lately, the court appears to be straining to provide some limited explanation for its emergency rulings, but lower court judges, both liberal and conservative, complain that this is not enough to provide them with adequate guidance. And the Trump administration often takes what was once the rare step of reaching the Supreme Court by jumping over lower appeals courts that the administration views as hostile.
In this context, here are the cases that the court will hear in the coming weeks:
Climate change
The opening case, which will be argued Monday, tests whether state and local governments can sue energy companies for allegedly misleading the public about the harmful effects of fossil fuels.
“The theory is that the energy company defendants misled the public for many years,” says Deepak Gupta, who teaches at Harvard Law School and practices law in Washington, DC. What the companies have been telling the public for years, he says, is “the opposite of what the company’s own scientists knew, and the local cost of that deception.”
That said, most legal observers view this case as an uphill battle for environmentalists.
Religion
Perhaps the most important case of the term so far, in terms of ripple effects, concerns religion, a subject on which the Court’s vast conservative majority has radically altered its legal doctrine. Indeed, for the better part of a century, the Supreme Court has emphasized the First Amendment’s separation of church and state, with the free exercise of religion playing an important but secondary role. Since the appointment of three new judges by President Trump, things have changed.
“It’s literally the opposite of what the law was not that long ago, and it’s just a complete change,” observes Frank Ravitch, a law professor at Michigan State University.
The court may actually be poised to require taxpayers to fund religious schools that refuse to admit LGBTQ students and parents. Last season, the justices deadlocked on the issue in a separate case after Justice Amy Coney Barrett recused herself due to a conflict. The 4-4 tie vote automatically left in effect an Oklahoma Supreme Court ruling that barred overtly religious charter schools from being funded by taxpayers. But this year, the problem returns in a case that occurred in Colorado. The case involves a state law that provides for universal preschool programs open to all students regardless of race, ethnicity, religious affiliation, sexual orientation or gender identity.
St. Mary Catholic Parish in Littleton, Colo., wants state funding guaranteed in the state’s Universal Kindergarten law. But he doesn’t want to admit LGBTQ students or gay or trans parents. The parish contends that such admissions would violate the Church’s right to the free exercise of religion. The state counters that funding the parochial school would violate the state’s anti-discrimination law.
The court’s conservative majority has ruled in several cases in favor of religious exemptions from generally applicable laws. However, until now, the court has never ruled that religious schools are entitled to full taxpayer funding. But given the court’s current opinion and Judge Barrett’s involvement in the Colorado case, taxpayers may well find themselves having to fund religious schools in Colorado and elsewhere.
Ban on semi-automatic weapons
In December, the court will hear a case aimed at determining whether state and local governments violate the Second Amendment right to bear arms when they ban semi-automatic weapons, like the AR-15.
Former Solicitor General Don Verrilli Jr. lays out two different ways to approach the issue.
On the one hand, the AR-15 “can deliver over 100 rounds per minute” without any enhancements, and 500 rounds per minute with various upgrades. On the other hand, he notes that millions of Americans own AR-15s, “and it would be quite disruptive to suggest that all of those Americans… would be dispossessed of their weapons.”
Attorney Erin Murphy, who has argued numerous cases on behalf of gun owners, says “the most important question is who decides what guns you own,” and he argues that it makes no sense to say, “You have this right against the government, but the government decides what guns you can get.” »
Immigration
The Trump administration has repeatedly taken positions on immigration matters that no other administration has taken. Most recently, the court announced it would hear arguments and rule on a case over whether the Department of Homeland Security can deport migrants to so-called “third countries” when their home countries refuse to accept them. Since Trump began his second term, his administration has deported thousands of people to third world countries where they have no ties, may not speak the language, have often been imprisoned and have reportedly been subjected to torture. The court has twice blocked lower court rulings that barred the third-country policy, and the justices have now said they will hear arguments on the policy in December.
In a second immigration case, at issue is the Trump administration’s policy of detaining undocumented immigrants without bond hearings, regardless of how long they have been in the United States.
Possible cases: The 10 commandments and much more
Many other cases are waiting in the wings and could be considered by the judges. Among them is a case that seeks to overturn a nearly half-century-old Supreme Court precedent; it prohibits public schools from displaying the Ten Commandments in public school classrooms. But today, Texas, Arkansas, Louisiana and Alabama have passed laws that conflict with the Supreme Court’s 1980 decision, and lower courts are divided on the issue. This split virtually guarantees that the Supreme Court will revisit the issue.
Another case that could come before the Court this quarter tests whether states can regulate Kalshi, the $40 billion prediction market giant that lets sports fans bet on everything from the next pitch to the point spread or, at the other end of the spectrum, betting on the outcome of Supreme Court cases.
And then there are cases in which the Trump administration slowed down for nearly two years, after quickly losing in lower courts. Good examples are the administration’s attempt to deny medical research grants to Harvard University, and other attempts to deny security clearances to law firms, as well as seeking damages from law firms that Trump views as hostile. Earlier this year, the Justice Department told a federal court in Washington that it was dropping the law firm’s files. But the next day, the court returned to reverse course.
“They don’t want to take over cases that they’re going to lose, but on the other hand, they have a boss who wants everything to go to the Supreme Court,” says Pam Karlan, a law professor at Stanford University.
Georgetown’s Professor Vladeck adds that in his view, “the real story of the coming term has not yet been written because what we will consider to be the most important cases of the term…are not yet on the agenda.”
Elections
For the time being, it is likely that, like it or not, judges will be involved in the election. The Trump administration has sought to influence the election in numerous ways, and it is unclear what efforts it might make in the future.
Democrats have a battalion of lawyers ready to fix problems on the ground, whether it’s moving polling places at the last minute or stationing federal agents near polling places. But if there are serious voting problems, they will likely end up at the door of the Supreme Court – on the emergency docket.
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