What’s Next For the MAGA Justices? The Upcoming 2024-25 Supreme Court Term

Transgender equality (United States v. Skrmetti)

The Court will decide the constitutionality of laws making it illegal to give transgender minors critically important gender-affirming care. The justices may also decide if laws harming transgender people trigger heightened judicial scrutiny like laws discriminating on the basis of sex. Oral arguments are scheduled for December 4.

What is this case about?

In 2023, the Tennessee legislature adopted several laws targeting transgender people. This case involves a provision of Senate Bill 1 (SB1). It prohibits the use of puberty blockers and hormone therapy for minors if the purpose is to treat gender dysphoria. Those therapies are still available to minors in Tennessee to address other health issues unrelated to gender dysphoria. Health care providers who violate the law can be subject to professional discipline. They can also be sued by minors or their parents.

The legislature framed SB1 as trying to protect young people from purported harm. But the bill has been supported by forces that have for many decades fought hard to keep LGBTQ+ people marginalized as outsiders from our society and unprotected from discrimination.

The state was sued by three trans teenagers who have relied on the now-banned therapies, their parents, and a doctor who treats gender dysphoria. Because the law violates people’s civil rights, the Biden administration joined the lawsuit.

What happened in the lower courts?

A federal district judge in Tennessee blocked the state from enforcing the law. In Kentucky, a federal judge blocked enforcement of a similar ban in that state. Both cases were appealed to the Sixth Circuit, which reversed the lower courts and allowed the laws to take effect.

The court was divided 2-1, with the majority made possible by Trump judge Amul Thapar. This came over a dissent from Judge Helene White, a George W. Bush judge who had previously been nominated by President Clinton (and blocked by Senate Republicans) in the 1990s. The Supreme Court is considering the Biden administration’s appeal.

What is the legal issue before the Supreme Court?

Although numerous legal issues were considered by the lower courts, only one is before the Supreme Court in this case: Whether Tennessee’s law violates the Constitution’s Equal Protection Clause.

The Biden administration points out two different ways that it does. First, SB1 makes the availability of certain medical treatments dependent on a person’s sex assigned at birth. That’s sex discrimination, and that triggers a higher level of scrutiny from courts in order to be upheld. In another context – the federal law prohibiting employment discrimination – the Court has already held that discrimination on the basis of gender identity is by definition sex discrimination. But it has not addressed whether that logic applies to other statutes and constitutional provisions.

The second way Tennessee violates the Equal Protection Clause is by targeting transgender people in particular. Trans people have long been unjustly targeted for mistreatment. The Biden administration argues that laws discriminating against transgender people should be subject to heightened scrutiny by the courts, similar to laws discriminating on the basis of race, religion, or sex. In fact, the Fourth and Ninth Circuits already provide this level of constitutional protection to transgender people.

What is heightened scrutiny?

In a challenge under the Equal Protection Clause, most government classifications are subject to – and easily pass – “rational basis” scrutiny by the courts: The law is constitutional as long as it’s rationally related to some legitimate government interest. But a few types of laws trigger heightened Equal Protection scrutiny, especially for categories where there has been a history of discrimination.

Sex-based classifications are an example. To be upheld, they must be substantially related to an important government interest. This requires more than relying on traditional and often inaccurate assumptions about the proper roles of men and women.

The Sixth Circuit held that the anti-trans laws don’t trigger heightened scrutiny. Using the “rational basis” test, it upheld the restrictions. The Biden administration argues that the court should have used heightened scrutiny, and that the Tennessee law fails under that standard. For instance, the ban does not actually serve Tennessee’s stated interest in protecting trans minors, because the benefits of treatment outweigh any risks.

What will the impact of this case be?

The case will have an immediate and direct impact on transgender minors seeking medical care. It could also have an enormous impact on how lower courts address other types of anti-trans laws. Placing transgender people outside the scope of heightened scrutiny under the Constitution’s Equal Protection Clause would make an already-vulnerable population even more at risk from hostile right-wing politicians.

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Gun violence (Garland v. VanDerStok)

The justices will decide whether to exempt untraceable “ghost guns” from federal firearm safety laws. Oral arguments have been scheduled for October 8.

What are “ghost guns” and how have they made it harder to stop gun violence?

“Ghost guns” are an effort to get around common-sense safety measures adopted by Congress. They got that nickname because they don’t have serial numbers and are untraceable.

Through the Gun Control Act of 1968, Congress has established a number of measures to try to reduce firearm violence and increase the ability to track those who commit it. For instance, buyers are subject to background checks; sales to minors and convicted felons are prohibited; and guns must have serial numbers so their ownership can be tracked when used in crimes.

Ghost guns can be easily assembled from kits and quickly made into functioning guns. Based on the argument that they aren’t “firearms” under the law, they have been made without serial numbers to track them and sold to people who are prohibited from buying guns.

How does the statute define firearms?

The Gun Control Act defines “firearms” as “any weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” It also includes “the frame or receiver of any such weapon.” The statute doesn’t define “frame” or “receiver,” so that has been left to the Justice Department.

How has the Biden administration sought to protect us from ghost guns?

In 2022, the Justice Department’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) adopted a regulation making it clear that ghost guns are “firearms” covered by the Gun Control Act. As such, they are subject to the same legal requirements as any other firearm.

The new regulation updated the definitions of “frame” and “receiver” to include items that can be readily converted into a frame or receiver. It also stated that a firearms assembly kit is a firearm under the Gun Control Act. Makers of ghost guns, customers, and opponents of gun safety measures sued to have the measure overturned.

What happened in the lower courts?

The opponents sued in Fort Worth, Texas, a favorite location for far-right litigants engaged in judge shopping. Trump district court judge Reed O’Connor struck the regulation down. He ruled that ghost gun kits are not “firearms” as the term is defined in the Gun Control Act. Therefore, he ruled, ATF has no authority to regulate them.

While an appeal to the Fifth Circuit was pending, the Biden administration asked the Supreme Court to stay O’Connor’s order until litigation was over. In a 5-4 shadow docket decision in the summer of 2023, the Court granted the administration’s request. As is typical with the shadow docket, the order came without a written opinion. But Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented. They would have allowed O’Connor’s ruling in favor of ghost guns to remain in effect.

Meanwhile, the appeal continued in the lower courts. Late last year, a panel of three Fifth Circuit judges nominated by Donald Trump agreed with O’Connor that ATF cannot regulate ghost guns. However, the rule remains in effect until the case is resolved at the Supreme Court this term.

What will the impact of this case be?

The far-right justices may use this case as an opportunity to create a gaping hole in firearms safety laws. It would not be the first time. Just this spring, the 6-3 majority issued a ruling that the federal ban on machine guns doesn’t cover bump stocks. That decision lets people flood our country with weapons that are essentially machine guns. Garland v. VanDerStok may have equally deadly results.

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Civil rights (Lackey v. Stinnie)

In a case about attorneys’ fees, the majority may make it harder for people whose civil rights have been violated to afford to go to court. Oral arguments are scheduled for October 8.

What is this case about?

In 1976, Congress passed a law stating that the “prevailing party” in certain civil rights actions may recover reasonable attorney’s fees from the other side. This is an essential part of protecting civil rights. Those who are most likely to suffer from civil rights violations are often those least able to afford a lawyer.

This case concerns the issue of who counts as a “prevailing party.” If the plaintiff successfully gets a preliminary injunction and the case never gets to trial, is that enough to be a “prevailing party?” Or does the case have to proceed all the way to a trial and a final ruling?

What is a preliminary injunction?

Sometimes, the plaintiff in a lawsuit is experiencing such a severe legal injury from the defendant that they can’t wait until the case is resolved to get relief. So they ask the court to issue a preliminary injunction to stop the defendant from doing whatever it is that prompted the lawsuit. It happens before the case can have a full trial.

Generally, the judge won’t grant a preliminary injunction unless the plaintiff is likely to win at trial. So if the plaintiff’s legal case is weak, they won’t get a preliminary injunction. Also, the judge usually won’t issue a preliminary injunction unless the plaintiff will suffer irreversible injury without it.

What happened in this case?

Virginia had a law automatically suspending a resident’s driver’s license if they didn’t pay certain court fines and fees. A group of Virginians sued the state, claiming the law violated their constitutional rights. They asked the court for a preliminary injunction to block Virginia from suspending their licenses while the lawsuit was pending. The court granted their motion.

The next step would normally have been a trial, where the judge would make a final decision on the merits of the lawsuit. But before that trial could be held, Virginia repealed the law. As a result, the court dismissed the case as moot.

Next, the Virginia plaintiffs asked the court to order Virginia to pay their attorneys’ fees. But the state argued that since the case was dismissed without a final judgment, the plaintiffs were not “prevailing parties” under the 1976 law. The trial court agreed, following a Fourth Circuit precedent from 2002 that a final judgment was needed in order to be a “prevailing party.” On appeal, the Fourth Circuit overruled that precedent and ordered the state to pay the plaintiffs’ attorneys’ fees. Virginia appealed to the Supreme Court.

What will the impact of the Supreme Court’s decision be?

If the justices rule that a final judgment is needed to be awarded attorneys’ fees, it will become harder for those who have had their civil rights violated to find lawyers willing to represent them even when their case is strong. As the Lawyers’ Committee for Civil Rights Under Law states in an amicus brief, Virginia’s interpretation of the attorneys’ fees statute “threatens the enforcement of our most important civil rights laws.”

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Disability discrimination (Stanley v. City of Sanford, Florida)

The justices will decide if people with disabilities can sue their former employers for discrimination in providing post-employment benefits. Oral arguments have not yet been scheduled.

What is this case about?

Under the Americans with Disabilities Act (ADA), employers may not discriminate against “a qualified individual” on the basis of their disability. This case involves a former employee with a disability who alleges that limits on her retirement benefits violate the ADA. The question for the Court is whether a former employee is a “qualified individual” under the ADA, since she no longer holds or wants a job with the employer.

What led to this case?

Karyn Stanley was a firefighter in the city of Sanford, Florida. When she was hired, the city included several fringe benefits in addition to her salary. They included a subsidy for retirees to cover their health insurance up to age 65. This benefit was available to people who retired after 25 years of service, or who retired early due to disability.

But a few years after Stanley was hired, the city changed its policy. Retirees with 25 years of service remained eligible for the health insurance benefit until they were 65. But people who retired due to disability remained eligible only until they received Medicare benefits or two years after retirement, whichever comes first.

Stanley developed Parkinson’s disease and had to retire early on disability at the age of 47. She lost the health insurance subsidy after just two years, rather than having it continue until age 65. She went to court, but her case was dismissed. The judge ruled that she did not fit the ADA’s definition of a “qualified individual.”

How does the ADA define a “qualified individual”?

The ADA defines a qualified individual as someone who “can perform the essential functions of the employment position that such individual holds or desires.”

Some circuit courts (including the Eleventh, which covers Florida) have held that a former employee who no longer “holds” or “desires” the position falls outside of this definition – and therefore outside of the protection Congress established in the ADA.

But other circuits have ruled that the ADA protects former employees. Among other things, to do otherwise would create what the Third Circuit years ago called an “internal contradiction” within the ADA. The statute specifically prohibits discrimination in fringe benefits, and that includes disability benefits. But if a person were to lose the protection of the ADA as soon as they became eligible to receive the benefit, then the ADA would not be prohibiting discrimination in fringe benefits.

Also, the ADA doesn’t say that a worker has to be a “qualified individual” when they sue. All that matters is that they were a “qualified individual” when they were working, the period when they earned the now disputed fringe benefits.

What will the impact of the Court’s ruling be?

Currently, whether former employees are protected by the ADA depends on what part of the country they live in. Different circuits have different answers. So the justices’ resolution of this question will make the law uniform.

Their answer will determine whether employers will be able to legally discriminate against people with disabilities in their retirement benefits.

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Protecting the environment (Seven County Infrastructure Coalition v. Eagle County; San Francisco v. EPA)

Seven County Infrastructure Coalition v. Eagle County

The justices may weaken the requirement that federal agencies analyze the environmental impacts of their actions. Oral arguments are scheduled for December 10.

What is an “environmental impact statement?”

An “environmental impact statement,” or EIS, is a bedrock part of protecting our environment. It is required by the National Environmental Policy Act (“NEPA”), a landmark law dating back to 1970. It requires federal agencies to assess the environmental impact of their decisions before making them.

Requiring an EIS improves decisionmaking across the entire federal government. It significantly reduces the chances that a project will lead to unexpected environmental damage down the road. This can be especially important for marginalized communities whose concerns might otherwise not be taken into account when businesses seek federal approval for a project.

What did the EIS in this case involve?

A railroad company and several counties in Utah want to build an 80-mile railway to connect a basin rich in natural gas, oil, and other hydrocarbon deposits to an existing rail line. That requires the approval of a federal agency called the Surface Transportation Board. Under NEPA, approval by the Board requires an environmental impact statement.

The Board approved the project. But its EIS did not address the “downstream impact” of increased crude oil refining along the Gulf Coast. And it did not address the “upstream impact” of oil development in the basin that would occur as a result of the railroad’s approval.

Among other reasons, the Board claimed that since it lacks the regulatory power to mitigate those environmental impacts, it does not have to include them in its environmental impact statement.

After the Board made its decision, several environmental organizations and Eagle County, Colorado, sued over the limited EIS.

What happened in the lower court?

A unanimous panel of the D.C. Circuit determined that the Board’s EIS was insufficient. According to the court, it did not matter that the upstream and downstream effects were outside the Board’s regulatory authority. What mattered was that the Board’s decision would determine if those effects would occur. That’s because the Board had the exclusive authority to allow or prevent construction of the railroad.

When one of the losing parties asked the entire circuit to review the panel decision, not one of the court’s 11 judges voted to do so. Nevertheless, the Supreme Court decided to consider the appeal.

What will the impact of the Court’s ruling be?

The petitioners are asking the Supreme Court to rule that an agency never has to consider any environmental effects that it doesn’t directly regulate. That would let federal agencies ignore important environmental impacts of their actions. It would contradict a provision in NEPA specifically directing agencies to consult with other agencies that regulate in areas where there may be an environmental impact. And it could make it easier for corporate interests to get approval for projects despite the environmental damage they will likely cause.

San Francisco v. EPA

The majority may take away a tool used by the EPA to protect our water from toxic pollution. Oral arguments are scheduled for October 16.

How does the EPA limit water pollution?

Congress passed the Clean Water Act to protect our water from pollutants. It prohibits facilities from discharging pollutants into the water without a permit from the Environmental Protection Agency.

An EPA permit caps the amount of certain specified pollutants in a facility’s discharged wastewater. But sometimes, that is not enough to ensure that water quality standards will continue to be met. When that happens, the EPA has imposed more stringent limitations based not on the pollutant in the discharge, but on the quality of the water that is affected by the discharge. This case is about whether such water-quality based limitations are legal.

What are examples of water-quality based limitations?

Water quality standards protect public health and wildlife and keep places useable for recreation. Some limit the quantity of dangerous bacteria and metals in the water. Others set caps on the presence of certain dangerous chemicals in fish that would threaten human health if eaten. Still others prohibit the presence of floating particulates, grease, and oil.

What happened in this case?

This case arises in the context of a municipal sewage system. Like many cities, San Francisco has a system that delivers both sewage and stormwater to a treatment plant through a single set of pipes. This case involves the EPA’s permit for one of the city’s treatment plants. Heavy rains can push the system beyond capacity, causing overflowing sewage to be discharged into water that reaches the ocean and the shore. The EPA and California have worked together to determine the conditions the San Francisco treatment plant should meet in order to get its permit.

Among other things, the permit caps the permissible amount of certain pollutants within the discharge. It also requires that the water where the discharge goes meets certain specified water quality standards. San Francisco argues that this latter type of condition is not allowed by the Clean Water Act.

What will the effect of this case be?

The impact of the case goes far beyond municipal sewage systems. It affects the EPA’s ability to limit water pollution in any number of other contexts. Numerous powerful business interests have filed amicus briefs in support of San Francisco’s effort to limit how the EPA protects water quality.

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Conclusion

Powerful interests have spent millions of dollars to get the current 6-3 far-right Supreme Court. Several of the cases coming up this term exemplify why they found this investment worthwhile. The Court may well continue its effort to empower the already-powerful at the expense of the rest of us.

Whether this trend accelerates or starts to reverse will depend on the decisions voters make this November. A President Harris and a Democratic Senate could take positive steps, as President Biden did with the nomination of Ketanji Brown Jackson. Or a restored President Trump and a Republican Senate could make a dangerous Supreme Court even worse than it already is.

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