Broadcast journalists work in front of the U.S. Supreme Court in Washington, D.C., on Sept. 15. The new term begins on Monday.
Roberto Schmidt/AFP via Getty Images
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Roberto Schmidt/AFP via Getty Images
The U.S. Supreme Court formally opens a new term on Monday, with big test cases on religion, bans on semi-automatic weapons, climate change, immigration and — waiting in the wings — election law cases.
It used to be that the first Monday in October marked the beginning of a new Supreme Court term. And that’s still true, technically. But for all practical purposes, the formerly quiet summer months after the court finishes its opinions in all argued cases no longer exists.
Indeed, as Georgetown University law professor Stephen Vladeck observes, the number of emergency appeals has ballooned during the Trump administration, while at the same time, fully briefed and argued cases have dropped precipitously over the years.
“So now we have twice as many full court rulings on emergency applications as we have on the merits docket,” Vladeck observes, adding, “That is a very new phenomenon.”
The difference is that decisions on the emergency docket are rendered quickly, with little briefing, no oral arguments, and ultimately little or no explanation of the ruling. In contrast, a decision on the merits is typically worked on for months after full briefing and lengthy oral arguments.
Of late, the court seems to be making an effort to offer some limited explanations of its emergency docket rulings, but lower court judges, both liberal and conservative, complain that isn’t enough to provide them with adequate guidance. And the Trump administration often takes what used to be the rare step of getting to the Supreme Court by leapfrogging over lower appellate courts that the administration views as hostile.
With that backdrop, here are the cases the court will be hearing in the coming weeks:
Climate change
The opening case, to be argued Monday, tests whether state and local governments can sue energy companies for allegedly deceiving the public about the damaging effects of fossil fuels.
“The theory is that the energy company defendants deceived the public for many years,” says Deepak Gupta, who teaches at Harvard Law School and practices law in Washington, D.C. What the companies were 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, however, most court observers see the case as an uphill battle for environmentalists.
Religion
Perhaps the biggest case of the term so far, in terms of ripple effects, involves religion, a subject on which the court’s conservative super majority has dramatically changed its legal doctrine. Indeed for the better part of a century, the Supreme Court emphasized the First Amendment’s separation of church and state, with the free exercise of religion playing an important — but secondary — role. Since President Trump’s appointment of three new justices, however, things have changed.
“It’s literally the opposite of what the law was not that long ago, and it’s just a complete shift,” observes Michigan State University law professor Frank Ravitch.
The court may, in fact, be on the verge of requiring taxpayers to fund religious schools that refuse to admit LGBTQ students and parents. Last term the justices deadlocked on the issue in a separate case after Justice Amy Coney Barrett recused herself because of a conflict. The 4-4 tie vote automatically left in place an Oklahoma Supreme Court decision that barred overtly religious charter schools from from being funded by the taxpayers. But this year the issue is back in a case from Colorado. The case centers on a state law that provides universal preschool programs that are open to all students, regardless of race, ethnicity, religious affiliation, sexual orientation or gender identity.
St. Mary Catholic Parish in Littleton, Colo., wants the state funding guaranteed in the state’s universal pre-k law. But it doesn’t want to admit LGBTQ students or students with gay or trans parents. The parish maintains such admissions would violate church’s right to the free exercise of religion. The state counters that funding the church school would violate the state’s anti-discrimination law.
The court’s conservative majority has, in multiple cases, ruled in favor of religious exemptions from generally applicable laws. Until now, however, the court has never said that religious schools are entitled to full taxpayer funding. But given the current court’s views, and with Justice Barrett participating in the Colorado case, taxpayers could well end up having to fund religious schools in Colorado and elsewhere.
Bans on semi-automatic weapons
In December the court will hear a case testing 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., articulates two different ways to look at the question.
On the one hand the AR-15 “can deliver upwards of 100 bullets per minute” without any enhancements, and 500 bullets per minute with various enhancements. On the other hand, he notes that millions of Americans own AR-15s, “and it would be quite disruptive to suggest all these Americans … would be dispossessed of their weapons.”
Lawyer Erin Murphy, who has litigated lots of cases on behalf of gun owners, says the “single most important question is who gets to decide what guns you have,” and he argues it makes no sense to say, “You’ve got this right against the government, but the government decides which arms you can get.”
Immigration
The Trump administration has repeatedly taken positions in immigration cases that no other administration has adopted. Most recently, the court announced it would hear arguments and decide a case testing whether the Department of Homeland Security may deport migrants to so-called “third countries,” when their countries of origin 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 connections, may not speak the language, have often been jailed and allegedly subject to torture. The court has twice blocked lower court decisions that prevented the third country policy, and now the justices have said they will hear arguments about the policy in December.
In a second immigration case, the issue is the Trump administration’s policy of detaining undocumented immigrants without a bond hearing, regardless of how long they have been in the U.S.
Possible cases: The 10 commandments and much more
There are many more cases waiting in the wings that the justices may take up. Among them is a case that seeks to reverse a nearly half-century-old Supreme Court precedent; it bars public schools from posting the Ten Commandments in public school classrooms. Now, however, Texas, Arkansas, Louisiana and Alabama have passed laws that conflict with the Supreme Court’s 1980 ruling, and the lower courts are split on the question. That split all but guarantees the the Supreme Court will revisit the question.
Another case that could to make it to the court this term tests whether states can regulate Kalshi, the $40 billion prediction market behemoth that has sports fans betting 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 that the Trump administration has slow-walked for close to two years, after quickly losing in the lower courts. Prime 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 money damages from law firms Trump views as hostile. Earlier this year the Justice Department told a federal court in Washington that it was dropping the law firm cases. But the next day it went back to court to reverse course.
“They don’t want to take up cases that they’re going to lose, but on the other hand, they have a boss who wants everything taken up there [to the Supreme Court],” says Stanford University law professor Pam Karlan.
Georgetown’s professor Vladeck adds that in his view, “The real story of the upcoming term hasn’t been written yet because what we’re going to look back on as the biggest cases of the term … are not on the docket yet.”
Elections
More immediately, the probability is that like it or not the justices will be drawn into the election. The Trump administration has sought to influence elections in numerous ways, and it’s unclear what efforts the administration might take going forward.
Democrats have a battalion of lawyers lined up to deal with problems on the ground — whether it’s moving polling places at the last minute or having federal agents stationed near polling places. But if there are serious voting problems, they will likely end up at the Supreme Court’s door — on the emergency docket.