Experts Revisit Supreme Court’s Landmark Cases, Preview Next Term’s Docket
September 23, 2024
In its 2023–2024 term, the U.S. Supreme Court issued decisions that are sure to be consequential for the balance of power between the three branches of the U.S. federal government.
On September 17, constitutional experts and Supreme Court practitioners gathered at the D.C. Bar for the annual Supreme Court Review & Preview, providing insights into standout cases decided by the Court and the issues in its docket in the new term, which begins in early October.
The panel began by discussing the Court’s “shadow docket,” which involves cases that do not receive extensive briefings or hearings by the Court. Sometimes shadow or emergency docket cases are decided without argument, although the panel pointed out that this is changing.
“The Supreme Court has been resolving emergencies for many years,” said William Jay, partner in the appellate and Supreme Court litigation practice at Goodwin Procter LLP. He highlighted Justice Amy Coney Barrett’s expressions of concern over the Court’s emergency docket trend.
“I think Justice Barrett’s prediction is right that there is an incentive to come to the Court and get that perhaps hurried view on the merits that will both block lower courts from deciding anything else and override considerations, such as should lower court decision stay in place or be suspended while the Court figures out the merits,” Jay said.
Among the Court’s most consequential cases this term, Trump v. United States stands out. In its 6–3 decision written by Chief Justice John Roberts, the Court granted the former president broad immunity from prosecution for official acts.
“The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party,” Roberts concluded in his decision. Roberts did make a distinction for unofficial acts, stating, “The President enjoys no immunity for his unofficial acts, and not everything the President does is official.”
In his overview of the case, Arnold & Porter Kaye Scholer LLP partner John P. Elwood said he felt the ruling had echoes of reasoning in Justice Jackson’s famous concurrence in the 1952 Youngstown Sheet & Tube Co. v. Sawyer on separation of powers responsibilities
The implications of Trump v. United States beyond the 2020 election fraud allegations are uncertain, Elwood said. “I think anybody who reads this opinion, unless they have a crystal ball, is going to think it is not as clear as I think the chief justice probably thought it would be,” Elwood said.
It is “definitely not an originalist opinion,” Elwood added, but more like “here’s how we think it can work and the president can function.”
Perhaps the second blockbuster case to come out of the Court this term was Loper Bright Enterprises v. Raimondo, which reversed the 1984 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. precedent that directed courts to defer to a government’s reasonable interpretation of an ambiguous statute. Chief Justice Roberts also wrote the majority opinion in Loper Bright.
Elaine Goldenberg of Munger, Tolles & Olson LLP pointed out that for years the Supreme Court has in fact stopped applying the Chevron doctrine in its pertinent cases. “What the chief said was that the Chevron deference violates the Administrative Procedure Act . . . [that] says courts should decide legal questions,” Goldenberg explained. “The majority opinion rejects the argument that agencies rather than courts are better suited to determine what ambiguity in federal law might mean, especially when there are technical and scientific questions that fall within the agencies’ expertise.”
Although the Court tried to soften the “blows,” stipulating that Loper Bright would not require earlier decisions that relied on Chevron to be overturned, the effect on lower courts remains to be seen, Goldenberg said.
The panelists also discussed Ohio v. Environmental Protection Agency, in which the Court stayed enforcement of the EPA’s “good neighbor” air pollution rule, finding that the EPA overreached and did not properly formulate a reasonable economic basis for its federal plan.
Barrett disagreed. “The Court today enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits,” she wrote. Barrett added: “Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions . . . Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions.”
Jaime A. Santos, cochair of Goodwin’s appellate and Supreme Court litigation practice, said the case involved EPA turning the tables on what expectedly would have been a state regulatory initiative. Moreover, the EPA action “would have resulted [in] billions of dollars in client costs,” she added.
Santos also summarized two cases that turned on standing. One was Murthy v. Missouri, in which two states and five social media users claimed the federal government pressured social media platforms to censor their free speech during the pandemic; the other was Food and Drug Administration v. Alliance for Hippocratic Medicine, challenging the FDA’s approval of the abortion medication mifepristone.
“The Court basically said these plaintiffs can use political channels to channel their opposition to abortion, but they can’t try to make this drug less accessible for everyone else around the country,” Santos said.
Moderator Daniel Woofter, a partner at Goldstein, Russell & Woofter LLC, gave an overview of upcoming cases, including United States v. Skrmetti involving Tennessee Senate Bill 1, which prohibits certain types of medical care for transgender minors with diagnosed gender dysphoria.
Woofter said the case is close to other challenges involving state laws that restrict or prohibit gender-affirming care. “The main question before the Court is whether SB 1 discriminates based on sex,” Woofer said. “If it does under the Court’s current doctrine, the Court will apply heightened scrutiny, meaning the law must be substantially related to an important governmental goal to be constitutional.”
In the new term the Court is expected to continue its focus on protected speech with Free Speech Coalition, Inc. v. Paxton, which centers on Texas’ age-verification requirement for users to access adult websites.
“The question as presented to the Supreme Court was a very doctrinal question of constitutional law — what standard of scrutiny applies to laws like this?” Jay said, adding that the case reached the Supreme Court “because there is basically a dispute between the Fifth Circuit and other circuits that have considered age verification in the internet context.”
Restricting minors from some content is reviewed on a lesser standard, Jay explained, but restricting adult access to content has a higher standard. The Free Speech Coalition, however, views it as a content-based restriction, raising the question of whether the Texas law summons a heightened or rational basis scrutiny, Jay added.
In an interview after the event, Woofter said this year’s discussion was especially illuminating as the panelists highlighted the Court’s makeup, with its newest members, Barrett and Ketanji Brown Jackson, articulating distinct and expressive opinions.
“It is good for people, especially litigants that are thinking about how to litigate their cases, to understand how these views are evolving with the addition of new justices,” Woofter said.
Looking ahead, Woofter expects that “there will be a lot to come on what Loper Bright left in terms of deference and other doctrines, such as major questions doctrine and nondelegation doctrine. Those are doctrines in their own right, even after Loper Bright overruled Chevron, and it'll be interesting to see how the Court develops those doctrines now outside of the context of Chevron.”
