This annual panel discussed eleven cases from October Term 2024, as well as larger issues involving the Court, before a mostly full Cumberland A.
Eric Segall (Georgia State) began the discussion by describing the current Court as a sub-committee further Republican values or values the Justices share. While everyone agrees the Court has always been ideological, this Court is uniquely partisan. All other discussions—about doctrine, text, history—is academic cover.
Akram Faizer (Lincoln) discussed two cases. As to Mahmoud v. Taylor (public schools must allow students to opt-out of LGTBTQ+-related issues that contradict religious beliefs), Akram criticized the Court’s comparison between Jehovah’s Witnesses opting out of the flag salute and Amish parents pulling their children out of school and the plaintiffs’ desire to avoid specific lessons. On Free Speech Coalition v. Paxton (upholding state law requiring age verification to access sexually explicit web sites), he criticized the Court’s assumption that sexually explicit speech is harmful to minors, a conclusion lacking any empirical or scientific support.
Vanessa Zboreak (Jacksonville) identified a through line of the Court presuming harm to minors without scrutinizing the conclusion. She described Free Speech Coalition as the first step in state expanding the definition of “harmful to minors” beyond pornography to reach other sexual and LGTB+ speech. That through line explained United States v. Skrmetti (upholding state law banning gender-affirming care to trans minors for gender dysphoria), in which the Court elided harm to trans minors lacking care. The case cleared the way for other states to pursue similar bans, as well as to expand them beyond minors. Lackey v. Stinnie (plaintiff who wins a preliminary injunction but nothing more not entitled to attorney’s fees) makes it harder for plaintiffs to challenge government conduct.
Howard Wasserman (FIU) identified three cases in which the court narrowed procedures around civil rights litigation, effectively narrowing civil rights without discussing merits. The first was Lackey. The second was Medina v. Planned Parenthood (plaintiffs cannot bring § 1983 actions to enforce Medicaid provision), which limits the ability to ensure states follow federal law and could portend limitations on the scope of § 1983. Finally, Trump v. CASA (rejecting universal injunctions) requires plaintiffs to pursue alternative mechanisms (such as class actions, that may be unavailable) for obtaining broad injunctive relief, with the Supreme Court making itself the single meaningful decisionmaker on constitutional questions.
Michael Dimino (Widener) provided statistics on the Court’s most recent term—the number of merits cases reached historic lows, 42 % were unanimous, less than 10 % features the partisan 6-3 split, and Chief Justice Roberts and Justice Kavanaugh were most frequently in the majority. Michael then discussed TikTok, Inc. v. Garland (applying intermediate scrutiny to uphold federal law requiring sale of TikTok); he emphasized two important questions the Court ignored—whether the First Amendment applies to simple ownership rules apart from any speech and the appropriate level of scrutiny when government acts for a mix of content-based and content-neutral reasons. Louisiana v. Callais was set for re-argument next term, setting the Court to resolve the inherent conflict between the requirement in § 2 of the Voting Rights Act that states provide voting opportunities to minorities and its Fourteenth Amendment jurisprudence prohibiting the drawing of voting districts in which racial composition predominates.
Joseph Blocher (Duke) explored two cases about guns: Bondi v. VanDerStock (upholding ATF regulation of ghost guns) and Smith & Wesson v. Estados Unidos Mexicanos (plaintiffs insufficiently pleaded tort claim to fall within exception to Protection of Lawful Commerce in Arms Act). Joseph noted that neither case was explicitly about the Second Amendment; much litigation around guns involves tort claims and administrative law issues rather than constitutional challenges. He also discussed cert denials in two cases upholding state limits on firearms, in which Justices Thomas, Alito, and Gorsuch would have granted cert and Justice Kavanaugh called on the Court to hear the issues in the next Term or two.
Audience questions raised issues around the Supreme Court’s increasing skepticism of lower courts; the possibility of universal vacatur under the Administrative Procedure Act to fill the gap in universal injunctions; the Court’s inconsistency in applying its theory of equal protection neutrality in Skrmetti compared with cases such as SFFA; and which of these decisions might carry a different partisan valence in future cases. Eric returned it to his main theme—all decisions could be used to a different partisan end, but they never will be.
10:15 a.m., Monday, July 28