It’s hard not to feel a sense of dread as the Supreme Court justices return to Washington for their new term, which, by law, begins on the first Monday in October. Most of the men and women on the Court so recently showed such astoundingly poor judgment, in a case that could lead the United States down the grim road to dictatorship, that it’s far from clear why anyone would trust them to judge a beauty contest — much less to sit on the nation’s highest Court.
That case, Trump v. United States, was an infidelity. Six justices, despite swearing an oath to “administer justice without respect to persons,” ruled that Donald Trump, the leader of their political party, was allowed to use his official powers to commit crimes while in office.
They did so, moreover, just days after President Joe Biden’s disastrous June debate performance seemed to ensure that Trump would return to the White House in a walk. And those justices did not simply immunize Trump from prosecution for many of his past crimes, they provided a roadmap for how he can abuse and consolidate power if he does again become president.
Among other things, Trump held that a former president may not be prosecuted for any order they give the Justice Department, including orders that are given “for an improper purpose.” The Supreme Court, in other words, said that nothing could happen to Trump if he won in November, then promptly ordered the FBI to round up all of his political opponents and have them arrested.
Despite this partisan decision, these uniquely unsuited men and women remain the most powerful people in the country. The United States has no mechanism to remove a justice for recklessness, or for sheer incompetence.
For the moment, at least, this upcoming term appears less busy than the previous one, which featured not only the Trump immunity decisions, but also one of the most consequential power grabs by the Supreme Court in many years. Bear in mind, however, that the character of a term can change quickly. At this time last year, the Court had not yet gotten its hands on the Trump immunity case. And, in a potentially nightmarish scenario for American democracy, these justices could be called upon to settle a presidential election this November.
Still, while the current term may be less eventful than the previous one, it’s unlikely to be sleepy. The Court will weigh into the fraught issue of transgender rights in United States v. Skrmetti, the first such case to reach the justices since GOP-led states enacted a wave of anti-trans legislation after Trump left office.
Vice, specifically guns and porn, also stands out on the Court’s upcoming docket. In Garland v. VanDerStok, the same Republican justices who recently voted to legalize a device that effectively converts an ordinary semiautomatic rifle into a machine gun, will decide whether to allow virtually untraceable guns to be sold without a background check.
Then, in Free Speech Coalition v. Paxton, the Court will reconsider several key First Amendment cases that established that the government may not prevent adults from accessing sexual material online, even if the government does so to try to prevent children from seeing this material.
Glossip v. Oklahoma, meanwhile, presents the odd question of whether the state of Oklahoma must execute a man that it very much does not want to kill.
Finally, there’s FDA v. Wages and White Lion Investments, a meritless case brought by tobacco companies that are upset that the FDA didn’t approve their flavored nicotine vapes. The case is interesting largely because the far-right United States Court of Appeals for the Fifth Circuit decided to cast its lot with these companies.
For now, the Fifth Circuit is a reminder that there are some things even this Supreme Court is unwilling to do. Last term, the justices reversed a Fifth Circuit decision that could have triggered a second Great Depression, as well as some unusually partisan free speech cases handed down by the Fifth. And these cases are part of a long series of Supreme Court rulings reining in the Fifth Circuit’s worst excesses. White Lion will give us a window into whether the justices will continue to do so.
Given recent events, we probably can’t expect the justices to show much moderation or judgment in their upcoming decisions. But we can, at least, hope that they do not descend even further into partisanship.
Trans rights return to the docket, in United States v. Skrmetti
In May of 2021, Arkansas became the first state to ban gender-affirming care for transgender patients under the age of 18. Since then, such laws have become ubiquitous in states controlled by the Republican Party — according to the Human Rights Campaign, 26 states now have laws imposing some restrictions on health care for trans youth, although some of these laws are stricter than others.
The Tennessee law at issue in United States v. Skrmetti, which the justices will likely hear this winter, is among the strictest in the country. It does not simply ban treatments that alter a transgender youth’s body to align it with the patient’s gender identity, it also bans treatments such as puberty blockers, which seek to delay permanent changes to that patient’s body until the patient is older.
These laws raise difficult constitutional questions. On the one hand, the government typically has the power to regulate the practice of medicine, and to ban drugs and procedures it deems harmful. This is why, for example, states can ban heroin even if it is prescribed by a doctor.
At the same time, the political context of these laws — the fact that they are all of recent vintage, are supported almost exclusively by Republican lawmakers, and are part of a broad attack on transgender rights by Republican politicians — suggests that these laws may not be motivated by a sincere desire to protect anyone from a harmful medical procedure, and are actually rooted in unconstitutional animus against transgender people.
Skrmetti asks whether Tennessee’s strict ban on transgender health care violates the Constitution’s Equal Protection Clause, a provision that protects against laws motivated by such animus against a vulnerable minority group. Under this provision, the Court has long held that any law that targets a group that has experienced a “history of purposeful unequal treatment” which “frequently bears no relation to ability to perform or contribute to society,” should be viewed with extraordinary skepticism by courts.
Realistically, however, a Supreme Court dominated by conservative Republicans is unlikely to rule that all anti-trans laws are constitutionally suspect, and it’s notable that neither the United States nor the ACLU, which represents parties challenging the Tennessee law, devote much of their brief to this argument.
Instead, they focus primarily on an argument that two of the Court’s Republicans, Chief Justice John Roberts and Justice Neil Gorsuch, embraced in Bostock v. Clayton County (2020).
Bostock asked whether a federal ban on “sex” discrimination in employment prohibits discrimination on the basis of sexual orientation or gender identity. A majority of the Court concluded that it does, even if you assume that the word “sex” refers exclusively to a person’s sex assigned at birth, and not to their gender identity.
The Court reasoned that, if a male employee is allowed to date women, to dress in traditionally masculine clothing, or to otherwise present as a man, then a female employee must be allowed to do these same things. Otherwise, the employer is treating men differently than women, and that’s illegal sex discrimination.
Similarly, both the Justice Department and the ACLU argue that Tennessee’s strict trans health ban violates Bostock because it treats patients of one sex differently than patients of the other sex. A patient assigned male at birth, for example, is allowed to be treated with testosterone if their doctor prescribes it, but a patient assigned female at birth is not.
This argument, however, has not won many fans among Republican lower court judges. And the Supreme Court recently signaled that it may be moving away from Bostock. So the parties challenging this Tennessee law probably face an uphill climb in this very conservative Court.
Garland v. VanDerStok, the “ghost guns” case
Federal law requires gun buyers to submit to a criminal background check before they can purchase a new firearm. It also requires guns to have a serial number that allows law enforcement to track them. In Garland v. VanDerStok, however, the Court could potentially create a loophole that would make it trivially easy to evade these two laws.
These federal laws apply to “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 applies to “the frame or receiver of any such weapon,” the skeletal part of a firearm that houses other components, such as the barrel or trigger mechanism. Thus, if someone purchases a series of gun parts to assemble at home, they should still face a background check when they buy the gun’s frame or receiver.
VanDerStok involves “ghost guns,” guns that are sold dismantled, in ready-to-assemble kits. To evade the background check and serial number laws, the kit’s frame or receiver is often sold in a partially incomplete state. Some kits allow a gun buyer to build a working firearm after drilling a single hole in the kit’s frame. Others merely require the user to sand off a small plastic rail. According to the Justice Department, it is often a trifling task to complete these guns.
The right-wing Fifth Circuit held that these ghost guns were immune from the background check and serial number laws. Frames that are missing a small hole, a panel of three Trump judges concluded, are “not yet frames or receivers.” The Fifth Circuit also claimed that ghost guns do not count as a weapon that “may readily be converted” into a working gun because this phrase “cannot be read to include any objects that could, if manufacture is completed, become functional at some ill-defined point in the future” — even if only a trivial amount of work would be necessary to make the gun function.
It’s likely that a majority of the justices will disagree with the Fifth Circuit, although the vote in VanDerStok is likely to be quite tight. The Court has already heard this case twice on its “shadow docket” — a mix of emergency motions and other matters that the justices handle on an expedited basis — and a majority of the justices voted twice to apply the background check and serial number laws to ghost guns, albeit only on a temporary basis.
Still, the first of those two decisions was decided on a 5-4 vote, with Roberts and Justice Amy Coney Barrett crossing over to vote with the Court’s three Democrats. So there appears to be significant support on the Court for the idea that criminals should be allowed to buy guns without submitting to a background check.
Free Speech Coalition v. Paxton: Do adults have a right to look at porn?
In the mid-to-late 1990s, as the internet was starting to become widely available to American consumers, Congress passed a pair of laws intended to prevent minors from accessing pornography online. Both laws were eventually blocked by the Supreme Court in Reno v. ACLU (1997) and Ashcroft v. ACLU (2004).
Reno and Ascroft established, in Reno’s words, that a law seeking to “deny minors access to potentially harmful speech” must not suppress “a large amount of speech that adults have a constitutional right to receive and to address to one another.” That is, the First Amendment does not permit the government to cut off adults’ access to sexual material in order to prevent young people from seeing it.
Free Speech Coalition v. Paxton involves a Texas law that is very similar to the ones blocked in Reno and Ashcroft. Under this law, websites that devote “more than one-third” of their content to “sexual material harmful to minors” must require their users to prove they are over 18 before they can access any of that material — such as by transmitting a copy of their photo ID to the website owner.
Texas is one of eight states with similar laws — these sorts of age-gated restrictions are also in place in Arkansas, Louisiana, Mississippi, Montana, North Carolina, Utah, and Virginia.
Needless to say, most people who view pornography online do not want to send a record of their identity, which might be leaked or stolen, to the pornographic website. And many of the major online porn sites have simply blocked access to their content in the states with Texas-style laws. Someone who tries to access the website Pornhub in these states, for example, will be greeted by a video of a fully clothed woman criticizing their state’s law and urging them to contact their state legislator.
The Fifth Circuit, being the Fifth Circuit, nonetheless upheld the Texas law. The two Fifth Circuit judges who ruled in Texas’s favor claimed that they were not bound by Ashcroft because the Supreme Court’s decision “contains startling omissions,” meaning that the Court did not discuss a legal argument that these two lower court judges find persuasive.
This is not how constitutional litigation is supposed to work. Once the Supreme Court announces a legal rule, lower court judges are not free to ignore it just because they think of a new critique of the Court’s decision.
Nevertheless, both these two Fifth Circuit judges and the eight state legislatures that enacted similar bans appear to be betting that a newly constituted Supreme Court, dominated by very conservative Republicans, will overrule Reno and Ashcroft and allow states to restrict adults from seeing entirely legal sexual content.
Does Oklahoma have to execute a man against its will? The tragic case of Glossip v. Oklahoma.
Richard Glossip, a motel manager, was convicted of murdering the owner of that motel in 2004 and received a death sentence; he’s awaiting execution. Glossip did not actually commit the murder himself, but the prosecution’s theory was that Glossip hired Justin Sneed, a maintenance man at the motel, to kill the victim.
Since then, the murder case against Glossip has fallen apart. In 2022, a committee of Oklahoma state lawmakers commissioned a law firm to investigate whether the conviction was reliable. The firm’s 343-page report is scathing, concluding that a combination of lost and destroyed evidence, a “deficient police investigation,” distortion of evidence by the prosecution, and “a cascade of errors and missed opportunities by defense attorneys” all “fundamentally call into question the fairness of the proceedings and the ultimate reliability of the guilty verdict against Glossip for murder.”
A separate investigation, conducted by a former district attorney at the request of Oklahoma Attorney General Gentner Drummond, concluded that “Glossip was deprived of a fair trial in which the State can have confidence in the process and result.” Drummond, a Republican, is now asking the Supreme Court to toss out Glossip’s conviction and order a new trial.
The reason why this unusual move is necessary is that Oklahoma’s own courts have refused to grant similar relief to Glossip, despite the weight of evidence against his conviction.
One explanation for this refusal is that Oklahoma requires someone who has already been convicted of a crime to bring most challenges to that conviction within 60 days of discovering any new evidence that undercuts the conviction. So, as new evidence has trickled out that benefits Glossip, his lawyers have been forced to submit that evidence to the courts on a piecemeal basis, and those courts have looked at new pieces of evidence in isolation, rather than seeing the cumulative picture detailed in the legislature’s and the attorney general’s investigations.
The newest piece of evidence, which is now before the Supreme Court, is that prosecutors hid the fact that Sneed, a key witness against Glossip at his trial, was treated by a psychiatrist for a serious mental illness that made Sneed prone to violent outbursts and paranoia.
It remains to be seen whether Glossip’s lawyers, even with Drummond as their unlikely ally, can persuade this chaotic Supreme Court to order a new trial.
FDA v. Wages and White Lion Investments: the flavored vape epidemic
Flavored nicotine vapes are supposed to be illegal in the United States. A federal law requires the FDA to approve any “new tobacco product” sold in the US. And, while the FDA has approved some tobacco-flavored vapes, it has not approved fruit-flavored, bubblegum-flavored, or any of the other many arrays of flavored nicotine vapes that tend to appeal to young people.
In practice, however, the ban on flavored vapes has not been particularly effective. Much like the proliferation of illegal weed shops in cities where marijuana is legal but is also supposed to be highly regulated, shops selling illegal flavored vapes are common in the US.
Nevertheless, courts are supposed to apply the law as written, and the law governing FDA approval of nicotine vapes is pretty clear. The FDA is required to deny any application to approve a new tobacco product unless the manufacturer of that product can show “that permitting such tobacco product to be marketed would be appropriate for the protection of the public health.” FDA makes this determination by weighing the likelihood that approving a new product will lead existing smokers to quit against the likelihood that approving the new product will cause new users to become addicted to nicotine.
Accordingly, the FDA has approved some tobacco-flavored vapes, on the theory that vaping is safer than smoking so it is better if existing smokers switch to vaping. But it has not approved any flavored vapes, on the theory that these products are so appealing to young users that they will cause many new people to become addicted to nicotine.
Then the Fifth Circuit decided to get involved.
In Wages & White Lion Investments v. FDA, the right-wing court essentially ordered the FDA to rerun its approval process for flavored vapes, claiming that the FDA illegally changed the process it used to evaluate these products midstream. It didn’t. While Judge Andy Oldham’s majority opinion in White Lion is very long, he rests his case primarily on blockquotes from FDA documents that do not say what Oldham claims that they say.
Oldham, a Trump appointee and former clerk to Justice Samuel Alito, has a history of reading the law in implausible ways to benefit right-wing causes, and he’s often reversed by the Supreme Court. So it’s likely that even this panel of justices will cast a skeptical eye on his White Lion opinion.
But, if nothing else, White Lion is a reminder that, no matter how bad the Supreme Court gets, it can always get worse. If Trump wins in November, he could potentially replace several sitting justices with judges like Oldham, who make many of the justices responsible for the Trump immunity decision seem like sensible moderates eager to preserve the stability of US democracy.
