What the Supreme Court’s New Term Has in Store

N ot every annual term of the Supreme Court is a blockbuster, and not every big case is on the docket when the term starts. The Court heard its first arguments of the year Monday morning. The justices added 15 cases to their docket on Friday, but they are barely halfway to the number of cases we’d expect by the end of the year.

The big unexploded ordnance lying under this term is the possibility of another election-eve or post-election case in which the presidential election hangs in the balance. There is nothing the justices would rather avoid, and their decisions this spring in Trump v. Anderson and Trump v. United States seemed timed and crafted to get Trump issues off the docket for the fall. But we can’t know yet if they’ll be able to dodge that bullet until we see how Election Day shakes out.

In the meantime, here are the big hot-button issues the Court will be facing:

Transgenderism and Sexual-Orientation Discrimination

The most obviously explosive case of the term is U.S. v. Skrmetti, which asks “whether Tennessee Senate Bill 1 . . . which categorically prohibits all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor’s sex and asserted identity’ . . . violates the Equal Protection Clause of the Fourteenth Amendment.” The case has been narrowed before the Court to avoid the issue of transgender surgeries on minors, as the challengers (including the Justice Department) argue that it’s discriminatory to prohibit “gender-affirming” treatments such as puberty blockers and hormone therapy for gender dysphoria, on the theory that the same treatments (such as estrogen) are not prohibited for other purposes. In the famous phrase of William F. Buckley Jr., this is “like saying that the man who pushes a little old lady into the path of a bus is morally equivalent to the man who pushes her out of its path, because they both push little old ladies around.” Prescribing the same substances for different conditions means prescribing two different treatments.

More broadly, because the Sixth Circuit applied only rational-basis review and not any form of heightened scrutiny, Skrmetti is likely to squarely present the question of whether “gender identity” or transgenderism is a suspect classification that triggers heightened scrutiny. That would carve current progressive gender ideology into permanent constitutional stone. The decision in Skrmetti should tell us a lot about what Neil Gorsuch was thinking in Bostock v. Clayton County, which was not a constitutional case but accepted some of the premises of that ideology.

In Ames v. Ohio Dep’t of Youth Servs., a case the Court just granted, the issue is employment discrimination under Title VII of the Civil Rights Act. Under the McDonnell Douglas Corp. v. Green (1973) standard, a plaintiff can make a prima facie case of discrimination by alleging four factors:

• the plaintiff is a member of a protected class;
• the plaintiff was qualified for and applied for an available position;
• despite being qualified, the plaintiff was rejected for the position; and
• the position remained available after the plaintiff’s rejection, and the defendant-employer continued to seek applicants from persons of the plaintiff’s qualifications.

A prima facie case will be enough to get past the complaint stage, into discovery, and perhaps to trial unless the defendant-employer can show a legitimate, nondiscriminatory reason for the employment action. But are all employees created equal? The aggrieved employee in Ames was a straight woman who complained that her lesbian boss promoted another lesbian woman above her. The Sixth Circuit concluded that, because heterosexuals are a majority group, some additional “background circumstances” would need to be offered to make a prima facie case, beyond what a member of a minority group would need to offer. The circuits are split. In deciding the case, the Court may revisit or at least refine exactly what the McDonnell Douglas test requires — and those are big stakes indeed.

Guns, Guns, Guns

The Court is hearing two gun-related cases this term, one of which is being argued Tuesday morning. Neither is a Second Amendment case, but both involve efforts to restrict gun ownership in America by other means.

Garland v. VanDerStok is, as Charlie Cooke details, a sequel to Garland v. Cargill, in which the executive branch (then, the Trump administration, now, the Biden administration) tries to use a regulation to rewrite a federal statute to say what it doesn’t say. In both cases, regarding redefining bump stocks as a “machinegun” and redefining unfinished gun parts as the finished “frame or receiver” for a pistol or rifle, the statutory definition is technical and makes clear to all what is and isn’t covered; the executive branch’s regulation seeks to be broad, functional, and elastic in ways that Congress was not.

In Smith & Wesson Brands v. Estados Unidos Mexicanos, the Mexican government filed a massive damages lawsuit alleging that the carnage wrought by heavily armed Mexican drug cartels was the fault not of the cartels or the corrupt and compromised Mexican government, but of legal gun sales in the United States. If successful, the suit would effectively outlaw the AR-15, guns capable of holding more than ten rounds of ammunition, and other legal weapons. The Supreme Court has long been skeptical of similar efforts at end runs around the legislative process and constitutional rights via tort law, especially when undertaken by foreign governments. So has Congress, which enacted the Promotion of Lawful Commerce in Arms Act almost 20 years ago. But the First Circuit concluded that Mexico had alleged that the gun makers “aided and abetted” illegal activities, which “proximately caused” gun deaths in Mexico. That required a lot of bizarre leaps of logic that distorted the statutory definitions of those well-known common-law terms, conflicting with how the Court has read the same terms in other statutory contexts.

Online Speech

Last term’s resolution of the Florida and Texas social-media laws was anticlimactic, and the Court has yet to reach directly to laws seeking to place age restrictions on social media. But Free Speech, Inc. v. Paxton takes up that issue at the first step, asking (much as in Skrimetti and Ames) what standard of review applies when government places age limits on paid pornography websites that may not be obscene enough to be outlawed, but are indecent enough that the government can properly keep minors off them. The problem is that age limits for minors online require age-verification steps that also burden adult users of porn, who tend not to be eager to share their identities. Given that the government can properly restrict such materials for minors, Texas argues (and a divided panel of the Fifth Circuit agreed) that only the easily satisfied rational-basis standard applies in judging the law. That’s how the Court dealt with a sale of girlie magazines to a 16-year-old at a newsstand in Ginsberg v. New York (1968). But more recent cases have tended to apply strict scrutiny to impingements on adult online speech, including a similar federal statute struck down 20 years ago.

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There’s more. The Court will again be revisiting the proper delegation of lawmaking to administrative agencies and the scope of environmental regulation. There’s a case, Republic of Hungary v. Simon, involving the recovery of assets expropriated in Europe during the Holocaust, a matter which is still in litigation nearly eight decades later. There’s a case on whether it’s criminal fraud on the federal government to lie about your race to get a contract if you do the job right. And there are more cases in the pipeline. The Court just denied review in Michigan v. Hile, a case challenging Michigan’s restriction on using state funds to benefit parochial schools, but a case from Oklahoma is seeking review of the state supreme court’s insistence that it’s impermissible to approve a Catholic charter school.

Stay tuned. We’ll get some rulings that matter.