A Guide To the 10 Biggest Supreme Court Cases of This Term
A definitive guide to the coming end-of-term decisions.
|Sarah Isgur||May 18|| 40||60|
The Supreme Court term is in the home stretch. The court finished hearing cases for the term last week, and big opinions will be coming down with regularity on Mondays at 10 a.m. ... and then Thursdays and whatever other days the chief justice decides to add until they’re done. This process normally wraps up at the end of June, but since the justices presumably aren’t taking their normal sabbaticals abroad this summer, the term could stretch into July.
As we said back in January: “By the end of June, the court will have weighed in on the disclosure of Trump's financial records, the rescission of DACA, the Louisiana abortion law on doctor’s admitting privileges, whether gender discrimination laws apply to gay and transgender employees, another 2nd Amendment case, and whether to take (and potentially expedite hearing for this term on) the 5th Circuit’s Obamacare case on the individual mandate. Expect a lot of 5-4 outcomes and some blistering dissents.”
During their conferences after arguments, justices take a preliminary vote and assign the majority opinion. But anything can change after that. A dissent can be circulated to the other chambers and become a majority opinion if a justice changes his or her vote. Or the breadth of a majority opinion can shrink. Footnotes or entire paragraphs may be added to an opinion addressing the arguments that were circulated in a concurrence or dissent. And without in-person meetings or the ability to slip a handwritten note onto a colleague’s desk, the emails will presumably be flying with even more alacrity.
This term will be notable for the historic May argument sitting in which justices heard oral arguments by teleconference and those arguments were broadcast live. For many, it was a nice change of pace. The chief justice called on each justice in order of seniority, making for a more orderly and easy to follow back-and-forth without justices jumping over each other’s questions. It also had the collateral consequence of making every argument substantially longer, which allowed listeners to get a better and more in-depth understanding of what interested each justice. On the other hand, the conversation jumped between topics and it was harder for one justice to follow up on another justice’s question if they weren’t adjacent questioners. And it gave the chief justice a lot of discretion to decide how long each justice’s question time actually lasted. On the other other hand, it was a welcome break from the past few decades of oral argument ping-pong in which the advocates were the ball and the justices used their questions to hit the ball as hard as they could toward another justice.
Not everyone agreed, however. Lyle Denniston, a retired Supreme Court reporter, took on Garrett Epps, The Atlantic’s Supreme Court reporter, on Twitter. “Likely I have heard far more arguments over 62 years, and I disagree. This harms equal status of each Justice, gives the CJ arbitrary power, diminishes cross-bench exchanges, promotes wool-gathering by lawyers, prizes order over depth, lets technology triumph, looks amateurish,” Dennison tweeted, “If it is thought that this is the wave of the future, I'll take decisions based solely on the briefs. To call this ‘argument’ is to impoverish the word.” Epps interviewed Denniston in a charming follow-up piece.
On a more substantive level, this term included several cases in which the justices struggled with how much to entangle the courts in these legal conflicts and when to defer to other branches or the parties before them. Do the courts determine whether Congress has a specific enough legislative need to subpoena the private records of a sitting president? Should judges decide whether an employee plays an important religious function at a religious school? Can the judiciary review the president’s decision to rescind the immigration policy of a previous administration? Should the court or Congress decide whether to expand protection under discrimination laws? Depending on which direction the court goes in these cases, it could herald a new era of judicial non-entanglement for the Roberts Court.
(David French and I will be following all of these opinions as they come out on our Advisory Opinions podcast. We hope you’ll join us as this term comes to its exciting conclusion!)
Some notes on how to read the case summaries:
GLOSSARY: We’ve published a separate glossary of terms here. Terms like ‘DIG’ and ‘concurring in the judgment’ might be helpful to reference after an opinion comes out. Others like ‘certiorari’ have pronunciation keys (note: the justices themselves each pronounce that word differently). It includes some helpful hints on how to read the court’s calendar, predict who is writing the majority opinion in a given case, and what happens if the court splits 4-4.
The point is this: not all of the terms in the glossary appear below but they may nevertheless be helpful to peruse to understand how the court works. Plus, you’ll get a healthy dose of Latin, French, and Middle English.
TITLE: I’ve titled the cases how appellate lawyers are referring to them this term, which—as you’ll see below—is usually whatever shorthand reminds people about the case(s) in the fewest number of letters possible. It’s far more art than science. In fact, there’s no science whatsoever.
QP: This stands for “question presented” and is a required section in any Supreme Court brief in which both sides are required to describe what issue they are asking the court to decide. QPs are particularly important because the Supreme Court often isn’t hearing every issue in the case—just the question(s) presented. The justices can choose to take only some of the QPs from the cert petition and they can even add their own or reframe a QP. I’ve tried to summarize the QPs for these cases without all the legalese, but in doing so, some of the nuance of a case may be lost. This is why there’s a longer summary and lots of links for those who want to take a deeper dive.
LINKS: At the bottom of each summary, you’ll find the real case citation with a link to the merits briefs (from the parties to the case) and the amicus curiae briefs (the people or groups who wanted to add their two cents which translates to ‘friend of the court’) courtesy of the very talented folks at scotusblog.com. It also includes the date the case was argued, which tells you how long the case has been pending. This can also sometimes give you an idea of which justice might be writing the opinion—check out the explanation of how the Supreme Court Bingo Card works in the glossary. Lastly, it includes links to the transcript and audio of the argument if you’re in need of some inspiration for your next workout.
I’ve tried to order the cases starting with the most important cases of the term. This is, of course, based on somewhat arbitrary criteria, including how likely an outcome is to shape law in the long term, the political consequences in the short term, and to be honest, how much the mainstream media—and therefore normal people—will care. Enjoy!
1. The Title VII Cases: Does “sex discrimination” include discrimination on the basis of sexual orientation and transgender identity?
How we got here: The outcome of these cases will almost certainly get the most attention of any in OT19. As with almost all of the cases included below, the court consolidated two cases here. Another related case was argued separately on the same day. A gay man named Donald Zarda, a sky-diving instructor who has since died in a sky-diving accident, was fired and sued his employer, arguing that he was fired “because [he] did not conform [his] appearance and behavior to sex stereotypes.” Gerald Bostock, a child welfare services coordinator in Georgia who was also gay and was also fired, argued he was terminated “based on his sexual orientation and failure to conform to a gender stereotype.” Aimee Stephens, a transgender woman, worked at a funeral home with a dress code. After telling her employer that she intended to come to work wearing the appropriate dress code attire for a woman, Stephens was fired and sued, alleging that the firing was due to Stephens’s “sex and gender identity, female.”
Legal issues: These cases are about whether Title VII of the Civil Rights Act of 1964, which bars private employers from discriminating on the basis of “sex,” necessarily includes sexual orientation or transgender identity because they involve a failure to conform to gender stereotypes. These cases were argued back in October, and as with a lot of the cases below, the solicitor general was given divided argument time in addition to the respondent and petitioner.
Argument highlights: “When a case is really close, really close, on the textual evidence … At the end of the day, should [a judge] take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility … it is more effective [and] more appropriately a legislative rather than a judicial function? That's it. It's a question of judicial modesty.” —Justice Gorsuch
“In what linguistic formulation would one say that sex, biological gender, has nothing to do with what happened in this case?” —Justice Gorsuch
Altitude Express Inc. v. Zarda, No. 17-1623 [Arg: 10.8.2019 Trans./Aud.]
Bostock v. Clayton County, Georgia, No. 17-1618 [Arg: 10.8.2019 Trans./Aud.]
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107 [Arg: 10.8.2019 Trans./Aud.]
2. The Trump Finance Cases: Can Trump’s financial records be subpoenaed while he’s president?
How we got here: Michael Cohen, the president’s former personal attorney, testified before Congress that the president had inflated and deflated his personal assets to obtain bank loans. From there, the House Oversight Committee issued a subpoena to the president’s accounting firm seeking eight years of accounting and other financial information. Then the House Financial Services and Intelligence Committees issued three more subpoenas to banks with whom Trump had done business. The Intelligence Committee, as one example, said the subpoenas were part of their investigation into “efforts by Russia and other foreign entities to influence the U.S. political process during and since the 2016 U.S. election.” The New York County District Attorney’s office convened a grand jury that subpoenaed the same material and the president’s tax returns as part of a criminal investigation into alleged hush-money payments made to women during the 2016 campaign.
Legal issues: The court will decide whether Congress or a local district attorney has the authority to subpoena a president’s records or whether either needs to show some sort of special need for the materials while he is in office. Interestingly, both sides in the congressional cases agree that this has nothing to do with Congress’ impeachment power. And in all three cases, an important precedent in this case is the unanimous Clinton v. Jones opinion from 1997, which held that “the Constitution does not automatically grant the President an immunity from civil lawsuits based upon his private conduct.” Of the justices who signed onto that holding, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer remain.
Argument highlights: “The aura of this case is really sauce for the goose that serves the gander as well. So how do you distinguish, say, Whitewater, when President Clinton’s personal records were subpoenaed from his accountant, or even Hillary Clinton’s law firm billing records were subpoenaed? ... Take the Nixon tapes?” —Justice Ginsburg
“What is ... the limiting principle ... say legitimate legislative purpose looking toward enacting a law, but not to harass a president from the opposing party?” —Justice Ginsburg
“Why should we not defer to the House’s views about its own legislative purposes?” —Justice Gorsuch
“At the end of the day this is just another case where the courts are balancing the competing interests on either side.” —Chief Justice Roberts
3. DACA: Can the Trump administration rescind the Obama-era legal protections for children who were brought here illegally?
How we got here: In 2016, after the death of Justice Scalia, a 4-4 court enjoined DACA’s sister program—the Deferred Action for Parents of Americans (DAPA). In a one-line, per curiam opinion, the court affirmed the lower appellate court’s decision, which held that DAPA and the expansion of DACA were likely unlawful. Fast forward to 2017, the Trump administration rescinded the DACA program based on the Supreme Court’s DAPA outcome and the threat of future litigation. In 2018, DHS Secretary Kirstjen Neilson issued a more detailed letter laying out additional reasons the administration also felt the DACA program was unwise as a matter of policy.
Legal issues: The first question for the court is whether the policy is wholly within the agency’s discretion and unreviewable by the court. And if it is reviewable, the Administrative Procedure Act states that the government can’t change its policies for “arbitrary and capricious” reasons. So the court would need to decide whether DHS’s reasons for rescinding the policy, including its belief that the policy would get struck down by the court, were reasonable. Based on Supreme Court bingo, it’s a good bet that the Chief Justice is writing this opinion.
Argument highlights: “You've got a court of appeals decision affirmed by an equally divided Supreme Court. Can't [the Attorney General] just say that's the basis on which I'm making this decision?” —Chief Justice Roberts
Department of Homeland Security v. Regents of the University of California, No. 18-587 [Arg: 11.12.2019 Trans./Aud.]
Trump v. NAACP, No. 18-588 [Arg: 11.12.2019 Trans./Aud.]
McAleenan v. Vidal, No. 18-589 [Arg: 11.12.2019 Trans./Aud.]
4. Louisiana Abortion: Can Louisiana ban doctors from performing abortions who don’t have admitting privileges at a nearby hospital?
How we got here: Starting in 2012, several states, including Texas and Louisiana, passed laws requiring abortion providers to obtain admitting privileges at local hospitals. In 2016, a 5-3 Supreme Court struck down the Texas law in Whole Woman’s Health v. Hellerstedt, holding that it did not offer “medical benefits sufficient to justify the burdens upon access that each imposes” and placed “a substantial obstacle in the path of women seeking a previability abortion, constitut[ing] an undue burden on abortion access.” After that case, Louisiana’s admitting privileges requirement was reviewed by a lower appellate court, which held that in this case “the admitting-privileges requirement performs a real, and previously unaddressed, credentialing function that promotes the wellbeing of women seeking abortion.”
Legal issues: The main question here is whether Louisiana’s law—or the evidence supporting it—is different enough from the Texas version to distinguish it from the court’s holding in Whole Woman’s Health, and if not, whether the court is prepared to overturn such a recent precedent. Also notable that one of the five votes in Whole Woman’s Health was Justice Anthony Kennedy, who has been replaced by Justice Kavanaugh.
Argument highlights: “Assume all the doctors who currently perform abortions can obtain admitting privileges, could you say that the law still imposes an undue burden, even if there were no effect?” —Justice Kavanaugh
“Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed State-by-state?” —Chief Justice Roberts
5. CFPB: Is the structure of the Consumer Financial Protection Bureau constitutional?
How we got here: In 2010, Congress created the Consumer Financial Protection Bureau as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The legislation stated that the director of the CFPB is appointed by the president for a five-year term and can be removed by the president only “for inefficiency, neglect of duty, or malfeasance in office.” In 2017, the CFPB sent a demand for documents to a law firm that did consumer debt relief. The law firm refused to comply, arguing that the CFPB’s structure violates the Constitution’s separation of powers. The Trump administration agreed and refused to defend the CFPB’s constitutionality. The Supreme Court appointed former Solicitor General Paul Clement to defend the CFPB as an amicus curiae and allowed the House of Representatives to argue on behalf of its legislation too.
Legal issues: The question is whether the structure of the CFPB—an agency with a single director who cannot be removed at will by the president—violates the president’s inherent executive power. And if it is unconstitutional, the court has to decide whether that affects just the director of the CFPB or whether it is “inseverable” from that part of the Act, meaning the entire CFPB might have to go as well.
Argument highlights: “Wouldn’t the normal principles of constitutional avoidance suggest that we might want to scrutinize a little bit how rigorous a limitation [inefficiency] is before we get to the point of striking down the statute?” —Chief Justice Roberts
“If we were to approve single-member agencies without any presidential removal power … we would run into questions about the Cabinet, for example, which are just agencies, right?” —Justice Gorsuch
“On severability, what do you do with the text of the severability clause? You — you mentioned we would be rewriting the Dodd-Frank Act. But wouldn't we be rewriting it by ignoring the text of the severability clause?” —Justice Kavanaugh
Seila Law LLC v. Consumer Financial Protection Bureau, No. 19-7 [Arg: 3.3.2020 Trans./Aud.]
6. Faithless Electors: Can states force members of the Electoral College to vote for the candidate who won the state’s popular vote?
How we got here: In the summer of 2016, Washington and Colorado each nominated a slate of Democratic presidential electors who had pledged to support the party’s nominee. After Hillary Clinton won the popular vote in both of those states, the states appointed the Democratic electors as presidential electors for the Electoral College. Both states had laws that required electors to vote for the ticket that received the most popular votes. Once the electors in this lawsuit met in their respective states to vote, however, they chose not to vote for Hillary Clinton. (For those curious, the three in Washington voted for Colin Powell and the one in Colorado voted for John Kasich.) The Washington electors’ votes were counted and they were fined $1,000. The Colorado elector’s vote was not counted, he was removed, and he was replaced with an alternative who voted for Hillary Clinton.
Legal issues: The real question here is whether presidential electors—once appointed—have discretion to vote how they want or whether states have the discretion to remove or punish electors under state law. The Constitution mentions electors and the states’ power to appoint them in Article II and in the 12th Amendment but provides no textual guidance on when or how an elector may be removed or cabined in their vote. It’s worth noting that Justice Sotomayor is recused from the Colorado case, so there’s the possibility of a 4-4 split if the justices see a constitutional distinction between fining an elector and removing an elector. If that were to happen in the Colorado case, the elector won at the lower court so the judgment would be affirmed by an equally divided court. There’s also some procedural issues with that case and some indication the Court could DIG it.
Argument highlights: “Can an elector be removed for bribery, absent conviction by proof beyond a reasonable doubt before the time when the electors meet to vote?” —Justice Alito
“I want to follow up on Justice Alito's line of questioning and what I might call the avoid chaos principle of judging, which suggests that if it's a close call or a tiebreaker, that we shouldn't facilitate or create chaos.” —Justice Kavanaugh
“Does the 12th Amendment mention discretion?” —Justice Thomas
7. Ministerial Exception: What types of employees at religious schools and institutions are exempted from employment discrimination laws?
How we got here: This case is about two teachers and two Catholic schools. Agnes Deirdre Morrissey-Berru and Kristen Biel were fifth-grade teachers. Morrissey-Berru claims that she was fired because of her age, and Biel claims that she was fired because she was undergoing treatment for breast cancer—both age and disability are covered under current employment discrimination laws. Neither school required its teachers to be Catholic; Morrissey-Berru, in fact, is not a practicing Catholic. Both taught a variety of subjects like math, reading, and science. Both also taught religion out of workbooks provided by the schools. Biel noted that she “did not lead her students in classroom prayer or teach them prayer rituals.” The schools note that both teachers, however, “also modeled and practiced the Catholic faith with [their] students.”
Legal issues: In a 2012 case called Hosanna-Tabor v. EEOC, the unanimous Supreme Court held that the First Amendment includes a ministerial exception for religious employers to fire a minister of their faith without being subject to employment discrimination suits. Justice Thomas in his concurrence summarized it as “the Religion Clauses require civil courts to defer to a religious organization’s good-faith understanding of who qualifies as its minister [to prevent courts from] second-guess[ing] the organization’s sincere determination that a given employee is a ‘minister’ under the organization’s theological tenets.” The question here is how the courts are supposed to apply the ministerial exception to all of these other employees who may have some religious function but aren’t full-time ministers of their faith either.
Argument highlights: “If a position can be filled by any old person, not by a member of a faith, isn't that a pretty good sign that the employee doesn't have that special role within the religious community?” —Justice Kagan
“Would exactly what these teachers were doing be a violation if they did it in a public school, be a violation of the Establishment Clause if they did it in a public school?” —Justice Thomas
“We have emphasized repeatedly that we do not inquire into how important the — the plaintiff’s religious belief is or how central it is to their faith...because we're afraid about entangling courts in making religious judgments and discriminating against minority religions that may have views about what's important that are unusual or different from our own. Doesn't [your argument] create just exactly the sort of entanglement problems that we've tried to avoid elsewhere and discriminate potentially against minority religions that may have different views of ministers than — than you or I may have?” —Justice Gorsuch
8. Little Sisters of the Poor: Can the Trump administration exempt conscientious objectors from the contraceptive mandate in the ACA?
How we got here: Under the Affordable Care Act, many group health plans and health-insurance issuers are required to provide coverage for “additional preventive care and screenings” for women, which was to be later defined by the Health Resources and Services Administration. Those guidelines included all contraceptive methods approved by the FDA, but it exempted health plans associated with churches. For other organizations that weren’t churches but had conscientious objections (like colleges and charities), HRSA created an accommodation by which the insurers would be required to arrange contraceptive coverage and plan participants would still receive contraceptive coverage through the objecting organization’s health plan. The first time the Supreme Court considered this case in 2016, it issued a PC opinion directing the parties to try to resolve the dispute. Narrator: they didn’t. Under the Trump administration, HRSA expanded the original exemption to include these other conscientious objectors in 2017. The state of Pennsylvania sued and New Jersey joined. The district court issued a nationwide injunction and the appellate court upheld the injunction.
Legal issues: There are two separate issues here the court can decide. The first is on the merits—namely whether the Trump administration was allowed to expand the exemption to include these other conscientious objectors groups and whether they did it correctly under the Administrative Procedure Act. The second issue is whether a nationwide injunction was appropriate.
Argument highlights: “I didn't understand [the Little Sisters of the Poor’s] problem at the time of [the 2016 PC opinion], and I'm not sure I understand it now … the problem is that neither side in this debate wants the accommodation to work. The one side doesn't want it to work because they want to say the mandate is required, and the other side doesn't want it to work because they want to impose the mandate. Is it really the case that there is no way to resolve those differences?” —Chief Justice Roberts
“It seems to be somewhat problematic and to suggest that there's a problem with both standing and nationwide injunctions if they are this easy to get.” —Justice Thomas
9. The Blaine Amendment Case: Whether the First Amendment prevents Montana from getting rid of a state scholarship that allowed funds to go to religious organizations?
How we got here: In 2015, the Montana Legislature created a scholarship program “to provide parental and student choice in education.” The Montana Department of Revenue prohibited families from using the scholarship money at religious schools because the Montana Constitution includes a ‘no aid’ provision, which is a ban on using public funds “to aid in the support of any school controlled in whole or in part by any church, sect or denomination whatever.” By the late 1800s, about 30 states had incorporated similar language—often referred to as Blaine Amendments—during an era of widespread hostility to Catholicism. The Montana Supreme Court invalidated the entire scholarship program for everyone. It held that because the scholarship program as passed by the legislature didn’t limit funding from going to religious schools (and the Department of Revenue had no authority to attempt to fix it after the fact), the scholarship program violated the Montana Constitution’s ‘no aid’ provision.
Legal issues: This case is about whether the Montana Supreme Court can throw out the whole program because some money be used by students to attend religious schools. To put it another way, the court is deciding whether the Montana Constitution’s ‘no aid’ provision—and the Montana Supreme Court’s interpretation of it—violates the First Amendment because it discriminates on the basis of religious status. This case was argued back in January, which means a decision could be announced relatively soon.
Argument highlights: “The legislature may say they built parks and pools ... but if a higher percentage of African Americans come and use the pools, then we're going to shut down the whole program … How is that different than religion?” —Chief Justice Roberts
“I've always understood in these kinds of cases that the harm is the perceived or alleged or actual — whatever you want to call it — discrimination. But there is no discrimination at this point going on, is there?” —Justice Kagan
“My hypothetical [is] called the public school system of the United States … What's the difference between this case, you win, and the same with the public schools, they have to give it to parochial schools too. What's the difference?” —Justice Breyer
10. Individual Mandate: Whether the individual mandate part of the Affordable Care Act, which now has zero tax penalty for non-compliance, is unconstitutional, and if it is, whether the whole Affordable Care Act has to be invalidated too?
But wait, you say, this isn’t being argued until OT20! That is correct, but this case remains an ever-present sword of Damocles hanging over both the Supreme Court’s docket and the Trump administration (and campaign for that matter), which has already switched positions once and is rumored to be considering another change. It won’t be decided before Election Day and it won’t be going away either. For all those reasons, it’s earned its spot as the 10th most important case of this term.
How we got here: In 2012, the Supreme Court upheld the individual mandate in National Federation of Independent Business v. Sebelius. Chief Justice Roberts wrote the opinion, which held that Congress lacked the power to impose a command to purchase health insurance but that the mandate was nevertheless a valid exercise of its taxing power. Fast forward to 2017 and a Republican-controlled congress set the tax penalty to zero dollars.
Legal issues: There is still an individual mandate in which the federal government requires most people to purchase health insurance; there’s just no monetary penalty now if a person doesn’t do it. The court—and maybe more specifically the Chief Justice—now has to decide whether the individual mandate is still a tax even if there’s no revenue being raised. There’s also a question of whether the plaintiffs in this case—the states and the individuals—have suffered any injury. On the one hand, the individuals, for example, don’t owe any money, but on the other hand, there is still a law on the books that requires them to buy insurance even if there’s no direct enforcement mechanism at this point. Lastly, the court has to decide whether the mandate is “severable” from the rest of the ACA or whether the court has to throw out the whole law when it finds a part of a law unconstitutional. Justice Thomas recently suggested that courts should never invalidate other parts of a law under “severability” principles.
This is all to say there’s a lot of law stuff to chew on for the next several months, folks.
Argument highlights: None yet, but stay tuned for fireworks.
Photograph by Erik McGregor/LightRocket/Getty Images.