What can we expect of the SCOTUS by 2025?
U.S. Supreme Court
Predictions for the coming year are always tempting, but in hindsight often seem foolhardy. In December 2019, no one could have predicted the COVID-19 epidemic of 2020. In December 2023, nobody could have predicted the political rollercoaster of 2024. What will be the legal challenges to Trump administration policies, and when will they reach the courts?
Many promises made by Donald Trump during his campaign will certainly provoke legal challenges if they are implemented. Trump has promised many changes to immigration law including mass deportations and large detention centers. He also wants to end birthright citizenship where those born in the United States automatically become citizens. Elon Musk, Vivek Ramaswamy and the co-directors of Trump’s Department of Government Efficiency wrote this in an op/ed for the Wall Street Journal. Musk has spoken of cutting $2 trillion off the federal budget and Ramaswamy said that the federal workforce needs to be cut by 75%. Impoundment of money is prohibited by the Impoundment Control Act of 1975 and will be challenged for violating this law and infringing on separation of powers. The Trump administration will try to repeal a lot of the regulations and rules from the Biden era. These shifts will often be challenged in court.
States that have Democratic attorneys general are preparing to challenge many Trump Administration policies. During the last Trump presidency, the California attorney general brought 123 lawsuits against the administration.
Although the challenges to Trump administration policies will begin in federal district courts, preliminary injunctions–or denial of preliminary injunctions–will be immediately appealed. Some cases could be quickly brought before the Supreme Court under its emergency (“shadow”) docket. It happened repeatedly during the first Trump term and it is likely to happen again. How will the court address the culture wars
How did the court hear oral arguments on Dec. 4 in United States v. Skrmetti? This case was a challenge against the Tennessee law which prohibits gender affirming treatment for transgender children. The petitioner in this case is the United States Government. This is an interesting procedural twist. On Jan. 20, the Trump administration will most likely inform the court the federal government is now in favor of the Tennessee law, and not against it. Private parties who filed certiorari requests but whose petitions were denied have filed briefs with the court. Will the court simply substitute them for the United States as petitioners?
At the oral argument, the justices appeared ideologically divided. Five conservative justices expressed their opinion that the Tennessee legislature should be treated with respect. Justice Neil Gorsuch remained silent during the oral arguments. The three liberal justices saw the Tennessee law as discrimination based on sex and gender identity, and likely violating equal protection.
Another case with implications for the culture wars will be heard on Jan. 15, Free Speech Coalition v. Paxton. The case involves a Texas statute that requires that social media platforms and internet websites verify age if they have more than one-third sexual content that could be harmful to minors. The U.S Court of Appeals, 5th Circuit, upheld the law using rational basis review. The Supreme Court granted review as to whether that is the correct standard of review.
Supreme Court precedents are conflicting as to whether age verification requirements for access to sexually explicit material are allowed. In Ginsberg V. New York in 1968, the Supreme Court upheld a New York statute that prohibited the sale of sexually-explicit material to minors younger than 18. In Free Speech Coalition v. Paxton, the Supreme Court is asking how far states can go in regulating the internet and social media to prevent harm to children. Underlying Free Speech Coalition v. Paxton is the question of how far states can go in regulating the internet and social media, especially to prevent harm to children.
Will the court save TikTok in the United States?
A federal law provides that TikTok must stop operating in the United States on Jan. 19 if its owner, ByteDance, does not sell it to a non-Chinese company. In TikTok v. Garland on Dec. 6, the U.S. Court of Appeals of the District of Columbia Circuit upheld TikTok’s ban. The Supreme Court granted expedited reviews in the case on Dec. 18 and scheduled oral arguments for January 10. If the law is passed, the 170 million Americans that use TikTok for sharing and receiving information will no longer be able do so. The D.C. Circuit accepted the government’s claim that national safety justified the law. The Supreme Court must decide which level of scrutiny it will use to evaluate the federal law, and then apply it to determine the constitutionality of TikTok’s ban. Never before has the government banned a platform for communication.
Will the court impose additional limits on the administrative state?
In the last few years, the Supreme Court has dramatically changed administrative law. This has included holding that agencies cannot act on major questions of economic or political significance without clear guidance from Congress, overruling the Chevron doctrine, under which courts deferred to reasonable agency interpretations of ambiguous statutes, preventing agencies from imposing civil penalties for fraud and expanding the time within which a challenge to an agency action can be brought.
Federal Communications Commission v. Consumers’ Research, which will be argued in the spring, could be the most important of all the recent administrative law cases. The Supreme Court is deciding whether to revive the nondelegation theory, which states that Congress cannot delegate legislative power. Since 1935, the Supreme Court has rejected every nondelegation challenge, even for statutes with very broad delegations of authority to federal agencies. Since then, the court has rejected every nondelegation claim, even when the statutes delegated authority to federal agencies in a very broad way. Justice Samuel Alito expressed sympathy for the position taken by the court in this case. Justice Elena Kagan, in her plurality opinion, rejected a challenge to federal law as excessive delegation of power and spoke apocalyptically of the consequences of reviving nondelegation doctrine. She wrote: If broad delegations are “unconstitutional, then most of government is unconstitutional–dependent as Congress is on the need to give discretion to executive officials to implement its programs. Consider again this court’s longtime recognition: ‘Congress simply cannot do its job absent an ability to delegate power under broad general directives.'”
There are now three justices who did not participate in the Gundy decision, including Justices Brett Kavanaugh and Amy Coney Barrett, who have been in the majority in recent cases limiting administrative power, who have joined the court. Justice Ketanji Brown Jackson also is new, though she has been in dissent in these decisions.
Federal Communications Commission v. Consumers’ Research involves a federal program that offers discounted phone and internet service to public schools and libraries. In a 9-7 en-bois ruling, the United States Court of Appeals 5th Circuit found the delegations of powers unconstitutional. The court ruled that Congress had improperly delegated the taxing authority to the FCC by giving it the power to set fees that telecommunications companies must pay to the fund to ensure internet availability. The court could open the door for a number of federal agencies to challenge the law if it finds that it is an excessive delegation. It will require that the court struggle with the difficult question of how to define what is too much of a delegation of power and where the line is to be drawn.
Will there be a vacancy on the court?
Justice Thomas, age 76, and Justice Alito, age 74, are the two oldest members of the court. Both are conservative. Many speculate that they may retire in the next 2 years, while there is still a Republican majority in both the Senate and the White House. With 53 Republican Senators and no filibuster possible under Senate rules, Trump can confirm almost any nominee. This would result in the replacement of these justices by much younger conservatives, who will ensure a conservative majority for decades to come. He is an expert on constitutional law, federal practices, civil rights, civil liberties and appellate litigation. He is also the author of several books, including No Democracy lasts forever: How the Constitution threatens the United States as well as A Court Divided October Term 2023(November 2024).
