Legal Docket: Supreme Court preview

NICK EICHER, HOST: It’s The World and Everything in It for this 7th day of October, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket. Well, it’s the First Monday of October, and that means the U.S. Supreme Court begins its new term today.

At this point, just 16 arguments are on the calendar for this month and next, and we know what’s typical for the court is to take somewhere between 60-and-80 cases for oral argument each term.

EICHER: So obviously a lot more to be added to the docket as the term rolls on.

REICHARD: Yes, that’s correct.

EICHER: Alright, well, we’ve pulled together a panel to help kick off the 24-25 Supreme Court session, and so let’s introduce legal correspondents Jenny Rough and Steve West.

REICHARD: Right! The more the merrier and I thought let’s get together to see what cases seem most consequential that we know of so far.

Jenny, Steve, good morning!

Well Steve, let’s start with you. What got your attention?

STEVE WEST: First up for me is a case called US v Skrmetti. The question is whether banning so-called “gender affirming care” is constitutional.

This is about medical treatments for minors with gender dysphoria. Here, two states, Tennessee and Kentucky, banned things like puberty blockers, cross-sex hormones, and surgeries that alter the bodies of children.

EICHER: This matter seems to be boiling over around the country.

WEST: Boiling would be the right metaphor because it’s certainly a hot issue. I mean, several states have laws similar to Tennessee and Kentucky. But other states have laws that do the opposite and allow minors to have medical treatments for gender dysphoria. And all that’s happened mostly within the last two years.

And what’s so odd is while these battles are going on in the U.S., European countries stopped doing this to minors. A report in the UK found insufficient evidence to support these drastic interventions. So, the U.S. is the outlier.

REICHARD: We know most children outgrow gender dysphoria. So what’s the legal argument for them to undergo medical procedures that render them sterile and sometimes require lifelong medical care?

WEST: Well, one legal argument comes under the equal protection clause of the 14th Amendment. Challengers say the state is unfairly banning these procedures for transgender kids but allowing them for non-transgender kids. Parents also say that the 14th Amendment gives them the right to have whatever medical procedures they want for their children - a parental rights argument. Now, the lower court rejected that, agreeing that parents do have the fundamental right to control the education and well-being of their children. But that does not include medical treatments states have determined do more harm than good.

All this has to do with the level of legal scrutiny a law receives on review. In this case, the lower court said so long as the law had a rational basis, that’s good enough to pass muster. And protecting children is rational.

EICHER: Will this settle the matter once and for all?

WEST: No, it’ll just return the debate to the states to decide.

Whatever the ruling, the implications will spill over to other contentious legal battles, like whether men can use womens’ locker rooms and showers.

REICHARD: Well let’s move on now, Steve. What’s another legal battle you’re watching?

WEST: Well, in Free Speech Coalition v Paxton the question is whether requiring proof of age to access certain websites is a constitutional violation.

Here’s the background. Texas enacted a law that requires age verification prior to accessing a pornography website. Any reasonable means to verify age is acceptable; a driver’s license or some other government-issued ID will do.

EICHER: Of course there’s opposition here, calling itself the “Free Speech Coalition” but there’s an industry behind it.

WEST: That’s right. “Free Speech Coalition” sounds so benign, but that’s the pornography producers. They say the law infringes on the free speech rights of adults, it’s too broad, and so forth.

But Texas Attorney General Ken Paxton says the law addresses a public safety concern.

And here again, most everything turns on the level of review the court applies. The lower court used the easiest level of scrutiny to meet, called rational basis review. So Texas wants to protect kids from the documented harms of being exposed to pornography. It says, that’s rational.

REICHARD: I’m curious here, Steve. How many states require age verification on these websites?

WEST: At least seven states do. It’s an important issue. How do we protect kids from pornography? If states cannot guard access to the internet, then the answer is we don’t protect kids from damaging material like that.

EICHER: That’s going to be a big Supreme Court case.

Alright, let’s bring in Jenny Rough and you’ve been looking into some important cases … what’s got your attention so far?

JENNY ROUGH: Well, a death-penalty case, first of all. This one is Glossip versus Oklahoma.

Let me start with the background. The case goes back more than a quarter century. It involves a man named Richard Glossip. He worked at a hotel in Oklahoma City.

Glossip’s boss was murdered during his time there, and a maintenance worker admitted to doing it. But he accused Glossip of being the mastermind and paid him to do the deed.

So, prosecutors cut a deal with the maintenance worker to testify to that.

REICHARD: By cutting a deal, you mean the maintenance worker who actually killed the boss did not get the death penalty, but Glossip did?

ROUGH: You have it right. He did. But his material participation is not the issue in this Supreme Court case.

Here’s what is and we have to go back to testimony by that maintenance worker, meaning the actual hit man. He testified that he was not under psychiatric care, and as it turns out, he was.

So, he gave false testimony and the prosecution knew it. But prosecutors didn’t bother to correct it. And further, they failed to turn over relevant medical records about his mental illness.

So, Glossip is looking to get a new trial. And here’s the twist: the state of Oklahoma agrees! Both parties are going before the Supreme Court saying the state violated Glossip’s due process rights and he shouldn’t be executed.

EICHER: So interesting, Jenny, if these two parties, if Glossip and the state are in agreement he gets a new trial, I’m not clear on what’s holding things up?

ROUGH: Well, here’s what it is. It’s going to sound unusual, but it’s not totally unheard of. In situations like these, what the Supreme Court does is it appoints a third party, someone who isn’t a party to the case to defend the lower court’s decision.

Lots going on. That’s just a gloss over of the Glossip case. I’ll do a deep dive in a few weeks.

EICHER: Looking forward to it. What else have you got your eye on?

ROUGH: Yeah, interesting environmental case from out west. This one’s a battle between economic development and environmental concerns. The case is called Seven County Infrastructure Coalition versus Eagle County, Colorado.

So, obviously, seven counties in Utah decided to build 88 miles of railroad track in a rural part of the state.

The track would connect to the National Rail system … and that runs into Colorado and on down to the Gulf Coast.

The purpose is to transport oil from a Utah basin to the refineries down there.

A federal agency issued an environmental impact statement and green-lighted the project.

But the dispute comes from Eagle County, Colorado, and some environmental groups. They say the federal agency didn’t do a good enough job.

Specifically, they say the agency’s assessment wasn’t detailed enough.

So what it boils down to is the parties are fighting over the scope of what’s required by law.

EICHER This case could further limit agency authority. Okay, Mary, back to you. What’s got your attention?

REICHARD: Yeah, absolutely. Last term the court threw out a precedent of nearly 40 years. The Chevron Doctrine. And that’s going to have downstream effects for sure.

Remember that Chevron allowed executive branch agencies to take an ambiguous law and write unambiguous rules. And that led to administrative agency creep over the decades, deep state power just grew and grew after that decision. And people subject to that unelected power got really frustrated, like David fighting Goliath.

EICHER: But I guess Goliath, so to speak, has representation. There are systems in place, careers on the line. So I imagine there’s pushback.

REICHARD: Oh, you know it. Here’s a concrete example of how frustrated people were with unaccountable agency power. Relentless, Inc is one of the cases that overturned Chevron. There, the law required commercial fishermen to take government observers aboard their boats. You know, to make sure they obeyed the law. That was fine, but when Congress didn’t appropriate money to pay those observers, the agency just stuck it to the fishermen to pay up! And it was a lot of money, too, up to 20% of revenues. Even though the law itself said nothing about who pays.

EICHER: So the fishermen won and took Chevron down with them. You mentioned downstream effects, does that mean cases this term?

REICHARD: It does, and there’s one being heard tomorrow in fact that deals with “ghost guns.” Those are firearms made out of kits. But the separate parts don’t have serial numbers on them. So they’re not traceable. And that’s a problem.

So two years ago, the ATF expanded the definition of “firearm” from an older law. And said the parts must have a serial number on them and be licensed, and that anyone buying those parts needs to have background checks.

The legal argument is the agency exceeded its authority by redefining the word “firearm” so it could write rules about parts. That’s a job for Congress.

EICHER: Sounds like a case from last term about bump stocks.

REICHARD: Very similar to that one. This one is quite similar, yes. The justices found the ATF exceeded its authority by banning bump stocks in that case by redefining a word. So we’ll have to see.

And in another agency dispute, the FDA denied approval for flavored vape products that kids like. I mean, one has the name “Jimmy the Juice Man Peachy Strawberry.” You know, obviously meant to attract kids.

Now the FDA says kids need protection from these unhealthy things. But vape makers say the FDA is being arbitrary and capricious. So the court has to decide if that’s true.

EICHER: Anything else on your radar as we wrap up?

REICHARD: Yes, and these are cases the court hasn’t decided to take up yet. It likely will, but we don’t know for sure.

One is out of New York, where legislators seem determined to hem in religious organizations. In New York, employers have to include abortion coverage in their health insurance plans, but religious groups are exempt. But there’s a catch- the exemption applies only if those religious groups limit their services to people of the same faith. Imagine nuns required to only help other Catholics.

Another case is out of Wisconsin and it asks whether a court gets to decide what activities are not “typical” religious actions, and therefore disqualifying from tax exempt status. And here again, courts getting involved in the details of religion.

Finally, I’ll mention a case out of Maryland that asks whether religious people have the right to be informed and then opt out their children from LGBTQ teaching in public schools. All sorts of contentious details in that one and if the court takes this up, I’ll bring you all those contentious details. But for now, we’re just waiting.

EICHER: Alright. Steve West, Jenny Rough, thanks!

WEST: Thank you.

ROUGH: Thank you.

EICHER: And that’s this week’s Legal Docket.

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