SCOTUS Term 2026-27

[Aardvark86]

Once again, we find ourselves in the dog days of August. The World Cup is behind us, there is no football, Ovi hasn't yet come back from Russia, the WNBA is still trying to run a business on the strength of hyperdramatics usually reserved for football site political forums, and honestly, who would watch baseball these days (and particularly given that the outcome is now foreordained for the Dodger Death Star)? So thoughts turn to fall, and when thoughts turn to fall, ol' Aardvark checks out the current docket for the upcoming SCOTUS term in October. As always, I do genuinely appreciate the collective efforts to keep this thread at least sorta-kinda on substance, and with a minimum of twitter feeds. Last year I thought we had a few interesting discussions.

So without further ado...

This year's term is shaping up to be pretty interesting. While last year's biggest cases tended (IMO) to revolve around government structural matters and the limits of executive power, this year's docket - at least so far - looks like it is going to tackle a host of more substantive legal-policy issues that are likely to be "sexier" in the eyes of the general public.

The October session kicks off with a bang, with a case involving whether federal law preempts state law claims by local governments against energy companies, for alleged injuries ultimately resulting from climate change (and particularly "interstate" pollution from fossil fuel combustion). (To my surprise, there seems to be a fair bit of analogous case law here). In October, we also have some interesting and important cases - well, they're all important -- involving jurisdiction for VA benefit disputes, ERISA fiduciary duties, when alien detention lasts long enough to trigger due process rights, and a privacy oriented case arising out of the "Bork" law involving video rental data. And it would not surprise me as well if we get some emergency docket activity in the runup to the fall elections.

After that, there are a host of potentially big cases not yet scheduled for argument, including...
-whether Title IX allows private actions for employment discrimination (or whether that's instead restricted to title VII);
-the 2A AR 15 case;
-the Excessive Fines case (Jouppi, which I think someone raised in last year's thread);
-a 1A case involving exclusions of Catholic schools from preschool subsidies;
-parental standing to challenge laws limiting their role in gender transitions of their children;
-another 1A case involving a pro se (!) litigant's challenge to local restrictions on his Orthodox Jewish prayer group in his home;
-an RNC challenge to voter registration and citizenship verification processes
-whether you actually have a right to a 12 person jury in criminal matters, rather than less than that.

 

[Finance85]

Once again, we find ourselves in the dog days of August. The World Cup is behind us, there is no football, Ovi hasn't yet come back from Russia, the WNBA is still trying to run a business on the strength of hyperdramatics usually reserved for football site political forums, and honestly, who would watch baseball these days (and particularly given that the outcome is now foreordained for the Dodger Death Star)? So thoughts turn to fall, and when thoughts turn to fall, ol' Aardvark checks out the current docket for the upcoming SCOTUS term in October. As always, I do genuinely appreciate the collective efforts to keep this thread at least sorta-kinda on substance, and with a minimum of twitter feeds. Last year I thought we had a few interesting discussions.

So without further ado...

This year's term is shaping up to be pretty interesting. While last year's biggest cases tended (IMO) to revolve around government structural matters and the limits of executive power, this year's docket - at least so far - looks like it is going to tackle a host of more substantive legal-policy issues that are likely to be "sexier" in the eyes of the general public.

The October session kicks off with a bang, with a case involving whether federal law preempts state law claims by local governments against energy companies, for alleged injuries ultimately resulting from climate change (and particularly "interstate" pollution). (To my surprise, there seems to be a fair bit of analogous case law here). In October, we also have some interesting and important cases - well, they're all important -- involving jurisdiction for VA benefit disputes, ERISA fiduciary duties, when alien detention lasts long enough to trigger due process rights, and a privacy oriented case arising out of the "Bork" law involving video rental data. And it would not surprise me as well if we get some emergency docket activity in the runup to the fall elections.

After that, there are a host of potentially big cases not yet scheduled for argument, including...
-whether Title IX allows private actions for employment discrimination (or whether that's instead restricted to title VII);
-the 2A AR 15 case;
-the Excessive Fines case (Jouppi, which I think someone raised in last year's thread);
-a 1A case involving exclusions of Catholic schools from preschool subsidies;
-parental standing to challenge laws limiting their role in gender transitions of their children;
-another 1A case involving a pro se (!) litigant's challenge to local restrictions on his Orthodox Jewish prayer group in his home;
-an RNC challenge to voter registration and citizenship verification processes
-whether you actually have a right to a 12 person jury in criminal matters, rather than less than that.

Thanks for the post!

I'm anticipating some applications for cert related to cases affected by rulings from the last term. I think the SCOTUS is getting tired of lower courts straying too far.

I'm particularly interesting in the 2A case and Jouppi case.

 

[Aardvark86]

Thanks for the post!

I'm anticipating some applications for cert related to cases affected by rulings from the last term. I think the SCOTUS is getting tired of lower courts straying too far.

I'm particularly interesting in the 2A case and Jouppi case.

Honestly, I'm pretty indifferent on all 2A cases. But Jouppi is really interesting, and in the modern legislative world of civil penalties and multipliers which I am going to guess you are somewhat familiar with, holds the possibility for some absolutely wonderful mischief in the future.

For example, just jumping immediately to mind, I am recalling a matter I handled during covid which involved late reporting of certain pricing information by an ex-US drug manufacturer, to California. Now, under this particular regulatory scheme, California literally did absolutely nothing with the information reported to it. They didn't even question the substance of "what" you reported (and if memory serves, may have even limited the number of characters you could use in reporting). It was, essentially, just an in terrorem nuisance law designed to try to dissuade price increases (16%/2-3 years if I recall) by triggering reporting. (And again, they didn't regulate prices or prohibit you from taking them.) But if you were late on your report and had a lot of product/line items...well, that was a different story. $10k/day/line item. So they sought 8 figures from my client because no one was in the US office during covid to pick up the snail-mail notice they sent while the clock was running. In fairness, the AG guys were pretty reasonable in negotiating a settlement, but...seriously?

 

[fatpiggy]

Interesting post on the 4th amendment. Probably all things we already know, but they did Mayor Pete wrong. Should never have happened to him.

Pete Buttigieg, the Supreme Court, and the Fourth Amendment | SCOTUSblog

 

[Aardvark86]

So a baby update today as we had an order list. Pretty dull stuff with no grants, though I'm sure there will be those who are excited, puzzled, or both, as to the fact that the court denied reconsideration in the E Jean Carroll case, which I could care less about.

While I was at it, I took a peek at the emergency docket. We have the ballroom application for stay, and we have two applications for stay on the mail in ballot EO litigation. And then we have a curious private application, in CEMEX, which sought to stay a 9th circuit order compelling collective bargaining, on the basis that the original election (which the employer won but was found to have committed unfair labor practices) was held 8 years ago and something north of 50% of the employees had turned over. A curious application because Justice Kagan (ordinarily CJ for 9th circuit matters) already denied it, and then CEMEX refiled it with Justice Alito for reasons not apparent in the record. Interestingly, the rules provide for that in some situations, but I have no idea what they are here.

 

[Aardvark86]

Interesting post on the 4th amendment. Probably all things we already know, but they did Mayor Pete wrong. Should never have happened to him.

Pete Buttigieg, the Supreme Court, and the Fourth Amendment | SCOTUSblog

Yeah, i suppose if i ever had a knock at the door asking to enter, I'd probably strike a middle ground if they didn't have a warrant. Question 1: am I a witness, subject, or target of whatever it is you're looking into? Anything other than witness starts with a no. Question 2: Recognizing that you don't have a warrant (at least yet), please explain to me what you believe your basis for probable cause would be to enter? (do you mind if i record this?)

 

[lucas80]

Yeah, i suppose if i ever had a knock at the door asking to enter, I'd probably strike a middle ground if they didn't have a warrant. Question 1: am I a witness, subject, or target of whatever it is you're looking into? Anything other than witness starts with a no. Question 2: Recognizing that you don't have a warrant (at least yet), please explain to me what you believe your basis for probable cause would be to enter? (do you mind if i record this?)

LOL if you think the guys would bother to knock, care about question #1, or give you enough time to utter your question #2 before giving you a tune up. Recording officers is now considered threatening agents if you are not up to speed on that.
The justices declined to hear Trump cry about the first Carroll lawsuit, but I suspect they will want to find a way to give Trump a win on the second suit under the gigantic umbrella of immunity they created for Republican presidents. It will be interesting to see if they decide that the best way to protect an underground bunker is by building a ball room that seats 1000 people over it.

 

[Aardvark86]

LOL if you think the guys would bother to knock, care about question #1, or give you enough time to utter your question #2 before giving you a tune up. Recording officers is now considered threatening agents if you are not up to speed on that.
The justices declined to hear Trump cry about the first Carroll lawsuit, but I suspect they will want to find a way to give Trump a win on the second suit under the gigantic umbrella of immunity they created for Republican presidents. It will be interesting to see if they decide that the best way to protect an underground bunker is by building a ball room that seats 1000 people over it.

Well sure, I mean I guess you could just go through life presuming everybody just acts in bad faith, but that makes for an awfully long slog.

Ftr, as it happens, I coasted through two stop lights this morning at 0630 on my bike in downtown Lexington. Got pulled over. Officer was courteous and professional (as was I) and kindly left me off with a warning rather than causing my car insurance premiums to ironically skyrocket for bicycle based misconduct. Go figure.

 

[fatpiggy]

This ruling surprised me a little bit. Seemingly very consequential? Will it stand? I know it’s not a final ruling but still seems consequential

 

[Aardvark86]

listened to this on my drive home this evening re the Colorado case that opens the term. Not too bad but could have used someone to present the state perspective. And the fourth guy was a little wacky.

 

[Finance85]

Interesting there are no posts here about SCOTUS, at least temporarily, slamming the door on Trump's USPS election control scheme.

I'm particularly interested in the logic regarding the assumption the federal government can set rules for state run elections to federal office that go beyond Constitutional requirements or qualifications. I think Roberts knows he will have to address that concept if Trump keeps pushing the envelope, and doesn't want to go there.

Roberts already has to deal with the Gorsuch effect of pushing back against Chevron, as well as Gorsuch pushing back on federal control of the People (Indian tribes). Alito and Thomas will always side with a far right agenda, and Roberts must already be tired of Jackson not respecting protocol during oral arguments and writing increasingly tortured concurring / dissenting opinions based on social outcomes instead of law.

It may just be me, but it seems like there's been a major trend of all the justices writing their own concurring in part opinions on both opinions and dissents. That undoubtedly extends the timelines for opinions of be published, and complicates future cases on similar legal issues.

And of course, Roberts is undoubtedly weary of Trump's burden on the Court by pushing the envelope on so many legal fronts,

 

[THE_DEVIL]

Interesting there are no posts here about SCOTUS, at least temporarily, slamming the door on Trump's USPS election control scheme.

I'm particularly interested in the logic regarding the assumption the federal government can set rules for state run elections to federal office that go beyond Constitutional requirements or qualifications. I think Roberts knows he will have to address that concept if Trump keeps pushing the envelope, and doesn't want to go there.

Roberts already has to deal with the Gorsuch effect of pushing back against Chevron, as well as Gorsuch pushing back on federal control of the People (Indian tribes). Alito and Thomas will always side with a far right agenda, and Roberts must already be tired of Jackson not respecting protocol during oral arguments and writing increasingly tortured concurring / dissenting opinions based on social outcomes instead of law.

It may just be me, but it seems like there's been a major trend of all the justices writing their own concurring in part opinions on both opinions and dissents. That undoubtedly extends the timelines for opinions of be published, and complicates future cases on similar legal issues.

And of course, Roberts is undoubtedly weary of Trump's burden on the Court by pushing the envelope on so many legal fronts,

Roberts has no one but himself for issues at the Court.

 

[Aardvark86]

Interesting there are no posts here about SCOTUS, at least temporarily, slamming the door on Trump's USPS election control scheme.

I'm particularly interested in the logic regarding the assumption the federal government can set rules for state run elections to federal office that go beyond Constitutional requirements or qualifications. I think Roberts knows he will have to address that concept if Trump keeps pushing the envelope, and doesn't want to go there.

Roberts already has to deal with the Gorsuch effect of pushing back against Chevron, as well as Gorsuch pushing back on federal control of the People (Indian tribes). Alito and Thomas will always side with a far right agenda, and Roberts must already be tired of Jackson not respecting protocol during oral arguments and writing increasingly tortured concurring / dissenting opinions based on social outcomes instead of law.

It may just be me, but it seems like there's been a major trend of all the justices writing their own concurring in part opinions on both opinions and dissents. That undoubtedly extends the timelines for opinions of be published, and complicates future cases on similar legal issues.

And of course, Roberts is undoubtedly weary of Trump's burden on the Court by pushing the envelope on so many legal fronts,

I've actually had a couple of crazy weeks, and while I certainly saw these, I just have not had time to dive in to them at all (eg, to look at the actual application for stay). With that huge caveat...

I agree with where I think you're going (ie, congress can enact national election limits that can essentially preempt state standards, but I'm not sure what authority the president has to do that independent of congressional actions). While I've not looked at the briefs, I'm inferring from Kav's brief concurrence that they may have been arguing that this isn't so much an "election" rule as it is a general "postal service" rule (akin to rules that might apply to mailing of an LLBean catalog). Seems like a stretch to me. I don't know that I'd interpret Kav's opinion as being a clear 'yes' on that front - timing seems to be his ultimate rationale. I've not read the dissent at all, so maybe i'm missing some other argument they're making.

As far as concurrences and dissents, I don't know if its actually as dramatic as it seems in a statistical sense. But where I do think you're right is that we're seeing it on emergency docket petitions, which is a little weird.

I don't envy the Chief one bit. I admire the fact that he really does try to keep his eye on the institutional interests of "the Court" in a pretty complicated time with quite the herd of cats. For my money, the only place where people might quibble with his leadership role on a substantive issue is on race-based preferences and remedies, where he's clearly a tip of the spear guy. (That said, even there, i think it's very fair of him to ask 'just when does this all end?")