The Calm Before the Avalanche But first… Guys, your new favorite podcast is out! I love a good Supreme Court dissent—so I created a podcast about them. In the first season, we get meta; we talk about America’s first great dissent—The Declaration of Independence—through the lens of Supreme Court dissents. We trace the Declaration’s promises from parchment to the Constitution to Supreme Court doctrine. We explore how the Declaration’s ideals have been defended by some of the Court’s greatest dissents, and how, at times, they’ve been hollowed out by the Court itself—and we do it all through vivid storytelling and interviews with Pulitzer Prize-winning historians and authors. I’m excited for you to hear it. Streaming now: https://pacificlegal.org/in-dissent/! (Feel free to subscribe and to offer glowing reviews.) Opinion day: Kind of meh It was an opinion day yesterday at the Court. Unfortunately, the Court is still clearing its docket of the snoozers before getting ready for the constitutional bombshells—so nothing much of note. But with June around the corner, here’s a look at the cases that lie ahead. The Trump Docket: Executive power everywhere, all at once The Court still has several Trump-related cases pending, including Trump v. Slaughter and the related Trump v. Cook, involving limitations on the president’s ability to fire people in the executive branch. Trump v. Slaughter asks the Court to revisit its famous case of Humphrey’s Executor, which said that Congress can limit the president’s removal power when related to “quasi-judicial, quasi-legislative” officials. For years, critics have said that this blurs the lines of political accountability; people in the executive branch must be accountable to the chief executive, so that the people know who to vote out if those bureaucrats behave in ways that the public doesn’t like. Supporters say that Congress should be able to insulate executive officials from political influence so that they can be “independent.” But if too independent, the officers become a Fourth Branch of government, free of accountability altogether. Trump v. Cook is interesting because it involves the Federal Reserve, which has long been treated as something close to sui generis—independent enough that even the administration itself didn’t contend that the president should be able to fire members of the Federal Reserve at will. Instead, the question is whether the president abided by the current limitations on his firing power, and whether courts can review his decisions at all. Speaking of a lack of accountability… Landor v. Louisiana Department of Corrections has shocking facts. The government forcibly shaved a Rastafarian man’s dreadlocks in violation of his religious beliefs, despite him holding a physical copy of a court decision affirming his right to keep them. The prisoner sued for damages under the Religious Land Use and Institutionalized Persons Act, which prohibits the government, in certain situations, from imposing a substantial burden on religious rights. The question is whether the statute authorizes money damages, as opposed to injunctive relief—and that question is incredibly important here, because 1) the man’s head was already shaved, and 2) he left prison shortly thereafter. Damages are the only meaningful remedy left. Cases like this often expose the tension between immunity doctrines and basic notions of fairness. Even justices who strongly defend immunity sometimes struggle when confronted with facts this severe. But Landor is also armed with strong legal precedent: Just a few terms ago, the Court ruled that RLIUPA’s sister statute, the Religious Freedom Restoration Act, does, in fact, allow money damages. The question is whether the fact that RFRA was based on Congress’ commerce power and RLIUPA was based on Congress’ spending power should make any difference. Culture war cases: Little v. Hecox and West Virginia v. BPJ These culture war cases of the term involve transgender athletes competing in women’s sports, and they sit at the intersection of Title IX and equal protection. In short, 27 states have passed laws limiting sports by biological sex; Idaho and WV were among the first. Transgender athletes sued under the Equal Protection Clause and Title IX. A few years ago, in Bostock, Justice Gorsuch wrote an opinion saying that Title VII (which prohibits sex-based discrimination in the workplace) means there can be no discrimination based on transgender status. The question is how those same principles play out in Title IX and women’s sports, where women have a competing interest. Obviously the most important case of the term: Pung v. Isabella County Didn’t mean to bury the lead: In case you haven’t heard, PLF has a case pending at the Court! After seizing a family’s home over a relatively small and contested tax debt, a Michigan county kept not just the debt, but also the surplus value that the family had in equity—taking far more than what was owed. The Supreme Court already ruled in Tyler v. Hennepin County, another PLF case, that keeping surplus equity violates the Takings Clause. So a lower court ruled that the Pungs were entitled to the surplus. But the court held that the County only had to hand over the surplus proceeds from a poorly run auction, even though the home was worth nearly double what the County sold it for. We’re arguing that the Pungs deserve payment for what was taken—a $200,000 home minus any “debt,” not the $76,000 the County drove the price down to under poor auction processes minus the debt. Birthright citizenship and Trump v. Barbara Here, the plaintiffs are challenging Trump’s executive order that purported to narrow birthright citizenship. The Citizenship Clause was primarily concerned with granting birthright citizenship to recently freed slaves after the Civil War. It was a response to Dred Scott, which said that slaves or their descendants did not have citizenship, but the Framers used expansive language that broadly granted citizenship upon birth. The Framers couldn’t have contemplated the phenomenon of widescale illegal immigration, so the question is, how do we apply that language to modern circumstances? As the Chief Justice said at oral argument, it’s a different world, but same Constitution. Is the text’s underlying principle something more narrow, like protecting people who are domiciled in the United States, or was it intended to apply broadly with few exceptions—children of ambassadors and enemy occupiers? The longstanding view has been the latter. At oral argument, several justices appeared unwilling to accept an interpretation of the Fourteenth Amendment that would dramatically depart from longstanding historical practice and precedent. So the more interesting legal fight may ultimately become procedural: What’s the scope of the injunction, as well as judicial review. Not 1 but 2 2nd Amendment cases: United States v. Hemani and Wolford v. Lopez To understand these cases, you need to understand Bruen. In 2022, the Court junked the old “means-ends” balancing test—where courts weighed the government’s interest against the burden on gun rights—and replaced it with a history-and-tradition test. If a firearms regulation doesn’t have a historical analogue rooted in the founding era, it’s presumptively unconstitutional. Simple enough in theory. Absolute chaos in practice. And I happen to think overly reliant on history, because the Constitution protects principles, not practices. Lower courts have applied the test in different ways. Some demand near-identical historical twins—a specific 18th-century law that did exactly what the modern one does. Others accept broader regulatory traditions that merely echo the challenged law. Hemani and Wolford are helping shape the fallout. United States v. Hemani involves a gunowner who was charged under 18 U.S.C. §922(g)(3), which makes it a felony for anyone who “is an unlawful user of or addicted to any controlled substance” to possess a firearm. The Fifth Circuit threw out the charge, finding no adequate historical analogue for disarming someone who was sober at the time of arrest, even if he possessed marijuana and cocaine at home. The government, however, points to early American laws providing for the imprisonment of “habitual drunkards.” Wolford v. Lopez involves a Hawaii law that made it presumptively illegal to carry a concealed firearm on private property open to the public absent explicit permission. The Supreme Court has previously said that Bruen left the “sensitive places” doctrine intact, but the effect of switching the presumption here and expanding the scope of sensitive places was to effectively ban concealed carry on 97 percent of the landmass, including beaches, shopping malls, and many other public places. Watch for Justice Thomas (the Bruen author) to defend his framework’s rigor, and for Chief Justice Roberts and Justice Barrett to search for a more administrable middle ground. More exciting legal nerdery: APB trying to get to SCOTUS, speaking on TV, and defending winemakers I asked the Supreme Court to take up our case on compelled speech—a case that elicited dissentals from Judges Bumatay, VanDyke, and Tung at the Ninth Circuit—and which has vast implications for freedom of thought. It involves a California law requiring all continuing medical education (CME) courses—no matter the topic—to include lessons on “implicit bias.” Even highly technical lectures (like retinal tumors) must carry CA’s message that implicit bias (unconscious racism) leads to disparities in care. Our clients are Dr. Azadeh Khatibi, who fled Tehran at age six to escape the repression of revolutionary Iran for the promise of freedom in America, and Do No Harm. Both disagree that implicit bias is the main driver of disparities and object to being forced to teach it. Stay tuned to see if the Court takes it up. Another client, Hoopes Winery, has come out with a wine in honor of our lawsuit! You may recall the family winery is being slapped with millions of dollars in fines and fees for allegedly allowing the public to taste the same wine they may legally purchase. Now they are releasing an “Eighth Amendment” wine, noting that it’s “wine without the excessive fining.” That’s especially clever because they’re not only referring to the Excessive Fines claim we made in the lawsuit, but to the fact that “fining” is a term in winemaking, and means mixing in non-wine materials with the wine. Wanna read a fascinating tale about Supreme Court intrigue? Read my SCOTUSblog column on Hugo Black, John Marshall Harlan II, and strange judicial bedfellows. I spoke with Jesse Weber about the Supreme Court’s recent mifepristone decisions. Buckle up. June is coming. The post The Calm Before the Avalanche appeared first on Pacific Legal Foundation.