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Key Issues Moving Through the MAGA-hijacked Courts
(Updated October 6, 2024)

An anti-democracy faction has hijacked and now controls a durable 6-3 majority on the U.S. Supreme Court. This new supermajority dedicated its first four years to achieving some of the right-wing legal movement’s biggest targets: eliminating the constitutional right to an abortion, stopping affirmative action in higher education, eroding the separation of church and state, and ending deference to executive agencies.

 

But the Court’s MAGA majority is far from done. 

 

This continually updated resource catalogs cases likely headed to the Court this term and beyond. They include attempts to ban abortion nationwide, strike down state and federal gun safety laws, gut what’s left of the Voting Rights Act, bar private race-conscious programs, declare independent executive agencies unconstitutional and health and safety regulations illegal, enable anti-transgender discrimination, bless sectarian religion in public schools, and allow states to usurp the federal government’s immigration policies.  And then there are the cases designed to get the Court to interfere with or overturn the 2024 election.

Repro Freedoms

Reproductive Freedoms

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Is access to the abortion medicine known as mifepristone legal?

 

  • In Alliance for Hippocratic Medicine last term, the Supreme Court ruled only that the group didn’t have standing to challenge the FDA’s approvals of mifepristone or the legality of its distribution across state lines.

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  • The 5th Circuit, following the Supreme Court’s order, remanded the case to anti-abortion Trump-appointee Judge Matthew Kacsmaryk, who allowed Kansas, Idaho, and Missouri to intervene as co-plaintiffs in the litigation in January. If Kacsmaryk finds the case can proceed with the state plaintiffs even though the original plaintiffs are off the case, then the matter may head back up towards the Supreme Court.

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  • Status: Kacsmaryk reactivated the docket in September, granting admission to his court for a lawyer from the Kansas Attorney General’s office. 

 

Additional context:

 

  • Irrespective of the procedural posture, a court may not only again invalidate the FDA’s mifepristone approvals but also revive the Comstock Act to criminalize the pill’s distribution.

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  • A second Trump administration, following Project 2025’s blueprint, could also revoke FDA approval and use the Comstock Act to bar distribution of mifepristone. States and individuals would bring suit against such actions, all but guaranteeing Supreme Court review.

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Can states that criminally ban abortion except to save the life of the pregnant patient defy federal law that requires emergency rooms to provide abortions to protect and stabilize a person’s health?

 

  • The Supreme Court last term dodged the question in the Moyle case, but the Court’s right-wing majority encouraged Idaho and its Republican-controlled legislature to argue in the 9th Circuit that Congress exceeded its Spending Clause power when it required hospitals that receive Medicare funding to follow federal law regardless of conflicting state criminal law.

    • Idaho’s legislature has followed the Supreme Court majority’s advice in its new brief to the 9th Circuit. The argument calls into question not only a core tenet of long-standing federal pre-emption precedents, but also Congress’s power to set national policy and provide a social safety net.

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  • The 5th Circuit said federal law does not require emergency abortion care and blocked HHS from requiring it in Texas. That injunction remains in effect.

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  • Status: The 9th Circuit will hold en banc oral argument during the week of December 9, 2024. The Supreme Court scheduled its consideration of whether to review the 5th Circuit decision for the justices' private conference on September 30, 2024.

 

 

Do minors have a right to access contraception?

 

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  • His decision was based partly on his view that a 1977 Supreme Court precedent forbidding states from imposing blanket parental consent requirements for minors to obtain contraception is “in doubt.” In support of this position, he cited Justice Thomas’s concurrence in the Dobbs case asserting that Griswold v. Connecticut, which protects access to contraception, is “demonstrably erroneous.”

 

Additional context:

 

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  • Status: The Justice Department did not seek Supreme Court review.

 

 

Can the federal government cut off family planning program funding to states that refuse to provide abortion-related counseling and referral to patients who request it?

 

  • The 6th and 10th Circuits said likely yes, both over dissenting opinions.

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  • Status: The Supreme Court, over the dissents of Justices Thomas, Alito, and Gorsuch, refused Oklahoma’s request to stay the 10th Circuit’s ruling, but the states are likely to challenge the ruling on the merits.

 

 

Are abortion-related workplace accommodations legal?

 

  • A Trump-appointed Louisiana district court judge blocked Biden’s EEOC rule requiring employers to provide workers with abortion-related accommodations, holding that the EEOC “exceeded its statutory authority to implement the PWFA and, in doing so, both unlawfully expropriated the authority of Congress and encroached upon the sovereignty” of states that ban abortion.

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  • A Trump-appointed North Dakota district court judge blocked the rule as a likely violation of the Religious Freedom Restoration Act.

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  • An Obama-appointed Arkansas district court judge upheld the same rule, finding Tennessee and its fellow Republican-led plaintiff states did not have standing. The Arkansas district court judge also assessed the merits and found the rule valid using Chevron deference, which had not yet been overruled by the Supreme Court in Loper Bright.

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  • Status: The Biden Administration did not appeal the Louisiana preliminary injunction and the case continues in his court. The plaintiff states appealed the Arkansas court’s order to the 8th Circuit, which heard oral argument on September 24, 2024.

 

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Can states stop crisis pregnancy centers from promoting unproven and unsafe “abortion pill reversal” treatments?

 

  • A Trump-appointed New York district court judge blocked New York Attorney General Letitia James from enforcing state consumer protection laws against plaintiff CPCs because their referrals were protected 1st Amendment speech.

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Is abortion legal?

 

  • Groups seeking to use the notion of “fetal personhood” to ban abortion everywhere have their sights set on the Supreme Court declaring abortion unconstitutional under the 14th Amendment (despite its plain language that says rights accrue to people “born” in the United States). However, for now, their best shot is for state supreme courts captured by Leo and other right-wing funders to recognize fetal personhood under state constitutions. The new Florida Supreme Court majority has already suggested that fetal personhood would trump a state constitutional amendment protecting abortion rights that is on the Florida ballot this fall.

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  • A revived Comstock Act could also be interpreted by courts or weaponized by the Department of Justice or by regulation to effectuate a de facto national abortion ban by criminalizing the interstate and foreign commerce supply chain of medicine and medical equipment used for abortion.

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Gun Safety

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Can states ban assault weapons?

 

  • The 4th Circuit, sitting en banc, upheld Maryland’s assault weapons ban as constitutional, with all but one of the appeals court’s Republican appointees in dissent. 

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  • The 3rd Circuit refused to block Delaware’s assault weapons ban, citing the need for a more developed record.

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  • Status: The Maryland plaintiffs have now petitioned the Supreme Court to reverse the 4th Circuit’s decision and strike down the state’s assault weapons ban.

 

 

What counts as a “sensitive place” where guns can be banned?

 

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  • Challenges to similar laws in New Jersey and Maryland are pending in the courts of appeals.

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  • A Trump-appointed federal judge in Illinois said the state’s firearm ban on public transportation is unconstitutional. Illinois has appealed to the 7th Circuit.

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Can the federal government ban people convicted of felonies from possessing guns?

 

  • The 3rd Circuit had split from the 8th and 10th Circuits before the Supreme Court vacated those decisions and sent the cases back down to the appeals courts to reconsider in light of Rahimi. 

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  • The 4th, 5th, and 7th Circuits rejected facial challenges to the federal ban without deciding whether people convicted on non-violent felonies could be exempted from the law.

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  • The 11th Circuit lined up with the now-vacated 8th and 10th Circuit rulings to uphold the law banning people convicted of felonies from possessing guns in all circumstances. 

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  • The 6th Circuit rejected an as-applied challenge from a defendant deemed dangerous while the panel suggested people convicted of non-violent felonies could be exempted from the ban. 

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  • The 3rd Circuit has also held that convicted felons on supervised release do not have a 2nd Amendment right to possess firearms.

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Can states ban 18-20 year-olds from purchasing or possessing guns?

 

  • A 3rd Circuit Republican-appointed majority struck down Pennsylvania’s ban on people under 21 from publicly carrying firearms during statewide emergencies. 

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  • The 4th Circuit upheld Maryland’s law prohibiting people under 21 from obtaining licenses to purchase and carry firearms.

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  • The 8th Circuit struck down Minnesota’s law banning 18-20 year olds from applying for a public carry license.

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  • The 11th Circuit vacated and remanded a district court ruling finding plaintiffs lacked standing to challenge Georgia’s ban on adults under the age of 21 from obtaining a license to carry firearms. Further proceedings in this case have been stayed pending the 11th Circuit’s decision in the Florida case. 

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  • ​​​The 9th Circuit vacated its ruling blocking California’s law banning people under 21 from purchasing long guns and semiautomatic centerfire rifles, and remanded the case back to the district court—where the case remains—for reconsideration under Bruen.

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  • A Trump-appointed federal judge in Texas blocked the state’s ban on 18-20 year-olds from applying for a license to carry a handgun. Texas dropped its appeal before the 5th Circuit. 

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  • A Republican-appointed federal judge in Virginia blocked the federal government from enforcing its ban on federally licensed firearm dealers from selling handguns to people under 21 years old. The 4th Circuit held this case’s appeal in abeyance pending the decision in the challenge to Maryland’s law. 

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  • Status: Pennsylvania has asked SCOTUS to reverse the 3rd Circuit ruling. The challengers to Maryland’s law have until November to seek Supreme Court review of the 4th Circuit’s ruling.

 

Additional context:

 

 

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Can the federal government ban illegal drug users from possessing guns?

 

  • The 5th Circuit upheld the ban as a facial matter, but said enforcing it against “nonviolent, occasional drug users of when of sound mind” violates the 2nd Amendment. 

    • The ruling was consistent with a post-Bruen decision that the Supreme Court sent back for the 5th Circuit to reconsider in light of Rahimi and will be reargued on October 8, 2024. 

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  • Status: The Justice Department is likely to seek Supreme Court review when the appeals processes conclude.

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Can the federal government ban people under felony indictment from buying a new gun?

 

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  • Status: The Supreme Court scheduled its consideration of a petition to review the issue for the justices' private conference on September 30, 2024.

 

 

Can the federal government ban machine guns?

 

  • A Trump-appointed judge in Kansas struck down the federal ban on possessing machine guns.

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  • Status: The Justice Department has appealed to the 10th Circuit.

 

 

Can the federal government ban the possession of guns with removed, obliterated, or altered serial numbers?

 

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  • Status: The challenger has until early November to request Supreme Court review.

 

 

Can the federal government ban undocumented immigrants from possessing guns?

 

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  • Status: The challenger in the 5th Circuit decision has until late November to ask the Supreme Court for review.

 

 

Can the federal government ban guns in U.S. post offices?

 

  • A Trump-appointed judge in Florida struck down the federal ban on possessing guns in U.S. post offices. 

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  • Status: The case is now on appeal in the 11th Circuit. 

 

 

Is the ghost gun ban legal?

 

 

 

Is the rule limiting the use of stabilizing braces legal?

 

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  • Judge Reed O’Connor of the Northern District of Texas vacated the final rule as arbitrary and capricious in an order now on appeal before the 5th Circuit.

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  • Status: The Justice Department has not asked the Supreme Court to stay the 8th Circuit’s order, and this issue will likely reach the justices once the appeals processes conclude.

 

 

Is the background check requirement for private gun sales legal?

 

  • Judge Matthew Kacsmaryk declared that the Biden Administration exceeded its authority by including people at gun shows plainly engaged in the business of selling firearms as those "engaged in the business" of selling firearms, therefore subjecting them to Brady background check rules under the 2022 Bipartisan Safer Communities Act. 

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  • A federal judge in Kansas refused to block the same rule.

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Can Mexico hold gun manufacturers liable for aiding and abetting cartels’ damage to the country?

 

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Does New Jersey’s investigation of Smith & Wesson for violating state consumer protection laws violate the corporation’s asserted constitutional rights?

 

  • The 3rd Circuit declined to reach the question over a dissent from the panel’s Trump appointee.

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  • Status: Smith & Wesson has not asked the Supreme Court to review. 

Gun Safety

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Civil Rights

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Does federal civil rights law permit claims based on disparate impact?

 

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  • In his concurring opinion in the SFFA case, Justice Gorsuch, joined by Justice Thomas, suggested that Title VI does not authorize disparate impact claims.

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  • A Trump-appointed judge in Louisiana also declared that Title VI of the Civil Rights Act does not permit disparate impact liability claims. The complaint was brought by then-state Attorney General Jeff Landry.

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  • Status: The Justice Department has yet to file a notice of appeal to the 5th Circuit in the Louisiana case.

 

Are race-neutral efforts to diversify student bodies unconstitutional?

 

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  • The Supreme Court turned away a similar case last term over the dissents of Justices Thomas and Alito.

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  • Status: The Supreme Court scheduled its consideration of the petition to review the 1st Circuit decision for the justices' private conference on September 30, 2024.

 

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Do private companies’ race-conscious programs violate federal civil rights law?

 

  • The 11th Circuit declared that a venture capital fund’s contest that was open only to businesses owned by Black women violated a federal civil rights law banning race discrimination in contracts. 

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  • The 2nd Circuit held plaintiffs did not have standing to sue Pfizer for its fellowship program for underrepresented minorities. 

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  • Judge Reed O’Connor of the Northern District of Texas blocked a nonprofit organization’s grant program to small businesses owned by minorities, women, or LGBTQ+ people.

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  • Status: The 11th Circuit parties have settled, while the 2nd Circuit plaintiffs are seeking rehearing. Judge O’Connor’s case docket does not indicate whether the defendants filed a notice of appeal to the 5th Circuit.

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Are the military service academies’ affirmative action programs unconstitutional?

 

  • The Supreme Court in SFFA said its opinion striking down Harvard’s and UNC’s affirmative action programs did not apply to the military service academies. 

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  • SFFA then brought separate challenges against West Point and the Naval Academy, but the lower court judges refused to block the policies while the cases played out.

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  • The Supreme Court refused to block West Point’s admissions policy pending SFFA’s appeal to the 2nd Circuit, citing the undeveloped record.

 

  • Status: The district court in the West Point case has scheduled discovery to conclude by September 2025. The Naval Academy case began its 10-day bench trial on September 16, 2024.

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Does workplace DEI training violate federal civil rights law?

 

  • An all-Republican-appointed 8th Circuit panel let a Minnesota state worker move forward with his claims of discrimination and retaliation for seeking a religious exemption from the state’s DEI training.

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  • A pair of Republican-appointed judges on the 10th Circuit were sympathetic to the claim that DEI training can create a hostile work environment even though they threw out a Colorado prison guard’s claim as inadequate. 

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  • Status: The Minnesota district court dismissed the case.

 

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Is the Minority Business Development Act constitutional?

 

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Is the Disadvantaged Business Enterprise program constitutional?

 

  • A federal district judge in Kentucky said the program, which Congress created in 1983 to assist minority- and women-owned businesses obtain state transportation department contracts, likely violates the constitution’s guarantee of equal protection.

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  • Status: The Justice Department has not yet appealed to the 6th Circuit.

Civil Rights

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Voting Rights & Election Law

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Is Section 2 of the Voting Rights Act unconstitutional?

 

  • When the Supreme Court’s right-wing majority gutted Section 5 of the Voting Rights Act’s preclearance rules in 2013’s Shelby County, it gave assurances that Section 2 was still valid. But in providing his fifth vote to uphold Section 2 against Alabama’s constitutional attack in 2023, Justice Brett Kavanaugh called Section 2’s continued survival into question by suggesting that Congress’s “authority to conduct race-based redistricting cannot extend indefinitely into the future.”

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  • Alabama got the memo and reenacted its illegal maps. Indeed, one of Leonard Leo’s key operatives was involved in the Alabama effort to evade drawing new maps, and other allies claimed they had “intelligence” that Kavanaugh was prepared to switch his vote on Section 2. After a state outlet exposed this scheme, the gambit failed and Alabama adopted new maps. 

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  • Alabama, however, is now pressing the same arguments for its 2026 maps. Louisiana and Georgia–with the support of Alabama and 11 other states–have also taken a Kavanaugh-like approach in their own map battles, in the hopes that Kavanaugh will follow through and vote to overturn Section 2. 

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  • Status: The Alabama case is pending in the district court, while the Louisiana and Georgia cases are before the courts of appeals.

 

 

Can private plaintiffs bring suit under Section 2?

 

  • Justices Thomas and Gorsuch have maintained that private plaintiffs cannot bring suit under Section 2 at all. This view flies in the face of the Act’s entire enforcement history and would render the law a dead letter when an administration opposed to voting rights is in power. 

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  • The circuits are split on this issue:

    • Some lower courts, including the 8th Circuit, have adopted Thomas and Gorsuch’s view, with Georgia now pressing the issue before the 11th Circuit.

    • ​​The 5th Circuit reaffirmed the long-held understanding that private plaintiffs can bring suit under Section 2 even as Louisiana continues to argue otherwise, and a three-judge federal district court in Mississippi has recently followed that controlling precedent while rejecting the 8th Circuit’s contrary reasoning.

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  • Status: The plaintiffs in the 8th Circuit case did not seek Supreme Court review, but the 5th Circuit may soon provide a new opportunity for the Supreme Court to weigh in.

 

 

Will the Supreme Court interfere with the 2024 election?

 

  • In the Trump v. United States immunity decision, the justices on the Supreme Court’s right-wing majority have shown a willingness to misapply the law and the Constitution to assist their political allies electorally.

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  • The right-wing majority has also propounded its reading of the so-called Purcell principle, which it has invoked to permit states to use illegal voting maps if challenges come as far out as 9 months before Election Day, for partisan outcomes.

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  • The Supreme Court’s 2023 decision in Moore v. Harper reserved the right for the justices to override state courts’ interpretations of state election laws when the rulings “so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.” 

    • The Wisconsin Supreme Court’s new Democratic majority has permitted ballot dropboxes, rejecting the state’s Republican-controlled legislature’s argument that state law banned ballot dropboxes. The ruling overruled a 2022 decision by the Wisconsin Supreme Court’s then-Republican majority banning ballot dropboxes. 

    • The Republican National Committee is in Michigan, North Carolina, and Pennsylvania state courts arguing those states’ determinations on counting certain mail-in ballots violate state election statutes, setting up potential Supreme Court review under Moore v. Harper should those states’ highest courts decide otherwise.

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  • The Supreme Court permitted Arizona to require its residents to provide proof of citizenship to register to vote using its state voter registration application, potentially disenfranchising thousands of voters in the 2024 election.

    • A federal district court blocked the state law as preempted by the federal National Voter Registration Act and contrary to a 2018 consent decree, and the 9th Circuit refused to stay the order pending appeal.

    • The Republican National Committee and Arizona’s Republican leaders also sought to enforce provisions of its state law requiring proof of citizenship for those voting by mail and for president, arguing the constitution gives states ultimate authority over registration and voting in presidential elections, but the Supreme Court kept those provisions blocked pending appeal.

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  • The Republican National Committee is in federal courts challenging state laws permitting election officials to count valid mail-in ballots that arrive after Election Day.

    • A federal judge in Nevada said the RNC, NV GOP, and Trump Campaign lacked standing to challenge that state’s law permitting the counting of mail-in ballots that arrive up to 4 days after Election Day. 

      • Status: The plaintiffs have appealed to the 9th Circuit, with the opening brief due on October 30, 2024.

    • A federal judge in Mississippi said the RNC, MS GOP, and other plaintiffs had standing to sue, but their claims against that state’s law permitting the counting of mail-in ballots that arrive up to 5 days after Election Day failed on the merits.

      • Status: The plaintiffs have appealed to the 5th Circuit, which held oral arguments on September 24, 2024.

    • In a similar suit brought by Republican candidates in Illinois, the 7th Circuit said the plaintiffs lacked standing to challenge that state’s law permitting election officials to count valid mail-in ballots that arrive up to two weeks after Election Day. 

      • Status: The plaintiffs have not yet sought Supreme Court review.

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  • Robert F. Kennedy, Jr., asked the justices to force his name onto New York’s ballot, even as he’s asked federal courts to force his name off of Michigan’s ballot. 

    • Status: The Supreme Court denied Kennedy’s New York request. He has not yet sought Supreme Court review of his Michigan case, which he lost in the 6th Circuit, with the panel’s one Republican appointee in dissent.

Voting & Elections

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Federal Agencies &

Executive Authority

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Are executive agencies unconstitutional? 

 

  • Over Justice Thomas’s dissent, the Court denied the petition from Don McGahn, Trump’s former White House Counsel and key player on judicial nominations, to revive the “nondelegation doctrine”–a pre-New Deal theory designed to render nearly every executive agency unconstitutional. But other challenges are coming up from the lower courts. 

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  • In 2022, the Supreme Court invented the “major questions doctrine,” which forbids executive agencies from regulating on matters of great political or economic concern if Congress did not clearly authorize them to do so. Last term, the Court overturned Chevron so that federal judges no longer must defer to agencies’ expertise in interpreting statutes.

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  • But the nondelegation doctrine would forbid Congress from even clearly delegating to agencies the power to regulate industry on matters big or small.

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  • McGahn’s suit was against OSHA’s ability to regulate workplace safety, but other lawyers and judges in the right-wing legal ecosystem are seeking to revive the nondelegation doctrine, with the 5th Circuit creating a circuit split with the 6th and 11th Circuits in coordinated challenges to the FCC, while the 10th Circuit, over a Republican appointee’s sweeping dissent, declined to disturb the President’s ability to set federal minimum wages. 

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  • Status: The Supreme Court had planned to consider the petitions to review the decisions from the 6th and 11th Circuits at its private conference on September 30, 2024, but has since rescheduled. The petitions to review the 5th and 10th Circuit decisions have been filed but not yet scheduled for conference.

 

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Are independent agencies unconstitutional? 

 

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  • Kroger is challenging the FTC’s antitrust action against the supermarket chain’s merger with Albertsons by claiming the agency’s administrative law judge is unconstitutionally insulated from removal and the proceedings unconstitutionally encroach on the judiciary’s Article III powers. 

    • The lawsuit before a Trump-appointed federal judge in Ohio is designed not only to neutralize the in-house proceedings against the Kroger-Albertsons merger, but also counter the FTC’s antitrust lawsuit against the merger before a judge in Oregon.

    • Kroger’s arguments rely on the recent decisions from the Supreme Court’s right-wing majority weakening the independence of executive agencies. 

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Are administrative law judges constitutional? 

 

  • A Trump-appointed judge in Texas said likely not.

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Can President Biden provide student loan relief?

 

  • A pair of federal judges in Missouri and Kansas have blocked President Biden’s SAVE program, invoking the same major questions doctrine the Supreme Court’s right-wing supermajority used to strike down Biden’s proposed student debt cancellation plan in 2023 in Biden v. Nebraska.​​

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  • The 8th Circuit expanded the Missouri court’s injunction against the Biden Administration pending appeal, which the Supreme Court refused to lift, mooting the 10th Circuit’s stay of the Kansas court’s injunction pending appeal. ​​

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  • After Biden v. Nebraska, President Biden announced that the Secretary of Education would begin a rule making process under the Higher Education Act to explore a narrower cancellation program in line with his statutory authority. Republican state attorneys general sued and a federal judge in Georgia issued a temporary restraining order against any implementation of the proposed rule.

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  • Status: The 8th Circuit, following the Supreme Court’s “expect[ation] that the Court of Appeals will render its decision with appropriate dispatch,” has scheduled oral argument on the SAVE program’s legality for October 24, 2024. The federal district judge in Georgia transferred his case to a federal judge in Missouri, who then blocked the proposed debt cancellation rule.

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Can the FTC ban non-compete clauses?

 

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  • Status: The Justice Department appealed the Florida order to the 11th Circuit.

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​Can the Labor Department base workers’ overtime eligibility on their salary level?

 

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  • Status: Summary judgment briefing completed on September 19, 2024.

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Can the Labor Department bar employers from retaliating against farmworkers with H-2A visas who engage in organizing activity?

 

  • A Republican-appointed federal judge in Georgia said likely not in a suit brought by 17 Republican-controlled states.

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Is the Biden Administration’s “tip-credit” rule legal?

 

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  • Status: The Justice Department has until late November to seek Supreme Court review.

 

Is the Biden Administration’s rescission of Trump’s proxy voting advice business rule legal?

 

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  • Status: The Justice Department has not sought Supreme Court review of the 5th Circuit decision, while the Chamber of Commerce has until mid-December to seek Supreme Court review of the 6th Circuit decision.

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Can the Department of Transportation require airlines to disclose baggage, change, and cancellation fees to customers?

 

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Federal Agencies

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LGBTQ+ Rights

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Do laws discriminating against transgender people violate the Equal Protection Clause?

 

  • The Supreme Court will hear a challenge to Tennessee’s ban on gender-affirming medical treatment for transgender minors. The ultimate decision, expected by July 2025, could hold that the Equal Protection Clause does not prevent states from passing laws discriminating against transgender kids and adults. 

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  • Status: The Supreme Court has not yet set the date for oral argument in the Tennessee case.

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Does federal civil rights law protect against sexual orientation and gender identity discrimination in education and health care?

 

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  • Status: The 6th Circuit will hear arguments on October 30, 2024, and the 5th Circuit will hear arguments on November 4, 2024, with the issue likely to return to the Supreme Court by early 2025.

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Can states ban conversion therapy on minors?

 

  • 10th Circuit has said yes, deepening an existing circuit split and making Supreme Court review more likely after the justices last term declined to resolve the split between the 9th Circuit and the 11th Circuit over the dissents of Thomas, Alito, and Kavanaugh.

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  • Status: Colorado’s challengers have until late December to seek Supreme Court review.

 

Can employers invoke a religious exception to Bostock?

 

  • The 5th Circuit held that RFRA provides employers a religious exemption to Title VII’s bar on discrimination on the basis of sexual orientation and gender identity.

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  • Status: The 5th Circuit parties have not sought Supreme Court review, and the district court has not yet reopened proceedings on remand. 

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Are public schools’ anti-bullying codes of conduct unconstitutional?

 

  • Far-right front group Parents Defending Education, often alongside the anti-LGBTQ litigation shop Alliance Defending Freedom, has been suing school districts around the country, bringing First Amendment challenges to policies designed to protect against bullying and foster inclusion for LGBTQ+ students. 

    • The 6th Circuit rejected PDE’s request to block an Ohio public school district’s anti-bullying policy protecting transgender students from harassment.

    • The 1st Circuit rejected ADF’s challenge, supported by PDE, to a Massachusetts school district’s anti-bullying policy.

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  • Status: The 6th Circuit is considering whether to rehear the Ohio case en banc, and the Supreme Court has given the Massachusetts plaintiffs until October 9th, 2024, to request review.

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Can states remove school library books and ban classroom curricula regarding sexual orientation and gender identity?

 

  • The 8th Circuit reversed a lower court order blocking Iowa’s anti-LGBTQ+ law. 

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Can states criminalize drag shows?

 

  • The 6th Circuit threw out a First Amendment challenge to Tennessee’s criminal ban on drag shows, saying the plaintiffs lacked standing. 

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  • Status: The 6th Circuit denied the challengers’ petition for en banc rehearing.

LGBTQ+ Rights

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Environment​

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Can states and local governments use state law to hold Big Oil accountable for damages to their communities caused by climate change?

 

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Can the EPA allow California to set vehicle emissions standards for its state that have the market effect of making that the standard for all vehicles?

 

  • In 2013, Obama’s EPA allowed California to set a higher vehicle emissions standard than the federal government’s. In 2019, Trump’s EPA forbade California from leading the way. Biden then reinstated the Obama-era rule in 2021. 

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  • More than a dozen Republican attorneys general sued to restore the Trump rule, but the D.C. Circuit threw their suit out. 

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  • Status: The Republican attorneys general have petitioned the Supreme Court to review the D.C. Circuit’s decision.

Environment

Religion

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Can states require public schools to display the Ten Commandments in their classrooms?

 

  • The ACLU has sued Louisiana to block the state’s new Ten Commandments law, which is plainly unconstitutional under existing Supreme Court precedents. 

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  • Louisiana adopted its Ten Commandments law with the express hopes that the current Court’s right-wing supermajority will overturn those precedents and adopt their dissenters’ views.

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Can states require public schools to incorporate the Bible and the 10 Commandments into their curricula? 

 

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  • Status: The case is now back in state court, but Oklahoma can again try to remove the case to federal district court, or, failing that, can petition the U.S. Supreme Court after an Oklahoma court issues a decision on the federal questions at issue.

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Can states set up religious charter schools?

 

  • The Oklahoma Supreme Court blocked the state’s charter school board from setting up a sectarian Catholic charter school, finding the contract not only violated the state constitution, but also the federal constitution’s Establishment Clause. The dissent said more recent SCOTUS precedents allow–if not require–Oklahoma to approve sectarian charter schools.

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Religion

Immigration​

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Can states override the Constitution’s express grant of power over immigration to Congress?

 

  • Texas’s SB4 is a direct attempt to get the Supreme Court to overrule its 2012 decision reiterating long-standing federal precedents recognizing the federal government’s sole authority over border and immigration matters, under the plain language of the Constitution.

 

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Can Texas put razor-wire buoys in the Rio Grande to deter border crossings?

 

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  • Judge Ho, a likely SCOTUS shortlister in a second Trump term, went further to say Texas’s invocation of the constitution’s Invasions Clause is both correct and judicially unreviewable.

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Is DACA legal?

 

  • A right-wing federal judge in Texas said no, and the 5th Circuit is expected to agree on appeal consistent with its previous ruling.

    • This is the same federal judge that blocked DAPA during the Obama administration. The 5th Circuit affirmed, and the Supreme Court was on its way doing the same before deadlocking 4-4 after Justice Scalia died. 

    • Trump sought to rescind DACA using the 5th Circuit’s reasoning in the DAPA case, but the Supreme Court rejected the rescission by a 5-4 vote. Chief Justice Roberts’s opinion for himself and the four liberal justices, however, should be read as an expression of his irritation with the Trump administration’s sloppy lawyering, rather than his endorsement of the DACA program’s legality. Even so, Roberts is now one of six, rather than five, right-wing justices. 

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Is the Keeping Families Together program legal?

 

  • A Trump-appointed judge entered an administrative stay blocking the program as litigation proceeds after Texas and 15 other states sued the Biden Administration claiming its “parole in place” rule is unlawful.

    • The program provides a process for undocumented spouses and stepchildren of U.S. citizens to obtain a Green Card without first leaving the country to be processed by a U.S. consulate abroad.

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Immigration
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