With its six-justice conservative supermajority, the Supreme Court has made a sharp right pivot in recent years, eliminating federal abortion rights, certain gun restrictions, and protections for the administrative state while also expanding executive power. To help you keep track of what’s happening this term, we’ll be periodically rounding up the biggest developments in Keeping Up With the Supreme Court.
Purging Voter Rolls Right Before an Election Is Now Legal—Maybe
The court has had a sleepy start to its new term, as it seemed to keep heavy cases off of the docket in anticipation of postelection litigation that never materialized because Donald Trump won decisively. Still, there were some noteworthy developments: Less than a week before the election, the high court issued an order in Beals v. Virginia Coalition for Immigrant Rights that is sure to influence future U.S. elections and inspire some states to push the boundaries of voter suppression.
This case went through the shadow docket, which means that while the justices sided with the state of Virginia, they did not provide a written explanation of their decision. (The three liberals did note their dissent, so we can assume it was a 6–3 split.) The ruling seems to fly in the face of the National Voter Registration Act, which explicitly prohibits the systematic removal of ineligible voters from official lists starting 90 days before a federal election. This is pretty much exactly what Republican Gov. Glenn Youngkin did with his eleventh-hour executive order that mandated Virginia election officials use data from the state’s Department of Motor Vehicles to identify and cancel voter registrations of residents suspected of being noncitizens, unless the resident could verify their citizenship within 14 days. The Biden administration, along with civic and immigrant rights groups, challenged the order in federal court—and in late October, a district court judge sided with them.
Youngkin’s office then persuaded the Supreme Court to take up the issue and ultimately reject the lower-court ruling. The state of Virginia claimed that since noncitizens are not legally allowed to vote, federal law doesn’t protect them. It also insisted that Youngkin’s purge uses an “individualized process” that targets residents who filled out a “personal attestation of noncitizenship” with the state’s DMV. However, legal U.S. citizens were caught up in the purge. That’s one thing the NVR Act was enacted to stop: Since purges are imperfect and cause confusion, they can threaten Americans’ civil rights in the weeks leading up to an election.
“The Supreme Court’s action is genuinely shocking,” as Slate’s Mark Joseph Stern wrote. “It has been settled law for more than three decades that states can’t do exactly what Virginia has done here.” Yet the high court stepped in and upended settled law while also signaling it’s open to further restricting access to the ballot box.
Transgender Rights Are in Serious Danger
Skrmetti v. U.S. had its day at the Supreme Court this week, and it did not bode well for trans children across the country who hoped to finally shoot down legislative attempts to ban their access to critical health care. During oral arguments, the conservative justices appeared unconvinced by the plaintiffs’ arguments and ready to roll back decades-old sex discrimination precedents.
This case is about a Tennessee law passed in 2023 that bans gender-affirming medical care for minors, including puberty blockers and hormone therapy, that “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s [biological] sex.” If a health care provider violates this law, they can face civil penalties of $25,000, professional discipline, and lawsuits. A group of transgender youth, along with a Tennessee doctor, sued the state arguing the law was in violation of the equal protection clause of the 14th Amendment. President Joe Biden’s Justice Department joined the lawsuit, siding with the plaintiffs.
At its core, this should be an open-and-shut case about gender discrimination. As Slate’s Mark Joseph Stern explained, if a cisgender boy in Tennessee wanted to take testosterone to commence the development of male sex characteristics, he would be allowed to do so under the law. However, if a transgender boy of the exact same age wanted the exact same drug for the exact same reason, he would be denied, solely because he had a different sex assigned at birth. The court’s conservative justices didn’t seem to see it this way though, with Justice Brett Kavanaugh arguing that “the Constitution doesn’t take sides on how to resolve that medical and policy debate.” Solicitor General Elizabeth Prelogar quickly pushed back, noting that “the Constitution takes a position that individuals are entitled to equal protection of the law.”
Curiously, Justice Neil Gorsuch was silent during oral arguments, despite writing a landmark opinion that affirmed that LGBTQ+ discrimination should indeed be considered sex discrimination in Bostock v. Clayton County. Even Chief Justice John Roberts agreed with Gorsuch in Bostock, though during arguments he seemed poised to fall in line with the court’s conservative majority. The liberal justices tried to underscore the danger of Tennessee’s arguments, with Justice Ketanji Brown Jackson equating the state’s reasoning to the losing side in Loving v. Virginia, a case in which the state of Virginia defended a miscegenation ban by arguing that states could discriminate on the basis of race so long as states did so “equally” between races. Nonetheless, a clear majority appeared prepared to buy what Tennessee was selling, seeming poised to cut off care for transgender youth in the 25 states that now ban it and doing serious damage to the constitutional doctrine of gender equality.
The Justices Don’t Look Inclined to Save Flavored Vapes From the FDA
On Monday, the court heard arguments in a strange case with huge implications for the future of both vaping and administrative law: FDA v. Wages and White Lion Investments. The conflict centers around flavored vapes, which the tobacco industry wants federal approval to sell despite serious public health concerns that the flavors will disproportionately attract teenagers. So far, the Food and Drug Administration has refused applications to approve a vast array of flavored vapes, concluding that the companies failed to demonstrate that their products would be more likely to help adults quit cigarettes than to get minors addicted to nicotine. (Many flavors seem designed to appeal to teens, with names like “Suicide Bunny Mother’s Milk and Cookies” and “Jimmy the Juice Man Peachy Strawberry.”) Remarkably, the U.S. Court of Appeals for the 5th Circuit overruled the FDA’s decision in an opinion riddled with factual errors and unsupported legal claims. The 5th Circuit’s ruling, if allowed to stand, would give courts even more leeway to override expert decisionmaking by federal agencies like the FDA.
Thankfully, the Supreme Court looks disinclined to go along on this wild ride. Most of the justices sounded extremely skeptical of the industry’s argument that the FDA treated vape companies unfairly in considering and rejecting their applications. Eric Heyer, who represented the industry, also candidly told the court that his clients hoped President-elect Trump would push the FDA to greenlight proposed flavors, since he promised to “save” vaping after receiving huge financial support from the tobacco industry. So while the justices will probably side with the FDA in this battle, peddlers of flavored vapes look favored to win the broader war.
Capital Punishment Is Back on the Docket
In October, the Supreme Court held oral arguments for Glossip v. Oklahoma, a case that poses a strange question: Can the courts force a state to execute someone, even if the state decides it no longer wants to go through with it?
This case stems from a legal battle that started over 25 years ago, when Richard Glossip, then 35 years old, was first accused of orchestrating a murder-for-hire scheme to kill his boss. The case went through trial twice in Oklahoma after an initial conviction was thrown out and Glossip was ultimately convicted a second time and sentenced to death, but he’s spent two decades insisting he’s innocent. In 2015, his appeal over execution methods reached the Supreme Court, under Glossip v. Gross, but the conservative majority ruled against him.
Glossip has spent the past 27 years on death row, and was scheduled for execution nine times, but last year, when Gentner F. Drummond became Oklahoma’s new attorney general, he took a renewed interest in Glossip’s case. Drummond partnered with Glossip’s attorney to appeal his client’s conviction, arguing that the two state prosecutors originally assigned to Glossip’s case allowed false testimony to be introduced during the second trial and intentionally withheld evidence that could have helped Glossip’s defense. However, Oklahoma’s Court of Criminal Appeals ruled Glossip’s lawyers should have known about any hidden evidence, and upheld his death sentence.
That decision was appealed up to the Supreme Court, and on Oct. 9, the justices held oral arguments. Justice Clarence Thomas dominated questioning and repeatedly asked whether the prosecutors accused of misconduct had been given a chance to respond to accusations that they withheld evidence, even though Glossip’s attorney confirmed multiple times that they had. Both prosecutors provided sworn statements, and Drummond had commissioned an investigation into Glossip’s case that included interviews with the prosecutors in question.
Justice Neil Gorsuch recused himself from this case since he participated in lower-court proceedings in one of Glossip’s earlier appeals. That means Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett will likely be the decisive votes in this case, but if there is a 4–4 split, the Oklahoma Court of Criminal Appeals’ decision will prevail and Glossip will continue to face execution.
The Future of Ghost Guns Is Also on the Docket
The justices are teed up to rule this term on one of the Biden administration’s most significant gun regulations in Garland v. VanDerStok, a case that questions the legality of a new federal regulation on ghost guns, do-it-yourself kits that are sold online that contain all the parts necessary to build a handgun or AR-15-style rifle. Ghost guns don’t require a background check and don’t come with a serial number, making them nearly untraceable.
When the Bureau of Alcohol, Tobacco, Firearms and Explosives first tried to implement President Joe Biden’s new rule, lower courts in Texas blocked it from taking effect, until the Supreme Court stepped in and reversed them. But U.S. District Court Judge Reed O’Connor ultimately issued another injunction that protected ghost gun manufacturers, which then prompted the Biden administration to appeal the question to the Supreme Court to settle, once and for all. During oral arguments, as Slate’s Mark Joseph Stern explained, Chief Justice John Roberts and Justice Amy Coney Barrett indicated they “have zero sympathy for the ghost gun industry, and they are unmistakably sick of this never-ending case.”
Biden’s new rule expands the definition of “firearm” to include certain parts that come in ghost gun kits, which “may readily be converted” to fire a bullet. This change would force ghost guns to be in compliance with federal gun regulations, requiring background checks and serial numbers. Six of the justices made it clear they were deeply skeptical of ghost gun manufacturers, while Clarence Thomas, Neil Gorsuch, and Samuel Alito each seemed to support them. Come 2025, none of it may matter, even if the court votes in favor of ATF, since President-elect Trump could just direct the agency to rescind this rule.
Climate Regulations Come Under Scrutiny
The Supreme Court has been accepting a spate of cases that challenge the Environmental Protection Agency’s authority to enforce rules limiting pollution. At the same time, the court has declined eight requests to block EPA rules while some litigation works its way through the lower courts. The court addressed all of them in one fell swoop through a brief order that allowed EPA rules to remain in place. Justice Brett Kavanaugh issued a statement joined by Justice Neil Gorsuch saying that although he believed “the applicants have shown strong likelihood of success on the merits as to at least some of their challenges to the Environmental Protection Agency’s rule,” he was joining the decision to allow the rules to remain in place because they wouldn’t go into effect until the lower court had reviewed the issue anyhow.
There’s a notable trend in these cases: They are about where the lawsuit should be litigated. The text of the Clean Air Act explicitly says that rules or regulations that are “nationally applicable” should be heard at the U.S. Court of Appeals for the D.C. Circuit, and anything that has to do with local or regional rules should be heard in the appeals court where they take effect. States prefer to have their cases heard by their own individual circuit appeals courts, in part because they can essentially judge-shop their claims, ensuring they’re heard by conservative courts that are more inclined to block federal regulations. In Oklahoma v. EPA and PacifiCorp v. EPA, two cases challenging the EPA’s rejection of states’ plans to implement national air quality standards in accordance with the CAA’s “good neighbor” provision, the plaintiffs want their cases heard by the 10th U.S. Circuit Court of Appeals that covers the Mountain West, while the EPA wants it heard in the D.C. Circuit, which leans further to the left. At stake for the environment is whether upwind states and energy companies have to control their emissions so they don’t impact the ability of downwind states to also meet the CAA standards.
In Environmental Protection Agency v. Calumet Shreveport Refining, LLC, a case about small oil refineries that were denied exemptions from cooperating with the CAAs Renewable Fuel Standard program and are now suing the EPA, the 5th Circuit was able to weigh in first, even though the EPA asked to transfer the case to the D.C. Circuit. The notoriously lawless, far-right 5th Circuit sided with the oil refineries. Now SCOTUS will have to decide whether the 5th Circuit’s decision can stand or whether the case must be sent to D.C.
The Supreme Court also granted review of Nuclear Regulatory Commission v. Texas, a wonky case that seeks to resolve what states should do about nuclear waste. It started after the federal Nuclear Regulatory Commission approved a temporary storage facility in Texas for nuclear waste, but the state sued, arguing the federal agency was not authorized to license temporary offsite storage facilities and could only approve permanent ones. There’s one glaring problem with this argument, as Slate’s Mark Joseph Stern explained: “There is only temporary storage of nuclear waste in this country right now. There is no permanent storage facility! It doesn’t exist!”
The case ended up with the infamous 5th Circuit, which sided with Texas and declared that no licenses for temporary storage of nuclear waste offsite from a plant are allowed, unless Congress explicitly authorizes it—a “major question.” Soon the Supreme Court will review the 5th Circuit’s opinion.
Leonard Leo Watch
Federalist Society co-chairman Leonard Leo has played an outsize role in reshaping the federal judiciary over the past few decades. Now his dark money group, the 85 Fund, has more than $1 billion to spend advancing conservative causes. But for such a powerful person, he’s largely stayed out of the spotlight—so in each installment of Keeping Up With the Supreme Court, we’ll be dedicating some time to keeping tabs on Leo’s activities.
A Right-Wing Group Tries to Take Down Climate Science
The American Energy Institute is trying to take down a decades-old effort to educate government officials, judges, business leaders, and academics on climate policy, and conservative activist Leonard Leo appears to have had a big hand in it.
AEI issued a report attacking the Environmental Law Institute, a group that’s been operating since 1969 and offers “insightful and impartial analysis” about climate change to help inform policy. The Environmental Law Institute also has a judicial education program that provides “training and resources on environmental law to more than 3,000 judges across 28 countries.” However, AEI believes this work is “corruptly influencing the courts and destroying the rule of law to promote questionable climate science.”
The report goes on to accuse ELI of interfering with climate change–related lawsuits, being “wholly aligned with the climate change plaintiffs and helps them corruptly influence judges behind closed doors.” An investigation by the Guardian found that AEI’s report was produced in part by personnel from CRC Advisors, a public relations firm Leo chairs. AEI also provided a statement to the Guardian confirming that the group “employed CRC Advisors to edit and promote our groundbreaking report on the corrupt relationship between our federal court system and leftwing dark money groups.”
The entire effort by CRC Advisors and AEI is meant to thwart climate change education and make it easier for lawsuits challenging environmental regulations to prevail. Allies of Leo have also been leading the charge in pushing back against various climate regulations.
Conservatism Is Coming for Hollywood
After spending years helping develop Teneo Network, Leonard Leo is soft-launching an effort to insert conservatism into all aspects of American culture, from Hollywood to Wall Street, in the same way he has reshaped the country’s judiciary.
Teneo was founded by Evan Baehr, a tech entrepreneur and conservative activist, around 2019. He previously said that he modeled his company off of the Federalist Society, and that Leo had the “secret sauce” to grow it. By 2021, Leo had joined Teneo’s board of directors as chairman. A ProPublica investigation published last year revealed that upon joining the group, Leo had big plans for the fledgling nonprofit. “I spent close to 30 years, if not more, helping to build the conservative legal movement. At some point or another, I just said to myself, ‘Well, if this can work for law, why can’t it work for lots of other areas of American culture and American life where things are really messed up right now?’ ” Leo said in a promotional video for Teneo.
Leo told NPR that he aims to “crush liberal dominance” in America’s entertainment industry with this new project. “What I don’t want is a system where our entertainment system or our world of news media or our business and finance worlds are heavily dominated by left ideology that either chokes out other ways of thinking about things,” Leo said. “Or that just creates a system where sort of inappropriate political and policy decisions are being made in places where politics and policy don’t really have a proper place.”
The Teneo Network will serve as a talent pipeline of “very driven, strategic people in all sectors of American life,” Leo explained. The common denominator will be folks who believe in “family-centered entertainment.”
Mark Joseph Stern contributed to this article.
