2023-2024 Supreme Court Term Preview

Loper Bright Enterprises v. Raimondo

Oral argument held on January 17, 2024. 

The Court heard oral argument in Loper Bright on January 17, 2024. The conservative majority appeared poised to overturn the Chevron doctrine, with Justice Gorsuch taking a strong stance against in the doctrine. Justices Jackson, Kagan, and Sotomayor spoke at length in favor of agency expertise – emphasizing the administrability problems with overturning a 40-year-old legal precedent. 

In Loper Bright, the Court could upend decades of administrative law, jeopardizing protections for our health and safety. National Marine Fisheries Service (NMFS) issued a rule that required fishing companies to pay for third party observers on certain boats. The fishing companies sued the agency, arguing that NMFS did not have the power to implement this rule. Though the dispute at the center of this case may seem to be about fisheries, the actual dispute is over the Chevron Doctrine.

The Chevron Doctrine is at the core of administrative law and requires courts to defer to agency expertise. To better explain how Chevron works, let’s take a brief look at the FDA: The FDA is tasked with determining whether a new medication is safe and effective. The agency is staffed with thousands of experts – from public health specialists to research scientists to physicians – all of whom work together to make this complex decision. Under Chevron, these experts get to decide what constitutes “safe” and “effective” when it comes to approving new drugs. If the Court overturns Chevron, individual judges could have the power to ignore experts in these agencies, transforming the way complex policy decisions are made in the U.S.

Consumer Financial Protection Bureau v. Community Financial Services Association of America

Oral argument on October 3, 2023 (read AFJ’s statement following oral argument)

Justices Thomas, Alito, Gorsuch, and Roberts appeared amenable to the CFSA’s argument. Justices Jackson, Kagan, and Sotomayor were sympathetic to the CFPB and Justices Barrett and Kavanaugh seemed dubious of the CFSA’s argument.

In response to the 2008 financial crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which authorized the creation of the Consumer Financial Protection Bureau (CFPB) as an independent agency within the Federal Reserve. The CFPB was created as a means to protect consumers from predatory lending practices. Much of the CFPB’s work focuses on helping consumers most vulnerable to the excesses of misconduct by the financial industry, such as Americans who struggle to make ends meet and marginalized communities. The CFPB adopted a rule that prohibited lenders from further attempting to withdraw funds from borrowers’ bank accounts after two consecutive attempts failed for lack of funds. A group of lenders sued the CFPB over that rule, arguing that the agency’s funding scheme was unconstitutional because the CFPB receives funding directly from the Federal Reserve instead of receiving money allocated to it each year by Congress. Depending on the outcome of this case, this decision could dismantle the CFPB, upending CFPB regulations that borrowers and consumers depend on to protect them from wrongdoing in the financial services industry.

Alexander v. South Carolina State Conference of the NAACP

Oral argument on October 11, 2023.

The Court’s conservatives appeared to side with the South Carolina legislators, repeatedly asking questions that facilitated legislators’ efforts to argue that the electoral map was drawn based on partisanship not race. The Court’s liberal justices focused on the standard of review, pointing out that in the absence of clear error, the Court must let the decision stand.

Alexander v. South Carolina State Conference of the NAACP concerns one of the greatest threats to democracy and voting rights: racial gerrymandering. Historically, racial gerrymandering has been used to dilute the voting power of minority groups, preventing them from using their political power to elect their preferred candidates. Last year, a federal court in South Carolina found that Republican legislators engaged in racial gerrymandering in the creation of their new electoral maps. On appeal, the Republican legislators argue that they actually engaged in partisan gerrymandering, not in racial gerrymandering. The Supreme Court has previously ruled that, while racial gerrymandering is barred, partisan gerrymandering is not reviewable by federal courts. Partisanship and race can be very closely related; 90% of Black voters in South Carolina voted Democratic in the last presidential election. Therefore, if the South Carolina map is upheld, legislators engaged in racial gerrymandering could simply claim they are engaged in partisan gerrymandering – and those gerrymandered maps will be upheld. The outcome of Alexander could significantly impact the ability of voters of color to enjoy true political representation.

Trump v. Anderson 

Oral argument was heard on February 8, 2024. 

Trump v. Anderson asks whether former President Trump is barred from holding elected office under Section 3 of the 14th Amendment. Section 3 is a Reconstruction Era provision of the Constitution which holds that officers of the United States who either engaged in an insurrection or supported insurrectionists are ineligible to hold elected office. This provision originally aimed to prevent politicians who supported the Confederacy from holding office in the post-Civil War government. Section 3 has rarely been invoked in its 156-year history, meaning that guidance on how to interpret the provision is limited. In 2023, a group of Colorado voters sued to enforce Section 3 and bar Trump from the state’s Republican primary ballot. The Colorado trial court ruled that, although the former president engaged in an insurrection on and in the lead up to January 6, 2021, he was not barred from holding office because the president is not an “officer” under Section 3. This ruling was resoundingly criticized, and the case was soon appealed to the Colorado Supreme Court. The court ruled against Trump, finding that he engaged in an insurrection and was therefore barred from the primary ballot. Both parties then appealed the case to the U.S. Supreme Court.

On March 4, 2024, an unsigned majority of the conservative Supreme Court ruled that Colorado could not disqualify Trump from the ballot, determining that only Congress, and not the states, can enforce Section 3 of the 14th Amendment, as Section 5 of the 14th Amendment grants authority to Congress to determine who Section 3 applies to by allowing the legislature to pass “appropriate legislation” to “enforce” the 14th Amendment.  Justices  Barrett, Sotomayor, Kagan, and Jackson agreed that Colorado could not remove Trump from the ballot, but issued a joint opinion arguing that the Court’s determination that states cannot enforce Section 3 against presidential candidates was “sufficient to resolve this case;” in other words, the Court should not, they wrote, have commented on “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” Trump v. Anderson is a landmark Supreme Court case on par with Bush v. Gore and Citizens United v. FEC.

Trump v. United States 

Oral argument on April 22

As of March 12, 2024, there are 91 criminal charges against former President Trump. The Court’s decision in Trump v. United States will dictate which of these charges can proceed to trial and, ultimately, whether the former president enjoys blanket immunity for crimes committed while in office. The question of whether and when a former president can be prosecuted is a complex one. According to Trump, presidents cannot be prosecuted for any crimes committed while in office. However, according to a three-judge panel of the D.C. Circuit “it would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.” In other words, no immunity. Trump appealed this ruling to the Supreme Court, and, on February 28, the Court granted cert. The Court’s decision to take this case means that Trump’s criminal trials are effectively paused until the justices issue a ruling – making it unlikely that these cases will be resolved before the 2024 election.

Loper Bright Enterprises v. Raimondo

Oral argument held on January 17, 2024.

The Court heard oral argument in Loper Bright on January 17, 2024. The conservative majority appeared poised to overturn the Chevron doctrine, with Justice Gorsuch taking a strong stance against in the doctrine. Justices Jackson, Kagan, and Sotomayor spoke at length in favor of agency expertise – emphasizing the administrability problems with overturning a 40-year-old legal precedent. 

In Loper Bright, the Court could upend decades of administrative law, jeopardizing protections for our health and safety. National Marine Fisheries Service (NMFS) issued a rule that required fishing companies to pay for third party observers on certain boats. The fishing companies sued the agency, arguing that NMFS did not have the power to implement this rule. Though the dispute at the center of this case may seem to be about fisheries, the actual dispute is over the Chevron Doctrine.

The Chevron Doctrine is at the core of administrative law and requires courts to defer to agency expertise. To better explain how Chevron works, let’s take a brief look at the FDA: The FDA is tasked with determining whether a new medication is safe and effective. The agency is staffed with thousands of experts – from public health specialists to research scientists to physicians – all of whom work together to make this complex decision. Under Chevron, these experts get to decide what constitutes “safe” and “effective” when it comes to approving new drugs. If the Court overturns Chevron, individual judges could have the power to ignore experts in these agencies, transforming the way complex policy decisions are made in the U.S.

Ohio v. EPA 

Oral argument heard on February 21, 2024

In 2023, the Environmental Protection Agency (“EPA”) implemented the groundbreaking and much-needed Good Neighbor Plan (“GNP”). The Plan regulates air pollution by requiring upwind states to reduce their emissions so as not to cause air pollution in downwind states. If fully implemented, the GNP is projected to prevent 1,300 premature deaths, 1.3 million asthma attacks, and 2,100 emergency room visits by 2026. Three upwind states regulated by this plan (Ohio, Indiana, and West Virginia) sued the EPA to prevent the plan from going into effect. The states requested a stay of the GNP pending the outcome of further litigation, but the D.C. Circuit denied their request. The states then appealed to the Supreme Court, which scheduled the case for expedited oral argument in February. Notably, the procedural posture of this case is highly unusual. Typically, the Court waits until a lower court has issued a substantive ruling before granting certiorari – here, the litigants fast-tracked the case to the Supreme Court, before the D.C. Circuit could rule on the case. The Court’s ruling in this case will substantially affect climate change protections and federal agency authority.

At oral argument, the conservative justices appeared hostile to the EPA’s plan while the liberals questioned the procedural posture of the case. Justices Sotomayor, Kagan, and Jackson raised  concerns over allowing the Supreme Court to become a forum of first resort for agency challenges.

Food and Drug Administration v. Alliance for Hippocratic Medicine 

Oral argument on March 26, 2024

This case concerns access to mifepristone, a pill used in over half of all abortions in the United States. The Food and Drug Administration (“FDA”) first approved mifepristone for use in abortions in 2000 and, in the 24 years since, has expanded access to the medication, which is also used for miscarriage treatment. Originally, patients could only obtain the medication after three in-person visits to a doctor. After reviewing substantial evidence of the drug’s safety and efficacy, the FDA overturned the three-visit requirement and allowed mifepristone to be prescribed via telehealth. Last year, the Alliance for Hippocratic Medicine (“AHM”), a litigious anti-choice group, sued the FDA over its initial approval of the medication, as well as its recent regulations expanding mifepristone access, intentionally filing the case before Judge Mathew Kacsmaryk. In 2023, the infamously anti-choice Judge Kacsmaryk ruled that the FDA erroneously approved mifepristone back in 2000 and issued a nationwide injunction on the medication. That same day, a Washington district court judge issued the opposite ruling, prompting the Supreme Court to issue a stay of Kacsmaryk’s ruling, pending further litigation. On appeal, the Fifth Circuit limited Kacsmaryk’s holding, overturning the new regulations expanding access but letting the drug’s original approval stand. The parties then appealed the case to the Supreme Court. This will be the first time that the Supreme Court has ruled on a major abortion access issue since overturning Roe v. Wade, and the Court’s opinion in Food and Drug Administration v. Alliance for Hippocratic Medicine will heavily dictate patients’ access to safe and effective reproductive health care.

United States v. Rahimi

Oral argument on November 7

At oral argument, the Court appeared likely to uphold the domestic violence restriction on gun ownership. Justices Sotomayor, Kagan, Jackson, and Barrett expressed the most vocal disapproval of Rahimi’s argument. 

In Rahimi, the Supreme Court will determine whether a federal law which bans individuals with domestic violence restraining orders from possessing guns is constitutional. In 2022, the Court ruled in Bruen that gun restrictions must be rooted in the history and tradition of the United States in order to be constitutional. Mr. Rahimi, who was sent to jail for possessing a gun while subject to a domestic violence restraining order, argues that since there were no domestic violence restrictions on gun ownership during the Founders’ era, the restriction is unconstitutional. These types of regulations on gun ownership are critical for protecting people who have experienced domestic violence and face threats of further violence, as well as for providing them with the opportunity to protect themselves without seeking criminal prosecution. The repercussions of a Supreme Court ruling in Mr. Rahimi’s favor cannot be overstated, as it could also significantly widen the scope of Second Amendment protections in this country.

Acheson Hotels, LLC v. Laufer

Oral argument on October 4

In Acheson Hotels v. Laufer, the plaintiff sued Acheson Hotels after learning that the Hotel’s website failed to include legally required accessibility information. The Americans with Disabilities Act (ADA) requires hotels to disclose sufficient details about their accessibility on their website. Acheson Hotels argues that Ms. Laufer lacks standing (the capacity of a party to bring suit in court) because she had no plans to visit the hotel and therefore suffered no injury. There are 61 million disabled people in the U.S and the outcome of this case could severely affect the rights of those with disabilities to redress violations of the ADA. Absent federal monitoring and enforcement, people like Ms. Laufer fill a critical role in ensuring businesses nationwide comply with ADA’s accessibility requirements.

Muldrow v. City of St. Louis

Oral argument was held on December 6, 2023.

The justices appeared split on the best course of action. There was a consensus that some harm beyond discrimination is required but the significant harm standard was heavily critiqued by both liberals and conservatives.

In Muldrow v. City of St. Louis, Missouri, a police sergeant sued the City of St. Louis for employment discrimination, claiming she was transferred to a different department because of her sex. The Court will decide whether this type of transfer, which did not substantially impact the plaintiff’s job duties, benefits or salary, constitutes the type of harm that can be redressed under Title VII. A ruling in Muldrow’s favor would make it easier for employees facing discrimination to bring legal claims, but on the other hand, employees could also more easily bring reverse-discrimination claims against diversity, equity, and inclusion (DEI) initiatives. For example, employees who are men could more easily sue over women’s mentorship programs.

Moore v. United States

Oral argument on December 5th

During oral argument on December 6, 2023, the Court appeared split on the best way forward. The conservative justices expressed concern that a ruling for the government would “open the door to taxation of practically everything” while the liberal justices appeared persuaded by the federal government’s argument that there is a long history of taxing this type of income. 

In Moore v. United States, the Court could throw decades of established tax law into chaos in a brazen attempt to shield centi-millionaires and billionaires—and the corporations they own—from taxation. While the case is nominally about a one-time “transition” tax on offshore corporate profits enacted as part of the 2017 Trump-GOP tax cuts, conservatives hope to use the case as an avenue to preempt taxation of the ultra-wealthy’s largest source of income: growth in their investments, whether they sell assets or simply borrow against them.  The plaintiffs in Moore claim that under the 16th Amendment, Congress cannot tax “unrealized gains” (for example, gains from investments that haven’t been sold yet). But more than a dozen long-standing taxes, potentially worth trillions of dollars, do just that in order to address ways that sophisticated investors and big corporations can use accounting and investment maneuvers to disguise income as non-taxable. Many of the billionaires at the center of the Court’s current ethics scandals stand to profit enormously from the case, both by preempting future taxes and from the windfall that the corporations they control could receive. (Meanwhile, many of the Justices would also see their own personal net worths rise by siding with the Moores.) News outlets have documented the extensive quid that is billionaires buying the Supreme Court’s conservative Justices. Moore could well be the pro quo.