The Supreme Court Gets Back to Work

In one sense, it is impossible to give an overview of what to expect from the Supreme Court in the New Year, because the agenda depends so much on what President Donald Trump will do. And he might try almost anything. A little more than a week ago, Nicolás Maduro was serving as President of Venezuela; now he and his wife, Cilia Flores, are in the Metropolitan Detention Center, in Brooklyn. The legal cases associated with this episode will be legion, ranging from the drug and weapons charges against the couple (to which they have pleaded not guilty) and their claims to be prisoners of war to matters such as boarding and seizing oil tankers. And just two days after Maduro was arraigned before a federal judge, the issue of how the Constitution’s supremacy clause might limit the state of Minnesota from prosecuting a federal ICE agent suddenly became more urgent.

Those cases will take time; even without them, though, the Court is heading into a busy, contentious season, after something of a lull over the holidays. In the first few months of the term, which began in October, the Justices worked through an “emergency docket” that included many stays or restraining orders related to Trump’s often outrageous executive actions, involving, for example, deportations. In several instances, the Justices dodged the central legal issue and sent matters back to the lower courts; some may be coming right back at them in the next months. They also heard major cases—on tariffs, on the President’s ability to fire the heads of independent agencies, on the constitutionality of a section of the Voting Rights Act—on which they could rule at any time, although it may take them until the summer. First, though, there are more oral arguments ahead, beginning on Monday, January 12th, with a case about whether Louisiana parishes can sue oil companies for damages to the state’s coastline. Many of the upcoming cases are bound to reflect not only the country’s divisions but its anger. They will also reveal just how willing the Court, with its conservative super-majority, is to stand up to the President. We may also learn more about how deeply, and in how many ways, the Justices are divided. There have been reports of fractures even among the three liberals—Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor. The mood seems brittle.

Trump is a presence in many of the big cases, even when he is not technically a party to them. For example, this Tuesday, January 13th, the Justices will hear oral arguments in two cases concerning transgender athletes: West Virginia v. B.P.J. and Little v. Hecox, both of which began as challenges to state-level bans on transgender girls and women playing on girls’ and women’s school sports. Becky Pepper-Jackson (she is known in court papers by her initials because she is a minor, but she and her family have used her full name in interviews about the case) is a trans girl, now fifteen years old, whose mother brought suit on her behalf challenging a state ban that would keep her from participating in the cross-country and track-and-field teams at her middle school. Lindsay Hecox, a trans woman, brought suit when an Idaho state ban kept her from participating in sports at Boise State University. (Brad Little, the named plaintiff, is the state’s governor.) The Administration has now submitted an amicus-curiae brief in support of the states, and will take part in the oral arguments. In the background, too, is an executive order that Trump issued in February, instructing educational institutions nationwide to ban transgender athletes from girls’ and women’s sports or else lose federal funding. A number of states, notably California, have not entirely complied, and the order has been subject to litigation. Whatever the Supreme Court does will shape those fights. Trump has also said that he wants the State Department to deny visas to any trans women who try to come to the United States, including for the 2028 Los Angeles Olympics. The International Olympic Committee, meanwhile, is expected to issue a new policy on transgender athletes in the next several weeks, ahead of the Winter Olympics, in Milan.

There are distinctive aspects to both of the transgender-athletes cases. For one thing, Hecox has changed her mind about bringing the case—she has said that she no longer wants to play sports at B.S.U., and that the Supreme Court should consider the matter moot. The Justices have said that they will decide on that question after oral arguments. Pepper-Jackson, meanwhile, brought what is known as an “as applied” challenge, meaning that she is not arguing that the ban could never hold up, but that it is unconstitutional and discriminatory as applied to her, given that she transitioned at a young age and took puberty blockers followed by other hormone therapies to forestall standard male puberty. (Last year, in U.S. v. Skrmetti, the Supreme Court upheld Tennessee’s ban on such treatments for minors—a harbinger for this case.) B.P.J. lost at the district-court level but succeeded on appeal in the Fourth Circuit, and has been able to keep playing during the litigation. Her recent relative success as a high schooler in shot-put and discus events has become a point of dispute; her lawyers claim that her prowess has been exaggerated, while the governor of West Virginia complained about her participation in a statewide tournament (where she came in third in the discus event). A central question in the cases is what and whom Title IX, the federal anti-sex-discrimination law that has allowed girls’ and women’s school sports to develop in recent decades, was meant to protect. It is a good bet that the oral arguments will include a grab bag of claims about the physiology of children and adults as well as reflections on the emotional and social meaning of sports and on profound questions of identity and fairness.

Next week, the Court will hear oral arguments in Trump v. Cook, a case that came to the Justices on the emergency docket—it involves a lower-court judge’s stay of Trump’s removal of Lisa Cook, a Federal Reserve governor, from her position. In a general sense, it is linked to Trump v. Slaughter, the case about the leadership of independent agencies, which was argued in December. In Slaughter, the Justices are expected to allow Trump to fire Rebecca Slaughter, a member of the Federal Trade Commission, without cause (and, in doing so, to overturn Humphrey’s Executor, a precedent from the nineteen-thirties, which allowed Congress to insulate the heads of agencies led by multiple commissioners or governors, such as the F.T.C., from being fired at will by the President). But Cook’s case is different, for a few reasons. The Supreme Court has, in the past, indicated that the Fed’s independence is distinct and worth safeguarding. The Fed’s credibility is also important to both the U.S. and the world economy. And although Trump says that he dismissed Cook for cause, it’s not clear how good his cause was. The Trump Administration accused her of engaging in mortgage fraud; a question in the case is whether the Court is expected to take this claim at face value. (His Administration has levied the same charge against other opponents, such as the New York attorney general, Letitia James. Both James and Cook have denied the allegations.)

Oral arguments in one of the most consequential cases of the term, Trump v. Barbara, on the question of whether Trump can order the denial of birthright citizenship to certain babies born in the United States, still need to be scheduled. There is perhaps no other case in which the Justices will need to lay their allegiances as bare as in that one. That ruling, too, may not come until the end of June or even early July. What will the Justices be saying if they announce, in the week that the country celebrates the two-hundred-and-fiftieth anniversary of the Declaration of Independence, that the meaning of citizenship has in some way changed? The Court doesn’t seem entirely in Trump’s hands; before Christmas, siding with the state of Illinois, it kept in place a lower court’s order blocking Trump from deploying a federalized National Guard in Chicago and its suburbs. At the same time, the Court managed to leave open questions about what Trump might do with the Guard, and even with the regular military, in the future.

There is more, including a challenge the Justices will hear, on March 2nd, to a law restricting gun ownership for habitual drug users—a statute under which Hunter Biden, the former President’s son, was convicted, before his father pardoned him. Another case to be scheduled concerns a Mississippi law allowing mail-in ballots to be counted if they arrive up to five days after Election Day, if they are postmarked by Election Day. Perhaps predictably, the discussions around that case have been rife with accusations of voter fraud. Politics and the law are never all that far apart. This spring, in front of this Supreme Court, they may be almost inseparable. ♦