Religious liberty, farming, & climate change coming to the Court
We’re back, baby!
How was your summer? Sacramento is squeezing in its last gorgeous days of warm weather. The Supreme Court, meanwhile, has had enough of a vacation. Time to get back to work saving the Constitution! The October 2026 term began today with the first oral arguments. We also got three new grants out of the Court’s “long conference” on Friday: Missionaries of St. John v. Frederic, a religious liberty case that’s also about the right to build (so that’s fun!); Marschner v. Marschner, about disability benefits in a military divorce; and Rhoney v. Barbosa da Cunha, an immigration case. Two PLF petitions were denied this morning: Thompson v. Wilson, a Fourth Amendment case brought by a Maine lobsterman, and Majestic Realty Co. v. Salazar, a First and Fifth Amendment case that asked the Court to revisit PruneYard. Alas.
The Court’s calendar still has open seats—ideally for one or more of PLF’s 11 still-pending petitions—but even with what’s already on the docket, we have plenty to talk about.
Note: This season, SCOTUS Scoop is trying a new format. The first scoop in our newsletter will always be a quick taste of what’s happening at the Court. The second lingers over a couple of cases. And the third gets the full sundae treatment. Let’s dig in.
First Scoop: Awards for the new term
First case out of the gate — Suncor Energy v. County Commissioners of Boulder County: Boulder wants oil companies to pay for the alleged local costs of climate change, so it sued under state law over emissions produced around the world. The companies argue that federal law leaves no room for a state-law suit of that scope. An admirably immodest dispute to open the term.
The hardest case to understand — Republican National Committee v. Mi Familia Vota: Arizona’s rules on proof of citizenship for voting in state elections mean that it sometimes removes voters from the federal election rolls. The case has enough moving parts that I may need a whiteboard, three colors of marker, and a snack. The basic question: Who gets to set the rules for voter eligibility and maintaining voter registration rolls, and what happens when state procedural and federal substantive rules collide?
The case with the best facts — Grand v. City of University Heights: Daniel Grand is an Orthodox Jew whose religion requires him to pray three times a day with a group of at least 10 men. Rather than walking back and forth to synagogues on the outskirts of town, strollers and kids in tow in the brutal Cleveland winters, he sought to host prayer gatherings in his home. A neighbor complained, and the city sent him a cease-and-desist letter, claiming these gatherings required a special use permit (even though a gathering of 10 to watch a Cleveland Browns game, for example, would’ve been just fine). Grand applied for a permit, but later withdrew after encountering local hostility. He then sued, but the city says he should have waited for a final decision on his permit application first. Apparently, in the city’s view, being told to stop praying at home is premature grounds for a lawsuit.
Most likely to overturn longstanding precedent — Kian v. Florida: Since 1970, states have been allowed to convict people of serious crimes with six-person juries. The Sixth Amendment guarantees the right to a trial by “jury,” and dating back to common law, a “jury” was considered to mean 12 people. But more than five decades ago the Supreme Court decided that six could do just as good a job as a dozen. This term, the Court will decide whether that ruling should stand or whether the Constitution’s text should trump judges’ functionalist approach.
Best sequel — Department of Labor v. Sun Valley Orchards: The Labor Department ordered a New Jersey farm to pay back wages and penalties for alleged violations of a federal farmworker program. After SEC v. Jarkesy questioned the government’s habit of seeking monetary penalties before its own in-house adjudicators, the farm argues this dispute belongs in a real federal court, too. The Court will now decide whether the agency can keep the case in-house.
Most consequential for religious liberty — St. Mary Catholic Parish v. Roy: Colorado pays for children to attend participating preschools but excludes Catholic schools when they use admissions policies requiring families to support Catholic beliefs about sex and gender. The state makes exceptions to its equal-access rule for other schools. Under Employment Division v. Smith, judges usually defer to generally applicable rules that don’t uniquely burden religion. The question here is when enough exceptions turn something “generally applicable” into something more selective that triggers heightened judicial scrutiny.
The case doing the most cleanup — Viramontes v. Cook County: Cook County and Connecticut restrict possession of AR-15-style rifles. Gun owners say the rifles are commonly possessed for lawful purposes and therefore protected by the Second Amendment; the governments emphasize their dangerous characteristics and military parallels. How does a right written in the eighteenth century protect a rifle invented in the twentieth? And how do Heller’s “common use” rule and Bruen’s history test fit together? Originalism gets a practical exam.
Second Scoop: Two cases worth lingering over
Can you sue a federal official for violating your rights? Nielsen v. Watanabe
After a prison fight, Kekai Watanabe says he endured months of pain while requesting to see a doctor before learning his tailbone was fractured. He alleges that a prison nurse brushed off his request to go to a hospital, showing deliberate indifference to his medical needs in violation of the Eighth Amendment. You’d think that when you allege that a federal official violated your constitutional rights, you could sue for damages—even if Congress hasn’t explicitly said you can. But the truth is more complicated.
In 1971, Bivens v. Six Unknown Named Agents recognized a damages suit against federal officers for a Fourth Amendment violation even without a statute expressly authorizing one. And in 1980, the Court allowed a suit against federal prison officials for deliberate indifference to medical needs in Carlson v. Green. But since then, the Court has become reluctant to recognize damages suits against federal officials unless they closely match one of the earlier cases, reasoning that the separation of powers requires it to leave remedies to Congress. Nielsen says this claim differs enough from Carlson that only Congress can authorize it; Watanabe says his claim falls squarely within that precedent. We’ll see whether the Court rules that the cases are similar enough, makes it harder for claims to fit within earlier precedent, or walks back Carlson and Bivens altogether.
How much is a six-pack worth to Alaska? Jouppi v. Alaska
Ken Jouppi ran an air taxi to remote Alaskan villages. A passenger chartered his plane to Beaver, a village that prohibits alcohol, and brought beer aboard. Troopers stopped them before the plane left, and Jouppi was convicted of knowingly transporting alcohol. Alaska fined him, jailed him, and now it wants to seize his $95,000 airplane. Jouppi contends that would be an unconstitutional excessive fine.
The question in Jouppi is how a court measures “excessive.” Alaska’s high court emphasized the general harms of bringing alcohol into dry villages and upheld the forfeiture even assuming Jouppi was culpable for only six beers. Jouppi argues that courts must look at what this defendant actually did, rather than the worst harms the category of offense might cause. My own view is that the Eighth Amendment protects an individual right, which requires looking at a person’s particular circumstances rather than resorting to generalities.
Third Scoop: About those pending PLF cert petitions I mentioned…
The Supreme Court has filled only part of its new-term calendar. Here at PLF we’re hoping the justices add to their docket by taking one of the pending petitions we’ve filed, ranging from New York City lofts to continuing medical education. Here’s a sampler.
You are not the city’s ATM — Coalition for Fairness in SoHo and NoHo v. New York City (relisted after long conference)
For a time, SoHo was reserved for government-certified artists. That never worked out well, and now many residents who aren’t artists—or at least aren’t certified ones—live in lofts still subject to that old rule. The city now lets owners convert those lofts to ordinary residential use—but demands more than $100 per square foot to apply, saying it will give that money to an Arts Fund. We’re arguing that’s an exaction, and the question in this case is whether the constitutional limits on what governments may demand in exchange for land-use permits apply when the demand is money, rather than a slice of land. New York’s highest court said those limits did not apply to this fee. The distinction is awfully convenient for a government that prefers checks to easements.
When “race-neutral” is the strategy — Association for Education Fairness v. Montgomery County Board of Education
Maryland’s largest school district changed admission to its competitive magnet middle schools, including by considering whether applicants have enough high-achieving peers at their home schools and by norming the admissions test to the local school’s economic status. Asian American parents allege the changes were designed to reduce Asian American enrollment. The question in our petition is narrower, and important: If officials adopt facially neutral criteria for a discriminatory purpose, must the plaintiffs first show it reduced a group’s representation below the share of the applicant pool before a court will even consider evidence it was intended to disadvantage that group?
How much can the government control what you say if you’re in a regulated profession? — Khatibi v. Yip (relisted after long conference)
Dr. Azadeh Khatibi is a licensed ophthalmologist who teaches continuing medical education courses on retinal tumors and other subjects. California, however, now requires continuing medical education courses to include discussion of implicit bias regardless of the course’s subject or whether the speaker disagrees. Dr. Khatibi and her co-plaintiff Do No Harm say the state is unconstitutionally dictating her speech. The Ninth Circuit treated the courses as government speech, meaning the government can shape them freely without any First Amendment implications. Our petition asks whether the state can avoid First Amendment scrutiny by recasting private speech in a regulated industry as the government’s own.
The cherry on top: What did I do this summer, you ask?
I read a book about Florence Allen, the first woman to do so many things (including becoming the first woman judge) that “trailblazer” starts to sound like a modest job title. It got me thinking… what makes a “first” worth remembering? Read my review for The Dispatch here.
I recently previewed the upcoming Supreme Court term for the Cato Institute’s Constitution Day. Catch the video here. I also wrote about some interesting dissents for SCOTUSblog, including Wong Kim Ark and birthright citizenship, Williams v. Florida and six-person juries, and NFL v. North American Soccer League and football v. soccer at the Supreme Court.
I also won a case where a city had put a man in handcuffs for handing a homeless person a burrito.
And of course, I watched a ton of U11 soccer. #ProudMom.
Until next time.
