The justices and I are back

Bust out your pumpkin spice lattes and pocket Constitutions. It’s October, which means the justices (and I) are back. What can you expect this term? Extra pumpkin spice. We’re getting cases involving conversion therapy, trans athletes in sports, and executive power.

The big ones

The Court will hear two major cases involving executive power: Trump v. V.O.S. Selections (which questions a president’s power to impose tariffs under the International Economic Emergency Powers Act) and Trump v. Slaughter (which tests the limits of the president’s ability to fire agency heads).

Contrary to headlines, V.O.S. Selections isn’t about whether tariffs are good or bad. It’s about which branch has the power to impose them. That’s usually Congress’s job, and if it authorized the president to do so, you’d expect it would’ve done so in clear terms—both because large grants of power are usually specific and because if it doesn’t provide sufficient guidance, then it’s turning over its legislative power to the executive in violation of the separation of powers.

Similarly, Trump v. Slaughter is more nuanced than President Trump just wanting the power to fire people; it’s about who the voters can hold accountable when things go wrong. If the president can’t fire people who work in his branch, that creates a fourth branch of government unaccountable to anyone. Restoring his ability to remove officials (which was famously neutered in both Humphrey’s Executor and Morrison v. Olson) would have the counterintuitive effect of restoring power to the people, who can now hold him accountable when executive bureaucrats act in ways they don’t like.

(Sidenote: If the Court sides with the president and rules that Congress can’t limit a president’s removal power, it will vindicate Justice Antonin Scalia’s legendary solo dissent in Morrison, written his second year on the Court. This is the one that contains the immortal line, “this wolf comes as a wolf.” You can read my column about that dissent here).

More to watch

Louisiana v. Callais tests whether states can racially gerrymander redistricts to ensure a racial group’s “candidate of choice.” Challengers argue this violates the Equal Protection Clause. The Court has repeatedly said in recent years that equal protection protects individuals, not groups, and has struck down laws based on racial stereotyping. The idea that racial groups share identical political interests is likely one the Court will therefore be skeptical of.

Little v. Hecox and West Virginia v. BPJ both involve the legality of bans on transgender athletes in single-sex sports and whether such bans violate Title IX or the Equal Protection Clause.

In Landor v. LA Dept of Corrections, a Rastafarian man who had grown his hair for 20 years as part of his faith was forcibly shaved just a month before release from jail, despite holding a physical court opinion recognizing his right to keep his hair long. The Court will decide whether plaintiffs can seek damages against government employees under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Seeking damages is an important means of accountability, because once you’re out of jail, an injunction’s a cold comfort. Damages are the only way to hold officials accountable.

For a longer preview of the term, check out my discussion with Sarah Isgur (Advisory Opinions), Patrick Jaicomo (Institute for Justice), and Mark Miller (PLF).

Verdict on the Court’s first week back? Pumpkin spice strong. Arguments stronger.

To-ma-to, to-mah-to. Speech, conduct.

The Court heard argument over whether states can ban “conversion therapy”—counseling aimed at changing a person’s gender identity or sexual orientation. A therapist argues that Colorado’s ban restricts speech; the State says it regulates conduct, which conveniently means the Court would apply far less scrutiny.

Most justices seemed to agree the therapist was engaged in speech, although Justice Jackson suggested it was “medical treatment,” which she would define as conduct. She asked, “Isn’t speech here just the tool of medical treatment—like a scalpel?” The plaintiff’s lawyer countered that labeling speech as “medical treatment” doesn’t magically lower the First Amendment bar. What matters is that what’s being regulated is speech itself.

Justice Jackson seemed flummoxed by the idea that medical conduct, like the bans on hormone therapy at issue in Skrmetti last term, would get less protection than counseling for the same purpose. She’s right that the “tiers of scrutiny” that courts apply depending on what right is at issue makes little sense and is unmoored from the text of the Constitution. But so long as we have them, then the therapist should be entitled to the highest level of scrutiny we have.

For me, the jaw-drop moment was when the government admitted that under its theory, it could have banned therapy affirming homosexuality in the 1970s—when public opinion was far less tolerant. It was reminiscent of oral argument in Citizens United, where the attorney admitted that under his theory, the government could ban certain books. Or this moment, from the oral argument in Minnesota Voters’ Alliance v. Mansky. Game over.

Had Colorado not gone for broke by banning only one side of a hotly contested issue, the Court probably would’ve sat this one out. I doubt it would’ve wanted to wade into the murky waters of subjecting medical advice to strict judicial scrutiny. But now the case could open the door to broader scrutiny of speech restrictions in medicine, including limits on telehealth.

Is standing reserved for winners?

In Bost v. Illinois State Board of Elections, Rep. Mike Bost and other candidates challenged Illinois’s rule counting all mail-in ballots received up to two weeks after Election Day (if postmarked by Election Day). They argue that violates the Elections and Electors Clauses, since Congress has the power to (and in fact has) set Election Day as a certain day (the Tuesday after the first Monday in November in even-numbered years).

The plaintiff claims Illinois’s policy will affect their margins of victory or defeat—and in politics, margins are everything—and force them to spend more money to monitor late-arriving ballots. The lower courts tossed the case on the theory that the plaintiffs weren’t injured. After all, they didn’t allege that the late ballots would put them at risk of losing. It also said that any additional money they spent was a self-inflicted wound.

Many of the justices seemed uneasy with the idea that, under the government’s argument, political candidates have standing only if they can prove they might lose. That would mean that judges would have to prognosticate who’s going to win or lose, which might influence the outcome of the election. Alternatively, they’d have to wait until after the election, putting courts in the “nightmare scenario” of upsetting election results.

Arguing for the plaintiffs, former Solicitor General Paul Clement offered a clean rule: Unlawful votes injure lawful candidates. And margins matter—candidates don’t care just about victory; they care about how much they win or lose by. Denying that harm, he said, reserves standing for mainstream candidates.

Then came a delightful colloquy with Justice Sotomayor. Clement declared, “I’m going to stand with the 2 percent candidate and… I stand in locked shoulder with the Socialist Workers Party and however many percentage votes John Anderson got.” When Justice Sotomayor said that makes for interesting bedfellows, he continued that he was “delighted” to have them, because:

for the Socialist Worker Parties, the difference between 2 percent and 2.5 percent might be not the difference between getting some, like, on the ballot the next time or federal, it might be the difference between getting taken seriously and, in the next election, getting to 3 percent or 5 percent. I mean, you know, eventually, we got rid of the Whig party. It takes a long time, but those small differences do make a difference.

Justice Jackson was skeptical, saying just because the candidates would’ve liked to win by more doesn’t mean they were harmed. Clement responded that “if a law improperly denies somebody their preference, that is a harm.” And in any event, margins are incredibly meaningful, because elections are not just about the “binary” result of who wins or loses.

As an aside—Justice Barrett asked about history and tradition in standing doctrine. Personally, I think we’re leaning too hard on “history and tradition” to decide what’s constitutional today. It’s a tool for understanding text, not a cage that limits our freedoms to historical practices. (And by the way, modern standing doctrine isn’t even historically rooted.)

You say I’m “coaching” a client; I say it’s incidental…

In Villareal v. Texas, the justices weighed whether judges can forbid defense attorneys from discussing their clients’ ongoing testimony during an overnight recess, or whether that violates the Sixth Amendment’s right to counsel. Texas allows discussion if it’s incidental to strategy but not about testimony for its own sake. The idea is limiting impermissible client coaching. Villareal argues that’s an impossible line to police—a “Rorschach blot.” The DOJ argued that judges can go even further than Texas wants and instruct attorneys not to discuss testimony at all.

Several justices noted that courts already bar such talks during short daytime breaks; so why more freedom at night? Villareal’s lawyer replied that courts have a stronger interest in trial time management during the day, and overnight breaks have historically been important for strategic reflection. Chief Justice Roberts and Justice Alito worried that limits were necessary because attorney-client privilege would render cross-examination an inadequate means of snuffing out improper coaching. Justice Sotomayor pushed the other way, warning that too many “prophylactic rules” would gut the right to counsel—like advising a client to take a plea after his testimony goes poorly.

Expect the Court to take the Goldilocks route—endorsing Texas’s middle ground.

Building a docket

The Court just granted Pung v. Isabella County, Michigan, and the facts are infuriating.

Here, a family had claimed a tax credit for its primary residence. The state denied that credit retroactively, causing the family to owe the government money. But after litigation, the tax credit was restored. For some reason, the local assessor decided to deny the tax credit again. And before the family could get a ruling that the decision was an error, the County foreclosed on the house. The County’s own property valuation determination deemed the house worth $194,400 at the time of foreclosure. And, after it was auctioned, the buyer turned around and sold it for $195,000. And yet, Isabella County sold it for just $76,008.

Thanks to PLF’s wins in the Supreme Court in Tyler v. Hennepin County and in the Michigan Supreme Court in Rafaeli v. Wayne County, the government now owes the family whatever exceeded the debt. The question is, do they owe the family fair market value minus the debt, or the amount they sold it for minus the debt. The family argues that selling it for below fair market value is a taking under the Fifth Amendment, and if not, then it’s an excessive fine.

What have I been up to?

Writing about history’s greatest dissents for SCOTUSblog, of course.

And suing the government like it’s my job. Check out our latest case defending a Northern California rattlesnake removal expert who teaches pups to avoid rattlesnakes. The state says he can do it… just not for money. Not exactly a sustainable business model. Bonus: Adorable dog pics included.