us supreme court essay plans

Background Essay: The Supreme Court and the Bill of Rights

Guiding Question: How has the Supreme Court decided cases in controversies related to the Bill of Rights?

I can identify the role of the Supreme Court in protecting civil liberties.
I can explain how the Supreme Court’s role has changed over time.

Essential Vocabulary

During the last 60 years, the Supreme Court has become perhaps the central defender of civil liberties, or freedoms that government is not allowed to restrict, in the United States. This role has been a relatively recent development that marked a distinct change from the Founding, when the Court mostly addressed government powers. The evolution of this role for the Court has greatly expanded popular expectations of enjoying individual rights. However, it has also been fraught with numerous difficulties, both for the constitutional order and for the Supreme Court itself, as it has become the center of controversy about rights.

Limited Government and the Supreme Court

The original Founding understanding of the Bill of Rights was that it limited the powers of the federal government to violate the rights of the people. When originally ratified, the Bill of Rights only applied to the national government, not to state governments. State governments had their own bills of rights to protect their citizens. This reflected the constitutional principle of federalism, or the separation of powers between state and national governments. The Supreme Court endorsed this Founding view that the Bill of Rights applied only to the national government in the case Barron v. Baltimore (1833).

Moreover, this also represented the principle of limited government, one of the foundations of protecting liberties. The national government had certain enumerated and implied powers that the three branches—legislative, executive, and judicial—exercised in making, executing, and interpreting the law. Enumerated powers are those listed explicitly in the Constitution. Implied powers are those that government has that are not written in the document. The national government could not exceed these powers to violate the liberties of the people. To further this protection, states had their own bills of rights. The Declaration of Independence asserted that the ultimate protection of the people’s liberties is the overthrow of a tyrannical government after a long train of abuses.

The role of the Court was to hear all cases arising under the Constitution. After the case of Marbury v. Madison (1803), the Court’s role expanded to include determining the constitutionality of governmental laws and actions. However, there was debate over whether or not the other branches also had the responsibility of interpreting the Constitution.

It is important to note that although the Court could rule a law or action unconstitutional, it was not necessarily the final word on the Constitution. In a speech critical of the Dred Scott v. Sandford (1857) decision, Abraham Lincoln quoted Andrew Jackson, saying, “The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution.” Lincoln was arguing that the Court’s authority and just precedents , or earlier laws or rulings, should be respected, but the Supreme Court was not necessarily the final word on the meaning of the Constitution and could make errors, as it did in Dred Scott . All the branches must interpret the document in the exercise of their constitutional powers for the ends of liberty, equality, and justice.

The Supreme Court, Incorporation, and the Bill of Rights from the Twentieth Century to Today

The due process clause of the 14th Amendment led to the incorporation of the Bill of Rights, which meant that the Supreme Court applied the Bill of Rights to the states. During the first half of the twentieth century, the Court incorporated the Bill of Rights selectively in a few cases. For example, it extended the First Amendment right of free speech against state violation in Gitlow v. New York (1925) and freedom of the press in Near v. Minnesota (1931).

The popular understanding of the Court as the protector of individual rights became widely accepted during the Warren Court (1953–1969) and after. Many of the decisions were controversial because Americans viewed the issues involved differently. Some Americans questioned whether the Court was the appropriate branch to define rights or whether it should be left to the other branches of government or the amendment process. The Court also controversially overturned the laws and common values of states and local communities for one uniform, national standard.

The Court expanded the application of the Bill of Rights (incorporated) to the states in several areas and protected civil liberties in new ways. For example, the Court banned school-sponsored prayer and Bible reading in public schools in Engel v. Vitale (1962) and Abington School District v. Schempp (1963), respectively, for violating the establishment clause of the First Amendment.

The Court protected the rights of students in local public schools in other ways. In Tinker v. Des Moines (1969), the Court decided that students had the right of free speech to protest the Vietnam War under the First Amendment. The students had worn black armbands to protest the war despite a warning not to, and the school suspended them.

The Court protected the rights of the accused in major cases during the mid-1960s. The Court stated that criminal defendants are entitled to an attorney in Gideon v. Wainwright (1963). The Court excluded, or left out, illegally seized criminal evidence under the Fourth Amendment in Mapp v. Ohio (1964). In Miranda v. Arizona (1966), the Court decided that police officers must provide a “Miranda warning” informing accused people of their rights before questioning them about a crime.

The Court also made key decisions on moral issues that were fiercely debated in American society. In Griswold v. Connecticut (1965), the Court asserted that a “right to privacy” exists and is implicit in several amendments of the Bill of Rights. Therefore, the Court declared a state law banning birth control unconstitutional. The decision was a precedent for the use of the right to privacy argument in Roe v. Wade (1973), which established a right to abortion.

In recent decades, the Court helped protect gay rights. In Lawrence v. Texas (2003), the Court invalidated state laws banning homosexual acts. In Obergefell v. Hodges (2015), the Court made gay marriage a right when it required states to recognize the same-sex marriages of other states.

The Supreme Court has left a mixed record regarding its decisions related to the Bill of Rights. On one hand, Court rulings have protected what seem like reasonable and fundamental individual liberties. On the other hand, the Court has made rulings on cultural, social, and moral disputes that often did little to resolve the wider debate over the issues and maybe even fueled division among Americans. In recent decades, for better or worse, Americans have increasingly looked to the Supreme Court as the protector of civil liberties and the final word on the Constitution.

Background Essay Questions: The Supreme Court and the Bill of Rights

Supreme Court Case Scenarios: How Would You Decide?

The Supreme Court and the Bill of Rights

How has the Supreme Court decided cases in controversies related to the Bill of Rights?

Lesson Plans
Teacher's Guides
Media Resources

Oyez! Oyez! Oyez!: Simulating the Supreme Court

Built in 1935, the Supreme Court building sits across the street from the Capitol building in Washington D.C.

The Supreme Court building, built in 1935.

Creative Commons

"The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people." ⁠—Elena Kagan, Associate Justice of the Supreme Court and the first woman to serve as Solicitor General of the United States.

As one of the three branches of the U.S. federal government, the Supreme Court is an essential part of civics education. In this lesson, students will learn about the structure and purpose of the Supreme Court and analyze the landmark Tinker v. Des Moines (1969) case about student free speech in schools. Once students have analyzed the case and its significance in U.S. history, they will participate in a research-based simulation about student free speech and social media before their own Supreme Court.

Guiding Questions

What are the Constitutional responsibilities and powers of the Supreme Court?

How does the judiciary system function alongside the other two branches of government?

How does the Supreme Court protect your First Amendment rights?

Learning Objectives

Analyze the Constitutional roles and responsibilities of the judiciary system and the Supreme Court.

Analyze Supreme Court rulings and develop an evidence-based argument regarding the First Amendment.

Simulate how a Supreme Court case is researched and argued, and evaluate the proceedings and outcome.

Lesson Plan Details

Article III of the U.S. Constitution outlines the roles and responsibilities of the Supreme Court of the United States. According to Article III, Section 1:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Since 1869, the Supreme Court has consisted of nine members , with one Chief Justice and eight Associate Justices. Traditionally, the Supreme Court begins its term on the first Monday of October and concludes its work in June. The following resources offer more on the history of the institution, its rulings, those who have served on the bench, and other relevant information about the highest court in the country.

Oyez.org provides a variety of resources on the Supreme Court including justice biographies, summaries and oral arguments for cases, and news regarding the court’s activities.
The Library of Congress provides a collection that contains a variety of Supreme Court reports.
The education page of The United States Courts website features a variety of resources for educators. If you are looking to extend this lesson, this website has resources to discuss landmark cases relevant to students and schools.
The National Archives provides a full transcript text of the Constitution , where Article III establishes the Supreme Court.
The Crash Course Government and Politics Playlist provides a variety of videos on the judicial system and the Supreme Court. Episodes 18-22 cover the judicial branch as a whole, with episode 20 specifically focusing on the Supreme Court. Episodes 23-26 cover first amendment rights that might be relevant in these cases.
This Interview with Mary Beth Tinker provides context and information about the landmark Tinker v. Des Moines case.
PBS Newshour reported on a story that discusses schools monitoring social media and issues of student free speech outside the classroom.

NCSS.D2.Civ.4.6-8. Explain the powers and limits of the three branches of government, public officials, and bureaucracies at different levels in the United States and in other countries.

NCSS.D1.5.6-8. Determine the kinds of sources that will be helpful in answering compelling and supporting questions, taking into consideration multiple points of views represented in the sources.

NCSS.D3.1.6-8. Gather relevant information from multiple sources while using the origin, authority, structure, context, and corroborative value of the sources to guide the selection.

NCSS.D3.3.6-8. Identify evidence that draws information from multiple sources to support claims, noting evidentiary limitations.

NCSS.D1.5.9-12. Determine the kinds of sources that will be helpful in answering compelling and supporting questions, taking into consideration multiple points of view represented in the sources, the types of sources available, and the potential uses of the sources.

NCSS.D2.Civ.4.9-12. Explain how the U.S. Constitution establishes a system of government that has powers, responsibilities, and limits that have changed over time and that are still contested.

NCSS.D2.Civ.9.9-12. Use appropriate deliberative processes in multiple settings.

NCSS.D3.4.9-12. Refine claims and counterclaims attending to precision, significance, and knowledge conveyed through the claim while pointing out the strengths and limitations of both.

These discussion questions can help to generate thoughtful inquiry throughout the unit:

What rights do you have as a citizen of the United States?
What are civil liberties?
How are the rights of students different from the rights of adults?
What is the difference between probable cause and reasonable suspicion?
Do regulations and school policies limit the rights of students?

Activity 1. Oyez! Oyez! Oyez!

Using the Supreme Court Website , have students research the United States Supreme Court. Using this handout , students will be able to organize information about the Constitutional responsibilities of the Supreme Court.

Organize a discussion about what students have learned from the resources to determine if further inquiry is needed prior to engaging in independent research and the simulation activity:

What qualifications are required in order to be a Supreme Court Justice?
What factors factor into nominating and confirming a Supreme Court Justice?
According to the Constitution, what are the roles and responsibilities of the Supreme Court?
What are the functional differences between the Supreme Court and lower courts?
Why is no evidence directly presented to the Justices of the Supreme Court?
What are the positive and negative aspects of appointing a Supreme Court Justice for life?
What types of cases does the Supreme Court hear?

Activity 2. Court Case Analysis

The Activity 2 handout provides students the opportunity to organize their examination of the landmark court case Tinker v. Des Moines (1969) . The Tinker case involved a group of students who wore black armbands to school in protest of the Vietnam War. The students were ultimately suspended from school for disruptive behavior and chose to sue the school district, arguing that their free speech rights were violated. At issue: Did the decision to prohibit students from wearing armbands violate their free speech rights?

Activity 3. Supreme Court Case Research

After students have been assigned their roles in the case (see activity 4), have students begin their research in making arguments for their court case. Students can use any of the following resources to make their case, as well as those they find on their own.

The Activity Three h andout outlines notes on the court cases that can help students to organize their information and research, and can be included in the final portfolio.

Court Cases involving Schools, Education, and Free Speech:

Doninger v. Niehoff (2008)
West Virginia State Board v. Barnette (1943)
Wisneiewski v. Board of Education (2007)
R.S. et al v. Minnewaska Area School District No. 2149 et al
Hazelwood School District v. Kuhlmeier (1988)
Bethel School District No. 403 v. Fraser (1986)
Island Trees School District v. Pico (1985)
School District of Abington Township, Pennsylvania v. Schempp (1963)
New Jersey v. TLO (1985)
Board of Education of Independent School District #92 of Pottawatomie County v. Earls (2002)
A.N. v. Upper Perkiomen School District (2017)
Canady v. Bossier (2001)
Morse v. Frederick (2007)
Goss v. Lopez (1975)
Roper v. Simmons (2005)

Research Databases:

Justia Dockets and Filings allows students to search court case filings from the U.S district courts and U.S. Court of Appeals directly. Students can also browse by state, circuit, and type of lawsuit filed to find cases that are relevant to their arguments.
Congress.gov provides a space for students to search for federal laws that might be valid in their arguments.
Oyez also provides resources to search Supreme Court cases, along with how justices voted on the issue.
FindLaw also provides resources for searching court cases online.
While looking at the Constitution, the National Archives provides research options for students to look up articles that might be related to this case.

Activity 4. Supreme Court Simulation

The Layshock v. Hermitage School District (2011) case can be used for the simulation (the Supreme Court declined to hear the case in 2012, so there is no ruling to sway or limit student research) or this case can serve to inform the question students research and ultimately argue in favor of or against. Although any court case can be argued in front of the court, this case deals specifically with issues of free speech, school administration, and individual rights that are particularly relevant to students. Note: While students may want to point out the irrelevancy of the social media platform involved in this particular case in comparison to other social media platforms, it is important that students understand that the case is not about any platform in particular, but whether the actions taken were a violation of the First Amendment.

The simulation is based on students taking on roles related to the researching and conducting of a Supreme Court case:

Justices —The justices will be making the final decision in the case. During the research period, Justices should research how the Supreme Court functions, landmark cases, how justices write opinions of the court, and information on the Constitution, with particular attention to the First Amendment. These notes will be used to prepare them for their role as a Justice. The following handouts can help them prepare for the trial:

Justice Biography Handout —For their interview with the reporter, this handout can help students develop their backstory as a Justice. It also helps students to consider the qualifications, history, and differences between Supreme Court Justices.
Justice Question Development Handout —Once students have read the written argument from each side, this handout will help them to prepare questions for the trial.

Clerks —Students can serve as clerks for the Justices and carry out the role of researcher and question designer.

Solicitor General —These students will present the case and respond to questions from the Justices. During the research period, the team will study the provided court cases, search for other precedents to support their cause, and develop arguments that defend their client.

Case Research Handout —This handout will help students to outline important court cases and determine how they would use them in the trial.

Prosecutorial Team —These students will be making an argument for the plaintiffs in front of the Justices. During the research period, the prosecutorial team will study the provided court cases, search for other precedents to support their cause, and develop strong evidence-based arguments.

Journalists — Students who take on the role of journalists can research the background of relevant court cases and conduct interviews with other students involved in the simulation. As assessment, they will have to submit newspaper articles about the case.

Journalist Interview Preparation Handout —This handout will help students to prepare questions for each of their interviews based on the person’s individual role.

Marshal of the Supreme Court — This role will be played by the instructor. This gives you the power to oversee the proceedings of the court and keep the classroom in order during the simulation.

Once students have researched and begun to develop arguments as a group, they will put together a brief for the Justices to review before the case. This should include the arguments they intend to make, as well as cited evidence from other court cases. The Justices will review this before the case is argued so that they can develop the questions they will ask.

Unlike the real Supreme Court, this simulation will feature multiple people making the argument for each side. Each side will have a specific period of time to make the argument for the case (the real Supreme Court allows half an hour, but that can be adjusted to fit your class needs). During the oral argument, each student should be responsible for part of the argument. While students are presenting their case, Justices are aloud to ask questions directly to the lawyers.

Once both sides of the case have argued, Justices will deliberate together and make a final decision. Justices will then vote on the issue to close the case.

If there have been any concerns about student free speech, controversial curriculum, or inappropriate library materials in your school or area, this activity can also be tailored to fit your specific learning community. For a printable set of these directions and resources, use this handout.

Students will create a portfolio based on their role in the trial. This can include their research for the case, brief(s) provided to the Justices, notes on planning the arguments, a final writing piece that reflects on the trial, and any other relevant materials from this unit. The final writing prompt can be different for each group.

Justices —Each justice will write their own opinion on the case, citing specific evidence provided by the two teams of lawyers and their own research. This piece of writing should explain why and how they made their decision on the case, including reference to how the Constitution informed their ruling.

Lawyer teams —Each of these students should write a reflection about the case. It should include information about what they contributed to the case, how they would approach the case differently again, their interpretation of the Constitutional issues involved in the case, and whether they agree with the decision made by the Justices.

Journalists —Using the information provided by both teams of lawyers, the oral arguments, and interviews with each team, the students will write a final newspaper argument documenting the events of the trial and the arguments for each side.

Materials & Media

Activity 1 handout, activity 2 handout, activity 3 handout, activity 4 handout - direction, activity 4 handout - journalist question development, activity 4 handout - justice biography, activity 4 handout - justice question development, related on edsitement, the supreme court: the judicial power of the united states, norman rockwell, freedom of speech—know it when you see it, scottsboro boys and to kill a mockingbird : two trials for the classroom, john marshall, marbury v. madison, and judicial review.

The Future of Supreme Court Reform

Ganesh Sitaraman
Daniel Epps
See full issue

For a brief moment in the fall of 2020, structural reform of the Supreme Court seemed like a tangible possibility. After the death of Justice Ruth Bader Ginsburg in September, some prominent Democratic politicians and liberal commentators warmed to the idea of expanding the Court to respond to Republicans’ rush to confirm a nominee before the election, despite their refusal four years prior to confirm Judge Merrick Garland on the ground that it was an election year. 1 Though Democratic candidate Joe Biden won the Presidency in November, Democrats lost seats in the House and have a majority in the Senate only through the tiebreaking vote of the Vice President. 2 These slim margins, which make aggressive legislative action appear unlikely, led observers to conclude that “court reform is effectively dead for the foreseeable future.” 3

But is that really so? This Essay seeks to examine the prospects for Supreme Court reform — in both the short and the long term. We argue that it is too soon for proponents of Supreme Court reform to give up. Some modest reforms are still possible today, despite current political realities. And more ambitious reforms may return to the agenda sooner rather than later.

In other work we have developed our own proposals for Supreme Court reform. 4 We have also attempted to situate Supreme Court reform within broader constitutional-theoretic debates about judicial review in a democracy. 5 Here, our goal is not to persuade the reader to pursue our reforms nor to accept our preferred theoretical framework. Our ambition is more pragmatic and more pluralistic; we hope to provide immediate help to policymakers and reformers who are thinking about these issues, by identifying various possibilities for reform to ensure that the policy discussion considers all the options.

The Essay proceeds as follows. In Part I, we acknowledge that at present, significant structural reform appears unlikely given the current configuration of the Senate. But we argue that this does not mean that no reform of the Supreme Court is possible. Instead, we suggest there are a number of less aggressive, but still meaningful, reforms that might generate sufficient bipartisan support to obtain passage in Congress — and we think this kind of “skinny” Court reform is worthy of serious consideration, even if it does not solve all the problems that proponents of reform hope to address. While much of the focus of Court reform has centered on Congress, we also identify, perhaps surprisingly, changes within the Executive Branch that could have a significant effect on the Supreme Court’s operations. And finally, we outline a variety of voluntary reforms that the Justices themselves could adopt that would help turn down the temperature — and change the perception — of the politics surrounding the Supreme Court. Again, while we do not necessarily endorse these reforms as our preferred path forward or think they would solve all problems (or even the biggest ones), we do think they are meaningful — and worthy of debate and consideration.

In Part II, we cast our gaze further and consider the long-term prospects for major structural reform of the Supreme Court. We argue that the factors that generated a surge of interest in Court reform in the last three years are unlikely to disappear. And, whatever the current political situation, there are realistic scenarios in which structural reform of the Court begins to look possible once more. To be sure, structural reform faces — as it always has — an uphill battle. But its proponents should not abandon their efforts to build political and intellectual support for institutional change that remains critically important and badly needed.

I. Reform in the Near Term

After the failure of President Franklin Delano Roosevelt’s Court-packing plan in 1937, 6 politicians have avoided attempts to meddle with the Supreme Court’s membership and structure. But in the wake of pitched political battles over the Court’s membership in the last few years, Democratic politicians suddenly became willing to touch what was once seen as a third rail. Presidential candidate Pete Buttigieg made structural Supreme Court reform one of his marquee policies, 7 and a number of other candidates endorsed various, significant reforms. 8 The Democratic Party Platform ultimately included a call for “structural court reforms to increase transparency and accountability.” 9

In the wake of Republicans’ hasty effort to confirm then-Judge Amy Coney Barrett to replace Justice Ginsburg, the calls for Court reform became louder. Leading progressives demanded that Democrats retaliate by adding seats to the Court once they regained power. 10 Shortly before the election, then-candidate Biden did not endorse efforts to expand the Court 11 but instead promised to create “a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative,” that he would ask to “come back to me with recommendations as to how to reform the court system because it’s getting out of wack.” 12

Now-President Biden has named a commission, consisting of distinguished scholars and jurists. 13 The Commission is tasked with providing, among other things, “[a]n analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.” 14 Given that the commission was designed to be bipartisan, it may be unlikely to endorse bold structural reform, at least to the extent that such reform would have a partisan valence. In addition, the slim margin of Democratic control in the Senate — Democrats have only fifty seats, with Vice President Kamala Harris breaking ties — means the prospects for an aggressive partisan move to add Justices are dim at best. That’s all the more so given that at least some Democratic Senators are apparently unwilling to abandon the legislative filibuster 15 — surely a necessary first step were Democrats to seek to expand the Court on a party-line vote or pursue other muscular reforms aimed at reining in the conservative majority, such as stripping the Court’s jurisdiction. We expect the Commission to assess all reform options, but given this political context, major reform appears hard to imagine for at least the next two years.

Even so, that doesn’t mean that no reform is possible. As we see it, there are a number of modest, though still meaningful, reforms that remain feasible and that are worthy of serious consideration. Some reforms would require congressional action, but others would not. Which of these reforms one thinks is worth pursuing will depend on what, exactly, one sees as the problem with the Supreme Court that reform is intended to solve. Some might see the problem as the Court’s ideology. Others might believe that the Court is too powerful and insufficiently deferential to the democratic process. In our own prior work, we have argued that the problem is that the Court has become too polarized along party lines and is increasingly likely to be seen as simply a partisan institution. 16 Here, we take a pluralistic approach, making no particular assumptions as to the correct diagnosis of the problem and instead simply cataloguing various possibilities as we see them.

In identifying many different kinds of possible reforms, we have several goals. First and most immediately, we hope to suggest to the relevant decisionmakers realistic and feasible ideas that might address some of the problems to which would-be Supreme Court reformers have pointed. At the same time, we also hope to expand the scholarly and popular conversation about Supreme Court reform, by demonstrating that there are many possible legislative proposals or policy changes that can all be grouped under the larger heading of Supreme Court reform. Reform need not be all or nothing; there are many small steps that could be taken even if a large leap is presently impossible. Finally, we hope to demonstrate that Supreme Court reform can come from institutions other than Congress; the Executive Branch has its own role to play, and the Court itself might wisely choose to reform itself in small ways in order to reduce calls for more significant reform.

A. “Skinny” Court Reform Through Legislation

Legislative action is the most obvious way to reform the Court. One major structural reform that some Democrats seem interested in advancing right now is Supreme Court term limits. Perhaps some may imagine that term limits could pass despite narrow divisions in Congress, given their apparent popularity with voters. 17 But there are reasons to doubt the viability of statutory term-limits reform. The leading Democratic proposal would not impose term limits on currently serving Justices. 18 That would likely mean that Democrats would not obtain a majority on the Court for years. 19 Why would Democrats waste considerable political capital on a major reform that would not benefit their agenda? 20 Moreover, such a reform could even provide a windfall to Republicans : if President Biden were able to appoint two Justices, term limits would make it likely that any of his appointees would serve for shorter periods than they would otherwise, especially relative to President Trump’s three appointees. 21 One could imagine Republicans recognizing what they had to gain by going along with the proposal, but that same fact seems likely to preclude sufficient support among Democrats. Term limits have other drawbacks as well. They might make the Court more political, rather than less, by guaranteeing Court nominations are an election issue every two years; that would be even more true if, as some fear, the Justices themselves might shape their opinions with an eye toward a post-Court political career. 22 On top of all that, whether term limits can be imposed via statute (rather than constitutional amendment) is deeply controversial. 23 These concerns are another reason to question whether term limits could obtain sufficient support to be enacted into law.

As a result, we see any major structural changes as unlikely in the short term. Does that mean all statutory reforms are impossible? We think not. It is conceivable that Senate Democrats could pursue somewhat less ambitious measures that could potentially attract sufficient Republican support to survive a filibuster. In making this suggestion, we do not mean to seem overly optimistic, given recent partisan rancor in Washington generally and the Senate in particular. Nonetheless, the possibilities we outline below are sufficiently conceivable that they deserve consideration.

One obvious starting place would be the imposition of ethics rules on the Justices, including adopting a code of conduct, reforming gift and disclosure rules, and putting in place guidelines around recusals. Currently, the Justices are the only judges in the country not bound by some code of ethics governing their behavior. 24 Observers have raised concerns about various episodes involving the Justices in recent years, such as the liberal Justices’ going on foreign trips paid for by outside organizations 25 or the late Justice Scalia’s hunting trip with Vice President Dick Cheney weeks before the Court heard a case in which the Vice President was the petitioner. 26 Advocacy groups have urged the adoption of ethics rules 27 and conduct policies, 28 and members of Congress have previously introduced legislation to impose such rules on the Justices. 29

And though some have raised constitutional concerns about Congress’s ability to regulate the Justices’ conduct, Professor Amanda Frost has argued that well-crafted legislation would fall within Congress’s “broad, but not unlimited, authority to regulate the Supreme Court Justices’ ethical conduct.” 30 Imposing such rules could strengthen public confidence in the Court during a period in which its legitimacy has been threatened. And such rules might attract support from both sides of the aisle, given that they have no obvious partisan valence. The success of ethics rules is dependent on enforcement, and it is unclear whether the Executive would enforce those rules if it created an appearance of interfering with the judiciary. Still, even with lax enforcement, if the Justices fail to follow ethics requirements, public reporting will likely increase pressure on them to comply — or further weaken confidence in the Court.

Another possible reform concerns the Court’s statutory decisions. Although the Court’s constitutional rulings tend to attract the most attention, the Court hands down numerous opinions involving the interpretation of federal statutes each Term. Some of those decisions are unanimous rulings on technical matters involving obscure provisions, but others closely divide the Court along political and ideological lines. Ian Millhiser has argued that Congress should pursue a “Civil Rights Act of 2021” that would overrule multiple statutory decisions, such as those approving forced arbitration and limiting the ability to sue for employment discrimination. 31

Such a law is more plausible than one might initially think. As Millhiser notes, Congress successfully passed a similar omnibus override bill in the Civil Rights Act of 1991. 32 And while there is certainly the possibility such a bill would face intractable opposition from Senate Republicans, it bears note that the last major effort by Democrats to overturn the result of a Supreme Court decision — the Lilly Ledbetter Fair Pay Act of 2009 33 — received some Republican support in the Senate. Statutory reforms like this one present no constitutional issues, and instead merely give Congress an opportunity to reassert its authority over federal law — and to put the Court on notice that it does not act with a totally free hand, at least in statutory cases.

Congress could also implement a procedure for regularizing review of the Court’s statutory decisions going forward. Although Congress can always revise statutory Court interpretations, it does so with less regularity than it once did. 34 The Congressional Review Act 35 (CRA) provides an analogy for reform. Under the CRA, regulations issued by federal agencies are subject to a “fast track” process in which Congress can pass resolutions of disapproval, which if passed by both houses and not vetoed by the President overturn the regulation. 36 One of us has argued for a Congressional Review Act for the Supreme Court, which would provide expedited procedures — including bypassing the traditional committee process and requiring priority on the House and Senate floors — for Congress to reconsider the Court’s interpretations of federal law. 37 This would enable quick legislative fixes where there is sufficient political support. Because such a bill would be purely procedural, it might not be seen as a partisan power grab. Moreover, concerns about the institutional power of Congress vis-à-vis the Court could in some circumstances cut across party lines.

Reforms to the Supreme Court’s jurisdiction that lack partisan valence might also be viable. For example, one of us has proposed expanding the Court’s jurisdiction to include a number of cases selected at random from final judgments of the lower courts. 38 That reform would not seek to change the Court’s decisionmaking in any partisan direction, but instead merely to force the Court to examine and rule on legal issues that routinely arise in the lower federal courts but that might otherwise escape the Court’s attention. Such a reform could also help reinforce and emphasize the Court’s role as an institution that resolves technical questions rather than one that issues grand pronouncements on values-laden constitutional issues. 39

B. The Executive Branch and Supreme Court Reform

Despite our arguments above, one might still conclude that getting reforms through Congress is impossible in the short run. But even reformers who take this view need not give up entirely. The Executive Branch can make policy changes that don’t involve Congress at all, and Congress can make reforms to the Executive that would indirectly affect the Court without targeting it. These changes should also be seen as part of the larger project of Supreme Court reform.

Start with the observation that the Executive Branch — particularly the Office of the Solicitor General (OSG) within the Department of Justice (DOJ) — is one of the most influential players in constitutional law. So much so that the Solicitor General has been called “the tenth justice.” 40 The Solicitor General not only has “substantive influence” over the development of the law, but also “procedural influence” in choosing which cases to bring to the Court. 41 The Solicitor General’s choice of the order in which to bring cases, for example, can matter for how the law develops. 42

In recent years, the OSG has played a major role in the shape of the Court’s docket by declining to defend federal statutes before the Court, despite longstanding norms under which DOJ “has a duty to defend the constitutionality of an Act of Congress whenever a reasonable argument can be made in its support.” 43 In the litigation that led to United States v. Windsor , 44 OSG under the Obama Administration refused to defend the Defense of Marriage Act. 45 Then, under the Trump Administration, DOJ declined to defend the Affordable Care Act, arguing to the Court in California v. Texas 46 that the Act should be struck down in its entirety 47 — a development for which some thought the precedent set by the Obama Administration was partly to blame. 48

There is much debate on the importance of the duty to defend. Professors Neal Devins and Saikrishna Prakash argue that “there are absolutely no good constitutional reasons to preserve the duty to defend.” 49 Nonetheless, there are reasons to worry about DOJ’s political leadership choosing to ask the Court to overturn federal statutes in cases with a strong partisan valence. Such developments seem unlikely to foster confidence in DOJ or in the notion of the Court as an institution above politics. For this reason, Attorney General Merrick Garland could consider instituting stronger policies requiring DOJ attorneys to defend the constitutionality of federal statutes absent extremely compelling circumstances. Although there will certainly be disagreements about what constitutes compelling circumstances and such a policy could be reversed by a future administration, there could be value in reestablishing, and deepening, the norm that DOJ’s job is to defend federal statutes.

A related point concerns DOJ’s participation in constitutional cases before the Court. OSG participates in many hot-button cases as an amicus curiae, making arguments to persuade the Court of the current administration’s preferred view of important constitutional questions. Many such cases directly implicate federal interests, such as federal statutes, federal agencies, and so forth. But some cases in which OSG participates do not, at least not obviously so. For example, did OSG under the Obama Administration need to participate as an amicus in Obergefell v. Hodges in order to lay out a contested view of the constitutionality of state gay marriage bans? 50 Did OSG under the Trump Administration need to participate in Fulton v. City of Philadelphia in order to defend a broad interpretation of the Free Exercise Clause against a municipality’s rules governing adoption agencies? 51 A policy that limited OSG’s participation in hot-button cases could reduce the appearance of the Court as a partisan institution, given that OSG’s positions in such cases are likely to track the political views of the party controlling the White House.

Another political flashpoint has been OSG’s efforts to seek emergency relief from the Supreme Court. As Professor Stephen Vladeck has documented, OSG under the Trump Administration sought emergency and extraordinary relief from the Court far more frequently than under previous Presidents. 52 And it typically did so in cases raising the highest-profile, most controversial issues. 53 Where conservative judges acceded to these requests, it gave “at least the appearance that the Court is showing favoritism not only for the federal government as a party, but for a specific political party when it’s in control of the federal government.” 54

The Attorney General (or Solicitor General) could design policies limiting the circumstances in which OSG would seek emergency or extraordinary relief from the Court. True, such policies could be abandoned by a future administration and there is no guarantee that they would change the substance of the Court’s decisions. But if the goal is to turn down the political temperature surrounding the Court and to rebuild trust in legal institutions, such a policy deserves serious consideration. We note also that members of Congress seem interested in reforms that might change how the Court deals with its “shadow docket.” 55

There is another systemic problem with the OSG’s role in litigation before the Court. As one of us has argued, the Government has a meaningful and persistent advantage in cases involving criminal justice, given various structural advantages and incentives the OSG has in comparison to lawyers for individual criminal defendants. 56 A solution to this problem is the creation of a “Defender General” who would advocate for the interests of criminal defendants collectively before the Court. 57 Given that criminal justice reform has become a surprisingly popular issue, 58 this reform could find support on both sides of the aisle. Although this proposal would likely require statutory authorization or, perhaps, unilateral action by the Court itself, it could help address systemic problems posed by the Executive Branch’s role at the Court — problems that indirectly connect to public discontent with criminal justice.

C. Voluntary Reforms: Court Reform from the Inside

The final source of Supreme Court reform could come from an unlikely source: the Court itself. The Justices could choose to adopt rules constraining themselves. They might choose to do so in order to improve perceptions of the Court among members of the public. But doing so might also be a way to help the Court stave off more aggressive reform efforts by Congress down the road.

The most obvious starting point would be for the Justices to voluntarily adopt ethics rules. Doing so might undercut efforts in Congress to impose an ethics code on the Justices. And the rules the Justices designed for themselves might be more amenable to the Justices themselves than whatever Congress would come up with. In fact, the Court may already be at work on this effort. In testimony before Congress in 2019, Justice Kagan said that the Chief Justice was considering whether to implement an ethics code for the Justices. 59 As no ethics code has since appeared, he may have shelved the effort. But, at a moment where the Court arguably faces greater political pushback than it has encountered in decades — exemplified by the sudden willingness to consider Court-expansion by Democratic politicians 60 — the time may be right to resume those efforts. As Professor Veronica Root Martinez has put it, adopting ethics reforms would “signal to the public that the institution and its members — the Justices — are above reproach.” 61

An issue closely intertwined with ethics rules is the Court’s disclosure of gifts and other potential financial transactions. There is bipartisan support for the Court to become more transparent in its disclosures. Recently, Senator Sheldon Whitehouse (a Democrat) and Senator Lindsey Graham (a Republican) sent the Court a letter suggesting that “a legislative solution may be in order to bring the judiciary’s financial disclosure requirements in line with other branches of government if the Court does not address the issue itself.” 62 The Court would be well advised to take the hint.

Consider also the independent powers of the Chief Justice. For example, the Chief Justice has the power to designate federal judges to serve on the Foreign Intelligence Surveillance Court (FISC). 63 In 2013, a report in the New York Times showed that “[t]en of the court’s 11 judges — all assigned by Chief Justice Roberts — were appointed to the bench by Republican presidents.” 64 It is possible that the Times story may have pushed Chief Justice Roberts to pick both Republican- and Democratic-appointed judges; in the intervening years, the court’s membership has become balanced between both parties. 65 The Chief Justice should voluntarily continue to pick both Republican and Democratic appointees for FISC in roughly equal numbers in order to ensure a partisan balance — and signal that he is not simply committed to giving Republican-appointed judges more influence over the shape of the law. The Chief Justice has a variety of other administrative roles, including controlling some nonjudicial appointments, which he could also manage in a balanced manner. 66

The Court could also take steps to make its practices more transparent and less insular. Professor Kate Shaw has shown that the Court’s selection of amici curiae to represent orphaned arguments have largely gone to former law clerks of the Justices. 67 The selections are important as they give rare opportunities to gain experience arguing before the Supreme Court. That the Court’s selection process tends to select individuals the Justices know well (indeed, have worked closely with) has implications not only for the diversity of the Supreme Court bar, but for the development of the law as well. 68 With a 6-3 Court favoring conservatives, this dynamic suggests that conservatives will likely get more opportunities to build a career arguing at the Supreme Court — and in the process, shaping its decisions. The Court could instead establish a more transparent process governing this selection.

The Court could also modify its rules governing the disclosure of funding behind amicus curiae briefs. Senator Whitehouse has recently urged the Court to strengthen these rules. 69 At present, the Supreme Court Rules require amici to disclose who made monetary contributions to the brief, 70 but where the amicus (or the funders of the amicus) is an organization, the amicus need not disclose the organization’s ultimate source of funding. Ensuring integrity in the amicus process seems especially important when the Court regularly relies on amicus briefs for important factual citations in its opinions. 71 And greater transparency can only improve the perception of the Court in the public eye. These are only a few of the possible ways the Court could reform itself. There likely are others that the Justices themselves could identify. And while these reforms are admittedly modest, especially when compared to the major restructuring progressives have demanded, they would nonetheless be improvements to an institution that is facing a challenge to its legitimacy. The Court should consider them on its own initiative, and those outside the Court should encourage the Justices to do so as well.

II. A Longer View

We have outlined ways in which some modest Supreme Court reforms, broadly construed, might still be possible in the short term. What about the longer term — beyond the next two or four years, and thus beyond today’s precise balance of political power? Calls for more significant Court restructuring will not dissipate overnight. Indeed, the underlying causes of calls for Court expansion and other external constraints and structural reforms will likely persist.

Here, we proceed into the realm of speculation. We tread with humility about our ability to predict the future course of political events. Nonetheless, consider one way things could play out. Within the next few years, the strongly conservative majority on the Court could well produce decisions that sharply move the law to the right and that generate significant public controversy. And those decisions would produce significant reactions by Democratic politicians. If so, that will reawaken calls for major structural change to the Court. In that moment, how the public reacts and how much power Democrats wield in Washington will determine whether structural Court reform becomes a realistic possibility. Public support for Court expansion or other types of major reform seem more likely if the current Court becomes seen as highly partisan.

None of this is certain to happen. And we note that there have been plenty of predictions over the years that the Court was about to make radical changes to the law that did not quite come to pass. Three decades ago, Kathleen Sullivan in a Harvard Law Review Supreme Court Foreword observed that the Rehnquist Court showed “surprising moderation” despite numerous predictions that “a conservative revolution was at hand.” 72 If such predictions proved overblown before, shouldn’t we be careful about similar predictions today? 73

Perhaps, but one could conclude that the situation now is different from earlier moments. First, the conservative majority is not merely 5-4, but 6-3. That means that in many cases that are likely to divide the Court along ideologically predictable lines, not just one but two conservative Justices would need to “swing” in order for the Court to issue decisions that reach surprising results. That hasn’t been true in recent decades, when there have been four ideologically liberal Justices needing only one of the conservative Justices to join them to form a majority.

Second, the selection of Supreme Court nominees has become more ideological in recent years, and the Justices who have joined the Court recently appear to have much more rigid interpretive approaches than their predecessors. The three newest Justices — Gorsuch, 74 Kavanaugh, 75 and Barrett 76 — have all expressed support for originalism and textualism. 77 None seems likely to produce decisions that are as ideologically unpredictable as Justice Kennedy, who was the Court’s key swing vote from 2005 until his retirement in 2018. Moreover, legal culture has become increasingly polarized in recent decades, such that liberal and conservative Justices increasingly operate in different worlds and speak to different audiences 78 — a development that may produce less ideological drift among Justices than seen in previous generations.

Finally, several early data points suggest that observers should not expect “surprising moderation” from this Court. First, in a recent opinion, Justice Kavanaugh — who is now widely seen as the Court’s median Justice 79 — voiced support for an aggressive reading of Article II of the Constitution’s Election Clause, indicating an eagerness for the Court to review rulings by state courts interpreting state election laws. 80 Such rulings could well tip the outcomes of future elections and would surely expose the Court to significant criticism from those seeking to paint the majority as partisan.

Second, Justice Alito recently delivered a keynote address to the Federalist Society that suggested his willingness to pursue an aggressively conservative agenda. In remarks that some saw as openly partisan, Justice Alito touched on numerous hot-button social issues, seeming to take sides on the Republican side of the culture wars. 81 Based on this speech, there is little reason to think that Justice Alito would prioritize moderate compromises.

Finally, one of the first substantive rulings by the Court since Justice Barrett was confirmed may be a preview of what is to come. In Roman Catholic Diocese of Brooklyn v. Cuomo , 82 the Court issued a 5-4 per curiam decision, with Justice Barrett in the majority, enjoining occupancy limits imposed on the Diocese by New York Governor Andrew Cuomo due to the COVID-19 pandemic. 83 Justice Gorsuch wrote a particularly cutting concurrence in which he implied that the dissenters — including Chief Justice Roberts — were “shelter[ing] in place when the Constitution is under attack.” 84 While it is too soon to say what this new majority will do, the Roman Catholic Diocese decision suggests that the majority may not be shy about issuing controversial decisions.

If the Court majority does choose to pursue an aggressive agenda, what would happen next? Structural reform proposals could quickly become the top priority policy goal for progressives. What is currently low-simmering frustration could boil over into fiery rage at any moment, depending on what the Court does.

Whether all this happens, or whether it actually leads to any concrete reforms, is anyone’s guess. But it is enough of a possibility that those who study the Court and the Constitution should continue to do the work of thinking about possible Court reforms so that political leaders can be ready when the issue returns to the agenda. The conversation about how and why to reform the Court will, and must, continue.

* Associate Professor of Law, Washington University in St. Louis. ** Professor of Law and Director of the Program in Law and Government, Vanderbilt Law School. For helpful conversations, we are grateful to Leah Litman, Gabe Roth, and the editors of the Harvard Law Review .

^ See Astead W. Herndon & Maggie Astor, Ruth Bader Ginsburg’s Death Revives Talk of Court Packing, N. Y. TIMES (Oct. 22, 2020), https://www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html [ https://perma.cc/5HJ8-8HNG ].

^ See Alexander Burns, Democrats Beat Trump in 2020. Now They’re Asking: What Went Wrong?, N. Y. TIMES (Feb. 20, 2021), https://www.nytimes.com/2021/02/20/us/politics/democrats-house-races-trump.html [ https://perma.cc/83BA-H8F4 ]; Jim Tankersley & Michael D. Shear, With Democrats in Control, Biden Moves to Advance Agenda, N. Y. TIMES (Jan. 20, 2021), https://www.nytimes.com/2021/01/07/business/democrats-biden-agenda.html [ https://perma.cc/SXR8-Q9HX ].

^ Matt Ford, The Supreme Court Is in Charge Now, New Republic (Nov. 13, 2020), https://newrepublic.com/article/160178/supreme-court-biden-judicial-gridlock [ https://perma.cc/S5ZD-8WPF ]. While Ford’s article was written before the January 2021 Georgia Senate runoffs that gave Democrats narrow control over the Senate, he made clear his prediction did not turn on that possibility. See id; see also Mary Kay Linge, What Joe Biden and Democrats Can and Can’t Do with Control of Congress, N.Y. Post (Jan. 9, 2021, 10:45 AM), https://nypost.com/2021/01/09/what-joe-biden-and-dems-can-and-cant-do-with-control-of-congress [ https://perma.cc/J7U9-652J ].

^ See Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court , 129 Yale L.J . 148 (2019).

^ See Daniel Epps & Ganesh Sitaraman, Supreme Court Reform and American Democracy , 130 Yale L.J.F . 821 (2021).

^ For detailed examinations of this episode, see Jeff Shesol , Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010); Burt Solomon , FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy (2009).

^ See Josh Lederman, Inside Pete Buttigieg’s Plan to Overhaul the Supreme Court , NBC News (June 3, 2019, 6:03 PM), https://www.nbcnews.com/politics/2020-election/inside-pete-buttigieg-s-plan-overhaul-supreme-court-n1012491 [ https://perma.cc/VC88-VZW4 ]. Buttigieg’s proposal was co-created by the authors. See generally Epps & Sitaraman, supra note 4.

^ Senator Bernie Sanders indicated support for “if not term limits, then rotating judges to the appeals court as well.” Gregory Krieg, Bernie Sanders Floats Modified Term Limits for Supreme Court Justices , CNN (Apr. 2, 2019, 12:42 AM), https://www.cnn.com/2019/04/01/politics/bernie-sanders-supreme-court/index.html [ https://perma.cc/GX5D-UVWQ ]. Beto O’Rourke endorsed 18-year term limits. See Caitlin Huey-Burns, Beto O’Rourke Wants Term Limits for Supreme Court Justices , CBS News (June 5, 2019), https://www.cbsnews.com/news/beto-orourke-interview-orourke-talks-with-cbsn-elaine-quijano-voting-rights-supreme-court-today-2019-06-05 [ https://perma.cc/BC2A-SD6D ]. So did Andrew Yang. See Andrew Yang, 18 Year Term Limit for Supreme Court Justices , Yang2020 — Andrew Yang for President , https://www.yang2020.com/policies/scotustermlimits [ https://perma.cc/DH5W-V4GP ].

^ Democratic Nat’l Convention, 2020 Democratic Party platform 58 (2020).

^ See Elaine Godfrey, The Democrats’ Supreme Court Hail Mary , The Atlantic (Sept. 24, 2020), https://www.theatlantic.com/politics/archive/2020/09/democrats-case-court-packing/616446 [ https://perma.cc/W5ZB-BRY7 ]; Kristina Peterson & Lindsay Wise, Senate Democrats Grapple with Progressives’ Supreme Court Demands , Wall St. J . (Sept. 24, 2020, 3:11 AM), https://www.wsj.com/articles/senate-democrats-grapple-with-progressives-supreme-court-demands-11600974659 [ https://perma.cc/3ZA2-JPY3 ].

^ See Herndon & Astor, supra note 1.

^ Jack Shafer, Opinion, Biden’s Slippery Tactic to Snuff the Court-Packing Debate , Politico (Oct. 23, 2020, 7:13 PM), https://www.politico.com/news/magazine/2020/10/23/biden-court-packing-commission-432036 [ https://perma.cc/E9QR-6QYW ].

^ Press Release, White House, President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States (Apr. 9, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/09/president-biden-to-sign-executive-order-creating-the-presidential-commission-on-the-supreme-court-of-the-united-states [ https://perma.cc/L5DB-8TK4 ].

^ Exec. Order No. 14,023, 86 Fed. Reg. 19,569 (Apr. 9, 2021).

^ See Eric Levitz, The Democrats’ Civil War over the Filibuster Has Barely Begun , N.Y. Mag . (Jan. 27, 2021), https://nymag.com/intelligencer/2021/01/manchin-sinema-schumer-mcconnell-filibuster.html [ https://perma.cc/K55L-J6BN ].

^ See Epps & Sitaraman, supra note 4.

^ See, e.g ., Lee Epstein et al., Public Response to Proposals to Reform the Supreme Court 3 (2020), http://epstein.wustl.edu/research/CourtReformSurvey.pdf [ https://perma.cc/3ZX3-V7RP ] (finding 60% of respondents supported term limits as short as six or eight years for Supreme Court Justices); Adam Rosenblatt, Fix the Court: Agenda of Key Findings 3 (2020), https://fixthecourt.com/wp-content/uploads/2020/06/PSB-May-2020-key-findings-TL.pdf [ https://perma.cc/8HY3-3WR3 ] (finding 77% support among Americans for either term limits or a mandatory retirement age).

^ See Supreme Court Term Limits and Regular Appointments Act of 2020, H.R. 8424, 116th Cong. § 8(b) (2020).

^ See Ganesh Sitaraman (@GaneshSitaraman), Twitter (Sept. 29, 2020, 9:10 AM), https://twitter.com/GaneshSitaraman/status/1310929984626798592 [ https://perma.cc/5DN6-UJSN ].

^ Cf . Adrian Vermeule, Political Constraints on Supreme Court Reform , 90 Minn. L. Rev . 1154, 1168 (2006) (describing the “basic trade-off between impartiality and motivation” that makes Supreme Court reform systematically unlikely).

^ For an in-depth examination of the potential consequences of different term-limits proposals and how they would affect presidents’ relative influence on the Court, see Adam Chilton, Daniel Epps, Kyle Rozema & Maya Sen, Designing Supreme Court Term Limits , 95 S. Cal. L. Rev . (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3788497 [ https://perma.cc/8MS9-WVD3 ].

^ See, e.g ., Will Baude, One Cheer for Supreme Court Term Limits , Volokh Conspiracy (Oct. 26, 2020, 6:30 AM), https://reason.com/volokh/2020/10/26/one-cheer-for-supreme-court-term-limits [ https://perma.cc/C2MY-JDNU ] (expressing concerns about this “final-period problem”). Note, of course, that the problem may not be limited to a “final period,” as Justices who aspire to be politicians might want to build a record that appeals to their future political base and might want to stand ready to resign for the right political opportunity.

^ There are reasonable arguments in favor of the constitutionality of imposing effective term limits by statute. See, e.g ., Roger C. Cramton, Constitutionality of Reforming the Supreme Court by Statute, in Reforming The Court: Term Limits For Supreme Court Justices 345, 359–60 (Roger C. Cramton & Paul Carrington eds., 2006). But there are also weighty counterarguments. See, e.g ., Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered , 29 Harv. J.L. & Pub. Pol’y 769, 859–68 (2006).

^ See Steven Lubet, Why Won’t John Roberts Accept an Ethics Code for Supreme Court Justices? , Slate (Jan. 16, 2019, 9:00 AM), https://slate.com/news-and-politics/2019/01/supreme-court-ethics-code-judges-john-roberts.html [ https://perma.cc/D8KG-A6CS ].

^ See Opinion, The Justices’ Junkets , Wash. Post ( Feb. 20, 2011), https://www.washingtonpost.com/opinions/the-justices-junkets/2011/02/20/ABCJb7H_story.html [ https://perma.cc/BSC9-WKQK ].

^ See Dan Collins, Scalia-Cheney Trip Raises Eyebrows , CBS News ( Dec. 15, 2003, 10:19 AM), <a href="https://www.cbsnews.com/news/scalia-cheney-trip-raises-eyebrows ">https://www.cbsnews.com/news/scalia-cheney-trip-raises-eyebrows [ https://perma.cc/7PDQ-S8PT ]. For Justice Scalia’s response to calls for his recusal, see Cheney v. U.S. Dist. Ct., 541 U.S. 913 (2004).

^ See, e.g ., Johanna Kalb & Alicia Bannon, Brennan Ctr. for Just., Supreme Court Ethics Reform 2 ( Sept. 24, 2019), https://www.brennancenter.org/sites/default/files/2019-09/Report_2019_09_SCOTUS_Ethics_FINAL.pdf [ https://perma.cc/T5Q2-BFPR ].

^ For example, recently Professor Veronica Root Martinez, Professor Leah Litman, and Molly Coleman sent a letter to the Democratic and Republican leaders of the House Judiciary Committee urging Congress to enact stricter rules to prevent sexual harassment and other misconduct in the federal judiciary. Letter from Veronica Root Martinez, Leah Litman, and Molly Coleman to Hon. Hank Johnson and Hon. Darrell Issa (Apr. 14, 2021), https://www.scribd.com/document/502776588/Letter-to-Courts-Subcommittee-re-misconduct-reform [ https://perma.cc/QF4H-GGAY ].

^ See, e.g ., Supreme Court Ethics Act, H.R. 1057, 116th Cong. § 964 (2019); Twenty-First Century Courts Act, H.R. 6017, 116th Cong. § 365 (2020).

^ Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism , 26 Geo. J. Legal Ethics 443, 478 (2013).

^ Ian Millhiser, 9 Ways to Reform the Supreme Court Without Court-Packing , Vox (Oct. 21, 2020, 12:55 PM), https://www.vox.com/21514454/supreme-court-amy-coney-barrett-packing-voting-rights [ https://perma.cc/H27C-E5W2 ].

^ Pub. L. No. 102-166, 105 Stat. 1071 (codified at 42 U.S.C. §§ 2000e–2000e-16).

^ Pub. L. No. 111-2, 123 Stat. 5 (2009).

^ See Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011 , 92 Tex. L. Rev . 1317, 1319 (2014) (offering data on overrides over time); William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions , 101 Yale L.J . 331, 338 (1991) (same).

^ 5 U.S.C. §§ 801–808.

^ See Cong. Rsch. Serv ., The Congressional Review Act (CRA): Frequently Asked Questions (Jan. 14, 2020), https://fas.org/sgp/crs/misc/R43992.pdf [ https://perma.cc/KM76-DRKJ ].

^ Ganesh Sitaraman, How to Rein in an All-Too-Powerful Supreme Court , The Atlantic (Nov. 16, 2019), https://www.theatlantic.com/ideas/archive/2019/11/congressional-review-act-court/601924 [ https://perma.cc/H85R-LXYT ].

^ See Daniel Epps & William Ortman, The Lottery Docket , 116 Mich. L. Rev . 705, 707 (2018).

^ Along these lines, one point of interest is Professor Benjamin Johnson’s argument that the Supreme Court’s certiorari practices go far afield from what Congress authorized when providing the Court with certiorari jurisdiction in 1891 and expanding that jurisdiction in 1925. See Benjamin B. Johnson, The Origins of Supreme Court Question Selection , 122 Colum. L. Rev . (forthcoming 2021) (manuscript at 10) (on file with the Harvard Law School library). As Johnson argues, there is evidence that Congress intended to require the Court to review entire cases , and to cherry pick distinct legal questions , through the certiorari method. Id . at 10–11. Johnson’s argument, if right, would provide a further basis for Congress to try to reassert itself — even if doing so involved merely holding hearings and not passing new legislation.

^ See, e.g ., Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law 3 ( 1987).

^ Seth P. Waxman, Foreword: Does the Solicitor General Matter? , 53 Stan. L. Rev . 1115, 1117 (2001).

^ Id . at 1118 (discussing the Justice Department’s litigation strategy for cases on the New Deal).

^ William French Smith, The Attorney General’s Duty to Defend the Constitutionality of Statutes 25 (Apr. 6, 1981), https://www.justice.gov/sites/default/files/olc/opinions/1981/04/31/op-olc-v005-p0025_0.pdf [ https://perma.cc/96M5-SVLV ].

^ 570 U.S. 744 (2013).

^ Id . at 781–82 (Scalia, J., dissenting).

^ 140 S. Ct. 1262.

^ Brief for the Federal Respondents at 13, California , 140 S. Ct. 1262 (Nos. 18-840 & 19-1019).

^ See, e.g ., Fred Barbash, Trump Won’t Defend an Act of Congress in Court. He’s Following Obama’s Lead ., Wash. Post (Mar. 29, 2019, 8:18 AM), <a href="https://www.washingtonpost.com/politics/2019/03/30/trump-wont-defend-an-act-congress-court-hes-following-obamas-lead ">https://www.washingtonpost.com/politics/2019/03/30/trump-wont-defend-an-act-congress-court-hes-following-obamas-lead [ https://perma.cc/U5NS-LP8L ].

^ Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend , 112 Colum. L. Rev. 507, 510 (2012).

^ See Brief for the United States as Amicus Curiae Supporting Petitioners at 3 –4 , Obergefell v. Hodges, 576 U.S. 644 (2015) (Nos. 14-556, 14-562, 14-571 & 14-574).

^ See Brief for the United States as Amicus Curiae Supporting Petitioners at 11, Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020) (mem.) (No. 18-280).

^ See Stephen I. Vladeck, The Solicitor General and the Shadow Docket , 133 Harv. L. Rev. 123, 132–52 (2019) .

^ See id . at 132 –41 .

^ Id . at 127.

^ The House Judiciary Committee conducted a hearing on the “shadow docket.” See The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Courts, Intellectual Property and the Internet of the H. Committee on the Judiciary , 117th Cong. (2021). William Baude coined this term to refer to “a range of orders and summary decisions that defy [the Supreme Court’s] normal procedural regularity.” William Baude, Foreword: The Supreme Court’s Shadow Docket , 9 N.Y.U. J.L. & Liberty 1, 1 (2015).

^ See Daniel Epps & William Ortman, The Defender General , 168 U. Pa. L. Rev . 1469, 1471 –72 (2020).

^ See id . at 1472; see also Adam Liptak, A Proposal to Offset Prosecutors’ Power: The “Defender General ”, N.Y. Times (Jan. 27, 2020), https://www.nytimes.com/2020/01/27/us/a-proposal-to-offset-prosecutors-power-the-defender-general.html [ https://perma.cc/88ZS-BUZ9 ].

^ See Colleen Long & Hannah Fingerhut, AP-NORC Poll: Nearly All in US Back Criminal Justice Reform , AP News (June 23, 2020), https://apnews.com/article/ffaa4bc564afcf4a90b02f455d8fdf03 [ https://perma.cc/F98K-L7U9 ].

^ See Robert Barnes, Supreme Court Justices Tell Congress They Are Not Considering Televising Hearings , Wash. Post (Mar. 7, 2019, 6:39 PM), https://www.washingtonpost.com/politics/courts_law/supreme-court-justices-tell-congress-they-are-not-considering-televising-hearings/2019/03/07/5fb28684-4116-11e9-9361-301ffb5bd5e6_story.html [ https://perma.cc/GA44-Q6BY ].

^ See supra p. 398.

^ Veronica Root Martinez, A Weakened Supreme Court Needs a Code of Ethics , Bloomberg L . (Nov. 5, 2020, 4:00 AM), https://news.bloomberglaw.com/us-law-week/a-weakened-supreme-court-needs-a-code-of-ethics [ https://perma.cc/4ZEK-CKP2 ].

^ See Letter from Sens. Sheldon Whitehouse and Lindsey Graham to Hon. John G. Roberts and Hon. Scott S. Harris (Feb. 4, 2021), <a href="https://www.whitehouse.senate.gov/imo/media/doc/2.4.2021%20Whitehouse-Graham%20SCOTUS%20travel%20%20gift%20disclosure%20letter.pdf ">https://www.whitehouse.senate.gov/imo/media/doc/2.4.2021%20Whitehouse-Graham%20SCOTUS%20travel%20%20gift%20disclosure%20letter.pdf [ https://perma.cc/U28L-32GL ]. Republican Senator John Kennedy recently proposed the Supreme Court Transparency Act, which would impose more obligations on the Justices to provide publicly available ethics and financial disclosures. S. 956, 117th Cong. (2021).

^ Charlie Savage, Roberts’s Picks Reshaping Secret Surveillance Court , N.Y. Times (July 25, 2013), https://www.nytimes.com/2013/07/26/us/politics/robertss-picks-reshaping-secret-surveillance-court.html [ https://perma.cc/U2E8-ASNM ].

^ See United States Foreign Intelligence Surveillance Court, Current Membership , https://www.fisc.uscourts.gov/current-membership [ https://perma.cc/VVM5-VCLF ].

^ Cong. Rsch. Serv., The Chief Justice of the United States: Responsibilities of the Office and Process for Appointment 5–6 (2005).

^ Katherine Shaw, Friends of the Court: Evaluating the Supreme Court’s Amicus Invitations , 101 Cornell L. Rev . 1533, 1556–57 (2016).

^ Id . at 1575–83.

^ See Mike Scarcella, Sheldon Whitehouse Slams “Plainly Inadequate” SCOTUS Amicus Disclosure Rule , Nat’l L.J. ( Jan. 23, 2020), https://www.law.com/nationallawjournal/2020/01/23/sheldon-whitehouse-slams-plainly-inadequate-scotus-amicus-disclosure-rule [ https://perma.cc/2DF3-Y99K ]. One of the authors (Epps) previously served as a Special Counsel for Senator Whitehouse on the Senate Judiciary Committee.

^ See Sup. Ct. R. 37.6 .

^ See Allison Orr Larsen, The Trouble with Amicus Facts , 100 Va. L. Rev . 1757, 1777–79 (2014).

^ Kathleen M. Sullivan, The Supreme Court, 1991 Term — Foreword: The Justices of Rules and Standards , 106 Harv. L. Rev . 22, 24 (1992).

^ Then again, it was only four years later that Professor Erwin Chemerinsky would declare the arrival of the “Rehnquist Revolution.” Erwin Chemerinsky, The Rehnquist Revolution , 1 Nexus 21 (1996). See also Erwin Chemerinsky, The Federalism Revolution , 31 N.M. L. Rev . 7 (2001); Erwin Chemerinsky, The Rehnquist Revolution , 2 Pierce L. Rev . 1 (2004).

^ See Emily Bazelon, How Will Trump’s Supreme Court Remake America? , N.Y. Times (Feb. 28, 2020), https://www.nytimes.com/2020/02/27/magazine/how-will-trumps-supreme-court-remake-america.html [ https://perma.cc/4VSQ-5WF3 ].

^ See Emily Bazelon & Eric Posner, Opinion, Who Is Brett Kavanaugh? , N.Y. Times (Sept. 3, 2018), https://www.nytimes.com/2018/09/03/opinion/who-is-brett-kavanaugh.html [ https://perma.cc/4JN4-5XGW ]; Eric J. Segall, Opinion, Does Originalism Matter Anymore? , N.Y. Times (Sept. 10, 2018), https://www.nytimes.com/2018/09/10/opinion/kavanaugh-originalism-supreme-court.html [ https://perma.cc/XK3S-2PFK ].

^ See Brian Naylor, Barrett, An Originalist, Says Meaning of Constitution “Doesn’t Change Over Time ,”’ NPR (Oct. 13, 2020, 10:08 AM), https://www.npr.org/sections/live-amy-coney-barrett-supreme-court-confirmation/2020/10/13/923215778/barrett-an-originalist-says-meaning-of-constitution-doesn-t-change-over-time [ https://perma.cc/T9DH-4DPE ].

^ We note that there is debate about how similar the three Justices’ approaches actually are. See, e.g ., Adam Liptak , Kavanaugh and Gorsuch, Justices with Much in Common, Take Different Paths , N . Y. Times (Mar. 12, 2019), https://www.nytimes.com/2019/05/12/us/politics/brett-kavanaugh-neil-gorsuch.html [ https://perma.cc/48V4-WNU2 ].

^ See generally Neal Devins & Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court (2019).

^ See Greg Stohr, Kavanaugh Emerges as Man-in-the-Middle with Supreme Court Set to Shift Right , Bloomberg L. (Sept. 23, 2020, 9:32 PM), https://news.bloomberglaw.com/us-law-week/kavanaugh-emerges-as-unlikely-liberal-hope-for-court-swing-vote [ https://perma.cc/A549-LR3Q ].

^ See Democratic Nat’l Comm. v. Wis. State Legislature, No. 20A66, slip op. at 9 n.1 (U.S. Oct. 26, 2020) (Kavanaugh, J., concurring in denial of application to vacate stay).

^ See Adam Liptak, In Unusually Political Speech, Alito Says Liberals Pose Threat to Liberties , N.Y. Times (Nov. 13, 2020), https://www.nytimes.com/2020/11/13/us/samuel-alito-religious-liberty-free-speech.html [ https://perma.cc/EN97-4JPN ].

^ No. 20A87, 2020 WL 6948354 (Nov. 25, 2020).

^ Id . at *3–4.

^ Id . at *6 (Gorsuch, J., concurring).

Supreme Court

May 30, 2021

Lesson Plan: 2023-2024 Supreme Court Term Preview

How the Supreme Court Decides Which Cases to Hear

Supreme Court Justice Stephen Breyer talked about the process that the Supreme Court uses to select only a few court cases out of the millions of state and federal cases each year. He explained the appellate process and the criteria that justices use to determine if a case should be heard by the Supreme Court.

Description

This lesson plan offers a preview of cases in the 2023-2024 Supreme Court term. The lesson opens with reflective questions that ask students to consider their knowledge of famous Supreme Court cases and rulings, the issues that the Court addressed last term and the last term's impact, and potential issues that the Court may address during this term. Students then watch, analyze, and respond to an introductory video in which Supreme Court Justice Stephen Breyer talks about the process that the Supreme Court uses to select cases each term. Next, students engage in an activity where they choose to study two cases that will be argued in front of the Supreme Court during this term. Students will conduct additional self-guided research as needed to determine each case's petitioner(s) and respondent(s), key issue(s), expected outcome, facts of the case, and question(s) before the court, presenting their findings to the class. An optional extension asks students to conduct a similar analysis for one case that is pending the granting of certiorari and may or may not be heard by the court this term. The lesson concludes with a summative writing prompt.

This lesson offers several options for you to use with your students whether you are teaching in class, using a hybrid model, or engaging through distance learning. It can be completed in steps as a class or students can move at their own pace and complete the activities independently.

You can post links to the videos in the lesson along with the related handout and engage in discussion to share responses on a discussion board or learning management system.

You can also save and share the following Google resources for students to use with this lesson.

Handout: Graphic Organizer (Google Docs).

In Google, choose "File" then "Make a Copy" to get your own copy. You can make any needed adjustments in the instructions such as which activities students need to complete, when it is due, etc. and then make it available to them via Google.

Pose the following brainstorming questions to your students, directing them to answer one of choice and share their responses with a partner or small group.

Name three famous Supreme Court cases and summarize each ruling.
What issues did the Supreme Court address last term, and what impact did the cases have on the country?
Which issues do you think the Supreme Court may address during this term? Why?

INTRODUCTION

Play this introductory video clip [Clip #1] (6:36), in which Supreme Court Justice Stephen Breyer talks about the process that the Supreme Court uses to select cases each term.

Direct your students to answer each of the following questions in their graphic organizers and share their responses with a partner, a small group, or the whole class:

Explain the process that court cases go from their initial trial to when they are reviewed by the Supreme Court?
What does Justice Breyer mean by cases having a "federal question?" Why is this one of the factors in selecting Supreme Court cases?
How many cases are heard each year in the Supreme Court?
How do justices and their clerks review all their potential cases?
Explain the criteria that is used to decide which cases to hear.
Explain the process at the conference in which the Supreme Court discusses and votes on which cases to hear.

Have your students view the activity section of their graphic organizers and select two of the Supreme Court cases listed (each case is also listed below).

Direct your students to watch the video clip for each of the two cases, taking notes as they listen. Have your students fill in the boxes in the chart using the information they learned in the video clips.

If your students need additional information to complete the chart, have them conduct their research using either Oyez or ScotusBlog . Note: not all of the boxes will be filled in evenly .

Direct your students to prepare to share their findings with the class.

Clip #2: Loper Bright Enterprises v. Raimondo (3:59).
Clip #3: Securities and Exchange Commission v. Jarkesy (5:30).
Clip #4: Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited (4:26).
Clip #5: United States v. Rahimi (4:51).
Clip #6: Lindke v. Freed and O’Connor-Ratcliff v. Garnier (5:25).
Clip #7: Moore v. United States (3:08)

The Supreme Court regularly grants certiorari for additional cases throughout the term, including at its long conference. While some cases under consideration by the Supreme Court may ultimately not be heard, the key issues/questions may still lend critical insight.

Have your students view the extension section of their graphic organizers and select one of the potential Supreme Court cases listed (each case is also listed below).

Direct your students to watch the video clip for their selection, taking notes as they listen. Have your students fill in the boxes in the chart using the information they learned in the video clip.

Clip #8: Coalition for TJ v. Fairfax County School Board (3:21).
Clip #9: Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton (4:23).

After your students are finished with the lesson, direct them to complete the final culminating writing prompt in their graphic organizers, and have students share their responses, comparing their perspectives with their classmates' perspectives: Which cases this term do you think will: 1.) have surprising rulings, 2.) have the most immediate impact on the country, and 3.) have the longest lasting impact on the country? Be sure to include evidence from the video clips in the lesson to support your argument .

Home Page (Oyez)
Home Page (SCOTUSblog)

Additional Resources

Bell Ringer: Judicial Philosophies and the Supreme Court
Bell Ringer: New York State Rifle & Pistol Association v. Bruen (2022)
Bell Ringer: Bill of Attainder
Bell Ringer: The Chevron Doctrine
Bell Ringer: Examples of the Bureaucracy
Bell Ringer: Granting Certiorari
Lesson Plan: 2023-2024 Supreme Court Oral Arguments
Lesson Plan: Public Perceptions of the Supreme Court
Lesson Plan: Social Media's Role in Democracy
Constitution Clips: "Appropriations made by Law"
Constitution Clips: "Lay and collect Taxes"
Supreme Court

The Supreme Court’s coming war with Joe Biden, explained

The Supreme Court is poised to give itself a veto power over much of the Biden administration’s authority.

by Ian Millhiser

If you buy something from a Vox link, Vox Media may earn a commission. See our ethics statement.

An illustration of a gavel over Joe Biden

One of Justice Antonin Scalia’s final acts was to strike down President Obama’s plan to stave off the climate crisis.

On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.

This essay is adapted from the author’s book.

The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration’s most ambitious effort to fight climate change. Had the Clean Power Plan taken effect, the EPA predicted that by 2030 it would have reduced overall carbon dioxide emissions from utility power plants 32 percent from where they were in 2005.

But the Clean Power Plan never took effect. Though the Supreme Court’s order halting the plan was temporary, Donald Trump’s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn’t replaced this Obama-era policy with a significantly weaker rule , the appointment of Neil Gorsuch to fill Scalia’s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.

The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off. This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “ deconstruction of the administrative state .”

Enter the Roberts Court, fortified by Trump’s appointees. With six conservative justices, the Court has the votes it needs to make Bannon’s goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of the executive branch’s authority.

It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state . Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.

So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.

President Ronald Reagan talking to then-Supreme Court Justice nominee Antonin Scalia in the Oval Office, circa 1986.

But the right’s approach to federal agencies shifted drastically during the Obama administration. With the GOP’s grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary’s power to strike down new rules pushed by federal agencies. By Obama’s second term, the conservative Federalist Society’s national lawyers convention became a showcase of proposals to deconstruct the administrative state .

All of this culminated in Justice Neil Gorsuch’s opinion in Gundy v. United States (2019), which called for strict new limits on federal agencies — and for the judiciary to even strike down many federal regulations as unconstitutional. Though Gorsuch’s opinion was a dissent — that is, he didn’t yet have a majority for it — five justices now on the Court have largely endorsed his framework , which relies on a conservative legal principle known as “nondelegation.”

In other words, it may be only a matter of time before the Court starts striking down Biden administration regulations that rely on legal arguments that would have been treated as nonsense just a decade ago.

At least since the Franklin Roosevelt administration, federal agencies have had wide latitude to implement the policies the president campaigned on. And agency-initiated regulations answer such important questions as who has access to health care , how much workers are paid for their labor , and a wide range of environmental questions that go well beyond the Clean Power Plan.

So, no matter what issue you care about, there is likely a federal regulation that shapes the nation’s approach to that issue. If the Supreme Court strips the government of much of its power to promulgate these regulations, it could effectively grind down the Biden presidency — not to mention dismantle much of American law.

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Federal regulation, explained

Before we can understand how the Supreme Court might remake the balance of power between the executive and the judiciary, it’s important to understand what it means for a federal agency to regulate.

As a general rule, Congress can regulate businesses in two ways.

The most straightforward approach is simply to command industries to conduct their business in a certain manner. Thus, if Congress wants to reduce certain polluting emissions, it could enact a law that orders power plants to use a particular technology that reduces emissions.

But Congress is a slow-moving body, and federal laws are difficult to amend. If, in the 1970s, Congress had commanded power plants to use the best emissions reduction technology that existed at the time, it could have potentially locked these plants into using obsolete tech that is vastly inferior to the technology available now. At a minimum, Congress would have struggled to stay on top of new developments and to update this law as new methods of reducing emissions were invented.

For this reason, Congress may also regulate businesses in a second way. It can pass a law that lays out a broad federal policy but leave the details of how to implement that policy up to a federal agency. Often, such delegation means giving that agency a fair amount of authority to determine how businesses operate, so long as the agency uses this authority to advance the policy goal enacted by Congress.

When Congress wrote the Clean Air Act , for example, it made sure that the rules governing power plants could evolve as technology improves. Under this law, power plants must update their systems for reducing emissions to ensure that they achieve the same “degree of emission limitation achievable through the application of the best system of emission reduction” that currently exists, while also accounting for factors such as cost.

Congress also gave the job of figuring out what the “best system of emission reduction” is at any particular moment to the EPA administrator. As a practical matter, that means that EPA employees who are experts on environmental regulation and the energy industry will study which new technology is available and will update the rules governing power plants as that technology evolves.

And that’s exactly what EPA did when it created the Clean Power Plan. EPA determined that, to achieve the “best system of emission reduction,” at least some energy companies would need to shift from fairly dirty coal-fired electricity production to cleaner methods such as natural gas, or to renewable methods that result in no emissions at all.

Rules such as this one, which are promulgated by a federal agency pursuant to a federal law permitting them to do so, are known as “regulations.” When Bannon spoke of deconstructing the administrative state, or when the Federalist Society showcased proposals to diminish the executive branch’s authority, a major thrust of that project involved stripping agencies of much of their ability to regulate.

Ideally, laws like the Clean Air Act make complex lawmaking possible without having to sacrifice democratic accountability. Regulation allows our laws to be both democratic and dynamic. Such laws are democratic because the goals of federal policy — goals such as ensuring that power plants use the best emission reduction technology available — are still set by the people’s elected representatives in Congress. But they are dynamic because it allows federal rules to be updated without requiring Congress to enact a new law every time a new innovation is developed.

Yet, despite these advantages, the very idea that Congress should be free to delegate power in this way has many enemies within the conservative legal movement. In a 2016 opinion , for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies’ ability to regulate “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

After his elevation to the Supreme Court, Gorsuch called for strict new limits on the federal government’s power to regulate in his Gundy opinion. And since then, five members of the Court’s Republican-appointed majority have signaled, albeit in two different cases, that they agree with Gorsuch’s plans to restrict agency power .

Judge Neil Gorsuch delivers brief remarks after the announcement of his nomination to the Supreme Court on January 31, 2017.

Gorsuch and his allies do not simply view Congress’s power to delegate rulemaking authority to agencies as undesirable. They view broad delegations of power as inconsistent with the Constitution itself. And their narrow vision of federal power has profound implications for workers, consumers, patients, and the environment.

The future of federal regulation

There’s a name for this vision that Gorsuch and the Court’s conservatives are invoking: “nondelegation.”

Nonedelegation is the largely defunct idea that the Constitution places strict limits on Congress’s ability to delegate power to federal agencies. Although the Supreme Court briefly wielded the nondelegation doctrine to strike down New Deal policies that gave a simply extraordinary amount of regulatory power to President Roosevelt, this doctrine largely lay dormant for generations. And the Court’s decisions prior to Gundy emphasized just how reluctant courts should be to strike down laws permitting agencies to regulate.

Longstanding Supreme Court precedents hold that Congress has a broad authority to delegate power. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”

Thus, the Court has explained, Congress may delegate regulatory power to agencies so long as it “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”

While Reaganism was ascendant, conservative judges were often the biggest cheerleaders for broad judicial deference to federal agencies, frequently justifying such deference as a way to keep an unelected judiciary from undercutting democracy. As then-Judge Kenneth Starr wrote in a 1986 article on administrative law , “in part because federal judges are not directly accountable to any electorate, I believe they have a duty voluntarily to exercise ‘judicial restraint.’”

But these conservative calls for judicial restraint have since been replaced with bold demands for judicial intervention against federal agencies once Reaganism faded and Obama’s liberalism gained steam. A new conservative approach to administrative law, which seeks to concentrate power within a judiciary dominated by Republican appointees, is now ascendant.

In early October 2019, just a few days before Justice Brett Kavanaugh was confirmed to the Supreme Court, the eight remaining justices heard Gundy v. United States (2019), a case brought by a convicted sex offender who challenged his conviction for failing to register as a sex offender when he moved to New York. Herman Gundy’s case went after a federal statute that allowed the Justice Department to determine which sex offenders, who were convicted before a certain date, had to register with their state governments (the Justice Department determined that all eligible offenders must register).

Gorsuch used his opinion in Gundy to criticize the longstanding rule laid out in cases like Mistretta . Warning that permitting Congress to delegate power to agencies risks giving those agencies “unbounded policy choices,” Gorsuch proposed a vague new limit on Congress’s power to delegate.

According to Gorsuch, delegations of power to agencies must be struck down unless Congress put “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

This vague new standard is inconsistent with the framers’ understanding of the Constitution. As explained below, early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials .

And Gorsuch’s rule would effectively consolidate an enormous amount of power within the judiciary.

As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?

The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.

In theory, that could mean that federal regulations will simply receive more scrutiny from an impartial judiciary. But, in practice, the judiciary is only as good as the judges who staff it. If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration.

Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett arrive for the inauguration of President Joe Biden on January 20, 2021.

It should be noted that Gorsuch’s opinion in Gundy was a dissent — the opinion was joined only by Chief Justice John Roberts and Justice Clarence Thomas. But Justices Samuel Alito and Kavanaugh have both signaled in other opinions that they share Gorsuch’s desire to revive the nondelegation doctrine.

And in Little Sisters v. Pennsylvania (2020), five justices signed on to an opinion by Justice Thomas, which strongly suggests that many of the Affordable Care Act’s (ACA) provisions requiring health insurers to provide a minimum level of coverage to their customers are unconstitutional under the nondelegation doctrine.

Little Sisters considered a provision of the ACA allowing a federal agency to determine which forms of “preventive care and screenings” for women must be covered without copays or other out-of-pocket costs by health insurers. Among other things, the agency determined that contraceptive care must be covered.

Yet Thomas’s majority opinion strongly suggests that this provision of the Affordable Care Act violates the nondelegation doctrine. He accuses Congress of giving “virtually unbridled discretion to decide what counts as preventive care and screenings” to a federal agency. Thomas’s decision lays the groundwork for the Supreme Court to eventually strike down the requirement that health insurers cover birth control (and possibly other, similarly worded provisions of Obamacare requiring coverage of immunizations and pediatric care).

Indeed, in late February, a conservative federal judge in Texas cited Little Sisters to suggest that multiple provisions of the ACA may be unconstitutional under the nondelegation doctrine.

And it won’t be just the ACA. Literally any regulation pushed during the Biden presidency , dealing with a wide range of matters from the fight against climate change to the protection of workers, could be vetoed by a Republican Supreme Court under this doctrine.

The constitutional arguments for the nondelegation doctrine are quite weak

This consolidation of power within a conservative judiciary could happen despite the fact that the nondelegation doctrine rests on the thinnest of constitutional reeds.

The Constitution gives Congress the “legislative” power , and the president and the various federal agencies that answer to the president the “executive” power .

The legislative power, according to Gorsuch , is the power to “adopt generally applicable rules of conduct governing future actions by private persons.” And proponents of nondelegation claim that the Constitution places strict limits on Congress’s ability to delegate this power to agencies merely tasked with executing existing laws.

Often, proponents of the nondelegation doctrine quote a passage from the political philosopher John Locke, who claimed that “the legislative cannot transfer the power of making laws to any other hands ; for it being but a delegated power from the people, they who have it cannot pass it over to others.”

But there are many problems with this account of Congress’s ability to delegate power. For one thing, it misunderstands Locke. As law professors Julian Davis Mortenson and Nicholas Bagley note in an important paper , Locke draws a distinction between the legislature’s ability to “transfer” power and a “delegated” power.

Transferring a power requires a “permanent alienation” — that is, for Congress to “transfer” legislative power, it would have to give up that power forever to some other person or body. But Locke raised no objection to a legislature delegating a power, meaning that lawmakers may assign the ability to make certain binding rules to an agency, so long as the legislature retains the ability to take that power back.

Indeed, if anything, Locke’s quote undercuts the argument for the nondelegation doctrine because it recognizes that the legislative power has already been delegated once — to the legislature itself. Locke describes the power to make laws as “a delegated power from the people.” That is, it is the people, not the Congress or some other representative body, that has the inherent power to make rules that bind the whole of society. When the Constitution created Congress, it delegated the people’s power to make laws to that Congress. And Congress may, in turn, delegate a portion of that power to federal agencies.

Congress’s early history supports this reading of the Constitution, as the very first Congress enacted numerous laws giving vast discretion to other government officials . It allowed officials overseeing the Northwest Territory to “adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district.”

And it delegated Congress’s entire power to provide patents to inventors to executive branch officials, allowing the secretary of state, the secretary of war, or the attorney general to grant patents so long as they “deem the invention or discovery sufficiently useful or important.”

The First Congress didn’t simply give executive branch officials the power to issue licenses that would allow merchants to trade with Native American tribes, it also allowed the executive to promulgate regulations that would govern license holders “in all things touching the said trade and intercourse.”

The First Congress allowed the president to identify wounded or disabled soldiers, and to place them on “the list of the invalids of the United States, at such rate of pay, and under such regulations, as shall be directed by the President of the United States, for the time being.”

And it delegated to “any common law court of record” the power to grant citizenship to any free white person who resided in the country for two years, provided that the court was satisfied that the new citizen is a “person of good character.”

So the framers understood the Constitution to allow Congress to grant broad authority to federal agencies, and the position outlined by Gorsuch’s opinion in Gundy and Thomas’s opinion in Little Sisters is tough to square with this history.

But in the Supreme Court of the United States, history and constitutional text matter little if a party has five votes. And the nondelegation doctrine almost certainly has five votes.

President Biden will hardly be the first president to face lawsuits challenging his administration’s regulations. But he is likely to be the first president since Roosevelt to face a judiciary that’s so eager to rein in agency power.

A view of the US Supreme Court on September 28, 2020.

This essay is adapted from the author’s book, The Agenda: How a Republican Supreme Court Is Reshaping America .

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Federal Court Finder

Strategic Plan for the Federal Judiciary

The federal judiciary is respected throughout America and the world for its excellence, for the independence of its judges, and for its delivery of equal justice under the law. Through this plan, the judiciary identifies a set of strategies that will enable it to continue as a model in providing fair and impartial justice.

This plan begins with expressions of the mission and core values of the federal judiciary. Although any plan is by nature aspirational, these are constants which this plan strives to preserve. The aim is to stimulate and promote beneficial change within the federal judiciary—change that helps fulfill, and is consistent with, the mission and core values.

The United States Courts are an independent, national judiciary providing fair and impartial justice within the jurisdiction conferred by the Constitution and Congress. As an equal branch of government, the federal judiciary preserves and enhances its core values as the courts meet changing national and local needs.

Core Values

Rule of Law : legal predictability, continuity, and coherence; reasoned decisions made through publicly visible processes and based faithfully on the law.

Equal Justice : fairness and impartiality in the administration of justice; accessibility of court processes; treatment of all with dignity and respect.

Judicial Independence : the ability to render justice without fear that decisions may threaten tenure, compensation, or security; sufficient structural autonomy for the judiciary as an equal branch of government in matters of internal governance and management.

Diversity and Respect : a workforce of judges and employees that reflects the diversity of the public it serves; an exemplary workplace in which everyone is treated with dignity and respect.

Accountability : stringent standards of conduct; self-enforcement of legal and ethical rules; good stewardship of public funds and property; effective and efficient use of resources.

Excellence : adherence to the highest jurisprudential and administrative standards; effective recruitment, development and retention of highly competent and diverse judges and employees; commitment to innovative management and administration; availability of sufficient financial and other resources.

Service : commitment to the faithful discharge of official duties; allegiance to the Constitution and laws of the United States; dedication to meeting the needs of jurors, court users, and the public in a timely and effective manner.

The Plan in Brief

The Strategic Plan for the Federal Judiciary , updated in 2020, continues the judiciary’s tradition of meeting challenges and taking advantage of opportunities while preserving its core values. It takes into consideration various trends and issues affecting the judiciary, many of which challenge or complicate the judiciary’s ability to perform its mission effectively. In addition, this plan recognizes that the future may provide tremendous opportunities for improving the fair and impartial delivery of justice.

This plan anticipates a future in which the federal judiciary is noteworthy for its accessibility, timeliness, and efficiency; attracts to judicial service the nation’s finest legal talent; is an employer of choice providing an exemplary workplace for a diverse group of highly qualified judges and employees; works effectively with the other branches of government; and enjoys the people’s trust and confidence.

This plan serves as an agenda outlining actions needed to preserve the judiciary’s successes and, where appropriate, bring about positive change. Although its stated goals and strategies do not include every important activity, project, initiative, or study that is underway or being considered, this plan focuses on issues that affect the judiciary at large, and on responding to those matters in ways that benefit the entire judicial branch and the public it serves.

Identified in this plan are seven fundamental issues that the judiciary must now address, and a set of responses for each issue. The scope of these issues includes the fair and impartial delivery of justice; the public’s trust and confidence in, and understanding of, the federal courts; the effective and efficient management of resources; a diverse workforce and an exemplary workplace; technology’s potential; access to justice and the judicial process; and relations with the other branches of government.

Strategic Issues for the Federal Judiciary

The strategies and goals in this plan are organized around seven issues— fundamental policy questions or challenges that are based on an assessment of key trends affecting the judiciary’s mission and core values:

Issue 1: Providing Justice

Issue 2: Preserving Public Trust, Confidence, and Understanding

Issue 3: The Effective and Efficient Management of Public Resources

Issue 4: The Judiciary Workforce and Workplace

Issue 5: Harnessing Technology’s Potential

Issue 6: Enhancing Access to Justice and the Judicial Process

Issue 7: The Judiciary’s Relationships with the Other Branches of Government

These issues also take into account the judiciary’s organizational culture. The strategies and goals developed in response to these issues are designed with the judiciary’s decentralized systems of governance and administration in mind.

Download the report (pdf).

Eight Supreme Court Cases To Watch

An external shot of the U.S. Supreme Court.

The Supreme Court’s docket this term includes many of the complex issues American society is currently facing, including gun control, free speech online, race-based discrimination in voting, reproductive rights, presidential immunity from criminal accountability, and more.

The ACLU has served as counsel or filed friend-of-the-court briefs in all of the cases addressing these hot-button issues. The court will decide all its cases by the beginning of July. Here are eight undecided cases to watch, and what they mean for the future of our civil liberties.

Reproductive freedom: Protections for medication abortion and access to abortion during medical emergencies

Fda v. alliance for hippocratic medicine.

The Facts: Anti-abortion doctors, who do not prescribe medication abortion, are asking the Supreme Court to force the Food & Drug Administration (FDA) to impose severe restrictions on mifepristone – a safe and effective medication used in this country in most abortions and for miscarriage management – in every state, even where abortion is protected by state law.

Our Argument: The FDA approved mifepristone more than 20 years ago, finding that it is safe, effective, and medically necessary. Since its approval, more than 5 million people in the U.S. have used this medication. Our brief argued that the two lower courts – a district court in Texas and the U.S. Court of Appeals for the Fifth Circuit – relied on junk science and discredited witnesses to override the FDA’s expert decision to eliminate medically-unnecessary restrictions on an essential medication with a stronger safety record than Tylenol. We urged the Supreme Court to protect access to medication abortion and reverse the lower courts’ rulings.

Danco Laboratories, LLC, v. Alliance for Hippocratic Medicine; U.S. FDA v. Alliance for Hippocratic Medicine

The American Civil Liberties Union joined over 200 reproductive health, rights, and justice organizations in an amicus brief to the Supreme Court...

Source: American Civil Liberties Union

Why it Matters: Today, with abortion access already severely restricted, the ability to get medication-abortion care using mifepristone is more important than ever. If the Fifth Circuit’s ruling is allowed to stand, individuals would be blocked from filling mifepristone prescriptions through mail-order pharmacies, forcing many to travel, sometimes hundreds of miles, just to pick up a pill they can safely receive through the mail. Healthcare professionals with specialized training, like advanced practice clinicians, would also be prohibited from prescribing mifepristone, further limiting where patients can access this critical medication. The American Cancer Society and other leading patient advocacy groups are also sounding the alarm that overturning the FDA’s decision would upend drug innovation and research, with consequences well beyond reproductive health care.

The Last Word: “As this case shows, overturning Roe v. Wade wasn’t the end goal for extremists. In addition to targeting nationwide-access to mifepristone, politicians in some states have already moved on to attack birth control and IVF. We need to take these extremists seriously when they show us they’re coming for every aspect of our reproductive lives.” – Jennifer Dalven, director of the ACLU Reproductive Freedom Project.

Idaho & Moyle et. al v. US

The Facts: Idaho politicians want the power to disregard the Emergency Medical Treatment and Labor Act (EMTALA) that requires emergency rooms to provide stabilizing treatment to patients in emergency situations, including abortion where that is the appropriate stabilizing treatment. If the state prevails, it would jail doctors for providing pregnant patients with the necessary emergency care required under this federal law.

Our Argument: The ACLU and its legal partners filed a friend-of-the-court brief explaining that the law requires hospitals to provide whatever emergency care is required; there is no carve-out for patients who need an abortion to stabilize an emergency condition. All three branches of government have long recognized that hospitals are required under EMTALA to provide emergency abortion care to any patient who needs it.

Idaho and Moyle, et al. v. United States

Idaho and Moyle, et al. v. United States was appealed to the U.S. Supreme Court by Idaho politicians seeking to disregard a federal statute — the...

Why it Matters: Because Idaho’s current abortion ban prohibits providing the emergency care required under EMTALA, medical providers have found themselves having to decide between providing necessary emergency care to a pregnant patient or facing criminal prosecution from the state. Depending on how the court rules, medical providers and patients in several other states with extreme abortion bans could find themselves in a similar position.

The Last Word: “If these politicians succeed, doctors will be forced to withhold critical care from their patients. We’re already seeing the devastating impact of this case play out in Idaho, and we fear a ripple effect across the country.” – Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project

Free speech: Government authority over online and political speech

National rifle association v. vullo.

The Facts: In 2018, Maria Vullo, New York’s former chief financial regulator, in coordination with then-Mayor Andrew Cuomo, threatened to use her regulatory power over banks and insurance companies to coerce them into denying basic financial services to the National Rifle Association (NRA) because she and Cuomo disagreed with its pro-gun rights advocacy. The NRA argued that Vullo’s alleged efforts to blacklist the NRA penalized it for its political advocacy, in violation of the First Amendment.

Our Argument: The ACLU, representing the NRA at the Supreme Court, argued that any government attempt to blacklist an advocacy group and deny it financial services because of its viewpoint violates the right to free speech. Our brief urges the court to apply the precedent it set in 1963 in Bantam Books v. Sullivan , which established that even informal, indirect efforts to censor speech violate the First Amendment.

On January 9th, 2024, the American Civil Liberties Union filed its opening brief on behalf of the National Rifle Association (NRA) in National...

Why it Matters: While the ACLU stands in stark opposition to the NRA on many issues, this case is about securing basic First Amendment rights for all advocacy organizations. If New York State is allowed to blacklist the NRA, then Oklahoma could similarly penalize criminal justice reformers advocating for bail reform, and Texas could target climate change organizations advancing the view that all fossil fuel extraction must end. The ACLU itself could be targeted for its advocacy.

Why is the ACLU Representing the NRA Before the US Supreme Court?

The ACLU has always stood up for free speech – no matter the speaker.

The Last Word: “The right to advocate views the government opposes safeguards our ability to organize for the country we want to see. It’s a principle the ACLU has defended for more than 100 years, and one we will continue to protect from government censorship of all kinds, whether we agree or disagree with the views of those being targeted.” – David Cole, ACLU legal director

NetChoice v. Paxton and Moody v. NetChoice

The Facts: Motivated by a perception that social media platforms disproportionately silence conservative voices, Florida and Texas passed laws that give the government authority to regulate how large social media companies like Facebook and YouTube curate content posted on their sites.

Our Argument: In a friend-of-the-court brief, the ACLU, the ACLU of Florida and the ACLU of Texas argued that the First Amendment right to speak includes the right to choose what to publish and how to prioritize what is published. The government’s desire to have private speakers, like social media companies, distribute more conservative viewpoints–or any specific viewpoints–is not a permissible basis for state control of what content appears on privately-owned platforms.

Why it Matters: If these laws are allowed to stand, platforms may fear liability and decide to publish nothing at all, effectively eliminating the internet’s function as a modern public square. Or, in an attempt to comply with government regulations, social media companies may be forced to publish a lot more distracting and unwanted content. For example, under the Texas law, which requires “viewpoint neutrality,” a platform that publishes posts about suicide prevention would also have to publish posts directing readers to websites that encourage suicide. .

The Last Word: “Social media companies have a First Amendment right to choose what to host, display, and publish. The Supreme Court has recognized that right for everyone from booksellers to newspapers to cable companies, and this case should make clear that the same is true for social media platforms.” — Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, & Technology Project

Voting rights: Racial gerrymandering and the fight for fair maps

Alexander v. south carolina naacp.

The Facts: In 2022, South Carolina adopted a racially-gerrymandered congressional map. The state legislature singled out Black communities, “cracking” predominantly Black communities and neighborhoods across two districts to reduce their electoral influence in the state’s first congressional district.

Our Argument: The ACLU and its legal partners sued on behalf of the South Carolina NAACP and an affected voter to challenge the constitutionality of the new congressional map. We argued that the Equal Protection Clause of the Fourteenth Amendment forbids the sorting of voters on the basis of their race, absent a compelling interest, which the state failed to provide.

Alexander v. South Carolina State Conference of the NAACP (Congressional Map Challenge)

South Carolina unlawfully assigned voters to congressional districts based on their race and intentionally discriminated against Black voters in...

Why it Matters: This racially-gerrymandered congressional map deprives Black South Carolinians the political representation they deserve in all but one of seven districts, limiting the power and influence of more than a quarter of the state’s population just before the 2024 election.

The Last Word: “South Carolina’s failure to rectify its racially-gerrymandered congressional map blatantly disregards the voices and the rights of Black voters. The ACLU is determined to fight back until Black South Carolina voters have a lawful map that fairly represents them.” – Adriel I. Cepeda Derieux, deputy director of the ACLU Voting Rights Project

Gender justice: Denying guns to persons subject to domestic violence restraining orders

United states v. rahimi.

The Facts: Zackey Rahimi was convicted under a federal law that forbids individuals subject to domestic violence protective orders from possessing a firearm. Mr. Rahimi challenged the law as a violation of his Second Amendment right to bear arms.

Our Argument: The U.S. Court of Appeals for the Fifth Circuit ruled that individuals subject to domestic violence protective orders have a constitutional right to possess guns. It invalidated the federal gun law because it found no historical analogues in the 1700s or 1800s that prohibited those subject to domestic violence protective orders from possessing a firearm. The ACLU argued that the Fifth Circuit’s analysis is a misapplication of the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen because it effectively required a “historical twin” law in order to uphold a law today. There were no identical laws at the time of the Framing because there were no domestic violence protective orders then, but that should not be a basis for invalidating the laws today. We also argued that imposing time-limited firearms restrictions based on civil restraining orders is a critical tool for protecting those who have experienced domestic violence and face a threat of further violence.

Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the...

Why it Matters: If the Fifth Circuit’s rationale is affirmed, then governments would lose the ability to prohibit gun possession by persons subject to restraining orders — and presumably even to run pre-acquisition background checks, which have stopped more than 77,000 purchases of weapons by individuals subject to domestic violence orders in the 25 years that the federal law has been in place. This “originalist” interpretation of the Second Amendment not only hinders our ability to protect individuals against newly recognized threats, but also tethers the authority to regulate gun possession to periods when governments disregarded many forms of violence directed against women, Black people, Indigenous people, and others.

The Last Word: “It would be a radical mistake to allow historical wrongs to defeat efforts today to protect women and other survivors of domestic abuse. The Supreme Court should affirm that the government can enact laws aimed at preventing intimate partner violence, consistent with the Second Amendment.” – Ria Tabacco Mar, director of the ACLU Women’s Rights Project

Criminal justice: Eighth-Amendment protections for unhoused persons accused of sleeping in public when they have nowhere else to go

City of grants pass v. johnson.

The Facts: Grants Pass, Oregon, enacted ordinances that make it illegal for people, including unhoused persons with no access to shelter, to sleep outside in public using a blanket, pillow, or even a cardboard sheet to lie on. Last year, the Ninth Circuit Court of Appeals ruled that punishing unhoused people for sleeping in public when they have no other choice violates the Eighth Amendment’s ban on cruel and unusual punishment.

Our Argument: In Oregon, and elsewhere in the United States, the population of unhoused persons often exceeds the number of shelter beds available, forcing many to sleep on the streets or in parks. The ACLU and 19 state affiliates submitted a friend-of-the-court brief arguing that it is cruel and unusual to punish unhoused people for the essential life-sustaining activity of sleeping outside when they lack access to any alternative shelter.

Why it Matters: When applied to people with nowhere else to go, fines and arrests for sleeping outside serve no purpose and are plainly disproportionately punitive. Arresting and fining unhoused people for sleeping in public only exacerbates cycles of homelessness and mass incarceration.

The Last Word: “There is no punishment that fits the ‘crime’ of being forced to sleep outside. Instead of saddling people with fines, jail time, and criminal records, cities should focus on proven solutions, like affordable housing, accessible and voluntary services, and eviction protections.” – Scout Katovich, staff attorney with the ACLU Trone Center for Justice and Equality

Democracy: Presidential immunity from prosecution for criminal acts after leaving office

Trump v. united states.

The Facts: Former President Donald Trump is asking the Supreme Court to rule that he cannot be held criminally liable for any official acts as president, even after leaving office, and even where the crimes concern efforts to resist the peaceful transition of power after an election. This claim runs contrary to fundamental principles of constitutional accountability, and decades of precedent.

Our Argument: Our friend-of-the-court brief argues that former President Trump is not immune from criminal prosecution, and that the Constitution and long-established Supreme Court precedent support the principle that in our democracy, nobody is above the law — even the president. Our brief warns that there are “few propositions more dangerous” in a democracy than the notion that an elected head of state has blanket immunity from criminal prosecution.

Why it Matters: No other president has asserted that presidents can never be prosecuted for official acts that violate criminal law. The president’s accountability to the law is an integral part of the separation of powers and the rule of law. If the President is free, as Trump’s legal counsel argued, to order the assassination of his political opponents and escape all criminal accountability even after he leaves office, both of these fundamental principles of our system would have a fatal Achilles’ heel.

The Last Word: “The United States does not have a king, and former presidents have no claim to being above the law. A functioning democracy depends on our ability to critically reckon with the troubling actions of government officials and hold them accountable.” – David Cole, ACLU legal director

Learn More About the Issues on This Page

Civil Liberties
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Free Speech
Voting Rights
Women's Rights
Criminal Law Reform

Penncrest School District v. Cagle

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Quiz: State Legislation and the Part You Play

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State Legislative Sessions: How They Impact Your Rights

Despair and Resignation Are Not A Strategy: How to Fight Back In A Second Trump Term.

Watch CBS News

The Supreme Court is nearing the end of its term. Here are the major cases it still has to decide.

By Melissa Quinn

May 7, 2024 / 9:38 AM EDT / CBS News

Washington — The Supreme Court has wrapped up arguments for its current term and until around the end of June, it will be handing down opinions for the remaining cases, among them, over a dozen involving hot-button issues including abortion, guns, homelessness, Purdue Pharma's bankruptcy plan and the prosecution of former President Donald Trump.

This term, which began in October 2023, follows two in which the Supreme Court handed down consequential decisions unwinding the constitutional right to abortion and bringing to an end affirmative action in higher education. The justices kicked off this latest slate of cases with several involving administrative law and online speech. But it was a pair of disputes involving Trump that captured widespread attention and thrust the justices into the center of legal battles with high stakes for the former president as he mounts a bid to return to the White House.

The court has already decided one of the cases involving the presumptive Republican presidential nominee: whether Colorado could keep him off the 2024 ballot using a Civil War-era provision of the 14th Amendment. The high court ruled in March that states cannot disqualify Trump from holding the presidency under Section 3 of the 14th Amendment and allowed him to stay on the ballot.

"It's the most consequential term of my lifetime," said Victoria Nourse, law professor at Georgetown University, "because they're covering a gambit of things from guns to abortion to presidential power."

Here are the most significant cases that the Supreme Court will decide in the coming weeks:

Presidential immunity for Trump

Trump v. United States

Argued April 25

The Supreme Court is considering whether a former president is entitled to sweeping immunity from criminal prosecution for allegedly official acts taken while in the White House. Trump has argued that he cannot be criminally charged for his alleged efforts to subvert the transfer of presidential power after the 2020 election.

The decision by the Supreme Court will impact special counsel Jack Smith's case against Trump in Washington, D.C., where the former president has pleaded not guilty to the four charges he is facing. But a ruling could also have consequences for two other cases involving Trump: One, also brought by Smith, in South Florida involving Trump's alleged mishandling of classified documents; and a second brought by prosecutors in Fulton County, Georgia, related to Trump's alleged efforts to overturn the results of the 2020 election in the state. He has pleaded not guilty to all charges.

During arguments in April, the last of the term, the Supreme Court seemed likely to recognize that former presidents are entitled to some level of immunity from federal prosecution for acts undertaken while in the White House. But the justices expressed skepticism toward Trump's claim that he is absolutely immune from criminal prosecution.

FDA v. Alliance for Hippocratic Medicine and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine

Argued March 26

Less than two years after the Supreme Court overturned Roe v. Wade , the issue of abortion returned to the high court. This case involves access to the widely used abortion pill mifepristone and whether the Food and Drug Administration acted unlawfully when it relaxed the rules for the drug's use in 2016 and 2021.

The challenge was brought by a group of anti-abortion rights doctors and medical associations who claimed the agency went too far when it made the changes that made mifepristone easier to obtain.

During arguments, the justices seemed inclined to maintain access to the drug. Several expressed skepticism that the medical groups and physicians had the legal right to sue, a concept known as standing. If a majority of the court finds that the challengers do not have legal standing to bring the lawsuit, it would order the case to be dismissed.

Moyle v. United States and Idaho v. United States

Argued April 24

This pair of cases involves the interplay between Idaho's near-total ban on abortion and a federal law that requires Medicare-participating hospitals to provide necessary stabilizing treatment to a mother whose health is at serious risk.

The Biden administration has argued that in certain circumstances, that stabilizing treatment will be abortion care. But Idaho lawmakers have said that the administration is using the law, called the Emergency Medical Treatment and Labor Act, or EMTALA, to invalidate state abortion restrictions enacted after Roe's reversal.

The justices appeared divided during arguments over whether federal law requires physicians in states with stringent abortion bans to offer pregnancy terminations in certain medical emergencies.

Social media and the First Amendment

Moody v. NetChoice, LLC, and NetChoice, LLC, v. Paxton

Argued Feb. 26

The two cases involve similar laws enacted in Florida and Texas that impose rules on social media companies and their content-moderation policies. Enacted in 2021, the Florida and Texas laws came in response to claims by Republicans that social media companies were silencing conservative viewpoints.

At issue in the challenges, brought by Internet trade associations, is whether the states' restrictions on the social media companies violate the First Amendment. The justices heard arguments in February, during which they seemed skeptical that the Constitution allows states to regulate how the companies make decisions about the content posted to their platforms.

Murthy v. Missouri

Argued March 18

In another clash involving the First Amendment and social media, the Supreme Court weighed whether the Biden administration violated the free speech rights of a group of social media users when it pressured platforms to remove content it believed spread misinformation about the 2020 election and COVID-19 pandemic.

The dispute tests how far federal officials can go to push platforms to take down or suppress posts before crossing a constitutional line. When the justices heard the case in March, several appeared wary of curtailing the administration's contacts with platforms and raised concerns about hampering officials' ability to communicate with social media companies about certain issues.

The regulatory power of federal agencies

Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Department of Commerce

Argued Jan. 17

In a major challenge to the power of federal agencies, these two cases call on the Supreme Court to overrule its 1984 decision in Chevron v. National Resources Defense Council. That case laid out the framework, known as Chevron deference, that requires judges to defer to an agency's interpretation of ambiguous statutes if it is reasonable.

The 40-year-old decision has long been a target of the conservative legal movement, which has argued that it gives federal officials too much power in crafting regulations that affect areas like the environment, public health and the workplace.

The justices heard arguments in January, during which the court's conservative majority seemed open to curtailing agencies' ability to interpret laws passed by Congress.

Garland v. Cargill

Argued Feb. 28

A ban on bump stocks implemented during the Trump administration is at the center of this dispute, brought by a Texas man who was forced to surrender his devices to comply with the restriction. The case does not involve the Second Amendment, but rather whether the Bureau of Alcohol, Tobacco, Firearms and Explosives could outlaw bump stocks.

Bump stocks are attachments to semi-automatic rifles that speed up their rate of fire. Following the 2017 mass shooting at a music festival in Las Vegas, where the shooter used semi-automatic weapons outfitted with bump stocks, ATF issued a rule finding that a rifle equipped with the device qualifies as a machine gun, as defined under federal law. Machine guns have been largely banned since 1986.

The justices heard arguments in the case in February and grappled with whether to leave the ban on bump stocks in place.

Obstruction charge for Jan. 6 defendants

Fischer v. U.S.

Argued April 16

More than 1,300 people have been charged in connection with the Jan. 6, 2021, assault on the U.S. Capitol, and of those, more than 350 are accused of violating a federal law that makes it a crime to "corruptly" obstruct or impede an official proceeding.

But the Justice Department's use of that law is now under scrutiny from the Supreme Court, which is considering whether federal prosecutors can apply the obstruction law, passed in the wake of the Enron scandal, to the Jan. 6 attack.

The outcome of the case could affect the Jan. 6 defendants who have already been convicted of the obstruction offense or pleaded guilty, as a decision rejecting prosecutors' broad reading of the measure could lead to new trials or lighter sentences. The ruling could also impact the federal prosecution of Trump in Washington, D.C., as he is charged with one count of obstructing an official proceeding — Congress' counting of Electoral College votes — and one count of conspiring to obstruct the proceeding, as well as two other charges.

Trump has pleaded not guilty to all four counts.

During arguments in April, the court appeared divided over prosecutors' use of the obstruction statute.

Funding for the Consumer Financial Protection Bureau

Consumer Financial Protection Bureau v. Community Financial Services Association

Argued Oct. 3

On the second day of the term, the Supreme Court heard a case challenging the Consumer Financial Protection Bureau's funding mechanism.

The question in the legal battle is whether the way in which the CFPB receives its funding violates the Constitution's Appropriations Clause. The dispute is one of several that has been brought since the CFPB's creation in 2010 that has sought to weaken the agency.

But during the arguments, several of the justices expressed skepticism that the CFPB's funding mechanism is unconstitutional.

Federal firearms prohibition for alleged domestic abusers

United States v. Rahimi

Argued Nov. 7

This case presented the Supreme Court with its first opportunity to clarify its June 2022 decision that expanded the scope of the Second Amendment. In that ruling in New York State Rifle and Pistol Association v. Bruen, the justices laid out a new standard which says gun laws must fit with the nation's history and tradition of firearms regulation to pass constitutional muster. To demonstrate that, the government must put forth laws that are analogous to the modern-day measure at issue.

This dispute involves a 1994 law that prohibits people subject to domestic violence restraining orders from having guns. A federal appeals court struck down the 30-year-old law under the Supreme Court's new test, and the justices considered whether the prohibition violates the Second Amendment.

The justices appeared inclined to leave in place the law stripping alleged domestic abusers of their firearms, and several suggested that those deemed dangerous to society could be disarmed.

Racial gerrymandering

Alexander v. South Carolina Conference of the NAACP

Argued Oct. 11

At issue in this case are the lines of South Carolina's Congressional District 1, which a lower court struck down as an unconstitutional racial gerrymander.

The district, represented by GOP Rep. Nancy Mace, was redrawn after the 2020 Census to produce a safer Republican district. To achieve that goal, state GOP officials moved more than 30,000 Black voters from Congressional District 1 into a neighboring district.

The Supreme Court weighed whether race or politics was the predominant factor during the mapmaking process, though the conservative justices appeared likely to leave the GOP-drawn lines intact .

Purdue Pharma's bankruptcy plan

Harrington v. Purdue Pharma

Argued Dec. 4

This court fight arose from a bankruptcy plan for Purdue Pharma , which shields the Sackler family from civil lawsuits stemming from the opioid crisis. The Sacklers owned and operated Purdue during the height of the opioid epidemic, and after Purdue filed for Chapter 11 bankruptcy in 2019, the family agreed to contribute $6 billion for abatement of the opioid crisis in exchange for the legal shield.

The bankruptcy plan was approved by 95% of victims, but several states, Canadian municipalities and a smaller group of individuals opposed it because of the protections for the Sacklers. The case involves whether those dissenters should be bound by the releases and therefore unable to pursue their own opioid-related lawsuits against the Sacklers, who never filed for bankruptcy protection.

The Justice Department objects to Purdue's bankruptcy plan and has argued that the so-called third party releases are not allowed under federal bankruptcy code.

Some of the justices during arguments raised concerns about the consequences of a decision unraveling Purdue's bankruptcy agreement, especially for victims and their family members who stand to benefit from it. Others, meanwhile, noted that the plan deprives the holdouts of the ability to hold the Sacklers accountable in civil court, and said the family is benefitting from bankruptcy protection without ever declaring bankruptcy.

A provision of Trump's tax reform package

Moore v. U.S.

Argued Dec. 5

This case involves a challenge to an obscure provision of Republicans' sweeping tax reform package signed into law by Trump in 2017. The mandatory repatriation tax is a one-time tax targeting U.S. taxpayers who hold shares of certain foreign corporations and requires them to pay a levy on their proportionate share of the company's earnings.

The tax was projected to generate roughly $340 billion in revenue over 10 years. A couple from Washington state challenged the tax as impermissible under the 16th Amendment, but the Supreme Court appeared likely to leave it in place .

EPA rule for addressing harmful smog

Ohio v. EPA; Kinder Morgan, Inc. v. EPA; America Forest and Paper Association v. EPA; and U.S. Steel Corp v. EPA

Argued Feb. 21

In these cases, which were heard together, the court is considering whether to halt an environmental rule from the Biden administration that aims to curb air pollution and address harmful smog that travels from certain states into others.

The dispute stems from a plan announced by the EPA in 2023 that established an emissions-control program for large industrial sources like power plants and factories in 23 states. The EPA said emissions from those facilities were contributing significantly to smog pollution in downwind states.

Three GOP-led states, energy companies and industry groups challenged the initiative, and the Supreme Court seemed likely to halt the "good neighbor" rule during arguments in February.

Anti-camping ordinances

City of Grants Pass v. Johnson

Argued April 22

Arising out of an Oregon city's ordinances banning public camping, the case raises whether it's a violation of the Eighth Amendment's protection against cruel and unusual punishment to punish homeless people with civil citations for camping on public property when they have nowhere else to go.

The dispute is the most significant involving homelessness to come before the Supreme Court in decades, and the outcome could impact how cities and states respond to high rates of homelessness as encampments pop up on public property.

The justices weighed the constitutionality of anti-camping laws during arguments in April and appeared divided over whether the city of Grants Pass went too far with its rules.

Purdue Pharma
Donald Trump

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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Is There a Constitutional Right to Talk About Abortion?

A woman peering over a barrier with an empty speech bubble coming out of her mouth.

By Linda Greenhouse

Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

There has hardly ever been as fierce a defender of free speech as the current Supreme Court.

Since John Roberts became chief justice almost 19 years ago, the court has expanded the protective net of the First Amendment to cover such activities as selling videos depicting animal torture, spending unlimited amounts of money in support of political candidates and refusing to pay dues (or a dues-like fee) to a public employee union.

This last decision, Janus v. American Federation of State, County and Municipal Employees, Council 31, overturned a 41-year-old precedent and led a dissenting justice, Elena Kagan, to accuse the majority of “weaponizing the First Amendment.” In the 303 Creative case last year, the court gave a Christian web designer the First Amendment right not to do business with would-be customers whose same-sex wedding websites would violate her views about marriage.

The court’s version of free speech has become a powerful tool against government regulation. Six years ago, effectively striking down a California law, the court gave so-called crisis pregnancy centers — offices that try to imitate abortion clinics but strive to persuade women to continue their pregnancies — a First Amendment right not to provide information on where a woman could actually get an abortion. The state said the notice was needed to help women who came to such centers under the false impression that they provided abortions. In his majority opinion, Justice Clarence Thomas said the “unduly burdensome” requirement amounted to unconstitutionally compelled speech.

Now the question is whether the court’s solicitude toward those who would rather not talk about abortion extends in the other direction. What about state laws that prohibit rather than require offering information about where to get an abortion?

While there is not yet such a case on the Supreme Court’s docket, lower courts have been tightening a First Amendment noose around efforts by anti-abortion states to curb the flow of information about how to obtain legal abortion care across state lines. Federal District Courts in Indiana and Alabama both ruled this month that while states in the wake of Roe v. Wade’s demise can ban abortion, they cannot make it illegal to give abortion-related advice, including advice to minors seeking abortions without parental consent.

A federal magistrate judge issued a similar ruling last November on Idaho’s abortion law, one of the most extreme in the country, which makes it a crime to assist a minor in obtaining an abortion in any state without a parent’s consent. Idaho could criminalize abortion, the judge, Debora Grasham, wrote. “What the state cannot do,” she went on, “is craft a statute muzzling the speech and expressive activities of a particular viewpoint with which the state disagrees under the guise of parental rights.” The United States Court of Appeals for the Ninth Circuit heard Idaho’s appeal on May 7.

With the Supreme Court extremely unlikely to revisit its decision 23 months ago in Dobbs v. Jackson Women’s Health Organization that eradicated the constitutional right to abortion, the question of how far states can go to prevent their citizens from finding alternative ways to terminate a pregnancy will become increasingly urgent. In his concurring opinion in the Dobbs case, Justice Brett Kavanaugh raised the question of whether a state could now “bar a resident of that state from traveling to another state to obtain an abortion.” The answer was “no,” he continued, “based on the constitutional right to interstate travel.” It is worth noting that Justice Kavanaugh wrote only for himself; none of the other conservatives who made up the Dobbs majority joined him. “Other abortion-related legal questions may emerge in the future,” Justice Kavanaugh offered noncommittally.

The future arrived quickly enough in the form of the two abortion-related cases awaiting decision before the court’s current term, which concludes at the end of June or in early July. Both are anomalous in that they involve questions of federal rather than state authority.

One, Food and Drug Administration v. Alliance for Hippocratic Medicine , concerns the government’s approval of the expanded use of the medication that first received F.D.A. approval 24 years ago. Medication abortion now accounts for more than half of abortions in the United States. The case contains an off-ramp for the court that, based on the argument in March, the justices appear likely to take: Because the anti-abortion doctors, dentists and medical groups who challenged the F.D.A. suffered no harm from the availability of the medication, and are unlikely to suffer harm in the future, they never had standing to bring the case in the first place.

The other, Moyle v. United States, results from a clash between the federal government and Idaho over whether federal law requires the state to provide emergency abortion care in its hospitals. The outcome largely depends on whether the court accepts the Biden administration’s view that there is no abortion exception to the law at issue, which prohibits hospitals from turning away people who need emergency care.

In the abortion cases in Indiana, Idaho and Alabama that may yet find their way to the Supreme Court, the justices would face the acute dilemma of reconciling their fealty to the First Amendment with the profound anti-abortion sentiment the Dobbs majority opinion displayed.

In defending their laws, the states argue that what they are prohibiting is not actually speech but conduct, namely inducing criminal activity. Rejecting this argument in the Indiana case, Judge Sarah Evans Barker of Federal District Court wrote that the Planned Parenthood affiliate that challenged the law simply “seeks to provide truthful information to clients regarding out-of-state options and medical referrals to out-of-state providers for abortion services that are legal in those states.” A prohibition on providing such information, the judge said, “does not further any interest Indiana may have in investigating criminal conduct within its borders.” In the Alabama case, another Federal District Court judge, Myron Thompson, observed that “unable to proscribe out-of-state abortions, the attorney general interprets state law as punishing the speech necessary to obtain them.”

From the cases they are in the process of deciding this term, the justices are well aware that their effort to wash their hands of the nettlesome business of abortion has failed. One or more of the First Amendment cases is likely to reach the court during its next term. I wonder if the justices have a clue about how much pain lies ahead when they have to decide whether the right to speak inevitably encompasses the right to choose.

Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

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Supreme Court oral arguments on major Second Amendment case

By Dan Berman and Devan Cole , CNN

Justices seem inclined to side with Biden admin. on Second Amendment case involving domestic violence

Analysis from CNN's Ariane de Vogue

Gun safety and domestic violence prevention organizations gather outside of the Supreme Court before oral arguments are heard in United States v. Rahimi on November 7 in Washington, DC.

After roughly 100 minutes of oral arguments, the Supreme Court seemed poised Tuesday to rule in favor of a federal law that bars individuals subject to certain domestic violence restraining orders from possessing firearms, as it was used against a Texas man.

The case marked the first substantive Second Amendment case to come before the justices since they issued a landmark opinion last year expanding gun rights nationwide.

For more than an hour of arguments, the justices referred to that case with a majority of the court indicating that the law at issue falls comfortably within the nation’s historical tradition of limiting Second Amendment rights when it comes to individuals who pose a danger to society.

But don't expect a broad ruling that ends the Bruen-related confusion

When the court issues its opinion expected in several months, it likely will not resolve the confusion in lower courts concerning the framework judges should use as they consider a wide variety of gun laws.

The opinion could end up being closely tied to the facts in the case at hand, making clear, at the very least that the Second Amendment does not protect those who have been found to pose a dangerous threat to society.

But the opinion may not answer lingering questions concerning defendant’s due process rights or laws banning assault weapons, or barring the possession of guns for non violent felons.

The ruling is expected by July.

Justice Jackson says Bruen means "only certain people's history counts."

From CNN's Devan Cole

Liberal Justice Ketanji Brown Jackson pointed out what she called a “flaw” in the court’s decision in a 2022 Second Amendment case that said lower courts must look to the nation’s “historical tradition” when examining gun laws.

“I guess I'm a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts,” she told Wright.

“So what do we do with that? Isn’t that a flaw with respect to the test.”

Prelogar closes by calling out the "destabilizing" effect of Bruen

Solicitor General Elizabeth Prelogar ended oral arguments Tuesday by telling the justices that the court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen has produced “destabilizing consequences” for the nation’s cache of gun laws.

Prelogar told the justices that the ruling has been wreaking havoc in courts across the country.

"I think that it's important for the court to understand the destabilizing consequences of that reading in the lower courts.

The solicitor general went on to point out a number of court rulings invalidating various provisions of federal gun laws.

“Many courts now -- several district courts -- have credited as-applied challenges to Section 922 (g)(1) by armed career criminals who have multiple convictions for aggravated assault, drug trafficking, armed robbery -- clearly violent crimes -- because we don't have a sufficient historical analog disarming those subject to precisely those crimes at the founding,” Prelogar said.

Indeed, lower courts have had to revisit the nation’s gun laws in the wake of Bruen, including the appeals court that handled the case heard by the Supreme Court on Tuesday.

Rahimi’s attorney concedes that his client is a dangerous person

From CNN's Devan Cole and Abby Baggini

Chief Justice John Roberts drew laughs from the courtroom at one point when he led Zackey Rahimi ’s attorney to concede that his client is a dangerous person.

“Well, to the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?” Roberts asked.

“Your Honor, I would want to know what 'dangerous person' means,” the attorney, J. Matthew Wright, began to say, before Roberts interjected.

“That's fair,” Wright responded.

Part of Rahimi’s history with the law includes a spate of shootings in Texas, culminating on January 7, 2021, when he fired shots in the air at a Whataburger restaurant after his friend’s credit card was declined.

Rahimi's attorney says courts must find a similar ban in US history to uphold the law

From CNN's Devan Cole, Ritika Jain, Abby Baggini and Meagon Whitehead

Liberal Justice Elena Kagan got right to one of the key issues in the case when she asked J. Matthew Wright, Rahimi’s attorney, whether the court must find a law in the nation’s history similar to the one at issue in order to uphold it.

“Is that what we should be looking for and if we don't find that similar ban, we say that the government has no right to do anything?” she asked.

“Your Honor, I think that's largely what Bruen says. However, I don't think it has to be so narrow,” Wright replied, referring to the 2022 case that said the nation’s gun laws had to be consistent with the nation’s “historical tradition.”

“So if the government could affirmatively prove from the historical tradition of either American firearms laws, or even I would be willing to spot them the way that we have treated other fundamental constitutionally protected rights, if they could tie it to one of those historical traditions, that would be good enough under the logic of Bruen, if not the exact rule,” he added.

Chief Justice Roberts asks about the test the government wants the court to adopt

Chief Justice John Roberts at one point asked Solicitor General Elizabeth Prelogar about the test the Biden administration wants the court to adopt in the case, a question that underscores how the 2022 Bruen Second Amendment case left some key questions unanswered.

“Just to be clear, your argument today is that (the Second Amendment) doesn't apply to people who present the threat of dangerousness, whether you want to characterize them as responsible or irresponsible, whatever the test that you're asking us to adopt turns on dangerousness,” Roberts said.

“Correct. For those who are not responsible citizens." Prelogar replied. “I do want to be clear that we think there are different principles that apply with those who are not law abiding.”

She continued: “So, I just want to be clear, we don't think dangerousness is necessarily the standard there, although there's obviously going to be a lot of overlap. That's defined by its own history and tradition, but we do think that dangerousness defines the category of those who are not responsible.”

Though the court could issue a broad ruling that includes a test of some sort, it could also decide the case on a much narrower ground that allows it to punt on some of the questions being explored Tuesday.

Prelogar tells court it needs to fix three things about Bruen

From CNN's Dan Berman, Ritika Jain, Abby Baggini and Meagon Whitehead

Justice Elena Kagan, in the minority of last year’s Bruen ruling, gets to a key point that since it came down, lower courts have been confused to say the least on what it means.

She asked Prelogar directly for “useful guidance” SCOTUS can give “about the methodology that Bruen requires be used and how that applies to cases even outside of this one?"

Prelogar suggested three things the court can do.

First, lower courts have “embraced the idea that the only thing that matters under Bruen is regulation. In other words, you can't look at all of the other sources of history that usually bear on original meaning.”

Second, courts don’t know how deep to go when it comes to matching historical evidence.

“Court after court has looked at the government's examples and picks them apart to say well, taking them one by one, there's a minute difference between how this regulation operated in 1791 or the ensuing decades and how section 922 provisions operate today,” Prelogar said.

“And I think that comes very close to requiring us to have a dead ringer when Bruen itself said that's not necessary. The way constitutional interpretation usually precedes is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right. And so we think that you should make clear the court should come up a level of generality and not nitpick, but the historical analogues that we're offering to that degree.”

Third, the administration believes that courts are putting too much emphasis on the lack of a law from the founding-era as meaning that one can’t be imposed.

“Courts are placing dispositive weight on the absence of regulation in a circumstance where there's no reason to think that that was due to constitutional concerns,” Prelogar said. “So for example, here we don't have a regulation disarming domestic abusers. But there is nothing on the other side of the interpretive question in this case to suggest that anyone thought you put in disarm domestic abusers or couldn't disarm dangerous people.”

Rahimi's attorney takes the podium

J. Matthew Wright , an attorney with the Federal Public Defender’s Office in Amarillo, Texas, is now in the hot seat.

Wright represented Zackey Rahimi , the man at the center of Tuesday’s case, before both the appeals court – in which he won – and the Texas trial court in which Rahimi was convicted.

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TikTok challenges U.S. ban in court, calling it unconstitutional

Bobby Allyn

TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a new buyer, or face a nationwide ban. Kiichiro Sato/AP hide caption

TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a new buyer, or face a nationwide ban.

TikTok and its parent company on Tuesday filed a legal challenge against the United States over a law that President Biden signed last month outlawing the app nationwide unless it finds a buyer within a year.

In the petition filed in the Court of Appeals for the District of Columbia Circuit, the company said the legislation exceeds the bounds of the constitution and suppresses the speech of millions of Americans.

"Banning TikTok is so obviously unconstitutional, in fact, that even the Act's sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok's ownership," according to the filing.

The law, passed through Congress at lightning speed, which caught many inside TikTok off guard, is intended to force TikTok to be sold to a non-Chinese company in nine months, with the possibility of a three month extension if a possible sale is in play.

Yet lawyers for TikTok say the law offers the company a false choice, since fully divesting from its parent company, ByteDance, is "simply not possible: not commercially, not technologically, not legally," the challenge states. "And certainly not on the 270-day timeline required by the Act."

Anupam Chander, a law professor at Georgetown University who specializes in technology regulations, said if TikTok loses this legal fight, it will likely shut down in the U.S.

"The problem for TikTok is that they have a parent company that has these obligation in China, but they're trying to live by free speech rules by the United States," Chander said in an interview. "The question is whether American courts will believe that that's even possible."

TikTok says law based on "speculative and analytically flawed concerns"

Lawmakers in Washington have long been suspicious of TikTok, fearing its Chinese owner could use the popular app to spy on Americans or spread dangerous disinformation.

But in the company's legal petition, lawyers for TikTok say invoking "national security" does not give the government a free pass to violate the First Amendment, especially, TikTok, argues, when no public evidence has been presented of the Chinese government using the app as a weapon against Americans.

Possible TikTok ban could be 'an extinction-level event' for the creator economy

According to the filing, the law is based on "speculative and analytically flawed concerns about data security and content manipulation — concerns that, even if grounded in fact, could be addressed through far less restrictive and more narrowly tailored means."

New DOJ Filing: TikTok's Owner Is 'A Mouthpiece' Of Chinese Communist Party

Constitutional scholars say there are few ways for the government to restrict speech in a way that would survive a legal challenge. One of those ways is if the government can demonstrate a national security risk. Also key, legal experts say, is the government showing the speech suppression was the least restrictive option on the table.

TikTok said Congress ignored less restrictive ways of addressing the government's national security concerns.

"If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down," the filing states. "And for TikTok, any such divestiture would disconnect Americans from the rest of the global community."

Since more than 90% of TikTok's users are outside of America, Georgetown's Chander said selling the U.S.-based app to a different owner would cannibalize its own business.

"You can't really create a TikTok U.S., while having a different company manage TikTok Canada," Chander said in an interview. "What you're doing essentially is creating a rival between two TikToks," he said. " It may be better to take your marbles out of the United States and hope to make money outside of the U.S., rather than sell it at a fire-sale price."

TikTok critics call app a 'spy balloon on your phone'

The filing sets off what could be the most important battle for TikTok. It has been fending off legal challenges to its existence since former President Trump first sought to ban the app through an executive order in the summer of 2020. That effort was blocked by federal courts.

Since then, Democrats and Republicans have shown a rare moment of unity around calls to pressure TikTok to sever its ties with ByteDance, the Beijing-based tech giant that owns the video-streaming app.

Trump's Ban On TikTok Suffers Another Legal Setback

Congress has never before passed legislation that could outright ban a wildly popular social media app, a gesture the U.S. government has criticized authoritarian nations for doing.

In the case of TikTok, however, lawmakers have called the app a "spy balloon on your phone," emphasizing how the Chinese government could gain access to the personal data of U.S. citizens.

Worries also persist in Washington that Beijing could influence the views of Americans by dictating what videos are boosted on the platform. That concern has only become heightened seven months before a presidential election.

Yet the fears so far indeed remain hypothetical.

There is no publicly available example of the Chinese government attempting to use TikTok as an espionage or data collection tool. And no proof that the Chinese government has ever had a hand over what TikTok's 170 million American users see every day on the app.

TikTok says it offers U.S. a plan that would shut app down if it violated agreement

TikTok, for its part, says it has invested $2 billion on a plan, dubbed Project Texas, to separate its U.S. operation from its Chinese parent company. It deleted all of Americans' data from foreign servers and relocated all of the data to servers on U.S. soil overseen by the Austin-based tech company Oracle.

While the plan was intended to build trust with U.S. lawmakers and users, reports surfaced showing that data was still moving between staff in California and Beijing.

In the filing on Tuesday, TikTok said it submitted an agreement to the Committee on Foreign Investment in the United States, which has been probing the app for five years, that would allow the U.S. to suspend TikTok if it violated terms set forth in a national security plan.

But, lawyers for TikTok say, the deal was swept aside, "in favor of the politically expedient and punitive approach," the petition states.

Mnuchin claims he will place a bid to buy TikTok, even though app is not for sale

Despite the new law giving TikTok the ultimatum of selling or being shut down, there are many questions around how the app could even be bought by another company or group of investors.

Former Treasury Secretary Steven Mnuchin told NPR on Monday, he is planning to assemble a group of investors to try to purchase TikTok without the app's algorithm.

Mnuchin, who declined to answer additional questions, said in between sessions at the Milken Institute Global Conference in Los Angeles that the proposal to buy the app is still in the works, but he would not say when it would be formally submitted.

One major obstacle in any possible sale of TikTok is a glaring problem: The app is not for sale.

TikTok Ban Averted: Trump Gives Oracle-Walmart Deal His 'Blessing'

Despite the new law in the U.S., ByteDance says it does not intend to let go of the service. Furthermore, winning the support of China would be necessary, and officials in Beijing are adamantly against any forced sale.

In 2020, amid the Trump administration's clamp down on the app, China added "content-recommendation algorithms" to its export-control list, effectively adding new regulations over how TikTok's all-powerful algorithm could ever be sold.

ByteDance, not TikTok, developed and controls the algorithm that determines what millions see on the app every day. The technology has become the envy of Silicon Valley, and no U.S. tech company has been able dislodge TikTok's firm hold on the short-form video market. Experts say key to its success is its highly engaging and hyper-personalized video-ranking algorithm.

The algorithm, which involves millions of lines of software code developed by thousands of engineers over many years, cannot be easily transferred to the U.S., even if China did allow it, TikTok's challenge states.

Lawyers for TikTok argue that "any severance [of the algorithm] would leave TikTok without access to the recommendation engine that has created a unique style and community that cannot be replicated on any other platform today."

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Politics A-Level (Edexcel) Essay Questions - US Politics

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Edexcel Politics A-Level - US Politics Essay Questions

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WATCH: Attorneys for Kim Davis plan to take appeal to US Supreme Court

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Attorneys for Kim Davis plan to take appeal to US Supreme Court

(WKYT) - Attorneys for former Rowan County Clerk Kim Davis say they plan to take her appeal to the U.S. Supreme Court.

The Liberty Counsel filed a notice of appeal with the Sixth Circuit Court of Appeals.

It comes after a jury ruled last year that Davis had to pay a same-sex couple and their attorneys for refusing to issue a marriage license to the couple.

Related coverage:

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The Liberty Counsel argues that Davis is protected under her First Amendment rights and was entitled to religious accommodation.

Part of their argument includes citing a 2015 Supreme Court opinion they say should be overturned.

Attorneys for former Rowan County Clerk Kim Davis say they plan to take her appeal to the U.S. Supreme Court.

Take the Quiz: Find the Best State for You »

What's the best state for you », major supreme court rulings to watch for this summer.

America’s highest court is considering cases that touch on hot-button issues such as abortion, former president Donald Trump’s immunity, guns and more.

Key Supreme Court Rulings to Watch For

FILE - The sun flares in the camera lens as it rises behind the U.S. Supreme Court building in Washington, June 25, 2017. The Supreme Court will hear an appeal from a Vista, Calif., CBD hemp oil company fighting a lawsuit from a truck driver who says he got fired after using a product falsely advertised as being free from the active ingredient in marijuana.(AP Photo/J. David Ake, File)

J. David Ake | AP

The sun rises behind the U.S. Supreme Court building in Washington on June 25, 2017.

As the Supreme Court approaches the end of its term, it's poised to rule on a series of high-profile cases with major political implications. Before the justices break for summer recess around the end of June, they will hand down opinions on cases touching on abortion, gun rights, immunity for former President Donald Trump and charges for Jan. 6 rioters, among other topics. The rulings are likely to be controversial, inflaming political debates as the country inches closer to the November election.

Here’s a look at some of the major cases we’re watching:

Donald Trump and Jan. 6th

The case: Donald Trump v. United States , argued April 24

What the justices are considering: Whether and to what extent a former president enjoys presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

The details: The justices will weigh the bounds of presidential immunity as it relates to Trump’s four-count criminal indictment. Following an investigation into the Jan. 6 attack on the U.S. Capitol, Special Counsel Jack Smith accused Trump of conspiring to overturn the results of the 2020 election. Trump, who pleaded not guilty, said presidents can’t be criminally charged for official acts taken while in the White House.

During oral arguments last month, the justices acknowledged the question before them had “huge implications for the future of the presidency and the future of the country,” and focused much of their time trying to parse the difference between official acts of a president versus private acts.

The case: Fischer v. United States , argued April 16

What the justices are considering: Whether federal prosecutors can use obstruction charges against Jan. 6 defendants.

The details: Since the Jan. 6, 2021 attack of the Capitol, more than 300 people have been charged with obstructing or impeding an official proceeding – Congress’s certification of President Joe Biden’s 2020 presidential win. The case centers around a Pennsylvania police officer, Joseph Fischer, who was charged with obstruction for participating in the Capitol riot. He argued that the charge was only intended to apply to evidence tampering involving a congressional inquiry or investigation. The statute, which Congress passed in 2002 in the wake of Enron’s accounting scandal, mandates certain practices in financial record keeping and reporting for corporations – and explicitly bars the destruction of or the concealing of business records. The law also makes it a crime to obstruct or impede an official proceeding.

During oral arguments last month, Supreme Court justices seemed skeptical – though not entirely dismissive – of the idea that federal prosecutors overreached. If the justices decide that prosecutors stretched the obstruction law too far, Jan. 6 defendants who have already pleaded guilty or been convicted of the offense and would likely call for new trials or lighter sentences. For Trump, a ruling in Fischer’s favor could wipe out two of the four criminal counts brought against him by Smith.

The Second Amendment and Gun Rights

The case: Rahimi v. United States , argued Nov. 7

What the justices are considering: Whether a law that prohibits the possession of firearms by people subject to domestic violence restraining orders violates the Second Amendment.

The details: The case focuses on a 1994 ban that is being challenged in light of the court’s 2022 New York State Rifle and Pistol Association v. Bruen ruling that expanded that scope of gun rights. In that ruling, the justices said that gun laws must fit the nation’s historical tradition of gun regulation, which led to challenges for many long-standing gun laws. The case involves Zackey Rahimi, who illegally possessed firearms while the subject of a restraining order.

During oral arguments in November, the justices seemed inclined to uphold the law prohibiting domestic violence abusers from having guns.

Political Cartoons on Women’s Issues

The case: Attorney General Merrick Garland v. Michael Cargill , argued Feb. 28

What the justices are considering: Whether a bump stock device fits the federal law definition of machine gun, therefore making it a banned device.

The details: After a 2017 mass shooting in Las Vegas, carried out by a gunman using bump stocks, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ruled that rifles equipped with bump stocks qualified as machine guns, which have been largely banned since 1986. The National Firearms Act defines a "machine gun" as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." A bump stock is a device used to convert a semi-automatic rifle so that it can fire continuously with a single pull of the trigger, discharging potentially hundreds of bullets per minute, according to court documents.

During oral arguments in February, the justices appeared divided on whether to let the Trump-era ban stand and how it applied to the Department of Justice’s prior rule that accessories were legal.

The case: FDA v. Alliance for Hippocratic Medicine , argued March 26

What the justices are considering: Whether the Food and Drug Administration acted lawfully when it expanded its access to abortion medication, mifepristone, in 2016 and 2021, and whether doctors have the legal standing to challenge the FDA over the drug.

The details: Mifepristone, part of a two-drug combination used in medication abortions, was approved by the FDA in 2000. In 2016 the FDA changed some guidelines making it easier to access the pill, including requiring only one in-person medical visit and allowing non-physician health care providers to prescribe the medication. In 2021, during COVID-19, the FDA said the drug could be prescribed via telehealth appointments and sent by mail. The FDA’s challengers argue that mifepristone is unsafe and the administration did not act lawfully when it expanded access to the medication.

During oral arguments in March, justices on both ends of the political spectrum asked questions that seemed to indicate they would rule in favor of the FDA.

The case: Moyle v. United States , argued April 24

What the justices are considering: Whether the Emergency Medical Treatment and Labor Act preempts state laws that protect human life and prohibit abortions, like Idaho’s Defense of Life Act.

The details: Justices will weigh whether the federal law mandating that hospitals provide stabilizing treatment conflicts with a near-total ban on abortion in Idaho, which makes most abortions illegal, except to prevent the death of the pregnant woman. Idaho enacted the abortion ban in the wake of the court’s June 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade and gave abortion regulation to the states.

The federal law, passed in 1986, requires Medicare-participating hospitals to provide necessary stabilizing treatment to patients, which can include abortion care, regardless of the patient’s ability to pay. In August 2022, the Biden administration sued Idaho, citing a conflict and saying the state’s law prevented patients from accessing medical care guaranteed by federal statute. Idaho Attorney General Raúl Labrador said the state’s law was “perfectly consistent” with the Emergency Medical Treatment and Labor Act and accused the Biden administration of weaponizing it.

During oral arguments , conservative justices seemed skeptical that the state law violated the federal law.

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Infographic: How The Supreme Court Works (USA.gov)

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Supreme Court full essay plans Flashcards
US SUPREME COURT - essay plans. 8 terms. sallyreeve5. Preview. Supreme Court Essay plans. 18 terms. lochiebruneau12. Preview. Government and administration. Teacher 12 terms. emmaczv16. Preview. Espace privé et espace public. 26 terms. zpenalba203. Preview. US GOV Supreme Court & Civil Rights 30 Mark ESSAY PLANS.
A Level Politics US Supreme Court Essay Plans Flashcards
A Level Politics US Supreme Court Essay Plans. Evaluate the view that the Supreme Court is now an 'imperial judiciary'. Click the card to flip 👆. 1. They are arguably an imperial judiciary as they may be seen to dominate over issues from the central government despite their uneledted nature. - Bush v Gore of 2000 allowed the supreme court to ...
Background Essay: The Supreme Court and the Bill of Rights
The due process clause of the 14th Amendment led to the incorporation of the Bill of Rights, which meant that the Supreme Court applied the Bill of Rights to the states. During the first half of the twentieth century, the Court incorporated the Bill of Rights selectively in a few cases. For example, it extended the First Amendment right of free ...
Oyez! Oyez! Oyez!: Simulating the Supreme Court
Activity 1. Oyez! Oyez! Oyez! Using the Supreme Court Website, have students research the United States Supreme Court.Using this handout, students will be able to organize information about the Constitutional responsibilities of the Supreme Court.. Organize a discussion about what students have learned from the resources to determine if further inquiry is needed prior to engaging in ...
US SUPREME COURT
US SUPREME COURT - essay plans. supreme court defending civil rights - for. Click the card to flip 👆. Judicial review. - strikes down laws unconstitutional. - interprets new rights. - in contrast parl sovereignty means cannot strike down laws. - however not proactive only 2008 where they ruled on 2nd amendment. Has protected the rights of ...
Freedom of Speech? A Lesson on Understanding the Protections and Limits
This lesson plan was created in partnership with the ... According to the essay, how has the Supreme Court addressed free speech during the 100 years since the end of World War I, and what is the ...
PDF Supreme Court of The United States
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES . Syllabus . STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE . CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT . No. 20-1199. Argued October 31, 2022—Decided June 29, 2023*
Oral Arguments
The Court holds oral argument in about 70-80 cases each year. The arguments are an opportunity for the Justices to ask questions directly of the attorneys representing the parties to the case, and for the attorneys to highlight arguments that they view as particularly important. Arguments are generally scheduled on specified Monday, Tuesday and ...
The Future of Supreme Court Reform
For a brief moment in the fall of 2020, structural reform of the Supreme Court seemed like a tangible possibility. After the death of Justice Ruth Bader Ginsburg in September, some prominent Democratic politicians and liberal commentators warmed to the idea of expanding the Court to respond to Republicans' rush to confirm a nominee before the election, despite their refusal four years prior ...
Opinions
In-chambers opinions are written by an individual Justice to dispose of an application by a party for interim relief, e.g., for a stay of the judgment of the court below, for vacation of a stay, or for a temporary injunction. Justices may also write opinions relating to the orders of the Court, e.g., to dissent from a denial of certiorari or to ...
US Supreme Court Essay Plans
This resource contains x12 A4 essay plan templates. This includes 5-6 full points with Point, Evidence, Analysis and counter arguments, and space to fill in introduc. International; ... US Supreme Court Essay Plans - A-LEVEL GOVERNMENT & POLITICS (2017) Subject: Government and politics. Age range: 16+ Resource type: Assessment and revision ...
2023-2024 Supreme Court Term Preview
This lesson plan offers a preview of cases in the 2023-2024 Supreme Court term. The lesson opens with reflective questions that ask students to consider their knowledge of famous Supreme Court ...
Comparative judiciaries essay plans
'The political significance of the US Supreme Court far exceeds that of the UK Supreme Court' Analyse and evaluate this statement INTRODUCTION. Both Supreme Courts are the final courts of appeal for those seeking justice and have considerable power in interpreting their respective constitutions and actions of their governments.
The Supreme Court's coming war with Biden, explained
With six conservative justices, the Court has the votes it needs to make Bannon's goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of ...
Supreme Court essay plans Flashcards
Supreme Court essay plans. The Supreme Court is the chief enforcer of civil rights and liberties in the US, owing to the power of judicial review that the Court found for itself in Marbury V Madison (1803). However, it has been seen as a political rather than judicial institution to a large extent when the Court has been judicially active by ...
Strategic Plan for the Federal Judiciary
Strategic Issues for the Federal Judiciary. The strategies and goals in this plan are organized around seven issues— fundamental policy questions or challenges that are based on an assessment of key trends affecting the judiciary's mission and core values: Issue 1: Providing Justice. Issue 2: Preserving Public Trust, Confidence, and ...
The Major Supreme Court Cases of 2024
The Major Supreme Court Cases of 2024. By Adam Liptak , Abbie VanSickle and Alicia Parlapiano. May 9, 2024. No Supreme Court term in recent memory has featured so many cases with the potential to ...
New books explores how U.S. Supreme Court hurt democracy
Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of the new book "The Court v. The Voters: The Troubling Story of How the ...
Eight Supreme Court Cases To Watch
ACLU. May 16, 2024. The Supreme Court's docket this term includes many of the complex issues American society is currently facing, including gun control, free speech online, race-based discrimination in voting, reproductive rights, presidential immunity from criminal accountability, and more. The ACLU has served as counsel or filed friend-of ...
The Court and Constitutional Interpretation
The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. In 1835, the French political observer Alexis de Tocqueville noted the unique ...
The Supreme Court is nearing the end of its term. Here are the major
Presidential immunity for Trump. Trump v. United States. Argued April 25. The Supreme Court is considering whether a former president is entitled to sweeping immunity from criminal prosecution for ...
Opinion
Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
Supreme Court oral arguments on major Second Amendment case
The Supreme Court heard roughly 100 minutes of oral arguments today on the Biden administration's appeal of a ruling that struck down a law barring a person subject to a domestic violence ...
TikTok challenges U.S. ban in court, calling it unconstitutional
TikTok sues U.S. ban in court, says it violates the first amendment The high-stakes legal battle could determine the future of the popular app in the U.S. TikTok's legal filing calls the ban law ...
Politics A-Level (Edexcel) Essay Questions
77+ essay questions covering all the content in the US Politics section, all organised into the chapters - US Constitution and Federalism, Congress, US Presidency, The Supreme Court and Civil Rights, Democracy and Participation, Comparative Approaches. Make essay plans for all these and you'll be prepared as possible for the US Politics ...
WATCH: Attorneys for Kim Davis plan to take appeal to US Supreme Court
Democrats and Republicans were able to cast their ballot for several important seats across the Commonwealth. Attorneys for former Rowan County Clerk Kim Davis say they plan to take her appeal to ...
Us Supreme Court and Civil Rights Essay Plans
Match. Created by. Study with Quizlet and memorize flashcards containing terms like Evaluate the extent to which the Supreme Court has become more political in recent years, How has the SC become political through constitutional interpretation, Example of political bias in the SC and more.
Attorneys for Kim Davis plan to take appeal to US Supreme Court
Part of their argument includes citing a 2015 Supreme Court opinion they say should be overturned. Attorneys for former Rowan County Clerk Kim Davis say they plan to take her appeal to the U.S ...
The Major Cases for the Supreme Court in 2024
America's highest court is considering cases that touch on hot-button issues such as abortion, former president Donald Trump's immunity, guns and more. The sun rises behind the U.S. Supreme ...
PDF In the Supreme Court of the United States
nos. 22-506 and 22-535 in the supreme court of the united states joseph r. biden, president of the united states, et al., petitioners v. state of nebraska, et al. department of education, et al., petitioners v. myra brown, et al. on writs of certiorari before judgment to the united states courts of appeals