Fall is upon us, and so is the Supreme Court. The justices will begin their next term on the traditional date of the first Monday in October. From there, they hold oral arguments and decide merits cases through the end of next June. From the cases it has already agreed to hear, this upcoming Supreme Court term will be yet another opportunity to push the country further to the right.
While the justices were out of the office for July through September, they still dealt with the myriad shadow docket petitions that crop up all year round. Many of those interventions ended up with the Roberts court showing extreme deference to the president’s executive power. This is a trend that seems likely to continue: Two of the most important merits cases from this term will address the Trump administration’s extraordinary claims of executive power—and how far the court’s conservative justices will go to embrace them.
In Learning Resources v. Trump, the justices will consider whether the president’s tariffs on imported goods are an illegal usurpation of congressional authority. The case has monumental implications for the Trump administration’s economic agenda. By imposing high tariffs on the nation’s top trading partners, Trump has claimed that he will revive American industries, which is questionable, and correct long-standing trade imbalances, which is not really how trade imbalances work.
Trump imposed the relevant tariffs in this case through the International Emergency Economic Powers Act, better known as IEEPA. The 1977 law gives broad powers to presidents to regulate foreign transactions in the United States during a declared national emergency. Presidents have used it for the last six decades to address matters like coups, invasions, and terrorist attacks. Trump is the first president to use it to levy tariffs.
The small businesses that brought the cases make two arguments. One is that IEEPA does not give the president the power to enact tariffs because the law makes no mention of tariffs, instead using broad phrases about “regulat[ing] imports.” Alternatively, if IEEPA can be used to levy tariffs, then they argue that this is an unconstitutional delegation of a core congressional power.
Both arguments are well tailored to the conservative majority’s interests. The Roberts court has championed the “major questions” doctrine in recent years, which the justices have used to invalidate rules and policies authorized by federal law if Congress did not “speak clearly” enough on a matter of “vast economic and political significance.” Imposing hundreds of billions of dollars of tariffs on U.S. companies and consumers by executive order would certainly seem to qualify.
At the same time, Justice Brett Kavanaugh suggested in an unrelated ruling last term that the doctrine might not apply in instances where national security is at stake—a get-out-of-jail-free card on which the Trump administration has leaned heavily in the tariff cases. Most of its opening brief for the high court is built around this notion. Whether the other five conservative justices agree with Kavanaugh will be the most important question in oral arguments in November.
Another vividly titled case, Trump v. Slaughter, also involves presidential power. Rebecca Slaughter, a Democratic appointee to the Federal Trade Commission, sued Trump earlier this year after he ordered her dismissal from the agency. Slaughter said that her removal was unlawful because Congress only allows FTC commissioners to be removed for cause, meaning for misconduct, to protect their independence and expertise.
Slaughter does not stand accused of any wrongdoing. Instead, the Trump administration has claimed that the for-cause removal protections are unconstitutional and that Humphrey’s Executor v. United States, the 1935 Supreme Court case that upheld them, should be overturned. The Justice Department, echoing the “unitary executive” theory, has argued that the Constitution allows the president to remove any federal official from their position for any reason (or even none at all).
My personal rule is that I never definitively predict the outcome of a Supreme Court case. The justices can always change their minds at the last minute, and there have been plenty of cases that took a strange turn between oral arguments and the opinion’s announcement. Perhaps the best example was when Chief Justice John Roberts unexpectedly cast the deciding vote to save the Affordable Care Act’s individual mandate in 2012.
That said, it would be one of the most surprising moves in the high court’s history if the justices were to side with Slaughter. Most of the conservative justices have openly criticized Humphrey’s Executor. They have consistently narrowed its scope in a series of key rulings over the past decade. More to the point, they have already effectively overturned Humphrey’s Executor through Roberts’s shadow docket decision this month to allow Slaughter’s removal while litigation continued. Next term, this case will allow them to finish the job.
The real question is what the court’s eventual ruling in Slaughter will say about the Federal Reserve. In a shadow docket ruling in May, the conservative majority allowed Trump to remove the heads of other federal agencies with for-cause removal protections while litigation unfolded. At the same time, they suggested that members of the Federal Reserve’s board of governors might still enjoy those protections. The Fed, the justices wrote in an unsigned opinion, “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”
It took Trump less than one hundred days to call the court’s bluff by firing Lisa Cook, the first Black woman to serve on the Fed, on pretextual grounds over allegations that she committed mortgage fraud by claiming more than one property as her primary residence. Cook disputed that allegation, and subsequent reporting by Reuters has found that she filled out the bank paperwork correctly. Cook remains in office; her case remains pending on the shadow docket.
The Supreme Court is also poised to hear major cases on the future of LGBTQ rights. Earlier this year, the court handed down a muddled ruling on transgender rights in United States v. Skrmetti. Three of the justices—Clarence Thomas, Samuel Alito, and Amy Coney Barrett—would have held for varying reasons that the Fourteenth Amendment’s equal protection clause does not apply to discrimination on the basis of gender identity. The other three conservatives—Roberts, Gorsuch, and Kavanaugh—instead managed to get them to coalesce around a ruling that upheld Tennessee’s ban on gender-affirming treatments for minors on other grounds.
New cases this term will test whether the conservative divide in Skrmetti extends beyond that particular case. In Little v. Hecox and West Virginia v. B.P.J., the court will review legal challenges to state laws that ban transgender women from participating in women’s sports. Hecox involves a college intramural athlete in Idaho who is challenging her state’s ban; B.P.J. centers on a high school student in West Virginia who wants to compete in cross-country racing.
The Supreme Court surprised some observers five years ago in Bostock v. Clayton County by holding that discrimination on the basis of sexual orientation and gender identity amounted to discrimination “on the basis of sex” under Title VII of the Civil Rights Act of 1964, the nation’s flagship workplace discrimination law. Justice Neil Gorsuch wrote the majority opinion, while Chief Justice John Roberts joined him and the court’s four liberals at the time to form a 6–3 majority.
That ruling prompted a furious backlash from conservative politicians and legal activists who oppose any legal recognition of LGBTQ status in antidiscrimination laws. It also prompted some lower courts to apply Bostock’s reasoning outside the context of workplace discrimination. The two cases could allow the justices to more squarely address whether transgender status is covered by the equal protection clause, a question they avoided in Skrmetti, as well as how far Bostock’s reasoning applies beyond Title VII. (B.P.J., for example, raised a Title IX claim in her lawsuit.)
Another case, Chiles v. Salazar, will allow the justices to scrutinize Colorado’s ban on conversion therapy for young LGBTQ patients on First Amendment grounds. Nearly two dozen states forbid medical professionals from using treatments that try to change a person’s sexual orientation or gender identity, citing the scientific consensus that such treatments are both psychologically harmful and medically ineffective.
The plaintiff, Kaley Chiles, is a licensed counselor in Colorado Springs whose faith informs her treatment approaches. Chiles said that she does not currently practice conversion therapy. At the same time, she claimed that, since the 2019 law took effect, she “has been unable to fully explore certain clients’ bodily experiences around sexuality and gender and how their sensations, thoughts, beliefs, interpretations, and behaviors intersect.” Chiles hopes to have the law struck down on First Amendment grounds.
This is a familiar type of case before the Roberts court. As I noted earlier this year, Chiles has not faced any sort of punishment or sanctions from state officials for her counseling practices. Her pre-enforcement challenge resembles the one sought by a Christian web designer in Colorado who feared that she might have to design wedding websites for same-sex couples and sought to limit Colorado’s antidiscrimination law for public accommodations accordingly.
States typically have broad latitude to regulate medical practices for health and safety reasons, a fact recognized by the court in Skrmetti when it upheld the gender-affirming care ban under a much more lenient standard of judicial review. At the same time, the court has looked favorably upon nearly every case that reaches it in which a Christian plaintiff claims that a state law protecting LGBTQ Americans infringes upon their religious liberty. In this case, the consequences could be significant for gay and transgender minors whose parents want to change them.
The Roberts court will also have another opportunity to pursue two of its favorite pastimes: rolling back anti-gerrymandering efforts and narrowing the Voting Rights Act of 1965. In Louisiana v. Callais, the high court will be taking the rare step of rehearing a case for oral argument that it already heard in a previous term. The case centered around Louisiana’s redistricting process after the 2020 census and whether state lawmakers engaged in racial gerrymandering along the way.
Lower courts concluded that the state had done so and ordered it to draw a second majority-Black district as part of the remedy. The Supreme Court had previously upheld a similar remedy in Allen v. Milligan, a post-2020 racial gerrymandering case from Alabama. Roberts, Kavanaugh, and the court’s three liberal justices held in 2023 that the lower court’s ruling in Alabama complied with the existing Supreme Court precedents on how federal courts can remedy racial gerrymandering claims when challenges are brought under Section 2 of the VRA.
At the same time, some of the court’s conservative members suggested that ordering states to draw majority-Black districts to remedy racial gerrymandering itself amounted to racial gerrymandering and thus violated the Fourteenth Amendment’s equal protection clause. Among them was Kavanaugh himself, who suggested in a concurring opinion that the court should consider the question in a future case.
While Louisiana v. Callais did not begin as such a case, the justices scheduled it for reargument at the end of the last term and asked the litigants last month to brief them on “whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.” The state of Louisiana changed its official view in court filings to argue that point in the affirmative.
The Supreme Court’s conservative majority has rolled back civil rights efforts for more than a decade under what can be described as the temporal argument: Instead of holding that civil rights laws and remedies were unconstitutional when they were enacted—a move that would come uncomfortably close to endorsing Jim Crow—they instead argued that the measures are no longer needed.
“Things have changed [in the South],” Roberts famously proclaimed in the landmark 2013 decision Shelby County v. Holder, which gutted the VRA’s preclearance formula and gave formerly covered jurisdictions the breathing room to enact a wave of restrictive voting laws. In Students for Fair Admissions v. Harvard, the 2024 ruling that abolished affirmative action in college admissions, the chief justice also leaned heavily on then-Justice Sandra Day O’Connor’s remark in a 2003 case on the matter that such measures would not be needed in a quarter-century.
As a result, the court is poised to eliminate the Voting Rights Act’s ability to protect racial minorities from discriminatory legislative maps in their own states. Republican-led states have already engaged in a growing campaign to gerrymander their maps ahead of next year’s midterm to insulate a thin Republican majority. Those moves have, in turn, prompted Democratic politicians to embrace retaliatory measures in states where they firmly control the levers of power.
Callais will likely not be decided soon enough for the states to eliminate majority-minority districts for the 2026 midterms, thanks to ballot deadlines in many states for next year’s primaries. The nation’s political maps could change significantly after that. The court could effectively give state lawmakers carte blanche to wipe out minority representation in state legislatures and Congress wherever possible. It would also further reduce the Voting Rights Act, one of the most important and effective laws in American history, to a vestigial statutory organ.
These are not the only important cases on the Supreme Court’s docket this term—interesting rulings on the Fourth Amendment, on copyright infringement, and on campaign-finance reform also loom on the horizon. The justices also typically agree to hear new cases for the current term through January, while the shadow docket keeps them busy year-round. Nonetheless, from the cases already set to be heard, the court’s conservative majority has shown the direction in which it will most likely take the country over the next nine months.
The post Get Ready for Another Rightward Lurch in the New Supreme Court Term appeared first on New Republic.
