EXPLAINER: What's Happening at the Supreme Court?
& Call Your Senators about Emil Bove
Hi All -
My health has taken a bit of a turn so I’m going to do one mega post this week instead of my usual two (plus of course you’ll get a Friday Roundup!). I want to review some of the major things that have been happening at the Supreme court recently, and have an important call to action at the top.
Quick SUMMARY of the article:
Call to Action: Emil Bove, a Trump loyalist, is up for a lifetime federal judgeship. His nomination hearing is Thursday. Call your senators and urge a NO vote.
SCOTUS Greenlights Trump’s Education Purge: The Court allowed mass firings at the Department of Education with no explanation, risking civil rights enforcement and student protections.
Trans Rights Under Fire: The Court upheld Tennessee’s ban on gender-affirming care for minors and will hear cases on trans students in sports next term.
Trump v. CASA: A ruling limiting universal injunctions weakens checks on executive power, and opens the door to birthright citizenship challenges. BUT, it may not be as bad as we think and I’m going to explain why
Parents’ Rights Win, LGBTQ+ Students Lose: The Court ruled schools must allow opt-outs from LGBTQ+-inclusive curriculum.
ACA Survives Another Attack: Preventative care remains covered, but the ruling gives more power to anti-vax leaders like RFK Jr.
Broadband Access Protected: The Court upheld federal support for rural internet access.
Online Porn Restrictions Upheld: Texas’s age-verification law for adult sites was allowed to stand.
What’s Coming: More cases targeting trans rights, campaign finance limits, and citizenship protections are on the docket for next term.
Emil Bove has been nominated to serve as a judge on the U.S. Court of Appeals for the Third Circuit. His nomination is currently being considered by the Senate Judiciary committee and then it will go to the full Senate floor. Going to the floor means it gets voted on by all 100 members of the Senate.Judicial nominations only need a majority to pass, so Republicans alone can make this happen.
We need to fight this. 75 former state and federal judges already wrote a letter urging the rejection of his nomination. Here is what you need to know about him:
Bove was a personal defense lawyer for Donald Trump. He is being nominated because of his loyalty to Trump not his loyalty to justice or the American people. This is part of the Trump Administration’s larger battle with the courts who they view as blocking their agenda.
A whistleblower said Bove told department attorneys to ignore court orders barring Trump from deporting immigrants
He has targeted FBI and DOJ officials who prosecuted Jan 6th offenders
President Trump posted on social media that Bove would “do anything else that is necessary to, MAKE AMERICA GREAT AGAIN.”
CALL YOUR SENATORS:
-Check to see if your Senator is a member of the Judiciary Committee here.
- If they are a member of the committee call them and tell them to VOTE NO on the nomination of Emil Bove (the hearing is TOMORROW, Thursday the 17th)
- If they are *not* a member of the committee, call and tell them to VOTE NO if the nomination of Emil Bove goes to the floor
The Department of Education is One Step Closer to Being Gutted
On Monday the Supreme Court issued a temporary emergency order, functionally allowing the Trump Administration to follow through firing over 1,300 officials at the Education Department. This includes shutting down seven out of the 17 offices in the department’s Office for Civil Rights.This is a major expansion of presidential power allowing the President to dismantle a government department established by Congress.
The order itself included no reasoning, though the liberal justices issued a 19-page dissent. While the order allows firings to happen, the case determining if it is unconstitutional will continue to work its way through the system until there is a final determination.
Justice Sotomayor wrote in her dissent that there will be “untold harm, delaying or denying educational opportunities and leaving students to suffer from discrimination, sexual assault and other civil rights violations without the federal resources Congress intended.” The decision “hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority,” she wrote, “is either willfully blind to the implications of its ruling or naïve, but either way the threat to our Constitution’s separation of powers is grave.”
Trump Education Secretary Linda McMahon has been clear about what the administration wants all along. Her goal is to dismantle the department, gut public education and promote voucher systems. While the administration can’t get rid of the agency itself, if it can hobble all the programming the difference is nearly semantics. In the Republican’s Big Budget Bill, Congress approved the first national school voucher program for families who earn up to 300% of their area’s median income. It's a complicated program. Taxpayers make donations to nonprofits, and then get a credit up to $1,700 on their federal tax bills. In turn, the nonprofits grant scholarships to students.
Other Major Cases This Term:
Trump v. CASA (aka the Birthright Citizen Case)
This 6-3 ruling might be the most consequential of the recent decisions, but it is not clear how it will pan out.
In the decision the court found that federal courts do not have the authority to issue universal injunctions. Theoretically, in this action the Court has taken away one of the major checks we have on the Trump Administration. Injunctions come into play when the Trump Administration issues something like an Executive Order (EO) that litigants want to contest. The lower courts have been issuing injunctions blocking the enforcement of that EO until the courts have time to decide if the EO is constitutional or not.
President Donald Trump called the Supreme Court’s decision in Trump v. CASA “amazing.” He stated that this approach could extend beyond birthright citizenship to include eliminating funding for sanctuary cities, halting refugee resettlement programs, and stopping non-essential government spending.
However there are several carve-outs to the ruling, namely class actions and remedies available under the Administrative Procedure Act which allows courts to issue these injunctions against agency actions.
Fundamentally, this is a bad decision further expanding executive power and limiting the checks part of ‘checks and balances.’ But there are still avenues for lawyers to push back. I should note that Biden solicitor general Elizaneth Prelogar likewise suggested the court examine the power of universal injunctions.
United States v. Skrmetti
In a 6-3 ruling, the court upheld a Tennessee law banning hormone therapy for minors. The court rejected the argument that this law discriminates based on sex because a transgender boy cannot receive medicines that a teenage boy who is not transgender is allowed to receive. The conservative majority argued that the law was merely based on the patient’s age and the medical purpose for which they will be used.
In a dissent from the three liberal justices, Justice Sotomayor wrote this decision “authorizes, without second thought, untold harm to transgender children and the parents and families who love them.”
The decision leaves open questions about whether transgender people are a class that triggers heightened application of anti-discrimination laws.
Kennedy v. Braidwood Management, Inc.
This 6-3 decision upholds aspects of the Affordable Care Act that will preserve certain preventative care. It’s one of the few rulings that had unanimous support from the Court’s threemore liberal members. This was the 8th case about the ACA decided by the court this term.
The case was brought by religious individuals and businesses who objected to their health plans covering PrEP (an HIV prevention medication - they argued that coverage implied approval of gay sex.) However the question at issue was the methodology used to approve preventative services by the ACA. This includes screenings for lung, cervical and colorectal cancers, diabetes medications and statins to reduce the risk of heart disease and stroke.
The question was if the people on the board that approves them need to be confirmed by the Senate. The court ruled they do not and the board of experts can continue their work. While this is a victory for preventative care, it is also handing a stronger case to RFK Jr. to hire and fire people at will. Secretary Kennedy recently fired all 17 members of the advisory council charged with making determinations about vaccine coverage and appointed some people who are not rational or evidence based.
Mahmoud v. Taylor
The 6-3 decision requires schools to provide advance notice and opt-out provisions for LGBTQ+-inclusive curriculum content. Parents will have the right to keep their children home on these days.
The case was brought by a Muslim father concerned about religious autonomy and was a culmination of the ‘parents rights’ culture war we’ve seen coming from the right since the pandemic started. The parents said that the school reading their children content that features gay and transgender characters violates their religious freedom.
Justice Alito said that not allowing the opt-out violates the parents’ freedom of religion: "We have long recognized the rights of parents to direct 'the religious upbringing' of their children. And we have held that those rights are violated by government policies that substantially interfere with the religious development of children."
The court did not say that merely exposing children to ideas contrary to their faith is unconstitutional. But rather looked at the teacher guidance documents which instructed them on how to respond to student comments and said that they were curriculums “designed to present certain values and beliefs as things to be celebrated, and certain contrary values and beliefs as things to be rejected.” If a child said that “a boy can’t marry a boy,” teachers were told to respond, “Two men who love each other can decide they want to get married.”
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented. Sotomayor wrote, “That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. Exposure to new ideas has always been a vital part of that project, until now. The reverberations of the Court’s error will be felt, I fear, for generations."
Federal Communications Commission v. Consumers' Research
The 6-3 decision preserves a program that subsidizes internet and telecommunications access for rural and underserved communities and also pushed back on something called the nondelegation doctrine, which says that Congress can’t delegate to other institutions.
The American Library Association praised the decision which annually provides billions of dollars to libraries and schools for broadband access and connectivity. Each year, more than half of all public libraries seek this type of funding to help offset their internet expenses. Litigants argued this was a tax coming from someone other than Congress. The goal of the case was to limit the government's ability to regulate companies, one of the general pushes of the pro-corporation conservative movement. Justice Kagan wrote that the law was sufficient as it “imposed ascertainable and meaningful guideposts for the FCC to follow when carrying out its delegated function of collecting and spending contributions from carriers.”
Free Speech Coalition, Inc. v. Paxton
In this 6-3 ruling the court upheld a Texas law designed to prevent minors under 18 from accessing online pornography. Nearly half of all states have enacted similar age verification legislation to restrict children's access to harmful content. The question was if the law violated the first amendment right to free speech.
Justice Thomas wrote the majority opinion, saying that this is a lawful exercise of a state’s “traditional power to prevent minors from accessing speech that is obscene from their perspective.” He argued there is no first amendment right to avoid age verification and that the State has a strong interest in protecting children.