Shadow docket activity
The shadow docket deals with emergency motions—without full briefing on the merits of the cases—from lower courts usually seeking to overturn or keep in place an injunction to force or prevent the government from acting in a particular way. Rulings from the shadow docket can have broad reaching effects and do not require the justices to write opinions or even sign their names to the decision. The use of the shadow docket has increased dramatically in recent years, and this year is no exception. Over the summer, this year, the court already has already used the shadow docket to thwart the Biden administration’s attempts to grant debt relief to student loan borrowers; block the enforcement of protections for transgender students; and changed proof of citizenship requirements for voting in Arizona. The court is also set to decide—without full briefing—whether to block the administration’s efforts to curb greenhouse gas emissions from power plants and set national emission levels for certain hazardous air pollutants after the D.C. Circuit allowed the regulation to move forward.
Gun violence prevention
On October 8, the Supreme Court will hear oral argument in Garland v. VanDerStok involving a 2022 Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule regulating the sale of ghost gun components after the notoriously conservative 5th U.S. Circuit Court of Appeals struck it down. The rule—which prohibits the sale of unserialized core firearm components that can be assembled at home without a background check—was advanced in response to ghost guns being increasingly used in violent crime, with more than 19,000 weapons recovered by law enforcement in 2021 alone. In this case, right-wing litigants and amici, including the National Rifle Association, argued that ATF did not have the statutory authority to create this regulation, and the 5th Circuit agreed. The Supreme Court may use this case as an opportunity to apply the new standard it created to review agency interpretation of statutes Loper Bright v. Raimondo that allows judges to substitute their priorities over agency expertise to uphold the 5th Circuit’s decision. If so, federal law enforcement will be handcuffed from preventing the sale of deadly and untraceable ghost guns to criminals putting the safety of all Americans at risk from gun violence.
Furthermore, the court will likely grant certiorari to the 4th Circuit decision upholding Maryland’s military-style assault weapons ban, Maryland Shall Issue v. Moore, and will hear argument in 2025.
Worker’s rights and labor
On November 5, 2024, the Supreme Court will hear argument in EMD Sales v. Carrera, addressing the burden of proof standards employers must meet to exempt employees from being guaranteed minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). The FLSA covers approximately 140 million workers, guaranteeing them a minimum wage and overtime pay with exemptions for 34 job categories that include executives, IT employees, agricultural workers, and outside salesmen, as in this case. This case arises shortly after that Biden-Harris administration implemented a new rule to expand overtime pay to more than 4 million American workers who were previously ineligible. If the court issues a ruling adverse to workers interests, it could have a significant impact on the wages of workers across the country and provide more opportunities for employers to abuse the system by stretching the definition of overtime extension far beyond congressional intent. It will also provide evidence that the justices will view rules that protect workers—like the new overtime rule or the Federal Trade Commission’s ban on non-compete contracts—with skepticism when challenges inevitably reach the Supreme Court.
Consumer protection
In FDA v. Wages and White Lion Investments, the Supreme Court will consider whether the Food and Drug Administration’s (FDA) erred in denying authorization for a company introduce new e-cigarette products due to the risks posed to minors. Under the Family Smoking Prevention and Tobacco Control Act, the FDA was given the power to regulate tobacco products based in part on whether the marketing of the product would be “appropriate for the protection of public health.” In this case, the FDA prohibited the introduction of fruit and candy flavored e-cigarettes, finding that the benefit provided to helping adults quit smoking was outweighed by the risk posed to minors who are increasingly using flavored e-cigarettes and vapes. The 5th Circuited held that the FDA’s decision was arbitrary and capricious. Though this case does not explicitly implicate the Loper Bright decision, it provides this pro-corporate Supreme Court the opportunity to again rule against agency expertise in favor of corporate interests.
LGBTQ+ rights
In United States. v. Skrmetti, the Supreme Court will consider whether a Tennessee law that prohibits gender affirming care for minors is discriminatory in violation of the equal protection clause of the U.S. Constitution. The Tennessee law, Senate Bill 1 (SB1), bans the medical treatment of gender dysphoria in transgender adolescents. The district court held that the law’s prohibition on medical treatments supported by an overwhelming consensus of the medical community was unconstitutionally discriminatory as the law explicitly discriminates based on sex and transgender status. The 6th Circuit partially reversed that ruling, finding that transgender individuals did not need this heightened protection from discrimination. Should the Supreme Court side with the 6th Circuit, states will have the green light to continue to pass discriminatory laws targeting the LGBTQ+ community.
In addition, in Doe v. Ladapo, the 11th Circuit recently allowed a Florida law banning healthcare for transgender minors and restricting it for transgender adults to go into effect. This matter has not yet been appealed to the Supreme Court, but it likely will be and may be on the shadow docket unless the justices direct briefing on the merits.
First Amendment
In Free Speech Coalition v. Paxton, the Supreme Court will consider a potentially major shift in First Amendment jurisprudence, as free speech advocates challenge a Texas law requiring that any website that publishes content one-third or more of which is “harmful to minors” verify the age of every user accessing the content. The Texas law (H.B. 1181) was enacted purportedly to protect minors from “unwanted online exposure to sexually explicit content.” Free speech advocates argue that the law is inherently too vague—covering material such as sex-education videos and R-rated movies—and unconstitutionally bans protected free expression. Once again, the 5th Circuit ruled in favor of Texas. Under the First Amendment, courts have consistently ruled that the government has a high bar to prove that the state has a compelling interest in burdening adults’ from accessing protected speech. Should the Supreme Court abandon this standard and overrule longstanding precedent, states could be allowed to regulate far more than just sexually explicit online content.
Environmental protections
On October 15, 2024, the Supreme Court will hear argument in City and County of San Francisco v. Environmental Protection Agency, addressing whether the Environmental Protection Agency (EPA) properly interpreted a section of the Clean Water Act (CWA) concerning the regulation of water pollution elimination systems. San Francisco argues that the EPA exceeded its regulatory authority under the CWA by not giving specific enough parameters for how much sewer pollution the city is allowed to emit into the Pacific Ocean without facing enforcement actions. Again, given the Supreme Court’s decision in Loper Bright v. Raimondo—and their general preference to eliminate environmental protections—the court could very well strike down the EPA’s efforts to regulate sewage discharge into the ocean.
More concerningly, they high court will also consider Seven Court Infrastructure Coalition v. Eagle County, Colorado, which will address the extent to which the EPA can consider the environmental impact of major infrastructure projects. In the case below, the D.C. Circuit ordered the EPA to consider local environmental impacts related to oil wells and refineries in the construction of a new railroad line in Utah in determining whether to approve the project. As we have seen in cases like Loper Bright, in this case, the litigants are using what appears to be a narrow question to attempt to strip power away from the government to protect Americans in favor of corporate interests. Specifically, the petitioners are urging the high court to broadly reject that authority of public agencies to consider a broad set of environmental impacts under the National Environmental Policy Act (NEPA) when deciding whether or not to approve a major infrastructure project. Presently, NEPA cases are highly fact intensive, but this case provides the Supreme Court another opportunity to continue putting the interests of polluting industries above the interests of the American people.
Conclusion
The Supreme Court will continue adding cases to its docket through the early part of 2025 in addition to taking cases on the shadow docket on an ad hoc basis. One that thing is clear based on the cases the court has already accepted is that it seems willing to continue to aggregate power to itself while simultaneously stripping it away from Congress and public agencies whose purpose is to protect Americans from powerful special interests. That is why Supreme Court reforms—term limits, a binding code of ethics, and increased transparency—are critical to reasserting constitutional restraints on an out-of-control court.