Chemerinsky: What can we expect from SCOTUS in 2025?
Erwin Chemerinsky. (Photo by Jim Block)
Predictions for the coming year are always tempting, but in hindsight often seem foolhardy. No one in December 2019 could have anticipated the COVID-19 pandemic of 2020. And in December 2023, no one could have envisioned the political roller coaster of 2024. Although there is much that cannot be anticipated, the following seem realistic questions as we anticipate the new year.
What will be legal challenges to Trump admin policies, and how soon will they reach the court?
Many of President-elect Donald Trump’s campaign promises, if implemented, are sure to provoke legal challenges. Trump has pledged many changes in immigration law, including mass deportations, creating large detention camps and an effort to end birthright citizenship, where those born in the United States are deemed citizens.
As a candidate, Trump explicitly embraced controlling federal spending by impounding funds. Elon Musk and Vivek Ramaswamy, the co-directors of Trump’s Department of Government Efficiency, did so in an op-ed in the Wall Street Journal. Musk has talked about cutting $2 trillion from the federal budget, and Ramaswamy has said the federal workforce should be cut by 75%. Impoundment of funds is prohibited by the Impoundment Control Act of 1974 and is sure to be challenged as violating that law and infringing separation of powers. Musk and Ramaswamy, in their op-ed, boldly predict the U.S. Supreme Court will declare the Impoundment Control Act unconstitutional, which would dramatically change federal spending power.
The Trump administration is sure to try to repeal many Biden era rules and regulations. These shifts often will be challenged in court.
States with Democratic attorneys general are readying their efforts to challenge many Trump administration policies. During the last Trump presidency, the California attorney general brought 123 lawsuits against the administration.
Although the challenges to Trump administration policies will begin in federal district courts, preliminary injunctions—or denial of preliminary injunctions—will be immediately appealed. Some could quickly get to the Supreme Court on its emergency (“shadow”) docket. This occurred repeatedly in the first Trump term, and it seems certain to happen again. It is just a question of what issues, when they get to the high court and how they are decided.
How will the court approach the culture wars?
On Dec. 4, the court heard oral arguments in United States v. Skrmetti, a challenge to the Tennessee law that prohibits gender affirming care for transgender youths. An interesting procedural wrinkle is that the petitioner is the United States government. The Trump administration is very likely on Jan. 20 to inform the court that the federal government now wishes to support, rather than oppose the Tennessee law. There are private parties who brought challenges and whose certiorari petitions were not granted but who have filed briefs in the court. Will the court simply substitute them for the United States as petitioners?
At the oral argument, the justices appeared ideologically divided. Five of the conservative justices expressed the view that there should be deference to the Tennessee legislature. Justice Neil Gorsuch was silent during the oral argument. The three liberal justices saw the Tennessee law as discrimination based on sex and gender identity, and likely violating equal protection.
Another case with implications for the culture wars will be heard on Jan. 15, Free Speech Coalition v. Paxton. It involves a Texas law requiring that internet websites and social media platforms do age verification if more than one-third of their content is sexual material that would be harmful to minors. The U.S Court of Appeals for the 5th Circuit upheld the law, using rational basis review. The Supreme Court granted review as to whether that is the correct standard of review.
Supreme Court precedents are conflicting as to whether age verification requirements for access to sexually explicit material are allowed. In Ginsberg v. New York, in 1968, the court upheld a New York law that prevented the sale of sexually explicit material to minors under age 18. But in Ashcroft v. American Civil Liberties Union, in 2004, the Supreme Court declared unconstitutional provisions of the Child Online Protection Act that required age verification for websites with sexually explicit material. Underlying Free Speech Coalition v. Paxton is the question of how far states can go in regulating the internet and social media, especially to prevent harm to children.
Will the court save TikTok in the United States?
A federal law provides that TikTok must stop operating in the United States on Jan. 19 if its owner, ByteDance, does not sell it to a non-Chinese company. On Dec. 6, in TikTok v. Garland, the U.S. Court of Appeals for the District of Columbia Circuit upheld the TikTok ban. On Dec. 18, the Supreme Court granted expedited review in the case and scheduled oral arguments for Jan. 10.
The free speech implications are enormous. The 170 million Americans who use TikTok to share and receive information no longer will be able to do so if the law goes into effect.
The D.C. Circuit accepted the government’s claim that national security justified the law. The court said China could use TikTok to “collect data of and about persons in the United States.” The court also said China could “covertly manipulate content on TikTok” to “undermine democracy” and “extend the PRC’s influence abroad.”
The Supreme Court will need to decide what level of scrutiny to use in evaluating the federal law and apply it to decide the constitutionality of the TikTok ban. Never before has the government banned a platform for communication.
Will the court impose additional limits on the administrative state?
In the last few years, the Supreme Court has dramatically changed administrative law. This has included holding that agencies cannot act on major questions of economic or political significance without clear guidance from Congress, overruling the Chevron doctrine, under which courts deferred to reasonable agency interpretations of ambiguous statutes, preventing agencies from imposing civil penalties for fraud and expanding the time within which a challenge to an agency action can be brought.
Federal Communications Commission v. Consumers’ Research, which will be argued in the spring, could be the most important of all the recent administrative law cases. It involves whether the Supreme Court will revive the nondelegation doctrine, which provides that Congress cannot delegate its legislative power. The Supreme Court last invalidated a federal law as an excessive delegation of powers in 1935. Since then, every nondelegation challenge has been rejected by the court, even for statutes with very broad delegations of authority to federal agencies.
In 2019, in Gundy v. United States, three justices—Gorsuch, Chief Justice John Roberts and Clarence Thomas—in a dissenting opinion urged the revival and application of the nondelegation doctrine. Justice Samuel Alito concurred in the judgment in the case and expressed sympathy with that position. Justice Elena Kagan’s plurality opinion, rejecting a challenge to a federal law as an excessive delegation of powers, spoke apocalyptically about the consequences of reviving the nondelegation doctrine. She wrote: If broad delegations are “unconstitutional, then most of government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs. Consider again this court’s longtime recognition: ‘Congress simply cannot do its job absent an ability to delegate power under broad general directives.’”
There are now three justices who did not participate in the Gundy decision, including Justices Brett Kavanaugh and Amy Coney Barrett, who have been in the majority in recent cases limiting administrative power, who have joined the court. Justice Ketanji Brown Jackson also is new, though she has been in dissent in these decisions.
Federal Communications Commission v. Consumers’ Research involves a federal program that offers discounted phone and internet service to public schools and libraries. The United States Court of Appeals for the 5th Circuit, in a 9-7 en banc ruling, found unconstitutional the delegations of power. It held that Congress had impermissibly delegated its taxing power to the FCC in giving the agency the power to set the fees that telecommunications providers must pay to the fund for internet availability. It also held that the FCC delegated too much policymaking authority to the private company that administers the fund, violating the principle that the government cannot delegate its powers to private entities.
If the court strikes down the law as an excessive delegation of power, it potentially will open the door to challenges to countless federal agencies and their actions. It will require that the court struggle with the difficult question of how to define what is too much of a delegation of power and where the line is to be drawn.
Will there be a vacancy on the court?
Justice Thomas, age 76, and Justice Alito, age 74, are the two oldest members of the court. Both are very conservative. There is much speculation that they might retire in the next two years while there is a Republican majority in the Senate and a Republican president to replace them. With 53 Republican senators and no possibility of a filibuster under Senate rules, President Trump can have almost any nominee confirmed. The result would be replacing these justices with much younger conservatives who will secure a conservative majority on the court for decades to come.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (November 2024).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
