Chemerinsky: Will the Supreme Court have a role in the presidential election as it enters a new term?
Erwin Chemerinsky. (Photo by Jim Block)
As the justices return to the bench on Oct. 7 for the new term, the unknowable question is whether the U.S. Supreme Court will play a role in the outcome of the November 2024 presidential election. Will this year be like 2000, when a close election was effectively decided by the court’s ruling in Bush v. Gore? Or will it be like 2020, when a close election did not raise any issues for the justices to decide?
Before the court adjourned for the summer, it had granted review in 28 cases, which is likely slightly less than half of its docket. It will grant review in more cases when it returns from its recess and continue to take cases until mid-January that will be decided this term.
What are some of the more high-profile cases already on the docket?
A ban on gender-affirming care?
United States v. Skrmetti involves a Tennessee law that prohibits gender-affirming care for transgender minors. In 2023, Tennessee passed Senate Bill 1, which prohibits health care provided for: “(A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or (B) Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”
Three transgender teenagers, all receiving gender-affirming care, filed a lawsuit seeking to enjoin enforcement of SB 1. The Biden administration joined the lawsuit on behalf of the plaintiffs.
The district court issued a ruling that prevented implementation of SB 1 until litigation had concluded, finding that “parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parents to request certain medical treatments on behalf of their children.” Additionally, the district court found discrimination on the basis of gender identity and that the plaintiffs were likely to prevail on their equal protection claims.
The U.S. Court of Appeals for the 6th Circuit simultaneously evaluated Tennessee and Kentucky laws prohibiting gender-affirming care for transgender minors. It reversed the preliminary injunctions from the lower courts, upholding the laws. The court cited studies from the late 1970s and early 1980s that recommended only adults undergo hormonal and surgical treatments for “gender dysphoria” (the terminology used throughout the case). The court urged deference to the political process.
The Supreme Court granted review on the question of whether the Tennessee law violates equal protection. The case will matter for transgender youth in the United States. A study concluded: “As of August 2024, 39.4% or 118,300 trans youth aged 13-17 are living in the 26 states that have passed bans on gender-affirming care.” This case will also likely see the Supreme Court address the level of scrutiny that will apply to discrimination against transgender individuals and whether they are to be treated as a “suspect class.” It is a case that once more puts the Supreme Court squarely in the middle of the “culture wars.”
Age verification for sexually explicit websites
Free Speech Coalition v. Paxton involves a Texas law that regulates websites that have more “more than one-third of which is sexual material harmful to minors.” Such websites must “verify that an individual attempting to access the [covered] material is 18 years of age or older.” The act permits verification by “digital identification,” “government-issued identification” or “a commercially reasonable method that relies on public or private transactional data.” These websites also must have a series of warnings about the harms of exposure to pornography.
A federal district court issued a preliminary injunction against the statute, concluding that it was likely unconstitutional. The U.S. Court of Appeals for the 5th Circuit ruled that the age verification requirement was likely constitutional, but it agreed with the lower court that the disclosure requirements should continue to be enjoined as violating the First Amendment. The Fifth Circuit, in a 2-1 decision, said that only rational basis review—whether the law is rationally related to a legitimate government purpose— is to be used in evaluating the age verification requirement and found it to be constitutional.
On the one hand, in Ginsberg v. New York (1968), the court upheld a law that prohibited the sale of sexually explicit magazines to those under 18. On the other hand, the court never has upheld a law that applies to both adults and minors. On many occasions, the court has held the that a burden on adults’ access to that content “can stand only if it satisfies strict scrutiny,” Ashcroft v. ACLU (2004); Ashcroft v. Free Speech Coalition (2002). Also, in Brown v. Entertainment Merchants Association (2011), the court used strict scrutiny to declare unconstitutional a California law that prevented minors under 18 from renting or buying violent video games without parental consent.
As states are increasingly trying to regulate the internet, including with laws like that in Texas, this case takes on great importance.
The death penalty
Glossip v. Oklahoma poses the issue of whether a state can execute a person when its attorneys concede that a new trial is appropriate. In 2004, Richard Glossip was convicted of first-degree murder by a jury in Oklahoma County District Court. When Glossip was originally convicted and sentenced, the state relied on its “indispensable witness,” Justin Sneed. It has now become clear, however, that Sneed likely murdered the victim.
Indeed, the state of Oklahoma confessed error, admitting that the failure to disclose the truth about Sneed’s psychiatric condition, leaving the jury with Sneed’s uncorrected false testimony and then suppressing this information for a quarter century, rendered “Glossip’s trial unfair and unreliable.” But the Oklahoma Court of Criminal Appeals has refused to stop the execution. The U.S. Supreme Court granted review of several questions, including “[w]hether the state’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law.” Also, the court granted review on “whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it.” In addition, the parties were directed to brief “whether the Oklahoma Court of Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.”
This is likely to be an important case for precedent regarding the death penalty. Will the Supreme Court allow a likely innocent person to be sentenced to death, even when the state now agrees that man should not be executed? What is the legal effect of the state of Oklahoma confessing error? The case also poses important issues about the government’s duties for disclosure and when a state law ground is an independent and adequate state law ground of decision.
Exhaustion of state court remedies
If I were to pick a potential sleeper case for the term, it would be Williams v. Washington, which poses the question of “[w]hether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.”
The Supreme Court has consistently held that there is not an exhaustion requirement before bringing Section 1983 claims, which allows individuals to sue state or local governments for constitutional rights violations. In 1982, in Patsy v. Board of Regents of State of Florida, the court concluded that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to Section 1983.” More recently, in 2019, in Knick v. Township of Scott, Pennsylvania, the court held that there is no need to exhaust state administrative or judicial remedies before bringing a takings claim under Section 1983.
Williams v. Washington arose when Nancy Williams sued under Section 1983 in Alabama state court, complaining about delays in the processing of unemployment benefits. The Alabama Supreme Court affirmed the trial court’s dismissal of the case, holding that the Alabama “legislature has prohibited courts from exercising jurisdiction over the plaintiffs’ claims at this stage” before the claimants had exhausted their administrative remedies.
If the Supreme Court were to affirm the Alabama Supreme Court, it would be a dramatic change in what the law has been for over a half century and radically change how civil rights cases are litigated. Conceivably, the court could distinguish many of the prior cases by saying exhaustion is not required before a federal court suit under Section 1983, but it is for a state court suit under Section 1983. But since the court’s reasoning has been that an exhaustion requirement is inconsistent with Section 1983, it does not seem that the forum should matter.
Conclusion
It always is difficult at the beginning of a Supreme Court term to forecast what will be the blockbuster cases in June. It is especially so in this election year. But it is safe to predict that it will be another term with decisions that have enormous impact on our society and on people’s lives.
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 the forthcoming A Court Divided: October Term 2023 (October 2024).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
