Ahead of the US Supreme Court’s new term, a panel of constitutional law experts gathered on September 18 to review the Court’s most recent decisions in an NYU Law Forum, sponsored by Latham & Watkins. The 2023–24 term saw the Court deliberate over a slate of controversial issues, from presidential immunity to access to medical abortion, even as it faced heightened public scrutiny. Joining moderator Melissa Murray, Frederick I. and Grace Stokes Professor of Law, at the Forum were Kelsi Corkran, Supreme Court director at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center; Ann Marimow, the Washington Post’s Supreme Court correspondent; and Roman Martinez, a partner at Latham & Watkins.
The panel also previewed the Court’s forthcoming docket for the term that begins on October 7, which Murray noted promises to deliver plenty of action. “This term has everything!” she said. Panelists agreed that Garland v. VanDerStock is a case to watch. It centers around “ghost guns” and whether the Alcohol Firearms and Tobacco Agency has regulatory authority over these untraceable homemade weapons. Another upcoming case that garnered the panel’s attention is United States v. Skrmetti, a challenge to bans on gender-affirming care for minors in Kentucky and Tennessee. At issue is whether state laws that restrict children and teenagers from using hormone therapy or puberty blockers violate the Equal Protection Clause of the US Constitution.
Panelists also weighed the prospect of the Court having to grapple with sudden legal challenges arising from the 2024 presidential election. The likelihood that justices could see cases of that sort is high, the panel reasoned. But perhaps not surprisingly, they were split as to whether the Court should actually intervene if such a scenario were to occur.
Selected remarks from the NYU Law Forum discussion:
Roman Martinez: “[In US v. Skrmetti], you have a very hard problem to deal with, a policy problem to deal with. And the question is, I think the conservative-leaning justices might view this as a situation where, in the face of a challenging policy problem, are we going to constitutionalize the problem by finding in the Constitution something in the Bill of Rights or in the 14th Amendment that prevents states from acting?” (video 50:57)
Kelsi Corkran: “I would say what to keep your eye on in this space—or in everything the Supreme Court does—is how power is being transferred among the branches. So [last term’s Loper Bright v. Raimondo]—and I think [SEC v. Jarkesy], and [Corner Post Inc. v. Board of Governors of the Federal Reserve System] as well—are cases that are [making] a huge transfer of power from the executive branch, which for a long time the assumption has been [that] as a matter of separation of powers, Congress makes the law and then the executive branch experts within the agencies decide things like whether amino acid polymers are proteins within the FDA organic statute or whatever it is. And so [Loper] is: ‘No, we the courts are going to decide those things in the first instance, de novo.’” (video 43:20)
Ann Marimow, Supreme Court correspondent for the Washington Post: “I think that there will be perhaps fewer [election-related] cases. Rick Hasen, an election law expert, makes the point that during COVID, a lot of the states were changing their election rules at the last minute, having to do with absentee ballots and signatures. So that was a lot of what was coming to the Court then. But I also know that both political parties are already filing many challenges. The Court has already gotten involved in a case from Arizona having to do with whether or not you have to show citizenship when you register to vote. So I think even if the Court wants to stay out of [the 2024 presidential race], they will definitely be drawn in.” (video 56:31)
Posted October 3, 2024