Supreme Court Ends the Term on a High Note

My reaction to last Friday's slate of legal news.

The Supreme Court issued several high-profile decisions on Friday to complete its 2024-2025 term, including in four cases in which I filed a brief for the Manhattan Institute. Here’s the breakdown of how MI did, with links to our briefs and background on the cases:

Winning side (3): United States v. Skrmetti; Mahmoud v. Taylor; Free Speech Coalition v. Paxton.

Losing side (2): FCC v. Consumers Research, Kennedy v. Braidwood Management

Tied (1): Oklahoma Statewide Charter School Board v. Drummond

In Skrmetti (which came down the previous week), the Supreme Court affirmed what was readily apparent: that Tennessee’s law restricting puberty blockers and cross-sex hormones was based on age and medical condition, not sex or gender identity. In legal terms, classifications based on those factors aren’t subject to “heightened scrutiny,” so the law doesn’t violate the Fourteenth Amendment’s Equal Protection Clause. But more broadly, as MI’s brief described, neither scientific evidence nor global health authorities support the safety and efficacy of these medical treatments for youthful gender dysphoria. So it was a good day for science and reason.

In Mahmoud, it’s a relief but not a surprise that the Court slapped down Montgomery County’s malicious refusal to allow parents to opt out of sensitive and age-inappropriate materials relating to sexuality that the school board benignly labels ‘LGBTQ+ inclusive.’ This policy was a national outlier—and a new one at that, because opt-outs were allowed until 2023, when the board removed them because too many parents were using them (which should’ve been a signal to reevaluate the controversial instructional materials). But let this case be a warning: if state and local authorities continue to use public schools for indoctrination and activism rather than education, they can expect evermore lawsuits. The ultimate solution is, of course, school choice, but that’s most needed in states like Maryland that are least likely to provide it.

In Free Speech Coalition, it’s interesting that on the nerdy question of “what level of judicial scrutiny applies,” the Court rejected the positions of both the porn companies and Texas, holding that ‘intermediate’ scrutiny applies—and then correctly upheld Texas’s law because its burden on adult speech is slight. MI’s brief alongside five distinguished scholars of technology, physics, law, and political science explained how cutting-edge age-verification methods use zero-knowledge proofs, biometric age verification and estimation, and trusted third-party providers to protect privacy at minimal cost. Unlike older methods that required uploading government-issued IDs or credit cards, today only the fact that the user is over a certain age is shared, protecting users’ sensitive information. By offering low-cost, privacy-preserving, user-friendly, and commercially reasonable solutions, this type of age verification upholds adults’ free speech rights while protecting minors from accessing materials harmful to them.

In Consumers Research, the Court rejected the argument that the FCC’s Universal Service Fund was an impermissible delegation of Congress’s taxing power to the executive branch—which in turn delegated it to a private entity! Justice Gorsuch’s 38-page dissent had the better of it, spelling out how the FCC taxes all telecom consumers—all of us—based on principles of its own concoction to fund a public-welfare scheme of its own design. As my colleague Jim Copland put it, “The discretion afforded the FCC is a far cry from the carefully delineated ‘intelligible principles’ the Supreme Court upheld in J.W. Hampton [the leading case in this area, from 1928]. If there is a saving grace to the decision, however, it is this: all nine justices appear to agree that the nondelegation doctrine continues to have relevance, and all nine would hold Congress to at least the Hampton standard.” Nondelegation looms large in the Trump tariff cases, so these arguments are to be continued.

“The End of the Supreme Court Term” by Substack’s AI

In Braidwood Management, it’s disappointing that the majority didn’t recognize flaws in the way an HHS preventive-services task force was appointed. This ruling can’t help but further entrench the bureaucracy that increasingly sets the rules by which we live our daily lives.

In Drummond (which came down last month), it’s unfortunate that the Supreme Court wasn’t able to correct the Oklahoma Supreme Court’s error in treating charter schools run by religious groups differently than other schools. In an era of growing educational opportunity, states shouldn’t be able to disqualify charter-school applications simply based on the religious nature of their sponsors. Although we don’t know the vote breakdown, the most likely result is that Chief Justice Roberts joined the Democrat-appointed justices to oppose educational freedom here. If that’s the case, it’s sardonic because he’s the author of the rulings in the three precedents (Trinity Lutheran, Espinoza, and Carson) that supported the challengers. It’s a shame that Justice Barrett decided to recuse, but this result makes it all the more important to legislate school-choice programs throughout the country.

Finally, in Trump v. CASA, in which MI didn’t file a brief, the Court wisely cut back on universal injunctions, which have been growing in recent years. While it’s suboptimal not to have uniform national rules in certain areas—to have judicially created exemptions only for the parties who happen to sue—the normal appellate process can handle the temporary legal unevenness that may now occur. Whether for birthright citizenship or on many other issues, the Supreme Court will ultimately pronounce on the merits and set legal standards for the country as a whole, but it’s a distortion of our governmental processes to allow one district judge (among many who may be entertaining similar suits) to block national policy. As Justice Alito points out, many of these battles will now move to class certification and third-party standing—the challengers have already filed a class-action lawsuit—which will have their own jurisprudential conundrums. So it could be that the best solution would be for Congress to step in and legislate new procedures for challenges to nationwide policy changes.

I’ll have more later this week. What do you want to know more about from this term? Post your questions in the comments.