Dem
47
GOP
53
There are a lot of lawsuits against the Trump administration. Every week, we get questions from readers asking if there's a good website tracking them all. We've shared this before, but Just Security has a good tracker. By their count, there have already been 209 cases filed against the Trump administration (roughly 2½ a day), of which 205 are still pending. So, things are pretty backed up.
We do our best to follow the biggies, and there were a couple of stories this week worth noting. To start, on Tuesday, the Supreme Court heard oral arguments in Mahmoud v. Taylor, a challenge to the Montgomery County Public Schools (in Maryland) that updated their approved book selections for language arts to include stories with gay characters. Let the pearl clutching begin. Plaintiffs include a diverse group of religious adherents to show, presumably, that anti-gay sentiment brings many denominations together. These plaintiffs seek what they call "modest relief;" they just don't want their children to learn of a gay person's existence or listen to a story that includes a wedding between two men, which they characterize as "instruction on gender and sexuality."
If you thought these folks would get a particularly warm welcome at the Supreme Court, you'd be absolutely right. Even Justice Neil Gorsuch, who penned the Bostock decision, which held that Title VII prohibits discrimination based on sexual orientation and gender identity, seemed appalled that a first grader would be listening to a story where a prince falls in love with the knight who saved him from the dragon. (Knights can be women too, mind you, but in this case, it's a man.) Justice Alito did his usual bloviating about how awful public schools are generally and that the county's position amounts to advocating for teachers to do whatever they want in the classroom, including going outside the curriculum to coerce students to adopt a particular gender identity. Needless to say, that is not what this case is about.
While the media consensus is that a majority appears ready to side with the plaintiffs, what is less clear is what legal basis the justices will rely on to reach that outcome. Listening to oral arguments felt like being at a school board meeting, with the justices playing the role of the angry parents conjuring up all manner of horribles if children remained in the classroom when (or if) these books were read. The justices acknowledged that these books are not part of a sex education or gender identity curriculum. Instead, they are part of an array of storybooks designed to provide language skills. Nonetheless, at least four of the justices seemed troubled by a portrayal of same-sex relationships in a positive or "normalizing" light in a classroom book, and that a teacher, in simply reading the book aloud, might reinforce the notion that a same-sex relationship is OK. Justice Kavanaugh wondered what the big deal is in letting students "opt out" and said, without a trace of irony, that the Court is always looking for a "win win." (His tone deafness continues to astound.)
What was missing was any real discussion of the substantive law. One has to read the briefs to understand the legal claims being made here. The plaintiffs claim that denying the children the right to be warned and to be given an opportunity to opt out of class if these books are read in class (though it's unclear if they claim that even having the books on the shelves is also a violation) violates the Free Exercise clause of the First Amendment.
In that context, the law is well-settled: Exposure to ideas or material that is offensive to some religious groups is not enough; there must be an element of coercion that compels the person to change their beliefs or act in a way contrary to those beliefs. The district court and the Fourth Circuit both found that the plaintiffs had failed to meet their burden to show any violation. And that makes sense, as anyone can find offense in anything in a school's curriculum and claim that nearly any material is contrary to their religious beliefs. Jews could object to Charlotte's Web because pigs aren't kosher. Muslims might insist that atlases with maps of the Philippines be removed. After all, that nation is home to Allah Valley—blasphemy! Christians could demand a ban on Long Train Runnin': Our Story of The Doobie Brothers, since Jesus is just alright with them. Allowing students to "opt out" without any standards or criteria for doing so would paralyze public schools. And in this case, it would amount to a ban on these books, as the only viable solution for these schools would be to simply remove them from the shelves.
The plaintiffs' failure to meet their burden of proof is particularly important here given the posture of the case, which is an appeal from the denial of a request for a preliminary injunction, and what the court of appeals called the "scant" record before it. In other words, at this early stage in the litigation, there is no evidence in the record that any child was forced to read any of these books. It's also unclear whether any of these books were EVER read aloud during class. The alleged injury is so tenuous, in fact, that the school district has filed a motion to dismiss on standing grounds.
The fact that this case is coming to SCOTUS in this posture is especially ironic given how amenable the Roberts Court is to the Trump administration's claims of a federal judiciary run amok with nationwide injunctions. Their willingness to overlook the constraints around injunctions, which the Fourth Circuit was careful to note, isn't going to dispel the public's belief that this Court reaches the result it wants and finds a way to justify it later. What remains to be seen is how gaping the hole will be in free-exercise jurisprudence so the Court can give these parents the outcome they want.
Moving on, yesterday it was another day, another illegal deportation and another court order to bring the deportee back. Well, OK, thanks to the Supremes, it's an order for the government to "facilitate" his return. Judge Stephanie A. Gallagher of the Federal District Court in Maryland found ICE to be in breach of contract when it deported a man referred to in court papers as "Cristian."
He was part of a group who came to the U.S. as unaccompanied minors in December 2022. This class of people reached a settlement with the government in 2024 that they would not be deported or detained while their asylum cases played out in court. Cristian was one of these people and ICE picked him up and sent him to CECOT anyway.
Gallagher held that, like Abrego Garcia, the government must get him back... er, "facilitate" his return, which means not just asking El Salvador nicely if the U.S. can have him back but making active efforts to secure his return. Gallagher noted that simply "standing by and taking no action is not facilitation." The judge also pointed out that courts have required the government to return migrants who were unlawfully removed in other cases. There was no issue of interfering with diplomatic relations.
Under normal circumstances, when a person is removed from the U.S., they are simply released in their country of origin. But if Trump is outsourcing their detention to a foreign country, they are arguably more within the government's control than if they had just been released into that country. So, it's ironic that Trump claims their detention somehow makes them LESS able to be returned. We'll see if the White House does anything to comply with this order.
We'll have more on the legal front next week. After all, the Trump legal beat is a near-endless source of (depressing) material. (L & Z)