Dem
51
Ties
4
GOP
45
New Supreme Court terms begin in early October, and the latest term got going yesterday. The justices heard arguments in their first case of the season, and the case is a doozy. It is called Suncor Energy Inc. v. County Commissioners of Boulder County. Since the current federal administration has no interest in global warming or the planet burning up, the states are stepping up to fill the void. A number of them have sued the oil companies, claiming they have damaged the state's climates in various ways and (often illegally) hidden risks they knew about and should have disclosed.
That said, yesterday's arguments weren't about climate change at all, even though that is at the heart of the case. The arguments were about whether federal law preempts the state laws. In other words, the oil company lawyers argued that only the federal government can sue them for letting the planet go to hell and the states have no dog in that fight. In effect, they claim that both the Clean Air Act and the Constitution prohibit a state from determining liability for a national issue. After all, destroying the planet is a result of interstate commerce and only the federal government can regulate interstate commerce. Right? Right?
In the event that Boulder prevails, then this case (and others like it) will be fought under state laws and some of them may eventually come back to the Supreme Court on the merits. One wrinkle here is that Justice Samuel Alito has recused himself from this case due to his large holdings in oil company stock. Since the Colorado Supreme Court held that the lawsuit could go forward in state court, a 4-4 tie would mean that the Colorado court's decision stands.
At oral argument, the Court seemed divided on the preemption issue. It seems clear that they were not interested in any broad constitutional ruling that would prohibit bringing these types of cases under any circumstances. But at least three of the justices, Associates Justices Brett Kavanaugh, Amy Coney Barrett and Clarence Thomas, seemed prepared to find that the Clean Air Act (CAA) preempts these types of lawsuits brought under state law. They would have to turn preemption law on its head to reach that conclusion, since the CAA has no explicit preemption language, but those pesky details haven't stopped Kavanaugh and Thomas in the past as they seek to get the outcome they want.
On the other hand, Chief Justice John Roberts seemed very skeptical of the oil companies' position that these types of suits are novel. He wondered how it was different from suits that states have successfully brought against the tobacco and opioid industries in the past. At the same time, he and several other Justices were also concerned about opening the floodgates to nuisance suits for the impacts of climate change. The Boulder attorney pointed out that a fear of litigation is not a legal basis for closing the courthouse doors. Plus, even if the Court allows the suit to go forward, it doesn't mean Boulder will win. They have a lot of hurdles to overcome and any number of legal issues can trip the Coloradans up along the way.
Interestingly, the Trump administration intervened on behalf of the oil companies (taking the opposite position of the Biden administration), but it wasn't Solicitor General John Sauer doing the arguing. Instead, it was principal deputy U.S. solicitor general Sarah Harris who argued before the Court. She was capable, but she clearly does not keep the Court in the same thrall as Sauer. The Court could take that as a signal that the government is not as invested in the outcome or that Sauer isn't all that convinced by the plaintiffs' arguments. A decision is expected by June 2027.
There are, of course, many other hot-button cases coming down the pike. Here's a brief preview of some of the biggies:
Rhoney v. Barbosa da Cunha: This could be the blockbuster of the current term. In the past, when people came to the U.S. and filed court paperwork to remain, they were allowed to post bond and retain their freedom of movement while the court case played out. The Trump administration (i.e. Stephen Miller) wants to be able to detain them while the case plays out, no matter how long the detention nor how inhumane the conditions. After all, after 800 years (since the adoption of the Magna Carta), due process is so... old-fashioned. Passé. Outdated. Quaint. The administration's general idea is to discourage many people from even trying to come to the U.S., and to encourage some of those who have tried it to throw in the towel and self-deport voluntarily. The Court will decide if the Trump administration policy is legal.
St. Mary Catholic Parish v. Roy: Colorado is the belle of the ball this term, it would seem. In addition to the case heard yesterday, that state is also at the center of a case about discrimination. Colorado, being very blue, provides funding for pre-schools across the state, whether they are public or private. However, the funding from two Catholic-run pre-schools was yanked, because those schools do not allow LGBTQ students or parents. So, the Supreme Court will get to decide: Who is allowed to discriminate here? The state, which has a law that prohibits anti-LGBTQ discrimination? Or the Church, which has religious doctrine that prohibits being LGBTQ?
Grand v. City of University Heights: Another freedom of religion case. Daniel Grand is an Orthodox Jew who invited 15 friends to his house to pray, thus creating a minyan (minimum 10 Jews needed). The city sent him a letter that said that when you get that many Jews praying in the same place, you now have a synagogue, and you have to get a permit. Grand sued, a wild collection of people and organizations filed amicus briefs on both sides, and now the Supremes will get to decide who is right.
International Partners for Ethical Care v. Ferguson: Another LGBTQ case, sort of. Actually, it's really just a T case. Under Washington law, if a runaway child presents themselves at a shelter, the child's parents are usually notified. But not always; if the child is receiving physical or mental care for gender dysphoria, then they are referred to the Department of Children, Youth and Families. This is one of several exceptions to the general rule, exceptions intended to protect kids for whom going back home might be unsafe. Several parents (10 of them) challenged the "treatment for gender dysphoria" exception in court, and now SCOTUS will make the call.
Viramontes v. Cook County: Illinois and Connecticut are the defendants here (their cases were consolidated), and they will argue that they are allowed to enact assault-weapons bans, even under current Second Amendment precedent. There are 10 other states, all of them blue, who will be watching with interest, since they too have assault-weapons bans.
Jouppi v. Alaska: Ken Jouppi is an Alaska-based pilot who does charter flights on his small private plane. He flew a passenger into Beaver, AK. The passenger had a six-pack of beer, and Beaver is a dry town. Although the beer was not his, Jouppi was charged with violating state liquor laws, and his plane—valued at close to $100,000—was seized and forfeited as punishment. The almost unlimited ability of law enforcement to seize the cash and property of citizens who have violated the law is a real problem, and now SCOTUS will weigh in on the matter.
Republican National Committee v. Mi Familia Vota: You probably don't need us to tell you what a case that has "Republican" and "Vota" in its name is about, but just in case, the state of Arizona and the Republican Party want voters to be required to provide proof of citizenship when they register. Further, the Arizonans and the Republicans want to be able to kick people who are already registered, but do not provide such proof in a timely manner, off the voter rolls.
Note that there is still space on the docket for the Court to accept more cases, so it's possible there will be some hot potatoes that aren't on the list. And that's before we consider the Court's extremely liberal use of the shadow docket, usually for conservative purposes. (L, V & Z)