February 12, 2020

Supreme Court Update


  • Major decisions from the Supreme Court’s 2019-20 term will likely start coming soon.
  • The court will decide cases involving important Second Amendment, immigration, religious freedom, regulation, criminal law, and social issues.
  • The legality of DACA rescission and the constitutional challenge to the Consumer Financial Protection Bureau will likely provoke public discussion regardless of the outcome.

The 2019-20 Supreme Court term is shaping up to be noteworthy, and its decisions could grab more than their ordinary share of public attention. In December 2019, the court heard its first major Second Amendment case in nearly a decade. It is reviewing the Trump administration’s decision to rescind the Deferred Action for Childhood Arrivals program. The court will decide the constitutionality of the Consumer Financial Protection Bureau and similar agencies with single heads removable only for cause. The court will even decide whether it is constitutional for a state to ban the insanity defense in criminal cases.

Policy Areas with Upcoming Major Supreme Court Decisions


The most contentious Supreme Court decisions – the ones with close vote margins – tend to come later in the term. The current term started last October and ends in June, and virtually none of the hot-button decisions have been published yet.

first major SECOND AMENDMENT case since 2010

The case New York State Rifle & Pistol Association Inc. v. City of New York presents the first potential Supreme Court enforcement of the individual right to own firearms in a decade. In the landmark 2008 case District of Columbia v. Heller, the court affirmed that the Second Amendment protects an individual’s right to own firearms. The court applied that right, in 2010, to state and local governments in McDonald v. Chicago. This term’s case is an opportunity for the Supreme Court to detail what the individual right to bear arms does and does not include.

New York City’s police commissioner had adopted a rule prohibiting people with handgun licenses from transporting those guns outside New York City, even to a shooting range or competition. The city abandoned the rule after the litigation began, which was widely viewed as an attempt to evade the Supreme Court’s review by rendering it moot. Oral arguments for the case in early December did not reveal whether the justices would dismiss the case for mootness.

Recent History of Supreme Court 2nd Amendment Cases


DACA and Immigration

In Department of Homeland Security v. Regents of the University of California, the Supreme Court is set to rule on whether the Deferred Action for Childhood Arrivals program is reviewable under the Administrative Procedure Act and whether the DACA rescission violated the act. The Supreme Court held oral arguments for this case in November.

In 2017, the Trump administration announced it would rescind President Obama’s DACA program. In January 2018, in response to federal court orders, DHS said it would accept DACA renewal applications.

The U.S. Court of Appeals for the 9th Circuit ruled that the Trump administration’s 2017 policy to rescind DACA violated the APA’s prohibition on arbitrary and capricious rulemaking by federal agencies. That court found that DHS’s only explanation for the rescission was the administration’s concern that DACA was illegal based on earlier litigation concerning the related Deferred Action for the Parents of Americans program. Once the 9th Circuit decided DACA was legal, it ruled that DHS no longer had a reasonable explanation for rescinding the program. The government argued that programs like DACA are, by their own terms, questions of agency discretion, so the APA should not apply.

Criminal Law

Arguably the most important criminal case on the docket this term, Kahler v. Kansas, will decide whether it is constitutional for a state to effectively abolish the insanity defense. Kraig Kahler committed multiple murders in 2009 after years of mental trouble and refusing to take his medications. At trial, he could not raise the insanity defense because Kansas state law prohibits it as an independent defense.

Under the traditional insanity defense, defendants whose mental state renders them unable to know the difference between right and wrong can argue they did not have the “knowledge of guilt” ordinarily required to convict. In Kansas, juries are not permitted to consider the traditional insanity defense but generally can consider whether the defendant intended to commit the crime.

Religious freedom and social issues

Does a state rule violate the Constitution’s religion or equal protection clauses if it prohibits using a generally applicable tax-credit scholarship at a religious school? The case Espinoza v. Montana Department of Revenue will answer this question. Montana’s Department of Revenue, citing a state constitution provision prohibiting “direct or indirect” public funding of religious educational programs, issued a rule prohibiting use of a tax-credit scholarship for religious institutions. Justices Alito and Kavanaugh commented at oral argument that state constitutional amendments prohibiting aid to religious institutions arise from 19th century anti-Catholic sentiments.

The court will decide another key religious freedom issue in the case Our Lady of Guadalupe School v. Morrissey-Berru. The First Amendment has been interpreted to contain a “ministerial exemption,” which generally bars civil courts from interfering in the internal leadership of religious institutions. This includes adjudicating employment-discrimination claims against a religious employer when the employee is engaged in religious or ministerial employment. Allowing employment discrimination claims in these types of cases would amount to choosing who can be a minister, according to a previous unanimous Supreme Court decision. In this case, the employee claiming discrimination was a teacher at a Catholic school who, while not a minister, did administer prayers and teach a faith-based curriculum. 

The court also is expected to decide a Louisiana case involving licensure for physicians who perform abortions: June Medical Services LLC v. Gee. The plaintiffs challenged a Louisiana state law requiring physicians who perform abortions to have admitting privileges at a hospital no farther than 30 miles from the location where the abortion is performed. The plaintiffs allege that the Supreme Court decided in a “nearly identical” Texas case that the requirement created an “undue burden” on a woman’s right to have an abortion, but the 5th Circuit has disagreed and upheld the Louisiana law. The court also agreed to consider Louisiana’s cross-petition, which challenged the standing of abortion providers to bring suit against health and safety regulations on behalf of women the regulations seek to protect.

Regulation and the administrative state

The Supreme Court is set to resolve a key question under the Clean Water Act this term in the case County of Maui, Hawaii v. Hawaii Wildlife Fund. Under the CWA, the U.S. Environmental Protection Agency issues permits for discharge of pollutants into “waters of the United States,” which are defined as navigable waters but not groundwater. Maui County treats wastewater, then injects it into control wells containing groundwater. Eventually, more than 90% of the effluent-groundwater mix enters the ocean, which is a navigable water under the CWA. The court will decide whether this indirect conveyance of pollutants to navigable waters requires a federal permit from the EPA.

A major separation of powers case this term will evaluate the constitutionality of the Consumer Financial Protection Bureau and several other independent federal agencies with single heads who can be removed by the president only for cause. Under the unitary executive theory, an independent agency possessing substantial executive power unconstitutionally takes power from the president if the single director head cannot be removed at will by the president. The case Seila Law LLC v. Consumer Financial Protection Bureau will decide that question, as well as the severability of the for-cause removal provision. If the provision is not severable, the portion of the act creating the agency could be ruled unconstitutional. 

Separation of powers and faithless electors

The Supreme Court will hear two cases involving the power to investigate the president. One will cover whether the Constitution prohibits congressional committees from issuing subpoenas to private firms requiring them to provide non-privileged financial records relating to President Trump before his presidency. The other case will decide whether a county prosecutor may constitutionally subpoena an accounting firm possessing the president’s financial records from before his presidency.

The constitutionality of punishing “faithless electors” – people selected to be voters in the Electoral College who decide to vote contrary to their state’s electoral results – will be decided in Chiafalo v. Washington. In the 2016 presidential election, there were 10 faithless electors, eight of whom had been pledged to vote for the Hillary Clinton/Tim Kaine ticket.

Issue Tag: Judiciary