“Supreme Court Roundup” Not Professors’ First Rodeo

MONDAY, SEPTEMBER FIRST – Professors Xiao Wang and Daniel Ortiz presented highlights from the 2024 October Supreme Court term at an event organized by the Federalist Society. Professor Wang leads the Law School's Supreme Court Litigation Clinic, which Professor Ortiz formerly directed from 2003-2023. Professor Wang covered three religious liberty cases and the three cases that his clinic, the Supreme Court Litigation Clinic, brought before the Court (and won) this past year. Professor Ortiz gave overviews of Trump v. CASA, Free Speech Coalition v. Paxton, and emergency appeals heard on the Court’s non-merits docket (popularly referred to as the shadow docket). “I’ll go from . . . maybe least controversial to maybe most controversial,” started Professor Wang, speaking on the religious liberty cases. He  began with Catholic Charities v. Wisconsin, where the Court overruled the Wisconsin Supreme Court 9–0, deciding that despite the fact that the charity “was not actively proselytizing the Catholic faith,” they should still be tax-exempt. The ruling was based on two arguments: a  a “Church Autonomy” argument (“‘we’re a church, we get to decide what’s religious and what’s not’”) and a “nondiscriminational” argument (“we don’t proselytize Catholicism when we give out food and shelter, but if a Muslim or Jewish charity does the same thing and they get the exemption, then that’s discrimination”). Professor Wang called the church autonomy argument “dangerous” if taken to its end, and the nondiscriminational argument “more palatable.”

Professor Wang moved on to Mood v. Taylor, where the Court decided 6–3 along partisan lines that parents in the Prince George’s County, Maryland school district could opt their children out of LGBT-related curricula. The professor  noted that there was “a lot of uncertainty about whether the Court made the right decision,” and that the decision itself was vague and fact-bound. He suspects that these issues will come up again. Professor Wang commented that the school district was certainly not helped by the fact that prior to curricular changes parents could opt their children out of classes with LGBT content.

Finally—and apparently most controversial—was Drummond v. Oklahoma, a case in which the Court split 4–4 right down the middle, with Justice Barrett recusing herself. The Court did not conclude if Oklahoma did or did not need to help subsidize or pay for a religious charter school. “This case is a little like the frog that boils in the pot,” said Professor Wang. “Each time religious school plaintiffs bring these cases, they push the law a little further.” This time, they met a barrier. But Professor Wang is “sure that this issue will come up again.”

Meanwhile, the clinic won all three of its cases: an ERISA case (Cunningham v. Cornell), a Prison Litigation Reform Act case (Pertu v. Richards), and an employment discrimination case (Ames v. Ohio). Two weeks after the clinic’s victory in Cunningham, UVA lowered its own insurance fees, even though Cornell’s attorneys said a verdict in favor of the plaintiffs would do the opposite. The boon was “only 100 or 200 bucks a year, but it’s much more meaningful for many people . . . over the years, that’s a lot of money,” said Professor Wang. It was “[a] really good year for UVA, [and] a mixed bag for religion. More religion cases will come in future years. And hopefully—for my job security and more—clinic cases will continue to come for UVA.”

Professor Ortiz then began a summary of Trump v. CASA, “the birthright citizenship case that’s not about birthright citizenship” but the ability of courts to issue universal injections. The case was decided 6–3 along partisan lines. In Justice Sotomayor’s dissent, joined by Justices Kagan and Jackson, she emphasized that this ruling removed the government’s incentive to seek review of adverse determinations. Justice Kavanaugh said the case was about the “interim before the interim” (that time before the Court could settle a given matter). However, Justice Kavanaugh ought to be careful what he wishes for, according to Professor Ortiz: “Does he really want the Court to be deciding more of these cases on quick timelines . . . when there’s not much of a record, it doesn’t have much time to think about things, and it’s liable—[as] some people have said—to not decide things very well.”

But Kavanaugh’s “interim” language was recently repeated when he spoke at the Sixth Circuit’s conference in Memphis on Thursday, while attempting to rebrand the “shadow docket” as the “interim docket.” The shadow docket is the judicial equivalent of firing from the hip, and even its very name is hotly contested. Professor Ortiz referenced David Lat’s Original Jurisdiction Substack, where Lat took rankings of people’s favorite names and presented the most popular results among each political group. “Shadow docket” wins the contest with 65 percent Democratic support, while 44.4 and 43.2 percent of Republicans seem to endorse “emergency docket” and “non-merits docket,” respectively. A version of Justice Kavanaugh’s baby, the “interim-relief docket” received a paltry 9.6 percent. The “short-order,” “equity,” and “half-enchilada” dockets were also floated.

Professor Ortiz explained that the docket's shadowy nature (with its lack of extensive briefing, opinions, oral arguments, and amicus briefs, and its one-sentence rulings) is becoming increasingly concerning to more and more people, especially as the shadow docket begins being used as precedent. Though the shadow docket is a longstanding, necessary tool (“you’ll always have something like it,” said Professor Ortiz), its increasing prominence in deciding controversial cases, and the lack of guidance it provides to lower courts, is worrying and raises questions. Is the judiciary really capable of handling emergencies, especially emergencies that originate so often and with such regularity? And does the Court have any right to complain that lower courts don’t follow its signals when it communicates so haphazardly?

The presentation finished with Free Speech Coalition v. Paxton, in which the Court considered whether “states can require age verification to access adult material online[.]” As Professor Ortiz put it, “it’s the porn case.” The case was again decided 6–3 along partisan lines and it “may be a huge move, not just in porn law, but more generally.” The Court ruled that intermediate scrutiny, not strict scrutiny, applied in regulating porn-as-speech online. This may signal that the Supreme Court will move a lot of things that were subject to strict scrutiny into intermediate scrutiny review, which would mean the government would have a lot more power to regulate speech. “Or it may be nothing. We just don’t know.”

Professor Ortiz said that a main consideration of the Court in Paxton was the progression of technology. It is no longer the ’90s, when the internet was dial-up, and when Reno v. ACLU was decided, applying strict scrutiny to hold that the Communications Decency Act was unconstitutional. Nowadays, the internet is high-speed; everyone has a smartphone; and video streaming is widespread. These are all factors which make the widespread proliferation of porn that much more problematic. In the dissent, Justice Kagan, joined by Justices Sotomayor and Jackson, maintained that strict scrutiny should be applied, and although Texas’s reasoning for the age verification law was compelling, it was an open question whether their method was the least burdensome way to accomplish their goals.

The other trend that Paxton portends is the overturning of once-thought-settled technology cases. Professor Ortiz predicts that many things in the “tech area” are going to be “up for grabs again.” How the technology landscape has shifted since the turn of the 21st century and the dot-com bubble burst, and by what lodestone of values to judge its drift by, is not yet agreed upon. It is but one of the many murky areas yet to be explored as the Court heads into its 2025 October term.