Supreme Court formally opens a new term on Monday, with big test cases on religion, bans on semi-automatic weapons, climate change, immigration and — waiting in the wings — election law cases. It used to be that the first Monday in October marked the beginning of a new Supreme Court term. And that's still true, technically.
But for all practical purposes, the formerly quiet summer months after the court finishes its opinions in all argued cases no longer exists. Indeed, as Georgetown University law professor Stephen Vladeck observes, the number of emergency appeals has ballooned during the Trump administration, while at the same time, fully briefed and argued cases have dropped precipitously over the years. "So now we have twice as many full court rulings on emergency applications as we have on the merits docket," Vladeck observes, adding, "That is a very new phenomenon." The difference is that decisions on the emergency docket are rendered quickly, with little briefing, no oral arguments, and ultimately little or no explanation of the ruling.
In contrast, a decision on the merits is typically worked on for months after full briefing and lengthy oral arguments. Of late, the court seems to be making an effort to offer some limited explanations of its emergency docket rulings, but lower court judges, both liberal and conservative, complain that isn't enough to provide them with adequate guidance. And the Trump administration often takes what used to be the rare step of getting to the Supreme Court by leapfrogging over lower appellate courts that the administration views as hostile.
With that backdrop, here are the cases the court will be hearing in the coming weeks: The opening case, to be argued Monday, tests whether state and local governments can sue energy companies for allegedly deceiving the public about the damaging effects of fossil fuels. "The theory is that the energy company defendants deceived the public for many years," says Deepak Gupta, who teaches at Harvard Law School and practices law in Washington, D.C. What the companies were telling the public for years, he says, is "the opposite of what the company's own scientists knew, and the local cost of that deception." That said, however, most court observers see the case as an uphill battle for environmentalists.
Perhaps the biggest case of the term so far, in terms of ripple effects, involves religion, a subject on which the court's conservative super majority has dramatically changed its legal doctrine. Indeed for the better part of a century, the Supreme Court emphasized the First Amendment's separation of church and state, with the free exercise of religion playing an important — but secondary — role. Since President Trump's appointment of three new justices, however, things have changed.
"It's literally the opposite of what the law was not that long ago, and it's just a complete shift," observes Michigan State University law professor Frank Ravitch. The court may, in fact, be on the verge of requiring taxpayers to fund religious schools that refuse to admit LGBTQ students and parents. Last term the justices deadlocked on the issue in a separate case after Justice Amy Coney Barrett recused herself because of a conflict.
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