There are two big winners in the Supreme Court’s most recent term.
One is social and religious conservatives. In the last two days of its term, the Court imposed heavy new burdens on public schools at the request of religious conservatives, and it rendered much of federal Medicaid law unenforceable in a case lashing out at Planned Parenthood. It heard its first major pornography case in over two decades, upholding a Texas law that seeks to limit youth access to porn. And the Republican justices handed a historic defeat to transgender Americans, permitting states to block at least some trans people from receiving gender-affirming medical care.
Four justices also voted that the Constitution requires most states to fund religious public charter schools. And Justice Amy Coney Barrett, who was recused from this case, is likely to provide the fifth vote for religious public schools in the future.
Indeed, as I’ll explain in more detail below, the Court’s Republican majority is willing to tear down major American institutions in order to advance the cultural right’s political goals.
Another winner is President Donald Trump. One year after the Republican justices ruled that Trump is allowed to use the powers of the presidency to commit crimes, these same justices continue to treat him as the special favorite of the laws.
The Court’s most high-profile Trump-related decision, Trump v. CASA, placed vague new restrictions on lower courts’ power to block Trump administration policies. This decision is defensible — the Biden administration sought a similar ruling while it was in power — but it is notable that the justices waited until a Republican was president before weakening lower courts’ power to rein in the executive.
Even before the CASA decision, however, the Court frequently blocked lower courts that ruled against the Trump administration. When lower courts block Trump’s policies, the Republican justices routinely reinstate those policies on the Supreme Court’s “shadow docket,” a mix of emergency motions and other matters that the justices consider on an expedited basis.
There was also one unexpected loser this term: the business and fiscal conservatives that have historically dominated the Republican Party. In the same week that the Court handed down most of its biggest decisions, it also rejected an attack on Obamacare. And it waved away a request to put drastic new limits on federal agencies’ power to regulate business.
So, while the Court now hands out victories to the cultural right as if it were passing out candy on Halloween, several of the GOP justices did show more moderation on the kinds of issues that preoccupied Republicans as recently as a decade ago. It was a lot to keep track of, especially given Trump’s ability to dominate the news, so here’s a quick rundown of how the Court reshaped the law during its recent term.
The Court gravely wounded key American institutions to benefit social conservatives
At least two cases this term did serious harm to institutions that millions of Americans depend upon, both in decisions that benefited cultural conservatives.
In Mahmoud v. Taylor, the Court’s Republican majority ruled that public schools must inform parents before their children are taught a lesson that those parents might object to on religious grounds, and that those parents must be given an opportunity to opt their child out of that lesson.
Mahmoud arose out of a dispute over queer-themed books — Montgomery County, Maryland, approved several books with LGBTQ characters that could be used in classroom instruction. But the First Amendment prohibits discrimination among people with different religious beliefs. So, if parents with anti-LGBTQ religious views have a right to notification and an opt-out, so too does every parent who might object to any lesson on any religious ground.
This rule, as Justice Sonia Sotomayor warns in a dissenting opinion, is likely to cause “chaos for this Nation’s public schools.” Requiring every public school teacher to anticipate which lessons might implicate a parent’s religious beliefs “will impose impossible administrative burdens on schools,” especially in a nation as diverse as the United States.
In the past, courts have rejected similar lawsuits brought by parents who object to books or lessons that feature magic, women who have achievements outside the home, and include topics as diverse as divorce, interfaith couples, “immodest dress,” and “false views of death.” After Mahmoud, however, all of these parents now have a right to advance notice.
Schools that fail to predict that a lesson about a Jewish woman with a career, a Hindu husband, or an immodest wardrobe will offend a parent’s religious belief will now face very serious financial consequences. Federal law often lets the “prevailing party” in a suit about constitutional rights collect attorney’s fees from the losing party. So lawyers can hunt for parents with idiosyncratic religious views, file a lawsuit against a school, and demand payment to avoid litigation that will be even more expensive for the school district.
The Supreme Court used to treat public schools with more respect, out of concern that the Constitution should not be read to prevent such an important institution from functioning.
Like the right to free exercise of religion, the right to free speech is also protected by the First Amendment. That is why the Court held in Tinker v. Des Moines (1969) that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
But Tinker recognized that free speech should not be used as a weapon that can shut down classroom instruction altogether — if any student could get up in the middle of class and start yelling, for example, their right to free speech would destroy every one of their classmates’ right to an education.
And so Tinker also held that public school students may not engage in speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Court struck an appropriate balance between protecting free expression by young people and making sure that public schools continue to produce an educated workforce that ultimately benefits every single American.
That decision stands in stark contrast to Mahmoud, which establishes that the rights of religious objectors must be advanced at all costs, even if it would mean imposing such enormous burdens on public schools that every child receives an inferior education.
A similar dynamic was in play in Medina, which pitted the GOP’s disdain for abortion providers against a federal law permitting Medicaid patients to choose their own doctors. Just as in Mahmoud, the Republican justices handed a sweeping victory to social conservatives, seemingly without any regard for how their decision would damage Medicaid.
Federal Medicaid statutes are riddled with provisions establishing who must be covered by Medicaid, how that coverage should be provided, and what minimum standards of care Medicaid patients are entitled to receive. South Carolina illegally forbade Medicaid patients from choosing Planned Parenthood as their health care provider. Rather than ordering South Carolina to comply with the law, in Medina the Republican justices effectively repealed the choice-of-provider provision.
The question of which Medicaid laws can be enforced through federal lawsuits, and which provisions are essentially worthless, is one of the most important questions in American poverty and elder law and has been litigated for decades. But two years ago, in Talevski, the Supreme Court finally settled on a clear rule that judges could apply to identify which provisions are enforceable.
If you want to know more about these many decades of litigation, I explain many of those details here. But the most important thing to know about Talevski is that it established that Medicaid laws that are “phrased in terms of the persons benefitted” and that “focus on the benefitted class” are enforceable. So, if a specific provision of Medicaid law mentions Medicaid patients, or otherwise names the individuals who are supposed to benefit from that law, it is enforceable.
The choice-of-provider provision at issue in Medina refers to “any individual eligible for medical assistance.” So it was enforceable under Talevski. Medina should have been an open-and-shut case.
Yet, instead of following Talevski, the Republican justices produced an incoherent opinion that does not even announce a new legal rule, beyond a vague statement that Medicaid laws are “especially unlikely” to be enforceable. Much of Justice Neil Gorsuch’s opinion in Medina fixates on seemingly random facts about the choice-of-provider provision, such as the fact that it “appears in a subsection titled ‘Contents,’” as if that’s somehow relevant to the question of whether this provision is a meaningless husk.
It is impossible to come up with a principled explanation for why, two years after Talevski, the Republican justices decided to abandon that decision and replace it with a new legal standard that renders much of federal law completely useless. But it’s certainly possible to come up with a political explanation. Unlike Medina, Talevski did not involve an abortion provider. Several of the Court’s Republicans appear to have flipped their votes between Talevski and Medina in order to lash out at Planned Parenthood.
The worst thing about the Medina decision is that the Republican justices could have come up with some good-for-this-ride-only legal reasoning that denied Medicaid funding to Planned Parenthood, but that otherwise left Talevski intact. Instead, they appear to have overruled Talevski and replaced it with a vague new rule that does little more than tell lower court judges that Medicaid plaintiffs should nearly always lose.
It seems that, in order to spite Planned Parenthood, the Supreme Court stripped tens of millions of Americans of countless rights protected by federal law.
Donald Trump’s fixers
Many of the Court’s most consequential decisions were handed down on its shadow docket, a process that allows a party that lost in a lower court to seek an immediate Supreme Court order blocking that decision.
This term, the Republican justices used the shadow docket to temporarily nullify the Convention Against Torture, a treaty that is supposed to prevent the United States from deporting noncitizens to countries where they may be tortured. The Court also used its shadow docket to effectively repeal federal laws protecting the leaders of several federal agencies from being fired by Trump, and to prevent lower courts from interfering with the chaotic work of Elon Musk’s former office, the Department of Government Efficiency (DOGE). (In an unusual liberal victory on the shadow docket, the justices also ruled that Trump must give certain immigrants due process before he ships them off to a notorious Salvadorian prison.)
Traditionally, the Supreme Court takes months or even longer before it decides a case. With rare exceptions, a case must be heard by a trial court and at least one appeals court before the justices will even consider taking it up. And getting the justices to hear a case is a bit like winning the lottery.
Lawyers hoping the Court will review their case file over 8,000 petitions seeking such review in any given year, but the justices only grant about 60–70 of these petitions. Then, once a case is granted, that’s only the beginning of a months-long process where lawyers submit briefs, the justices review them and hold oral arguments, and then they spend months working on the final decision. Contentious suits can wait an entire year for a decision, even after the justices announce that they will hear the case.
The reason for this slow, highly selective process is that the Supreme Court has the final word on questions of US law. So if it gets a case wrong, that mistake can linger uncorrected for decades. The Court’s plodding deliberation is supposed to minimize the risk of that happening.
Beginning in Trump’s first term, however, the Court started relying heavily on a separate, much less cautious process to decide cases involving Trump and his government.
Historically, the Court’s shadow docket was used primarily for death penalty appeals, where the petitioner seeking Supreme Court review would be killed if the justices did not act very swiftly. Litigants in non-death penalty cases could seek expedited review on the shadow docket, but it was so discouraged, and shadow docket petitions were so rarely granted, that smart lawyers typically decided not to annoy the justices with them. During the George W. Bush and Obama administrations, the Justice Department sought shadow docket review about once every other year.
Now, however, whenever the Trump administration claims that it must have a Supreme Court order blocking a lower court’s decision, the Court treats that claim as an emergency that must be tended to immediately.
In Nken v. Holder (2009), the Supreme Court held that a party seeking shadow docket relief must do more than simply show they are likely to prevail if the Court hears their case on the merits. Among other things, they must also show that they “will be irreparably injured” if the justices do not immediately block the lower court’s decision.
But, as Justice Ketanji Brown Jackson pointed out in a pair of opinions dissenting from two shadow docket orders, the Republican justices seem to have decided that the Trump administration is exempt from Nken, as they often grant shadow docket relief to Trump even when he cannot show irreparable injury. In Social Security Administration v. AFSCME, a case about whether DOGE may access highly sensitive Social Security data, Trump’s lawyers didn’t even make an argument that his administration would experience irreparable harm without Supreme Court intervention. Yet the Republican justices intervened anyway.
As law professor Steven Vladeck has pointed out, the Court granted, at least in part, “each of the last 14 [shadow docket] applications filed by the Department of Justice.”
The federal government’s exemption from Nken, moreover, only appears to be in effect when a Republican occupies the White House. In one dissenting opinion, Jackson pointed to several Biden-era cases where the Justice Department sought shadow docket relief from lower court orders. In some of those cases, the Court left the lower court’s injunction in place for as much as a year, before finally concluding that the injunction was illegal after the case went through the much slower, traditional appeals process.
The Republican justices, in other words, are manipulating the Court’s calendar to benefit Trump. When ordinary litigants — or a Democratic administration — seek shadow docket relief, the justices often apply the traditional rules and norms that prevent them from granting those requests. But when Trump asks the Supreme Court to do him a favor, the Republican justices swiftly oblige.
The Republican justices did abandon some fights pushed by business and fiscal conservatives
While the cultural right was one of the biggest winners in the Court’s recent term, the Republican Party’s traditional business constituency fared less well. On the final decision day of the term, the Court handed down a ruling upholding provisions of Obamacare that require health insurers to cover certain treatments, as well as a decision rejecting an aggressive attempt to limit federal agencies’ power to regulate business. Earlier in the term, a unanimous Court also rejected a suit challenging the FDA’s decision to pull many nicotine vaping devices off the market.
The Court’s Obamacare decision, known as Kennedy v. Braidwood Management, aligns with broader trends within the Republican Party. During Trump’s first term, the GOP famously tried and failed to repeal the Affordable Care Act in its entirety. Eight years later, the party has a more modest health care agenda, at least when compared to their ideas from 2017. Congressional Republicans are likely to enact deep cuts to Medicaid, but they are not pushing for full repeal of Obamacare.
Decisions like Braidwood and Medina, in other words, closely track the Republican Party’s agenda in Congress. Like their counterparts in Congress, the Republican justices voted to drastically cut back on Medicaid in Medina. But many of them voted to uphold key provisions of Obamacare in Braidwood.
One common element in the Braidwood, the agency power case (FCC v. Consumer’s Research), and in the vaping case, (FDA v. Wages & White Lion Investments), is that they all arose out of the US Court of Appeals for the Fifth Circuit, a court dominated by MAGA-aligned judges who routinely hand down decisions that are too extreme even for this Supreme Court.
In recent years, the Fifth Circuit has done everything from declaring entire federal agencies unconstitutional to attempting to pull a popular abortion drug from the market. It once ruled that Texas Republicans may seize control over content moderation at all of the major social media platforms. Many of the Fifth Circuit’s judges have taken positions that, if they were embraced by the Supreme Court, risk triggering a second Great Depression.
The Supreme Court frequently balks at the Fifth Circuit’s decisions, but it does not do so all of the time. Just last week, for example, in Free Speech Coalition v. Paxton, the Court upheld a Texas law requiring pornographic websites to verify that their users are over age 18, despite a 21-year-old Supreme Court decision that struck down a nearly identical law. The Court took up the Free Speech Coalition case after the Fifth Circuit decided it wasn’t bound by that two-decade-old decision.
The best lesson to draw from cases like Braidwood, White Lion, and Consumer’s Research, in other words, is that no matter how partisan or ideological the Supreme Court may be, there will likely be other voices within the judiciary pushing the justices to go harder. These voices will even sometimes succeed, as they did in the Free Speech Coalition case.
If Trump gets to replace any members of the current Court, moreover, he could potentially replace relatively moderate justices with the kinds of judges who dominate the Fifth Circuit. No matter how bad the Supreme Court gets, it can always get worse.
