The Supreme Court will most likely be revisiting issues of nationwide injunctions and transgender status in its next term.
The Federalist Society, a law and public policy nonprofit, hosted an expert panel on Thursday to discuss the Supreme Court’s recent term and predictions for future terms.
In the past term, the high court issued 56 majority decisions and 11 of those decisions were decided 6-3, along partisan lines.
The experts said the emergency docket applications were particularly staggering in the past term. The Trump administration filed 20 emergency petitions to the court since January, compared to 19 applications in the Biden administration and 41 applications across all four years of Trump’s first term.
One case of significance from the emergency docket was the court’s ruling against nationwide injunctions, based on a challenge to the Trump administration’s birthright citizenship executive order.
The court left open the possibility to challenge unlawful executive actions through class action lawsuits.
Kannon Shanmugam, partner at the law firm Paul, Weiss, Rifkind, Wharton and Garrison, said the court’s decision to allow class action lawsuits will have “limited practical consequences” for nationwide injunctions.
“If a court thinks that a class action might eventually be certified, presumably by engaging in some sort of quick look at whether or not this feels like a class, like a class action, the court can then proceed to grant nationwide relief,” Shanmugam said.
On Wednesday, the ninth circuit court of appeals upheld a lower courts nationwide injunction decision that prevented Trump’s birthright citizenship order from going into effect.
On July 10, a federal judge in New Hampshire certified a class action lawsuit against the Trump administration to protect the citizenship of children born in the United States to noncitizen parents.
Shanmugam said the courts can find people with “generalizable injuries” against Trump’s executive order and it will present “all the same litigation challenges” as nationwide injunctions.
Kristen Waggoner, CEO of the advocacy group Alliance Defending Freedom, also said the court’s decision leaving transgender care for minors up to states, is particularly consequential for the future definitions of transgender status discrimination.
In Skrmetti v. U.S., the high court allowed states to prevent minors from receiving transgender care. Liberal justices dissented from this decision, citing discrimination on the basis of sex since the law allowed certain children to continue to receive treatment like puberty blockers for issues like precocious puberty.
The court will take up two decisions on transgender athletes from Idaho and West Virginia in its next term. Waggoner said these decisions will force the court to decide what protections exist for transgender people.
“There’s no question that the physical differences will come to bear in the decision and will be front and center in oral argument,” Waggoner said.
Waggoner and Shanmugam said Chief Justice John Roberts, Justices Amy Coney Barrett and Brett Kavanaugh are emerging as “the center of the court.” They said the three justices joined the liberal majority almost as much as the conservative majority in split court decisions this term.
“We really have a 3-3-3 court nowadays,” Shanmugam said. “I think that is something that has taken place for long enough now that we can say that that is really a trend.”
