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Abbreviated Review of Supreme Court Term (2025) [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-07-19
Although all the attention right now is focused on the Epstein files, we ought to stay alert to the myriad of ways our democracy is being dismantled right in front of us. So, here is a synopsis of six Supreme Court decisions, many of them addressing Trump Executive Orders.
Not surprisingly, the Supreme Court continued a tradition of issuing a flurry of major decisions at the end of the term. Also unsurprisingly, the impact of these decisions is going to be harmful for a lot of us. Like prior terms of this court, there were a number of major decisions coming from the so-called “shadow docket,” where the Supremes issue decisions without a full briefing. The shadow docket is not necessarily something sinister, but is used regularly in cases that require a fast decision (e.g., death penalty cases). The problem is we get (frequently unsigned) decisions unsupported by articulated reasoning. Expanded use of the shadow docket threatens to undermine the rule of law and transparency.
One thing that can be intuited from this term is that the Court seems to be taking its marching orders as much from the architects of Project 2025 as it is from Trump himself. As most of us know, the primary objective of Project 2025 is the destruction of the so-called “Administrative State.” And this term, the Court has definitely given the administration enough ammunition to do this.
Many of the decisions involve preliminary injunctions, and thus are not final decisions on the underlying merits of the case. However, the practical application of allowing Trump’s Executive Orders to even temporarily decimate federal agencies—particularly those whose responsibilities include protecting the rights of the powerless (employees and consumers), the regulation of the powerful, and protection of public safety and welfare—can be destructive, even if the final ruling is in favor of The People at the end of the day. By the time the case is able to be fully heard and briefed, traveling up and down various courts of appeal (and you can bet that this administration will use every delay tactic in the book if they think there is even a remote chance of losing), the damage may be irreparable.
As a practical matter, we can no longer trust our own federal government to protect our civil rights or even the rule of law. On top of the recently enacted budget abomination--which will deny life essentials like food and medical care to millions of vulnerable Americans—we should abandon any notion that we can look to our national government for anything. Fortunately, some of us can look to our states—which often have a more robust enumeration of rights in the state constitution. We should also look to our neighbors in our counties, cities and towns, at the same time recognizing that they will likely not have sufficient resources to cover the gaps. While our broken and battered communities are reeling from the damage the elites running our own government have inflicted on us, we will have to find new and creative ways to take care of ourselves and each other.
Trump v Wilcox 24A966 (05/22/2025).
One of the stated objectives of Project 2025 is destruction of the administrative state. Trump has been exercising his greatly expanded Article II authority by firing agency heads, in direct contradiction to longstanding precedent. In 1935 (during the height of the Great Depression), the case of Humphrey’s Executor (295 U.S. 602) held that the President did NOT have the authority to remove agency heads except for “good cause”, in order to protect the agencies’ independence. Moreover, agencies created by Congress can require “cause” for removal.
Not surprisingly, Trump went after the heads of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB), agencies whose primary responsibilities involve protecting the rights of employees. The District of Columbia federal trial court granted a stay of Trump’s order, which was reversed by the Supremes (meaning that Trump can go ahead with the action until the case can be fully heard on the merits.)
The Court expressly stated that this decision was not a final ruling on the merits. However, it is now construing the President’s powers to remove executive officers more broadly, limiting the protection of agency heads to “narrow exceptions recognized by our precedents.” They are expressly NOT deciding now whether or not these terminations fall within one of the exceptions without full arguments and briefing.
In issuing or vacating a stay, Courts are required to “balance the equities,” that is, to determine the relative harms to both sides. In this case, the Court “reasoned” that, “The stay…reflects our judgment that the Government (i.e., Trump’s authority) faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” Like so many of these cases that “balance the equities” between the parties, harm to the public welfare (from the disruption of the services that these agencies provide) always seems to be left out of the equation. Some legal analysts have described this ruling as “radical.”
The Court upheld the state of Tennessee’s authority to ban puberty blockers and hormone therapy for the treatment of gender dysphoria. The court framed the issue as more analogous to states banning minors from purchasing things like alcohol or tobacco (which are constitutionally permissible). The twist in this case was that the ban only applied to the treatment of transgender youth—the therapies are still legal for minors with other conditions. The court “reasoned” that 14th Amendment Equal Protection did not apply because the law’s distinction was based on age and medical use (not a suspect class) rather than sex (a suspect class that requires a higher level of scrutiny and state justification).
Chase Strangio—the first transgender attorney to argue a case before the US Supreme Court and Co-Director of the ACLU LGBTQ and HIV Rights Project—argued on behalf of the Respondents (which included the United States) against the TN Attorney General. The Supremes did leave the standard of scrutiny question open (which means that a crackerjack litigator may be able to find a loophole).
Legal experts say this is a narrow ruling which may not extend to transgender rights or healthcare bans in other states. A similar law is currently being challenged in North Dakota. Although Skrmetti is not good news, the ND case will be determined by the ND Constitution and not the US 14th Amendment.
This involves Executive Order 14160, which denies birthright citizenship. Every lower court (all trial courts and three separate Courts of Appeal) issued or upheld injunctions against execution of the order. The Court framed the question as to whether or not the lower courts had sufficient “equitable authority” to issue a universal (i.e., nationwide) injunction. Which they answered in the negative. As a practical matter, the injunction still stands with respect to the named plaintiffs, it just cannot be extended to others except in the event of nationwide class certification (which the trial court in this case promptly did) or particularized findings from the trial court. The court expressly stated that it was NOT addressing whether or not the EO violates the Citizenship Clause or Nationality Act.
Some legal analysists do not view this as a huge threat, since the Supremes typically disfavor nationwide injunctions and they left open a number of workarounds. Conversely, from a court of purported Constitutional “textualists, the denial of birthright citizenship defies the plain language in the document and should be well-settled law. People may now end up “stateless.”
Medicaid beneficiaries do not have an individual enforceable right to sue state officials under §1983 (a federal law that allows citizens to sue their own states for violating federal rights) for failing to comply with Medicaid’s “any qualified provider” provision. Although the obvious target here is abortion, Planned Parenthood provides a range of health care services, most directed at mothers or mothers-to-be. This ruling allows states to restrict Medicaid funding to entire organizations rather than just targeting restrictions to specific procedures (like abortion). In some poor and rural counties, Planned Parenthood may be the only medical provider within a reasonable distance. This will only aggravate the loss of health care in addition to the larger defunding of Medicaid.
This case undermines both patient’s rights to reproductive health care (beyond just abortion) as well as the ability to turn to the courts for relief when their own state violates citizen rights. Like most of these effects, poor, rural, and underserved communities will be hardest hit.
In conformity with its Guidelines for Respecting Religious Diversity, the Montgomery County (VA) Board of Education initially allowed parents to “opt out” students from LGBTQ-inclusive storybooks. Less than a year after this compromise, the Board stated it could no longer accommodate the growing number of opt-outs without disrupting classroom instruction. A group of parents from a variety of religious backgrounds sued the Board, arguing that the “no-opt-out” policy infringed on their right to free exercise of religion, specifically by “indoctrinating children in ideology that is inconsistent with their religious beliefs.” The court held that the parents are entitled to a preliminary injunction because they are “likely to succeed on the merits.” Unfortunately, religious freedom is being weaponized to override other rights.
Anyone who has been to law school or is familiar with typical Supreme Court opinions will immediately note that the dissent (19 pages) is lengthier than the opinion itself (one paragraph). The decision is unsigned, but we can readily surmise which justices “agreed” to it in order to constitute a majority.
The decision is a narrow procedural one, although there is no explanation or rationale. The case started following a March 11th announcement by Education Secretary Linda McMahon that the Department would be eliminating (RIF) 1,378 employees. This was followed by a Trump Executive Order on March 20, directing McMahon to “take all necessary steps to facilitate the closure” of the DOE. A group of 19 states (led by NY), in addition to the District of Columbia, teacher’s unions and two public school districts requested relief from the Federal District Court in Massachusetts.
On May 25th, Judge Myong J. Joun issued a well-reasoned, 88-page opinion and order, enjoining the Secretary from both carrying out the RIF or the Executive Order. This is only a preliminary injunction, or a “stay” of action until the underlying case can be fully briefed and heard on the merits. What the Supremes did on July 14th was “stay” the preliminary injunction (which allows the DOE to go full steam ahead with eliminating itself), only until an appeal at the First Circuit Court of Appeals is decided and possible writ of certiorari is denied (which could take months). The court’s stay of the preliminary injunction will automatically terminate once there is a “final decision” that is not in Trump’s favor. Which gives them plenty of time to do a lot of damage, if the damage doesn’t become permanent.
The dissent (authored by Sotomayor, joined by Kagan and Jackson) argues that the President does not have the authority to unilaterally eliminate a Cabinet-level agency established by Congress without Congressional consent.
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