Advisory Opinions - Looking Ahead to the Supreme Court Term

Episode Date: September 17, 2026

From the SCOTUSblog Summit, Sarah Isgur, David French, and Amy Howe discuss the cases scheduled thus far for the Supreme Court’s upcoming term. The three discuss the most consequential case for the Trump administration, David throws in a Star Wars reference (at the behest of Sarah!), and Amy answers the most important case question correctly.  The Agenda: –Decision handed down in Trump’s mail voting case –What case got dropped this term –The most important case this term –Climate change on trial? –Religious liberty and rolling our eyes at Colorado –Is Trump going to win this one? –What’s still to come Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. That's David French and Amy Howe from Skodas blog, and we are live at the 26th Scotus Blog Summit. We will be doing our traditional term preview where we try to go through the cases that are scheduled thus far, but in a fun way. And not just a death march through the schedule. We'll see if we succeed in that, you will be the judge. So let's do this. Where some see heroes and others see egos.

Bloomberg sees the era of billionaire athletes. While others follow the noise, we follow the money. Learn more at Bloomberg.com. Now, David, before we get into the cases, we got an actual decision from the Supreme Court on Trump's mail-in voting case. let me read you the decision. The government is unlikely to succeed

on the merits of its challenge to the district court's preliminary injunction and the equitable factors applicable for obtaining emergency relief from this court do not favor a stay. The end. There's a lot to chew on there, Sarah. And chew Donald Trump did.

His truth social response was about three times as long as the court's opinion. I will read portions of it to you now. These are not the people I interviewed to serve on the Supreme Court. They are merely a shell of their original selves. A court that is costing the United States trillions of dollars with shockingly bad rulings that are of such magnitude

that it won't be easily possible for our country to recover or heal. It is a court that will go down as having rendered some of the most destructive, hurtful, and damaging decisions in our country. Tony was so pleased to hear that line. It is not easy for me to write this criticism of the United States Supreme Court. It will likely cost me dearly for years to come. But I feel it is my obligation and duty as president to do so for the America we love.

Exclamation point. Thank you for your attention to this matter, et cetera, et cetera. We got a concurrence from Justice Kavanaugh. We got a dissent from justices Alito and Thomas. Rick Pildas pointed out that with this decision, Donald Trump's percentage in courts on any of his voting desires is as a percentage. Zero. Zero. It is at zero.

Not zero point two. I don't believe so. And I think that even includes like the lower courts. I think he is zero for many. Yeah. None of this is surprising. I mean, I'm mildly surprised, to be honest, by the Alito Thomas descent, but mildly surprised. None of this is surprising at all.

We knew when we were talking about the first decision regarding the post office rules and regulations, that that had nothing to do with the merits of post office rules and regulations. It had everything to do with, were you challenging something that was challengeable? And so this immediately, literally within hours of when they issued the ruling of, about that it was premature to rule on the Postal Service regulations because they didn't exist. They existed. They popped into existence. And you had something to rule on. And it just took a couple of weeks. And I'm not surprised it only took a couple of weeks. This stuff is not that hard. This is one of those issues that we don't have to spend a lot of time analyzing because the Constitution on its face gives the authority to regulating elections to the state legislatures and to Congress, not the president. not the president. And so none of this is surprising to me. And one thing I do want to say,

we'll have the whole screed from Trump, and we will still have people who will say, in grave tones, this court is in Donald Trump's pocket, this is the partisan Supreme Court, this is the MAGA Supreme Court. And at some point, how long do we have to, how long do we have to keep doing that? Okay, here was my surprise. I had a couple surprises in this. One, obviously the court was in its like minimalist era, you know, not deciding the first one because we didn't have the final rule, even though we all knew what the final rule was and they wait for the final rule. Then they have to, obviously they, I think, maybe hoped, dreamed, wish that the final rule wouldn't make it in time and they could just avoid this. They couldn't. A was pretty fast

from when the final rule happened. Lawsuit, I think took 36 hours later. Maybe it was 24, but, you know, short order. Then we have to get the district court opinion. D.C. Circuit passes it off, whatever. And then we're at the Supreme Court. They did it in very quick order. Two, this was only about whether it could go into effect for the 2026 midterm election.

Because they were in their minimalist era, I thought that what we would just see is like, no. And then we would like do this again for 2028. But I don't know, you know, unlikely to succeed on the merits is in that majority opinion. Now you have the dissent from Thomas and Alito, and then you have the concurrence from Kavanaugh, which here, I'll read that, there is at least a fair prospect that the final rule falls within the postal services statutory authority. But applying the rule in the 26 elections would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election. officials do not have sufficient time to reasonably implement the rule before the elections.

Nobody joined that. So we've got three votes, I think, on the merits, potentially before 2028, but maybe nobody else, because I'm not as sure as you are, yes, Congress gets to regulate elections and then the states after that, but the Postal Service, for instance, saying that there needs to be a envelope that says election mail on it may be well within the postal services sort of statutory delegation from Congress, you know, and you can pick and choose from the final order what could or could not be legal. Amy, what is the future of this mail-in-ballot EO? Or are we done with that likelihood of success on the merits language? I think the door is still open at least a crack. I mean, I think you've got the Kavanaugh concurrence, as you said, we've got Alito and

Thomas. And as you said, nobody joined the Alito Thomas descent. Nobody joined the Kavanaugh concurrence. But, you know, A, the president feels extremely strongly. So I can't imagine that the Solicitor General is just going to be like, yeah, we give up. And this is not my area of expertise as a legal matter, but it's my understanding that the underlying legal issue is actually really complicated because for the challengers to prevail, it's a really high bar. as Justice Alito said in his dissenting opinion. So, you know, I think that you talked about how quickly we got the order from the court and how you thought that they were just going to say no.

You know, it sounds like that may have been a pretty carefully crafted compromise. And so they, you know, may have said that they wanted to get something out relatively quickly because even with Judge Talwani's order in place, you know, there was still a lot of uncertainty out there about mail and voting. You know, North Carolina had already sent its ballots out. Alabama had already sent its ballots out. The military and overseas voters ballots need to go out on Saturday. And they wanted to clear that up, get it over with,

and I think they probably recognize that it's going to come back. They'd prefer that it did not come back, but it's probably coming back at some point. Okay, so between this decision, no changes to the voting rules for the postings, service in the run up to the 2026 election at this point. And the Missouri, no, we're not getting involved in the state Supreme Court saying you have to use the original map, I think we'll still have plenty more lawsuits that get to the Supreme Court in the run up to the next, you know, 10 or so weeks of the 26th election. But it feels like we're getting a pretty strong message from the court that's just like, don't bring us your problems. I think that's right. I mean,

and we are still waiting on one. We have one involving this save citizenship database that the Postal Service, not the Postal Service, DHS is supposed to put in place so that states can use it to verify whether or not voters are citizens. And there was a whistleblower for the Postal Service who told the news media that this could potentially be incredibly error-ridden and just wreak havoc. And so a lower court judge, once again, has blocked the DHS from using it for the 2026 elections and the Department of Homeland Security is asking to be able to use it going forward. I remember when the Obamacare website rolled out and that was smooth as butter.

So I think the government is really good at websites. I mean, I think the general rule is that the court is trying to avoid chaos in the run up to the 26 election. It's the Kavanaugh vibe, right? Like avoid the chaos. We need consistency. even if the rules may or may not be right later on, we're within not Purcell as a matter of law.

I mean, I personally don't think the Supreme Court is bound by Purcell, but we're within Purcell as a matter of spirit. Right, and Purcell is federal courts generally. You know, we're talking about states and federal agencies, but it's the Percell vibe. You know, I'm also very curious going forward, and I agree with what Amy said about, the doors open a crack. I mean, you read that.

It's open a crack. I'm also very curious to know post-20206, how much is there going to be an effort to sort of set the table again in 2028? Because I don't know how much Trump is going to care at that point, that he is very, very, very focused on his own legacy and his own prospects, his own political prospects. I'm not sure how much he's going to really deeply invest in his successor. So I just don't, we don't know what the future holds, but I do think it's absolutely the case that it's open, the doors open a crack.

Well, we have a case this term that we'll touch on some of this in the next segment. But before we get to our preview, a case got dropped from this term. Will you just very quickly give us the immigration case that is no longer getting argued, why and what it was, and will we see it again? Sure. So the case is called Janallo v. Black. And I will take you back to 2018 in a case called Jennings v. Rodriguez involving whether or not a non-citizen who is in immigration detention has the right to a periodic bond

hearing. And the court in that case held that there is no right under federal law to this bond hearing. And it left open the question of whether or not there is a constitutional right to a bond hearing. And so that was the question that came to the court in Janallo v. Black. The Trump administration lost in the lower court. I think it was the Second Circuit. It was the Second Circuit. And so they came, there were two non-citizens, but by the time the case got to the court, one of the immigrants had left the country and said he wasn't coming back. The other one, the tried to fight off cert on the theory that he was no longer in detention so that the case was moot. The court took the case anyway, and then in August, Governor Kathy Hockel of New York

pardoned him. He had been convicted of assault in New York State, and that was the basis for the federal government trying to deport him. And so that really does make the case moot. The federal government filed a joint stipulation of dismissal, and the case is now off the docket. The Trump administration says it will try to bring another case involving this question to the court soon. This almost feels like a capable of repetition yet evading review, but I take, we'll just, they can find another, another one, another state where the governor may be less and minimal to, but we've, I mean, this is coming up more, it feels more and more frequently to me that when the court grants cert, one side tries to moot out the case and tries to ask for the court to drop the case. And I don't

love it. I mean, we've seen it in non-political cases, even, the Atchison Hotels case, about whether you have standing to challenge the ADA compatibility of a website, and the second the court took cert, they were like, oh, how do we get out of this now? I don't love this, Amy. I mean, I will say as somebody who used to represent clients, that they didn't ask for cert to be granted. And if this is your client, you have a duty to represent them. And if you can avoid deportation by getting them a pardon,

I think you have an ethical duty to do so. Oh, well, when you put it like that, Yeah, I'm glad you raised that because I spent many years in public interest litigation, and one of the things I would tell the attorneys who work for me is you represent a client, not a cause. Right. And so if you're going to forfeit your client's best interest because you think the cause has some sort of overriding hold over them, then you're not representing your client.

So you've just got to do what's best for them. And in some of these cases where cert's been granted, and you're like, oh, crap. Yeah. cert's been granted. You've got to get creative. quickly. I mean, this used to work the other way when I was practicing law in immigration cases. We had someone come to us once and asked us to take up his immigration case. And, you know, he sort of cold called us and we looked at it and there was a division among the lower courts and

we were like, yes, we will represent you. We went to the Supreme Court. And then we went to try and get someone to file an amicus brief at the Sorceriorari stage. And all the immigration groups were like, oh, no, we do not want the Supreme Court to take that case because you are lost in the whatever circuit it was, but we've got good results on that same question in the ninth circuit and the second circuit, which have a lot of immigration cases, so we would rather leave sleeping dogs lie. So, you know, again, it's the question of is your duty as a lawyer to the issue or to the client? All right. When we come back, my first question is going to be, what's the most important case of OT26? We'll be right back. Hi, this is Sarah Isger, the editor of SCOTUS blog, the gold standard for

independent insights and analysis of the Supreme Court. I want to invite you to sign up for our recently launched SCOTUS Blog Plus. This gives you access to, among other things, our daily newsletter, SCOTUS Today, extra deep dives on the court, live insight behind our coverage from those reporters and experts, most familiar with the Supreme Court, super interesting stats on the court you won't be able to get anywhere else, and even text alerts now on the latest decisions, orders, and assignments from the court as they're announced. This also helps SCOTUSBlog to continue doing what it does each and every day. You can sign up for SCOTUSBlog Plus as a founding member for $199 a year at SCOTUSBlog.com slash join or just visit our website at scotusblog.com and go to

plus. All right, cats and kittens, Amy, I'm going to start with you. And by the way, this is like the McLaughlin group. There are correct answers to opinion-based questions. What is the most important case of OT 2026? Okay, so this is going to have kind of a long windup. Okay. Because, okay, right now, at this point, going into OT 2026, like, as Elizabeth said in the previous session, you know, we have had a lot of terms that have had a lot of blockbuster cases. And I fully expect that we are going to get more blockbuster cases for OT 2026, but we're not kind of really there.

yet. Like going into OT 2025, we already had Childs v. Salazar, we had Louisiana versus Calais, we had tariffs, we had Rebecca Slaughter, and we had transgender athletes, and then we went and added a whole bunch more. I feel like the cases that are on the docket, like they are very interesting and very important, don't get me wrong, but they're not really of that caliber. Wrong. David. All right, I think you know what I'm going to say, and it's not because of the actual underlying issue. Oh, then it's also wrong. Viramontes versus Cook County. And here's why.

It is not because this will decide whether or not you can ban an AR-15, because the vast majority of jurisdictions in the United States, even if you're able to ban an AR-15, don't ban AR-15. So the Democratic process has kind of worked its way through in the gun control arena. And the Second Amendment advocacy side has won in a route just through the democratic process. The legal issue, though, in the approach to text history and tradition, it's in the Second Amendment context where this is being worked out more than anywhere else. And so now we're on maybe the third one of the trilogy.

You know, we had Star Wars, we had Empire Strikes Back, and now this is the return of the Jedi phase. And are we going to actually end up at the end of this trilogy with a coherent sense of what text history and tradition means? Because right now, you know, you and I have talked about it so much, Sarah, that I feel like advisory opinions listeners are might just turn off the podcast right now, not this again, but it really is important. And it feels like we move from text history and tradition as strict scrutiny into text history and tradition as intermediate scrutiny. And then there's been a ton of

commentary back and forth, and we talked about some of it last time, about the flaws of the current approach. And I just want to see, does this thing have shape? And is this something that we can really, that if you're a practitioner, if you're a lower court, you can really sink your teeth into, or as it is simply coming down to what, you know, when I was questioning Justice Gorsuch about this, when I interviewed him about his first book a couple of years ago, he said, it's about judgment, David. Is that what we're going to end up with? This is sort of a case-by-case history judgment call. And I single that case out because of its philosophical import. But I agree with Amy that a lot of the rest of the list doesn't scream blockbuster to me.

Okay, see, you cut me off before I could. That was just like the beginning of my wind-up. Oh, yeah, you wind-and-and-you-and-turned-me. Yes, she was so. I mean, so what I was going to say was I have like four cases, and Vera-Montes was one of them. David said it like much more articulately and erroneically than I would have, and Viramontes was one of them.

Do you put to say erudiciously? because I don't, I've never heard that before, but now I'm not even sure it's a word. I'm not sure it is. But I like it because it sounds erudicious. I am sure that one of our listeners will correct us. 100%. Before you get to your other ones, I just want to run through Viramante's, you know, give some top line here.

Okay. Okay. Whether the Second Amendment protects the right to possess semi-automatic rifles, such as AR-15s, what they did not take, they did not. take age restrictions to owning guns. One of them had a 21 and older law. They did not take high capacity magazines. Again, walking people through how we got here that what's the first one, Return of the Jedi? Oh, so it's Bruin? No, no, no. I mean actually in Star Wars. Oh, oh. So episode four is number one. So Star Wars, then Empire Strikes. It's called Star Wars? Star Wars.

Star Wars a new hope. Empire Strikes back. That's the name of the first one? A New Hope? That sounds Yeah, a new hope. And then Empire strikes back and then Return of the Jedi. And then... Did you turn to him on purpose? Because I'm really glad you didn't turn to me for that question. Well, you're about to unlock my entire most recently refined Star Wars list. Thank you.

Okay. So, obviously, we have Bruin's framework, courts must first ask whether. The Second Amendment's plain text covers an individual's conduct. If the answer is no, we're done. If the answer is yes, the conduct. is presumptively protected by the Constitution. The government must then show that the regulation is consistent with the nation's historical tradition of firearm regulation. Now we're just asking, well, what does that mean? Last term, we had Hamani, where the justices unanimously upheld,

sorry, unanimously held that the federal government could not prohibit someone who admitted to using marijuana every other day from possessing a firearm. At the founding, the government contended there was a practice of disarming individuals who drank so much as to fall, to fall, but actually to fall under that category, which they asserted was analogous to drug users like Hamani. The court disagreed. Judge St. Gorsuch, writing for the majority that such laws targeted different kinds of people did so for different reasons and operated in different ways. Then we get Wolford. That was 6'3. Court struck down a Hawaii law that made it illegal for anyone to bring their firearm onto private property open to the public without explicit consent

from the property owner, a Justice Alito special, the Hawaii law implicated the plain text of the Second Amendment, and that because the government failed to produce relevantly similar historical analogs in support of the law, it too violated that amendment. So, David, those are your, a new hope and return of- Bruin and Rahimi are- What are Hamani and Wolford? Hamani and Wofford are Disney Plus shows. That's what they are. Their side, their side, you know, they don't, this one is much harder.

This one is harder. The A-R-15 issue is much more difficult, so it's going to be much more substantial. Okay. Amy, what other wrong answers do you want to give? Suncor, versus Boulder County. That is the correct answer. Suncor is the most important case of the term. Please continue.

Okay, so this is a case about whether it's a case about whether it's, not Boulder County and Boulder City can bring a lawsuit against Suncor and ExxonMobil for holding them liable for their role in climate change that causes injuries to the city and county of Boulder and to its residents. And they are bringing these claims under state law. They said that the oil and gas companies have caused millions of dollars in damage to its property, its residence property. The oil and gas companies went to state court, said these cases should be dismissed because the state law claims are superseded by federal environmental laws and the federal government's power to conduct foreign policy. The state court said no. And so the companies

came to the Supreme Court. The Solicitor General filed an uninvited amicus brief, which used to be relatively unusual. It is not so much these days urging the Supreme Court to take up the case. The Supreme Court did, and it will hear oral arguments the very first day of the term. It is the first case. It is the most important case. I totally agree with you that this is a, you know, we switch off from hot term to quiet term or whatever. This is the colder term, both because we had a hot term last term and also just is. But Suncor is the exception. We just don't think of the non-cultural feeling cases because this feels

like a business docket case. But I will argue to you both that this actually is a huge culture war case. There are 60 or so of these climate change cases pending across the country. So it's like the business docket case and the culture war case. Let me read a

little bit more on this one. Boulder asserts claims for public and private nuisance trespass, unjust enrichment and civil conspiracy. It seeks damages for the role that defendants production, promotion, refining, marketing, and sale of fossil fuels has allegedly played an exacerbating climate change, which has hurt Boulder's property and residence. But the state Supreme Court, as you said, refused to dismiss the case because they said that the energy company's

argument boiled down to a vague federal interest over interstate pollution, climate change, and energy policy. This is a paragraph from the energy. companies topside brief. In short, the Colorado Supreme Court's decision allowing respondent's state law claims to proceed is incompatible with the structure of our constitutional system, the Clean Air Act, and this court's precedence. And if the rule in that decision were adopted on a national scale, it would authorize all 50 states, the tens of thousands of municipalities, and even the hundreds of millions of individuals in our country to ask local courts to establish countless conflicting climate policies for the nation. Giving even a single jury the power to impose ruinous

liability on selected members of the energy industry is a recipe for chaos. Unleashing juries nationwide is a recipe for disaster. That's a pretty consequentialist argument there coming from the conservative side, but if the Supreme Court were to allow this case to go forward, which I think you would agree is unlikely, this is likely to come out in the energy company's way. That would be a economically huge deal. And in theory, could apply to anyone who drives a car, right? You're contributing to climate change.

It could, what's weird is that the respondent's theory would apply to themselves as well because they presumably also use fossil fuels. There have been so many iterations of this case trying to get to the climate change as a legal issue. I just think this is a no-brainer as the biggest issue, David. I would agree with you, but on two counts. But number one is I think it's a foregone conclusion or a near foregone conclusion that individual states, individual juries applying state common law are not going to be able to impose liability.

The other reason is let's suppose that I'm completely wrong about that and the court rules 5, 4, 6, 3, whatever, against that position, then you're right, you would have chaos. You would have chaos. I mean, this might be the second straight podcast that I have quoted Dr. Peter Vinkman from Ghostbusters, but you would have, you would have human sacrifice, dogs and cats sleeping together, mass hysteria if this happened. And you might actually see, and I think you would see kind of forthwith Congress doing

something about it. And so I do think there is a sliver of a possibility that this ends up with the kind of chaotic outcome that you would see if individual states, individual juries, municipalities could regulate the fossil fuel industry through liability. I just don't see that as a persistent outcome of this, even if it comes out in a surprising way. Okay, fair enough. And we will talk more about that when the case is argued on October 5th and get into more of the nitty gritty, including the question that the Supreme Court. has left itself, which is the get out of opinion free card that the Colorado Supreme Court's decision was not final and therefore they don't even have jurisdiction over this. I mean, can I just say a couple of things before we move on? I mean, you are correct that there are just like

billions and billions of dollars at stake here because right now there are, even right now, there are over two dozen similar lawsuits going on and a ruling that allowed this lawsuit to go forward, like wouldn't only affect climate change. You could, you know, it could affect opioid litigation. It could affect local data centers. It could have all kinds of ramifications. You know, I think one thing that has, you know, legal experts have said is that, you know, this court certainly would not be inclined to allow it to go forward, but it's a little bit, or of Gornstein at Georgetown called it, like, a result in search of a theory, like, how exactly are they going to get there? And to the extent that the energy companies are relying on implied preemption.

Some of the justices on the court may not be that sympathetic, particularly because the Trump administration just recently has said that the Clean Air Act does not apply to emissions. See, I read that and like, oh, it was like, ooh, we've got to like ace in the hole. And it's like, no, the fact that the federal government gets to say that the Clean Air Act doesn't apply to this, I think still keeps with the preemption argument in general. Okay. Like that they've field preempted this, and they're just saying, like, this is allowed,

this isn't allowed. Yeah. But, yeah. And I also just sort of like on a very micro level, to go back to the tariffs argument, you'll remember that there was a moment in which I think Justice Sotomayor and Justice Gorsuch asked John Sauer about whether or not, you know, a different administration could impose 50% tariffs on cars on the theory that they contributed to climate change and John Sauer had to admit that they could and he said, well, of course, you know, this administration would say that that's a

hoax and so, you know, this whole thing is a hoax, so we don't really need to deal with it. Okay, last thing on this, you know, I argued this is a culture war case even though it's not getting covered as one yet. My proposition to each of you, is that this case, which if it got decided 6-3 for the energy companies, will make climate change litigation the abortion and campaign finance reform of the next 10 years. And at Suncor will ring like Citizens United and Dobbs. What say you? I, you know I'm normally inclined to agree with you, always.

But I think this is one of those issues that's, complicated to get mass sort of a mass kind of response to it. Citizens United is feels simpler than it is I think or maybe it feels simpler it is actually simple but they feel simpler than it is because they're saying it's they're saying they have a conclusion about Citizens United that's simply wrong and the simply correct reading of Citizens United actually makes the argument much more complicated than and people want to think. But this strikes me as a situation where explaining it and describing it often will result in people tuning out from it. And this is becoming an issue more broadly

with climate change in general, I think, is that it has begun to recede, in some people's view, given the much more short-term, near-term immediacy of tariff cases, et cetera. Climate change feels long term. I feel like the AI part of, if you're talking about scientific discovery and scientific controversy is coming to the four, because that feels much more imminent. Climate change doesn't feel as imminent, although I just came from Nashville, and it was 100 degrees yesterday at the Nashville airport. Not fun, but as far as like any urgent, immediate issue in American politics, I feel like climate change has been receding just because other things are advancing. Is climate change the new abortion that will define how people view the Supreme Court?

No. Okay. Next question. That was much more efficient than my answer. What is the most important case for legal doctrinal purposes? And he already took Viramontes, so you've got to come up with a new one, doctrinally important. Oh, man, I was going to say Viramontes. Nope. We were all going to say Viramontes.

So you've got to pick a new one now. We've got to pick a new one. St. Mary Catholic. Parish. All right. I will say Mary Catholic Parish, which is, you know, I think it's that sort of a collision course between, you know, LGBT, once again, between LGBTQ rights and the rights of religious groups and government programs. Okay, let me read to the audience a little bit about these. I'm just going to read you from Petitioner's Brief and then from Colorado's Brief, and that should give you a good sense of what we're doing here. The Carson case should,

should have made this an uncomplicated one. Colorado created a universal preschool program with the express purpose of funding preschool for all Colorado children in the year preceding kindergarten. Yet, despite these stated aspirations to universality, it is undisputed that Colorado knowingly excluded Catholic preschools solely on account of their religious exercise. But rather than apply Carson, the Tenth Circuit quarantined it, limited Carson to situations where government exclusions are on the explicit basis of religion. In the Tenth Circuit's view, unless the wolf comes as a wolf, it must be a sheep. Colorado has gone out of its way to allow over 1,000 other universal preschools to serve four-year-olds in, quote, specific communities by among other things creating both

categorical and discretionary exemptions from the same statutory provision. It is strictly enforcing against petitioners. Worse, Colorado has repeatedly modified its regulations in response to this lawsuit to ensure other preschools can continue serving specific communities while keeping petitioners out. Colorado even allows universal preschools to discriminate in favor of gender nonconforming children, children of color, or members of the LGBTQ community. Yet, the state maintains that petitioners preschools cannot even consider a prospective family's religious affiliation if they want to participate. Colorado's actions require strict scrutiny. Now Colorado's version. From the start, Colorado has encouraged petitioners and other faith-based preschools to join the Universal Preschool Program.

Participating religious preschools may continue to teach and shape their curricula according to their faith. No surprise then that many religious preschools, including Catholic preschools, participate. Yet petitioners claim that they have been excluded from universal preschools solely on account of their religious exercise? Not so. Petitioners remain welcome to participate. subject to the same equal opportunity requirements that apply to all other publicly funded preschools, public and private, secular, and religious. All participating preschools must meet neutral, generally applicable quality standards, including health, safety, training, and teacher qualification

requirements. These standards include the requirement that each preschool provide eligible children and equal opportunity to enroll and receive preschool, regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability. Petitioners nevertheless seek to transform car, rule against religious discrimination into a new rule that would trigger strict scrutiny whenever public benefits conditions incidentally burdened religiously motivated conduct. I actually think both sides have pretty good arguments there. I mean, this is like a quintessential Supreme Court case.

I think that's right. I mean, so just to sort of take one quick step back, Carson was the case in which the Supreme Court held that the main law that allowed you to take public funds and use them for private schools, as long as they weren't religious schools, was unconstitutional. And so the Tenth Circuit in this case said that Carson didn't apply to the Colorado law because the equal opportunity requirement in the Colorado law applied to everyone. They weren't targeting religious schools. And the parish said, you know, no, you're targeting us because we're religious. You're not giving us any exemptions. And, you know, I think that A. Colorado does not have the best track

record at the Supreme Court. I was just going to say that. We had Master Pee's Cake Shop. We had 303 creative. We had Childs v. Salazar. And religious schools have, you know, a great track record. The only recent loss that they have had was the Oklahoma City Charter School, which they likely only lost because Justice Barrett was recused and the court tied four to four, leaving the lower court decision in place. And so, you know, I don't really see a scenario in which they don't, you know, I think both sides have good arguments in which they don't rule for the parish, which apparently, you know, 20% of the parish is, you know, they lost 20% of their enrollment and two schools had to close down, like the impact of this law has been really significant.

And so they expand Carson just a little bit in the same way that every time they've had one of these cases, they expand the rule a little bit more. I mean, look, when Colorado walks in, even Justice Kagan is giving them side-eye. Like, this is the way it's been lately, right? And so I do think from an outcome standpoint, I would be very surprised if Colorado prevails, very surprised. I'm much more interested in the doctrinal element of this, because this is what do we do with the moaning, tottering zombie of Employment Division v. Smith? And just reading some of the issues, whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct. And two, whether Carson v. Macon displaces the rule of Employment Division v. Smith, only when the government explicitly explicitly exclusions,

religious people and institutions. So just to back up, employment division v. Smith was, this is my bias showing through. Everyone knows how I feel about employment division v. Smith. Scalia's infamous decision that it guts the free exercise clause to essentially say, if you're making a free exercise clause, claim against a neutral law of general applicability, you're going to lose. So then the question became, what's a neutral law of general applicability, because if it wasn't a neutral law of general applicability, then you could have strict scrutiny. Or if you had a hybrid claim where you could also make a free speech claim, you could have strict scrutiny, which is why all of a sudden, bingo, presto, a whole bunch of

free exercise claims became free speech claims in litigation because you had greater, easier access to strict scrutiny. Ever since that time, employment division v. Smith has been on, or the meaning, the spirit, the broader meaning of employment division v. Smith has been on an epic losing streak at the Supreme Court to the point where it's very difficult now to actually locate something that is genuinely a general law, a neutral law of general applicability, because if it has discretion built into it, like Fulton versus City of Philadelphia, if there's any exceptions built into it, it becomes less generally applicable. So I'm very interested in this. Fulton case, it looked like, it looked, like the Alito opinion was originally going to be the majority opinion completely reversing

employment division v. Smith, but then we had the Barrett-Cavanaugh opinion that comes in and goes, well, hold on here. What replaces it? What replaces it? So Employment Division v. Smith limps on, and this is going to really tell us, does it mean anything anymore? As the zombie precedents go, you're saying employment division is no longer doing thriller. I would even go, I'm going back, I'm going to the, I'm going to the black night of Monty Python and the Holy Grail. So is it to the point where it's like, come back here and I will bite you? Yes. You know, and I think that that's kind of where it is now.

And I wonder if that it's just going to be put out of its misery. Because the petitioners, you know, the parish asked the court to take up the employment division versus Smith question in this case, as others have done. And the court was like, nah, we're not going to do that. right now. Yeah, well, but then when you actually, depending on how they answer it, these questions, Employment Division v. Smith could be just kind of basically finally, totally, completely dead. And so in like five years, they'll say, well, it's dead. It wasn't that already clear. Yeah, exactly. Okay. My next question, and again, there are right answers to all of these. I just want to make sure you guys understand that. Most important case to Donald Trump. Anyone? Boy, that is a,

a great question. Oh my God. No, you guys. We'll answer it, Sarah. Okay. Yeah. It's Republican National Committee versus Me Familia Voda. This is the voting case out of Arizona in their 2022 law. Now, federal law. Federal form applicants without documentary proof of citizenship may be registered as federal only voters in Arizona. That right now applies to about 40,000 voters. But state form applicants who provide documentary proof of their citizenship can vote in all of the elections. They are full-form voters. That's about 4.3 million voters in Arizona right now. In 2013, the Supreme Court held that Arizona could not demand documentary proof of citizenship from voters who register for federal elections

using the federal voter registration form. So, Arizona allowed registrants to register as federal-only voters or they could register as state full ballot voters. I ran the numbers on this last night, by the way, guys. And so as I said, 4.3 million Arizona voters have now registered as full ballot voters. About 40,000 have registered as federal only voters. That is less than 1% of course that didn't provide proof of citizenship. But the overall number, 4.3 million, is about 57% of Arizona residents. California, its next door neighbor, which does not have these rules, obviously, is at 56% registering for their citizens. So it's funny for all of this focus from the left on how bad it would be to have proof of citizenship requirements. I don't know, this is a laboratory of

experiment that actually seems to have not mattered very much. It turns out a lot of people have proof of citizenship one way or the other, or at least 4.3 million Arizonans do. The reason Donald Trump is going to care about this case is because it is the roadmap for all of these other states to then require proof of citizenship. Now, Arizona's original law also said that if you are federal only, you can't vote by mail. So you have to use a different means of voting than if you, you know, the privilege of full ballot voting comes with vote by mail and voting for state election officials. And, and this I thought was a maybe too clever by half theory, you can't vote for president if you're federal only. Ah, but you're saying that's clearly a federal election? Well, we don't vote for president, do we?

We vote for the electoral college. And they're arguing that those are state elections to vote for the slate of members at the electoral college. The Ninth Circuit stayed both of those parts of the law, and those are not up to the Supreme Court. So even if Arizona wins, those don't go back into effect. But I think that Arizona example, and as Arizona keeps trying to change their laws and keeps going back to the Supreme Court over and over again, and remember the Supreme Court allowed this part of Arizona's law to go into effect for 2026 and 2024, I believe. Yeah, I think he's going to watch this pretty closely and then put a lot of pressure on the other red states to do it. I think you're completely right about that.

I also think you're right that the actual impact of it, one way or the other, over time, will, be pretty small, will be pretty minimal. I do think that if you had citizenship requirements that become proof of citizenship as a matter of registration that become required in effect immediately and right before an election, would impact a lot of voters who, the numbers are really pretty shocking, the difference in immediately available citizenship proof for college educated voters and non-college voters. Oh, I was going to say the 40,000 voters in Arizona who are federal only are almost all concentrated in college towns, which I think means that they're college students

who either don't have a proof of citizenship with them when they went to college, probably pretty likely. Also probably don't care that much about voting full ballot. And so you've got the twofer. They don't care too much. It's not easy for them to get.

And so those are the ones that you're hurting in this process. Right, exactly. So one of the interesting ironies at the moment is for a long time, Republicans, it's funny, we're in the middle of political and realignment that we're kind of slow on understanding what it all means, because Republicans for many years have been much more focused on, say, okay, what are the things that we can do to kind of tighten voting requirements? And Democrats have been in the camp of what can we do

to create more access to the ballot. And the interesting thing is the constituencies of the two groups have flipped. It used to be the Republicans were predominantly college educated. Democrats were predominantly non-college educated. And that's flipped around. And now Democrats are in the world where their voters, their core base, or the people who are much more likely to have the passport and the birth certificate and the Social Security cards sitting right there and it locked away, filed away neatly. And non-college voters are much less likely to have those things. And so how does that play out over time remains to be seen? But I think we're in a weird little blip where a lot of Republicans are operating, if they're just thinking political expediency,

Not that politicians would ever think like that, but if they're just thinking political expediency, a lot of the incentives have flipped 180 degrees, and I don't think it's been fully absorbed necessarily into either party. It also just seems, you know, this is just like a lot of time and energy in search of a problem. I mean, there's no real evidence that there is any actual number of non-citizens who are out there voting. I mean, Donald Trump is obsessed with the number of non-citizens who are voting with this idea of mail fraud, even though he voted by mail in the primaries in Florida in August. This is what's so fun about it, though, Amy, because both sides are doing a nothing, right?

Like, there's no problem to solve, and the solution also doesn't cause any problems. So, cool. I guess the Supreme Court probably doesn't think it's that much fun. Okay. Nor the journalists who cover it. I want to get to our last segment here, so I'm just going to. going to go through a couple of my other question and answers. Number one, what's the most libertarian case? That is the Jwapi versus Alaska. The case now before the court began more than 14 years ago.

How did it take that long? I know. To get to the Supreme Court. 14 years ago. That blows up my old joke about the great thing about America is that everyone gets their decade in court. That's more. That's a lot more. It's not like this is some criminal habeas case that like went to the state court. I don't know. Yeah, I guess I was on the Romney campaign when this poor guy was flying his plane. Okay, so he was scheduled to fly a passenger from Fairbanks to Beaver, Alaska, approximately a one-hour flight. Not sure why that's relevant, but appreciate that it was included. Before he took off, state troopers arrived at the airport, searched his plane, found some beer that the passenger was bringing to her husband and Beaver and charged both.

the passenger and Joopi, as well as his company, with knowingly bringing alcohol to a dry village. He was found guilty. He was sentenced to three days in prison in order to pay a fine of $1,500, and then they took his plane, which is, you know, worth a lot more than that. So the QP is weather. In determining whether a fine contravenes the excessive fines clause, which holds that the amount of the fine must bear some relationship to the gravity of the offense that is designed to punish, courts may consider the gravity of the underlying offense purely in the abstract, or of the specific defendant's wrongdoing. Yeah, I mean, libertarian dream case.

And I'd also file it under the local governments behaving badly. Yeah, I mean, I think this also falls into the category of, like, reporters' favorite cases. Yeah. And less than until they grant the case involving the kids who had to take off their Let's Go Brandon sweatshirts and school, which is up this fall. I think this is definitely in the reporter's favorite category.

And you're exactly right, Sarah. This is pinging all my libertarian alarm bells. But before we go on, can I channel our beloved friend and colleague, Jonah Goldberg, for a second, and just say, hey, we're making fun of a case of beer going into a community in Alaska when the reality is there's been a lot of, there are very good reasons why alcohol consumption has been banned in certain Alaskan communities.

I'm the one who thinks Alaska should win this case. You're the one who thinks they should lose. I know. Alaska should still lose. But before they lose, I want to acknowledge that the actual underlying prohibition is not something we should be sneering at. The gravity, the level of the fine,

the amount of the fine compared to the gravity of the offense. You just said the gravity of the offense was really serious and, in fact, chastise me for making light of the gravity of the offense. The gravity of the offense of what banning alcohol is acceptable, but you couldn't say, and you get the death penalty if you bring it in. Obviously we'd agree on that, but banning alcohol and you lose your aircraft for bringing it in a case of beer. Like I'm not mocking speeding regulations, but I would say that, for example, if I had to forfeit my almost new Hyundai. It's nice. It's nice. I like it. But anyway, if I had to forfeit my vehicle for it, I would say that feels like an excessive fine without mocking the need for speeding regulations. Fine. Okay. We don't have a lot of criminal docket cases this time, but we do have Kian v. Florida. Whether the petitioner was deprived of his right under the sixth and 14th amendments to a trial by a 12 person jury when the defendant is charged with a serious felony. Can Florida not have 12 person juries? What does it mean to have a jury? Does jury mean 12 people? I also have the, I have no idea what's going on in this case. Can we go back to the Florida case for a second?

Like this is actually going to be kind of an interesting one. It follows on Ramos versus Louisiana in which the court held that there is a right to a unanimous jury verdict. And it was all about, you know, it overruled a case called Apodaca. I love saying Apodaca. It's my favorite case to say. It's kind of like Abercadabra. Yeah. In that case, it sort of rested, it was a divided, a really split decision, but it rested on the

idea that, you know, the function of the verdict, and the Williams case, which is what the, had upheld the six-person jury in Florida had also rested on the idea that, like, basically, for the more minor crimes, it's close enough. And, you know, this court is a much more original understanding court. But in the Ramos case, or Ramos case, however you pronounce it, Justice Kagan was in the dissent because that was the pre-Dobbs stare decisis era. And, you know, Justice, so it'll be interesting to watch Justice Kagan if she looks at Williams and it's like, yeah, yeah, no reason to change that. You know, it's just sort of sticking to her hard line on stare decisis. Okay, so my nominee for I don't know what's going on in this case, which is really

my nominee for case most likely to get digged this term is international partners for ethical care versus Ferguson. By way of background, I need to tell you about two cases. One, Mirabelli v. Bonta, that was this emergency docket interim docket case. Teachers and religious parents sued state officials and school district officials arguing that hiding a child's gender identity, gender transition or social transitioning at school violates parental rights and religious freedom. Then you've got Mahmoud v. Taylor, also six three, that public schools must grant parents advance notice and the right to opt their children out of elementary school instruction featuring LGBTQ plus inclusive storybooks when it conflicts with their religious beliefs.

this case, let me repeat, I don't fully understand what it's about because the petitioners and the respondents definitely don't agree on what it's about, but it appears to be about a law in Washington's state that is about what happens if a child runs away from home and what care the state will provide and whether the state saying that they will provide care for someone who says that they're transgender violates the parents' rights because it puts, quote, the sword of Damocles in petitioner's homes that forces them to avoid discussing gender-related issues with their children, using their children's given names and biologically accurate pronouns, and implementing ordinary discipline, because if they do that, then their child will run away to the state. I'm telling you, I've read these brief several times. Dig. Sorry, if the lawyers are here, that would be awkward for me. Not as awkward as when last time we had our SCOTUS blog summit when Rebecca Slaughter was in the audience.

Yes. If you're here, sorry again. Okay, last one is the business docket one, since I think Suncor is a culture war case. Business docket is Apple versus Epic Games. Whether a court may hold a party in civil contempt based on a violation of an injunction's spirit, where the injunction is silent as to the convent. conduct upon which the contempt is based, or instead whether a court must ground a finding of civil contempt on the violation of an order that clearly and unambiguously prescribes the

precise conduct at issue. This is the opposite. I just had a joy reading all of these briefs. I thought it was a really actually fun, interesting in the weeds legal case. And Amy, to your point about who this court is, it's like this quintessential difference between the Ninth Circuit vibes based law where the Ninth Circuit was like, spirit of the injunction, spirit of the civil conviction you violated, therefore civil contempt. I think the Supreme Court's going to be like, what? No, I read the injunction. It doesn't say that. But yeah, the details of this are fun. Oh, can I say something about the gaming case for just a moment? I haven't looked closely at the case, but as a longtime gamer, epic game should win. But that's in a perfect time for me to bring up.

In the gaming world, there is a release of a new World of Warcraft called World of Warcraft forever, which is going to bring me back in. And I'm just going to propose to listeners, do we need an advisory opinion's guild in World Warcraft? David, we have six minutes left of this podcast. That's a very important question. Anyway. Okay. When we get back, I'm asking Amy, what isn't on our docket and what she thinks will make it on before the end of the term?

We'll be right back. Amy, we're back. As you've said, this is a bit of a cold term. What are we missing and what do you think we'll still get on the docket? And I will just say the thing that screams to me that we're missing, where's the separation of powers? Where's the statutory interpretation in Congress versus the executive branch? I mean, I feel like we've been doing that for so, so many terms now through Trump,

through Biden, through Trump, and I'm looking, and I'm looking. Are we done with separation of powers? Say it ain't so. I'm sure we're not. Phew. Yes. But, you know, we've got some other good, really interesting cases that are making their way through the pipeline and seem likely to come to the court. There were a pair of cases involving the Ten Commandments being posted in classrooms, in Texas, and in Louisiana. Has to be on there.

Has to be on there. We have the case called United States v. It's a challenge to the most recent policy of this Trump administration requiring the separation of transgender military members from the service. The federal government is the petitioner in that case. So that seems like a pretty good bet. We have the Let's Go Brandon case, the brothers whose mother gave them the Let's Go Brandon sweatshirts for Christmas.

They just love their mothers, guys. Yes. They just wanted to wear their Christmas present from their mother. That was the important part to them. Could have said anything. There are a couple of other gun cases that will be curious to see whether or not the court holds them for Viramontes and Grant versus Higgins, which is the Connecticut twin of Viramontes. One involving, out of Maryland involving the carrying of guns in sensitive places. There's yet another iteration trying to get the court to take up the ban on the carrying of guns by someone who has been convicted of a felony.

and there are you know there's a case involving doge that's coming up to the court and so you know then like you look at you know is Lisa Cook coming back you know the Trump administration has said that it intends to fire her she has responded and that case has kind of gone silent but I wouldn't be at all surprised if that case came back at the court remember that the last iteration was really about process and so it you know we could get back like what does it mean for cause can you fire someone for conduct that happened before she actually became a member of the federal reserve yeah there's another tariffs case there's so many possibilities a couple of other issues as well one i think that would that we have talked about a great

deal immigrant free speech is that is that coming to the court is that coming to court this term i think it's coming to court eventually we also have a circuit split when it comes to detention of immigrants who are captured, who are detained in country, their entitlement to bail, to bond hearings, et cetera. So this is going to come up. We already have an existing circuit split there. Fifth Circuit has ruled in a way that departs from a majority of the circuits on that. So I think those are a couple of other issues, both involving immigration.

Yeah, I think there's a case on immigration on whether or not someone who comes across the border without, not at a port of entry, can then claim asylum, which is. kind of an interesting case in the wake of last term's case about whether or not they could stop you right before you get to the border because the question was you know would that create an incentive for people to cross the border illegally and then claim asylum there's also a case about brought by to the court by the Trump administration about the termination of grants by agencies like the National Institute for the Humanities

All right. And with that, we will wrap our OT-26 term preview. Thank you guys so much for being here and being part of our live podcast. We love you very much.