At Buckley’s annual Supreme Court Review, Jonathan Adler and Eugene Volokh discussed several controversial cases from the Court’s recent spring docket.
Emily Akbar
Staff Writer, The Buckley Beacon
On Tuesday, the Buckley Institute hosted Jonathan Adler, Tazwell Taylor Professor of Law at the William and Mary Law School, and the Hoover Institution’s Eugene Volokh for its annual Supreme Court Review. Regarding the rulings of the Supreme Court’s most recent term, the two legal scholars examined decisions on birthright citizenship, sex transitions, and the First Amendment.
Adler commenced with an overview of the Supreme Court’s spring term, noting how there was an “unusually” small docket of 66 cases. He specified that 26 out of those 66 cases were decided unanimously while another 5 were decided 8-1.
“That’s significant, because the court doesn’t hear a lot of cases, and the cases it hears almost come exclusively from what we refer to as the certiorari docket,” he said. “So the fact that the court can only take in several dozen of those cases each year and is unanimous in 40 percent of them is really quite remarkable, because those cases are essentially the cases least likely to produce unanimity,” he continued.
Adler added that we saw familiar pairings this term, with Justice Alito and Justice Thomas as well as Justice Sotomayor and Justice Jackson. Unusually, he noted how liberal justices, who are technically in the minority, were in the majority for cases that were decided either 6-3 or 5-4.
The Supreme Court currently consists of six justices appointed by Republican presidents—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, Samuel Alito, Jr., John Roberts, Jr.—and three by Democratic presidents —Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
In one case, Adler discussed U.S. v. Skrmetti, which involved a challenge to a law in Tennessee barring both “puberty blockers” and cross-sex hormone treatments for individuals under the age of 18 who suffer from gender dysphoria. In response, Adler described how the plaintiffs’ lawyers, which included then-U.S. Solicitor General Elizabeth Prelogar and counsel from the American Civil Liberties Union (ACLU), argued that these laws violated the equal protection clause of the 14th Amendment since they discriminate against self-identified transgender individuals on the basis of sex, therefore subjecting the law to “heightened scrutiny.” “Heightened scrutiny” is a judicial standard used by courts to determine whether a law that classifies people into groups aligns with the Equal Protection Clause of the Fourteenth Amendment.
“A good way of thinking of it is kind of flipping the presumption of whether or not a law is constitutional,” Adler said. “The idea being there is that the government is doing something that we think is suspect. Most obvious examples would be laws that utilize race.”
In the end, the Supreme Court ruled 6-3 in favor of Tennessee Attorney General Jonathan Skirmetti, holding that the law did not trigger heightened scrutiny under the Equal Protection Clause. Adler explained that the Court found that the law did not target transgender individuals since the “the key basis for distinction in the law was age,” as treatment is available for adults and not children.
Adler clarified that the Court will have to address more questions on transgender cases in the future.
“There are two cases on the Court’s docket for this coming term involving laws about transgender participation in youth sports, where the court is going to have to determine whether such laws that target individuals who are transgender are subject to heightened scrutiny, or whether or not such laws should be considered sex based classification,” Adler noted. Unlike this case, he described how it “would really be hard to characterize them as based on medical treatment or based on age,” which would introduce a new constitutional debate for the Court in its upcoming term.
In another example, Adler evoked Trump v. CASA, a challenge to President Donald Trump’s executive order ending birthright citizenship. Adler explained that the Court was asked to consider whether or not a single district court hearing claims from certain states or individuals could enter an injunction that would apply nationwide, such as on Trump’s executive order.
“The key thing in [Trump v. CASA] was essentially saying to lower courts, stop with the idea that any court somewhere in the country that is almost always carefully selected by plaintiffs in this sort of litigation to be the most favorable forum and can then impose a rule that applies nationwide,” Adler said.
Adler also addressed the concept of “Shadow Docket,” in which he described as the Supreme Court making “emergency decisions about things like temporary restraining orders or preliminary injunctions.” Contextualizing this to the Trump Administration, Adler expressed that recently, the Trump administration has won in almost all of the cases that it took to the Supreme Court in the last few months.
Specifically, in over 400 lawsuits, they lost about 150 and only appealed a few dozen of the “most favorable forms to file” to the Supreme Court through the Shadow Docket.
“And that those two dozen or so cases is not remotely representative of the full range of cases that have been brought against the Trump administration, and tells us very little about how the Supreme Court will ultimately think about the merits of a lot of these various cases,” Adler said.
Addressing First Amendment cases during the spring term, Volokh then spoke on whether Free Speech Coalition v. Paxton—a case that deals with age verification for access to online porn—violated the First Amendment as it imposed a “burden on adults’ access.” While the Court’s conservative majority said the “burden” of adult’s access to porn was only “incidental” to protecting children, the dissent, which included Kagan, Sotomayor, and Jackson, wanted stricter First Amendment scrutiny to test whether that burden was really necessary to sue for.
“It looks like both sides are trying to, on the one hand, take on the mantle of ‘We are the true protectors of free speech,’ while on the other hand, leaving room for some restrictions on pornography aimed at children, whether by having kind of this categorical rule, as the majority says, or allowing some laws to be upheld under strict scrutiny, as the dissent says,” Volokh summarized.
Volokh also addressed Mahmoud v. Taylor, in which the Court decided in a 6-3 decision that it is a constitutional right for the parents in the Montgomery County Board of Education to opt their children out of certain school curricula. Unlike other terms, Volokh highlighted how in this case, we can see how the ideology of the court has “flipped on us.”
“Now it is the conservatives that are taking the lead on supporting a presumptive right to exemptions from generally applicable laws for religious objectors,” Volokh said.
As of October 10 of this year, the Court has agreed to hear 41 cases for its 2025-2026 term.