How the Supreme Court could wind up scrapping high-profile precedents in coming months

CNN

2 hours ago

The Supreme Court's landmark opinion on same-sex marriage isn't the only high-profile precedent the justices will have an opportunity to tinker with – or entirely scrap – when the court reconvenes this fall.
From a 1935 opinion that has complicated President Donald Trump's effort to consolidate power to a 2000 decision that deals with prayer at high school football games, the court will soon juggle a series of appeals seeking to overturn prior decisions that critics say are 'outdated,' 'poorly reasoned' or 'egregiously wrong.'
While many of those decisions are not as prominent as the court's 2015 ruling in Obergefell v. Hodges that gave same-sex couples access to marriage nationwide, some may be more likely to find a receptive audience.
Generally, both conservative and liberal justices are reticent to engage in do-overs because it undermines stability in the law. And independent data suggests the high court under Chief Justice John Roberts has been less willing to upend past rulings on average than earlier courts.
But the Supreme Court's 6-3 conservative majority hasn't shied from overturning precedent in recent years – notably on abortion but also affirmative action and government regulations. The court's approval in polling has never fully recovered from its 2022 decision to overturn Roe v. Wade, which established the constitutional right to abortion.
Here are some past rulings the court could reconsider in the coming months.
Even before Trump was reelected, the Supreme Court's conservatives had put a target on a Roosevelt-era precedent that protects the leaders of independent agencies from being fired by the president for political reasons. The first few months of Trump's second term have only expedited its demise.
The 1935 decision, Humphrey's Executor v. US, stands for the idea that Congress may shield the heads of independent federal agencies, like the National Labor Relations Board or the Consumer Product Safety Commission, from being fired by the president without cause. But in recent years, the court has embraced the view that Congress overstepped its authority with those for-cause requirements on the executive branch.
Court watchers largely agree 'that Humphrey's Executor is next on the Supreme Court's chopping block, meaning the next case they are slated to reverse,' said Victoria Nourse, a professor at Georgetown University Law Center who worked in the Biden administration.
In a series of recent emergency orders, the court has allowed Trump – ever eager to remove dissenting voices from power – to fire leaders of independent agencies who were appointed by former President Joe Biden.
The court's liberal wing has complained that, following those decisions, the Humphrey's decision is already effectively dead.
'For 90 years, Humphrey's Executor v. United States has stood as a precedent of this court,' Justice Elena Kagan wrote last month. 'Our emergency docket, while fit for some things, should not be used to overrule or revise existing law.'
Through the end of the Supreme Court term that ended in June, the Roberts court overruled precedent an average of 1.5 times each term, according to Lee Epstein, a law professor at Washington University in St. Louis who oversees the Supreme Court Database. That compares with 2.9 times on average prior to Roberts, dating to 1953.
An important outstanding question is which case challenging Humphrey's will make it to the Supreme Court – and when.
The high court has already agreed to hear an appeal – possibly this year – that could overturn a 2001 precedent limiting how much political parties can spend in coordination with federal candidates. Democrats warn the appeal, if successful, could 'blow open the cap on the amount of money that donors can funnel to candidates.'
In a lawsuit initially filed by then-Senate candidate JD Vance and other Republicans, the challengers describe the 2001 decision upholding the caps – FEC v. Colorado Republican Federal Campaign Committee – as an 'aberration' that was 'plainly wrong the day it was decided.' If a majority of the court thinks the precedent controls the case, they wrote in their appeal, 'it should overrule that outdated decision.'
Republicans say the caps are hopelessly inconsistent with the Supreme Court's modern campaign finance doctrine and that they have 'harmed our political system by leading donors to send their funds elsewhere,' such as super PACs, which can raise unlimited funds but do not coordinate with candidates. In recent years, the Supreme Court has tended to shoot down campaign finance rules as violating the First Amendment.
A recent Supreme Court appeal from Kim Davis, a former county clerk from Kentucky who refused to issue marriage licenses to same-sex couples, has raised concerns from some about the court overturning its decade-old Obergefell decision. Davis is appealing a $100,000 jury verdict – plus $260,000 for attorneys' fees – awarded over her move to defy the Supreme Court's decision and decline to issue the licenses.
Davis has framed her appeal in religious terms, a strategy that often wins on the conservative court. She described Obergefell as a 'mistake' that 'must be corrected.'
'If ever there was a case of exceptional importance, the first individual in the Republic's history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it,' Davis told the justices in her appeal.
Even if there are five justices willing to overturn the decision – and there are plenty of signs there are not – many court watchers believe Davis' appeal is unlikely to be the vehicle for that review.
Ilya Somin, a law professor at George Mason University, wrote recently that there are 'multiple flaws' with Davis' case. People in the private sector – say, a wedding cake baker or a website developer – likely have a First Amendment right to exercise their objections to same-sex marriage. But, Somin wrote, public employees are a very different matter.
'They are not exercising their own rights,' he wrote, 'but the powers of the state.'
Days after returning to the bench in October to begin a new term, the Supreme Court will hear arguments in one of the most significant appeals on its docket. The case centers on Louisiana's fraught congressional districts map and whether the state violated the 14th Amendment when it drew a second majority-Black district. If the court sides with a group of self-described 'non-Black voters,' it could gut a key provision of the Voting Rights Act.
Three years ago, a federal court ruled that Louisiana likely violated the Voting Rights Act by drawing only one majority Black district out of six. When state lawmakers tried to fix that problem by drawing a second majority-minority district, a group of White voters sued. Another court then ruled that the new district was drawn based predominantly on race and thus violated the Constitution.
The court heard oral arguments in the case in March. But rather than issuing a decision, it then took the unusual step in June of holding the case for more arguments. Earlier this month, the court ordered more briefing on the question of whether the creation of a majority-minority district to remedy a possible Voting Rights Act violation is constitutional.
The case has nationwide implications; if the court rules that lawmakers can't fix violations of the Voting Rights Act by drawing new majority-minority districts, it could make it virtually impossible to enforce the landmark 1965 law when it comes to redistricting.
That outcome could effectively overturn a line of Supreme Court precedents dating to its 1986 decision in Thornburg v. Gingles, in which the court ruled that North Carolina had violated the Voting Rights Act by diluting the power of Black voters. Just two years ago, the court ordered officials in Alabama to redraw the state's congressional map, upholding a lower court decision that found the state had violated the statute.
'Some opponents of the Voting Rights Act may urge the court to go further and overturn long-standing precedents, but there's absolutely no reason to go there,' said Michael Li, an expert on redistricting and voting rights and a senior counsel in the Brennan Center's Democracy Program.
The case will not affect the battle raging over redistricting and the effort by Texas Republicans to redraw congressional boundaries to benefit their party. That's because the Supreme Court ruled in a landmark 2019 decision that federal courts cannot review partisan gerrymanders. What's at stake in the Louisiana case, instead, is how far lawmakers may go in considering race when they redraw congressional and state legislative boundaries every decade.
Air Force Staff Sgt. Cameron Beck was killed in 2021 on Whiteman Air Force Base in Missouri when a civilian employee driving a government-issued van turned in front of his motorcycle. When his wife tried to sue the federal government for damages, she was blocked by a 1950 Supreme Court decision that severely limits damages litigation from service members and their families.
The pending appeal from Beck's family, which the court will review behind closed doors next month, will give the justices another opportunity to reconsider that widely criticized precedent. The so-called Feres Doctrine generally prohibits service members from suing the government for injuries that arose 'incident to service.'
The idea is that members of the military can't sue the government for injuries that occur during wartime or training. But critics say the upshot is that service members have been barred from filing routine tort claims – including for traffic accidents involving government vehicles – that anyone else could file.
'This court should overrule Feres,' Justice Clarence Thomas, a stalwart conservative, wrote earlier this year in a similar case the court declined to hear. 'It has been almost universally condemned by judges and scholars.'
Thomas is correct that criticism of the opinion has bridged ideologies. The Constitutional Accountability Center, a liberal group, authored a brief in the Beck case arguing that the 'sweeping bar to recovery for servicemembers' adopted by the Feres decision 'is at odds' with what Congress intended.
But the federal government, regardless of which party controls the White House, has long rejected those arguments. The Justice Department urged the Supreme Court to reject Beck's case, noting that Feres has 'been the law for more than 70 years, and has been repeatedly reaffirmed by this court.'
Prominent religious groups are taking aim at a 25-year-old Supreme Court precedent that barred prayer from being broadcast over the public address system before varsity football games at a Texas high school.
In that 6-3 decision, the court ruled that a policy permitting the student-led prayer violated the Establishment Clause, a part of the First Amendment that blocks the government from establishing a state religion. But the court's makeup and views on religion have shifted substantially since then, with a series of significant rulings that thinned the wall that once separated church from state.
When the justices meet in late September to decide whether to grant new appeals, they will weigh a request to overturn that earlier decision, Santa Fe Independent School District v. Doe. The new case involves a Christian school in Florida that was forbidden by the state athletic association from broadcasting the prayer ahead of a championship game with another religious school.
The Supreme Court should overrule Santa Fe 'as out of step with its more recent government-speech precedent,' the school's attorneys told the high court in its appeal.
'Santa Fe,' they said, 'was dubious from the outset.'
It is an argument that may find purchase with the court's conservatives, who have increasingly framed state policies that exclude religious actors as discriminatory. In 2022, the high court reinstated a football coach, Joseph Kennedy, who lost his job at a public high school after praying at the 50-yard line after games. Those prayers, conservative Justice Neil Gorsuch wrote for the court at the time, amounted to 'a brief, quiet, personal religious observance.'
Kennedy submitted a brief in the new case urging the Supreme Court to take up the appeal – and to now let pregame prayers reverberate through the stadium.
The school, Kennedy's lawyers wrote, 'has a longstanding tradition of, and deeply held belief in, opening games with a prayer over the stadium loudspeaker.'