The presidential election could change SCOTUS in the long term — but also in this coming term

Also: An update on the challenge to the Tennessee anti-drag law. And, for paid subscribers: Closing my tabs.

The focus on the U.S. Supreme Court in the presidential election thus far has been the potential appointment of justices, the fallout from the decision overturning Roe v. Wade, and ethics and other court reforms.

Those are big-picture — and, in some instances, hypothetical — discussions, as important as they are. Less discussed has been the more immediate effects on the cases before the justices right now and in the coming months. A change in administrations can upend — or even end — cases before the court.

The U.S. Supreme Court has thus far agreed to hear 28 cases in the new term that begins on October 7 — six more than last year at this time. One of the many questions that remains is whether all of the cases granted thus far, including the challenge to Tennessee’s ban on gender-affirming medical care for minors, will be heard during the Biden administration.

Beyond that, the justices are only scheduled to hear 10 cases before Election Day and two on Election Day. Only one other case is scheduled for argument after Election Day during that week.

In other words, it is likely that 16 (or 15) of the arguments in cases already granted will not be heard before we know whether Vice President Kamala Harris or former President Donald Trump will be taking over for President Joe Biden in January — a factor that certainly could change questions at arguments or even whether the justices hold a case until a new administration begins.

This could get very significant very quickly. The court’s control of its docket also means control over when cases are scheduled for argument. In addition to the dozen cases to be heard by Election Day, only four other cases cases have been scheduled for argument.

As such, a dozen cases that the court has granted for review have not yet been scheduled for argument. There are nine argument days on the calendar before January 20, 2025 with no cases yet assigned to them — easily sufficient to schedule those dozen cases before the Biden administration comes to a close.

Despite that, though, the court could hold off scheduling at least some of those cases for argument. Notably, the federal government is a party in eight of the 12 unscheduled cases — a factor that could lead the court to want to schedule some of the cases later in the term beyond January 20, 2025.

The biggest question mark surrounds U.S. v. Skrmetti, the challenge to Tennessee’s ban on gender-affirming medical care for minors. Although there are private plaintiffs in the case opposing the law as well, represented by the ACLU, the court granted the Biden administration’s petition for review. As such, a Trump win could — at the least — lead to efforts from a Trump administration Justice Department to get the court to dismiss the case and let the anti-trans law stand.

Now, that wouldn’t necessarily work due to the fact that the private challengers are opposing the law, as a party, before the Supreme Court. Further, it wouldn’t end the case because the court has not yet taken any action on those private plaintiffs’ request for Supreme Court review. But, if nothing else, it could put off consideration of the case further — potentially even until the next term.

Similar actions could happen in other cases — even some already set for argument, like Garland v. VanDerStok, over the Biden administration’s ghost gun rule — with a new Trump administration filing notices that the United States is taking a new position and, as such, the court should either call for supplemental briefing and arguments or outright dismiss the case.

Of course, a Harris administration also could take different positions in certain cases than the Biden administration did, but that would likely be rare.

This can and does happen in a few cases when the administration changes parties — like happened with two immigration cases at the start of the Biden administration — but it could be more common in a second Trump administration and has not gotten the attention that other Supreme Court issues have gotten during the election season.

Additionally, don’t forget that this isn’t all. The Supreme Court will grant more cases between now and the election, a good number of which likely will include the federal government as a party.

The court will be considering hundreds of petitions for review at its “long conference” on September 30, when the justices look at all of the petitions that came in over the summer and are fully briefed. The justices’ final conference before the summer recess took place June 20, so all of the petitions finalized since then — and all of the petitions left unresolved at that conference — will be considered at the long conference.

Many of them will almost surely be relisted to be considered again at a later conference, but there likely will be a number of grants coming out of that conference — as well as hundreds of cases where certiorari will be denied.

There also will be more petitions that come in — as happened last week in a key case over the Affordable Care Act’s preventative care coverage guarantees — and any cases granted by mid-January (and on a normal timeline for review) would be heard this term. There also will be election cases and other shadow docket cases that might find their way quickly transferred to the argument calendar or even the main docket.

Ultimately — and sorry to sound like a broken record — this is yet another reminder of this contingent moment.

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Appeals court won’t rehear Tennessee drag challenge

The challenge to Tennessee’s anti-drag law is headed to the U.S. Supreme Court.

On September 20, the U.S. Court of Appeals for the Sixth Circuit issued an order denying en banc review by the full court of an earlier three-judge panel’s decision in the challenge. The three-judge panel held that the group challenging the law, Friends of George’s lacked standing to bring the lawsuit.

According to the order, no judge even asked for a vote on whether to rehear the case.

A lawyer for Friends of George’s tells Law Dork that they will be seeking review by the Supreme Court.

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Closing my tabs

This Sunday, here are the tabs I’m closing: