Amidst Trump's chaos, SCOTUS conservatives are still moving their agenda

An important argument sitting starts Monday. Also: The latest on trans-related litigation. And, for paid subscribers: Closing my tabs.

Beginning Monday, the U.S. Supreme Court is starting its last regular argument sitting of the term (aside from the added May 15 argument related to the litigation over President Donald Trump’s executive order to end birthright citizenship).

The arguments — and the added May 15 argument, for that matter — are a good reminder of the nature of the current court — ever seeking to push the law rightward, regardless of the existence of the Trump administration.

Trump’s ongoing lawless actions force the court to spend time and energy on cases that are not where they want to be spending their time. At the same time, those actions and the cases that follow also force the media and public to spend their time and energy on those matters.

The upcoming argument sitting, just six days of arguments, shows how important it remains to pay attention to the court itself for the cases being pushed to it and that it is choosing to take — and the far-right movement the conservative majority is seeking to make in the law.

On Monday, the court will be hearing arguments over the Affordable Care Act’s preventative care coverage requirement and the task force empowered to make recommendations that form the basis for determining what preventative care is covered. This is a case backed by Jonathan Mitchell — the former solicitor general of Texas who was behind Texas’s S.B. 8 vigilante enforcement anti-abortion law. Originally aimed at ending cost-free coverage for PrEP, the HIV-prevention drug, and certain contraceptive care due to religious opposition to the coverage by the plaintiff employers, it has since morphed into a case that would throw out coverage protection for all of the task force’s recommended coverage — including many cancer screenings. The position is so extreme that the Trump administration did not switch sides in the case after the Biden administration had sought review of a ruling from the U.S. Court of Appeals for the Fifth Circuit that upheld much of U.S. District Judge Reed O’Connor’s ruling. The Justice Department will be defending the ACA provision on Monday.

On Tuesday, the court is hearing a case over parents’ claimed Free Exercise rights to information about schools’ “instruction on gender and sexuality against their parents’ religious convictions.” The parents are represented in the case by the Becket Fund for Religious Liberty, and the Justice Department under the Trump administration is arguing on the parents’ side. The school board, discussing the court’s “coercion” test for determining free exercise violations, noted that “this Court has never held that parents who choose to send their children to public school are … coerced by virtue of their children’s exposure in the classroom to curricular content that the parents find objectionable on religious grounds,” and warning that doing so here would “leave public education in shreds.“

Then, the court on April 30 is hearing arguments over the Oklahoma Charter School Board’s desire to approve an explicitly religious school as a taxpayer-funded charter school. The board acted over the objection of Republican Attorney General Gentner Drummond, who won in a challenge to the board’s decision at the Oklahoma Supreme Court. But, on January 24, the U.S. Supreme Court took up the case — an alarming sign that the court is interested in holding that the U.S. Constitution bars blocking religious schools from being publicly funded as charter schools. The charter school board is represented by Alliance Defending Freedom, the far-right Christian legal advocacy organization. The Justice Department is backing the charter school board’s position, and Solicitor General John Sauer will be arguing.

And those are just the cases seeking to move the law — and the country — to the right on religious grounds.

Other cases in this coming sitting could obliterate the ability of states to confront the climate crisis, set a high bar for challenging schools’ response to students’ requests for disability accommodations, limit lawsuits against governments for alleged wrongdoing, and make class certification more difficult in class-action lawsuits.

In short, while the moment makes it easy to focus on Trump — and difficult to focus on anything else — do not lose sight of the Supreme Court and the 6-3 conservative majority’s ever-present interest in moving the law and our lives further right.

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Trans lives in the courts

Although the anti-transgender forces across the Atlantic celebrated the April 16 ruling from the United Kingdom’s Supreme Court that the word “sex” in the 2010 Equality Act there solely refers to “biological sex,” that does not end the matter — not even there, as the question of what the ruling means and how it will be implemented in light of ongoing protections against discrimination for transgender people in the U.K. is still being addressed.

On top of that, the anti-transgender motivations of those in America have repeatedly figured into decisions here siding with challenges to the Trump administration’s anti-trans policies. This past week, one federal court found that the administration’s anti-trans passport policy is likely unconstitutional …

… while a federal appeals court refused to allow the administration to implement its anti-trans military policy while it appeals a loss below.

All of this comes as the U.S. Supreme Court still has a case before it pending, U.S. v. Skrmetti, over Tennessee’s law banning gender-affirming hormone therapy and puberty blockers for trans minors.

The outcome of that case could have a significant effect on many of the challenges to anti-trans Trump administration policies, as well as state and local policies.

The high court heard arguments in December, and a primary issue before the justices that day was whether the law should be examined by courts as a type of sex discrimination. If so, courts apply additional scrutiny. The appeals court in the case found that the law did not classify based on sex, so applied rational basis — the lowest form of scrutiny.

If the Supreme Court decides that heightened scrutiny applies — in fitting with the court’s 2020 decision that the definition of sex discrimination in Title VII of the Civil Rights Act of 1964 includes gender identity and sexual orientation discrimination — then it is more likely that courts in America will find anti-trans policies unconstitutional.

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Closing my tabs

This Sunday, these are the tabs I am closing: