Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
Supremes out for Summer.
Alice Cooper’s got nothing on the Supreme Court. The Court usually recesses after the last week in June for the Summer – at least until the first Monday in October. During that last week in June, the Court usually issues important decisions on pending cases. This year was no different. Here are some of the big “hits”.
In Trump v. Casa, Inc., the Court was asked to review the President’s Executive Order that identified circumstances in which a person born in the United States is not “subject to the jurisdiction thereof” and is thus not recognized as an American citizen- so called birthright citizenship. The plaintiffs alleged that the Executive Order violated the Fourteenth Amendment’s Citizenship Clause and the Nationality Act of 1940. In each case, the District Court entered a “universal injunction”— barring executive officials from applying the Executive Order to anyone, not just the plaintiffs. The Court dealt with the propriety of these nationwide injunctions rather than the citizenship issue. For a prescient discussion of the issue, see the brilliant MyRye.com article Holding Court: Nationwide Injunctions – MyRye.com.
The Court held that Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court granted the Government’s applications for a partial stay of the injunctions, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. In other words (English for non-lawyers), the Court would entertain requests for injunctions relating to the parties to the case, but not beyond that. This may lead to more people suing so as to be parties to a case or the expanded use of class actions.
In Free Speech Coalition, Inc. v. Paxton, Texas prohibited distributing sexually explicit content to children. In 2023, Texas enacted a law requiring certain websites publishing sexually explicit content that is obscene to minors to verify that visitors are 18 or older. Representatives of the pornography industry (how does that look on your resume?) sued claiming that adults have a right to access porn as part of free speech, and that the Texas law impermissibly hinders that right.
The Supreme Court held the Texas law survives review under intermediate scrutiny because it only incidentally burdens the protected speech of adults. While history, tradition, and precedent establish that sexual content that is obscene to minors but not to adults is protected in part and unprotected in part. States may prevent minors from accessing such content, but may not prevent adults from doing the same. The First Amendment leaves undisturbed States’ traditional power to prevent minors from accessing speech that is obscene from the minor’s perspective. This includes the power to require proof of age before an individual can access such speech. No person—adult or child—has a First Amendment right to access obscene-to-minors speech without first submitting proof of age. The power to verify age is part of the power to prevent children from accessing speech that is obscene to them. Adults have the right to access speech obscene only to minors, and submitting to age verification burdens the exercise of that right. But adults have no First Amendment right to avoid age verification. So, just make sure to delete your browsing history!
In Mahmoud v. Taylor, the Court reviewed the Montgomery (MD) County Board of Education rescission of the parental opt out policy. The Board introduced a variety of “LGBTQ+-inclusive” texts into the public school curriculum. Those texts included five “LGBTQ+-inclusive” storybooks approved for students in kindergarten through fifth grade. The story lines focused on sexuality and gender. When parents sought to have their children excused from instruction involving those books, the Board initially permitted children to be excused from the instruction in keeping with the Board’s “Guidelines for Respecting Religious Diversity,” that professed a commitment to making “reasonable accommodations” for the religious “beliefs and practices” of students. Later, the Board said that it “could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment.” The Court held that the Boards rescission of the opt out policy unconstitutionally burdens the parents’ free exercise of Religion because of the “long recognized the rights of parents to direct ‘the religious up bringing’ of their children.”
In Kennedy v. Braidwood Management, Inc., Congress established a Task Force to formulates evidence-based recommendations regarding preventive healthcare services as an entity within the Agency for Healthcare Research and Quality (AHRQ) in the Department of Health and Human Service’s Public Health Service. Plaintiffs argued that Task Force members are principal officers under the Appointments Clause of the Constitution who must be appointed by the President “with the Advice and Consent of the Senate,” not by the Secretary of HHS. The HHS Secretary ratified existing appointments made by the AHRQ Director and began personally appointing Task Force members. The Court held Task Force members are inferior officers whose appointment by the Secretary of HHS is consistent with the Appointments Clause.
Those were the big decisions of June 27.
