On June 27, the United States Supreme Court issued its final opinions of the 2024-25 term, which included major decisions on issues such as TikTok [TikTok v. Garland], states’ ability to ban transition care for transgender minors [United States v. Skrmetti], age verification requirements for adult websites [Free Speech Coalition v. Paxton], religious liberty [Oklahoma Statewide Charter School Board v. Drummond and Mahmoud v. Taylor], and an emergency procedural question arising from U.S. President Donald Trump’s executive order on birthright citizenship [Trump v. CASA]. Below, faculty offer their thoughts on some of the most important cases — and how they could impact the law and society.
Faculty opinions
Richard J. Lazarus ’79, Charles Stebbins Fairchild Professor of Law
Following Donald Trump’s election last November, the biggest issue looming over the Supreme Court’s term immediately became how the Supreme Court would respond to the new president’s anticipated excesses, especially his willingness to ignore established facts and push the boundaries of settled law. What then happened, however, was orders of magnitude more extreme as well as more challenging for the Court.
Upon inauguration, the new president made clear his unqualified willingness the second time around to ignore not just the facts but also long settled law. By ordering without even the pretense of due process the deportation of hundreds of thousands of immigrants who did not possess the necessary authorization to be lawfully in the country, no matter how long they had settled successfully across the nation and become respected members of their communities. By firing tens of thousands of federal employees absent any remote effort to comply with their established job protections. By freezing congressionally appropriated funds required for the operation of entire federal agencies, hundreds of their programs, and thousands of federal grantees, thereby effectively terminating them all. And, in obvious violation of the First Amendment, by targeting the nation’s leading law firms and universities for enormous punishment for undertaking any actions that the president opposed.
The question became: would the Court stand up to the president? The stakes were raised even higher for the federal judiciary itself when the president and his closest advisors directed their wrath to any federal judge who ruled against them. By launching personal insults, decrying their incompetence and stupidity, characterizing their opinions as nothing more than the work of partisan, political hacks, calling for their impeachment, and even questioning the need to comply with lower court orders. All actions that made individual judges and their families the targets of unprecedently high numbers of death threats, which prompted the chief justice to make clear his alarm but without assigning any specific blame.
As underscored by the Court’s ruling last week in the birthright citizenship case, Trump v. CASA, the majority’s chosen response has largely been to stand aside rather than stand up to the president. With a few exceptions, a majority of the justices has decided to treat the current president, notwithstanding his obvious abnormalities, extreme behavior, and lawless actions, as they would a normal president. With few exceptions, they have declined to stop the presidential actions — most often on the emergency docket relating to lower courts stays and injunctions of his actions — by ruling that the president is entitled to all the deference, good faith assumptions, and presumptions of regularity to which the holder of that office is normally due. Notwithstanding all the mounting evidence that this particular president is owed none. It is, to say the least, a disappointing result.
One can still hope that once the Court ultimately reaches the merits of these legally indefensible presidential actions, a majority of the justices will rule repeatedly against the President and call out the lawlessness of his actions in deservedly harsh terms. But, even if so, much irreparable damage will happen in the meantime to the nation, and potentially the world, due to the Court’s failure to account for the distinct threats posed by President Trump.
Gerald L. Neuman ’80, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law
The 2024 term was marked by the Supreme Court majority’s acquiescence in the executive destruction of institutions and programs, and its own active curtailment of the remedial authority of the federal courts. The adoption of a revisionist theory of the power to issue injunctions may be the most significant holding of the term.
Timothy Edgar ’97, Lecturer on Law
The Supreme Court joined the larger backlash against the unregulated internet this term, with lasting implications for free expression. In two cases, the justices gave short shrift to First Amendment arguments when considering laws that ban or restrict access to major platforms used by tens of millions of Americans. Unfortunately, it also failed to consider less-restrictive alternatives that cybersecurity and privacy technology offer to address potential harms.
The first case, TikTok v. Garland, addressed whether Congress could force the sale of one of the world’s most popular social media platforms. If a buyer could not be found, access for users in the United States would be shut down. The Supreme Court upheld the ban, deferring to Congress’s findings of potential Chinese government influence over the Beijing-based company.
By ruling against TikTok, the Court disregarded the free speech rights of the 170 million Americans who use the platform regularly. It also ignored steps that TikTok had taken to protect the privacy of Americans through “Project Texas,” in which personal data is stored in U.S.-based servers provided by Oracle, subject to a legally binding agreement offering significant security and privacy guarantees. Strikingly, the decision was a unanimous one, meaning that justices of all stripes believed that the threat of foreign influence justified erecting the kind of firewall around the United States that has previously been used mainly by authoritarian regimes, including China.
TikTok’s continued operation now hangs by a thread; it depends on the continued grace of President Trump, who has controversially chosen not to enforce the law. One option being considered is a beefed-up version of Project Texas. With the right mix of technical, administrative and physical safeguards, such a solution could offer a model for enhanced cybersecurity that would address not only the privacy risks posed by TikTok but those of other platforms, both foreign and U.S.-based.
The second case, Free Speech Coalition v. Paxton, upheld a Texas law requiring age verification to access porn sites. Applying a less-demanding standard than it had done when considering similar laws in the 1990s and early 2000s, six justices agreed that requiring adults to upload photo identification or transactional documents to obtain sexual material they had a right to obtain was no more than a minor hurdle. Of course, the many, many Americans who are regular visitors to porn sites are likely to balk at providing such sensitive personal information for fear it could be sold, leaked, or hacked.
Again, the decision is striking for the sheer volume of constitutionally-protected expression it is likely to chill. Sexually explicit websites are among the most-visited sites on the internet; both Pornhub and Xvideos rank well above TikTok in monthly unique visitors in the United States. Anonymous credentials offer a solution to the privacy dilemma. Using a cryptographic protocol based on zero-knowledge proofs — the ability to prove an attribute (like age) without revealing additional information (like name, address or date of birth) — adults could continue to access sexually explicit or other age-restricted material anonymously, and with greater security.
Clearly, the Supreme Court this term has become more sensitive to what it sees as the dangers of our freewheeling internet, even at the cost of chilling a great deal of free expression. This shift risks making the internet permanently less free and more controlled. The justices were wrong to ignore the less-restrictive alternatives that cybersecurity and privacy-enhancing technologies provide. If the open internet is to survive, courts and lawmakers should do better.
Carmel Shachar J.D./M.P.H. ’10, Assistant Clinical Professor of Law and Faculty Director, Health Law and Policy Clinic
I think the overall theme of the Court’s health law jurisprudence this term was moving control away from patients, their families, and providers and into the hands of state and federal officials. First announced was Skrmetti, in which the Court upheld Tennessee’s ban on gender affirming care for minors. This case allows states to get into the business of deciding what medical care patients and providers can and can’t access. Then we had Medina, in which the Court concluded that Medicaid patients do not have a right to choose a specific provider (in this case Planned Parenthood, which provides a significant amount of the reproductive and sexual health care in this country). Lastly, we had Braidwood, in which the Court preserved the ACA’s no-cost preventive care mandate, which will help patients access the preventive care services they need, like cancer screenings. But the Court did so in a way that at minimum clarifies and potentially expands the secretary of Health and Human Service’s control over the advisory group that evaluates preventive care services. These three cases read together suggest that the balance between patients and providers on one hand engaging in private medical decision-making and federal and state policymakers on the other hand determining what medical care is permissible is shifting in this country.
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