Access To Justice Cases To Watch This Term

By Marco Poggio | September 22, 2023, 8:35 PM EDT ·

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In the upcoming term, the U.S. Supreme Court is expected to hear cases tackling issues important to everyday Americans, from gun rights to free speech. Many potentially consequential cases have yet to be docketed. (Jonathan Hayter | Law360)

In the term beginning next week, the U.S. Supreme Court is expected to return to some of the most hot-button issues concerning civil rights: guns, free speech, racial discrimination and potentially more.

Although the court has so far agreed to hear fewer cases in the upcoming term than it has up to the same time in previous years, it is expected to docket several more that will likely be consequential to Americans, experts say.

In a recent call with Law360, American Civil Liberties Union legal director David Cole characterized some of the cases before the justices as "challenges to the administrative state" because they focus on the power of the government to regulate free speech and gun possession and to approve medications.

During a press briefing this week, Cole said that the court, with its six Republican-nominated appointees and three Democratic-nominated appointees, saw fewer divides along partisan lines last term than in the past, including on highly controversial issues.

"This term will give us … more evidence to try to assess what kind of court this is," Cole said during the briefing.

Here, Law360 looks at the biggest civil rights cases before the court as the term prepares to kick off, plus more that might be added to the term's calendar.

Gun Rights and Domestic Violence

United States v. Rahimi

Argument date: Nov. 7, 2023
Docket number: 22-915
Total amicus briefs filed: 45

In United States v. Rahimi, the court will rule on whether the federal statute prohibiting people subjected to domestic violence restraining orders from possessing firearms — Section 922(g)(8), Title 18 of the U.S. Code — violates the Second Amendment.

It is the first gun rights case to reach the Supreme Court after last year's landmark decision in New York State Rifle & Pistol Association Inc. v. Bruen , which struck down New York's gun licensing law and expanded the right to possess arms outside the home.

Zackey Rahimi, the Texas man at the center of this case, was found with a handgun and a rifle in his room while he was under a restraining order for knocking his girlfriend to the ground during a fight in a parking lot. He argues that Section 922(g)(8) infringes his constitutional right to have weapons. In February, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit agreed with Rahimi.

Legal experts say the case is highly consequential for two reasons. The first is that the ability of the government to prevent domestic abusers from accessing guns is of great importance to society.

According to data collected by the U.S. government, an average of 70 women are shot and killed by an intimate partner every month. Data also shows that the presence of a gun in a house with a domestic abuser increases the risk of homicide sixfold.

The second reason is that in Rahimi, the high court will have its first opportunity to clarify how the Bruen ruling, which struck down New York's gun licensing law, can be applied to other forms of government restrictions on gun possession.

"There could be massive policy implications if the Supreme Court were to agree with the Fifth Circuit that this is unconstitutional," Eric Ruben, a professor at Southern Methodist University's Dedman School of Law and one of the country's leading scholars on Second Amendment issues, told Law360. "It's really significant in terms of the upshot for this specific policy area. But it's also an important case because there's been so much confusion after Bruen came down."

In Bruen, the Supreme Court wiped out a two-part "means-end scrutiny" test that courts around the country have used for at least 15 years requiring the government to show that restrictions on gun possession were needed to advance compelling interests, for instance, safety, to determine whether they were constitutional.

In its place, the justices ordered courts to apply a "historical traditions" test to determine whether a government restriction on gun rights is compatible with firearm regulations around the time the Second and Fourteenth amendments were ratified in 1791 and 1868, but provided no detailed guidance on how that test should work in scrutinizing the laws of a much-changed nation.

Since the Bruen ruling came down in June 2022, lower courts have disagreed on how to calibrate the historical traditions test, which has yielded conflicting decisions in a wide array of cases, including over restrictions on gun possession by users of controlled substances, the acquisition of new guns by people charged with felonies, bans on assault rifles and high-capacity magazines, firearms without a serial number, and laws restricting convicted felons from possessing guns.

The Rahimi case gives the justices an opportunity to lay down another piece in the post-Bruen puzzle, but more importantly, it allows them to clarify, refine and further flesh out the historical framework test that has sown confusion among the lower courts.

Racial Gerrymandering

Alexander v. South Carolina NAACP

Argument date: Oct. 11, 2023
Docket number: 22-807
Total amicus briefs filed: 16

The justices are also set to consider a case over a South Carolina congressional map that assigned Black voters to districts based on their race, and which a federal court found to be unconstitutional.

Unlike the voting rights case the Supreme Court decided in June, Allen v. Milligan , which dealt with the Voting Rights Act, the plaintiffs here argued the map amounts to racial gerrymandering that violates the Equal Protection Clause of the Fourteenth Amendment, as well as the Fifteenth Amendment, which prohibits denying voting rights to people on account of their race.

After an eight-day trial in October 2022, a unanimous three-judge panel in the U.S. District Court for the District of South Carolina ruled that the map was an "unconstitutional racial gerrymander" because it "bleached" the vote of Black residents by assigning voters in the coastal area near Charleston, which is home to a large Black population, to other districts. The panel ordered state lawmakers to draw a new map.

On May 15, the Supreme Court agreed to hear the case.

Sophia Lin Lakin of the ACLU Voting Rights Project, which brought the case alongside the NAACP Legal Defense Fund and attorneys with Arnold & Porter, said the gerrymandered map would limit the ability of Black voters to elect representatives who can advocate on issues that impact their lives.

"The racial discrimination issue in this case, as with all redistricting cases, has a significant impact on the lives of Black South Carolinians," she said.

She noted that the map had already been used during last year's midterm elections.

"They shouldn't have to endure that yet again in another election," she said.

In its ruling in October, the federal court found that the state drew the challenged district's boundaries in a way that would ensure that the Black voting-age population did not exceed 17% of the total population. In agreeing with the plaintiffs' claims, the court said that 30,000 Black voters were "exiled" out of the district for partisan gain, in this case to ensure that the district would tilt to the Republican Party.

Lin said the case, Alexander v. South Carolina NAACP, involves the application of the Supreme Court's 2017 decision in Cooper v. Harris , which held that race cannot be used as a proxy for political behavior. The high court had already prohibited the use of racial proxies in previous cases, including Miller v. Johnson in 1995 and Bush v. Vera in 1996, she said.

While Lin Lakin said a ruling in the case will have implications for similar cases playing out in other states, other experts said they doubt it will be highly consequential. And given the strong correlation between race and party alignments in states like South Carolina, where Black voters strongly favor Democrats, they also questioned whether the case is truly only about race.

E. Mark Braden, a BakerHostetler attorney who represents legislatures mostly in states controlled by Republicans, said the high court's ruling will likely be limited to South Carolina and will not create new law around the use of race in redistricting.

"The law on racial gerrymandering, and how it fits, is a little bit cloudy these days, to say the least," Braden told Law360. "They knew this was a partisan gerrymandering case, so they concocted this racial gerrymandering. And I can't imagine the court is not going to see through that pretty simply."

But Kareem Crayton, a staff attorney at the Brennan Center for Justice and an expert on the intersection of law, politics and race, pointed to the unanimous lower court decision in the case as a sign that the racial gerrymandering argument was compelling.

"They convinced three judges that despite the partisan aspects of this case — there are always partisan aspects of every case — that they could show that race drove decisions," Crayton said.

John Cusick, one of the NAACP Legal Defense Fund attorneys arguing the case, told Law360 that South Carolina lawmakers reassigned thousands of Black voters predominantly based on their race "without a compelling interest" and said that the evidence the district court looked at shows it.

"This map is racially discriminatory and was engineered to split Black communities to suppress Black voting power," he said. "This case, to be clear, is a textbook racial gerrymandering."

Counsel representing the state did not reply to requests for comment.

Speech on Social Media Platforms

O'Connor-Ratcliff v. Garnier

Petition for writ of certiorari: Oct. 4, 2022
Docket number: 22-324
Total amicus briefs filed: 14

Lindke v. Freed

Petition for writ of certiorari: Dec. 29, 2022
Docket number: 22-611
Total amicus briefs filed: 14

NetChoice v. Moody

Conditional cross-petition for writ of certiorari: Oct. 24, 2022
Docket number: 22-393
Total amicus briefs filed: 7

NetChoice v. Paxton

Petition for writ of certiorari: Dec. 15, 2022
Docket number: 22-555
Total amicus briefs filed: 1

Legal experts say the upcoming term could be consequential in shaping the law around free speech on social media platforms as two sets of cases that are currently not on the Supreme Court docket might be granted review in the coming weeks.

O'Connor-Ratcliff v. Garnier and Lindke v. Freed center on the actions of local elected officials who blocked individual constituents from their social media.

Evelyn Danforth-Scott, a staff attorney at the ACLU, said that at their heart, the O'Connor-Ratcliff and Lindke cases deal with whether public officials are subject to the First Amendment prohibitions on government censorship when they shut down speech they don't like — something private individuals have a right to do.

"Everyone agrees that the local government officials in these cases are obviously government officials, but they also are private individuals with their own private lives, and in their private capacities, they are entitled to First Amendment freedoms just like the rest of us," she said. "This is really a case about how we distinguish between public officials' public and private capacities in the digital space."

In the first case, parents in Poway, California, sued two members of the local school district's board of trustees after being blocked on the trustees' Facebook and Twitter accounts. The U.S. Court of Appeals for the Ninth Circuit ruled that although the board members used their personal accounts to communicate with the public about their jobs and the school district, they acted in their official capacity and could not, therefore, block the parents from posting on their accounts. The board members, Michelle O'Connor-Ratcliff and T.J. Zane, petitioned the Supreme Court in October last year.

In the second case, the city manager of Port Huron, Michigan, denied a resident of the city access to his Facebook page after receiving critical comments concerning the local government's response to the COVID-19 pandemic. A district court ruled that the city manager, James R. Freed, was not acting in his official capacity and had a right to exclude people from his account. The Sixth Circuit agreed with him. The resident, Kevin Lindke, took the fight to the Supreme Court in December 2022.

The cases echo one that played out during the Trump administration. In July 2017, the Knight First Amendment Institute sued then-President Donald Trump, accusing him of violating the free speech rights of Twitter users whom he had blocked from interacting with his account.

A New York district court judge found that Trump's Twitter account was ​​"a presidential account as opposed to a personal account" and that blocking users violated their constitutional rights to speak in a public forum. The U.S. Court of Appeals for the Second Circuit upheld that ruling in 2019. The Supreme Court never ruled on the free speech issue at the center of the case, however. By the time the litigation reached the justices, Trump had been banned from Twitter, making the case moot.

Two other cases involving the First Amendment, NetChoice v. Paxton and NetChoice v. Moody, center on the power of the government to regulate social media platforms' content moderation.

The claims were brought by a consortium of social media platforms against state laws in Texas and Florida that legislators there passed to fight what they perceived as anti-conservative bias on major social media platforms.

NetChoice v. Moody targets Florida's S.B. 7072, which created penalties for social media sites that exercise editorial discretion. Florida Gov. Ron DeSantis said the law was designed to tackle what Republicans perceived as anti-conservative bias in the platform's editorial choices. In May last year, the U.S. Court of Appeals for the Eleventh Circuit struck most of the law's provisions as violations of the First Amendment. But in September last year, in NetChoice v. Paxton, the Fifth Circuit upheld the constitutionality of a similar law in Texas, H.B. 20.

The Supreme Court has yet to grant review in either case yet, but legal experts expect that might happen as soon as next week.

Clark Neily, a senior vice president for legal studies at Cato Institute, a libertarian think tank, said the circuit split is in itself a reason for the justices to weigh in.

"It's as close to a certainty as I think we can get that the Supreme Court will accept those cases, to resolve that disagreement," he said.

Overall, Neily said, the NetChoice matter raises an important question involving the First Amendment as well as property rights: whether, once a social media company gets big enough, it becomes a regulated utility where the government gets to have more control over its editorial content than it would otherwise.

"Hopefully, the court will find that the answer is no. But we need to find out," Neily said.

Transgender Rights

A.C. v. Fred Kutruff et al.

No certiorari petition filed yet

Lower court rulings:
U.S. Court of Appeals for the Seventh Circuit. Docket numbers: 22-1786 and 22-2318
U.S. District Court for the Southern District of Indiana. Docket number: 1:21-cv-02965
U.S. District Court for the Southern District of Indiana. Docket number: 2:21-cv-00415

Dylan Brandt et al. v. Leslie Rutledge et al.

No certiorari petition filed yet

Lower court rulings:
U.S. Court of Appeals for the Eighth Circuit. Docket number: 21-2875
U.S. District Court for the Eastern District of Arkansas. Docket number: 4:21-cv-00450

Paul Eknes-Tucker et al. v. Governor of the State of Alabama

No certiorari petition filed yet

Lower court rulings:
U.S. Court of Appeals for the Eleventh Circuit. Docket number: 22-11707
U.S. District Court for the Middle District of Alabama. Docket number: 2:22-cv-00184

Two legal issues impacting transgender people that will likely reach the Supreme Court involve restroom use at schools and gender-affirming health care for adolescents, experts say.

Claims brought by transgender students who have been excluded from restrooms in accordance with their gender identity have already been litigated in federal courts. One case, Grimm v. Gloucester County School Board , involving a trans child who was banned from using the boys' bathroom at his school, was remanded to the lower courts shortly before it was slated to be heard by the Supreme Court in 2017. That occurred after the Trump administration rescinded guidance that said discriminatory restroom policies like the one in Gavin Grimm's high school violate Title IX and the Constitution.

Circuit courts are split on the issue. The U.S. Court of Appeals for the Eleventh Circuit has found those policies constitutional; the Fourth and Seventh circuits have ruled in the opposite way.

Most recently, on Aug. 1, in A.C. v. Fred Kutruff, the Seventh Circuit upheld its own precedent finding that two school districts in Indiana violated federal law and the Constitution when they prohibited three transgender boys from using the bathroom they felt aligned with their identity.

"Litigation over transgender rights is occurring all over the country, and we assume that at some point the Supreme Court will step in with more guidance than it has furnished so far," the three-judge panel noted in the order.

The school districts have until the end of October to petition the Supreme Court.

Chase Strangio, the deputy director for transgender justice at the ACLU, said a centerpiece of the litigation playing out in the Seventh Circuit is whether the landmark 2020 ruling in Bostock v. Clayton County , which found that Title VII prohibits an employer from discriminating against an individual on the basis of sexual orientation, also extends to Title IX, which prohibits sex-based discrimination in federally funded schools.

"That will, I think, be a main feature of all of the cases going up," Strangio said.

Possible high court-bound cases are also developing in both federal and state courts over gender-affirmative health care, various forms of which are currently banned in 22 states. A circuit rift has emerged on this issue too.

In a win for transgender rights activists in August 2022, the Eighth Circuit prevented an Arkansas law, H.B. 1570, that categorically banned gender-affirming care for minors, the first of its kind in the nation, from going into effect. The court then denied rehearing en banc, and the U.S. District Court for the Eastern District of Arkansas permanently struck it down.

But on Aug. 21 of this year, a three-judge panel of the Eleventh Circuit reversed a federal district court's decision that blocked an Alabama law, S.B. 184, banning medical care for transgender adolescents, finding that such a ban was constitutional.

"We're talking about a context right now where almost half the country in a matter of months took away health care that hundreds — thousands really — of trans young people were relying on," Strangio said. "This is a national crisis for our communities."

--Editing by Jill Coffey.

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