LEGAL ISSUES
A Second Trump Administration and a New Supreme Court Term
by Tom Gaylord
The first 2 years of the first Trump administration, from January 2017 to January 2019, was a period in which both houses of Congress were controlled by Republicans. However, even with a Republican in the White House, little was accomplished. In January 2025, we will be in the same situation, with a lot of speculation that things will be different this time around. On the one hand, there is a larger number of MAGA Republicans versus traditional Republicans in the House of Representatives than 8 years ago. On the other hand, it will take only a few Republican members to break ranks to defeat certain legislation. In the Senate, President-elect Trump did not get the new majority leader that he was hoping for in Rick Scott of Florida, but instead a more traditional conservative in John Thune of South Dakota. So, it is possible that there will be more legislative checks in Congress than what some are concerned about.
THE CURRENT AND FUTURE COURT
Of course, the most potent check on a president’s power is often the Supreme Court. The big difference between January 2017 and January 2025 is that the current court consists of three Trump appointees, namely Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. However, even here it could be argued that the most Trump-friendly justices are not among those three, but are rather Justice Samuel Alito and Justice Clarence Thomas. Gorsuch, for one, can often skew to the left on certain issues, including the rights of criminal defendants and the rights of Native Americans. Barrett, for her part, has already charted her own course and wrote an important concurrence in Trump v. United States (603 U.S. 593 [2024]) that would have gone further perhaps than the majority opinion in limiting the official immunity claims that a president could make. Finally, Thomas is the oldest member of the court, at 76, whose seat could go, upon his retirement, to a fourth Trump nominee. That said, a Trump nominee replacing Thomas would likely not move the court any further to the right than it already is, given that Thomas is perhaps the most right-leaning justice on the court now. If that happens, the nominees who have been most signaling a Trump-friendly agenda on the lower courts would probably be Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit or Judge James Ho of the Fifth Circuit.
So, with all of that context, let’s take a look at some of the cases the court will decide this term that might be of interest to readers of Information Today. (Spoiler alert: It ain’t much … yet. But you can follow along in real time at scotusblog.com/case-files/terms/ot2024.)
TWO CASES ON THE DOCKET
To be sure, there are plenty of cases on the Supreme Court’s docket this term (October Term 2024) that could have far-reaching consequences. That said, there are not all that many (as of this writing) that touch on issues such as intellectual property or information policy, be that First Amendment issues or otherwise. The first case, in chronological order by argument date, is Dewberry Group, Inc. v. Dewberry Engineers, Inc., which was scheduled to be argued on Dec. 11, 2024, and came out of the Fourth Circuit. This is a trademark case brought under the Lanham Act. The question presented is, “Whether an award of the ‘defendant’s profits’ under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.” This case has received some attention: There have been six amicus briefs filed, including one by the Solicitor General of the United States. The Solicitor General also moved to argue at oral argument, and the motion was granted. (Three signifiers of a case’s surface relevance are the number of “friend of the court,” or amicus briefs, filed by non-participating parties; whether the court on its own, or sua sponte, asks for the views of the Solicitor General at the petition stage; and whether the Solicitor General seeks to intervene to participate at oral arguments.)
The second is Free Speech Coalition, Inc. v. Paxton, which is scheduled to be argued on Jan. 15, 2025. This is a case that came out of the Fifth Circuit, in which the issue was whether the Court of Appeals erred as a matter of law in applying rational basis review instead of strict scrutiny to a law burdening adults’ access to protected speech. More specifically, in this case, the law at issue is a Texas bill that requires age verification to access commercial pornographic websites. The district court issued an injunction, stopping the law from taking effect. The Fifth Circuit, however, held that the law was constitutional, but only applied rational basis review, whereas strict scrutiny (a much higher hurdle to clear) is usually required when the First Amendment is at issue. Four amicus briefs were filed at the petition stage. Since the grant of certiorari, 13 amicus briefs have been filed at the time of this writing, including one by the United States arguing that the court should vacate the Fifth Circuit’s decision and remand the case to the lower court for application of strict scrutiny review.
THIRD?
And the third is … to be determined. The court has yet to fill out its docket for October Term 2024 as of this writing, but a single intellectual property case and a single First Amendment case would be a pretty sparse portfolio for a full term. It is unlikely to stay that way, however. For one, the court will continue to add cases throughout the term to be heard in the later argument sittings. The court has only, as of this writing, scheduled arguments through January, which means more cases to come for the February, March, and April sittings. Some of those cases are already on the docket but have yet to be added to the argument calendar; others will be granted between writing and publishing this column, and I would put good money on the probability that there are more to come. The other likelihood is that the court will decide cases in these areas, more likely First Amendment than intellectual property ones, via the “shadow docket”—cases that are brought up to the court on an emergency basis and decided without oral argument. These are more likely to be cases affecting individual basic rights, such as those in the Bill of Rights, than economic harms of the sort treated by intellectual property law.
CHECKS AND BALANCES WATCH
Finally, even if all we got were the two cases I described, it is very unlikely that readers of this column are only interested in cases of that ilk. It stands to be an interesting term, both in regard to what the court decides substantively—such as important cases under the Second Amendment, Eighth Amendment, Clean Water Act, and Fourteenth Amendment (including transgender care for minors)—and how it acts (or doesn’t act) as the last check against a second Trump administration that promises to deliver this time around what it failed to do the last time. |
