Weil's 2024 SCOTUS Term In Review

INTRODUCTION

Weil's Appellate & Strategic Counseling group welcomes you to Weil's SCOTUS Term in Review. Here, we summarize and analyze the cases from the 2024 Supreme Court Term that are most germane to our clients' businesses.

Although relatively quiet for business cases, this Term included some high-profile decisions, including a number regarding executive action taken by President Trump in his first few months in office. While the Court has in large part upheld (at least on an interim basis) President Trump's initiatives, there are some notable outliers. And among those cases, one – Trump v. CASA – has significant implications for many cases brought against the government, and potentially for private litigation as well.

Beyond those headline-grabbing cases, the Court released decisions relevant to corporate speech rights, administrative law, and a number of other topics of general business interest. While less politically and legally significant than some of the Court's orders on executive power, these cases nonetheless may have important ramifications for a variety of legal issues.

SEPARATION OF POWERS AND DUE PROCESS

It took little time for President Trump's policies and executive orders to reach the Supreme Court. Several cases concerning the authority of the Executive to deport immigrants and the processes attendant to such deportations drew national attention. Among the most notable:

• In Noem v. Abrego Garcia, the Court issued a curt decision affirming a district court order directing the Administration to "facilitate" the return of Kilmar Armando Abrego Garcia, who had been incorrectly removed to El Salvador and detained there. The Court remanded the case with instructions to the district court to clarify some aspects of the order. Despite some further resistance from the Administration on remand, Abrego Garcia was ultimately returned to the United States.
• In Trump v. J.G.G., the Court held that Venezuelan nationals challenging their detention and impending removal on the basis of alleged affiliation with Tren de Aragua could only challenge their threatened removal in a habeas proceeding, rather than in a civil action brought in Washington, D.C. The Court clarified, however, that such detainees are entitled to judicial review (in an appropriate proceeding) of their detention and removal.
• In A.A.R.P. v. Trump, the Court enforced the right to judicial review discussed in J.G.G. Venezuelan nationals had filed a class habeas proceeding seeking injunctive relief against their imminent removal, arguing in part that they lacked an opportunity for adequate judicial review. After a mad scramble in the lower courts, the Supreme Court enjoined the class members' removal until their due process claims could be adjudicated by the district court.
• In Department of Homeland Security v. D.V.D., the Court stayed a lower court preliminary injunction prohibiting the Administration from removing members of a putative class to a "third country" (i.e., a country with which an immigrant has no connection) without notice and opportunity to be heard. The Court did not offer its reasoning, and three Justices (Sotomayor, Kagan, Jackson, JJ.) dissented.

In a string of other cases, various litigants challenged the Administration's efforts at withdrawing federal funding (Department of State v. AIDS Vaccine Advocacy Coalition; Department of Education v. California) and restructuring administrative agencies (Office of Personnel Management v. American Federation of Government Employees; Trump v. American Federation of Government Employees; McMahon v. New York). Although notable for their immediate effects and political significance, these cases have limited direct relevance for private or commercial litigation.

Two cases from the Court, however, merit special discussion. The first (Trump v. CASA) resolved a longstanding debate about the propriety of universal injunctions against government action, and the second (Trump v. Wilcox) portends the likely end of decades' old precedent that has been the subject of repeated criticism over the years.

Trump v. CASA: Court Puts a Stop to Universal Injunctions

Held: Universal injunctions likely exceed the equitable authority given to federal courts by Congress in the Judiciary Act of 1789 because they are not sufficiently analogous to any of the equitable remedies available at the time of the founding (Barrett, J.).

This case arose in response to President Trump's executive order purporting to end birthright citizenship, No. 14160, Protecting the Meaning and Value of American Citizenship. Several individuals and States challenged the order in various district courts, arguing that it violated the Fourteenth Amendment's Citizenship Clause and the Nationality Act of 1940. After concluding that the order was likely unlawful, the district courts in these cases entered universal injunctions preventing executive officials from enforcing the order against anyone in the country. Those injunctions were uniformly affirmed on appeal. The government sought emergency relief from the Supreme Court. The Court did not pass on the merits of the order purporting to end birthright citizenship; instead, the Court addressed only the propriety of issuing universal relief in the absence of a certified class.

Universal injunctions, sometimes called "nationwide" injunctions, have become a hot legal topic in the last decade. A universal injunction binds the government's conduct toward the entire public rather than to any particular named party. In recent years, district courts have often issued universal injunctions in high-stakes litigation challenging federal statutes or executive actions. This practice has prompted criticism by every recent Administration (Obama, Trump I, Biden, and Trump II) – as well as by several Justices of the Supreme Court – that individual district court judges lack such sweeping power.

In a 6-3 opinion authored by Justice Barrett, the Court held that federal district courts generally lack the power to issue "universal" injunctions. Justice Barrett reached that conclusion by looking to federal courts' equitable jurisdiction. Congress, through the Judiciary Act of 1789, gave the federal courts jurisdiction over all cases "in equity," which encompasses only the remedies traditionally issued by courts of equity at the time of our country's founding. Justice Barrett explained that neither the universal injunction nor any other analogous form of equitable relief was available at that time. Rather, suits and remedies were "party specific" and could not bind nonparties. Federal courts in the early days of the republic frequently declined to extend equitable relief beyond the parties, and universal injunctions did not arise until sometime in the twentieth century. The Court concluded that because the universal injunction has no "founding-era antecedent," Congress did not grant the federal courts jurisdiction to issue such a remedy through the Judiciary Act of 1789. 

The Court clarified, however, that there are some circumstances in which relief that goes beyond the parties to a lawsuit may be justified. First, the Court confirmed that broad injunctive relief may be available to a class certified pursuant to Federal Rule of Civil Procedure 23. Second, the Court acknowledged that injunctive relief may sometimes incidentally benefit non-parties if necessary to provide the named plaintiff with complete relief. In light of the second of these exceptions, the Court remanded to the lower courts to resolve whether nationwide relief was necessary to provide complete relief to New Jersey and the other States.

Justice Thomas, joined by Justice Gorsuch, filed a concurrence, emphasizing that the complete-relief principle "operates as a ceiling" preventing courts from awarding relief beyond what is necessary to redress the plaintiffs' injuries. Justice Alito, joined by Justice Thomas, also filed a concurrence, noting that the Court did not decide whether States have third-party standing to assert the Citizenship Clause claims of their residents, or decide the propriety of class certification for nationwide classes. Justice Alito cautioned that courts still need to adhere to the rigorous procedural requirements for certifying classes under Rule 23. Justice Kavanaugh echoed this point in a separate concurrence, where he also explained why it is critical for the Supreme Court to hear and resolve cases on issues of significant national importance.

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. Justice Sotomayor argued that the executive order is patently unlawful and that a universal injunction enjoining its enforcement in toto is an appropriate remedy in this case. Justice Jackson filed a separate dissent, emphasizing that allowing the Executive branch to enforce unlawful orders against anyone who has not sued for relief threatens the rule of law.

The decision puts to rest a long-running debate about the propriety of universal injunctions. It has broad repercussions for challenges to federal programs, which in recent years have often triggered universal injunctions binding the government's conduct towards numerous non-parties. The decision will likely dramatically affect litigation seeking to strike down executive action in its entirety, as the procedural requirements of class-action litigation make it quite cumbersome.

At the same time, parties have quickly embraced the Court's recognition that Rule 23 remains a viable mechanism for broad relief. After remand, several plaintiffs amended their claims to seek classwide relief, and they thereafter sought provisional certification and a classwide preliminary injunction against the Order. Several courts have now issued or reissued preliminary injunctions against the Order since the Court's decision, setting up a likely return to the Supreme Court in the near future. And, importantly, the Court did not resolve whether courts may have power under the Administrative Procedure Act to vacate unlawful agency action nationwide.

Trump v. Wilcox: "For Cause" Removal in the Crosshairs

Held: Members of the National Labor Relations Board and the Merit Systems Protection Board likely exercise executive power and an injunction against their removal by the President raises a significant risk of harm.

"Officers of the United States," as defined by the Constitution, generally are removable by the President "at will." In Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Court recognized an exception to that rule for bipartisan, multi-member administrative bodies, allowing Congress to protect the heads of such bodies from removal except "for cause." In the past several years, the Supreme Court has chipped away at that precedent and strongly signaled an interest in overruling it in an appropriate case. Shortly after taking office, President Trump teed the issue up by dismissing certain executive officers protected by statute from "at will" removal and prompting those officers to file suit to retain their positions.

In Wilcox, the lower courts had granted preliminary injunctive relief to members of the National Labor Relations Board and the Merit Systems Protection Board whom President Trump had removed without cause. Specifically, the courts ordered those members to be restored to their positions pending completion of the litigation. The rationale of the lower courts was that while the Court has recently questioned Humphrey's Executor, it has not yet overruled it, and so lower courts are bound to apply its general rule allowing for "for cause" removal protections for multimember administrative bodies.

In a two-page, unsigned order, the Supreme Court granted a stay of that preliminary injunction, thus reinstating President Trump's removal of those Officers from their positions. The Court explained its view that "the Government is likely to show that both the NLRB and MSPB exercise considerable executive power," but declined to decide whether those agency heads fall within the Humphrey's Executor exception. Instead, the Court stated that resolution of the applicability of any exception is "better left for resolution after full briefing and argument" and that "the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty." And finally, the Court signaled that its ruling did not implicate the removal protections for the Federal Reserve's Board of Governors, which "is a uniquely structured, quasi-private entity."

Justice Kagan dissented, joined by Justices Sotomayor and Jackson. She objected that the emergency docket should not be used to overrule or revise existing law, including Humphrey's Executor. Under Humphrey's Executor, Justice Kagan argued, the case before the Court was an easy one and the President acted outside of his lawful authority in removing the members without cause. The Court's stay order, Justice Kagan urged, was "nothing short of extraordinary," effectively "allow[ing] the President to overrule Humphrey's by fiat."

The Wilcox order  – as well as another emergency order in Trump v. Boyle that afforded the same relief – strongly signals that the Court is poised to strike down Humphrey's Executor in its entirety, or at least substantially narrow it. While the Court stopped short of weighing in on the critical merits question, as Justice Kagan pointed out, the Court's order can only be read as at least implicitly ratifying President Trump's view of the precedent. A case on the merits raising this issue is surely headed to the Supreme Court in the near future.

FIRST AMENDMENT

Free Speech Coalition v. Paxton: Age Restrictions for Adult Content Survive Intermediate Scrutiny

Held: Age verification requirements for websites with adult content do not violate the First Amendment and are subject to intermediate scrutiny because they only incidentally burden the First Amendment rights of adults (Thomas, J.).

Texas law H.B. 1181 requires certain commercial websites that publish sexually explicit content to verify that individuals attempting to access the website are at least 18 years old. That age verification must use either government-issued identification or "a commercially reasonable method that relies on public or private transactional data," such as proof of a mortgage. Websites that knowingly fail to do so face fines of up to $10,000 per day and an additional $250,000 if any minors access sexually explicit content as a result of the violation. Plaintiffs sued to block the statute, arguing that the law is facially unconstitutional under the First Amendment's Free Speech Clause because it burdens adults' right to access speech protected under the First Amendment. 

In a 6-3 ruling, the Court held that Texas's law is subject to intermediate scrutiny under the First Amendment and, under that standard, is constitutional. The Court determined that intermediate scrutiny applied to Texas's law because the law only incidentally burdens adults' First Amendment right to access sexually explicit materials. Strict scrutiny – which requires a State to employ the least restrictive means to achieve a compelling state interest and is "the most demanding test known to constitutional law"  – is reserved for direct infringement of First Amendment rights, such as complete bans on protected speech. On the other hand, rational basis review, which simply requires the State to provide a reasonable explanation for the law, applies to laws that do not implicate fundamental constitutional rights at all. Texas's law, the Court concluded, falls somewhere in the middle of these two extremes, thus requiring Texas to show only that the law advances an important governmental interest and is sufficiently tailored to that interest.

Under that standard, the Court held that Texas's age-verification law passes constitutional muster. It recognized that preventing minors from accessing sexual content is an important, even a compelling, governmental interest. It also held that Texas's law was sufficiently tailored to that interest, as it does not burden substantially more speech than is required to further those interests. Requiring age verification effectively prevents minors from accessing content that is obscene to them while also allowing adults full access to that content.

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. She argued that strict scrutiny, not intermediate scrutiny, should apply to Texas's law because the law regulates speech based on its content and directly burdens adults' First Amendment right to access the regulated speech. Justice Kagan noted that all parties agree that Texas has a compelling interest in shielding children from the sexually explicit material the law targets. Unlike age restrictions for liquor, lottery ticket, and firework sales cited by the majority, however, the material restricted here is protected by the First Amendment. Justice Kagan therefore urged that the case should have been remanded for evaluation under the proper standard.

The Court's decision is likely to embolden other States to pass similar laws (as some states already have). Operators of websites with sexually explicit materials will therefore have to increasingly confront a patchwork of state laws and decide whether to solicit identifying information from visitors that could compromise their privacy or whether to withdraw from operating in those states with age-verification laws. The growing debate over regulation of such websites is therefore likely to continue into the future.

TikTok v. Garland: No Relief for TikTok from Congressional Ban

Held: A statute making it unlawful for companies in the United States to provide services to distribute, maintain, or update TikTok so long as it is under control of a Chinese company does not violate the First Amendment (per curiam).

In 2024, Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act, effectively banning TikTok in the United States on the basis of concerns about its ownership by a Chinese company. Although the effective date of the legislation has been deferred indefinitely, TikTok (as well as its corporate parent and several users) promptly filed suit and sought to strike down the statute, arguing that it impeded on TikTok's First Amendment rights. The D.C. Circuit held that the statute did not violate the First Amendment rights under any of the applicable standards for evaluating restrictions on speech.

The Supreme Court affirmed. The Court first considered whether the statute is even subject to First Amendment scrutiny, noting that it is not clear whether the statute "itself directly regulates protected expressive activity, or conduct with an expressive component," because the statute instead only regulates TikTok's relationship with its corporate parent. The Court, however, ultimately did not reach the issue, instead assuming, without deciding, that the statute implicates the First Amendment.

The Court then analyzed the statute under the First Amendment framework. First, the Court concluded that the challenged provisions are facially content neutral  – that is, they apply regardless of the specific content TikTok makes available on its platform  – and are supported by contentneutral justifications related to China's access to sensitive user data. Because the statute is content neutral  – and does not single out any particular speaker – the Court concluded that intermediate, as opposed to strict, scrutiny applied.

Under intermediate scrutiny, a law burdening speech is constitutional if it advances "important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." The Court concluded that the statute  – as applied to TikTok  – satisfies both of those criteria. Congress has "an important and wellgrounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users." And the statute, the Court concluded, is "sufficiently tailored to address the Government's interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million U.S. persons who use TikTok."

Justice Sotomayor concurred in the judgment, contending that the statute clearly does implicate First Amendment rights, but agreeing that the statute survives intermediate scrutiny. Justice Gorsuch filed a separate concurrence, stating, among other things, that while he was not confident the statute did not give rise to strict scrutiny, he believes the statute passes muster even under that higher standard.

While the decision confirms the significant latitude afforded to Congress when making decisions about how best to further national security interests, the Court left unresolved the most crucial question about whether the First Amendment is implicated at all. The nexus between free speech rights and regulation of social media platforms remains an important, but elusive, concept in modern First Amendment jurisprudence. Although the Court offered some perspectives on the issue, it did not provide firm guidance on how lower courts should proceed in future cases.

Notably, although the law was passed in 2024, President Trump has repeatedly deferred the effective date of the legislation – although his authority to do so is in question, as the statute gives the President the power only to defer the effective date by 90 days once. It remains to be seen whether this ban will ever in fact go into effect.

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