The Supreme Court returns on Oct. 5 to consider whether local governments can seek damages from fossil fuel companies over climate-change harms, a case that could shape how far states and municipalities may regulate activity beyond their borders. The dispute involves Boulder, Colorado, and similar lawsuits have been filed across the country; billions of dollars could be at stake.
This climate case joins several disputes in a new term that will test the reach of state and federal authority. The court has a 6-3 conservative majority. It will also hear cases involving religious institutions, gun laws, immigration detention and deportation, and election rules.
Who Holds Regulatory Power
Bridget Fahey, an expert on federal-state relations at the University of Chicago Law School, said the climate dispute could influence states’ and local governments’ ability to regulate activity that starts outside their borders, including artificial intelligence. “Even though it’s about climate change, which feels about as big as it comes, I do feel it’s a bit of a proxy case for another major regulatory question that we’re going to see in the coming years, which is state AI regulation,” Fahey said.
Republican attorneys general are asking the court to broadly bar states from effectively forcing policy changes elsewhere. Michael Williams, West Virginia’s solicitor general, helped write a filing opposing Boulder’s lawsuit. “We don’t think that there’s a role for one state to regulate the activities that are happening in another state,” he said. The ruling could set limits on state and local power across borders.
A separate Colorado case, set for November, asks whether the Catholic Church can exclude children of gay parents from a taxpayer-funded preschool. The dispute follows rulings affirming religious groups’ rights, including one that found Colorado’s ban on “conversion therapy” for young people infringed on a Christian counselor’s free-speech rights.
Roman Martinez, a Latham & Watkins partner who has often argued before the court, said the trend suggests the Catholic Church is likely to win. “Colorado, on the other hand, does not have a great track record in these cases,” he said during recent remarks at Georgetown Law’s Supreme Court Institute. In another ruling, the court shielded religious institutions such as churches and schools from employment-discrimination lawsuits. Demonstrators gathered outside the Supreme Court when it issued that decision on July 8, 2020.
Religion, Guns and Immigration
A coalition of multifaith families backed by the ACLU has asked the justices to decide whether Texas can require public schools to display the Ten Commandments. The Louisiana-based 5th U.S. Circuit Court of Appeals upheld the Texas law, despite a 1980 Supreme Court decision striking down a nearly identical Kentucky law.
Genevieve Lakier, a First Amendment expert at the University of Chicago Law School, said legal experts would have expected the Supreme Court to reject the appeals court ruling. The court’s expansion of the First Amendment right to freely exercise religion leaves it unclear whether the justices will take up the issue, she said. “This is going to be very illuminating if it doesn’t.”
In December, the justices will consider whether state and local governments can ban possession of semiautomatic rifles such as AR-15s in response to mass shootings. The combined cases from Illinois and Connecticut concern which firearms the Constitution covers. Don Verrilli, a former solicitor general under President Barack Obama, called them potentially the most important Second Amendment cases since the court’s 2008 ruling that the amendment protects an individual’s right to possess firearms for traditionally lawful purposes.
Millions of Americans own AR-15s. Verrilli is among legal experts who predict the court won’t allow them to be banned. He said the cases also raise questions about the court’s rule that modern gun regulations must not stray too far from historical weapons regulations to pass constitutional muster.
The justices will also consider whether the administration can detain millions of immigrants without allowing them to seek bond and deport immigrants to countries other than their own without letting them argue they could face persecution or torture there. The cases put federal detention and deportation powers before the court.
Election Rules and Administration Disputes
The court will debate a Republican push to enforce strict Arizona voting laws in December. Cecilia Wang, national legal director for the American Civil Liberties Union, said, “Everyone’s eyes are on the election,” adding, “You can expect emergency applications to go up to the court relating to the election.” The justices may need to resolve election disputes quickly around the November midterms.
Last term, the court rejected President Donald Trump’s sweeping tariffs and his attempt to redefine birthright citizenship. The justices have selected about half the cases they’ll consider this term. Erwin Chemerinsky, dean of the law school and a professor of law at the University of California, Berkeley, said more challenges to Trump policies are likely, potentially including a dispute over new tariffs and clashes with congressional Democrats if they win control of the House or Senate in the November elections.
“I just think, given the Trump administration and the times we live in,” Chemerinsky said, “every term is going to have blockbuster cases.”