Each year, I write a book for the American Bar Association about the U.S. Supreme Court’s most recent term. I look for a theme that explains many of the cases and use it for the title. My planned title for this year is October Term 2024: Taking Sides.

The United States is more ideologically divided than it has been since Reconstruction. The court’s October 2024 term, which ended June 27, presented a number of cases that posed politically controversial issues concerning the aspects of the culture wars and challenges to the actions of President Donald Trump. Time and again in these cases, the court came down on the conservative side, in 6-3 decisions.

There were 56 decisions after briefing and oral argument. That is about the same as the year before when there were 59 decisions. But the number of matters on the court’s emergency docket more than doubled—from 44 cases the year before to 113 so far in the October 2024 term. This, in part, reflects the many challenges to Trump actions that reached the court on its shadow docket.

These, of course, are just a few of the decisions, but they surely are among the most important. And they very much reflect a court that has taken sides.

Equal protection

In United States v. Skrmetti, the court upheld, 6-3, a Tennessee law prohibiting gender affirming care for transgender youth. The issue before the Supreme Court was whether Tennessee may prohibit puberty blocking hormones from being administered to transgender teenagers. Twenty-seven states, all with Republican-controlled state legislatures, have banned or limited gender-affirming care for minors, but Arkansas and Montana’s bans are currently enjoined.

Chief Justice John Roberts, writing for the majority, stressed the need for the court to defer to the judgment of the Tennessee legislature. He concluded his opinion by saying that the issue is left “to the people, their elected representatives, and the democratic process.” Likewise, Justice Clarence Thomas, in a concurring opinion, said: “Deference to legislatures, not experts, is particularly critical here.”

Roberts said rational basis review was appropriate because the Tennessee law was not sex discrimination: it prevented both boys and girls from receiving puberty blocking hormones. He said that the law was not discrimination based on gender identity, so the court did not need to reach the issue of what level of scrutiny should be used under equal protection for such discrimination.

Justice Sonia Sotomayor vehemently disagreed. She wrote: “Sex determines access to the covered medication. Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl.” And she said the law clearly is discriminatory based on gender identity. She lamented the impact of the law on transgender youth, disagreed with the court’s deference to the legislature and said, “In sadness, I dissent.”

Although the court left open the issue as to whether discrimination based on gender identity should receive heightened scrutiny, Justices Clarence Thomas and Amy Coney Barrett each wrote concurring opinions arguing that only rational basis review should be used for such discrimination. It is worth noting in this regard that earlier in the term, in United States v. Shilling, which came before the justices on their emergency docket, the court, 6-3, reversed a lower court and allowed President Trump’s ban on transgender individuals serving in the military to go into effect.

The U.S. Supreme Court’s October 2023 term was filled with blockbuster decisions that had a dramatic effect on the law and on people’s lives. Erwin Chemerinsky’s planned title for a book that is he writing for the ABA this year is October Term 2024: Taking Sides.

First Amendment religion

Mahmoud v. Taylor involved a challenge to the Board of Education of Montgomery County, Maryland’s curriculum about sexuality and gender identity. A group of parents objected on religious grounds, saying that it infringed their free exercise of religion for them to not have notice of the curriculum and the opportunity to opt their children out of the instruction. The court, in a 6-3 decision, agreed with the parents.

Justice Samuel Alito wrote the opinion for the majority. He stressed that it violated free exercise of religion to have children exposed to materials that their parents find objectionable on religious grounds. He wrote that “what the parents seek here is not the right to micromanage the public school curriculum, but rather to have their children opt out of a particular educational requirement that burdens their well-established right ‘to direct the religious upbringing’ of their children.’”

Justice Sotomayor again wrote for the dissenters and disagreed that exposure to material is an infringement of free exercise of religion. She said the court’s decision “threatens the very essence of a public education” because it “strikes at the core premise of public schools: That children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society.” She expressed great concern about what this will mean in practice. Does it mean that schools must give parents notice and the chance to opt out every time evolution is taught or an English class has a book with witches or any material that some parent might find objectionable on religious grounds?

First Amendment speech

In Free Speech Coalition v. Paxton, the court upheld a Texas law that requires age verification for access to websites with more than one-third sexually explicit content. This, too, was a 6-3 decision with Justice Thomas writing the majority opinion and here Justice Kagan writing for the dissent.

Interestingly, the question presented to the court focused just on whether the 5th U.S.Circuit Court of Appeals erred in using rational basis review. The Supreme Court, though, decided the merits of the case. The court said intermediate scrutiny—the law must be substantially related to an important government purpose—is the appropriate test and found that the Texas law met this requirement. Justice Thomas wrote: “The power to require age verification is within a state’s authority to prevent children from accessing sexually explicit content.”

Justice Kagan’s dissent argued that strict scrutiny should be the test based on prior Supreme Court decisions. In Ashcroft v. ACLU (2004), the court used strict scrutiny to strike down provisions of the Child Online Protection Act that required age verification for sexually explicit websites. The court said the government cannot restrict the speech of adults to protect children. Although the court did not overrule Ashcroft v. ACLU, it is very difficult to reconcile it with the court’s decision in Free Speech Coalition v. Paxton.

Presidential power and judicial review

Perhaps the most important case of the term was a restriction on the power of the federal courts to restrain unconstitutional actions by the president and the federal government. In Trump v. CASA, the high court held federal courts generally cannot issue nationwide injunctions to stop unconstitutional presidential actions and federal laws.

The case involved President Trump’s executive order ending birthright citizenship. The first sentence of the 14th Amendment provides that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Although it always has been understood that this means that everyone born in the United States is a citizen, President Trump’s executive order said only those born to citizens and those with green cards are citizens. Immediately, several federal courts issued nationwide injunctions to stop this from going into effect.

But the court, in a 6-3 ruling, split along ideological lines, said federal courts lack the power to issue such orders. Justice Barrett, writing for the conservative justices, declared that such universal injunctions “likely exceed the equitable authority that Congress has granted to federal courts.” Justice Thomas, in a concurring opinion, put this succinctly: “[T]oday puts an end to the ‘increasingly common’ practice of federal courts issuing universal injunctions.”

The court left open the possibility of class actions as a way around this. The court also did not foreclose state governments being able to sue on behalf of their residents. And the decision did not address the constitutionality of President Trump’s executive order limiting birthright citizenship.

Justice Sotomayor in a powerful dissent expressed what this means. She wrote: “No right is safe in the new legal regime the court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law- abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent.” Justice Ketanji Brown Jackson explained in her dissent, “The court’s decision to permit the executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.”

Immigrants deported from the United States arrive in Guatemala on an Immigration and Customs Enforcement deportation flight during President Donald Trump’s first term in February 2017. (Photo by John Moore/Getty Images)

The Supreme Court’s deference to President Trump also is reflected in its favorable rulings in most of the cases on its emergency docket. For example, on June 23, in Department of Homeland Security v. D.V.D., a federal district court had issued a preliminary injunction to keep the Trump administration from deporting individuals to South Sudan. Federal law is specific as to where people can be deported; only if no alternative exists does the government have the power to pick its own place. The federal district court ruled that the Trump administration was violating this law. But the court, once more 6-3, reversed the lower court and ruled for the government. There was no opinion for the majority, while Justice Sotomayor wrote a blistering dissent.

In conclusion

At a time when our country is so divided, I still optimistically hope that the court might play a moderating and even a unifying role. The profound question going forward is what it will mean for the judiciary and the nation to have the Supreme Court so clearly and consistently be on one side of the ideological divide.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).