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LawTalk features events, webinars, and panel discussions hosted at the University of Minnesota Law School.
LawTalk Ep 65 - U.S. Supreme Court Preview Panel 2026-27 Term
Welcome to LawTalk, a podcast series produced by the University of Minnesota Law School featuring events, webinars, and panel discussions about diverse topics at the intersection of law, policy, and education.
This episode, U.S. Supreme Court Preview Panel 2026-27 Term looks at the upcoming docket of the US Supreme court that features cases spanning immigration, gun rights, climate change, workers� rights, and administrative power.�
Professor Charlotte Garden moderates the conversation between our panel of faculty experts:
* Professor Nadia Anguiano �17 - Director of the Federal Immigration Litigation Clinic
* Professor Rebecca Hollander-Blumoff - Harlan Albert Rogers Professor in Law
* Professor Veronica Thronson - Director of the Human Rights and Immigration Clinic
* Professor Megan Walsh - Director of the Gun Violence Prevention Clinic
Cases cited by the panel are listed in the episode notes:
This event was recorded on October 5, 2026. You can watch the entire event recording on the Minnesota Law YouTube channel. (https://youtu.be/nHOvSHkSIcQ?si=j8MyH7GySxLGWJVA)
Follow LawTalk on your preferred podcast application by searching LawTalk or follow the links in the show notes.
And, don�t forget to follow Minnesota Law Now, the new Minnesota Law podcast that brings together some of today�s most insightful legal scholars in conversations about law, policy, current events, and the ideas that shape our world.
Charlotte Garden: Welcome to the 2026 Supreme Court Preview. I am going to do an extremely quick introduction of our panelists so that we can get right to the discussion. I will start closest to me. Professor Nadia Anguiano is Director of the Federal Immigration Litigation Clinic. Especially relevant to today's discussion, she also serves on the Amicus Committee of the American Immigration Lawyers Association.
Then, next to her, we are delighted to have Professor Veronica Thronson visiting us this year from Michigan State University Law School. While she is here, she will be directing the Immigration and Human Rights Clinic and co-teaching one of our Foundational Immigration Law courses. She trains lawyers and judges on immigration law. We will find out how well she thinks they're doing.
Then, Professor Rebecca Hollander-Blumoff is the Harlan Albert Rogers Professor of Law. She has just joined our faculty from Washington University in St. Louis. She teaches civil procedure and negotiation, and most relevant to today's discussion, federal courts. Then, Professor Megan Walsh, directs our Gun Violence Prevention Clinic. She also teaches a seminar on the Second Amendment and the law of firearms.
Each of our panelists today has chosen one or two cases that will be argued or in one case was argued this morning before the court this year. They will each talk to you a bit about their chosen cases, explain a little bit about the cases and why they are important. We will aim to leave about 10 minutes for questions at the end. You can see there are microphones on either side of the room, so at about 1:05 or so, you could think about starting to line up if you want to ask a question. With that, let me hand it to Professor Anguiano.
Prof. Nadia Anguiano: Thank you so much, Charlotte. This is on. I appreciate the invitation to be here. I look forward to this event. I guess I'll start by saying that, to say that it's going to be a consequential term for immigration law is probably an understatement, this particular term. I'm going to be talking about two cases that were actually granted just last week within days of each other. It's Rhoney V. Barbosa da Cunha, one case, and the second case is Department of Homeland Security versus D.V.D.
I'll start my remarks by saying that, even though they implicate different parts of immigration law, I would say that there are some common themes uniting both cases that I'll delve into a little bit when I go more in-depth. I would say that both cases implicate issues of considerable importance nationwide and locally as both relate to big changes in immigration policy over 2025. In particular, that impacted thousands of our neighbors in Minnesota during Operation Metro Search and, certainly, continuing to this day.
Different parts of the immigration system, but two underlying themes that I want to keep in mind when I talk about them. The first one that I alluded to already is the scope of Executive power that might come out of just interpretation of the law by the Executive, by the Administration without any actual underlying changes in the statute as passed by Congress. Then, the second is access to judicial review. Whether federal courts can meaningfully review executive action, and if they can, what remedies they might be able to give the people complaining of unlawful Executive action.
I would say that the second question is probably a little bit more important with this current court. In recent years, for those who follow the court, the justices have shown a considerable skepticism toward broad relief issued by District Courts in the immigration context. The court has repeatedly narrowed avenues for challenging government action in the immigration context.
I'll actually go into the first one, which is Rhoney B. Barbosa da Cunha. In that case, the court question there, I would say, is relatively simple to state, but it has really profound consequences for individual liberty. It is what the tension statute applies to a certain class of non-citizens in the United States. Specifically, those who have entered without inspection, have lived in the inside of the United States, sometimes for many, many years, often decades, and then that person is later arrested and placed into removal proceedings again, sometimes decades, years later.
Depending on how the court answers that question, non-citizens who fit that criteria will either be able to challenge detention before an adjudicator or be subject to what we refer to as mandatory detention without any possibility to contest it. There are two competing statutes. On one hand is what we call the general detention provision that subjects people to discretionary detention. While they await a decision on whether or not they should be removed from the United States. That's 8 U.S.C. 1226. That's what we refer to again as the General Detention Provision.
People who are subject to detention under that statute can go before, usually, an immigration judge and say, "Hey, I shouldn't be detained because my detention doesn't justify the only two justifications that exist for immigration detention." That's dangerousness, protecting the community, and flight risk, essentially ensuring that I'm going to show up to my immigration proceedings. Then, an immigration judge takes a look at the evidence and makes a determination about whether or not the person should be released.
On the other side of the debate is another statute that we refer to as the Mandatory Detention Statute. That's 8 U.S.C. 1225. Under that detention provision, the non-citizen detained has no opportunity to go before a judge and say, "I shouldn't be detained. I should be out on bond." Long story short, and by long story I mean the story that was the case for over 30 years, DHS and the courts interpreted 1225, the Mandatory Detention Provision, to only apply to folks seeking admission into the United States at the border. A pretty limited class of non-citizens.
Fast forward to mid-2025, the Department of Homeland Security radically changed its interpretation of that statute, and determined that it actually applies to anyone who's ever entered the United States unlawfully as they are deemed an applicant for admission. That's basically the statutory hook for that detention authority to apply. The plaintiff in this case illustrates the facts that basically were, I should say, the stakes of people who may be subject to this detention provision.
He's Brazilian, entered around 2005, lived in the United States for over 20 years, has a pending asylum application, worked lawfully with a work permit. He's a neighbor of ours. He has a home, small business, wife and children, no criminal convictions. Then, ICE arrested him on his way to work in 2025. The IJ, pursuant to this new Department of Homeland Security interpretation, said that the mandatory detention statute applied and, therefore, he was not eligible for a bond hearing at all.
He filed a habeas petition and the habeas court disagreed with the immigration judge and said that the other discretionary detention statute applied, and that Mr. da Cunha was actually eligible for a bond hearing, and he was released on bond and was able to return home. The key point to emphasize is that, had the government's reinterpretation of that provision of 1225 controlled, Mr. Barbosa da Cunha would likely still be in detention without any opportunity to go before a judge to contest it.
The Second Circuit affirmed the District Court and deepened an existing split that now the Supreme Court is going to resolve. On one hand, I think it's the 2nd, 6th, 10th, and 11th interpret the statute such that Mr. Barbosa da Cunha is eligible for a bond, so he's under 1226, versus the 5th and the 8th Circuit interpret it the other way and say that people like him are subject to mandatory detention. Pretty consequential case that will implicate whether or not people have just the very basic protection of going before a judge to say, "I should not be subject to detention."
The second case that I'd like to touch on is D.V.D, and that's a little bit more complicated and in some ways perhaps even with broader implications, this case involves what many of you are likely to have heard about, which is third country removals. By way of some brief background, third country removals are removals of people to countries that were not previously talked about, or designated, or in any way analyzed in their prior removal proceedings as a country to which they may be subject to be removed. Critically, third countries may be countries to where the person potentially subject to removal there might have fear of persecution or torture in those countries. Just by way of hands, how many of you have kept up with the news on third country removals and are familiar? Quite a few. There's another case that's going to impact our neighbors and community members quite a bit. Historically, the United States rarely conducted these so-called third country removals. When it did, it was a very individualized determination, particular to an individual human and their circumstances.
Again, in 2025, DHS adopted this blanket third country removal policy, under which, under certain conditions that in the interest of time, I'm not going to go into, the government could just remove a person to a third country with 6 hours of notice or 24 hours of notice. Critically, without asking whether that person had fear of removal to that country and without giving that person an opportunity to go through our immigration process to present a claim against removal to that third country because they feared being tortured or persecuted there.
Plaintiffs in D.V.D brought a class action arguing that that policy violated the immigration laws, regulations, our obligations under international law, and the Fifth Amendment's guarantee to due process. The District Court in the case certified a class, and then, eventually, the litigation's been ongoing for over a year, issued a declaratory judgment declaring this new policy, this new blanket policy unlawful and setting it aside under the APA.
The District Court said that, "Due process, the statutes and regulation, and again, our international law obligations, all mandated a meaningful opportunity for these individuals subject to third country removal to present a claim against removal to that country if they fear torture there." In a decision issued just a couple weeks ago, the First Circuit largely affirmed the District Court. Significantly, the First Circuit did not touch due process. It just held that under the statute, non-citizens are entitled to notice and a meaningful opportunity to present a claim of fear against third country removal.
Just last week, it's been a whirlwind, but last week, the Solicitor General asked the Supreme Court for an emergency stay of the District Court's decision, which again held that the policy was unlawful. The Solicitor General went to the Supreme Court and say, "Please stay this so it's not actually in effect." The Supreme Court not only granted that stay, but also treated that application as a cert petition and granted it. The court is now going to hear the merits of the case on a pretty expedited schedule.
There's three major issues in D.V.D. The first one is about whether the District Court even had jurisdiction to adjudicate the claims that were presented. Under the immigration laws, there's a lot of jurisdiction channeling provisions that, at least according to the government, mandate that claims like those brought here have to be channeled through the administrative process up to the courts of appeals instead of being heard by federal District Courts.
The Supreme Court is, ultimately, going to decide who is right, whether these claims are justiciable in District Court or whether non-citizens have to go through a sometimes lengthy administrative process to challenge the process that they're being given against third country removal. The second, for federal jurisdiction nerds and some on the panel, is whether the court, even if it does have jurisdiction over the claims themselves, whether it can order the type of relief that it ordered here on a class-wide basis.
As I mentioned earlier, the court granted declaratory judgment and set the policy aside under the APA. There's a provision in the INA that prohibits district courts from enjoining or restraining certain parts of the immigration statute. The question is whether declaring the policy unlawful constitutes an injunction on the particular immigration laws at stake? Then, finally, the merits. The court is going to answer what process is actually due when the government seeks to deport a non-citizen to a third country?
Charlotte: Fantastic.
Prof. Nadia: We're moving on.
Charlotte: Thank you very much. Professor Thronson.
Prof. Veronica Thronson: Good afternoon, everyone. I'm going to talk about two cases. One of them is an immigration case but it has to do with how the court is going to interpret the statute. This one concerns whether asylum seekers are able to apply for a Green Card. To get a lawful permanent residence if their asylum status has been terminated. This goes back to the Refugee Act of 1980. One of the things that is important in this provision is when refugees usually get processed abroad.
When they come into the United States, they already come with status. After a year of being in the United States, if their admission has not been terminated, they are able to apply for a Green Card to be lawful permanent residence. In contrast, people who apply for asylum who are in the United States don't have that language of termination. The language for asylum seekers, asylees who have been granted asylum, said that you are able to apply for a Green Card, but it doesn't say anything if their asylum has been terminated.
This concerns two cases. One of someone, Mr. Wassily, who is a man from Egypt. He was granted asylum back in 2000, and he was convicted of child endangerment and stalking. The government moved to remove him to terminate his asylum status and to remove him back to Egypt. The court agreed and terminated his asylum status, but then, that same judge granted him a Green Card, gave him the opportunity to become a lawful permanent resident. That's one of the cases.
The other case is Mr. Arriaga, who's putting Guatemalans to shame. He's Guatemalan. He has several convictions for driving under the influence. The government also moved to terminate his asylum status. The judge terminated his asylum status, but did not find that he qualified to get a Green Card after. That's the issue with the court. Why is it that one of the statutes for refugees has this termination and the asylum statute doesn't have the termination language?
One of the things that is important is that it's going to affect a lot of people depending on what the court decides because of certain events with this new administration. Last year, the president ordered that all the people who had been granted relief needed to be reevaluated. The court stopped that, and actually, there was a decision in June where a court in Rhode Island said, "No, you cannot just categorically, like a big class of people, you cannot just reevaluate them and then decide if you terminate their status. Everything has to be done on a case-by-case basis."
If the Supreme Court comes and says, "Well, if you were granted asylum, but that asylum was later terminated and you are not able to get that Green Card to continue to live in the United States lawfully," then the government could move to evaluate on a case-by-case basis and then terminate asylum status for many people and remove them from the United States. That's really the consequence of this case. It's very important. We don't know what the Supreme Court is going to do. It's basically analyzing the statute, but they have been known to legislate from the bench sometimes. Sometimes we have seen them say, "No, what the language of the statute says is what we are going to interpret." It remains to be seen to see what happens with this case with a lot of consequences for people here with asylum status.
Then, the other case is not really a case that is immigration-related, but it's one of those cases of Show Me Your Papers laws. This concerns Arizona. Arizona passed a law in 2022 where they decided that they were going to have people show documentary evidence that they are United States citizens in order to vote. The Ninth Circuit held that that Arizona law violates the National Voter Registration Act, which is a federal law, and that the National Voter Registration Act is going to preempt the Arizona law.
Obviously, people sued, the Republican National Committee sued, saying that the National Voter Registration Act doesn't get preempted by the Arizona law because the states have the right to figure out what to do with their voter registration procedures, and that that's a way for them to manage how they are going to evaluate who gets to vote and who doesn't get to vote.
Then, the Mi Familia Vota is the organization that is one of the leading organizations in this case. They are saying, "Actually, what you are doing is using this Show Me Your Papers to completely disenfranchise people. You are going to be targeting immigrants. You are going to be targeting the elderly. Young people who are not able to show that they have documents in order to be able to vote." That's also consequential. At the very least, we are not going to see that effect in this election that's coming up next month because it is too soon. We won't know until next year.
Another thing that is important is that the Supreme Court, under the shadow docket in September, they allowed the government to use this SAVE System to check to see if people are actually in the books, and if they are able to vote because their names are listed in a bunch of different databases that the government keeps. Many people have been kicked out of the databases. Many people have been kicked out of the voter registration because of mistakes with their names, or maybe there are misspellings, or whatever the case may be.
The government and many other organizations continue to argue that there is an influx of non-citizens who are voting. Time and time again, there has been so much research done explaining that, "Yes, there have been cases of non-citizens voting, but out of the whole world of people who are eligible to vote is, maybe 1% of people who had been registered to vote when they were not supposed to vote." The problem, though, is that many people get registered to vote without knowing that they are not allowed to register to vote.
I had a client who was in her social studies class when she was in high school, and the teacher told them, "I'll give you extra credit if you register to vote," and she went ahead and voted. She really needed that extra credit. She's not a US citizen. When the time came for us to help her apply to become a US citizen, we had to go back and clean it up. There are people who register to vote when they go renew a driver's license or when they get a driver's license, and people don't know that they have registered to vote.
On top of it, voting in an election is definitely going to be something that is going to put people in removal proceedings and possibly deport them from the United States. This is very consequential, but we don't know what's going to happen until we hear what the Supreme Court says. I am going to assume that they are going to allow this Show Me Your Papers law to go forward, especially given their history and the idea of trying to disenfranchise a lot of people. That's it.
Prof. Rebecca Hollander-Blumoff: Okay. Great. All right. Is this on? All right, great. Oh, that's all right. Great. Thank you so much for the invitation to be here. I'm so happy to be able to talk a little bit about some cases before the Supreme Court. Number one case that I'm going to be talking about is the Suncor Energy case. Did anyone listen to the oral argument this morning besides me? Anybody? Okay. No. All right. Well, I could just tell you anything, but it's recorded, so I'll stick to what actually happened.
Okay. Boulder is suing Suncor Energy and Exxon in this case in state court, and they're suing under state law. What they are alleging is that these companies caused harms via interstate and international greenhouse gas emissions, and that the companies also deceived the public with respect to the impact of climate change and the role that fossil fuels have played in bringing about this climate change impact.
This litigation is part of a nationwide effort. There are a lot of these lawsuits nationwide that are trying to use state law to bring actions against energy companies in order to hold them responsible for greenhouse gas emissions and their effects. I do want to note here that the plaintiffs in this case are not seeking any kind of injunctive relief. They're not asking the defendants to stop doing what they're doing. They're seeking a big pot of money.
Now, the key substantive issue here in the case, I have the merits question, is extraordinarily complicated. It implicates a host of issues that include statutory construction, constitutional structure, the role of administrative action, the role of administrative inaction, and more. It really boils down to the fundamental question, the simple question of can the plaintiffs use state law to bring these claims? That is to say, are those claims not permitted or are they permitted given that perhaps federal law should be the law that governs here?
Now, I say should be. If you've taken any kind of upper level classes in fed courts, you might say, "Sounds like preemption." If you notice, I have on my slide precludes. Why? Because there's a little bit of a discussion, debate about whether this is a preemption case or whether we're just talking about federal law precluding. Why is that especially irritating? How many people have done anything with preclusion doctrine in a class?
Race judicata, collateral estoppel. It's kind of like a very, "Nobody's raising their hand." That's okay. I'm not going to call on anybody and ask you to explain it, but those are very technical terms, and that's not what preclusion means at all in this context. Here, what we're really talking about just is, is it the case that this should be federal rather than state?
Why don't we just stick with preemption? Well, the problem is that there are some very specific contexts where federal law can preempt state law, and none of those are squarely here, which is why you see this wiggle room of, "Oh, maybe it's just that federal law precludes." I want to talk a little bit about theories of preemption here. Does federal law explicitly or implicitly displace state law?
That's the fundamental question that you would ask if you were trying to figure out a preemption case. It's obviously a lot better if you don't want someone to be able to use state law, if you can say that federal law explicitly preempts the state law. Short story here, our petitioners can't do that. That's why you have this kind of fuzziness. They're really looking for more of an implicit preemption.
Where does the law come from in this case that they're looking at? There's statutory schemes, the Clean Water Act, and the Clean Air Act displace federal common law. If some of you are saying, "I thought there was no federal common law," like, well, I only have 12 minutes, so I can't. A short answer there, still is, it's out there, but these federal statutes displace the idea of using federal common law. You can't use federal common law anymore in the context of clean water or clean air. There's legislative endowments. The Act, funnily enough, even though they displace federal common law, they don't displace state common law. The court has even found that the statutes I just mentioned, specifically allow certain types of cases to proceed under state common law, typically vis-�-vis emitters of pollution, like emitters of bad stuff. Here, these are not emitters that are being sued. They're producers of these greenhouse gases. I'm not going to get into the difference between an emitter and a producer, but if you want to read more, here's the briefing right there.
Again, back to the bottom line, the question is, given that we know that these statutes exist, they displace federal common law, but they don't necessarily displace state common law, can state law govern here? There are a few theories out there about why this could go forward under state law or couldn't. Our petitioners here in the case this morning led with the idea of extraterritoriality. Meaning they said, "You can't use Colorado law to control behavior that happens somewhere else."
I'm just going to say that that was not really well received this morning. The court was not too excited about that argument. The reactions ranged from, "You forfeited this argument by not properly briefing it below." Ouch. To just a more simple, procedure question of, "Well, but we allow cases all the time where somebody from one state does something bad that affects somebody in another state, and we allow that person in that second state to bring a claim." That, I think, is not going to be a direction that it seems like the court is super interested in going towards.
The next thing is implied field preemption. The idea here is when Congress has said, "This is our field. This is federal, we want this. This is us," then states have to stand down. The problem, of course, as I already said, is that the court in this context has already said, "In some cases you can, in fact, use state common law." Not in this particular situation, but it's out there as probably a problem for field preemption, where the petitioners really ended up hanging their hat this morning, and in their briefing is more of an abstract, sophisticated argument that is much more about the constitutional structure and sovereignty and federalism.
What do I mean by that, and what do they mean by that? They basically say the states gave up their sovereignty to the federal government as part of the basic compact of the Constitution. That means no state can be more sovereign than another. What that means is only federal law can possibly govern this nationwide, indeed, global harm. That was where there was a fair amount of discussion this morning.
That's pretty abstract, as you can hear, just out there. You can't point to a provision of the Constitution that specifically ties it to here. It's an interesting argument and one, I think, that the court's going to have to grapple with unless, see footnote, they deal with this on the procedural question that I'm going to get to in just a second.
A couple of other things I want to say about the substantive issues before I do that is that there's another theory that this has to be federal just because it's so important diplomatically, globally. There are global energy needs, foreign policy is involved. There's a war going on that's changing the face of energy and energy pricing, international relations, et cetera. That's another argument, as you can hear, amorphous, a little fuzzy. Doesn't tie to anything in a statute or the Constitution.
That's a real, if you go up 10,000 feet, that's a real clash here in terms of what's going on in this case. In some ways, this is really a policy question about what to do about these greenhouse gases and emissions. That's what the energy companies are arguing. They're saying, "This should be congressional. This should be something that the political process handles." On the other hand, the energy companies don't have a perfectly clear legal argument as to why these cases can't proceed. It's not typically an argument to say, "But it'd be better to handle it politically." That's where we are.
The other thing I want to mention about procedure is this is an extraordinarily thorny, complex substantive issue, but the justices themselves piped up at the briefing moment and said, "We want to respond to a briefing on whether there is statutory and constitutional jurisdiction for us in this case." In fact, Justice Thomas, that was the first thing out of the gate in both the petitioner's argument and the Deputy Solicitor General's argument this morning that he really wanted to talk about, was this procedural question.
There are two real issues here in the procedural domain. One is, is this an interlocutory appeal from a judgment of the Colorado Supreme Court? That is to say, is it a final judgment from the Colorado Supreme Court, in which case it's appealable to the US Supreme Court, or is it just like a bump and a ruling along the way in a much broader case that hasn't yet been fully resolved? Obviously, the parties disagree. The oil companies very much want for the court to say this was a final decision of the Colorado Supreme Court that can be appealed. Boulder says, "Not at all, not so. This is ongoing litigation. This would be an interlocutory appeal, which is not permitted under 28 US Code 1257A."
It's a technical question, but interesting. Then, the other piece of this is there an Article III injury? For the petitioners, they argue here that their constitutional-level harm that allows them to be in an Article III court to appeal to the Supreme Court is that they have to continue to defend this litigation in state court unless they get a judgment. That, of course, is not a typical type of Article III injury that we usually see. You have to keep paying a lawyer to defend the case. Not usually what we think of as constitutionally cognizable.
Interesting. All right. A couple notes on that, and then I'm going to just say a few words about my second case. This is a hugely press attention-gathering case. There are, as I mentioned, a ton of these cases across the country. It's a targeted litigation effort by a lot of folks working together. It looks a lot like the tobacco and opioid litigation in some respects, something that Justice Kagan mentioned this morning. There were over 60 amicus briefs filed here. I also want to mention that Justice Alito recused himself. There's a possibility of a four-four split. I don't know how likely that is, but if so, that, of course, leaves the Colorado decision intact.
The choice to request briefing on the jurisdiction is an interesting one. It suggests that in some ways the court might be looking for an out. They may want to wait until there's a more developed record on the actual substantive case, and they may be hoping that Congress intervenes. There is, in fact, some legislation pending about that immunity for these companies. Congress could act, and then the court wouldn't have to. Either way, the substantive issue is not going away until either Congress or the court resolves it. Keep an eye out. The second case I want to talk about, am I okay on time for another couple minutes?
Charlotte: A minute.
Prof. Rebecca: A minute. All right. A minute. This is a really interesting case about whether parents have standing to challenge state laws that displace their decisions about their children's gender transition-related care. Washington state changed their law to basically say, if a child runs away to a state-operated shelter and expresses some concern about their gender identity, then it basically triggers the state to not notify parents of the whereabouts of the child. That's new.
Parents and the state also will give the child referral to gender-affirming care. Parents aren't notified. A group of parents bring suit and say, "We challenge this law." The question before the court here is not substantive at all about the nature of the law. It's really just, "Do the parents have standing to go forward?" What do you need for standing? You need an injury that's caused by the defendant and redressable by an action of the court. The real question here is, did the parents suffer an injury?
Nothing yet has happened with their children. Their children haven't run away. Is it a too attenuated situation? They have to have a child that runs away, then expresses that they have an interest in gender-affirming care, et cetera. It could be possibly too attenuated. What is the harm that they suffer? They allege that they've already changed their parenting behavior. That they're parenting differently because of their fear of this.
I'll just end by saying, there's a few cases that this implicates. In particular, it is the most recent in a set of cases where the merits-based reasoning of the judges may be, obviously, bleeding through to potential procedural questions, which, of course, always leads to concerns about politicization and legitimacy of the court. I'll stop there.
Megan Walsh: Thank you. Thank you for including me. I'm very honored to be part of this panel with my fantastic colleagues. You want to talk about gun law? I am speaking about Viramontes v. Cook County and Grant v. Higgins, two consolidated cases that each address whether a ban on our so-called assault weapons is constitutional under the Second and Fourteenth Amendment. Assault weapons is an imprecise term, for sure, and every jurisdiction that bans these weapons uses a little bit different definitions. I'm just going to use the word assault weapons. It generally means AR-15s and rifles that have similar platforms to AR-15s. I only have one case, so I'm going to give you a little bit of background on where we are in terms of the Second Amendment right now.
The Supreme Court did not identify the Second Amendment as protecting an individual right to keep and bear arms until 2008 in a case called District of Columbia versus Heller. It was really a sea change in terms of how the court looked at the Second Amendment. In addition to that significant holding, the court also held that the Second Amendment is really about a right to use arms for personal or individual self-defense.
It moved away from arguments that the Second Amendment exists to prevent tyranny or to protect hunting. It also held that the case involved a handgun ban in the home from the District of Columbia. The court struck that down. It found that handguns are the quintessential weapons for individual self-defense. Without citation, thanks, Justice Scalia, and that handguns are the choice, the weapon of choice for people for individual self-defense. Again, also without citation.
After Heller, you would think that a lot would change, but the reality was that gun regulation didn't change all that much despite this very significant ruling. Only a handful of gun laws were ever struck down under Heller. Life went on as it did before. The court didn't take another Second Amendment case, another significant Second Amendment case, for a number of years, over 10 years. Then, in 2022, the court heard New York State Rifle and Pistol Association versus Bruin. This fundamentally changed the way that we look at Second Amendment challenges. I'm going to call it Bruin.
The court held that the test is no longer does this law work, does this law protect public safety, does it save lives? The court says, "A law that regulates arms is constitutional only if it either doesn't affect any of the language of the Second Amendment based on the plain text in the Second Amendment or if it's consistent with the nation's history and tradition." What this means is at the first step, the court looks at whether any of the regulated conduct affects the right to keep and bear arms generally.
Then, if it does, the burden then shifts to the government to prove that the law is constitutional. This is rare in terms of constitutional jurisprudence. Normally, the government does not have the burden. Normally, we presume that a law is constitutional if it's passed by a duly elected legislature because it's supposed to represent the people's choice. If the regulated conduct affects the right to keep and bear arms, the government then has to identify historical analogs or historical principles. Basically, from the time of the founding or perhaps the time of the 14th Amendment's enactment.
For instance, the world's a little different now. If you have a law in modern times that regulates how firearms are carried in cars, there were no cars in 1791. The government might be looking at regulations such as how firearms are regulated while being carried on horseback. That's how we are deciding our current constitutionality of gun laws.
Back to this case. I'm sure you all know, assault weapons have been used in all of the most deadly mass shootings across the country in our history. In Las Vegas, 58 people were killed. The shooting at the Pulse Nightclub, 49 people were killed. Grant v. Higgins involved Connecticut's ban on assault weapons, which came after the Sandy Hook School shooting, in which 20 1st Graders were killed, 6 staff members, and the shooter. All in less than 5 minutes. These weapons were designed to kill as efficiently and effectively as possible. They derive from M16s, which are military weapons. Whether or not these are lawful, just deeply divides our country right now.
There's a couple interesting things about this case. One is that Viramontes's case went through discovery. The Cook County attorneys, they got experts. They issued expert reports, but the petitioners did not. The people challenging the law, did not use an expert at all. They tried to put in a number of over 100 exhibits at summary judgment. The court found that this was insufficient. That they did not create a sufficient enough record to be able to show that the ban affected the plain text of the Second Amendment.
The other thing that's interesting is that the US government has filed an amicus on behalf of the petitioners. Our current US government is arguing that these bans are unconstitutional. This is fairly rare. They've also asked for oral argument, which they likely will get. The big thing about this case is not only are these bans constitutional, the question is how we get there. It's strange that we have a question so fundamental to the Second Amendment, what arms the Second Amendment protects, that the court has not given us a clear answer on. For that reason, all of the lower courts have used different tests to evaluate this. We don't know what tests the court's even going to use.
I will also say that up until the cert grant, every federal appellate court to have addressed this issue has held the bans to be constitutional. It was only after the cert petition was granted that the Third Circuit struck down a ban on AR-15 weapons for the first time. The court took this, one, with Viramontes having a very strange record, it's a very strange vehicle, and two, without a circuit split.
We know that they took it because this is important to specific justices. We know at least three of the justices have come out and said that they think that these bans are unconstitutional. When we hear oral argument on December 2nd, we're going to be looking to see what the Chief Justice says, and what Justice Coney Barrett says.
On the question of what tests we're going to use, petitioners are arguing that the people get to decide what weapons get constitutional protection. What we hear over and over again is the AR-15 is the most popular rifle in America. That goes back to what I talked about being the language in Heller, about the handgun being a quintessential weapon for self-defense and the most popular weapon. They are relying on that language to say that because the AR-15 is a popular weapon, that should mean automatically it gets constitutional protection.
When you look at the numbers, only about a third of Americans are gun owners. About 4 in 10 Americans report that they live in a home with a firearm. You have 6 out of 10 Americans effectively voting against these, effectively saying, "That's not a weapon I'm choosing to use for self-defense." Among the gun owners, not everyone owns an AR-15. What they're saying is, not only should gun owners make the choice, but the gun owners who are a minority of America's population should make the choice, the ones who are chosen AR-15s. It's unclear. Certainly, I think we have three justices who will look at that test and want to adopt it. We don't know what the rest of the justices will choose.
Most recently in Wilford v. Lopez, one of the court's decisions from last term, Justice Alito wrote and on the first step said that, basically any arm gets protection, anything that is a weapon of offense or defense, or even an implement that is used for offense or defense, which is, again, a very strange and unusual way to do constitutional law. When you're looking at the First Amendment, not every word uttered gets constitutional protection.
In this case, it seems fairly likely that at the first step, the court will find that an AR-15 is a weapon of offense or defense. Likely what will happen is the court will look at whether or not this constitutes a dangerous and unusual weapon. The court has said since Heller that there's a historical tradition of regulating and even prohibiting weapons that are dangerous and unusual.
Again, like I said, all the lower courts have interpreted that very differently. Some courts say that dangerous is a factor and unusual is a factor. Some courts say that what it really means is, is this weapon unusually dangerous? The courts that have upheld these bans have held that these weapons are unusually dangerous and the Constitution permits communities to ban these weapons.
The last thing I'll say, is that it's a very strange way to do constitutional law, but it's also a very strange way to look at who the people are, right? When you vote, you elect people who are supposed to represent your interests. Eleven different states have these bans, and their citizens have elected people who have made this legislative choice, this policy choice. If the court determines that the minority of Americans who are AR-15 owners should get to decide whether or not an AR-15 gets protection, that's really effectively overruling all of those individual votes and the will of the people. The reality is that the vast majority of the population supports these bans, and we'll see if five out of nine justices do.
Charlotte: Okay. Great. Well, thank you all so much for those extremely interesting presentations. Let me open up to questions. It looks like-- Do you like to go first?
Participant 1: Oh, I'm just running the mic.
Charlotte: Oh, got it. Okay. Oh, great.
Participant 2: Hello. I had a quick question about the Ferguson case. This might be too far in the future, but is that something that could potentially be used for people that are trying to get their minor children access to hormonal treatment if the argument is that state laws interfere with the parent-child relationship? Is that reversible potentially?
Prof. Rebecca: You mean could the people who want the gender-affirming care use that process?
Participant 2: Yes. If the argument is, the state is unconstitutionally intruding in the parent's decision of how to raise their child. Could a parent say, "State law says I can't get hormone treatment for my 14-year-old kid, but I want to." Is that a potential?
Prof. Rebecca: Oh, that's really interesting. I think that might not be applicable in Washington state, of course, because they're trying to build that pathway for the care, but would it be transferable to say another state where someone said I have this parental right? That's a really interesting question. I haven't seen any commentators talk about that. The case is, as you say, in its early stages because there's only briefing so far on one side. It hasn't been fully briefed at the court, and so there hasn't been a lot of-- I think that's something to look out for. Really interesting. Really interesting question. Thanks.
Charlotte: While we are thinking about whether the room has more questions, I will ask a question. We only know a fraction of the cases the court will hear this year. Are there issues that you expect the court to end up hearing at some point this term that they haven't taken a case on yet, but that you know it's an issue that's working its way up?
Prof. Nadia: One of the cases that we do know that I was going to talk about but didn't involves habeas and EJA fees, and the question in that case is whether a habeas action challenging immigration detention constitutes a civil action that attorneys can then seek to recover their fees on. Again, very consequential for our community in particular where, as you all may know, thousands of habeas petitions were filed per bono for folks subject to immigration detention and this new policy that I mentioned by the administration.
I also expect the court will likely grant at least another habeas case. Rhoney V. Barbosa da Cunha is a habeas case. Another case that will likely be granted involves, as you all may be familiar, the case of Mahmoud Khalil, who was just here in town this past week, and related cases involving the intersection of First Amendment, retaliation against speech, obviously speech in support of Palestine, and how that intersects with removal proceedings, and the discretion that the government wants the claim for itself in terms of retaliating against people who are outspoken for Palestine.
Prof. Rebecca: I just want to say not at a level of a specific type of case, but with the election, I anticipate a bunch of election things coming up. Who knows what they'll look like, but I think they'll be there.
Charlotte: Great. Thank you. Let's see. I can just keep asking questions, but--
Participant 1: You got one.
Charlotte: Oh, great. Go ahead.
Participant 3: I was curious about the Republican National Committee versus Mi Familia vote. Are there other states besides Arizona that have been trying to make it more accessible for non-citizens to have the ability to vote, or are there any states that you think may try to do that in the future?
Prof. Veronica: Well, I think a lot of states are going to wait to see how the Supreme Court rules. If they determine that the National Voter Registration Act preempts state laws, then they may try to do something different to make sure that their state laws are going to survive that scrutiny.
Megan: I can go back to Charlotte's first question. Excuse me, Dean Garden. [chuckles] There are a lot of open questions after Bruin that the Supreme Court has not yet taken, and we are seeing certainly a lot more interest among the justices in taking Second Amendment cases. Last term was the first time we actually had two Second Amendment cases in the same term. I believe that the court heard 57 cert petitions in the first conference last week related to the Second Amendment, and so there's some pretty huge issues that we are expecting to come to the court eventually.
One would be if nonviolent felons can be prohibited from having firearms for life. Another would be age limit cases, so restrictions on 18 to 20-year-olds. There's just still a lot left. We still don't even know if the government should be looking at 1791 or 1868 when they're looking for historical principles and analogs. There's a lot more to be answered, and I wouldn't be surprised to see another case grant this year.
Charlotte: Great. Last question.
Participant 4: Okay. For the gun case, you were saying that there's a test where first the government has to prove it's constitutional, and then you got to use the historical analogs. What historical analogs are they allowed to say? There's laws that had prohibited machine guns in the past, but it seems like you're talking about horses and things. [chuckles] I was just wondering how they would determine that.
Megan: Yes, that's my life. Again, another open question. Some parties will argue that only laws passed by duly elected legislatures count as historical analogs. In the more recent cases since Bruin, the court has looked more broadly. For instance, you might look at how writers talked about the Second Amendment. You might look at common law. Even though that's not written down anywhere, it shows historical principles and traditions.
It's an interesting way to do this. Heller itself basically said that you can ban machine guns, but the petitioners in this case are largely moving away from that argument and saying that was dicta and it didn't matter. We have a very different court. We have a court that's very pro-gun rights right now, a majority of justices who are very pro-gun rights, and we have a federal government that's very pro-gun rights. It's a very different question before this court than we had in Heller.
Charlotte: Okay. Great. Would you please join me in thanking our fantastic panel.
[applause]
[00:58:57] [END OF AUDIO]
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