Tik Tok, transgender healthcare, and NEPA
By Sarah Mester
The U.S. Supreme Court heard eight cases during the December Sitting and ten cases during the January Sitting—including Tik Tok v. Garland, which was added on an expedited schedule to be heard before the sitting was scheduled to begin. Republic of Hungary v. Simon and Tik Tok v. Garland have already been decided. The February Sitting started on February 24, but this edition will provide a highlight of the cases heard during the December and January Sittings and, as always, provide some humorous exchanges from oral argument.
Also, in honor of D.C.’s February snowstorm, it is worthwhile to highlight the quite humorous story about when the Rehnquist Court (1986-2005) heard oral argument during a snowstorm in 1996 and some of the Justices (and a hapless advocate) all carpooled to the Court together. Norfolk & Western Railway Company v. Hiles (Oyez) was the only case argued that day, since advocates for the other two cases scheduled could not get to the Court. And, for all that effort, the oral argument lasted only 45-minutes.
Selected Case Summaries
FDA v. Wages and White Lion Investments, LLC (Arg: 12.2.2024) Oyez SCOTUSblog
About: Administrative Law
Question: Was the FDA’s denial of respondents’ applications for permission to market a new e-cigarette product arbitrary and capricious, in violation of the Administrative Procedure Act?
Explanation: Wages and White Lion Investments manufacturers flavored nicotine liquids for refillable e-cigarette systems and they applied to the FDA for approval of a new product that included flavored nicotine liquids. After their application was submitted, the FDA announced a new regulation requiring that applications must include more stringent research specific to flavored products, which had not been required when the manufacturer’s application was submitted. Soon after the introduction of this new regulation, Wages and White Lion Investments’s application was denied. The Court is being asked whether the denial of the application by the FDA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”.
Republic of Hungary v. Simon (Arg: 12.3.2024; Decided 2.21.2025) Oyez SCOTUSblog
About: Foreign Sovereign Immunities Act (FSIA) Expropriation Exception
Question: Is the historical commingling of assets sufficient evidence to establish that seized property has a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act (FSIA)?
Explanation: Generally, foreign countries cannot be sued in U.S. courts, but there is an exception for property taken in violation of international law known as the ‘expropriation exception’. However, that property must either be located in the U.S. or it must be owned by a foreign country operating in the U.S. (SCOTUSblog). Respondents are survivors of the Hungarian Holocaust and allege that the Republic of Hungary and MÁV (Hungary’s national railroad) liquidated the property that they took from Hungarian Jews in the 1940s and mixed or “commingled” it with their other funds. Since both the Republic of Hungary and MÁV do business in the U.S. with historically commingled funds resulting from violations of international law, respondents argue that they should be able to sue the Republic of Hungary and MÁV in U.S. courts under the expropriation exception of the FSIA. The Court is being asked whether the historic commingling of funds is sufficient to provide a commercial nexus that would allow respondents to bring suit.
Holding: 9-0 for Hungary. No, the historic commingling of funds is not sufficient as a commercial nexus and “plaintiffs must show that specific funds or assets linked to the seized property are currently in the United States or were used for identifiable commercial transactions there” (Oyez).
U.S. v. Skrmetti (Arg: 12.4.2024) Oyez SCOTUSblog
About: Equal Protection Clause
Question: Does a Tennessee law restricting certain medical treatments for transgender minors violate the Equal Protection Clause of the 14th Amendment?
Explanation: The Equal Protection Clause requires states to practice equal protection for all citizens under the law, with laws that affect different “suspect classes” like race and gender liable to heightened judicial scrutiny. Tennessee passed a law that prohibited the administration of puberty blockers, hormone therapy, and sex-transition surgeries to minors for the purpose of alteration from their biological sex. Plaintiffs argue that this is sex based classification and therefore in violation of the Equal Protection Clause. The Court is being asked if the Tennessee law is a sex based classification and whether it violates the Equal Protection Clause. If it is a sex based classification, the level of scrutiny is much higher than if it is not a sex based classification.
Seven County Infrastructure Coalition v. Eagle County (Arg: 12.10.202) Oyez
About: National Environmental Policy Act (NEPA)
Question: Does the National Environmental Policy Act (NEPA) require an agency to study environmental impacts beyond the effects that the agency has regulatory authority?
Explanation: The Surface Transportation Board (STB), which has jurisdiction over railways, granted Seven County Infrastructure Coalition’s (SCIC) petition to construct and operate an 80-mile railway in Utah’s Uinta Basin that would transport oil. Before the project can proceed, the Board submitted a NEPA review covering the environmental impacts of the project, which are often very long (over a thousand pages), take multiple years to complete, and cover a wide array of topics related to the environmental impact of the proposed project. The Board omitted some more peripheral effects, arguing that increased train traffic on existing tracks was unlikely to have an effect and that the Board as an agency was not required to include effects that it could not prevent, did not have expertise on, or that another agency had primary authority over (LII).
The Court is being asked how expansive the scope of NEPA review should be and whether the Board erred in not including those effects.
TikTok v. Garland (Arg: 1.10.2025; Decided 1.17.2025) Oyez SCOTUSblog
About: Freedom of Speech
Question: Does the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to TikTok, violate the First Amendment?
Explanation: “Congress passed a law in 2024 requiring “foreign adversary controlled applications” (specifically including TikTok) to divest from foreign ownership or face effective shutdown through prohibitions on U.S. companies providing hosting and distribution services” (Oyez). TikTok argued that the law violated its rights to participate in speech and that the law was not sufficiently tailored to address the government’s national security concerns and put too much burden on TikTok’s right to speech. The Court is being asked whether the government’s approach was sufficiently tailored to address its national security concerns.
Holding: Per Curiam (unanimous) decision for Garland. Yes, the government’s approach was sufficiently tailored and the First Amendment was not violated. Since the law was content neutral, intermediate scrutiny applied and the government only had to show that the law was narrowly tailored to directly advance a substantial government interest—of which national security is one.
Free Speech Coalition v. Paxton (Arg: 1.15.2025) Oyez SCOTUSblog
About: Freedom of Speech
Question: Is “rational basis” review or “strict scrutiny” review the correct standard for assessing whether a Texas law that requires any website with over one-third of the content “harmful to minors” to verify the age of users?
Explanation: Texas passed a law requiring websites where over one-third of the content is sexual to implement age verification methods. Free Speech Coalition argues that the law violates the First Amendment because it burdens adults’ access to expression protected by the Constitution, which triggers strict scrutiny—a very high level of review that many laws do not survive. Paxton (Texas’s AG) argued that obscene material is not protected speech and is therefore only subject to rational basis review, a much lower standard. The Court is being asked whether obscene material is protected speech and what level of review should be applied to a law limiting an adults’ access to such material. The issue of obscenity has come to the Court before, but has existed in what Texas’s brief for the case described as a “a notoriously unclear area of law” (Page 37).
Barnes v. Felix (Arg: 1.22.2025) Oyez
About: Fourth Amendment
Question: Should courts apply the “moment of the threat” doctrine when evaluating an excessive force claim under the Fourth Amendment?
Explanation: The “moment of the threat” doctrine is a doctrine that only allows the court to look at “the moment an officer decides to use force in determining if excessive force was used” (Syracuse Law Review). An alternative doctrine, known as the “totality of the circumstances”, allows the court to look at the circumstances surrounding the use of force. Barnes was stopped by Officer Felix and after Barnes started pulling away before being dismissed, Officer Felix jumped on top of the car and, now fearing for his life, shot Barnes to stop the vehicle. Barnes’ estate argues that the officer acted irresponsibly and that the use of force was excessive, but that the “moment of the threat” doctrine does not allow courts to properly consider the circumstances of an incident. The Court is being asked what the correct standard is for evaluating excessive force claims under the Fourth Amendment.
Oral Argument Excerpts
During U.S. v. Skrmetti, Chief Justice Roberts lost track of a thread of discussion about the role of the courts in cases that rely on technical medical knowledge (1:20:46):
Roberts: “I — I think I lost track of the discussion you were having about COVID. What — what was the point you were trying to make?”
Strangio (Advocate for the Respondent): “I — I think –”
Roberts: “Or somebody was trying to make?”
Strangio: “Yes.” (Laughter.) “I — I –I think it was me.” (Laughter.) “… the purpose of heightened scrutiny, even when the government is grappling with experts of — of a medical character, is to still test whether or not that infringement on an individual right or that use of a suspect classification meets the heightened scrutiny standard. It [the Court] is not exempt simply because it is in the context of public health or medicine.”
Roberts: “Well, I don’t want to relive the COVID cases.” (Laughter.)
Strangio: “You and me both, yeah.”
Also from U.S. v. Skrmetti, Justice Kagan and Justice Kavanaugh start talking at the same time and after a bit of back and forth, Chief Justice Roberts intercedes (2:08:40):
Kavanaugh: “At a ––”
Kagan: “Go ahead”
Kavanaugh: “You go ahead”
Kagan: “No, go ahead. (Laughter) No, go ahead. I’ll be back”
Roberts: “Justice Kavanaugh?”
It is actually quite common for two Justices to start asking a question at the same time and it is always worked out politely. Seniority plays a role—Justice Kagan is more senior than Justice Kavanaugh, but if a Justice has been pursuing a line of questioning for a while, they might yield to another Justice. Justices are also called on in order of seniority at the end of argument by the Chief Justice to ask any final questions.
In Thompson v. U.S., argued during the January Sitting, Advocate for the Petitioner Chris Gair gave an amusing example of a technically true statement that was misleading (21:29):
Gair: “So a statement — let’s take an example of a statement that — that might be misleading. If I go back and change my website and say ‘40 years of litigation experience” and then in bold caps say “Supreme Court advocate,’that would be, after today, a true statement. It would be misleading to anybody who was thinking about whether to hire me or Mr. Francisco or Mr. Waxman [prominent SCOTUS advocates], right? But a false statement would be if I had not ever argued in the United States Supreme Court. So it — it — it — it –the –”
Alito: “Well, that’s mildly misleading — maybe, at best, it’s — I don’t know that that’s going to mislead anybody, but, at best, it’s mildly misleading.”
Gair: “Well ––”
Kagan: “It is, though, the humblest answer I’ve ever heard from the Supreme Court podium. (Laughter) So good show on that one.”
Roberts: “Maybe not so good for Mr. Francisco and Mr. Waxman.”
Sarah Mester is a senior in the College studying Political Science and Classics from San Francisco, CA. She’s the Assistant News Editor for The Pennsylvania Post. Her email is smester@sas.upenn.edu.
