Trump Department of Justice could change fate of Supreme Court disputes, observers say

Court watchers are eyeing the Supreme Court’s handling of the challenge to a state law banning kids’ sex changes, as the incoming Trump administration is expected to reverse course in the dispute early next year.

And it’s not the only high-stakes legal battle at the high court where the fate is unclear.

Challenges addressing ghost guns and flavored vapes could also see the feds reverse course.

All of those disputes, though, have been argued and are just awaiting decisions from the justices, which could come anytime by the end of June.

Tennessee Attorney General Jonathan Skrmetti said there’s precedent for the justices going ahead and deciding a dispute once arguments have happened when there is another private party involved.

“The justices have a lot of discretion,” Mr. Skrmetti said. “There is case law out there from the Supreme Court that as long as a party has litigated it, even if they are not the petitioning party, the case can continue.”

Transgender medical treatment for youth

That’s the situation in Mr. Skrmetti’s dispute with the American Civil Liberties Union and the Biden administration over his state law banning transgender medical treatment for youth with gender dysphoria.

The justices heard the dispute last week, weighing whether the state law violates the Equal Protection Clause of the Constitution. The Biden administration had argued it does since boys may obtain certain medicines girls could not and vice versa. But the Tennessee solicitor general said it turns on the condition, not the gender of the patient.

It’s expected the Trump administration would take a different position, one more in line with Tennessee, than the Biden administration has on the issue of giving transgender youth puberty blockers, hormone therapy and access to sex change surgeries.

Although the case is U.S. v. Skrmetti, the ACLU participated in arguments representing a group of transgender youth and their families.

Chase Strangio, the ACLU lawyer representing transgender youth at the Supreme Court, said he cannot predict what the Trump administration will do with this case or how the Supreme Court may handle the change.

“The Supreme Court is certainly not stripped of jurisdiction,” Mr. Strangio said. “The case will have been fully briefed and argued. The case continues, the conflict continues.”

Court watchers anticipate the justices could side with Tennessee so long as the justices retain the dispute.

“I have 90% confidence that Tennessee would win,” said Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute.

Flavored vapes

Unlike the ACLU involved in the transgender dispute, there’s no private litigant involved in the Food and Drug Administration’s fight over the marketing of flavored vapes.

The case, Food and Drug Administration v. Wages and White Lion Investments LLC, dba Triton Distribution, et al., involves the FDA’s rejection of marketing authorization for flavored e-cigarettes or vapes by Triton Distribution, which also has products sold by Vapetasia.

The justices heard arguments earlier this month in the legal battle, where the feds said Congress authorized the executive branch to protect those younger than 18 from tobacco through the Family Smoking Prevention and Tobacco Control Act.

The FDA says the concern about the products impacting youth outweighs arguments by the companies that the flavors would help cigarette smokers quit.

It’s unclear at this time where the Trump administration will stand on flavored vape products and if a Trump FDA would still deny the marketing applications.

“I imagine a lot of Trump supporters like vapes,” said Mr. Shapiro. “I think it is something they will definitely be looking at.”

Ghost guns

The federal government could also reverse course in the fight over banning ghost guns.

Though the Trump administration did back a ban on bump stocks, so it is possible the new solicitor general could stay the course.

In the bump stock dispute, Garland v. VanDerStok, gun rights advocates have challenged a 2022 regulation by the Bureau of Alcohol, Tobacco, Firearms and Explosives that said gun kits that include all the parts, or receivers that include the main body of a weapon that just needs to have the final holes drilled and material scraped away, are close enough to manufactured guns that they fall under the 1968 Gun Control Act.

Josh Blackman, a professor at South Texas College of Law, said if the Trump administration revisits the federal rule, the high court could take the case off its docket.