University of Houston Law Center Dean Leonard M. Baynes moderates a panel discussion with professors Emily Berman, Seth Chandler and Peter N. Salib on the U.S. Supreme Court 2023-2024 term.
Aug. 20, 2024 — Legal scholars from the University of Houston Law Center convened this month, with nearly 600 online attendees, to analyze key rulings and emerging trends from the 2023-2024 U.S. Supreme Court term. The panel, moderated by UHLC Dean Leonard M. Baynes, focused on complex issues such as First Amendment cases, the growing influence of the Fifth Circuit Court of Appeals, and the Court's tendency to welcome specific legal challenges.
Peter N. Salib, Assistant Professor of Law at UHLC, likened the Court's approach to this term to "a dog who caught the car" when grappling with complex issues.
He cited cases such as Net Choice, LLC v. Paxton and Moody v. NetChoice, LLC, noting that the justices appeared to “balk in deciding hard issues” in these “two potentially blockbuster First Amendment cases.”
Both cases, involving social media moderation, were sent back to the lower courts.
Another focal point of the discussion was the impact of the U.S. Court of Appeals for the Fifth Circuit, which hears cases from Louisiana, Mississippi and Texas.
Emily Berman, Professor of Law, William B. Bates Distinguished Chair in Law and Assistant Dean for Faculty Development, described this trend as “the 5th Circuit phenomenon” where litigants are pushing boundaries to test what arguments can succeed. “It’s open season on precedent.”
Salib added, “On the one hand, the Fifth Circuit is getting overturned a lot — much in the way that the Ninth Circuit used to. So that’s one reason to think that it’s not currently very influential. But on the other hand, you might think of it as trying out a bunch of theories, most of which will fail, but some of which could become the law of the land.”
Seth Chandler, Law Foundation Professor of Law at UHLC, observed that the Supreme Court, especially Justice Clarence Thomas, has been inviting specific legal challenges.
Chandler contrasted Chief Justice John Roberts' vision of the court as an 'umpire' to a more interventionist conception, noting that the umpire does not ask for a curveball to be thrown outside to judge whether it’s a strike.
However, “Thomas seems to be saying, I'd like to expand the strike zone,” Chandler explained that Thomas in his court opinions “has certainly been quite bold in setting forth those arguments that he would particularly like to be brought.”
This presentation is one of a three-part Continuing Legal Education (CLE) series focused on pivotal U.S. Supreme Court decisions from the 2023-2024 term. The next in the series is Sept. 10 and will delve into the U.S. Supreme Court’s overruling of the Chevron doctrine.
For more information on upcoming CLE events, visit law.uh.edu/cle/.
