SCOTUS 2023 Term Review and October 2024 Term Preview

The Supreme Court of the United States (SCOTUS) is the ultimate appellate jurisdiction for all federal court cases, as well as state court cases that involve questions of Constitutional or federal law.

SCOTUS begins hearing cases in October of each year and typically issues decisions before the term is concluded, customarily in June or July of the following year.
This article provides a review of cases that were decided in the October 2023 term and a preview of cases that will be heard during the October 2024 term that involve issues recently before the Kansas Legislature.

Civil Asset Forfeiture

In Culley v. Marshall, the issue before SCOTUS was whether the Due Process Clause of the U.S. Constitution requires a post-seizure hearing evaluating probable cause for the seizure prior to a forfeiture hearing. SCOTUS held that, in civil forfeiture cases involving personal property, the Due Process Clause requires a “timely” forfeiture hearing but does not require a separate preliminary probable cause hearing.

The 2024 Legislature enacted SB 458, amending several provisions of the Kansas Standard Asset Seizure and Forfeiture Act. Among the revisions to the Act, SB 458 requires an affidavit describing probable cause supporting forfeiture to be filed in addition to the notice of pending forfeiture in order to commence forfeiture proceedings, and the forfeiture may proceed only after a judge has determined there is probable cause to believe the property is subject to forfeiture under the Act.

Homeless Encampments on Public Property

In City of Grants Pass, Oregon v. Johnson, the issue before SCOTUS was whether the city’s enforcement of public camping restrictions against homeless individuals violates the 8th Amendment protection against cruel and unusual punishment. SCOTUS held that enforcement of generally applicable laws regulating camping on public property does not constitute cruel and unusual punishment.

2023 HB 2430 would have required local governments with ordinances prohibiting public camping, sleeping, or obstruction of public rights-of-way to enforce such ordinances. The bill would also have made the use of public lands for unauthorized sleeping, camping, or long-term shelters an unclassified nonperson misdemeanor.

2024 HB 2723 would have made appropriations for fiscal year 2025 for a grant program administered by the Kansas Department for Aging and Disability Services to fund homeless shelter infrastructure for local governments. Local governments that failed to enforce ordinances regarding camping and vagrancy would be required to pay back any grant funds awarded to them under the bill.

Neither bill advanced out of the House Committee on Welfare Reform during the 2023-2024 biennium.

Gender-affirming Care for Minors

In United States v. Skrmetti, the issue before SCOTUS is whether a Tennessee law that prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause of the 14th Amendment. As of September 2024, the parties have filed briefs in the case but no oral argument date has been set.

House Sub. for SB 233, passed by the 2024 Legislature and vetoed by the Governor, would have enacted the Forbidding Abusive Child Transitions Act. The bill would have prohibited health care providers from treating children whose gender identity is inconsistent with the child’s sex.

Age Verification for Certain Websites

In Free Speech Coalition, Inc. v. Paxton, the issue before SCOTUS is whether a law burdening adults’ access to protected speech, in order to protect minors’ access to sexual materials, should be reviewed under a rational-basis test or strict scrutiny test. In July 2024, SCOTUS granted a motion to extend the time for filing briefs in the case to September 16, 2024 (petitioner’s brief), and November 15, 2024 (respondent’s brief).

2024 SB 394 requires the use of age verification technology to permit access to internet websites containing material that is harmful to minors. The bill contains similar language to laws enacted in other states that have been subsequently challenged in federal court, including the Texas law at issue in Free Speech Coalition, Inc. v. Paxton.

Regulation of E-cigarette Products

In Food and Drug Administration v. Wages and White Lion Investments, LLC, the issue before SCOTUS involves whether the U.S. Food and Drug Administration (FDA) acted arbitrarily when it denied marketing authorization applications for new e-cigarette products. As of September 2024, the parties have filed briefs in the case but no oral argument date has been set.

2024 HB 2801 would have required manufacturers of e-cigarette products to certify that FDA approval has been obtained for each of its products offered for sale in Kansas and would have required establishment of a statewide database to list such approved products. The House Committee on Federal and State Affairs held a hearing on the bill, but no final action was taken before adjournment.