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WASHINGTON — Two months into its new term, the Supreme Court is facing a docket that legal observers already rank among the most consequential in a decade. At the center sits a major climate change case testing whether the EPA can force a nationwide shift in how power plants generate electricity. Around it, the justices have stacked disputes over religious schools and immigrant detention. As of Nov. 27, 2021, the term is on pace to reshape environmental law, school-choice policy and the limits of federal agency power.
The 2021-22 term opened on Oct. 4 with the justices back on the bench for in-person oral arguments, ending a pandemic experiment that had turned the courtroom into a conference call. The calendar since then has been unmistakably heavy: a direct challenge to long-standing abortion precedent, a sweeping Second Amendment test and now the court's first extended look at the Clean Power Plan fight. With six conservative justices in the majority, every addition to the docket has drawn scrutiny from both parties.
The climate question arrives in West Virginia v. EPA, No. 20-1530. The court granted review on Oct. 29 over the Biden administration's objections. At the heart of the case: Does the Clean Air Act permit the EPA to design a "best system of emission reduction" for existing power plants that effectively pushes the U.S. electricity sector from coal to natural gas and renewables?
The dispute began with the Obama-era Clean Power Plan, which treated the electricity grid as a whole. The EPA's theory was that the cheapest, most effective way to cut carbon from aging coal plants was to shift generation to cleaner sources. In 2016, the Supreme Court took the unusual step of staying the rule before it took effect, voting 5-4 that the challengers were likely to win. The plan never operated.
The Trump administration later repealed it and replaced it with the Affordable Clean Energy rule, a much narrower reading of EPA authority. In January 2021, the U.S. Court of Appeals for the D.C. Circuit struck down that replacement. A coalition of Republican-led states, led by West Virginia, then petitioned the Supreme Court to settle the statutory question once and for all.
The Biden administration urged the justices to stay out of it, insisting the dispute would become moot once the agency writes a new rule. The court was unmoved. Now the justices must decide how much latitude Congress gave the EPA in Section 111(d) of the Clean Air Act.
West Virginia argues that forcing utilities off coal is a reordering of the energy economy, not a routine pollution-control measure, and that such a momentous step needs clear congressional approval. The EPA counters that the statute has long been read flexibly, that emissions limits can reflect system-wide costs and that courts have repeatedly upheld the agency's power to think beyond the smokestack.
The lawyers are watching for a ruling on the "major questions doctrine." That doctrine holds that Congress must speak particularly clearly before agencies regulate matters of enormous economic and political significance. A broad endorsement would constrain not only EPA climate rules, but ambitious agendas across the federal government. A narrow ruling would leave the administrative state on its current footing.
Either way, the decision will land as the Biden administration drafts its next greenhouse-gas rule for existing plants. The president has pledged to put the power sector on a path to 100 percent clean electricity by 2035, but that ambition now runs through a skeptical Supreme Court. Scholars such as Case Western Reserve University law professor Jonathan Adler have described the case as the most important environmental administrative-law dispute in decades.
Religious liberty arrives next month. On Dec. 8, the justices will hear Carson v. Makin. Maine lets students in towns without public high schools use state "tuitioning" money at approved private schools, but the state excludes schools that provide religious instruction. Families at Bangor Christian School and Temple Academy say that exclusion is outright discrimination against religion.
The case builds on two recent victories for religious schools. In Trinity Lutheran Church v. Comer (2017), Missouri could not deny a church preschool a state-funded playground grant. In Espinoza v. Montana Department of Revenue (2020), a state could not bar religious schools from a tuition tax-credit program. Chief Justice John Roberts wrote in Espinoza: "A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious."
Maine's defense rests on a distinction the court has grown increasingly suspicious of: status versus use. Maine says it is not discriminating against schools because they are religious; it is declining to fund them because they teach religion in every subject. Detractors call that a dodge. If the court agrees with the families, states that run voucher-style programs will have to include religious schools, and the line separating public money from religious instruction will be considerably blurred.
Immigration cases are running in tandem. On Nov. 9, the court heard Johnson v. Arteaga-Martinez, which asks whether detained noncitizens are entitled to bond hearings before an immigration judge after six months in custody following a final removal order. Garland v. Gonzalez is set for argument on Dec. 7 and will test whether federal courts can order such hearings for an entire class of people caught up in expedited removal proceedings.
The government says administrative reviews already satisfy due process; immigrant advocates say the current system can trap people for years without a neutral judge. The cases are narrower than the border-policy battles in the headlines, but they determine how much control the executive branch keeps over deportation and how much supervision courts can provide.
The court has also dealt with its share of emergency applications tied to border policy in recent months. Those disputes move quickly and often bypass full briefing. The detention cases, by contrast, give the justices a chance to lay down a clear rule about when a person in federal custody gets a hearing.
Before the EPA case is argued, the court faces two cases likely to generate more headlines. On Dec. 1, Mississippi's challenge to Roe v. Wade will be argued in Dobbs v. Jackson Women's Health Organization. In early November, the justices heard New York State Rifle & Pistol Association v. Bruen, a challenge to New York's public-carry restrictions that is among the most-watched gun cases in years. Those two cases may dominate public conversation, but climate and immigration could have equally durable effects.
The term also tests the influence of Chief Justice Roberts. He authored the two recent religious-school decisions that Carson v. Makin builds on, and he has shown interest in keeping the court within mainstream conservative bounds. Whether he can assemble a stable majority in the EPA case — where the court's conservative wing has different views on how aggressively to check agency power — remains an open question.
Court watchers also note the timing. Polls from late 2021 put public approval of the court near two-decade lows, and the building has become a recurring scene for protests during arguments in politically charged cases. The justices are not known to shape rulings around public opinion, but the term's combination of cases guarantees that whatever they decide, the political fallout will be loud.
For now, briefs continue to pile up. The EPA case is scheduled for argument in the spring, decisions in the religious and immigration cases should arrive between April and June, and every month brings another filing that hints at where the court is heading. The term began with the quiet gavel of an ordinary session. It will end in late June with answers to some of the most difficult questions American government has to offer.
