This term the Supreme Court decided two cases that removed judicial barriers to federal court review in Olivier v. City of Brandon, and First Choice Women’s Resource Center v. Davenport, throwing open the courthouse doors to plaintiffs with constitutional injuries. These cases continue a multi-year trend of course-correcting on judicial doctrines that barred defendants in agency or state-court actions from having their federal challenges resolved by a federal court. In some cases, that exclusion left defendants facing onerous multi-year agency or state court proceedings. In others, issue preclusion threatened their ability to ever reach federal court on their constitutional claims.
The 2025–26 term was about preclusion, in which plaintiffs with First Amendment injuries confronted obstacles to judicial review that would have shut down their constitutional claims entirely.
The first of these was Olivier v. City of Brandon, which addressed Heck preclusion. 607 U.S. ____ (2026). Gabriel Olivier is a street preacher. In 2019, a new city ordinance required all individuals or groups engaging in protests or demonstrations, at the time certain large events were scheduled, to stay within a designated protest area. In 2021, Olivier was arrested for violating that ordinance. He pleaded no contest, paid the $304 fine, was sentenced to one year of probation, and avoided imprisonment by obeying the ordinance during his probation.
But he still wanted to be able to preach without risking another violation, so he filed suit in federal court under 42 U. S. C. § 1983, alleging that the ordinance violates the First Amendment. He sought an injunction preventing the city from enforcing the ordinance in the future—but seeking no change to his previous conviction. The city argued his claim was barred by Heck v. Humphrey, which bars § 1983 claims that present collateral attacks on previous convictions, i.e., if the plaintiff was previously convicted under a law, a later constitutional challenge to the law could not be used to undermine the conviction.
The Supreme Court disagreed, holding unanimously that Heck does not bar purely prospective relief nor prevent constitutional challenges to laws—even by plaintiffs who have a prior conviction under the challenged law. Plaintiffs are simply precluded from using any future holding to mount a collateral attack on a prior conviction. Thus, the very plaintiffs most likely to viably challenge an unconstitutional abridgement of speech—those who have spoken before and were prosecuted for it—may have their day in court.
In another unanimous opinion, the Court addressed a subpoena served by the New Jersey Attorney General on First Choice Women’s Resource Center, a religious nonprofit that provides counseling and resources to pregnant women, commanding the group to produce 28 categories of documents, including names, phone numbers, addresses, and places of employment of all individual donors who donated by any means other than through one specific webpage. First Choice filed a § 1983 suit in federal district court seeking to prevent the Attorney General from enforcing the subpoena and arguing that the demand for donor information violated its First Amendment right of association. The district court dismissed the complaint, holding that until a state court ordered First Choice to comply, it had suffered no injury and thus lacked Article III standing. But had First Choice waited for an enforcement ruling from the state court, its constitutional claim would have been precluded, and it would have lost its chance at review.
The Supreme Court held that First Choice had standing to pursue its First Amendment claim in federal court because First Choice had established a here-and-now injury arising from chill to its donors. This outcome is important because issue preclusion risks depriving plaintiffs like First Choice of receiving access to federal court on constitutional claims. Were the state empowered to dictate the terms of Article III court access, “the government could channel the ability of disfavored groups to associate through narrow and state-preferred forms and achieve exactly what the First Amendment forbids.” That approach would undermine § 1983, which Congress enacted “with the express goal of ensuring a federal forum to citizens who claim that state actors have violated their constitutional rights.” This, combined with federal courts’ “‘virtually unflagging’ obligation to exercise the jurisdiction given them,” means procedural maneuvers such as using state investigatory demands to chill First Amendment rights should be subject to federal court review without risk of being precluded altogether.
Olivier and First Choice continued a trend of removing judicial barriers that began in 2019 with Knick v. Township of Scott, where the Court was asked whether property owners could be required to exhaust state court remedies before seeking review of a federal takings claim. This was a matter of standing, in which the state argued that a takings claim was not ripe until the plaintiff had sought compensation and was denied. But that approach would have denied Knick her day in court altogether.
Knick had a small family cemetery on her land. A town ordinance required that the cemetery be open to the public during daylight hours. She sued in state court in a declaratory action alleging a taking. The town withdrew the notice of violation and mooted her case. When she filed a § 1983 claim in federal court alleging a taking under the Fifth Amendment, the district court dismissed her claim under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), which held that property owners must seek just compensation under state law in state court before bringing a federal takings claim under § 1983.
In a 5-4 opinion, the Court in Knick held that a government violates the Takings Clause when it takes property without compensation—not at some later time when administrative remedies have been exhausted, and a property owner may bring a Fifth Amendment claim under § 1983 at that time. The trigger for access to federal court is the constitutional violation, i.e., the taking—not the outcome of a compensation case or any other post-taking procedure.
In Knick, the risk was similar to the risk in First Choice, that the plaintiff could lose federal review altogether if compensation was denied in state court. That denial would trigger the so-called San Remo preclusion trap, which prevents takings plaintiffs from ever bringing their claims in federal court. “The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.” The state litigation requirement was thus overruled, opening the federal courthouse to takings plaintiffs at the moment of the taking.
Two other recent cases addressed agency enforcement actions and the practice of preventing defendants from challenging the constitutionality of the agency in district court while enforcement was ongoing.
Three years ago, in Axon Enterprise, Inc. v. FTC, the question was whether federal district courts have jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence, or whether Congress stripped that jurisdiction by providing a method of appeal of Commission cease-and-desist orders. A companion case, SEC v. Cochran, proposed a similar jurisdictional question for constitutional challenges to the SEC.
In both cases Petitioners were respondents in in-house FTC and SEC enforcement actions. They individually challenged the constitutionality of the agency proceedings against them in federal court. invoking federal-question jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331.
The Supreme Court held that the statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act do not displace a district court’s federal-question jurisdiction over claims challenging as unconstitutional the structure or existence of the agency. Applying what are known as the Thunder Basin factors: 1) could precluding district court jurisdiction “foreclose all meaningful judicial review” of the claim? 2) is the claim “wholly collateral” to the statute’s review provisions? And 3) is the claim “outside the agency’s expertise”? the Court concluded that because Cochran and Axon asserted a “here-and-now injury” from being subjected to an illegitimate proceeding, led by an illegitimate decisionmaker the alleged injury would be impossible to remedy once the proceeding was over—and thus Thunder Basin was satisfied.
Justice Gorsuch concurring in the judgment took an even more straightforward approach, jettisoning Thunder Basin and relying solely on § 1331 jurisdiction: “Today, § 1331 provides that ‘district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.’ Not may have jurisdiction, but shall. Not some civil actions arising under federal law, but all.” While the petitioners prevailed, as Justice Gorsuch noted, there is more work to be done to ensure consistent access to federal court on constitutional questions.
The 2025–26 term opinions took another step in the direction of fulfilling Justice Gorsuch’s vision by removing judicial barriers to federal court review.
Cindy Crawford is a Senior Policy Counsel at Americans for Prosperity.
