FAC Weekly Update 2026-07-07- If a Registry Case Returned to the Supreme Court

Weekly update for July 7 2026. This is recording number 380

Dear Members and Advocates,

Last week, the 2025-2026 term of the Supreme Court of the United States ended. We posted a summary of what cases had been decided during that session and what relevance they have to sex offender registry issues. We noted that it’s been a long time since the Court had taken up a true registry challenge and we hope that our forthcoming case will be the one to make it there.

The response to last week’s post and to our forthcoming lawsuit was great. Many of you asked the same questions, “If a major constitutional challenge to sex offender registration laws reached today’s Supreme Court, how would the justices vote?” and “What is the likelihood that the Supreme Court would overturn Smith v. Doe?” In this week’s update, we’ll share our thoughts and some of our strategies, and we’ll make a plea to our members and other advocacy groups who might read this update to please support our challenge.

Of course, no one knows how any Justice might feel about a “sex offender case” that comes before it. Supreme Court justices are notoriously difficult to predict, and any attempt to handicap a future case is just that – an educated guess. But looking at each justice’s judicial philosophy can offer some clues.

Justice Clarence Thomas has increasingly emphasized the Constitution’s original meaning and our nation’s historical understanding of punishment. His recent concurrence in Elligburg suggests he is less interested in what lawmakers call a law and more interested in what it actually does. If modern registry laws resemble historical forms of punishment such as banishment, public shaming, or continuing government supervision, Justice Thomas may be willing to take a hard look at whether they are truly “civil.” He even called out Smith v. Doe, suggesting its analysis was wrong.

Justice Neil Gorsuch has consistently demonstrated a healthy skepticism of government power and a strong commitment to individual constitutional rights. He has not been afraid to side with criminal defendants when fundamental constitutional protections are at stake. In the 2019 case Gundy v. United States, Gorsuch issued a powerful dissenting opinion (joined by Chief Justice John Roberts and Justice Clarence Thomas) arguing that the Sex Offender Registration and Notification Act (SORNA) unconstitutionally delegated legislative power to the Attorney General to write his own criminal code. His focus on liberty and constitutional text could make him receptive to arguments that today’s registry laws have crossed constitutional boundaries.

Justice Amy Coney Barrett is also an originalist. Her opinions often begin with history and tradition. If presented with compelling evidence that modern registration schemes impose disabilities that resemble historical punishments, she could prove to be an important voice on the Court.

Justice Brett Kavanaugh is a wild card. He generally respects precedent but has also shown a willingness to recognize when circumstances have changed. Given that he, himself, was embroiled in sexual abuse allegations, we often see that people accused sometimes push back the hardest to distance their own allegations. It’s the “how can I be a sexual abuser when I’m obviously so strongly against the issue?” attitude, that might be in his mind. Justice Samuel Alito is a concern. He has traditionally deferred to legislatures on matters involving public safety. He would likely be among the more difficult votes for challengers to secure.

The Court’s three liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson present an interesting question. While they often vote to protect individual rights in criminal cases, they also place considerable value on precedent. Whether they would be willing to distinguish today’s registry laws from those considered in 2003 remains to be seen. A couple of really promising facts lead us to believe these justices might be on our side. First, there was the Ortiz case, which was a case the Supreme Court decided not to take up, but that Justice Sotomayor felt compelled enough to write an opinion on regardless. It was a residency restriction case in which she indicated she strongly felt a residency restriction was unconstitutional. She also suggested it was “a matter of time” until the Court took up such a challenge. Since our forthcoming case is based primarily on residency restrictions, this just might be the case she was waiting for.

Then there’s also Justice Brown Jackson, what influences our positivity on her position also doesn’t come from a case the Supreme Court heard, but on her confirmation hearings. During the confirmation hearings, several senators scrutinized her sentencing decisions in child pornography cases, arguing that she had imposed sentences below the advisory guidelines. Justice Jackson responded that these cases require judges to evaluate the unique facts and circumstances of each defendant, rather than applying a rigid, one-size-fits-all approach. That philosophy could become significant in the context of sex offender registration laws, where broad statutory schemes often impose identical restrictions on people with vastly different offenses, risk levels, and decades of offense-free conduct. If presented with a challenge to registry laws, Justice Jackson may be receptive to the argument that treating every registrant the same, regardless of individual circumstances, raises serious constitutional concerns. She may be skeptical of legal regimes that fail to distinguish between individuals and instead rely on blanket rules that apply equally to everyone. Another issue that will be prominent in our challenge.

And then there is the Chief Justice. John Roberts occupies a unique place in this discussion because, before joining the Supreme Court, he was the attorney who argued Smith v. Doe on behalf of the government before the Court. It is fair to assume he understands that case as well as anyone. At first glance, asking Chief Justice Roberts to rule against the position he once argued might seem like a monumental task. But perhaps it isn’t.

Throughout our advocacy, we’ve constantly thought in the perspective of “overturning Smith v. Doe”, but that might not necessarily be what we’re looking to accomplish here. The comparison many people make is to the Court’s decision overturning Roe v. Wade. We don’t think that’s the right comparison. Roe involved the same medical procedure outcome in 2022 that it involved in 1973. The legal debate centered on constitutional interpretation, not whether the underlying facts had fundamentally changed. An abortion is an abortion. Same today as it was 50 years ago. But registry laws are different. The registry that the Supreme Court reviewed in Smith v. Doe is not the registry that exists today. The underlying facts have fundamentally changed.

When the Court upheld Alaska’s registry law in 2003, it repeatedly emphasized features that it believed demonstrated the law was regulatory rather than punitive. The Court noted that registrants remained free to live and work where they wished. There were no residency restrictions. There were no exclusion zones that effectively banished people from communities. There were no driver’s license markings. No passport identifiers. No internet identifier reporting. No extensive in-person reporting requirements. No restrictions preventing someone from entering parks, libraries, or countless other public places. The Court also believed the law imposed only a minimal affirmative disability or restraint.

Can anyone honestly say that describes the registry today? Today’s registrants face residency restrictions that contribute to homelessness. Registrants must report repeatedly, in person to sheriff’s offices, throughout the year. They must report vehicles, internet identifiers, travel plans, temporary lodging of three days, employment changes, volunteer activities, higher education enrollment, and a growing list of life events. Public websites provide detailed personal information that can lead to harassment, vigilantism, housing discrimination, and employment barriers. Entire categories of public places have become effectively off limits under state and local laws.

In other words, the 2003 Supreme Court in Smith v. Doe evaluated one animal. Today’s Court will be asked to evaluate something very, very, different. That distinction matters. The Supreme Court doesn’t have to “overturn” Smith v. Doe to provide meaningful constitutional relief. In fact, even though we might not agree with that decision, one of the strongest legal arguments may be that Smith was decided based on the Alaska law that existed in 2003, but that today’s registration systems have evolved so dramatically that Smith simply does not control the outcome anymore. Asking Chief Justice Roberts to recognize that reality is very different from asking him to admit he was wrong twenty-three years ago.

When introducing a new “registry case” to the Supreme Court, we are asking the Justices to acknowledge what every registrant, every family member, and every advocate already knows; that the registry of 2026 is not the registry of 2003. And when that case reaches the Supreme Court, we believe that difference may become the most important fact in the courtroom.

Of course, none of this will happen unless the right case is brought before the Court. That’s why FAC has retained attorney Michael Kimberly to lead our forthcoming constitutional challenge. Michael has argued nine cases before the United States Supreme Court, giving him the experience and credibility needed to navigate a case from the trial court all the way to the nation’s highest court. If there is an opportunity to present the strongest possible challenge to today’s registry laws, we believe there is no one better suited to lead that effort. But litigation of this magnitude is expensive, and it cannot succeed without the support of our members and our sister organizations. If you believe the time has come to ask the courts to recognize that the registry of today is not the registry considered in Smith v. Doe, please consider making a donation to FAC’s general legal fund. Every contribution, regardless of size, helps move this historic challenge one step closer to the Supreme Court and we need your help now more than ever.

Sincerely,

The Florida Action Committee