The U.S. Supreme Court formally opens a new term on Monday, with all manner of political lightning rods already on its docket, or on their way.
Guns, abortion, extreme partisan gerrymandering ... you thought those legal issues were gone, or at least resolved? The conservative court seemed to think so, too. But those issues are back this term.
Take abortion: When the conservative majority struck down Roe v. Wade, eliminating the constitutional right to abortion, the conservative justices said they were simply returning to the states the question of whether abortion could be legal. Similarly, in another case, the conservative justices ruled that the court was out of the business of policing any form of extreme partisan gerrymandering. And in a broad ruling about gun rights, it said that in the future, gun regulations would be legal only if they were analogous to regulations at the time the Constitution was written.
But in one form or another, all those questions are back on the table this term — mainly to take a second look at appeals from the ultra-conservative 5th U.S. Circuit Court of Appeals, which covers Texas and parts of the deep South.
"The 5th Circuit is ready to adopt the politically most conservative position on almost any issue, no matter how implausible, and no matter how much defiling of precedent it takes," says Irv Gornstein, director of the Georgetown University Supreme Court Institute, who refers to some of the 5th Circuit rulings as coming from "crazy-town." It "would be be shocking if at least some of those decisions are not reversed," he adds.
A survey of those 5th Circuit decisions is something of a roadmap to the upcoming Supreme Court term, at least so far.
Abortion is almost certain to be front and center because of a 5th Circuit decision that would reinstate restrictions on access to mifepristone, the pill that accounts for more than half of the abortions in the United States today. It was first approved by the FDA in 2000 and then approved in 2021 for safe use via telemedicine and by mail.
But the 5th Circuit overrode key portions of the FDA approval. Now Danco Laboratories, maker of the drug, and the Biden administration are asking the Supreme Court to reverse the 5th Circuit decision. They say that if the lower court ruling is upheld, it would dramatically cut back access to the abortion pill in every state in the country, regardless of whether abortion is legal or illegal in the state. What's more, they argue, it would jeopardize the country's longstanding regime of regulating pharmaceuticals.
"Left unchecked, this decision would cause turmoil not only for abortion and miscarriage patients, but for our health care system more broadly," says the ACLU's Julia Kaye. "Hundreds of pharmaceutical companies have told the courts that overriding FDA actions would severely destabilize the pharmaceutical industry, stifling innovation and drug development" and "erecting unscientific barriers to the approval of life-saving medicines," she adds.
Guns are back
Guns will be a major focus again, too. At issue is a 5th Circuit decision that invalidated a federal law banning the possession of guns for anyone who is the subject of a domestic violence restraining order. The question before the court boils down to this: In order to be constitutional, does a gun regulation have to be analogous to gun regulations at the time of the founding, or even after the Civil War when the 14th Amendment was passed? After all, back then there were no court orders to protect wives from their abusive spouses.
"I think the government has the weaker of the historical analogies," says Supreme Court advocate Hashim Mooppan. So the interesting thing to watch, he says, is "how the "moderate bloc of conservatives" manage to "thread that needle of coming up with a reason why, under the history and tradition approach, the government wins, even though the government's historical analogies aren't all that great."
Similar issues are in play in another gun case that tests a federal regulation banning so-called bump stocks, devices that allow semiautomatic weapons to rapidly fire multiple rounds like a machine gun.
Voting rights, part 2
Voting rights cases are also before the court, including one that tests what the NAACP calls "racial gerrymandering" in South Carolina and the state calls "partisan gerrymandering." It matters because, under the court's prior decisions, racial gerrymandering is unconstitutional, but partisan gerrymandering is not.
Also proliferating on the docket are a series of cases that challenge the regulatory powers of various federal agencies, from the Securities and Exchange Commission, to the National Marine Fisheries Service, and the Consumer Financial Protection Bureau.
All could have major consequences for other agencies. Take the CFPB case, for example. The 5th Circuit struck down the agency's funding mechanism as unconstitutional because the agency gets its money from fees paid to the Federal Reserve Board. Congress put that funding mechanism into law when it created the agency in 2010. The 5th Circuit, however, said the agency had to be funded by annual congressional appropriations. Were the Supreme Court to agree that the funding mechanism is unconstitutional, that would put in danger many other agencies, including the Federal Reserve itself, the Federal Deposit Insurance Corporation, which insures bank deposits, and even potentially Social Security and Medicare agencies, all of which are funded in different ways.
Social media cases and federal regulators
The court also has before it a whole series of social media cases. One is a test of state laws enacted by Texas and Florida that ban social media companies from removing content that the companies deem to be false or misleading — for instance erroneous posts about vaccines or election rules, or where and when to vote. The 5th Circuit upheld the Texas law banning such content moderation, and the social media companies, backed by the Biden administration, appealed to the high court.
"It seems to be overwhelmingly likely that the internet companies will win because they have their own First Amendment right to decide how they want to organize their content ... just like The New York Times has its own rights," says Supreme Court advocate Lisa Blatt. But advocates for the state bans counter that internet companies are really more like common carriers, a vehicle to carry everyone's content without interference.
A different social media case tests when a public official may block other people from his or her personal social media account. That's something that President Trump tried to do when he was president, but these cases involve local officials and their longstanding personal accounts.
Yet another controversy that could well come before the court is the health care rights of of trans students. Twenty-two states have enacted laws banning gender-affirming care for trans adolescents, and there is already a split among the lower courts as to whether such bans are constitutional.
Also waiting in the wings is the possibility of legal questions that may arise from one or more of the Trump trials.
All of this, of course, comes at a time when the court faces repeated disclosures about alleged ethics violations by some of the justices, particularly Justice Clarence Thomas, and to a lesser degree by Justice Samuel Alito. And though some justices — most recently Justice Elena Kagan — have indicated support for the notion that the court should write an ethics code for itself, it appears, for now, that a majority of the justices do not agree.
So stay tuned. Whatever it does, the Supreme Court will not be boring.
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