The Supreme Court begins another contentious term
AFTER A TRIO of terms that saw the Supreme Court side repeatedly with Donald Trump while weakening abortion rights, affirmative action, gun-safety laws and administrative agencies, the nine justices return to their courtroom on October 7th with a fresh lineup of pivotal cases. America’s highest court could also find itself entangled in challenges related to the presidential election.
The possibility of an election-altering case on par with Bush v Gore, the ruling in 2000 that in effect made George W. Bush president, comes at a delicate moment for the court. Ethics concerns involving Justices Samuel Alito and Clarence Thomas, leaks of internal deliberations and calls for reform—alongside a backlash to the court’s rightward lurch—has public support hovering at near-record lows.
On October 8th the court confronts the question of ghost guns: 3D-printed or kit-assembled weapons that lack serial numbers. In August 2023 five justices temporarily allowed the Biden administration to clamp down on these hard-to-trace guns that have become more common at crime scenes. Now, in Garland v VanDerStock, the justices will decide whether the Bureau of Alcohol, Tobacco, Firearms and Explosives may construe components of ghost guns as “firearms” subject to the same background checks, serialisation and other requirements that apply to conventional guns.
The government argues that ghost guns are like bookshelves, which are taxed as such whether they are a finished piece or a “furniture parts kit” sold at IKEA. But recent decisions suggest the Supreme Court may disagree. In June the majority departed from decades of precedent affording administrative agencies leeway when applying open-ended congressional statutes. This court’s suspicion of what it sees as runaway bureaucrats—together with the majority’s underlying hostility to firearm restrictions—may doom the Biden administration’s efforts to stop the spread of ghost guns.
Other regulations are at risk too. On October 16th the justices will hear City and County of San Francisco v Environmental Protection Agency, the latest in a litany of challenges to the EPA. San Francisco argues that the agency was too vague when it told the city to limit its discharge of sewage into the Pacific Ocean to a level that does not “cause or contribute to a violation of any applicable water quality standard”. Another agency decision is under fire in Food and Drug Administration (FDA) v Wages and White Lion Investments, which involves vaping products. The case asks whether the FDA can stop companies from selling sweet flavours of their e-cigarettes that appeal to children—from “Jimmy the Juice Man Peachy Strawberry” to “Strawberry Parfait”.
Culture-war disputes over constitutional rights are also on their way. Richard Glossip, a death-row inmate, makes a rare return trip to the Supreme Court on October 9th in the bizarre case of Glossip v Oklahoma. In 2015 Mr Glossip lost, 5-4 when he claimed the drug with which Oklahoma planned to execute him would cause undue pain. In dissent, Justice Stephen Breyer penned a jeremiad against capital punishment, arguing, among other things, that long delays between crime and punishment “undermine the death penalty’s penological rationale”. Nine years on, Mr Glossip says new evidence of prosecutorial misconduct proves he had not received a fair trial. Remarkably, Oklahoma agrees. The state no longer intends to execute him. Nevertheless, Oklahoma’s highest criminal court ruled against Mr Glossip. With no state official willing to defend that ruling, the Supreme Court appointed a third party—a former clerk to Chief Justice John Roberts—to make the case.
Access to pornography on the internet is at the centre of Free Speech Coalition v Paxton, a challenge to Texas’s law requiring users to prove they are 18 before gaining access to sites where “sexual material harmful to minors” comprises “more than one-third” of the content. Texas says its law—which has some 18 (and counting) analogues across America—protects minors from “depression, disassociation and other behavioural problems such as emulating sexual strangulation, dating violence and sexual coercion”. But according to the pornography industry’s trade association, represented by the American Civil Liberties Union, requiring adults to submit government identification over the internet will have an unconstitutional chilling effect: surfers will fear having their proclivities exposed via data breaches or winding up on nosy government officials’ thumb drives.
In United States v Skrmetti, the justices ask whether Tennessee’s ban on a wide range of medical care for transgender children violates the Equal Protection Clause of the 14th Amendment. The prohibition, passed in 2023, encourages minors to “appreciate their sex, particularly as they undergo puberty”. Several transgender youngsters, with the support of the Biden administration, say Tennessee’s law targets them and discriminates on the basis of sex. A teen “whose sex assigned at birth is male”, the federal government notes, “can be prescribed testosterone to conform to a male gender identity” while the same treatment is denied to a teen designated female at birth. Tennessee argues that the plaintiffs’ reliance on Bostock v Clayton County, a 2020 decision banning workplace discrimination against trans people, is misplaced. Prescribing “testosterone or oestrogen to treat a deficiency”, their brief reads, “is in no way similar to using those drugs to elevate hormone levels far above the naturally occurring baseline to induce or prevent certain physical changes”. Skrmetti’s wake could be wide: about half the states restrict such care for trans minors.
Kingmakers?
Forty cases, including a class-action lawsuit against Meta and a securities-fraud case against Nvidia, are on deck. (Another 20 or so will be added as the term proceeds.) The docket could see still more drama if the Supreme Court is again placed at the centre of the 2024 presidential election. When desperate post-election challenges from allies of Donald Trump reached the justices in 2020, they were curtly dismissed. Somewhat less outrageous claims could land at One First Street this autumn. One involves the fate of mail-in ballots that are postmarked by election day but arrive a few days later. The Fifth Circuit Court of Appeals is weighing whether this practice in Mississippi (used in nearly half the states) jibes with a law Congress passed in 1845 setting election day as “the Tuesday after the first Monday in November”. If the race is as close as the polls indicate, jettisoning late-arriving ballots in crucial swing states could plausibly (since Democrats tend to vote by mail in greater numbers) swing the election to Mr Trump.
The youngest and most recent additions to the court will play an influential role in the upcoming term. Justice Ketanji Brown Jackson, aged 54 and one-third of the left-leaning bloc, has asserted herself during oral arguments by speaking twice as much as the average word count of her eight colleagues. Though on the losing side of a decision in 2023 banning race-based affirmative action in higher education, her questioning paved the way for a notable caveat in the majority opinion: admissions officers may still consider application essays detailing “how race affected [the student’s] life”. And in June she reportedly extracted a key concession from the conservative bloc by joining it in Fischer v United States, a case involving prosecution of January 6th rioters.
Justice Amy Coney Barrett, aged 52, departed from the other conservative justices (and Justice Jackson) in Fischer and was not sparing in her criticism. Exempting Capitol infiltrators from prosecution, she wrote, sprung from “textualist backflips” and an unwillingness to “believe that Congress meant what it said”. A few days later Justice Barrett largely joined Chief Justice Roberts’s opinion in Trump v United States but condemned it for opening an unnecessarily wide immunity umbrella over the 45th president for his alleged attempts to overturn the 2020 election. There is “no plausible argument”, she wrote, that could justify shielding Mr Trump from prosecution for alleged acts like cultivating fake slates of electors.
Yet, thanks to her conservative colleagues, Mr Trump’s election-interference trial—bolstered by damning evidence Jack Smith, the special counsel, filed last week—remains on hold until after America votes again in November. By then, the justices will be well into another journey through a minefield of legal disputes. ■
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