It is that time of year. The leaves are turning, there’s a chill in the air, the Halloween decorations are coming out, and the Supreme Court is beginning its term, deciding on the cases it will rule on during the first half of next year, remaking American jurisprudence and chunks of our society in its own image.
Not that the high court has ever flown under the radar per se, but there have been periods when it was not so much in the public spotlight, and then others when the court loomed so large as to almost overshadow other branches. We’re decidedly in one of the latter moments, and unlike the liberal Warren court of the mid-20th century, which helped deliver and protect many of the most emblematic civil rights era reforms, the Roberts court is notable mainly for its sharp rightward turn.
In recent years, SCOTUS snapped most fully into the public consciousness via perhaps the most controversial decision in a generation, the Dobbs v. Jackson Women’s Health Organization ruling that overturned the Roe v. Wade precedent finding a legal right to an abortion. But the court has been busy well beyond that, having in the past two terms issued ground-shaking decisions at rapid clip. I wrote in-depth about some additional rulings in the 2021-2022 term, and in the last two years the court has also struck down parts of the Voting Rights Act, stopped the implementation of Covid mitigation measures, struck down affirmative action in most schools, and determined that the state of being homeless can be effectively criminalized even when alternatives are not offered.
This past term, the court ruled that presidents are immune from prosecution for any conduct downstream of constitutional presidential powers and presumptively immune from much else. It also struck down a precedent that deferred to federal agency experts when crafting regulations, putting judges in the driver’s seat for rules ranging from clean air to meat inspections.
The upcoming term is being described by some commentators as tame by comparison, but that doesn’t mean that we won’t be seeing some decisions. There are two widely watched gun-related cases, one related to so-called ghost guns and one surrounding liability for American gun manufacturers. Interestingly, neither are technically Second Amendment cases.
In the first, the court is considering a lawsuit against rules implemented by the federal government two years ago that classified ghost guns — gun parts and kits that are not assembled when sold — as firearms requiring the same serial number identification and background checks as other guns. Essentially, is a disassembled gun still a gun? The plaintiffs argue no. The second is an interesting case involving a lawsuit by the nation of Mexico against seven gun manufacturers and one distributor, attempting to hold them liable for their products’ devastation in Mexico, where the cartels have long used guns legally bought in the U.S. and trafficked into the country, to the tune of over a half million a year. SCOTUS is considering whether the gun companies are immune under a 2005 law that specifically carves gun companies out from liability for misuse of their products.
Another big one is the court’s consideration of a lawsuit by three transgender teens and the Justice Department against the state of Tennessee, which had adopted a law banning some gender-affirming treatments for minors diagnosed with gender dysphoria. The plaintiffs argue the law is unconstitutional, in part because it only targets people who are specifically transgender, and not other minors who might be undergoing the same treatments for other reasons or to affirm sex assigned at birth. Dozens of states have passed or are considering similar legislation, which means that a ruling here would reverberate well beyond Tennessee.
Of course, some of the most consequential cases and rulings on the horizon are potentially those that are not on the docket at all, because they will be filed in the coming weeks and months as the election continues and challenges arise. The court has already had some hand in the 2024 presidential election, having for example prevented individual states from moving to take Donald Trump off the ballot over the invocation of the Fourteenth Amendment and its prohibition on insurrectionist office-holders running for federal office again.
What exactly could be coming down the pike is of course speculative, but the court might well be asked to intervene in an array of disputes around, for example, individual state’s election rules and voter purges, mail-in ballots and other procedural election issues. It has not been shy about stepping into these types of disputes even on the eve of elections, and Trump and his MAGA movement allies certainly haven’t been demure about their intent to see Trump win by any means necessary. A court stacked 6-3 with conservative appointees, including three of Trump’s own, could conceivably step in with deceptively procedural rulings to toss the election to Trump in some form.
As just one example, a right-wing election board in Georgia has busied itself creating rules to gum up the voting process, including mandating full county-level hand counts of ballots. A Georgia judge recently struck that rule down, but it could eventually make its way up through the federal courts to SCOTUS. This hand-counting would enormously delay the vote totals in what is a pivotal state, which would give the MAGA crowd room to cast doubt on the election, and so on.
Given the relatively small volume of cases that the court takes on every term, the cases that it turns down can be nearly as consequential as those it takes up. The court, for example, declined to take up a Biden Administration appeal of a lower court ruling in favor of Texas’ abortion ban, which considered whether a federal emergency room law superseded state-level abortion restrictions. In doing so, the court effectively gave a victory to the anti-choice side without having to get into the messy business of ruling on the case itself (though of course this doesn’t create precedent like a ruling would). It also declined a case involving a San Francisco dark money ordinance, which challenged that city’s requirements around campaign finance disclosures, among other cases it turned down.
With the cases it’s taken up, the cases it hasn’t, and those that are likely to end up before it as we reach the final stretch of the 2024 election, the Supreme Court is poised to leave a further imprint on our law and our polity, in some ways beyond what Congress or the executive have been able to manage in recent years.
