The U.S. Supreme Court opens a new term on the eve of an intense, historic election in which the justices may be called on to play a key role in the results.
The new term does not yet have the blockbuster potential of the term that ended in July. The prior term was packed with controversy, including three cases related to former President Donald Trump, gun regulation, two abortion cases, federal agencies’ power, voting rights, a major opioid-related bankruptcy, social media regulation, and more.
But the new docket has enough cases that promise to keep the justices in the public eye in the months ahead. Guns are again on the docket as are cases involving gender-affirming medical care for transgender minors, age restrictions for access to online porn, disability discrimination, and federal regulation of vapes. And the 2024 presidential election hovers over the docket like a dark cloud on a bright autumn day, pregnant with possible voting issues that may demand the court’s attention.
“There’s a lot of trepidation,” said David Cole, national legal director of the ACLU, referring to election cases reaching the high court. “If the election is close, then there’s a whole set of questions about voter access, counting ballots. I don’t think the court wants to get involved, but it may be forced to.”
Some court scholars said the less intense docket this term may reflect the justices’ desire to create space for post-election cases, if necessary.
“They had to make space for the possibility” there would be election cases, said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center. “They had to have that on their minds.”
If Trump is elected, he suggested, there is a possible challenge to his holding office based on the insurrection clause in the 14th Amendment — even though the justices may have thought they ruled out such a case in their decision last term in a Colorado ballot case. And if Trump isn’t elected, Gornstein added, “There’s almost certainly a number of immunity cases they will have to decide” related to ongoing criminal cases, a consequence of their separate decision last term awarding immunity for a president’s “official acts.”
WATCH: How the Supreme Court immunity ruling reshapes presidential power
The term also opens at a time when public approval of the institution is the lowest in decades. A series of ethics-related revelations involving Justices Clarence Thomas and Samuel Alito have damaged the court’s image. Although the justices have adopted an ethics code after continuing outside criticism of them for lacking one, the new code does not have an enforcement mechanism. And sharply ideologically divided votes in culture-war cases appear to lend credence to some of the public’s belief that the court is a partisan institution.
But for now, the justices are doing business as usual. They added 15 cases to their argument docket on Sept. 30 when they met to examine more than 1,000 petitions that had been filed over the summer or that had lingered from last term. They will continue to add to the docket until about mid-January when they traditionally have filled argument slots through April.
Here is a brief look at key cases thus far that will be argued between now and the end of April.
More guns
Last term, the court ruled that the federal Bureau of Alcohol, Tobacco, Firearms and Explosives could not ban bump stocks under the definition of “machine guns” in federal law. This term, the justices face a similar case involving regulation of “ghost guns.” Kits can be purchased online that allow anyone to assemble a gun quickly and without background checks. These ghost guns have no serial numbers and are largely untraceable.
The bureau issued a rule in 2022 that the definition of “firearm” under the Gun Control Act of 1986 includes weapon parts kits that can be “readily” assembled into a firearm. The rule also states that the term “frame or receiver,” as referenced in the act’s “firearm” definition, includes “a partially complete … frame or receiver.” A lower court found that the bureau had exceeded its authority in issuing the rule. The Biden administration appealed to the Supreme Court (Garland v. Van der Stok.)
The second gun-related case, Smith & Wesson Brands v. Estados Unidos Mexicanos, came to the court from Mexico. That country charged Smith & Wesson and Interstate Arms with aiding the illegal trafficking of firearms to drug cartels in Mexico. A lower court refused to dismiss Mexico’s suit under a 2005 federal law that shields gunmakers from liability for crimes committed with their guns.
A transgender health care ban and reverse discrimination
Tennessee, like 25 other Republican-controlled states, passed legislation banning medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” at birth or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” In taking on United States v. Skrmetti, the justices agreed to decide whether the law discriminates on the basis of sex in violation of the Equal Protection Clause.
The justices will also decide a woman’s claim (Ames v. Ohio Dept. of Youth Services) that she was denied a promotion because she is heterosexual and her former boss, a gay woman, instead advanced two LGBTQ+ people. Marlean Ames, an Ohio government employee, challenges a court-imposed requirement that “majority” Americans raising discrimination claims must demonstrate “background circumstances,” such as statistical evidence of a pattern of discrimination against a majority group, before their suits can proceed.
Free speech and online porn access
In 2023, Texas joined a growing number of states that have passed laws requiring websites that publish sexual material deemed “harmful to minors” to verify their users’ age before they can access anything on the site. The Texas law also requires covered sites to prominently publish “sexual materials health warnings” written by the government.
In Free Speech Coalition v. Paxton, the justices will decide what type of scrutiny — rational basis or strict scrutiny — to apply to the law, which the challengers contend unconstitutionally burdens users and compels speech.
A fight over vapes
Wages and White Lion Investments makes flavored e-liquids containing nicotine for use in e-cigarettes, such as vapes. The company sought marketing approval from the Food and Drug Administration to continue making and selling its products. But the FDA denied premarketing approval after finding that the products did not show strong, reliable evidence to overcome the risks of youth addiction and benefits to adult smokers.
The company has challenged the FDA’s denials, claiming it lacked authority to impose those requirements and acted arbitrarily and capriciously. A lower appellate court agreed with the company, and the FDA turned to the Supreme Court (FDA v. Wages and White Lion Investments).
Not in my backyard!
The justices will return to an old and thorny issue: where to store nuclear waste. Texas challenged the Nuclear Regulatory Commission’s plan to store 40,000 metric tons of waste in Texas’ Permian Basin. A lower federal appellate court ruled that the federal agency did not have the authority to issue licenses to store the waste away from reactors.
The case, Nuclear Regulatory Commission v. Texas, could become another chapter in the conservative majority’s recent efforts to rein in the power of federal regulatory agencies.
This blog post first appeared on the website of PBS NewsHour.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
