Supreme Court begins new term with battles over agency power, guns and online speech

The United States Supreme Court Hans set to begin its new term with a slate of pivotal cases spanning issues such as the First Amendment, administrative powers, and Second Amendment rights.

As the court convenes after a summer recess, questions have arisen regarding the justices’ adherence to ethical principles, particularly following recent reports regarding Justices Clarence Thomas and Samuel Alito’s connections to wealthy Republicans.

Among the significant cases to be heard in the term, which extends until June 2024, are matters concerning the First Amendment, the reach of administrative authority, and gun rights. Notable requests for the court’s consideration include issues related to the widely used abortion pill mifepristone, a challenge to the federal ban on bump stocks established during the Trump administration, and the possibility of reviewing school regulations that restrict transgender students from using bathrooms aligned with their gender identities.

Of particular significance is the potential involvement of the Supreme Court in the dispute over mifepristone, which, if accepted, would mark the court’s first abortion-related case since the overturning of Roe v. Wade by a conservative majority in June 2022. Any decision concerning mifepristone could have far-reaching implications for abortion access nationwide, even in states where it is currently legal.

Ethical concerns surrounding the justices have come to the forefront, with Justices Elena Kagan and Brett Kavanaugh publicly acknowledging their efforts to address these issues behind closed doors. Chief Justice John Roberts also expressed a commitment to upholding the highest ethical standards among the justices.

David Cole, the national legal director of the American Civil Liberties Union, sees this term as an opportunity to gain insights into the court’s composition, pondering whether it operates as a 6-3 divided court or a more nuanced 3-3-3 court with justices spanning various ideological positions.

While this term notably lacks a case involving religious liberty, it is marked by several cases centering on free speech rights. Two of these cases involve elected officials and their interactions with the public on social media platforms. Specifically, the cases examine whether such officials are engaged in state action subject to First Amendment constraints when they block users from their personal social media accounts that are used to disseminate job-related information to the public.

Nicholas Quinn Rosenkranz, a law professor at Georgetown University, aptly frames the dilemma as a question of whether these officials are acting as government representatives or private individuals in their online interactions. This issue garnered attention when former President Donald Trump faced a lawsuit in 2017 for blocking online critics of his policies, ultimately leading to an unresolved legal question when the Supreme Court dismissed the case in 2021 after Trump left office.

The Supreme Court is set to provide clarity on this matter in cases involving two California school board members and a city manager from Michigan, scheduled to be heard on October 31. These cases delve into the nuanced distinction between public officials’ public and private roles in the digital realm, where these boundaries are more porous than in the pre-digital era.

Additionally, the court will address a trademark dispute involving former President Trump’s phrase “Trump Too Small.” This case, to be heard on November 1, revolves around a California lawyer’s attempt to trademark the phrase, leading to arguments about the constitutionality of certain provisions of federal trademark law.

The court’s conservative majority’s expanded interpretation of the Second Amendment in a June 2022 decision will face further scrutiny this term. The ruling established a new standard for lower courts when assessing the constitutionality of firearms restrictions, focusing on historical analogues and the nation’s historical tradition of firearms regulation.

A case to be heard on November 7 centers on a law that prohibits individuals under domestic violence restraining orders from possessing guns. The plaintiff in this case, Zackey Rahimi, challenged the law’s constitutionality under the Second Amendment. The Justice Department appealed to the Supreme Court after a federal appeals court deemed the law unconstitutional, citing the government’s failure to demonstrate its consistency with historical firearm regulation traditions.

This case presents an opportunity for the Supreme Court to clarify and apply the test outlined in its 2022 Bruen decision. Robert Leider, a law professor, suggests that the court might choose to navigate the complex issues presented in Rahimi’s case cautiously.

Separately, the Justice Department may ask the court to consider a case concerning the Gun Control Act’s ban on firearm possession for felons. This case could have significant implications, as there are thousands of such cases in the federal docket each year.

The court is expected to tackle several administrative law cases this term, including a dispute between the Biden administration and the commercial fishing industry. This case, Loper Bright Enterprises v. Raimondo, offers an opportunity for the court to reconsider a 40-year-old decision and potentially limit the authority of federal agencies.

The case revolves around a 1976 law governing marine fisheries management and the requirement for federal observers on domestic fishing vessels. The fishing industry sued over these requirements, arguing that the National Marine Fisheries Service exceeded its authority. A lower court ruled in favor of the government, citing Chevron deference, a doctrine that requires courts to defer to an agency’s reasonable interpretation of ambiguous statutes.

The Supreme Court’s decision in this case could have implications for the broader functioning of government agencies and their regulatory powers.

Another closely watched administrative law case involves the funding mechanism of the Consumer Financial Protection Bureau (CFPB). While most federal agencies rely on congressional appropriations, the CFPB is funded by the Federal Reserve. Two trade associations challenged the CFPB’s funding mechanism, alleging it is unconstitutional as it insulates the agency from congressional oversight.

The court’s decision in this case could have far-reaching implications for the relationship between Congress and executive branch agencies.

Following a recent split decision involving Alabama’s congressional map, the Supreme Court has taken up a case involving South Carolina’s 1st Congressional District. Voting rights groups argue that the district’s boundaries were racially gerrymandered, diluting the influence of Black voters. The court is set to hear arguments on October 11, with South Carolina officials urging a decision by January 1 to ensure clarity for the 2024 election cycle.

This case involves the application of the Supreme Court’s 2017 decision in Cooper v. Harris, which held that race cannot be used as a proxy for political behavior in redistricting. The case raises questions about how to disentangle issues of race and party in the context of voting rights.

These key cases before the Supreme Court in the upcoming term promise to shape the legal landscape in the United States and address critical questions on constitutional rights, administrative authority, and the functioning of government agencies.