High Court resumes operations, focusing on potential upheaval following election proceedings.
Out of the 40 cases the high court has chosen to deliberate so far, only a few resemble the intense political debates that once filled its courtroom. For now, this lineup might allow the justices to steer clear of controversy. However, indications suggest that the serenity might be brief.
A potential election dispute between Vice President Kamala Harris and former President Donald Trump might drag the 6-3 conservative majority into a political whirlwind at a time when trust in the court has hit all-time lows. A new president could alter the cases already under review. Moreover, Trump is on course to resurface before the Supreme Court within weeks, with the aim of clarifying the broad immunity the court granted him in July.
The justices will convene on Monday for their opening oral arguments of the new term, which will extend until the following summer.
As things stand, it feels as if the court is laying low, awaiting any potential election explosion, according to veteran Supreme Court litigator Carter Phillips. "There aren't many cases and very few prominent ones," he stated.
Weapons and adult content to dominate SCOTUS
On Tuesday, the court will debate one of its major pending disputes. Groups advocating for weapons and manufacturers are challenging a Biden administration regulation concerning untraceable weapons known as 'ghost guns.' These are mail-order kits that allow individuals to build weapons at home without any tracking.
Although significant - these weapons are being recovered from crime scenes - the lawsuit does not address Second Amendment concerns. Instead, it centers around whether the Bureau of Alcohol, Tobacco, Firearms, and Explosives exceeded its authority when it deemed the kits firearms that could be regulated in 2022.
A Louisiana-based appellate court ruled last year that the ATF overstepped its bounds, and the Biden administration contested this decision in February.
By year's end or early next year, the court will listen to arguments in a First Amendment dispute from the adult entertainment industry challenging a Texas law requiring adult websites to verify the age of their users.
On Friday, the court added an additional 13 cases to its docket, despite remaining silent on major cases dealing with religion and abortion. The justices agreed to decide whether a federal law prevents Mexico from suing gun distributors for allegedly aiding drug cartels. They also took on a case from a straight woman who claims she faced workplace discrimination due to her gay boss.
The relatively low-key term contrasts with previous years, during which the conservative majority overturned Roe v. Wade, expanded Second Amendment rights, ended affirmative action in college admissions, and – earlier this year – granted Trump broad immunity.
The rapid shift to the right, combined with a series of ethics controversies, seems to be taking a toll. A poll released by the Annenberg Public Policy Center revealed that 56% of Americans disapprove of the Supreme Court. Meanwhile, the justices have faced another embarrassing leak this summer, with the New York Times reporting on internal memos showing how Chief Justice John Roberts and several colleagues were considering Trump's immunity claims.
This unusual breach occurred months after a premature appearance of a major abortion opinion on the court's website and two years after the disclosure of a draft opinion overturning Roe.
"Something feels broken," said Lisa Blatt, who frequently argues before the justices.
Roberts confronts election pressure
Faced with these pressures, Roberts and his colleagues might prefer to avoid getting entangled in contentious election disputes this year.
Twenty-four years ago, a different court led by Chief Justice William Rehnquist issued a hurried 5-4 ruling in Bush v. Gore, effectively deciding the presidential election for former President George W. Bush.
The late Justice Sandra Day O'Connor, who was instrumental in that decision, later expressed regret over the court's involvement.
"This court must realize that its institutional legitimacy has been challenged," said David Cole, national legal director at the ACLU, during a recent panel organized by Georgetown Law. "For it to intervene in a close election and rule based on partisan lines to determine the president would be disastrous."
Republican and Democratic attorneys have already filed multiple pre-election lawsuits, some of which could be used to challenge the result of the election in November. However, it's also possible that any significant election case that reaches the high court next month will do so rapidly and without prior warning.
"It's difficult to predict how much election litigation there will be or what form it will take," said Kannon Shanmugam, an attorney who has argued dozens of cases before the high court. "At this point in 2000, nobody foresaw Bush v. Gore."
A succession of high-profile legal controversies will continue to move through federal courts even after the next president takes office. New administrations frequently use executive action to implement quick, dramatic policy changes, resulting in rapid appeals. For example, Trump's travel ban from predominantly Muslim countries frequently returned to the Supreme Court.
Jackson anticipates surprises
A change in presidential administration could also impact the cases currently before the Supreme Court's docket. One of the court's most anticipated cases this term, involving the divisive issue of gender-affirming care, might be at risk if Trump wins the election. The Supreme Court agreed to consider a Biden administration challenge to a transgender care ban in Tennessee, which bans hormone therapy and puberty blockers for minors and imposes fines on doctors who violate these prohibitions.
Nearly half of American states have implemented prohibitions on transgender healthcare for minors, as per the Civil Liberties Alliance.
Despite involvement from private entities, a shift in stance on transgender matters from the freshly appointed Justice Department could potentially intertwine with the unscheduled court hearing for this case, which hasn't been set for oral arguments yet.
The Supreme Court has stepped into the upcoming election in several emergency cases, two of which centered around independent candidates seeking a spot on the state-level presidential ballots. In a noteworthy decision in August, the court disallowed a portion of Arizona's voter identification prerequisites but kept in place a requirement that potential voters provide documentation of their citizenship before enrolling to vote on a state registration form.
During an interview with CBS News in August, Justice Ketanji Brown Jackson expressed a serene smile when asked about being ready for the election turning into an issue for the Supreme Court.
"As ready as anyone can be," she responded.
The potential election dispute between Vice President Kamala Harris and former President Donald Trump could draw the Supreme Court's 6-3 conservative majority into a political whirlwind, given the low trust in the court currently. Moreover, Trump is expected to return before the Supreme Court in the near future to clarify his immunity.
The upcoming term of the Supreme Court will see the justices debate a major dispute regarding untraceable weapons, with groups challenging a Biden administration regulation on 'ghost guns' this Tuesday. Despite the addition of 13 new cases to its docket, the term remains relatively low-key compared to previous years of conservative majority rulings and ethics controversies.
