By The Supreme Court wades back into hot-button issues including gun control, the death penalty and gender-affirming care for minors in the term that begins Monday, even as the fast-approaching presidential election could end up dominating the docket.
Last term was marked by blockbuster rulings on the scope of former president Donald Trump’s immunity from prosecution and place on the 2024 ballot, as well as federal agency power, social media regulation and abortion pills.
The cases on the court’s calendar so far pose other significant questions for the justices: Can states prevent transgender adolescents from obtaining certain gender-affirming medical treatments? Can the Biden administration regulate homemade “ghost guns” in the same way as other firearms? Do age-verification requirements to protect minors from online pornography violate the First Amendment rights of adults?
Looming in the background is the November contest between Trump and Vice President Kamala Harris — and the likelihood that a slew of lawsuits over counting ballots and voting access will draw the Supreme Court into election-related disputes.
That would put the justices in a pivotal position reminiscent of their role in the 2000 election, when the Supreme Court’s decision assured victory for George W. Bush over Al Gore and bitterly divided the nation.
“I don’t think the court wants to get involved, but it may be forced to,” David Cole, legal director of the American Civil Liberties Union, said during a term-preview discussion led by Georgetown Law’s Supreme Court Institute.
If the current court, with a conservative 6-3 majority, were to intervene after a close election and vote along ideological lines to determine the winner, Cole said, it would be a disaster because of the public’s low opinion of the court.
“This court has to understand that its institutional legitimacy has been challenged,” Cole said. “It would be like what they did in Bush versus Gore except where the country is already primed to be very critical of this court as partisan.”
Polls show a dramatic decline in public confidence in the Supreme Court after the majority, bolstered by three Trump nominees, eliminated the nationwide right to abortion in 2022 after nearly 50 years.
Seven out of 10 Americans believe the justices are guided by their ideology and do not rule impartially, according to a June survey from the Associated Press-NORC Center for Public Affairs Research. And some justices have faced ethics questions and criticism from Democratic lawmakers and transparency advocates about their failure to disclose lavish gifts and travel from billionaire benefactors.
Justice Elena Kagan made a push during public appearances this summer for the court to add an enforcement mechanism to an ethics policy that Chief Justice John G. Roberts Jr. announced last fall. Justice Ketanji Brown Jackson has said she is open to the idea. But it is unclear whether Kagan’s suggestion will gain traction or even be discussed after the justices take the bench on Monday for the first time since their summer recess.
After the court’s huge previous term and heading into the tight election, attorney Deepak Gupta echoed other close court observers in speculating that the justices “were being deliberately boring” in setting the court’s initial calendar, in part to leave an opening to deal with potential election-related disputes.
The cases are still highly consequential. In the opening week, the justices will consider whether to reverse the death penalty conviction of Richard Glossip, an Oklahoma man whose case has drawn national attention and bipartisan intervention because of prosecutors’ admitted errors.
The court will also examine the Biden administration’s regulation of “ghost guns,” untraceable firearms assembled from kits. Such weapons have become increasingly popular with teenagers and those whose criminal records keep them from buying guns in the marketplace, and their use in violent crimes has spiked.
The justices are reviewing a ruling from the U.S. Court of Appeals for the 5th Circuit, which concluded that the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority by requiring the ghost gun kits to follow the same licensing and recordkeeping rules as fully assembled guns sold by licensed retailers.
In a closely divided vote last summer, the Supreme Court initially allowed the regulations to remain in place while litigation continued. Roberts and Justice Amy Coney Barrett joined the court’s three liberal justices in siding with the Biden administration.
But it’s unclear how that preliminary vote will play out before a court that has generally been skeptical of broad government regulation. Last term, the court divided along ideological lines to invalidate a Trump-era ban on bump-stock devices, which allow semiautomatic rifles to fire hundreds of bullets a minute.
Later this term, the court will take up a challenge to a Texas law restricting minors from accessing obscene material online. The measure requires websites that host sexually explicit content to verify that users are at least 18 years old through government-issued identification, digital identification or other methods. Opponents say the law violates the First Amendment right of adults to view a broad range of sexual material. It was challenged by a trade association for the adult-entertainment industry, companies that host sexual content on their websites and an adult-film star.
In the most high-profile case so far, the court will for the first time consider the constitutionality of laws banning certain gender transition treatment for people younger than 18. Two dozen states have passed such restrictions since 2021 as the issue has moved to the forefront of the nation’s political divide.
The Supreme Court extended employment protections to lesbian, gay, bisexual and transgender workers in 2020 but has yet to rule on the constitutionality of lower-court decisions involving transgender minors, bathroom access or athletes.
At issue is a Tennessee law that bars transgender minors in the state from accessing puberty blockers and hormones. Transgender young people, their families and medical providers — along with the Biden administration — asked the court to reverse a decision by the U.S. Court of Appeals for the 6th Circuit that upheld the Tennessee ban.
In a divided decision, Judge Jeffrey S. Sutton said courts should not second-guess state lawmakers in this instance.
“This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments,” wrote Sutton, who was joined by Judge Amul Thapar. “That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.”
Depending on the outcome of the election, the Trump-related cases from last term could reemerge. If Trump is elected, his opponents could try again to disqualify him by invoking a constitutional provision that bars officials from holding office if they engaged in insurrection. The justices unanimously rejected a Colorado ruling that would have kicked Trump off the ballot for his conduct related to the Jan. 6, 2021, attack on the Capitol by a mob of his supporters, but the justices disagreed about whether and how the provision could be enforced, including steps that could be taken after an election.
If Harris wins, it seems likely that the Supreme Court will be called on again to review pretrial rulings in special counsel Jack Smith’s prosecution of Trump on election-obstruction charges and to determine whether those decisions fit within the high court’s immunity ruling. The court could also be asked to rule on the validity of Smith’s appointment as special counsel.
Beyond the cases likely to bubble up from the presidential election, others in the pipeline could quickly change the tenor of the term. The justices could be asked to intervene in TikTok’s challenge to the federal law that would ban the platform from use across the United States. The Biden administration’s latest student loan relief and repayment plan is in limbo in the lower courts and could resurface. The issue of access to emergency abortion care, which the justices left unresolved last term, is also under review in the lower courts and could be back before the Supreme Court.
As Roberts begins his 20th term as chief justice, close court watchers expect him to continue to assert his influence by assigning himself to write the court’s opinions in many of the highest-profile cases.
Roberts voted in the majority 96 percent of the time last term. He authored decisions to toss aside a 40-year-old precedent to restrain the power of federal agencies, limit prosecutorial power in a case involving accused rioters who attacked the Capitol, and reject a challenge to federal gun restrictions for domestic abusers.
Most notably, Roberts wrote the court’s 6-3 decision to extend protection from criminal prosecution to Trump — and future presidents — for official actions. The decision, in response to Trump’s prosecution for allegedly obstructing the results of the 2020 election, drew sharp criticism from the liberal justices for giving the former president “all the immunity he asked for and more.”
Irv Gornstein, executive director of Georgetown’s Supreme Court Institute, said Roberts seems to be taking control after being isolated in the 2022 decision to overturn Roe v. Wade, when the court’s five other Republican nominees went further than he wanted to go.
Gornstein suggested Roberts has decided that “instead of sitting on the outside trying to influence what everybody else is doing with the case and being unsuccessful, I’ll hop on board and take the opinion myself, and that way I can exert maximum influence over what the opinion says.”
“In the future,” Gornstein predicted, “we’re going to see him taking control of the big cases so that he can exert massive influence.”
