The U.S. Supreme Court opens a new term this week, with guns, transgender rights, pornography, and lots more on the docket, including potential election cases in the wings.
In the wake of last year’s tumultuous term and the court’s decision giving broad immunity to former President Trump for his actions while in office, the court finds itself stuck on the wrong end of public opinion, a place where, according to the Gallup poll, it has largely been mired since 2021. The partisan gap is gargantuan, and has been since the court overturned Roe v. Wade in 2022. Adding to its woes have been ethics controversies and the kinds of leaks that have previously been unheard of, including one this year about what went on behind the scenes in the immunity case.
"Something does seem broken," says Lisa Blatt, a veteran Supreme Court advocate. "At oral argument, which is when I see them [the justices], they just seem visibly frustrated."
For the most part, the justices still try to portray the court as amicable, but you don’t have to be a genius to see that they are not exactly happy campers.
That said, the work has to get done, and there is already a fair amount of controversy on the justices’ plate. Once again, it’s the social issues that will interest most people, though there are plenty of relatively dry, though important, cases on regulation of everything from the environment to e-cigarettes. The three social issue cases already on the docket involve transgender rights, guns and porn.
The transgender case is a test of laws in 24 states that have banned the use of puberty blockers and other hormone treatments for minors.
"This is obviously the blockbuster case of the term," says Deepak Gupta, a Supreme Court practitioner and lecturer at the Harvard law school litigation clinic. “It's a case of enormous significance” and "presents fundamental questions about the scope of state power to regulate medical care for minors, and the rights of parents to make medical decisions for your children." Interestingly, Gupta notes that these questions are ones "which you may think of in a different context as conservative values."
The other blockbuster case of the term, at least so far, is one involving so-called ghost guns that are made from build-it-yourself guns kits bought online. Unlike guns bought from a licensed dealer, these guns are untraceable. They have no serial numbers, can be purchased anonymously and without any background checks. In 2022, as the number of these guns found at crime scenes mushroomed into the tens of thousands and law enforcement became alarmed, the ATF classified the kits as firearms subject to same laws that apply to licensed gun dealers. The Biden administration argues that the regulation tracks the 1968 Gun Control Act, which defines a firearm as "any weapon that is quote designed to or may readily be converted into a functional firearm." The kit sellers counter that a bunch of parts are not a firearm.
A second gun case tests whether the Mexican government can sue U.S. gun manufactures for allegedly aiding and abetting illegal gun sales to traffickers for Mexican cartels. Mexico has extremely strict gun laws that make it almost impossible for people to obtain guns legally.
Moving on to pornography, Texas passed a law limiting access to sexually explicit material on the internet for kids under 18. The law requires submission of various age verification measures, such as a government-issued ID card, in order to get access to adult sites. A coalition of free-speech groups, backed by both liberal and conservative groups, challenged the law, contending that it’s written so broadly that it chills the speech of adults who would realistically fear extortion, identity theft and even tracking of their habits by the government and others. The challengers claim that there are for less intrusive age verification methods. But the conservative Fifth Circuit Court of Appeals upheld the law, so now the Supreme Court will have the last word.
Finally, there are lots of cases waiting in the wings. Religion cases, environmental cases, and The Trump Jan. 6 prosecution could well come back. And for icing on the cake, there could be questions that arise from the upcoming presidential election. Trump supporters have already brought all manner of challenges to the way elections are to be conducted, but so far, nobody has any idea how those challenges will shake out. Most of the justices would clearly like to steer clear of playing a major role in the election, but they have just as clearly left room on the docket to act if they have to.
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