WASHINGTON — The Supreme Court starts a new term Monday replete with cases that will test how far the conservative majority could reshape the nation’s laws when it comes to gun regulations, medication abortion, congressional redistricting and the power of federal regulatory agencies.
Some of the high-profile cases the justices will consider and decide before the end of June are follow-ups on the court’s politically controversial major decisions in the past two terms, when conservatives had a 6-3 majority. Some lower courts, and particularly the conservative-leaning U.S. Court of Appeals for the 5th Circuit in New Orleans, have interpreted those decisions in a way that pushes the law further to the right.
As those issues return to the high court, the oral arguments and decisions could reveal how the conservative-majority court approaches cases in the future, said David Cole, the legal director of the American Civil Liberties Union.
That could show whether the six stick together or there is a fracture between the more conservative justices — Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch — and the more moderate conservatives — Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Amy Coney Barrett.
“Is it a 6-to-3 conservative court or is it, as many suggested, a 3-3-3 court, with the three Democratic appointees, three very extreme conservatives and three sort of in the middle who determined results?” Cole said.
Either way, the court is poised to issue more conservative decisions that build on previous decisions that align with Republican policy preferences.
Those will likely come in the first half of 2024, in the heat of presidential and congressional races, and at a time when the justices have faced more scrutiny from Congress and the public about their actions outside the courtroom as well.
Kavanaugh, at a judicial conference event in Ohio earlier this month, reportedly told the crowd the court would take “concrete steps soon” to address ethical concerns at the court and said all members of the court are conscious of the spotlight on them.
“There’s a storm around us in the political world and the world at large in America,” Kavanaugh said. “We, as judges and the legal system, need to try to be a little more, I think, of the calm in the storm.”
Conservative swing
Several of the most closely watched cases come from decisions out of the 5th Circuit, which will confront the justices with some more conservative takes on their own decisions and test whether the Supreme Court will follow along.
For instance, in U.S. v. Rahimi, the 5th Circuit struck down a federal ban on firearm possession for people subject to domestic violence restraining orders. To do so, the appeals court used the same historical analysis that the Supreme Court did in a 2021 decision that broadened gun rights, New York State Rifle & Pistol Association v. Bruen.
That Bruen decision laid out a new legal test for the constitutionality of gun regulations that relies on the history and tradition of the founding era. Judges implementing it since then have tossed gun restrictions, and the case is the first time the justices will revisit the issue.
Hashim M. Mooppan, a partner and Supreme Court litigator at Jones Day, said the case was teed up well for the Biden administration as it seeks to defend a federal law. Some members of Congress say the law retains bipartisan support.
“If the government could have picked a case to be the first post-Bruen case, I think they would have picked this case and this statute,” Mooppan said.
The Supreme Court is also teed up to decide whether to decide the future availability of mifepristone, used for medication abortion.
Challenges to abortion expanded to target mifepristone after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization that wiped out a constitutional right to abortion.
Earlier this month, both the government and the drug’s manufacturer, Danco Laboratories, filed petitions for the court to hear the case after the 5th Circuit issued a ruling restricting FDA approval for the drug.
Administrative law
The Supreme Court will also review a 5th Circuit decision that found the funding structure of the Consumer Financial Protection Bureau violated the Constitution because Congress structured it to be funded through Federal Reserve Bank receipts rather than congressional appropriations.
Joseph Lynyak, a partner at Dorsey & Whitney LLP who specializes in financial regulation, said the 5th Circuit’s holding in the CFPB case could spark dozens of challenges to everything done by that agency or any other agency funded by fees, which includes major financial regulators like the Federal Reserve.
“I don’t think it’s a step too far. I think it’s more like several football fields too far, because of the implications of it,” Lynyak said of the possibility the justices might uphold the 5th Circuit ruling.
Along with the CFPB case is another from the 5th Circuit that held administrative law judges, used by the Securities and Exchange Commission and other agencies to oversee disputes, violate the Constitution.
Other cases
In a case about a dispute over fishery rules, the Supreme Court could curtail a decades-old precedent that directed judges to defer to administrative agencies when interpreting a vague statute.
Conservatives have targeted the so-called Chevron doctrine for years — it has been the subject of proposed legislation for more than a decade in the form of the repeatedly introduced REINS Act. The Republican-controlled House passed a version of the bill on an almost party-line vote in June.
Andrew Pincus, a partner and Supreme Court litigator at Mayer Brown, said the Chevron doctrine case is emblematic of a broader skepticism of the reach of the executive branch in the current court.
“If you take a step back and look at an area of law that is being remade, the changes in administrative law are about as significant as in every other area the court has touched,” Pincus said.
Pincus said there has been a long line of cases reining in executive agencies, either by allowing the president to fire officers at will or by finding agency actions went outside the law.
Other issues
The court is also set to decide a major case on the future of racial discrimination in redistricting with a challenge to the congressional map approved by South Carolina legislators following the 2020 census.
In that case, which could determine the contours of the district held by second-term Rep. Nancy Mace, R-S.C., a three-judge panel determined that the state’s map likely violated the Constitution by discriminating against Black voters. The state appealed to the justices, arguing that legislators moved Black voters from one district to another because of their politics, not their race.
The justices have accepted just shy of two dozen cases for argument so far this term and several other major disputes are on the horizon.
The Biden administration has also asked the justices to hear an appeal of a 5th Circuit ruling that tossed the Trump-era rule banning “bump stocks” that allow rifles to fire multiple times with one trigger pull.
The justices could accept some new cases as early as next week; however, the justices may not decide to take others, such as the mifepristone case, until later in the term.
