The Supreme Court is returning to a new term to take up some familiar topics — guns and abortion — while concerns about ethics swirl around the justices.
The year also will have a heavy focus on social media and how free speech protections apply online. A big unknown is whether the court will be asked to weigh in on any aspect of the criminal cases against former President Donald Trump and others or efforts in some states to keep the Republican off the 2024 presidential ballot because of his role in trying to overturn the results of the 2020 election that he lost to Democrat Joe Biden.
Lower profile but vitally important, several cases in the term that begins Monday ask the justices to constrict the power of regulatory agencies.
“I can’t remember a term where the court was poised to say so much about the power of federal administrative agencies,” said Jeffrey Wall, who served as the deputy solicitor general in the Trump administration.
Consumer Financial Protection Bureau
One of those cases, to be argued Tuesday, threatens the ability of the Consumer Financial Protection Bureau, or CFPB, to function. Unlike most agencies, the bureau is not dependent on annual appropriations from Congress, but instead gets its funding directly from the Federal Reserve. The idea when the agency was created following the recession in 2007-08 was to shield it from politics.
But the federal appeals court in New Orleans struck down the funding mechanism. The ruling would cause “profound disruption by calling into question virtually every action the CFPB has taken” since its creation, the Biden administration said in a court filing.
Gun availability
The same federal appeals court also produced the ruling that struck down a federal law that aims to keep guns away from people facing domestic violence restraining orders from having firearms.
The three-judge panel of the 5th U.S. Circuit Court of Appeals said its decision was compelled by the Supreme Court’s 2022 ruling expanding gun rights and directing judges to evaluate restrictions based on history and tradition. Judges also have invalidated other long-standing gun control laws.
The justices will hear the Texas case, in November, in what is their first chance to elaborate on the meaning of that decision in the earlier case, which has come to be known as Bruen.
Abortion
The abortion case likely to be heard by the justices also would be the court’s first word on the topic since it reversed Roe v. Wade’s right to abortion. The new case stems from a ruling, also by the 5th Circuit, to limit the availability of mifepristone, a medication used in the most common method of abortion in the United States.
The administration already won an order from the high court blocking the appellate ruling while the case continues. The justices could decide later in the fall to take up the mifepristone case this term.
Ideological differences
The assortment of cases from the 5th Circuit could offer Chief Justice John Roberts more opportunities to forge alliances in major cases that cross ideological lines. In those cases, the conservative-dominated appeals court, which includes six Trump appointees, took aggressive legal positions, said Irv Gornstein, executive director of the Georgetown law school’s Supreme Court Institute.
“The 5th Circuit is ready to adopt the politically most-conservative position on almost any issue, no matter how implausible or how much defiling of precedent it takes,” Gornstein said.
The three Supreme Court justices appointed by Trump — Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh — have been together in the majority of some of the biggest cases in the past two years, including on guns, abortion and ending affirmative action in college admissions.
But in some important cases last term, the court split in unusual ways. In the most notable of those, Kavanaugh joined with Roberts and the court’s three liberal justices to rule that Alabama had not done enough to reflect the political power of Black voters in its congressional redistricting.
Roberts and Kavanaugh, this time joined by Barrett, also were in the majority with the liberal justices in a case that rejected a conservative legal effort to cut out state courts from oversight of elections for Congress and president.
Those outcomes have yet to do much to ameliorate the court’s image in the public’s mind. The most recent Gallup Poll, released last week, found Americans’ approval of and trust in the court hovering near record lows.
It is not clear whether those numbers would improve if the court were to adopt a code of conduct.
Questions about ethics
Several justices have publicly recognized the ethics issues, spurred by a series of stories questioning some of their practices. Many of those stories focused on Justice Clarence Thomas and his failure to disclose travel and other financial ties with wealthy conservative donors, including Harlan Crow and the Koch brothers. But Justices Samuel Alito and Sonia Sotomayor also have been under scrutiny.
Behind the scenes, the justices are talking about an ethics code, and Kavanaugh has said he is hopeful the court would soon take “concrete steps.”
Justice Elena Kagan, who backs a high court code of ethics, said in an appearance at the University of Notre Dame that her colleagues are trying to work through their differences.
“There are, you know, totally good-faith disagreements or concerns, if you will. There are some things to be worked out. I hope we can get them worked out,” Kagan said. There’s no timetable for the court to act.
Democratic lawmakers and progressive critics of Alito and Thomas said those justices’ impartiality in some cases is in doubt because of financial ties, joint travel or friendships with people involved in the cases.
Alito has rejected calls to step aside from a tax case, and Thomas, who has been silent in the past about recusals, seems exceedingly unlikely to bow to his critics’ wishes now.
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