Supreme Court to examine gun rights, 2024 elections redistricting, free speech and other hot-button topics
As Americans start looking ahead to the 2024 presidential elections, the Supreme Court is revisiting past constitutional conflicts, which could have significant political implications for voters.
This sense of legal déjà vu not only involves the court’s controversial cases but also the behavior and accountability of its nine members.
“The Supreme Court will address many of the issues that have sharply divided America along political lines. They’re not avoiding the contentious cases,” said Thomas Dupree, a former high-ranking official in the Justice Department who frequently represents clients before the Supreme Court. “And whenever the Supreme Court gets involved in these political matters, it generates strong reactions. It’s already shaping up to be a highly significant term.”
This term officially begins next week on what is known as the “First Monday in October,” when the court’s public sessions commence.
The Supreme Court’s upcoming docket includes several important cases:
- Gun rights: The court will consider whether individuals under domestic violence restraining orders can still own guns.
- Administrative state: There are separate appeals regarding the limitation of the executive branch’s power to interpret and enforce federal rules. Additionally, the court will decide whether the Consumer Financial Protection Bureau’s funding mechanism should be changed, potentially dismantling the agency.
- Election redistricting: A case involving congressional seat boundaries in South Carolina could lead to more disputes over voting, possibly involving former President Donald Trump.
- Free speech dispute: The court will address state laws that aim to require social media platforms to host third-party communications and prevent them from blocking or removing user posts based on political viewpoints.
- FDA authority: There’s a high-profile appeal regarding the Food and Drug Administration’s approval authority over the abortion pill mifepristone.
All of these cases could be decided by mid-2024.
BENCH PRESSURE
The Supreme Court’s docket has become a subject of scrutiny, not just in terms of the cases it hears, but also in terms of the justices themselves. Recent revelations about their questionable personal travels and growing demands for ethics reform have led to divisions among the judges and lawmakers about whether anything can be done to ensure ethical conduct within the highest court.
Some justices believe it’s time for change. Justice Elena Kagan expressed the need for new ethics rules to demonstrate their commitment to high standards of conduct. Justice Brett Kavanaugh also hinted at possible concrete steps to address calls for reform and increase confidence in the court.
Chief Justice John Roberts acknowledged the issue as a concern in May and suggested that there’s no reason why Supreme Court members shouldn’t have a binding ethical code like other federal judges.
However, not all members of the court are in favor of greater transparency and reforms. Justice Samuel Alito has resisted such suggestions in a recent interview.
Justice Samuel Alito firmly stated, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court; period.” He also rebuffed calls for his recusal in an upcoming tax case, deeming them “unsound” and asserting that there was “no valid reason” for him to abstain from participation. Alito emphasized that recusal is a personal decision for each justice.
This comes in response to efforts by Senate Judiciary Committee Chairman Dick Durbin and other Democrats to increase oversight and accountability within the Supreme Court. They have cited concerns about the appearance of conflicts of interest and ethics violations, spurred in part by reports from the nonprofit news organization ProPublica. These reports included revelations about Alito’s luxury vacation in Alaska with a Republican donor who had business interests before the court.
Justices Sonia Sotomayor and Clarence Thomas have faced scrutiny over media reports regarding their book deals, travel, and financial dealings.
In July, the Senate Judiciary Committee advanced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act to the full Senate. This proposed legislation would mandate that Supreme Court justices adopt a code of conduct and establish a mechanism to investigate alleged violations.
There has been considerable internal debate among the justices themselves in recent years regarding whether they should adopt a binding ethics code, similar to the one already applicable to other federal judges. It wouldn’t be surprising if, in the next year or two, the Supreme Court voluntarily decides to adopt some form of an ethics code.
“LEGITIMATE” CONCERNS
Calls for increased transparency also encompass the Supreme Court’s caseload, particularly its “shadow” or emergency docket. This expedited decision-making process has become more prevalent in recent years. The shadow docket involves cases presented to the justices on an urgent basis during their initial stages, lacking the typical transparency and deliberation seen in regular appeals.
Although intended to be temporary, these cases can have an immediate impact by temporarily halting the nationwide enforcement of contested laws or policies. Such cases often lack the usual elements of full briefing, oral arguments, or written opinions.
Recently, the Supreme Court was asked to determine whether the Biden administration could continue collaborating with social media companies to combat digital disinformation, amid allegations of suppressing conservative viewpoints. An enforcement injunction would remain in place until the case undergoes full litigation, which could take years to resolve.
While some justices have criticized the increasing use of the shadow docket, particularly in high-profile disputes, Justice Alito has argued that critics have mischaracterized its use as “sneaky,” “sinister,” and “dangerous.”
Justice Alito expressed concern about the portrayal of the Supreme Court, suggesting that it contributes to unprecedented efforts to intimidate or undermine the court as an independent institution. He joined the court in 2006.
A Fox News poll conducted in late June revealed that only 48% of respondents had confidence in the Supreme Court as an institution. This marked the first time the confidence level had fallen below 50% since the question was first asked in 2014. In 2017, 68% of respondents had confidence in the court, which dropped to 83% among Republicans, 48% among Democrats, and 37 % among independents since then.
Democratic pollster Chris Anderson, who conducts the Fox News Poll with Republican Daron Shaw, noted that confidence in major institutions has been declining for a decade or more, but the loss of confidence in the Supreme Court is particularly notable. He pointed out that with less than half of Americans expressing confidence in the court and Democrats being much less likely than Republicans to have confidence in it, there is a perception that the country lacks a non-political arbiter of the law.
Some progressives argue that this loss of confidence may be due to the perception that the conservative-leaning 6-3 Supreme Court is too willing to engage in controversial issues and overturn its prior rulings. In recent terms, the court has made significant decisions on affirmative action in college admissions, abortion rights, concealed carry gun restrictions, and clean-air standards, often overturning long-standing precedent.
Justice Kagan expressed concern about recent ideological divisions within the Supreme Court, where one side overturns precedent. She hopes that this won’t become a recurring pattern.
Progressive legal expert Brianne Gorod from the Constitutional Accountability Center highlighted the current concern that the Supreme Court is facing a legitimacy crisis. This crisis arises from the perception that the court’s decisions are influenced by the court’s composition rather than being solely based on the law and its requirements. Good also noted that the court’s credibility is undermined by new ethical questions and stories about potential conflicts of interest involving the justices, which is deeply troubling for the American people.
WHO DECIDES?
Heading into 2024, the Supreme Court faces potential last-minute challenges related to election laws, including issues like redistricting, voter registration requirements, provisional ballots, and early voting. Some observers speculate that these challenges could lead to a scenario reminiscent of Bush v. Gore, the case that effectively decided the outcome of the 2000 presidential election.
An even wilder scenario involves a potential monumental judicial debate over a provision in the 14th Amendment of the Constitution, which disqualifies anyone from the presidency if they are “engaged in insurrection or rebellion.” A lawsuit from Colorado voters seeks to prevent Donald Trump from appearing on the state’s primary ballot based on his role in the 2020 election interference.
At the moment, the Supreme Court seems focused on quietly carrying out its duties, striving to operate free from external interference. However, given the current political and societal climate, achieving such calmness may be challenging.
Justice Kavanaugh acknowledged the turbulent atmosphere surrounding the country and emphasized the need for judges and the legal system to provide a sense of calm amid the storm.