As new term begins, Supreme Court faces fallout from its rightward shift

Paging the Supreme Court: Cleanup on aisle 3.

After two years of transformative decisions on abortion, gun rights and affirmative action, the Supreme Court is about to kick off a term where the justices are likely to spend much of their time resolving nagging questions created by their prior rulings.

Some of the legal fights now before the high court expose what critics view as the soft underbelly of recent conservative decisions — details glossed over as the court’s GOP-appointed, six-justice majority pushed American jurisprudence swiftly to the right on some of the nation’s most divisive issues.

In the coming months, the court will hear a case that will test the majority’s commitment to a robust, history-focused interpretation of the Second Amendment. It will hear two others that could radically reshape regulatory agencies. And it may soon need to revisit both abortion and racial diversity in education.

The full slate of cases the court will take up during the term that starts Monday remains uncertain. On Friday, the justices added 12 new cases to their docket, including a pair of First Amendment challenges to laws in red states that regulate how social media companies moderate users’ content.

The high court also faces difficult choices and divisions that go beyond its docket, as controversies swirl over unreported gifts to some justices and disagreements have spilled into public view about potential reforms. A recent POLITICO poll found a large majority of Americans favor subjecting the justices to an enforceable ethics code.

Here’s POLITICO’s look at the issues expected to dominate the Supreme Court over the next year.

Reining in a broad ruling on guns?

Perhaps the highest-profile case already on the high court’s docket will determine whether people accused of domestic violence have a constitutional right to carry guns.

The case will test the justices’ willingness to fully embrace the logic of their year-old decision striking down New York’s longstanding gun control regulations. In the 6-3 ruling in New York State Rifle & Pistol Association v. Bruen, the GOP-appointed justices said the Constitution only permits the sort of limits on gun ownership that were recognized early in American history.

The decision, and its call to rummage through history to judge a modern law’s constitutionality, unleashed a flood of challenges to existing gun-control measures.

“There’s basically just chaos in the Second Amendment space and a huge volume of litigation,” said Esther Sanchez-Gomez of the Giffords Law Center, which advocates for gun-safety laws. “This new test has created a mess.”

In March, the 5th Circuit Court of Appeals embraced the Bruen rationale to strike down a federal law prohibiting the subjects of domestic violence restraining orders from possessing firearms, with the appeals judges concluding that the law isn’t rooted in “our Nation’s historical tradition of firearm regulation.”

The Biden administration asked the justices to overturn that decision, arguing that it opens the door to all sorts of dangerous people obtaining weapons. Many analysts expect that some of the conservative justices, especially Chief Justice John Roberts and Justice Brett Kavanaugh, will worry about the optics of a ruling that would put guns in the hands of domestic abusers. Those concerns might entice a majority of the court to figure out a way to uphold the statute, although how the justices would square such a ruling with Bruen isn’t clear.

The case, United States v. Rahimi, will be argued Nov. 7.

Another crack at agency power

For decades, the business community, conservative activists and a few conservative justices have been trying to eliminate a legal doctrine that they contend gives government agencies — sometimes derisively called “the administrative state” — too much power. The doctrine, known as Chevron deference after a 1984 Supreme Court case that first articulated it, gives agencies wide latitude to interpret the statutes they enforce — even if judges disagree with an agency’s reading of the law.

As the conservative contingent on the court has grown, the doctrine has been walked to the legal gallows several times — but each time, the court has stopped short of formally killing it off. The noose is tightening once again this term in a case challenging a decision by federal officials to make fishing boat operators pay for monitors who confirm compliance with fishing limits. The facts of the case are arcane, but the legal question is whether the justices should officially overturn Chevron.

If that happens, federal regulations aimed at the environment, prescription drugs, food safety, auto safety, banking, the financial markets and more could be in jeopardy. An end to Chevron would trigger a tsunami of legal challenges in search of judges who might disagree with agencies’ longstanding interpretations of their own powers, striking down policies that have been on the books for decades. And Congress might face pressure to shore up some agencies’ regulatory powers.

The case, Loper Bright Enterprises v. Raimondo, has not yet been scheduled for oral argument. The court could hear it as early as December.

CFPB funding fight could cripple other regulators

On Tuesday, the second day of the new term, the court will hear a constitutional challenge to the Consumer Financial Protection Bureau. It’s the second time the Supreme Court has taken aim at the bureau, which was created by the Dodd-Frank legislation signed by former President Barack Obama in 2010 and is widely scorned by conservatives. Three years ago, the justices handed down a 5-4 decision that said the agency’s director had no right to stay through the five-year term set by statute and was subject to firing at any time by the president without cause.

Now, the CFPB’s funding stream is the issue at the high court after the 5th Circuit ruled that funding the agency out of fees charged by the Federal Reserve violates the Constitution’s requirement that Congress regularly appropriate money for the operation of federal agencies.

If the justices uphold that decision, numerous agencies like the Fed, various bank regulators, the Federal Housing Finance Agency and more could need emergency legislation to restructure their finances.

“This is an incredibly important case,” said Brianne Gorod of the Constitutional Accountability Center. “It would threaten many other federal agencies.”

There are few guideposts to signal what the justices will do in the case, CFPB v. Community Financial Services Association. “There isn’t really any precedent on this issue,” said Adam White of the American Enterprise Institute.

Affirmative action: Back so soon?

The Supreme Court’s decision in June striking down affirmative-action programs at Harvard and the University of North Carolina appeared to be a death knell for the use of race in college admissions. But the ruling was vague about whether and when schools can use other factors that often correlate with race — such as socioeconomic status and geography — to try to achieve the kind of racial diversity they’ve said they would lose without the programs ruled illegal this year.

Now, just months after that momentous ruling, the justices are being asked to take up a dispute over changes to the admissions policy at an elite public school in northern Virginia, Thomas Jefferson High School for Science and Technology. The school recently downplayed test scores and gave more weight to other, formally race-neutral factors in a bid to increase the number of underrepresented minorities like Blacks and Latinos.

Parents who sued over the changes contend that the school is using sleight of hand to achieve the kind of racial balancing the high court effectively outlawed and that the changes were driven, in part, by a perception that students of Asian descent were crowding out others.

It’s unclear whether the justices will want to wade back into this issue so soon, but it seems inevitable that they’ll eventually have to deal with the efforts many schools are making to implement — or dodge — last term’s decision.

Social media fights loom large

The justices announced Friday they’ll weigh in on the drive by red-state legislatures to respond to what many conservatives regard as censorship of their views on platforms like Facebook, YouTube and X (formerly known as Twitter). Challenges by the social media giants to state laws in Texas and Florida trying to require equal treatment of various political views produced conflicting ruling from federal appeals courts.

The cases, which will likely be argued early next year, pit the free-speech concerns of many Americans against what the companies’ claim is their First Amendment right to control what appears on their websites and could produce some strange bedfellows since some on the left are also skeptical about the power of the tech firms.

The Supreme Court has also agreed to hear two other cases about political speech on social-media platforms, exploring whether public officials can ban or block critical citizens from posting in the comment sections tied to the officials’ accounts. Those cases will be argued on Oct. 31. 

Trump and the fallout from Jan. 6

The four ongoing criminal prosecutions of former President Donald Trump are unprecedented and any of them could spawn appeals to the high court, but there is one issue the justices could take up this term that would instantly overshadow every other case on the docket: whether Trump can or should be disqualified from the presidential race because of his role in ginning up the riot at the Capitol on Jan. 6, 2021, and his broader efforts to subvert the 2020 election.

A slew of cases have been filed in various states trying to knock Trump off the ballot under the 14th Amendment’s insurrection clause. Legal scholars of various persuasions are urging the Supreme Court to address the issue in the coming months rather than waiting until closer to the election. That would produce a white-hot political showdown at the high court unlike any other in its modern history.

Abortion fights likely to return

The Supreme Court’s ground-shaking 5-4 ruling last year overturning Roe v. Wade ended one chapter in the abortion battle, but did not put the issue to rest. The justices already stepped into one such fight in April on an emergency basis, granting the Biden administration’s request to keep the abortion pill mifepristone on the market despite a ruling from a federal judge in Texas effectively revoking approval of the drug.

Medication abortions now account for more than half of all abortions in the U.S., in part because of crackdowns on access to surgical abortions in many states. The pills also provide a way to evade the broad bans on abortion many states implemented after the justices’ decision last year that ended the federal constitutional right to terminate a pregnancy.

The case about alleged flaws in the FDA’s approval process for mifepristone was sent back to the 5th Circuit for further action, but seems all but certain to return to the justices soon.