Supreme Court returns to unfinished business
Justices to face difficult docket, abortion case
WASHINGTON — When the Supreme Court returns to the bench Monday, it will face a docket filled with unfinished business. The justices will revisit issues such as gun rights, government power, race, and free speech even as they are shadowed by intense scrutiny of their conduct off the bench.
In the coming months, moreover, the court is very likely to agree to hear a major abortion case, one that could severely limit the availability of a drug used in more than half of all pregnancy terminations. A decision in that case could come in June, two years after the court overturned Roe v. Wade.
Recent history suggests that the court’s six Republican appointees will continue to move the law to the right. The main questions are how far, how fast, and what impact the questions swirling around the justices’ ethical standards will have on their judicial work and personal relationships.
It has been almost three years since Justice Amy Coney Barrett joined the court, creating a six-justice conservative supermajority. In her first full term, ending in June 2022, that majority ran the table in blockbuster cases on abortion, guns, the environment, and religion.
The most recent term, which ended this past summer, also featured significant conservative victories on affirmative action, student loans, and gay rights. But the balance of the court’s decisions presented a more complicated picture, featuring occasional liberal victories from unusual alliances.
“The question for this term is whether last term’s voting behavior will hold or whether the court will snap back to a 6-3 court,” said Irv Gornstein, executive director of Georgetown’s Supreme Court Institute.
The new term will test Chief Justice John Roberts’s ability to steer his court toward the sort of incrementalism he has long espoused, perhaps in alliances with Barrett and Justice Brett Kavanaugh. If liberals achieve some victories, though, those may come because litigants and lower courts had staked out positions too extreme for even a fundamentally conservative Supreme Court.
A Second Amendment case, to be argued in November, could be an example of such potential overreach. The case, United States v. Rahimi, No. 22-915, is an appeal from a decision striking down a federal law that disarms people subject to domestic violence restraining orders.
The appeals court, relying on a transformative Supreme Court ruling last year that required the government to identify historical analogs to justify laws limiting gun rights, said there was no comparable historical practice.
The Supreme Court’s ruling will have sweeping consequences, said Joseph Blocher, a law professor at Duke University.
“Courts have really struggled to find meaningful historical guidance about the constitutionality of modern gun laws like those regulating high-capacity magazines or guns on the subway,” he said. “Rahimi gives the justices a chance to clarify that analogizing from history isn’t a recipe for anachronism.”
The coming term could also take large strides toward achieving a long-sought goal of the conservative legal movement: stripping administrative agencies of the power to regulate.
“This term’s administrative law cases present an existential question,” said Kate Shaw, a professor at the Benjamin N. Cardozo School of Law. “Will our government retain the power and capacity to respond to the most pressing issues of our time? Or will the court continue to incapacitate the administrative state, limiting its authority and substituting the court’s own views and preferences for those of expert agencies?”
The term may also illuminate how far the court is willing to go in curtailing access to abortion. After the court eliminated the constitutional right to abortion, a coalition of anti-abortion doctors and organizations challenged the Food and Drug Administration’s approval more than two decades ago of an abortion pill.
At stake is the availability of the pill mifepristone, which more than 5 million women in the United States have used to terminate their pregnancies, although the outcome could also undermine the agency’s authority to approve and regulate other drugs.
In the term that ended in June, a closely divided court, in a surprise decision, ruled that Alabama had diluted the power of Black voters in drawing a congressional voting map, reaffirming part of a landmark civil rights law that had been thought to be in danger. On Oct. 11, the court will turn to a related question: whether a congressional voting district in South Carolina should be restored after a lower court struck it down as an unconstitutional racial gerrymander.
Last term, the court largely sidestepped cases concerning what responsibility tech companies should have for what their users post on their sites.
In the new term, the justices will again confront the intersection of free speech and technology, including one case that sets up a major showdown over the First Amendment. On Friday, the court agreed to hear appeals on whether the Constitution allows Florida and Texas to prevent large social media companies from removing posts based on the views they express.