Justices Will Deal with Abortion, Guns, Gerrymandering and Social Media
When the Supreme Court returns this week, expect a redux of its previous precedent-setting term that dealt with abortion, guns, gerrymandering, government regulation and social media.
“You thought those legal issues were gone, or at least resolved?” wrote Nina Totenberg, NPR’s veteran court reporter. “The conservative court seemed to think so, too. But those issues are back this term.”
Interestingly, many of the cases on the high court docket come from the 5th Circuit Court of Appeals, which includes Texas and other parts of the South.
The Court’s previous decision to reverse Roe v. Wade was seminal but apparently not final. In this term, justices will review a ruling by the 5th Circuit Court of Appeals that would reinstate restrictions on mifepristone, the abortion pill approved by FDA in 2000 and okayed in 2021 for distribution via telemedicine and by mail. It is used in more than half of abortions nationwide.
The Roe v. Wade reversal was justified on grounds that states are in the best position to regulate abortions. The appellate court ruling, if left standing, would restrict the pill’s use across state boundaries.
The ruling is being appealed by Danco Laboratories that makes the drug along with the Biden administration. In addition to imposing a de facto national limit on abortions, they say the ruling could have unintended implications for how pharmaceuticals are regulated.
“Left unchecked, this decision would cause turmoil not only for abortion and miscarriage patients, but for our health care system more broadly,” ACLU’s Julia Kaye told Totenberg. “Hundreds of pharmaceutical companies have told the courts that overriding FDA actions would severely destabilize the pharmaceutical industry, stifling innovation and drug development and erecting unscientific barriers to the approval of life-saving medicines.”
Another ruling by the 5th Circuit invalidated a federal law banning possession of a firearm by a person subject to a domestic violence restraining order. The challenge to overcome the appellate ruling is meeting the new test of whether an analogous regulation would have been in place when the Constitution and the 2nd Amendment were adopted.
A second case the Court agreed to hear poses a similar historical challenge. It involves a federal ban a bump stocks that turn rifles into virtual machine guns. Government attorneys must convince justices how James Madison would have viewed both gun restrictions at time when restraining orders and semiautomatic rifles didn’t exist.
The Supreme Court has twice sent Alabama’s congressional redistricting back to the drawing boards for failing to meet provisions of the Voting Rights Act. Now justice will have to parse whether South Carolina’s redistricting maps are guilty of racial gerrymandering or just partisan gerrymandering.
South Carolina officials argue the maps are constitutional because they were drawn to benefit Republicans, not discriminate against Black voters. The NAACP disagrees, saying the maps violate Section 2 of the Voting Rights Act that prohibits voting practices or procedures that discriminate on the basis of race.
Several cases challenge regulatory powers of the Securities and Exchange Commission, National Marine Fisheries Services and Consumer Financial Protection Bureau (CFPB). In another 5th Circuit ruling, CFPB’s funding mechanism, established in 2010, was deemed unconstitutional because it depends on fees paid to the Federal Reserve Board rather than a congressional appropriation.
Observers said the CFPB decision could affect other federal agencies including the Fed as well as Social Security and Medicare that also aren’t subject to annual appropriations.
Yet another 5th Circuit ruling will be reviewed that upheld a Texas law that bans social media companies from removing false or misleading content. Social media companies backed by the Biden administration have appealed.
Another case the Court will hear tests whether a local public officials can block people their personal social media accounts. As a footnote, former President Trump tried to block people from his accounts.
Trans Students Health Rights
This is a brewing issue as 22 states have adopted legislation banning gender-affirming care for adolescents. Lower court decisions on the bans have been split, which often is a calling card for the Supreme Court to step in.
The four criminal and one civil fraud trials involving Trump are likely to spawn one or more legal questions that rise to the Supreme Court. Trump attorneys have filed motions arguing that the former President was immune from criminal prosecution while he was still in office and shouldn’t be indicted for efforts to overturn his 2020 election loss. Trump’s civil fraud trial is underway in New York and on the first day of the trial a question arose over whether some of the charges are invalid because of the statute of limitations.
Concerns about judicial ethics, lower public approval and a looming presidential election may temper some Court rulings this term.
The new Court term comes amid growing concern about ethics violations, most prominently by Justice Clarence Thomas. Aggressive reporting has discovered Thomas accepted luxury travel, received compensation for speaking at conservative group fundraisers and having cozy relationships with rich men with legal interests before the Court.
Chief Justice John Roberts has apparently rejected calls, at least for now, to adopt ethics rules similar to those that apply to all other federal judges. At least two justices – Brett Kavanaugh and Elena Kagan – expressed support in public speeches for ethics rules.
“It would help in our own compliance with the rules, and it would, I think, go far in persuading other people that we were adhering to highest standards of conduct,” Kagan said at an address to the Notre Dame Law School.
A new Gallup poll shows only 41 percent of respondents approves of the Supreme Court’s performance. The poll reflects a partisan split on the Court, with 56 percent of Republicans approving its performance contrasted with 40 percent of Independents and only 23 percent of Democrats.
“Going forward, concerns about Supreme Court justices’ acceptance of gifts and lavish trips, particularly among two conservative justices, may subdue the public’s approval of and trust in the nation’s highest court,” Gallup concluded.
Polling shows overall public approval of the Court took a nosedive after its decision to reverse Roe v. Wade. Before the reversal, Republican approval reached 67 percent.
The issue of judicial ethics could temper the rightward movement of Court decisions this term. So could the 2024 presidential election that will occur less than five months after the Court adjourns following release of several major and contentious rulings.