Supreme Court opens new term quietly—so far
“Although big terms are usually followed by quiet ones at the court,” says Anastasia Boden, the director of the Robert A. Levy Center for Constitutional Studies at the libertarian Cato Institute in Washington, D.C., “that might not be true this year. We might get another big term.” Image from Shutterstock.
After two momentous terms in a row, is the U.S. Supreme Court due for a more tranquil year ahead?
“Although big terms are usually followed by quiet ones at the court,” says Anastasia Boden, the director of the Robert A. Levy Center for Constitutional Studies at the libertarian Cato Institute in Washington, D.C., “that might not be true this year. We might get another big term.”
Two terms ago, the conservative-dominated court overruled the federal right to abortion, expanded Second Amendment gun rights, and made it easier for educators to pray at public schools. Last term, the justices ended the use of race in college admissions as it had been practiced for decades, overturned President Joe Biden’s $400 billion student loan relief program, and upheld the First Amendment right of creative professionals to refuse to serve LGBTQ customers.
The court on Oct. 2 starts what might turn out to be “another big term,” but it is opening with a more modest docket. Still, there are big cases on gun rights, social media use by government officials and the scope of the so-called administrative state.
And while the justices would undoubtedly be relieved for public attention to focus on those and other cases, the ethics controversies of recent months still hang over the court as it faces growing pressure from members of Congress and advocacy groups to adopt a more binding code of conduct.
Building on comments earlier this month by Justice Brett Kavanaugh that he was hopeful there would be “concrete steps taken soon” to adopt such a code, Justice Elena Kagan last week said “it would be a good thing for the court to do that.”
“It would help in our own compliance with the rules,” she said at Notre Dame Law School on Sept. 22. “It would, I think, go far in persuading other people that we were adhering to the highest standards of conduct. So, you know, I hope we can make progress.”
The case of the shrinking docket
As the justices open the term, their docket is far from full. University of Chicago law professor Will Baude worries about the court’s “continuously shrinking docket.”
“There are just surprisingly few cases scheduled for next term,” says Baude, co-host of the Divided Argument podcast about the court. “Is that a permanent feature? Does that reflect something about the dynamic on the court? … I think we’ll find out.”
Last term, the justices issued 57 opinions in argued cases, among the lowest in recent decades. For the new term, the court has granted 25 cases so far (with a few of those consolidated to count as a single argument). Following its end-of-summer long conference this week, the court is likely to add a handful to that number and will keep adding cases in the next few months to be argued in the second half of the term.
The court is “taking fewer cases than ever,” Cato’s Boden says. “It’s moving incrementally. It’s sidestepping important issues. It’s couching the big cases between even more very boring statutory cases.”
In the new term, the court has some boring statutory cases and some big cases, including these:
Guns: In United States v. Rahimi, a case that originated in Texas, the Biden administration is asking the court to reverse a lower-court ruling that struck down a provision of federal criminal law that prohibits the possession of firearms by people subject to domestic-violence restraining orders.
The New Orleans-based 5th U.S. Circuit Court of Appeals invalidated the provision on its face, holding that it was unconstitutional under the Second Amendment. The appellate court ruled this past March that the federal provision could not stand under the court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which established a text, history and tradition test for evaluating gun regulations.
“This is the first Second Amendment case to reach the Supreme Court since the seminal decision in Bruen a couple terms ago,” says Hashim M. Mooppan, a partner with Jones Day and a U.S. Department of Justice veteran. “So the case is pretty important, both because of the public safety implications of the particular law in issue, but also because of the general fleshing out of the Bruen standard that’s likely to follow.”
Social media: In a pair of cases involving local elected officials, the court will decide when the use of social media platforms such as Facebook or Twitter (now X) amounts to state action. The officials—a city manager in Michigan and two school board members in California—blocked some constituents from their personal social media pages, which featured information about their offices and duties.
“This is shaping up to be a consequential term for speech on social media platforms,” says Evelyn Danforth-Scott of the American Civil Liberties Union, which has filed amicus briefs in Lindke v. Freed and O’Connor-Ratcliff v. Garnier arguing that when public officials hold themselves out as exercising government authority, they are acting under color of law.
Danforth-Scott notes that the court could soon grant review in two other social media cases involving Florida and Texas laws aimed at barring certain large websites from excluding conservative viewpoints.
Those cases could have “important consequences for whose speech is protected online and how we situate these digital platforms in the existing landscape of Supreme Court precedent,” she says. (Editor’s note: The court granted certiorari in these cases Friday. See “Supreme Court to consider laws that block social media from removing certain content and users.”)
The administrative state: There are several cases dealing with executive branch power, and conservatives are most excited about one in which the court could overrule Chevron U.S.A. Inc. v. National Resources Defense Council, the 1984 decision that said courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable.
The question arises in a case in which several commercial fishing companies challenged a rule by the U.S. Department of Commerce’s National Marine Fisheries Service that requires the industry to pay the cost of federal monitors who ride on vessels to monitor compliance with fishery management plans.
Although federal statutes require the monitors, it is the regulation that makes the industry shoulder the costs, and the U.S. Court of Appeals for the District of Columbia Circuit upheld the federal agency’s interpretation as a reasonable one.
The fishing companies appealed that ruling to the Supreme Court in Loper Bright Enterprises v. Raimondo.
Paul D. Clement of Clement & Murphy, who represents the fishing companies, said at a forum at the Heritage Foundation last week that the requirement that they must pay the cost is what is “stuck in the craw” of the fishing industry.
“It’s a big enough imposition on your liberty to have to carry these federal monitors, but then to have to pay their salaries is adding insult to injury,” he said.
U.S. Solicitor General Elizabath B. Prelogar says in a merits brief that overruling Chevron “would be a convulsive shock to the legal system” because it “would threaten settled expectations in virtually every area of conduct regulated by federal law.”
Sarah M. Konsky, a clinical professor at the University of Chicago Law School and the director of its Supreme Court clinic, says it seems likely that “Chevron’s not going to survive this case, at least in its current form.”
But she notes that the Supreme Court itself has not cited Chevron in several years and that litigants focus on other arguments before raising Chevron deference claims.
“There are good arguments to be made that Chevron isn’t currently doing a lot of work in a lot of cases,” Konsky says.
A spotlight on one federal appeals court
Several legal observers said the new term will be a test for the conservative 5th Circuit, which covers Louisiana, Mississippi and Texas and which has fed four cases so far to the high court’s docket.
Those include Rahimi (the gun case) and two cases in which the 5th Circuit has curbed the administrative powers of federal agencies, Consumer Financial Protection Bureau v. Community Financial Services Association of America and Securities and Exchange Association v. Jarkesy.
“A lot of the cases the court has taken involve the 5th Circuit striking down major federal laws or federal policies,” Baude says. “Whether the Supreme Court either decides to start agreeing with the 5th Circuit about everything—which would be a big change in the law—or in some way sends a message to the circuit to cut it out and cool it, I think, will be another big dynamic.”
Irving L. Gornstein, the executive director of the Supreme Court Institute at Georgetown University Law Center, agrees, saying “the 5th Circuit is ready to adopt the politically most conservative position on almost any issue, no matter how implausible and no matter how much defiling of precedent it takes.”
Noting that the 5th Circuit had laid the groundwork for the Supreme Court’s 2022 abortion decision in Dobbs v. Jackson Women’s Health Organization, Gornstein says, “We still see some right-side advocates who seem to think, ‘Because we won Dobbs, we can win anything.’ That leads them to advocate positions that at least some of the [Supreme Court’s] center-block of conservatives are not going to be able to stomach.”
Updated on Sep. 29 to fix the spelling of Sarah M. Konsky’s name and note new grants of certiorari.
