Supreme Court's sleepy-looking docket leaves room for potentially bigger cases to come
In the U.S. Supreme Court's new term, “the docket is largely dominated by statutory [cases] that neither reflect the past year’s tectonic shifts nor anticipate new ones,” says Aziz Z. Huq, a law professor at the University of Chicago. (Image from Shutterstock)
The U.S. Supreme Court begins its new term next week poised on the edge of uncertainty. The biggest case of the term may be one that isn’t even on the court’s docket yet.
A year ago, the 2023-24 term looked like it might be relatively sleepy. But that was before the court added cases on guns, abortion medication and two matters involving former President Donald Trump and his alleged role in the Jan. 6, 2021, riot at the U.S. Capitol.
In the new term, “the docket is largely dominated by statutory [cases] that neither reflect the past year’s tectonic shifts nor anticipate new ones,” says Aziz Z. Huq, a law professor at the University of Chicago.
The court will be barely a month into the new term when the presidential election occurs. Huq and other court observers believe the justices have left room on their calendar for voting-related cases that may arise just before Election Day, or like in 2020, in the weeks after a close election.
“The court presents itself as above politics, but it has always existed in a political context,” says Alison L. LaCroix, a law professor and legal historian also at the University of Chicago. “It’s clear we’re going to see all kinds of appeals … efforts to get things certified from all the things relating to the presidential election. It seems like there has got to be a ‘watch this space’ of the docket for those cases and petitions.”
Daniel P. Tokaji, the dean of the University of Wisconsin-Madison Law School and an expert in election law, says there were 424 court cases arising out of the 2020 election, many leading to rejection to claims by former President Trump and his supporters that raised doubts about the integrity of the election.
It’s “not clear if we’re going to meet or exceed that total in this election cycle,” says Tokaji, but the Supreme Court could be involved.
But at least the race for the White House has an end in sight.
“We will [soon] be out of a presidential election season,” says John S. Moran, a partner with McGuireWoods and a former U.S. Department of Justice official. “That can have a lot of different effects both in terms of the substantive outcome of the election but also just not having that background noise informing the interpretation of everything the court does.”
Leaks and ethics matters dominate the summer recess
The justices are returning from a summer in which, despite their best hopes of fading out of the public eye, remained in the news. Critics reacted sharply to the court’s decision on presidential immunity. In September, The New York Times reported some tantalizing inside details on the court’s handling of that case, Trump v. United States, including about Chief Justice John Roberts’ steering of his colleagues to a majority opinion that offered broad immunity for certain official acts of any president.
The New York Times report itself, which was based on interviews with unspecified “court insiders” and looks at internal memos, prompted discussion about yet another breach of institutional secrecy along the lines of the 2022 leak of a draft opinion in the Dobbs v. Jackson Women’s Health Organization abortion decision, which overruled Roe v. Wade and eliminated federal protection of abortion rights.
Lisa S. Blatt, a partner with Williams & Connolly who has argued 50 cases before the high court, says there have long been the occasional leak out of the court about a big case, such as revelations about the justices’ handling of the major 2012 case that upheld the Affordable Care Act.
“But definitely something broke with Dobbs, and it’s consistent with this latest one in The New York Times and the immunity decision,” she says. “It’s nothing short of shocking. It does feel something is broken.”
As the court remains in low esteem in public opinion polls and debates over its handling of ethics controversies continue, the justices may be eager to take the bench and get back to regular business. Here are a few of the biggest cases on their docket so far.
Ghost guns
On Oct. 8, the second day of the new term, the court will hear arguments in Garland v. VanDerStok, about a challenge to a Bureau of Alcohol, Tobacco, Firearms and Explosives rule regulating firearms made from parts kits and lacking serial numbers.
Two lower federal courts held that ATF exceeded its legislative authority under the Gun Control Act of 1968. Though the case is not directly a Second Amendment dispute, the case has drawn the interest of all the public advocacy groups on each side of gun issues who have shown up in recent cases in the high court.
U.S. Solicitor General Elizabeth B. Prelogar told the court in one filing that under the lower court rulings, “anyone could buy a kit online and assemble a fully functional gun in minutes—no background check, records or serial number required.”
Deepak Gupta, a founding principal with Gupta Wessler in Washington, says the court may have given a hint on how it will rule on the merits when it issued a 5-4 order allowing the Biden administration to reinstate the rule.
“The stakes are huge,” says Gupta, who analyzed the case for a preview put on by Georgetown University Law Center’s Supreme Court Institute. “If the court upholds ATF’s rule, it preserves the ability to regulate these ghost guns and parts. … If the court strikes down the rule, it significantly limits regulation in this area, and there is a real risk that criminals will be able to order guns on the internet and the entire gun control framework will not apply to them.”
Transgender medical care
In United States v. Skrmetti, not yet set for argument, the court will dive into the hot-button issue of transgender rights. The case involves a Tennessee law that bars health care providers from prescribing puberty blockers or hormones to allow a minor to identify with or live as an identity inconsistent with the person’s sex assigned at birth, or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”
The court granted review of the cert petition of the Biden administration, which is an intervenor in the case, asking whether the law violates the 14th Amendment’s Equal Protection Clause. The law was also challenged on parental-rights grounds by private plaintiffs represented by the American Civil Liberties Union, but the court did not grant a separate cert petition raising that issue.
More than 20 other states have similar laws prohibiting gender-affirming care. The United States argues that the Tennessee law makes a sex-based classification and should be subjected to heightened constitutional scrutiny.
David D. Cole, the outgoing legal director of the ACLU and a professor of law and public policy at Georgetown Law, says the state is engaged in “classic sex discrimination.”
“The Tennessee law allows someone assigned male at birth to take testosterone but not someone assigned female at birth to take testosterone,” he says. “That is treating someone differently because of their sex assigned at birth.”
The state responds that the law classifies persons based on age and medical condition, not sex, and thus it is subject only to rational-basis review, which lower courts ruled that the law cleared.
The United States’ position could change if Trump re-takes the White House, but the issue is not going away, and the court seems eager to tackle some of these questions, observers say.
Sexual material and minors
In Free Speech Coalition v. Paxton, another case involving state efforts purportedly to protect minors, the court will consider a Texas law that imposes age-verification and other requirements on certain commercial websites offering content that is more than one-third “sexual material harmful to minors.”
A federal district court blocked the law as likely unconstitutional under the First Amendment for failing to pursue its objectives in the least restrictive way of regulating adults’ protective speech. But the 5th Circuit U.S. Court of Appeals reversed that, holding that rational-basis review of the age-verification provision was appropriate under a 1968 Supreme Court decision, Ginsberg v. New York. That case involved a state law that barred the sale of sexual materials to minors at a time when that largely meant pornographic magazines at the local newsstand or convenience store.
“There’s an obvious and huge difference between [requiring adults to show ID] in the real world and doing that online, which creates a digital record,” says Cole. “We all know there’s been lots and lots of this kind of information getting out, and so people are going reasonably feel they don’t want to expose that information.
The case is not yet set for argument.
Those are some big cases for what so far is a term of less than “tectonic shifts,” as Huq put it. But if recent terms are a guide, there may be more earthshaking cases added.
