The Supreme Court kicks off a new term today, as it does every year on the first Monday of October.
This term comes at an unusual moment for the high court, which finds itself in the crosshairs of something the justices seek to avoid. Though judicial nominations have become increasingly partisan battles in recent decades, the high court has traditionally tried to position itself above the fray in issuing its decisions.
But culture wars and political polarization have drawn the court into taking up cases resulting in some blockbuster decisions on a range of issues including guns, a widely used abortion pill, the regulatory power of federal agencies and presidential immunity, among other matters
Last November, feeling the heat from Democrats and other critics amid revelations related to undisclosed luxury trips and other financial ties to wealthy benefactors, the court announced its first code of conduct — though the code lacks any enforcement mechanism.
And then in July, President Joe Biden proposed a binding code of conduct and an eight-year term limit for the justices, who currently enjoy tenure for life. Republicans have generally pushed back on such changes.
With all that drama unfolding as a backdrop, what should we expect to see in the new term?
Pornography and free speech
Tara Grove, the Vinson & Elkins chair in law at UT Austin, said this term should have no shortage of headline-driving cases, and the main case out of Texas is Free Speech Coalition v. Paxton.
“That law is a Texas regulation of speech, trying to keep speech related to pornography out of the hands of children. And a lot of different groups are challenging that, as is making it difficult for adults to access certain types of speech,” Grove said. “I think it’s really important to recognize that free speech issues don’t really fall into clear partisan slots … and so I think it’s going to be interesting to see what the justices do with this.
“I think the justices have actually been pretty traditional on free speech that is pretty protective of free speech. But we also have a societal battle going on right now about the scope of free speech. And I think it actually divides people more by age than by ideology. People just have different values in terms of how much speech should be protected and how much the government can limit speech.”
Health care for transgender minors
The court’s also going to be taking up a case about health care access for transgender minors out of Tennessee, which could have major ramifications in states with similar laws, including Texas.
“It’s a challenge to state laws that prevent minors who are transgender from getting the kind of medication that they need in order to make the transition. And that includes when their parents say they want their children to get access to these medications,” Grove said. “And that has been challenged on a few different grounds, but the ground that I think the Supreme Court is focusing on is the equal protection challenge.”
This case brings up an interesting issue when it comes to the application of the equal protection clause, Grove said.
“One thing the Supreme Court has just left undecided in its jurisprudence is how equal protection concerns affect people who are discriminated against on the basis of sexual orientation or gender identity,” she said. “We don’t really know how the Supreme Court is going to approach this from an equal protection standpoint.
“We also have several justices on the Supreme Court that have never heard a case involving equal protection issues surrounding either sexual orientation or gender identity. So I think this is an enormously important case, and it’s going to be really, really important to see how the current Supreme Court handles these issues.”
Regulation for ‘ghost guns’
There is also a case related to the regulation of “ghost guns,” which are guns people can make at home using kits. These guns have no serial numbers, which makes them harder to trace and regulate, Grove said.
“The federal government finally issued a regulation saying these guns should be subject to the same types of limitations and regulations as other types of guns that do have serial numbers. And the question is, does the federal executive have the power under the federal statutes to actually issue this regulation?” she said. “So it’s pretty similar in many ways to the Cargill case last term about bump stocks. It’s not really focused on the constitutional power of the government. It’s rather focused on whether Congress allowed a federal agency to do what it’s trying to do. So this really combines gun rights issues with federal regulatory power.”
The court has been very interested in cases related to the power of federal agencies to regulate in recent years. Just last term, the court did away with the “Chevron doctrine,” which said that when the statute is unclear courts should give agencies the freedom to decide how to regulate an issue. In other words, the Chevron doctrine dictated that courts should defer to the experts, Grove said.
“Agencies no longer get deference when the statute is unclear. And so how are they going to defend their decisions? And I think it’s going to turn on how the Supreme Court interprets statutes and also how strong of a job the agencies do in defending each individual regulation,” Grove said. “I think it’s also important to keep in mind this other doctrine the Supreme Court has created called the Major Questions Doctrine.
“Basically, this says that if something is a really big deal – so if it has big political consequences or big economic consequences – the Supreme Court’s going to assume that Congress didn’t give a federal agency the power to regulate in this area. So that doctrine … I think is going to be huge in all administrative law cases at both the Supreme Court and especially the lower federal courts.”
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All of these cases have made it harder for the court to keep up the non-political appearance that justices often prefer to preserve. This, Grove said, has raised interesting questions about the role of the court in our political system.
“The Supreme Court is supposed to decide stuff without regard to external politics. As a practical matter, the justices are human beings. So I think it’s very hard for anyone to do their job without thinking about the broader political context,” she said. “And I think when we look historically at the Supreme Court, at various moments in our political history when there’s been a lot of political pressure on the Supreme Court, that impacts the way the justices do their job.
“So at various times in our history, you’ve seen the Supreme Court getting this kind of political pressure and responding. Now, will that affect any particular case? Not necessarily. It may impact the Supreme Court’s decision on whether to take a case and also how it decides a case. But I think we should all ponder whether we want our justices to be considering external political factors when they’re issuing decisions.”
