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The U.S. Supreme Court officially begins its new term on Monday, but all sorts of political lightning rods are already on the docket or in the pipeline.
Guns, abortion, extreme partisan gerrymandering…did you think these legal issues were gone, or at least resolved? Conservative courts seemed to think so, too. However, these problems will recur this season.
Take abortion as an example. When the conservative majority threw out Roe v. Wade and eliminated the constitutional right to abortion, the conservative justices said they were simply returning the question of whether abortion is legal to the states. Similarly, in another case, conservative justices ruled that the court is out of the business of cracking down on all forms of extreme partisan gerrymandering. And in a wide-ranging ruling on gun rights, he said future gun regulations would only be legal if they resembled the regulations at the time the Constitution was written.
But somehow, all of these questions are back on the table this term, primarily as it reconsiders an appeal from the ultra-conservative 5th U.S. Circuit Court of Appeals, which covers Texas and parts of the Deep South. .
Irv Gornstein, director of the Supreme Court Institute at Georgetown University, said, “The Fifth Circuit is a political party on almost every issue, no matter how implausible or how tainted the precedent it may be.” “We are prepared to adopt the most conservative position.” Some of the 5th Circuit’s rulings are from “Crazy Town.” “It would be shocking if at least some of these decisions are not reversed,” he added.
A study of these Fifth Circuit decisions serves as something of a roadmap for the next Supreme Court justice, at least for now.
Abortion is almost certain to take center stage with the Fifth Circuit’s decision to reinstate restrictions on access to mifepristone, a pill that accounts for more than half of abortions in the United States today. It was first approved by the FDA in 2000 and later approved for safe use via telemedicine and mail in 2021.
However, the Fifth Circuit invalidated key parts of the FDA’s approval. Now, the drug’s maker, Danko Laboratories, and the Biden administration are asking the Supreme Court to reverse the Fifth Circuit’s decision. They believe that if the lower court’s ruling is upheld, access to abortion pills will be significantly reduced in every state in the country, regardless of whether abortion is legal or illegal in that state. It says that it will be. Moreover, they argue, it would jeopardize the country’s long-standing drug regulatory regime.
“If left unchecked, this decision will wreak havoc not just for abortion and miscarriage patients, but for the broader health care system,” said Julia Kaye of the ACLU. “Hundreds of drug companies have argued in court that overriding the FDA’s actions would severely destabilize the pharmaceutical industry, stifle innovation and drug development,” and “create unscientific barriers to approval of life-saving drugs.” ” he said.
the gun is back
Guns will also be a big focus again. At issue is the Fifth Circuit’s decision to invalidate a federal law that prohibits people subject to domestic violence restraining orders from owning guns. The questions before the court can be summarized as follows. To be constitutional, must gun regulations be similar to those at the time of the founding, or even when the Fourteenth Amendment was passed after the Civil War? After all, back then there were no court orders protecting wives from abusive spouses.
“I think the government has the weaker of the historical parallels,” says Supreme Court advocate Hashim Muppan. What is interesting to note, therefore, is that “under the history and tradition approach, “moderate conservatives” steered the needle of finding reasons for the government to win despite its historical advantage.” “How can you ‘thread the needle’?” he says. The analogy is not so great. ”
Similar issues are playing out in another gun case testing a federal regulation banning so-called bump stocks, devices that allow semi-automatic weapons to fire multiple bullets rapidly, like machine guns.
Voting Rights, Part 2
Voting rights cases are also headed to court, including one examining what the NAACP calls “racial gerrymandering” in South Carolina and what the state calls “partisan gerrymandering.” This is important. That’s because the court’s previous rulings have held that racial gerrymandering is unconstitutional, but partisan gerrymandering is not.
The docket is also proliferating with a series of lawsuits challenging the regulatory authority of various federal agencies, from the Securities and Exchange Commission to the National Marine Fisheries Service to the Consumer Financial Protection Bureau.
Both can have significant implications for other institutions. Consider the CFPB case as an example. The Fifth Circuit struck down the agency’s funding mechanism as unconstitutional because it receives its funding from fees paid to the Federal Reserve Board. Congress enacted this funding mechanism when it created the agency in 2010. But the Fifth Circuit said the agency must be funded through annual Congressional appropriations. If the Supreme Court agrees that this funding mechanism is unconstitutional, it would mean that the Federal Reserve itself, the Federal Deposit Insurance Corporation, which insures bank deposits, and potentially many others, including the Social Security and Medicare agencies, institutions will be at risk. It is funded in a variety of ways.
Social media incidents and federal regulators
The court has also heard a series of social media lawsuits. One is a test of state laws enacted in Texas and Florida that allow social media companies to remove content they deem to be false or misleading, such as false posts about vaccines, election rules, voting locations and dates. It is forbidden to do so. The Fifth Circuit upheld a Texas law banning such content moderation, and social media companies backed by the Biden administration appealed to the high court.
“It seems overwhelmingly likely that Internet companies will win because they have their own First Amendment right to decide how they want to organize their content. new york times Supreme Court Advocate Lisa Blatt said: But supporters of state bans counter that Internet companies are actually more like carriers, a way to carry everyone’s content without interference.
Another social media case tests when public officials can block others from their personal social media accounts. This is something President Trump tried to do during his presidency, but these incidents involve local officials and their long-standing personal accounts.
Another controversy that has a good chance of being fought in court is the medical rights of trans students. Twenty-two states have enacted laws banning gender-affirming care for transgender youth, and lower courts are already divided on whether such bans are constitutional.
The possibility of legal issues arising in President Trump’s trial is also on the horizon.
Of course, all of this is happening at a time when the court is facing repeated revelations about alleged ethics violations by some of its justices, particularly Justice Clarence Thomas and, to a lesser extent, Justice Samuel Alito. . And while some justices (most recently Justice Elena Kagan) have expressed support for the idea that the court should write its own ethics rules, so far a majority of the justices do not seem to agree. .
stay tuned. No matter what happens, the Supreme Court will not be bored.