A new term for a sorry Supreme Court

Monday, October 2 launched a new formal term for the Supreme Court of the United States, but SCOTUS has hardly been out of the news since it recessed in July. On top of the financial scandals that emerged earlier this year around its sitting justices, recent reporting from ProPublica revealed more compromising associations for Justice Clarence Thomas, who secretly participated in Koch donor summits, while The New Republic found Justice Samuel Alito financially entangled in a company that stands to benefit from a pending case.

None of this is surprising, but it marks an important tension in US politics. In 2022, in the wake of SCOTUS’s decision to end a federal protection for legal abortion, confidence in the Supreme Court was at an historic low, though the nature of this low varied across studies: 18%, according to an Associated Press-NORC Center survey, 40%, according to Gallup (a common variation for sample sets in the few thousands). But the more important figures lie in the schism between Republican and Democratic views. In the AP-NORC polling, confidence fell in both groups, but much more steeply for Democrats. In Gallup’s polling, 62% of Republicans were currently in favor of SCOTUS, compared to 17% of Democrat respondents; last year, it was 74% for Republicans, and 13% for Democrats.

READ: Along party lines: SCOTUS decisions and US schisms

A right wing supermajority, even one created through court appointments by a past president now facing 91 federal charges, is of course going to find more favor among right wing US citizens. But the ethical compromises on such overt display in its financial and donor scandals, along with a body of recent rulings that have bypassed key matters of standing and deference, and yielded openly vitriolic opinions between antagonized justices, bodes poorly leading up to the 2024 US Presidential Election. When emergency requests related to that electoral process arise, will there be any reason for confidence in the decisions made?

Moreover, even if legal events transpire to remove the current Republican forerunner from presidential consideration, there are deeper conservative plans, such as Project 2025, that still seek to transform major government regulatory bodies with the help of upcoming Supreme Court cases.

READ: Beyond warring narratives: The struggle for US democracy

Will they succeed? If so, what might this SCOTUS term mean for the nation’s future?

And what, if anything, can citizens do about it either way?

Compromises and case law

This term, a critical case for federal agency autonomy, Loper Bright Enterprises v. Raimondo, will find Koch network attorneys representing the plaintiffs in a case superficially about the fishing industry’s obligation to pay for monitors who oversee their ships’ compliance with regulations against over-fishing. The case has already racked up a significant number of amicus briefs: advocacy statements from parties (significantly, other corporations) highly interested in the results of this case. There is no sign yet of Thomas recusing himself, despite the latest reveals about his association with the Koch network spearheading the charge.

The aim of this case is essentially to reverse the decision established in Chevron v. Natural Resources Defense Council, which created the “Chevron deference” doctrine that allowed the courts to defer to a government agency’s interpretation of key statutes in any case where Congress has not expressly decided the question, and where that statute’s interpretation is based on laws that are “silent or ambiguous”. The elimination of this doctrine, which first allowed the Environmental Protection Agency (EPA) to advance key environmental reforms, would be a significant hit to the regulatory work of related government bodies.

Meanwhile, Alito benefactor Paul Singer could make out splendidly in Consumer Financial Protection Bureau v. Community Financial Services Association of America: a case where a group of lenders, thwarted when trying to withdraw funds from borrowers’ accounts, challenged the constitutional legitimacy of the funding model for the consumer protections agency. If successful, the case could effectively eliminate the CFPB by shifting control from the Federal Reserve to Congress, who would be free to slash its budget as befits partisan interest.

In a late September conversation at Notre Dame Law School, Justice Elena Kagan endorsed the call for an ethics code for SCOTUS. This past week, over 40 watchdog groups wrote to Chief Justice John Roberts calling for him to get his house in order, by compelling sitting justices to recuse themselves from cases involving conflicts of interest. But while lower courts are bound by a code of conduct that provides for disciplinary action, the highest court in the land is supposed to be of such impeccable character as to be allowed to govern its own ethical affairs. After all, if SCOTUS cannot be trusted, how much can it be relied upon to adjudicate fairly over all? Under this logic, Roberts has long resisted external pressures for ethics review.

Roberts and Kagan also ended the last term in a heated argument carried out in the holding opinion and dissent for Biden v. Nebraska, in which the court decided 6-3 along party lines to block Biden’s student debt relief plan. It was a strange case on a few accords, because the only party found to have standing wasn’t the actual injured party (an important factor, usually, in deciding whether a case will even be heard by SCOTUS), and the ultimate decision to bypass the congressional language of the HEROES Act, which had given the government the right to “waive or modify any statutory or regulatory provision applicable”, hung on Roberts’ insistence that “waive” didn’t actually include the possibility of eliminating a debt.

In his opinion on this case, Roberts wrote more broadly of the climate in SCOTUS:

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis—in fact at least three do. We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and the country.

Pages 25-26, “Opinion of the Court”, Biden v. Nebraska (2023)

This comment was met by Kagan’s rebuke in the dissent:

Maybe Congress was wrong to give the Secretary so much discretion; or maybe he, and the President he serves, did not make good use of it. But if so, there are political remedies—accountability for all the actors, up to the President, who the public thinks have made mistakes. So a political controversy is resolved by political means, as our Constitution requires. That is one path. Now here is the other, the one the Court takes. Wielding its judicially manufactured heightened-specificity requirement, the Court refuses to acknowledge the plain words of the HEROES Act. It declines to respect Congress’s decision to give broad emergency powers to the Secretary. It strikes down his lawful use of that authority to provide student-loan assistance. It does not let the political system, with its mechanisms of accountability, operate as normal. It makes itself the decisionmaker on, of all things, federal student-loan policy. And then, perchance, it wonders why it has only compounded the “sharp debates” in the country?

Pages 28-29, “Kagan, J., dissenting”, Biden v. Nebraska (2023)

Nor was this the only time, at the close of the 2022-2023 term, when the justices’ opinions conveyed their growing antagonism toward the other partisan contingent.

This term, there is a good chance of matters only getting uglier.

Cases nearing the docket

Many cases of strong relevance to US civic life have not yet made their way into the SCOTUS docket. These include injunctions around abortion pills, cases involving trans youth and athletes, and extensions of last summer’s verdict in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, to change admissions processes for private elementary and secondary schools, currently making their way through lower courts.

In the first case, the Department of Justice has appealed to SCOTUS after a 5th Circuit verdict that would ban shipments of mifepristone by mail, and impede the practice of telemedicine, based on an act of judicial overreach in which an FDA drug approval was suspended (for the first time ever) in a Texas courtroom presided over by District Judge Matthew Kacsmaryk. The Supreme Court offered a temporary stay on implementation in April, but there is good reason to suspect that the right wing supermajority behind Dobbs v. Jackson Women’s Health will continue to side against legal options for reproductive healthcare.

READ: Uterus 101: On menstruation, miscarriage, and mifepristone

One case that might resurface later in the term, where it could have an impact on election season proceedings, is Brandt et al v. Rutledge et al, or something like it. Since the launch of multiple state bans against hormone therapy (with a targeted focus on trans youth patients, even though the wording complicates matters for all young people who might require hormonal interventions), state courts have varied in their response to local decrees: some blocking their implementation in full or in part, and others upholding these legislative actions.

In June, a district court found in favor of the plaintiffs in Arkansas, and issued an injunction against state representatives enforcing House Bill 1570, Act 626 of the 93rd General Assembly. But far from settling the question, this decision just highlights the national schism on healthcare, and could still be appealed to the higher court. In late August, the Texas Supreme Court allowed its state’s ban on gender affirming care to go forward. At some point, one of these cases will find its way to SCOTUS for broader resolution, even if only to conclude that the federal government needs to defer to state verdicts. Depending on when, it could also amount to significant leverage in the coming presidential race.

Notable cases already on the docket

Two social media First Amendment issues will be heard on October 31: O’Connor-Ratcliff v. Garnier, and Lindke v. Freed. The former asks whether a public official using a personal social media account that promotes their official role and communicates job-related matters has the right to block individuals from engaging with their account. The public offices involved are at the level of local school boards, and the plaintiffs were removed for repetitive comments. The latter, framed around a municipal official blocking a critic of the city’s COVID-19 policy on the official’s personal Facebook page, asks what social media activity does and does not constitute official state action when performed by a person in public office.

Both cases also raise the question of whether SCOTUS has anywhere near the technological savvy to assess matters related to the so-called “town hall” of our highly unregulated contemporary social media environment.

On November 7, SCOTUS will hear United States v. Rahimi, a case that challenges the constitutionality of a federal ban on individuals possessing firearms while subject to a restraining order for domestic violence. Zackey Rahimi had been found guilty of such possession, but after New York State Rifle & Pistol Association, Inc. v. Bruen found in favor of individual rights to firearms for self-protection under the Fourteenth and Second Amendments, Rahimi’s conviction was thrown out in a subsequent opinion. The argument is that one person’s bid for federal protection from a violent citizen does not preclude said citizen from a constitutional right to self-defence.

The Biden administration asked SCOTUS to rule on this case. The already tenuous value of restraining orders for domestic violence (see: Castle Rock v. Gonzales) is being weighed against firearms protections by a court that strongly favors the latter.

The emergency docket and elections

The beginning of the formal session for SCOTUS can also invite neglect of the “shadow docket”, which is a grandiose term for those cases which get decided without the need for full public deliberation and the issuance of opinions. These are usually emergency injunctions, such as the petition for a stay of a Florida-based execution that Thomas denied on the court’s first day back in formal session. Some of these will matter greatly in the lead-up to the 2024 US Presidential Election.

One key reminder of their importance came just days ago, when SCOTUS refused an emergency bid from the state of Alabama, which has been resisting the development of a new congressional map that, accurately following the changing make-up of the state, will guarantee another Black-majority district and with it the strong probability of electing a Democrat in the next election.

Another electoral case that SCOTUS has already declined was a longshot bid to disqualify quadruply indicted Former President Donald Trump from running for office, on the basis of his involvement in the January 6, 2021 attack on the Capitol. This bid, forwarded by Republican nominee John Anthony Castro, appealed to the Fourteenth Amendment, which disqualifies from holding future office any individual who has taken an oath to uphold the Constitution, then “given aid or comfort” to insurrectionists or “engaged in insurrection or rebellion” themselves.

South Carolina gerrymandering was also named earlier this year for fall review, along with at least three other cases of relevance to electoral mapping. Alexander v. South Carolina Conference of the NAACP will be heard on October 11, and assess whether the district court erred in assigning racial prejudice to the legislators’ motives. The state of gerrymandering in the US is so striking that the legislators appealing for SCOTUS relief aren’t denying an attempt to draw the map in favor of Republicans. They only wish to remove the racial motive from this determination, to return the map to legitimacy ahead of the next election.

Grim tidings for US politics

It is a politically unhealthy but nonetheless hard reality that US citizens will have to wait and see if SCOTUS this term will further dismantle a range of civic protections, both regulatory and personal, that were hard-won over the last few decades. The conservative agenda is expressly to gut regulatory agencies like the EPA and CFPB; support Second Amendment expansions (in an ongoing growth of the amendment’s power from D.C. v. Heller [2008] forward); and restrict individual rights to make healthcare decisions, personally and with one’s medical team, in deference to religiously loaded notions of “traditional” values.

Project 2025, the Heritage Foundation’s transition plan for if Republicans win the White House next November, does not hide the conservative desire to see power concentrated more directly in Congress, with all the vulnerability to partisan sentiment that this will create for vast swaths of key regulatory labor and fiscal policy. This right wing vision of US politics has an ally in the judicial complement of 2023-2024 SCOTUS, which could also deliver the 2024 Presidential Election to the Republican Party with its coming decisions.

The milquetoast appeal, in such cases, is for folks to make sure they vote. To take their complaints to the polls, if they don’t like what they’re seeing in SCOTUS.

But democratic labor can and should go much further. There are actions sitting members of government can already take to respond to ethical concerns around the Supreme Court, and policies they can implement to better fortify the institutions US citizens want to preserve. Whether US legislators will take a more proactive stance lies with the ability of its citizens to mobilize for the vision of their country’s future that they actually want, especially after seeing where the current road map leads.

But time is running out to take these crises out of play.