Supreme Court returns to work with an eye on a post-election storm

The Supreme Court returns to its bench Monday with an agenda that includes cases on guns, pornography and transgender medical care, as the justices brace for a slew of last-minute election fights and a new presidential administration that could drag the court deeper into politics.

Of the 40 appeals the high court has agreed to decide so far, only a handful are the kind of screaming political controversies that dominated its caseload in recent years. While the lineup may allow the justices to keep their heads down for now, there are signs the relative calm may be short-lived.

A contested election between Vice President Kamala Harris and former President Donald Trump could thrust the 6-3 conservative majority into a political maelstrom at a moment when polls show trust in the court near record lows. A new president could reshuffle the cases already granted. And Trump is all but guaranteed to resurface at the Supreme Court in coming weeks to clarify the sweeping criminal immunity the court bestowed on him in July.

All of that will be on the minds of the nine justices when they take their seats Monday for their first oral arguments of a new term that will run until next summer.

“As matters stand now, this feels like the court is keeping its powder dry in case the election explodes,” Carter Phillips, a veteran Supreme Court litigator, told CNN early last week. “Not a lot of cases and very few high-profile ones.”

On Tuesday, the court will hear arguments in one of its biggest pending disputes. Advocacy groups and manufacturers are challenging a Biden administration regulation on “ghost guns,” mail-order kits that allow people to build untraceable weapons at home.

Though important – police say the guns are showing up at crime scenes – the suit doesn’t implicate the Second Amendment. Instead, the case deals with whether the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority when it decided in 2022 that the kits counted as firearms that could be regulated.

A Louisiana-based appeals court ruled last year that the ATF overstepped its authority, and the Biden administration appealed in February.

Later this year or early next, the court will hear arguments in a First Amendment case from the adult entertainment industry challenging a Texas law mandating age-verification requirements for pornographic websites.

On Friday, the court added another 13 cases to its lineup, though it remained silent about other major pending cases dealing with religion and abortion. The justices agreed to decide whether a federal law prevents Mexico from suing gun distributors for allegedly facilitating the flow of firearms to drug cartels. And they took a case from a straight woman who claims she faced workplace discrimination from a gay boss.

The relatively low-key term stands in contrast with previous years, when the conservative majority overturned Roe v. Wade, expanded Second Amendment rights, ended affirmative action in college admissions and – earlier this year – found far-reaching criminal immunity for Trump.

That rapid march to the right – along with a drumbeat of ethics controversies – appears to be taking a toll. A poll released by the Annenberg Public Policy Center on Wednesday found 56% of Americans disapprove of the Supreme Court. Meanwhile, the justices endured another embarrassing leak this summer when the New York Times reported on internal memos showing how Chief Justice John Roberts and some of his colleagues were thinking about Trump’s immunity claims.

The unusual breach came months after a key abortion opinion was prematurely posted on the court’s website and two years after the stunning disclosure of a draft opinion overturning Roe.

“Something does feel broken,” Lisa Blatt, who regularly argues before the justices, said of the leaks at a recent Federalist Society event.

Given those pressures, Roberts and his colleagues would likely prefer to avoid getting sucked into messy election battles this year.

Twenty-four years ago, a different court led by Chief Justice William Rehnquist handed down a hastily crafted 5-4 ruling in Bush v. Gore that effectively decided the presidential election for former President George W. Bush.

The late Justice Sandra Day O’Connor, who was instrumental in that decision, later regretted the court’s involvement.

“This court has to understand that its institutional legitimacy has been challenged,” David Cole, national legal director at the ACLU, said during a recent panel organized by Georgetown Law. “For it to get involved in a close election and vote on party lines to decide who the president is would be a disaster.”

Republican and Democratic attorneys have already filed a flurry of pre-election lawsuits, some which could be used in November to challenge the result of the election. But it’s also possible that whatever major election fight makes its way up to the high court next month, assuming one does, will come at breakneck speed and without much warning.

“It’s impossible to predict how much election litigation there will be and what it might look like,” Kannon Shanmugam, an attorney who has argued dozens of cases at the high court, told CNN. “At this point in 2000, no one saw Bush v. Gore coming.”

A parade of new high-profile legal controversies will continue to move through federal courts even after the next president is inaugurated.
New administrations often seek to make quick, dramatic policy changes through executive action that can lead to rapid appeals. Take, for instance, Trump’s ban on travel from predominately Muslim nations, which made repeat trips to the Supreme Court.

A change in presidential administration can also affect the cases already sitting on the high court’s docket. One of the court’s most closely watched cases this term, involving the politically fraught issue of gender-affirming care, may be particularly vulnerable if Trump wins election. The Supreme Court agreed in June to take up a Biden administration challenge to a transgender care ban in Tennessee, which prohibits hormone therapy and puberty blockers for minors and imposes civil penalties for doctors who violate the prohibitions.

Nearly half of US states have enacted bans on transgender care for minors, according to the Human Rights Campaign.

Though the case also involves private parties, a change in position on transgender issues from a new Justice Department could nevertheless complicate that appeal, which has not yet been scheduled for argument.

The Supreme Court has already dipped into next month’s election in a few emergency cases, two of which involved third-party candidates trying to remain on state presidential ballots.
In a more significant decision in August, the court blocked part of Arizona’s proof-of-citizenship requirements for voters but let stand a requirement that would-be voters document their citizenship before registering to vote on a state form.

Speaking to CBS News in August, Justice Ketanji Brown Jackson flashed a smile when asked if she was prepared for the election to arrive as an issue for the Supreme Court.

“As prepared,” she said, “as anyone can be.”

This headline has been updated.