The US supreme court embarks on its next nine-month term on Monday with public confidence in the court still reeling following recent extreme rulings compounded by the ethically dubious conduct of some justices.
As the new term begins, the dust cloud kicked up by controversial opinions delivered at the end of the last term has barely settled. In particular, the July decision of the six-to-three rightwing majority to grant Donald Trump substantial immunity from criminal prosecution for actions he carried out as president astonished even seasoned observers of the country’s top court.
“That ruling was shocking, it was a rip to the constitutional fabric, and it gave vast new power to presidents to break the law,” Michael Waldman said at a recent webinar by the Brennan Center, the progressive thinktank, of which he is president.
Despite the ructions caused by its actions, the increasingly hard-right court shows no signs of reining itself in. The first big case of the new term that will be addressed on Tuesday takes the justices back into the vexed area of gun controls.
The case, Garland v VanDerStok, concerns “ghost guns”, kits that can be assembled at home that are increasingly used to skirt around basic gun regulations including serial numbers and federal background checks. The Biden administration imposed restrictions on ghost guns in 2022 that were promptly blocked by a lower court, sending the case to the supreme court for adjudication.
The case has potentially huge implications for gun control. A decision that exempts ghost guns from basic regulations would punch a giant loophole in America’s already lax approach to firearms.
As it is, US courts are wrestling with chaos and confusion in the wake of recent supreme court gun rulings. In his Bruen judgment, the hard-right justice Clarence Thomas invented a new rule that any handgun ban must comport with the country’s “history and tradition” – a phrase which has set federal judges scrambling to try to make sense of it.
The ghost gun case has emerged out of the fifth circuit court of appeals, which has the distinction of being the most rightwing appeals court in the US. Six out of its 17 active judges were appointed by Trump.
Several of the bombshell rulings delivered by the supreme court since Trump created the new 6-3 conservative supermajority, when he was able to nominate first Neil Gorsuch, then Brett Kavanaugh and finally Amy Coney Barrett during his one-term presidency, have come out of the fifth circuit. That includes overturning national abortion rights in Dobbs v Jackson.
The new term is likely to see at least seven cases channeled up to the supreme court from the fifth circuit. “We are set, once again, for the fifth circuit to be a very frequent source of ideologically charged cases that the justices feel impelled to take up,” said Stephen Vladeck, a law professor at Georgetown University law center.
Some of the most critical business of the new term may not yet have been registered on the docket. That includes anything relating to Trump and the upcoming presidential election.
In 2020 the supreme court studiously avoided getting sucked into legal fights over Trump’s election subversion efforts, but will they this time? “The 8,000lb gorilla hanging over this term is the election,” Vladeck said.
He added: “It’s not at all hard to imagine major election-related cases reaching the court, and that the chief justice, John Roberts, will be the central figure in how those cases are resolved.”
Roberts would also probably be at the heart of any cases touching on the federal prosecutions of Trump. Last month, it was revealed through a staggering leak to the New York Times that Roberts had personally orchestrated the court’s contentious approach to presidential immunity, writing a memo to his eight fellow justices in which he laid out the case for granting Trump protections against prosecution.
Roberts’s surprise behind-the-scenes intervention raises the prospect that he might steer the court towards being similarly more engaged in the flurry of court cases that could follow election day on 5 November should Kamala Harris, the Democratic nominee, win by close margins. “The question will be, which Roberts will show up: the one who was cautious around the 2020 election or the one who turned sharply to the right last term?” Vladeck said.
The court may also have to deal with the federal prosecutions against Trump, notably over his attempt to overturn the 2020 election. In the wake of the supreme court’s immunity ruling the case was returned to the US district judge presiding over it, Tanya Chutkan, to separate out Trump’s official actions, for which the court granted him broad protection, from his private acts, for which he is still criminally liable.
On Wednesday, a 165-page filing from special counsel Jack Smith was unsealed, giving granular detail on why, according to prosecutors, Trump should still be put on trial. That in turns clears a path that could usher the case back to the supreme court for the final say.
As if the prospect of a major guns case and seismic activity on the election and Trump’s prosecutions were not dizzying enough, the court also takes on this term a case on access to medical treatment by transgender adolescents. The case, US v Skrmetti, arises from Tennessee’s senate bill 1 (SB1) which bans doctors prescribing puberty blockers or hormones to transgender people under 18.
All major medical and mental health groups in the US back evidence-based healthcare for transgender people. They include the American Medical Association, the American Academy of Pediatrics, and the American Psychiatric Association.
The justices are being asked to rule on whether the ban violates the 14th amendment of the US constitution, which grants equal protection under the law. Their decision will have far-reaching implications, which arguably could extend to the rights and bodily autonomy of all Americans in the face of government bans.
“It could certainly have a ripple effect in states which already target transgender kids and their families in multiple ways over whether they can attend schools, play sports, or what bathrooms they can use,” said Deborah Archer, a New York university law professor and president of the American Civil Liberties Union (ACLU).
The ACLU has also brought a potentially precedent-setting case before the court this term relating to first-amendment free-speech rights and the internet. Free Speech Coalition v Paxton concerns legislation out of Texas that requires websites that carry more than a third of their content that is porn or other material deemed “harmful to minors” to force their users to provide proof of age before gaining entry.
The ACLU and other plaintiffs say this is a burden on adult first amendment rights to see sexual content, and could have other serious consequences. “Throughout history, we’ve seen restrictions on access to supposed adult content used to relegate LGBTQ content to the shadows and to deny sexual and reproductive information,” Archer said.
Other big upcoming cases yet again threaten environmental protections in the US. The justices will consider a couple of cases involving whether to weaken the requirement on federal agencies to consider the ecological impact of their actions, and whether to remove regulations designed to keep toxic pollution out of water.
All these cases, and many more, will be heard as the court struggles under an ethical black cloud. For months now individual justices, notably Thomas and fellow rightwinger Samuel Alito, have come under criticism over such issues as Thomas’s luxury travel paid for by a Republican mega-donor and free opera tickets worth $900 supplied to Alito by a German princess.
Amid the storm, the justices last November adopted a code of ethics for the first time. But it has been widely bemoaned as toothless, as it is entirely self-policed with no independent enforcement mechanism.
Joe Biden upped the ante in July when he called for 18-year term limits to be placed on the justices, who currently hold the position for life. He also proposed a binding ethics code.
“Concern over the justices’ ethical behavior isn’t going away, and I expect it to remain a major story through this next term,” said Gabe Roth, executive director of the non-partisan reform group Fix the Court.
Roth added: “It’s only right in a democracy to question the moral character of the people who wield so much power.”
