Supreme Court to take up guns — possibly abortion, diversity — in 2023 term

The conservative-leaning Supreme Court spent the past two years rewriting jurisprudence on guns, race and abortion.

Now it’s about to confront the results of those rulings in its upcoming term kicking off in October.

The justices’ 2021 decision reaffirming Second Amendment rights has sparked a new series of challenges to gun control laws, with the federal list of prohibited purchasers of firearms coming under particular scrutiny. The court already has docketed an appeal of a lower court ruling that struck down the part of the law barring weapons in the hands of those facing a domestic violence restraining order.

That case is slated for arguments on Nov. 7.

Before then, the justices will hear another major case challenging a state’s legislative districts as a racial gerrymander and a case that could whittle away at the Consumer Financial Protection Bureau, the agency Democrats created in 2010 to be a pro-consumer cop on Wall Street.

The justices also will at some point hear a case challenging a rule making fishermen pay as much as $700 a day to the government to place monitors on their boats to ensure they aren’t overfishing.

Though the case may sound arcane, the stakes are huge, with legal analysts saying it could roll back four decades of case law known as Chevron deference that says courts should generally accede to legal interpretations of the law when made by Executive Branch agencies.

Conservatives are eyeing a major ruling tipping the balance away from the presidency and back toward Congress, which writes the laws.

“This will be a big term for administrative law in the Supreme Court, and the justices are likely to curb the overreach of the administrative state,” said Curt Levey, president of the Committee for Justice. 

The court starts its new term Oct. 2 with oral arguments on a case dealing with how drug crimes are sentenced. The case turns on how the word “and” should be read in the sentencing law.

But most legal observers are awaiting Oct. 3, when the CFPB cases will be argued.

The brainchild of Elizabeth Warren, at the time a law professor at Harvard University and now a Democratic senator from Massachusetts, the agency issues rules governing how banks interact with consumers and investigates complaints of malfeasance.

To ensure independence, Ms. Warren said the CFPB needed to have a single director who couldn’t be fired by the president save for good cause and needed its own funding source independent of Congress. It gets its money directly from the Federal Reserve.

The Supreme Court already has struck down the firing restrictions and made the director serve at the pleasure of the president. Now it must decide on the funding question.

The 5th U.S. Circuit Court of Appeals last year ruled against the CFPB, reasoning that Congress illegally surrendered to the CFPB its power to appropriate funds. The court said the payday rule must be vacated because it can be traced back to the CFPB‘s unconstitutional funding structure.

Other appeals courts have ruled the other way, pointing out that the Federal Housing Finance Agency and the Federal Reserve enjoy budget autonomy.

Elliot Mincberg, senior fellow at People for the American Way, said if the justices rule against the CFPB in this case, it could unwind many of the previous decisions the agency has made.

The case is CFPB v. Community Financial Services Association.

Gun rights

The 5th Circuit also is responsible for the gun case the justices will hear. Last year, a three-judge panel ruled against the federal law barring firearms possession by someone under a court-issued domestic violence protective order.

That section of gun law survived numerous previous challenges, but the 5th Circuit said that all changed after the Supreme Court’s landmark ruling in the 2022 Bruen case, where the justices said history is the guiding light of the Second Amendment.

Laws that are inconsistent with the traditions of gun ownership at the time the amendment was crafted can’t survive constitutional scrutiny, wrote Justice Clarence Thomas in the key opinion.

Adam Feldman, Supreme Court scholar and creator of the Empirical SCOTUS blog, said the high court upholding the 5th Circuit would have major implications for gun control advocates.

“If the court affirms the 5th Circuit’s decision in Rahimi I expect a strong reaction from gun regulation groups. An affirmance would not only be significant in its own right, but would also open the door to other litigation against statutes that prohibit gun ownership, especially those to do with violent offenses that aren’t at the felony level,” he said.

The case the justices will hear is United States v. Rahimi. It is slated for oral argument Nov. 7.

Abortion, race, free speech

The court has agreed to hear 22 cases in the next term and likely will add 50 or so to its docket.

One possible addition is an affirmative action case out of Virginia, where parents are challenging the admissions policy of one of the nation’s most selective public high schools.

Worried about the overwhelming number of Asian American students and a lack of Black or Hispanic students, Thomas Jefferson High School for Science and Technology changed its rules several years back. Among the changes was a move away from standardized testing and a decision to allocate some admissions slots to every middle school in the county.

Enrollment among Asian Americans has slipped significantly, though they remain a much higher percentage of the student body at the school than in the county school system overall.

A district court ruled the school policy was illegal, but the 4th U.S. Circuit Court of Appeals reversed that decision.

The case could reach the justices months after their decision striking down race-based preference programs at Harvard University and the University of North Carolina as violations of the Constitution’s equal protection guarantee.

On abortion, the justices face their biggest test since a 2022 ruling overturned the Roe v. Wade decision and sent decisions about abortion back to the states and Congress.

At issue is the so-called abortion pill, mifepristone, which the Federal Drug Administration has approved for at-home use and for delivery through the mail. Abortion-rights advocates have seen that as a work-around to post-Roe restrictive state laws.

The 5th U.S. Circuit Court of Appeals ruled last month that while the original FDA approval of mifepristone cannot be challenged, the FDA’s updates approving mail delivery and easing rules on prescriptions were too hasty.

Danco, the drug manufacturer, has asked the justices to overturn the lower courts and affirm the FDA’s permissive rules. The court has not decided whether it will take the case.

That case is Danco v. Alliance for Hippocratic Medicine.

The justices also are pondering whether to hear a case out of New York involving a Catholic woman who tries to counsel women outside abortion clinics not to go through with the procedure. Debra A. Vitagliano challenged a Westchester County law that restricts interactions at clinics.

Mr. Feldman said there’s an extraordinary amount of interest in the case, judging by the number of groups that have filed briefs urging the justices to hear Ms. Vitagliano’s challenge.

The First Amendment also is at issue in cases governing how much freedom social media platforms have to police user content.

Lower courts have reached differing conclusions.

One has upheld a Texas law limiting social media companies’ ability to remove or moderate content because it’s deemed offensive or hateful. Another court has blocked a Florida law that fines social media companies that deplatform political candidates.

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