Supreme Court to Take up Gun Cases, Abortion in Its New Term While Ethics Concerns Swirl

The U.S. Supreme Court is returning to a new term to take on some familiar topics — abortion and guns — and concerns about ethics swirling around the court justices.

The year will also focus on social media and how free speech protections apply online. A vast unknown is if the court will be asked to weigh in on any aspect of the criminal cases against former President Donald Trump along with others or push in some states to keep him off the 2024 presidential ballot because of his alleged role in trying to overturn the 2020 election results. 

Other crucial cases in the term that starts Monday ask the justices to tighten the power of regulatory agencies.

“I can’t remember a term where the court was poised to say so much about the power of federal administrative agencies,” said Deputy Solicitor General for the Trump Administration Jeffrey Wall.

One of these cases, set to be argued Thursday, threatens the ability of the Consumer Financial Protection Bureau to function. However, unlike most agencies, the bureau isn’t dependent on annual Congressional appropriations but instead gets funding directly from the Federal Reserve. The agency was created in 2007-2008 to shield it from politics. 

However, the federal appeals court in New Orleans struck down the funding mechanism. The ruling would cause “profound disruption by calling into question virtually every action the CFPB has taken” since its creation, stated the Biden administration in a court filing.

The same federal appeals court also produced the ruling that nullified a federal law that aims to keep guns out of the hands of people facing domestic violence restraining orders from having firearms.

The three-judge panel of the 5th U.S. Circuit Court of Appeals said its decision was compelled by the ruling of the Supreme Court that expanded gun rights in 2022 and directed justices to evaluate restrictions based on tradition and history. Judges also have invalidated other long-established gun control laws.

In November, justices will hear the Texas case, their first chance to expand on the true meaning of that decision in the earlier case, called Bruen. 

The abortion case likely to be heard by the justices would also be the first word to be heard on the topic since it reversed the Roe v. Wade right to abortion.

The new case comes from a ruling by the 5th Circuit to limit the availability of mifepristone, the most commonly used abortion medication in the U.S.

The Biden administration won a high court order blocking the appellate ruling while the case continues. The justices could decide later in the fall to undertake the mifepristone case this term.

Cases from the 5th Circuit could give Chief Justice Roberts additional changes to form alliances

According to Irv Gornstein, executive director of the Georgetown Law School’s Supreme Court Institute, the assortment of cases from the 5th Circuit could offer Chief Justice John Roberts additional opportunities to form alliances in significant cases that cross ideological lines. 

The 5th Circuit is ready to adopt the politically most conservative position on almost any issue, no matter how implausible or how much defiling of precedent it takes,” said Gornstein.

For some of the most significant cases in the past two years, including on abortion, guns, and ending affirmative action in college admissions, the three Supreme Court justices appointed by Trump — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — have been together in the majority.

However, in some critical cases last term, the court split unusually. In the most high-profile of those, Kavanaugh joined Roberts and the three other liberal justices on the court to rule Alabama hadn’t done enough to reflect the political power of Black voters in its congressional redistricting.

Kavanaugh Roberts, joined this time by Barrett, was also in the majority with the liberal justices in a case that rejected a legal effort by conservatives to cut out state courts from the oversight of elections for president and Congress.

The outcomes have yet to do much to alleviate the court’s image in the public’s minds. The most recent Gallup Poll, released last week, found Americans’ approval of and trust in the court hovering near record lows. 

It is still being determined whether the numbers would improve if the court adopted a code of conduct.

Numerous justices have publicly recognized the ethics issues, prompted by a series of stories questioning some of their practices. Several stories focused on Justice Clarence Thomas and his failure to disclose financial and travel ties with wealthy conservative donors, including the Koch brothers and Harlan Crow. But Justices Sonia Sotomayor and Samuel Alito have also been under scrutiny. 

Behind the scenes, SCOTUS justices are discussing an ethics code, and Kavanaugh has stated he hopes the court will soon take “concrete steps.”

During an appearance at the University of Notre Dame, Justice Elena Kagan said that her colleagues are attempting to work through their differences.

“There are, you know, totally good-faith disagreements or concerns, if you will. There are some things to be worked out. I hope we can get them worked out,” said Kagan. 

There is no timetable for the court to act.

President Biden encouraged the justices to adopt a code of ethics, which he said would make irrelevant any questions about whether Congress could set one on the court. “Do it themselves,” he said in an interview.

Progressive critics and Democratic lawmakers of Thomas and Alito said those justices’ impartiality in some cases is in doubt due to their financial ties, friendships, and travel with people involved in the cases.

Alito has rebuffed calls to step aside from Thomas, who had been silent in the past about recusals and a tax case and seems hugely unlikely to bow to his critics’ wishes now.