Porn sites. Ghost guns. Transgender rights. The Supreme Court gets back to work
WASHINGTON −The Supreme Court returns Monday to tackle a slew of politically charged issues: gun regulation , gender-affirming care for minors and whether adults can be required to provide IDs to access pornographic websites.
But the justices may also be pulled more directly into politics through election-related challenges both before and after the Nov. 5 election.
Democrats and Republicans have filed dozens of suits across the country over voting rules and other election matters that could be litigated all the way up to the high court − especially if the presidential contest is close.
"I think there are legal issues that arise out of the political process," Justice Ketanji Brown Jackson told CBS in September when asked if she's ready for the election to come before the court. "So, the Supreme Court has to be prepared to respond if that should be necessary."
And depending on whether former President Donald Trump wins the election, the court may be asked to dive back into the criminal cases against him.
In a blockbuster ruling in July, the majority granted Trump and other presidents immunity protections, but left unclear how those protections should be applied to all of the charges pending against him.
If Trump does win, the court's most senior conservative justices may have an eye on the exit , giving Trump a chance to further reshape the bench after appointing three justices in his first term.
If Vice President Kamala Harris is elected, speculation will center on whether Justice Sonya Sotomayor – the most senior liberal justice – is ready to step down.
But first the justices must deal with the controversial cases they'll start hearing this week.
Did Biden go too far on 'ghost guns' and vapes?One of the first issues they'll consider is whether the Biden administration can regulate "ghost guns" by requiring manufacturers of the untraceable weapon kits to conduct background checks on customers and mark their products with serial numbers.
Like last term's case about whether bump stocks can be banned because they allow a semi-automatic weapon to mimic automatic firing, this one is not directly about the Second Amendment. It centers instead on whether the regulation is consistent with the "plain meaning" of existing laws or if the administration is rewriting gun control laws, which only Congress can do.
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In another case challenging regulatory authority, the court will decide if the Food and Drug Administration is unfairly blocking the marketing of flavored vape pens.
The industry contends the FDA has imposed a de facto ban on most flavored e-cigarettes.
The FDA counters that it's approved some tobacco-flavored e-cigarette products while rejecting more than a million with candy and other flavors that would be appealing to children.
Both the e-cigarette and ghost gun cases are coming to the Supreme Court from the New Orleans-based 5th U.S. Circuit Court of Appeals , a popular venue for challenging federal agency activity, notes Alison LaCroix, a professor at the University of Chicago Law School.
And such challenges have often found a receptive audience at the high court which, LaCroix said, "has told us that it is interested in overseeing what administrative agencies are doing."
Can states require age verification for porn sites?State – not federal – regulations are the subject of two other hot-button cases.
In one from Texas, the court is being asked to decide if the free speech rights of adults to view certain online pornography is overly burdened by requiring age verification.
While Texas says it's trying to protect children, the American Civil Liberties Union has joined the websites in arguing that online verification is not the same as showing a driver's license to buy alcohol or explicit magazines. Uploading identifying information risks exposing users to hackers or accidental leaks, they argue.
"They don't trust what is going to happen with their information after they put it on the internet," lawyer Jeremy Broggi, who litigates constitutional and regulatory issues, said recently at the libertarian Cato Institute.
Many states are experimenting with how to protect kids online, Broggi said, increasing the potential impact of the pornography case.
Can states ban gender-affirming care for minors?Many states – about half – have also tried to ban gender-affirming care for minors.
The court will hear the Biden administration's challenge to a ban in Tennessee.
The administration − as well as the ACLU, which represents families challenging the ban – argues the law discriminates on the basis of sex. A teenager whose sex assigned at birth is male can be prescribed testosterone, they say, but a teenager assigned female at birth cannot.
Tennessee declares that the state has an "interest in encouraging minors to appreciate their sex" and in prohibiting treatments "that might encourage minors to become disdainful of their sex."
The district court ruled against the state, but the Cincinnati-based 6th U.S. Court of Appeals said the law does not discriminate.
Using testosterone to treat gender dysphoria is not the same as using it to treat, for example, a boy born with an extra copy of the X chromosome, a condition that leads to lower production of testosterone, the court said in a split opinion.
"States may permit varying treatments of distinct diagnoses," Judge Jeffrey Sutton wrote for a three-judge panel.
Deepak Gupta, an appellate lawyer who tracks the Supreme Court's work, said the case has enormous significance for the power of states to regulate medical care for minors and may also serve as a referendum on a landmark Supreme Court decision from 2020 that said discrimination based on a person's gender identity is a form of sex discrimination.
"This is obviously the blockbuster case of the term," Gupta said, "in a term that seems otherwise to be designed to be sleepy."
