The U.S. Supreme Court kicked off its 2023-24 session Monday, warming up with a criminal justice case examining federal sentencing laws. On Tuesday, it will start on the scheduled major cases, those that will have the most impact on American government and society. That includes things like the federal government’s ability to tax and to provide environmental and consumer protections, civil and voting rights, and gun safety.
The first in those major cases is Consumer Financial Protection Bureau v. Community Financial Services Association. This is about payday lenders trying to dismantle the CFPB over rules saying the lenders can’t keep trying to take repayments from borrowers’ bank accounts after two consecutive attempts fail because of insufficient funds. Three Trump-appointed judges on the U.S. Court of Appeals for the 5th Circuit ruled that the funding structure of the CFPB is unconstitutional, since it is funded by the Federal Reserve instead of congressional appropriations.
The ramifications of this case are potentially huge. If the plaintiffs succeed, the court would invalidate thousands of decisions the CFPB has made, returning billions of dollars and benefits to both consumers and financial providers. It would also call into question all of the regulations and decisions by other agencies, including the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency, which are also not funded by congressional appropriations and could be declared unconstitutional.
That’s the first of several cases the court will hear this term involving the division of authority between the three branches of government and the power of administrative agencies. Another upcoming case that could have far-reaching consequences is Loper Bright Enterprises v. Raimondo, which could potentially overturn decades of legal precedent set by the 1984 case Chevron v. National Resources Defense Council. That ruling held that courts should defer to government agencies’ interpretation of an ambiguous statute, as long as that interpretation is reasonable. It’s been used dozens of times, particularly to enforce environmental protections. Powerful interests, like the Koch network, have been fighting it since 1984.
Next week the court will hear another voting rights case, Alexander v. South Carolina State Conference of the NAACP, a racial gerrymandering challenge to South Carolina’s congressional and legislative redistricting maps for the 1st Congressional District. A three-judge panel ruled in January that the map for the district is “an unconstitutional racial gerrymander because the legislators had deliberately moved tens of thousands of Black voters to a different district, making the district a safe seat for Republicans.” The Republican-controlled Legislature appealed to the Supreme Court, arguing that the district court “failed to apply the presumption of good faith” when tossing the 1st District map. Who could imagine South Carolina Republicans weren’t working in “good faith” when they tossed tens of thousands of Black voters out of their home district? The court’s recent surprise slap-back to the Alabama Republican Legislature could mean that the court’s conservatives are stepping back from this fight. We’ll see.
Next month the court will take up another Second Amendment case in United States v. Rahimi, a challenge to federal criminal code that prohibits people under restraining orders for domestic abuse from possessing firearms. The Fifth Circuit Court basically said that there was no such thing as domestic abuse restraining orders when the Constitution was written, so this is a violation of the Second Amendment. That’s going to be a tough one for the whole of the conservative bloc on the court to swallow. They were okay with forcing women to continue potentially life-threatening pregnancies when they reversed abortion protections last year. The conservatives might not be so anxious to put weapons directly in the hands of women’s violent abusers.
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Speaking of abortion, the court hasn’t yet said it will take up Alliance for Hippocratic Medicine v. Food and Drug Administration, challenging the FDA’s orders that allowed for increased access to mifepristone, part of a two-drug protocol used to end pregnancy. More than half of abortions in the U.S. are medication abortions. A radical district judge in Texas, Trump-appointee Matthew Kacsmaryk, took the unprecedented judicial action of suspending the FDA’s approval of the drug last year, as well as ruling that FDA actions to make it more available should be reversed. The Fifth Circuit blocked part of his ruling, eventually ruling in August that the drug shouldn’t be banned outright. Instead, they rolled back access to pre-2016 levels, ending the availability of the drug through the mail; the ability of certified providers like pharmacists to be able to prescribe it; and, crucially, the use of the drug up to 10 weeks of pregnancy. The Justice Department and the drug manufacturer asked the court to review the lower court’s decision last month. The court hasn’t announced if or when it will take up the case, but it’s likely.
These are just a few of the major cases, along with a big tax case, Moore v. United States, which is coming up this session as well. It’s a direct challenge to the federal government’s power to tax, and could result in a potentially far-reaching challenge to the nation’s tax code.
Between the two of them, Justice Clarence Thomas and Samuel Alito have conflicts of interest in several of them. These cases are being brought and backed by groups of the millionaires and billionaires who have been providing the two justices with trips and vacations and gifts, and in some cases are being argued by close friends and associates. In a court in which even the appearance of ethics and propriety mattered, the two of them would be recusing from a number of these cases, particularly the tax case, the CFPB case, and the potential Chevron reversal.
So far, Alito has thumbed his nose at the idea of recusing. Thomas, however, surprised court watchers by recusing himself Monday from a Jan. 6-related case. Former Trump legal adviser John Eastman asked the court to overturn rulings from a federal district judge that found his emails about his efforts on behalf of Trump to overturn the 2020 election contained evidence of a likely crime. The issue is mostly moot—the emails were turned over to the House Jan. 6 committee, which is now defunct. The horse is out of the barn. Eastman is just trying to have his record cleared. The court refused to do that for him Monday, with Thomas recusing.
Does that mean we’ll see a more circumspect Thomas in the 2023-24 session? Probably not. But is it possible that the other four conservatives are looking at the constant headlines about court scandals and thinking they should not rock the boat so much this year? Possibly.
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