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

The conservative-leaning Supreme Court over the past two years has rewritten jurisprudence on guns, race and abortion.

It’s about to confront the results of those rulings in its term that begins next week.

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

That case is slated for arguments on Nov. 7.

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

At some point, the justices will hear a case challenging a rule forcing fishermen to 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. Legal analysts say it could roll back four decades of case law known as Chevron deference, which says courts should generally accede to legal interpretations of the law when made by executive branch agencies.

Conservatives are eyeing a 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 term on 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.

Most legal observers are awaiting Oct. 3, when the CFPB case will be argued.

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

To ensure independence, Ms. Warren said, the CFPB needed a single director who couldn’t be fired by the president save for good cause and its funding source had to be independent of Congress. The bureau receives its funding 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 ruled last year against the CFPB, reasoning that Congress illegally surrendered its power to appropriate funds. The court said the agency’s payday lending rule must be vacated because it can be traced 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 have budget autonomy.

Elliot Mincberg, senior fellow at People for the American Way, said a Supreme Court ruling against the CFPB could unwind many of the agency’s decisions.

The case is CFPB v. Community Financial Services Association.

Gun rights

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

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

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

Adam Feldman, Supreme Court scholar and creator of the Empirical SCOTUS blog, said a decision to uphold the 5th Circuit ruling would have significant 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.

United States v. Rahimi is slated for oral arguments on Nov. 7.

Abortion, race, free speech

The court has agreed to hear 22 cases in the 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 dearth of Black or Hispanic students, Thomas Jefferson High School for Science and Technology changed its admissions rules several years ago. Among the changes was a move away from standardized testing and a decision to allocate some admissions slots to every middle school in Fairfax County.

Asian Americans still represent a much higher percentage of the student body at the public school than in the county system overall, but their enrollment has slipped significantly.

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

The case could reach the justices just 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 their 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. Pro-choice advocates see the pill as a workaround to post-Roe restrictive state laws.

The 5th U.S. Circuit Court of Appeals ruled last month that the original FDA approval of mifepristone cannot be challenged but 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 Laboratories v. Alliance for Hippocratic Medicine.

The justices also are pondering 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 the amount of interest in the case is extraordinary, judging by the number of groups that have filed briefs urging the justices to hear Ms. Vitagliano’s challenge.

The First Amendment is also at issue in cases governing the extent of social media platforms’ freedom to police user content.

Lower courts have reached differing conclusions.

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