(Bloomberg) -- The US Supreme Court opens its new term under the shadow of a presidential election that threatens to create fresh strains at a court already deeply enmeshed in the nation’s political divisions.
Three months after releasing a barrage of far-reaching rulings, the justices return to the bench Monday with a docket that looks relatively tamer, notwithstanding clashes over so-called ghost guns and medical care for transgender youths.
The wild card is the election and the too-close-to-call race between Donald Trump and Kamala Harris. With litigation already raging around the country – and Trump making unsupported claims that Democrats are preparing to cheat – the justices face the prospect of being drawn into a polarizing showdown they might prefer to avoid.
“I think the court would rather not be in the position of determining the outcome of the election,” said Rick Hasen, an election-law expert at UCLA School of Law. “They’d rather stay out of it.”
That doesn’t mean they won’t be asked. Already the court has turned away calls to put Green Party presidential candidate Jill Stein on the ballot in Nevada and to restore independent Robert F. Kennedy Jr. to the ballot in New York even though he has suspended his candidacy. Potentially bigger fights loom over the rules for mail-in ballots and state certification of election results.
A major election case would test a conservative-majority court whose public standing has taken a hit in the face of ethics controversies and divisive rulings, including the 2022 decision overturning the constitutional right to abortion. A Marquette Law School poll released in August found 43% of adults approve of the court and 57% disapprove.
The court managed to sidestep major election controversies four years ago. Although the justices addressed issues involving pandemic-inspired rule changes, they firmly rejected a Trump-backed bid by Texas to nullify Joe Biden’s victory in four pivotal states.
Bush v. Gore
Whether they can do so again may depend on just how close the election is. When the Supreme Court got involved in 2000, sealing George W. Bush’s victory over Al Gore, it intervened in a race so tight it came down to fewer than 600 votes in Florida.
“If it’s so close that it turns on just a single state that is very close, then I think we’d see a repeat of Bush v. Gore,” Hasen said. “But that is not a likely occurrence, just based on the odds.”
The election will affect the term in other ways. A Trump victory could upend the highest-profile pending case — the Biden administration’s challenge to a Tennessee law barring puberty blockers and hormone therapy for transgender children. A federal appeals court upheld the law.
The administration, joined by the families of three transgender youths, says the measure amounts to sex discrimination, violating the constitutional guarantee of equal protection. The case could affect similar laws in more than 20 other states.
The court hasn’t yet scheduled arguments, leaving open the possibility that an incoming Trump administration might withdraw the federal government’s appeal. The court then would have to decide whether to let the families press an appeal.
“The case might go away if Trump wins,” said David Cole, the outgoing national legal director of the American Civil Liberties Union, which represents the families. “The issue will not go away, so the issue will ultimately need to be decided.”
Ghost Guns
The gun case will be heard well before the election, with arguments on Tuesday. At issue is a 2022 Biden administration rule that subjects build-at-home “ghost gun” kits to the same requirements as fully assembled firearms, meaning dealers must include serial numbers, conduct background checks and keep records of transactions.
The administration says the rule is needed to stem a flood of untraceable weapons, many of them sold online. The challengers – a group of manufacturers and gun-rights supporters – say the administration is seeking to put kit makers and dealers out of business.
The case resembles the court’s 6-3 ruling last term to toss out a ban on bump stocks, the devices that let a semiautomatic weapon fire as rapidly as a machine gun. The Trump administration put the rule in place after a man using bump stocks killed 60 people in the Las Vegas concert massacre.
Neither case involves the constitutional right to bear arms, instead centering on the power given by Congress to the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The bump stock ruling could signal how the court will approach the latest case, indicating more concern with the text of the law than the impact of a regulation, says Erin Murphy, a Washington lawyer who filed a brief backing the challengers in the ghost-gun case.
“It was lost on absolutely nobody how horrifically a bump stock had been used,” Murphy said, “and I think the court tried to set that aside in thinking about the case.”
Trump and TikTok
The court will keep adding cases for the term until about mid-January. The justices eventually could revisit Trump’s bid for immunity from criminal prosecution over his efforts to overturn his 2020 election loss. A federal trial judge is considering whether a revised version of the indictment can survive a new test the Supreme Court laid out in July.
The court could also take up a major new case on the power of regulatory agencies. And TikTok’s fight to avoid being banned in the US is all but certain to reach the high court in some form before a new law takes effect Jan. 19.
For now, the court has a relatively low-key docket, including an unusually light calendar in November, when the justices are scheduled to hear only seven cases.
“They had to make space for the possibility that there would be election cases that they would have to address,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law Center. “Even if it turns out there are none, I think that they have to have that on their mind.”
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