The Supreme Court Returns For A Culture War Term

The 2024 Supreme Court calendar could double as a Fox News primetime lineup: homemade guns, trans rights, minors’ access to porn. 

And tucked between the flashier cases, right-wing and corporate plaintiffs seek further wins from their allied justices, willing helpmates in their quest to dismantle the administrative state and snuff out the power of federal agencies. 

Already On The Books (Scheduled Cases)

Ghost Guns 

On the second day of the term, October 8, the Supreme Court will hear arguments in the buzziest case scheduled so far: Garland v. VanDerStok, in which respondents from the gun industry argue that ghost guns — guns without serial numbers, often assembled by the user from a kit — should be exempt from regulations requiring serial numbers on the weapons, as well as background checks to purchase them. 

The case has echoes of a bump stock one the Court decided last term, another attempt to craft a loophole for certain weapons based on technicalities. (The Court ultimately overturned the national ban on bump stocks last summer, finding that they did not qualify as machine guns due to very minimal differences in their operation.)   

The use of ghost guns is on the rise in committing crimes, for obvious reasons: Without serial numbers or paper trails, it’s nearly impossible to trace them.

The Biden administration addressed this issue in 2022, clarifying that the requirements of the Gun Control Act of 1968 — including licensing, record-keeping, serialization and background checks — also apply to initially unassembled ghost guns. In a previous world, that likely would have been enough to end the conversation. But the Roberts Court has hobbled the power of federal agencies, and last term dealt a historic blow to the court deference they’d once received so long as they promulgate reasonable regulations.

Some of these ghost gun kits require such small alterations as the removal of a few plastic rails to become operational. 

“The ‘Buy Build Shoot’ kit marketed by respondent Polymer80 allowed a purchaser to assemble a fully functional Glock-variant semiautomatic pistol in as little as 21 minutes,” the government wrote in its petition for certiorari.

Despite the Court’s record on bump stocks, a majority of justices seems inclined against this case; they’ve already intervened twice, once to uphold the Biden administration rule while the case progressed, and once to vacate an injunction the infamously right-wing judge Reed O’Connor had granted for a couple of the gun part sellers and their customers. And even some of these right-wing justices, wielding an expansive view of gun rights, have proven squeamish in cases where unwinding regulations would have such obvious, immediate and violent ramifications; last term, the Court (sans Justice Clarence Thomas) rejected an attempt to keep guns in the hands of domestic abusers. 

The Man Nobody Wants To Kill 

The other big case in early October, with arguments on Wednesday October 9, centers on a bizarre death penalty situation in which everyone involved — including the state prosecutors and the man who initially fingered the defendant for ordering a murder — wants his conviction and accompanying death penalty sentence tossed due to egregious problems with the case. It’s Glossip v. Oklahoma.

Richard Glossip had been convicted for the 1997 murder of Barry Van Treese, the owner of an Oklahoma motel where Glossip worked. Justin Sneed, the motel handyman, had bludgeoned Van Treese to death with a baseball bat — and testified that Glossip had hired him to do it. 

A subsequent investigation into the case and later revelations uncovered a staggering number of errors and outright malfeasance: Sneed’s wanted to recant his testimony after detectives repeatedly steered him into blaming Glossip, but prosecutors’ hid that fact, along with other evidence that threw serious doubt on Glossip’s guilt, from the court. Police also destroyed a box of evidence in 1999.

“The State has reached the difficult conclusion that justice requires setting aside Glossip’s conviction,” Oklahoma Attorney General Gentner Drummond (R) wrote in 2023.

Still, the Oklahoma Court of Criminal Appeals found that there was not enough new information to suggest that a different verdict would have been reached — an incredibly unusual outcome in one of the rare instances when prosecutors admit fatal error. 

Evidence-wise, the Supreme Court has a narrow question before it: whether the suppression of evidence that Sneed had been diagnosed with bipolar affective disorder and was being treated with lithium (on top of his methamphetamine use) violated due process. 

The Court will also consider whether due process requires that it reverses the conviction, as the case is so riddled with errors that Oklahoma no longer seeks to defend it. The justices asked for additional briefing on whether the Supreme Court is the correct jurisdiction for a case based on state law.

Justice Neil Gorsuch is recused, having heard part of the case as a lower court judge.

Coming to a Theater Near You (Other Cases This Term)

The Right’s Favorite Punching Bag 

Among the cases the Court has agreed to hear but not yet scheduled is United States v. Skrmetti, a red-letter case which will determine whether the constitution allows for discrimination against trans people. 

A handful of trans youth and a doctor who treats trans adolescents is challenging a Tennessee law that bans gender-affirming care for trans patients. The federal government argues, and the district court held, that this is a clear violation of the 14th Amendment’s equal protection clause: The law bans treatment including puberty blockers for trans minors, but not for cisgender ones who may require the treatment for other reasons. 

The Sixth Circuit overturned that ruling, finding that transgender people do not belong in a protected class, which would trigger a higher judicial standard of review. 

“The court expressed skepticism that ‘transgender identity’ is ‘immutable’ or that transgender people lack political power,” the government summarized in an eerie echo of Justice Samuel Alito’s famous line in Dobbs (“women are not without electoral or political power”). 

If the Court finds that these anti-trans laws are a form of sex-based discrimination, they will have to overcome a much higher burden to pass judicial muster. If not, these laws will continue to proliferate unimpeded.

Tea leaf reading here cuts both ways. Five of the conservatives allowed Idaho to enforce its ban on gender-affirming care for minors — except for the parties to the case — in April. Roberts did not say how he’d voted on the emergency filing. 

On the other hand, in one of the most surprising decisions of the Roberts Court (Bostock v. Clayton County), the chief and Gorsuch joined the liberals to hold that Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees based on their sexuality. 

It’s worth noting, though, that right-wing politics — in which these judges are active consumers and participants — has become viciously hostile to trans people, even more so in the last four years since Bostock was decided, and that this Court may prove less sympathetic to this question of LGBTQ rights.  

All The Cool Kids Are Doing It 

In another significant agency power case (FDA v. Wages and White Lion Investments L.L.C.), the Court will consider a 5th Circuit Court of Appeals ruling that the Food and Drug Administration acted in an arbitrary and capricious manner by rejecting the applications of companies that want to sell new flavored vapes. 

The decision was fairly straightforward: The FDA weighs the harms new tobacco products pose against the possible benefits (benefits that may include weaning smokers off of cigarettes to less harmful alternatives and cessation altogether). In this case, a specific harm the agency considered was the appeal the flavored vapes — featuring flavors including “Jimmy The Juice Man Peachy Strawberry,” “Signature Series Mom’s Pistachio” and “Suicide Bunny Mother’s Milk and Cookies” — would have to minors and adolescents. The government cites data that flavored vapes are by far the most popular method of tobacco intake for young people, making the agency wary about greenlighting more of them. The FDA rejected the application. 

In a fairly blatant bid to get special treatment from a court dependably hostile to agency discretion, the companies secured an en banc hearing at the 5th Circuit after losing before a smaller panel. The full circuit agreed that the agency had mistreated the companies, acknowledging as it did so that it was breaking with many other circuit courts. 

“Manufacturers of flavored e-cigarette products have repeatedly challenged FDA’s denial orders as arbitrary and capricious, often relying on the same legal theories that respondents have invoked here,” the government wrote in its petition. “Seven courts of appeals have rejected those arbitrary-and-capricious challenges as meritless.”

But it’s a new era in dismissing agency wisdom. If the Court sides with the vape companies here, it’ll be a striking proclamation: Agency experts don’t get the benefit of the doubt, even when they’re acting to protect kids. 

I Know It When I See It 

The fair-weather free speech warriors in the Texas legislature are at it again, this time with a law that critics howl will censor access to a huge swath of content beyond the stated intent of blocking minors from accessing pornography (Free Speech Coalition v. Paxton). 

Under the law, any website that publishes content that is one-third or more “sexual material harmful to minors” must verify users’ age with an uploaded ID. The law would also force the websites to center a warning about the supposed dangers of pornography, prefaced by a  “TEXAS HEALTH AND HUMAN SERVICES WARNING” (despite the Texas HHS having made no such findings, per the petition of the law’s opponents). Those opponents, including an adult industry trade association, argue that the law is a blatant violation of the First Amendment rights of adults, who under the law have to upload their personal information. Opponents also posit that the law poses an obvious security risk, and is also oddly selective, omitting search engines and social media sites, both of which serve up pornographic content. 

Texas Attorney General Ken Paxton (R) insists that the law protects children and is acting no differently than a law setting regulations on a brick-and-mortar porn shop. He celebrated the news that PornHub would stop operating in the state. 

The 5th Circuit Court of Appeals broke with both Supreme Court and other circuit precedent here, assessing the Texas law through the rational basis lens (a low bar) and not the strict scrutiny that free speech infringement usually demands. 

The Supreme Court declined to block the Texas law while the proceedings unwound in April, with no noted dissents. 

Bubbling Up From The Lower Courts (Cases That May Get Added This Term)

Many more cases will be added to the Court’s docket as the term proceeds. Some of them could end up being term-defining, if the Court takes them up. 

They include a redux of the Idaho emergency abortions case last term, which the justices sent back down after concluding that they’d intervened too early. Justice Ketanji Brown Jackson criticized the move at the time, saying that their interference had resulted in months of pointless suffering for Idaho women who needed emergency abortions, and that the issue — whether federal emergency room standards trump state abortion bans — would certainly arrive back in front of the court again. Indeed it has, with the government asking the Supreme Court to take up its nearly identical dispute with Texas (Becerra v. Texas). 

Montana Republicans are asking the Court to revisit a bullet recently dodged, when the Court rejected a maximalist version of the independent state legislature theory in 2023. The theory reads the U.S. Constitution in a way that would let state legislatures alone conduct federal elections — to the exclusion of state courts enforcing their state constitutions, often to block voter suppression measures and extreme gerrymanders. While the Court did not embrace the most aggressive form of this theory, it left ample room for ambiguity, which the Montana officials are now asking the Court to fill in with teeth (Jacobsen v. Montana Democratic Party).

The case with perhaps the greatest chance to reach the Court even before the election is Republican National Committee v. Wetzel, where Mississippi Republicans are trying to invalidate a law that allows absentee ballots postmarked by Election Day to be counted up to five days later. Dozens of states have similar laws, so the ramifications here could be massive. 

The government is also escalating its prolonged war over the Affordable Care Act, where a handful of plaintiffs are trying to nix the law’s free preventive care services (Becerra v. Braidwood Management).

There are a handful of potentially major cases percolating in front of appellate courts: They include multiple attacks on the constitutionality of the National Labor Relations Board, offenses to strengthen the popular right-wing concepts of the major questions doctrine and nondelegation “theory,” both of which would wither federal agencies, and various fronts of the ongoing abortion wars.