The Supreme Court is getting back to work with an eye on a post-election battle

By John Fritze, CNN

(CNN) — The Supreme Court returns to session Monday with an agenda that includes cases on guns, pornography and transgender medical care, as the justices brace for a slew of last-minute election battles and a new presidential administration that could drag the court deeper into politics.

Of the 40 appeals the Supreme Court has approved so far, only a handful involve the kind of screaming political controversies that have dominated the dockets in recent years. While the setup allows the judges to keep their heads down for now, there are signs that the relative peace could be short-lived.

A contentious election between Vice President Kamala Harris and former President Donald Trump could plunge the 6-3 conservative majority into a political maelstrom at a time when polls show confidence in the court at near record lows. A new president could rearrange the cases already awarded. And Trump is almost guaranteed to return to the Supreme Court in the coming weeks to clarify the sweeping criminal immunity the court granted him in July.

All that will be on the minds of the nine justices when they take their seats on Monday for their first oral arguments for a new term that will run until next summer.

“As things stand now, it feels like the court is keeping its powder dry in case the election blows up,” Carter Phillips, a veteran Supreme Court litigator, told CNN early last week. “Not many cases and very few high-profile cases.”

Guns and pornography shape the role of SCOTUS

On Tuesday, the court will hear arguments in one of the largest pending disputes. Advocacy groups and manufacturers are challenging a Biden administration regulation on “ghost guns,” mail-order kits that allow people to build untraceable weapons at home.

While important — police say the weapons appear at the crime scene — the lawsuit does not implicate the Second Amendment. Instead, the case centers on whether the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority when it decided in 2022 that the kits counted as firearms that could be regulated.

A Louisiana-based appeals court ruled last year that the ATF had exceeded its authority, and the Biden administration appealed in February.

Later this year or early next year, the court will hear arguments in a First Amendment case from the adult entertainment industry, which challenges a Texas law imposing age verification requirements for pornographic websites.

On Friday, the court added another 13 cases to its lineup, although it remained silent on other major pending cases involving religion and abortion. The justices agreed to decide whether a federal law bars Mexico from charging gun distributors with facilitating the flow of firearms to drug cartels. And they took on a case from a straight woman who claims she faced workplace discrimination from a gay boss.

The relatively low-key term stands in contrast to previous years, when the conservative majority overturned Roe v. Wade, expanded Second Amendment rights, ended affirmative action in college admissions and — earlier this year — sweeping criminal immunity for Trump found.

That rapid march to the right – along with a series of ethical controversies – appears to be taking its toll. A poll released Wednesday by the Annenberg Public Policy Center found that 56% of Americans disapproved of the Supreme Court. Meanwhile, the justices suffered another embarrassing leak this summer when the New York Times reported on internal memos showing how Chief Justice John Roberts and some of his colleagues were considering Trump’s immunity claims.

The unusual violation came months after a major abortion opinion was prematurely posted on the court’s website and two years after the stunning revelation of a draft opinion overturning Roe.

“Something does feel broken,” Lisa Blatt, a frequent advocate before the justices, said of the leaks at a recent Federalist Society event.

Roberts is under pressure as elections approach

Given these pressures, Roberts and his colleagues would probably prefer not to get involved in a messy election battle this year.

Twenty-four years ago, another court led by Chief Justice William Rehnquist issued a hastily crafted 5-4 ruling in Bush v. Gore, effectively deciding the presidential election for former President George W. Bush.

The late Judge Sandra Day O’Connor, who was instrumental in that decision, later regretted the court’s involvement.

“This court must understand that its institutional legitimacy has been called into question,” said David Cole, national legal director at the ACLU, during a recent panel hosted by Georgetown Law. “It would be a disaster to get involved in a close election and vote along party lines to decide who is president.”

Republican and Democratic attorneys have already filed a series of lawsuits ahead of the election, some of which could be used to challenge the outcome of the election in November. But it’s also possible that whatever major election battle makes its way to the Supreme Court next month, assuming it does, will happen at breakneck speed and without much warning.

“It is impossible to predict how many election disputes there will be and what they might look like,” Kannon Shanmugam, a lawyer who has argued dozens of cases before the Supreme Court, told CNN. “At this point in 2000, no one saw Bush versus Gore coming.”

A parade of new high-profile legal controversies will continue to wind through the federal courts even after the next president is inaugurated.
New administrations often try to make quick, dramatic policy changes through executive action that can lead to quick calls. Take, for example, Trump’s ban on travel from predominantly Muslim countries, which repeatedly traveled to the Supreme Court.

Jackson: Court is ready for surprises

A change in presidential administration could also affect the cases already on the Supreme Court’s docket. One of the court’s most closely watched cases this season, involving the politically charged issue of gender-affirming care, could be particularly vulnerable if Trump wins the election. The Supreme Court in June agreed to hear a Biden administration challenge to a ban on transgender care in Tennessee, which bans hormone therapy and puberty blockers for minors and imposes civil penalties on doctors who violate the bans.

According to the Human Rights Campaign, nearly half of U.S. states have passed bans on transgender care for minors.

Although the case also involves private parties, a change in position on transgender issues from a new Justice Department could complicate this appeal, which has not yet been scheduled.

The Supreme Court has already delved into a number of emergency cases in next month’s elections, two of which involved third-party candidates trying to stay on the state presidential ballot.
In a more significant decision in August, the court blocked some of Arizona’s proof of citizenship requirements for voters, but left in place the requirement that potential voters document their citizenship before registering to vote on a state ballot.

Speaking to CBS News in August, Judge Ketanji Brown Jackson smiled when asked if she was prepared for the election to become a Supreme Court issue.

“As prepared,” she said, “as anyone can be.”

This headline has been updated.