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US Supreme Court begins new term as Trump cases loom large

The justices will address freedom of expression, the abortion pill, the right to bear arms and the powers of public agencies, but they may also have to decide issues concerning the former president

Visitors tour the Supreme Court in Washington, Monday, Sept. 25, 2023
The headquarters of the United States Supreme Court, in Washington, in an image from September 2023.J. Scott Applewhite (AP)

The U.S. Supreme Court begins the first day of its new term with a case about whether “and” indeed means “and” (as some lower courts have ruled), or if it means “or” (as another lower court has ruled). The case may be thrilling to those who follow the intricacies of the Supreme Court, but it has less political weight than those that have allowed the court to unleash a conservative revolution.

That said, the new term also includes politically weighty issues, such as freedom of expression on social media, the use of the abortion pill, electoral maps, the right to bear arms and the powers of the financial sector watchdog and other public agencies. The big question, however, is whether the Supreme Court will have to rule on any of the trials facing Donald Trump, the former president who appointed three of the nine members of the court. Or if it will have a say in whether he can run in the 2024 presidential elections.

The Supreme Court’s last term ended with a further shift to the right, with the justices burying affirmative action in universities, giving license to discriminate against same-sex couples on the grounds of freedom of expression and rejecting part of President Joe Biden’s plan to cancel or reduce student loan debt. Until these last rulings, the Supreme Court had resolved most cases with relative consensus and with more focused positions than the previous term. In 2022, the Supreme Court repealed the federal right to abortion, undermined the fight against climate change, expanded the right to carry firearms, gave a greater role to religion in schools, questioned the mandatory vaccination of workers against Covid and removed power from federal agencies.

These sentences badly damaged the reputation of the court, as did the scandals involving the donations, gifts and undeclared perks received by some of the justices. With its prestige on the rocks, the Supreme Court begins its new term on Monday. It has a calendar of scheduled hearings, but more may be added to the list during the year.

Trump cases

The justices are set to hear one case involving Trump, but only tangentially. When he was a candidate in the primaries for the 2016 elections, he called his rival, Senator Marco Rubio, “little Marco.” Rubio, tired of his contempt, stood up in a debate and said: “You know what they say about men with small hands... You can’t trust them.” At other rallies, Rubio insisted that his hands were “too small.”

In 2018, Steve Elster, a progressive activist, tried to register the trademark “Trump too small,” but the patent office rejected it, as the law requires consent of the person cited. Elster appealed, and a court ruled in his favor last year, alleging that his freedom of expression was being violated, since Trump is a public figure. The patent office appealed, and the Supreme Court will decide in the case Vidal v. Elster. The hearing is scheduled for November 1.

The most important cases concerning Trump are not on the agenda. On the one hand, Trump is facing four indictments for 91 crimes. Federal judges are weighing various appeals related to the prosecution of Trump in federal courts in Washington and Florida, and state courts in Georgia and New York. It’s by no means certain the court will be asked to weigh in, but it’s also not out of the question.

More importantly, there is the legal argument over whether Trump is disqualified from running in the 2024 elections under Section Three of Article 14 of the Constitution. This states: “No person shall be [...] president [...] who, having previously taken an oath [...] to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Some states have filed lawsuits to keep Trump off the ballot. If a state court invokes it to kick the former president off the 2024 voting list, the Supreme Court seems likely to get involved.

Other important cases

While it’s not on the calendar yet, a case concerning the abortion pill mifepristone is likely to reach the Supreme Court. A federal judge in Texas ruled to block its approval by the Food and Drug Administration (FDA). A federal appeals court allowed its use, but added restrictions, while it decided on the merits of the appeal. The Supreme Court later cautiously preserved access to the drug, but the case is moving forward in federal court and seems destined, this year or next, to reach the Supreme Court.

The court’s calendar is already filled with cases that are set to mark the lives of Americans. Two of the last cases admitted — Moody v. NetChoice and NetChoice v. Paxton will define the contours of free speech on social media. The lawsuits between tech companies and the states of Texas and Florida will decide whether the social media platforms can act as editors and moderate content. In other words, it will set down whether social media companies can block messages that they don’t want posted (such as hate speech or incitements to violence) or if users have the right to express themselves without moderation.

The right to bear arms will also return to the Supreme Court with the case United States v Rahimi. The justices expanded gun rights last year in a ruling that invalidated restrictions imposed by the state of New York. Now, it is hearing on a rule that bans people subject to a restraining order for domestic violence from possessing a weapon. At question is whether that rule violates the Second Amendment, which enshrines the right to keep and bear arms. The sentence will have a double meaning in the midst of the indictment against Biden’s son, Hunter, who has been charged for possessing a gun when he was a drug addict.

Several cases take aim at public agencies. In Consumer Financial Protection Bureau v. Community Financial Services Association, justices will decide whether it is legal for the Financial Consumer Protection Bureau to operate with funds received from the Federal Reserve, as has been happening since the body was created following the financial crisis. A court ruled that it was illegal, and that the money should have been authorized by Congress. If the Supreme Court backs this ruling, the bureau’s actions and regulations over the past decade could be challenged, with “catastrophic economic consequences,” according to mortgage associations and real estate employers.

Meanwhile, the case SEC v. Jarkesy calls into question the authority of the Securities and Exchange Commission (SEC). George Jarkesy claimed his right to a jury trial after being fined $300,000 and asked to return $685,000 of illicit benefits for an administrative procedure. He appealed, and a court ruled in his favor. Now, the Supreme Court will redefine the contours of the SEC’s actions. And in another case, Loper Bright Enterprises v. Raimondo, justices will again have the opportunity to limit the power of government agencies, a favorite pastime of the conservative-led court.

The Supreme Court will also address Purdue Pharma’s bankruptcy in a hearing in December, as announced in August. In that instance, the justices blocked a bankruptcy deal that would have protected members of the billionaire Sackler family — which once controlled the company — from additional civil lawsuits over the opioid epidemic and that limited the Sacklers’ personal liability to $6 billion. The case is Harrington v. Purdue Pharma.

The first day of the new term begins on Monday with Pulsifer v. United States, the convoluted case over the meaning of the word “and.” It, however, may affect more than 10,000 people convicted of minor drug trafficking offenses. The case concerns a rule which says that justices do not need to impose the statutory mandatory minimum, but, rather, that it is at their discretion, if the individual “does not have” a criminal record of type A, type B “and” type C — to put it simply. The tricky wording means that some judges interpret the rule to mean that if the individual falls into one of the three categories, they cannot be considered for a more lenient sentence, while others believe that the individual has to meet all three conditions in order to be excluded. A ruling is set to be made in a few months.

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