Robin Scholz/The News-Gazette
When the Supreme Court begins its new term Oct. 2, the University of Illinois’ Albert E. Jenner Jr. Professor of Law will be watching important cases involving gun rights, access to social media and the powers of federal agencies. Here’s a preview from JASON MAZZONE.
The Second Amendment
The court is on a push to shore up Second Amendment rights. In the newest case, United States v. Rahimi, the court will decide whether a federal law banning possession of guns by individuals subject to a domestic-violence restraining order violates the Constitution.
In 2022, the court held that to comply with the Second Amendment, modern firearms restrictions must be traceable to a historical tradition of regulation. That test almost certainly dooms the federal law — designed to protect victims of domestic violence — because it lacks the necessary historical pedigree.
The First Amendment
The court is also a big fan of First Amendment rights. In a pair of cases — O’Connor-Ratcliff v. Garnier and Lindke v. Freed — the Court will decide whether elected government officials, school board members and a city manager violated the First Amendment when they blocked constituents from their Facebook accounts for posting criticism of the officials.
The public officials say the accounts are purely personal, but the constituents contend that the officials use the accounts to communicate with the public about government business and, therefore, the First Amendment protects a right of access to them.
The First Amendment Clinic at the UI College of Law, which launched this fall, has submitted an amicus brief urging the court to adopt a rule that social-media accounts operated by a public official must be publicly accessible unless the official can demonstrate the account is truly a personal account and not a forum for discussion of government business.
The nine justices of the U.S. Supreme Court sit for a formal portrait at the start of its last term. Front row, from left, are Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito and Elena Kagan. Back row, from left, are Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson.
The Associated Press
Federal government powers
Today’s court has a majority of members skeptical of powerful federal government agencies, and three cases present opportunities to cut back on what agencies do.
In one case, the court will consider whether the funding mechanism for the Consumer Financial Protection Bureau, involving allocations by the Federal Reserve from fees from member banks, violates the Constitution’s requirement that all “appropriations” be approved by Congress. If the court decides the bureau is unconstitutionally funded, all of the bureau’s activities since its creation in 2010 in response to the financial crisis will be called into doubt.
In a second agency case, the court will decide whether administrative proceedings conducted by the Securities and Exchange Commission for violating federal securities laws violate the Seventh Amendment right to a civil jury trial.
In a third case, the court will decide whether to overturn a 40-year-old precedent that says courts should defer to a federal agency’s reasonable interpretations of ambiguous congressional statutes.
These cases might sound nerdy, but they have the potential to undercut the federal administrative state in ways that could significantly impact the lives of many Americans.
It is also very likely the court will be asked to weigh in, perhaps on an emergency basis, on issues arising out of the multiple prosecutions of former President Donald J. Trump for his activities related to the 2020 election and on Jan. 6, 2021.
Numerous issues could arise, including whether the prosecutions must be postponed until after the 2024 presidential election and whether the Constitution bars these criminal prosecutions of the former president entirely.
Separately, there is a very good chance that the court will be asked to decide whether Section 3 of the Fourteenth Amendment disqualifies Trump from future federal office for having engaged in insurrection or rebellion against the United States.
A ruling by the Supreme Court on that issue would dwarf anything else it does this term.
Justices and ethics
Finally, with news reports of the justices receiving free travel and other lavish gifts, and ongoing criticism from some members of Congress, the court is likely to adopt its own internal code of ethics.