Bruised Supreme Court Returns to Bench With Possible Election Cases Looming

Aside from major disputes on issues like transgender rights and guns, the docket is fairly routine. That could change fast if the presidential race is contested.

The new Supreme Court term, which starts as the justices return to the bench on Monday, already features cases on transgender rights, untraceable “ghost guns” and whether Mexico may sue American firearms manufacturers. The coming months may also bring voting disputes that could decide the presidential election.

Still, after three momentous terms in which the court eliminated abortion rights, did away with race-conscious college admissions and created substantial immunity for presidential crimes, the docket is, for now at least, back to a sort of normalcy, promising decisions that will produce sharp divisions among the justices and ripple through American life but fall short of producing the titanic societal shocks of recent years.

The court’s lower profile, however brief, may come as a relief to the justices, who are bruised from the aftershocks of the recent decisions, from internal tensions over whether to give teeth to ethics guidelines announced last year and from approval ratings that continue to test modern lows.

In addition to the marquee cases on transgender rights and guns, the court will take on an array of notable matters.

One will decide a First Amendment challenge to a Texas law aimed at shielding minors from online pornography. Another will take a close look at a case in which Oklahoma is poised to execute a death row inmate over the objections of its own attorney general.

Others will scrutinize, yet again, the power of regulatory agencies, now in the context of the Food and Drug Administration’s efforts to discourage young people from using flavored e-cigarettes. The court will also hear a pair of major securities fraud cases against the tech giants Facebook and Nvidia.

The court added more than a dozen cases to its docket on Friday, including ones on DNA testing for death row inmates, the disposal of nuclear waste and police use of deadly force. In the coming months, the justices are likely to agree to hear perhaps 20 more cases. They could include ones on the Second Amendment and further attacks on the power of administrative agencies.

Much could still change, said Jaime Santos, a lawyer with Goodwin Procter who specializes in appellate and Supreme Court litigation.

“Recall that the fall was pretty sparse, collegial and relatively low-profile last term, but the grants for the spring and the spring oral arguments were pretty explosive,” she said, referring to, among others, cases involving former President Donald J. Trump and access to abortion.

“So I don’t think anyone should sit back and relax yet,” Ms. Santos said.

Indeed, the slow start may be the product of strategy rather than happenstance, said Kannon Shanmugam, a lawyer with Paul, Weiss, Rifkind, Wharton & Garrison who has argued dozens of cases before the justices.

“The court may have deliberately lightened its load in anticipation of some election litigation,” he said. “It’s hard to know what form that litigation could take, but it has the potential to be a major distraction from the court’s ordinary work.”

The biggest case of the term so far is United States v. Skrmetti, No. 23-477, a challenge to a Tennessee law that bans some medical treatments for transgender minors. More than 20 other states have similar laws, which have opened a new front in the culture wars.

The Tennessee law prohibits medical providers from prescribing puberty blockers or hormones to treat the psychological distress caused by incongruence between experienced gender and that assigned at birth. The Biden administration argues that the law violates the Constitution’s equal protection clause.

The challenge is likely to prevail only if the court rules that the law is subject to heightened constitutional scrutiny, which requires states to demonstrate that their laws are substantially related to achieving an important state objective. Sex-based classifications are subject to such scrutiny, but the parties dispute whether the law discriminates based on sex.

The administration also urged the Supreme Court to rule that distinctions based on transgender status must be subjected to heightened scrutiny, but that argument is unlikely to prevail. “The court has not added to the list of classifications triggering heightened scrutiny in decades,” a report last month from Georgetown’s Supreme Court Institute noted. “The odds of this court doing so now are less than zero.”

Should Mr. Trump win another term, his Justice Department might scuttle the case. Indeed, Mr. Shanmugam said, “a change in administration could have a substantial impact on the court’s docket this term.”

In June, the court ruled by a 6-to-3 vote along ideological lines that the Bureau of Alcohol, Tobacco, Firearms and Explosives had exceeded its statutory authority by banning bump stocks, devices that enable semiautomatic rifles to fire at speeds rivaling those of machine guns.

On Tuesday, the court will hear a broadly similar case, Garland v. VanDerStok, No. 23-852, again asking whether the A.T.F. overreached. The question in the new case is whether the agency may regulate “ghost guns” — kits that can be bought online and assembled into untraceable homemade firearms.

But there is some reason to think that the court will not divide along predictable lines this time. For one, the challenged regulation did not ban the sale or possession of the kits and only required manufacturers and sellers to obtain licenses, mark their products with serial numbers and conduct background checks.

For another, the court temporarily revived the regulation in August 2023 after the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, refused to pause a trial judge’s ruling striking it down. The vote in the Supreme Court was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett joining the court’s three liberal members to form a majority.

Another decision from the Fifth Circuit, which has a reputation for issuing extreme rulings, is the subject of an appeal in the online porn case. The case, Free Speech Coalition v. Paxton, No. 23-1122, concerns a Texas law that seeks to limit minors’ access to sexual materials on the internet by requiring age verification measures like the submission of government-issued IDs.

A divided panel of the Fifth Circuit rejected a First Amendment challenge to the law, applying a relaxed form of judicial scrutiny. That ruling seemed at odds with Ashcroft v. American Civil Liberties Union, a 2004 decision in which the justices blocked a federal law quite similar to the one from Texas, applying the most demanding form of judicial review, strict scrutiny, to find that the law impermissibly interfered with adults’ First Amendment rights.

Another case from the Fifth Circuit involving minors, this one on flavored e-cigarettes, will require the justices to decide whether the Food and Drug Administration acted lawfully in rejecting application from two manufacturers of flavored liquids like “Jimmy the Juice Man Peachy Strawberry,” “Signature Series Mom’s Pistachio” and “Suicide Bunny Mother’s Milk and Cookies.”

The appeals court ruled, by a 10-to-6 vote, that the agency’s denials were arbitrary and capricious. In asking the Supreme Court to hear the case, Food and Drug Administration v. Wages and White Lion Investments, No. 23-1038, the agency’s lawyers cited another appeals court that had reached the opposite conclusion. The Fifth Circuit’s decision “has far-reaching consequences for public health and threatens to undermine the Tobacco Control Act’s central objective of ‘ensuring that another generation of Americans does not become addicted to nicotine and tobacco products,’” they wrote, quoting from the other appeals court’s decision.

The justices are hearing fewer cases from state courts these days. An exception is Glossip v. Oklahoma, No. 22-7466, a death penalty case the court will consider on Wednesday. It is an appeal from a ruling by the Oklahoma Court of Criminal Appeals ordering an inmate’s execution notwithstanding a plea from the state’s attorney general, a Republican, for a new trial after evidence emerged undermining the testimony of the state’s star witness.

Among the more than a dozen cases the court agreed to hear on Friday, one stood out: Smith & Wesson v. Estados Unidos Mexicanos, No. 23-1141, in which Mexico seeks to hold American gun manufacturers to account for what it says is their role in aiding drug cartels’ gun carnage.

On the morning after Election Day, the court will consider Facebook v. Amalgamated Bank, No. 23-980, a securities class action over whether Facebook had adequately disclosed a data breach that allowed Cambridge Analytica to harvest the private information of millions of users.

A week later, the justices will consider another securities fraud class action, Nvidia v. E. Ohman J:or Fonder AB, No. 23-970, this one accusing Nvidia, now the dominant manufacturer of chips for artificial intelligence services, of misrepresenting its reliance on the cryptocurrency mining industry in 2017 and 2018.

The sums at issue in those two cases are enormous, but the disputes are by Supreme Court standards routine, calling on the justices to refine legal standards rather than announce broad constitutional principles.

Jennifer Mascott, a law professor at the Catholic University of America, said the court might welcome such cases, as it was “still reeling from significant confidentiality breaches in recent years and public turmoil and protests over court rulings.”

Indeed, a survey released last week by the Annenberg Public Policy Center documented what it called “a stunning increase in distrust” of the Supreme Court over the past two decades. Just 44 percent of respondents surveyed in July and August expressed trust that the court would act in the best interests of people like them. That is the lowest level since the center began asking the question in 2005, when 75 percent of the public trusted the court.

A second survey released last week, from Gallup, found deep polarization in the public’s view of the court. While 72 percent of Republicans surveyed in September approved of the job it was doing, only 15 percent of Democrats did.

Against that backdrop, the justices may appreciate a quiet spell.

“The Supreme Court seems to be hitting the snooze button,” said Deepak Gupta, a lawyer with Gupta Wessler who frequently appears before the justices. “We’ve gone from constitutional earthquakes to legal paper cuts. It’s as if the justices wanted a controversy cleanse heading into the election.”