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Supreme Court enters crunch time for term loaded with big issues

Justices start traditional last week of term with major cases yet to be decided

Visitors walk across the Supreme Court plaza to enter the building for the first day of the court’s session in October 2023.
Visitors walk across the Supreme Court plaza to enter the building for the first day of the court’s session in October 2023. (Bill Clark/CQ Roll Call)

The Supreme Court has yet to issue opinions this term in about a dozen major cases that could rock the country’s politics and reshape the law on issues such as abortion, government regulation of speech online and the reach of the administrative state.

Those could all come this week, the court’s traditional last week before its summer break, when it often delivers decisions in the most closely watched cases. The next scheduled opinion days are Wednesday, Thursday and Friday, but the court on occasion has in the past issued rulings in July.

The issues still awaiting rulings by the conservative-controlled court include former President Donald Trump’s claim that he is immune from criminal prosecution and whether states can ban abortion in emergency rooms.

Other cases cover whether to scale back the long-standing deference given to the executive branch over regulatory policy, how state laws in Texas and Florida could regulate internet giants such as Meta and Google, and the government’s ability to communicate with those internet giants when it encouraged the removal of posts with misinformation.

The justices also have yet to issue decisions on the Environmental Protection Agency’s rule on cross-state air pollution and when local governments that criminalize public camping infringe on the constitutional rights of people experiencing homelessness.

Ray Brescia, a constitutional law professor at Albany Law School, said that aside from the high-profile nature of the cases, they could reshape fundamental issues like the balance of power between states and the federal government.

“These decisions coming up could very well set a path for the United States over the next 20 years,” Brescia said.

Those decisions will come down amid a presidential election, close to the first presidential debate set for Thursday, and as the 6-3 conservative-controlled court has faced increasingly hostile public opinion and calls from Democrats to pass legislation to change the court. In Gallup polling, the Supreme Court hit a historic low 40 percent approval rating in September 2021 and has remained close to there since.

David Schultz, a political science and legal studies professor at Hamline University, said the high-profile nature of court decisions such as Dobbs v. Jackson Women’s Health Organization in 2022 that overturned the constitutional right to an abortion, mixed with public reports about ethics scandals involving the justices have hurt the court’s public image.

“You know, the court has got a lot of damage control to do right now,” said Schultz, who is also an adjunct law professor at the University of Minnesota and University of St. Thomas.

In decisions in major cases this term, the justices have mostly rejected the most conservative arguments brought before them and rebuked decisions by lower courts such as the U.S. Court of Appeals for the 5th Circuit.

That included overturning 5th Circuit decisions that would have restricted access to the popular abortion drug mifepristone and another that would have invalidated a federal ban on gun possession for people with domestic violence restraining orders.

However, major cases like Trump’s immunity and emergency room abortion access threaten to push the court into the center of public debate, Schultz said.

“Perhaps, and this is a big perhaps here, perhaps it throws the court into the middle of an election, much in the same way that the Dobbs opinion threw the court into the middle of the 2022 election,” Schultz said.

In one of the most high-stakes decisions in years, the justices are set to decide whether Trump can face prosecution on charges alleging he tried to overturn the 2020 election.

Trump has argued that his presidency protects him from any criminal charges tied to official acts, which he says include the allegations in the four-count federal indictment against him in Washington, D.C.

Issuing a decision this week could mean the justices weigh in on Trump’s criminal liability the day before, or even hours before, the first presidential debate between Trump and President Joe Biden currently scheduled for Thursday.

“The timing on this case has been extraordinary,” said Aziz Huq, a law professor at the University of Chicago Law School, who pointed out that the court hasn’t shown any of the “alacrity” it has for other major cases dealing with the election — such as a decision on Trump’s ability to appear on the Colorado ballot this fall.

In the abortion case, Idaho asked the justices to reverse a lower-court ruling that held that the Emergency Medical Treatment and Active Labor Act, or EMTALA, guaranteed abortion care despite the state’s near-universal ban on the procedure.

The Biden administration has leaned on the law to try and preserve access to abortion in states that have restricted it in the wake of the court’s Dobbs decision, and experts said it comes at a confluence of several major issues including health care access, states’ ability to regulate medicine and the power of the administrative state to dictate policy.

Huq pointed out the case’s similarity to others on the docket for this week that could roll back the power of administrative agencies to make decisions and adjudicate cases internally.

Those cases build on a yearslong hostility from the justices to the power of the administrative state, including introducing a new “major questions” doctrine two years ago that curtailed agencies’ power to make decisions without clear congressional say-so.