The 5 Supreme Court Cases to Watch This Session

Social media censorship, federal regulation, separation of powers, gerrymandering, and gun rights are on the docket.

(Illustration by The Epoch Times, Shutterstock)

Each year, the Supreme Court is flooded with more than 7,000 petitions to take up cases that can result in major changes to U.S. law.

Ultimately, the justices accept between 100 and 150 of the petitions for writs of certiorari, according to the U.S. Courts website.

The top court tends to take cases from state supreme courts and federal courts of appeals, while clarifying questions posed by lower court decisions.

Just weeks into the new term, the Supreme Court has granted 37 cases with 35 arguments, with other cases likely to be added as the term continues. Only some of the arguments have been scheduled.

Below are several cases, or groups of cases, on the docket so far that could have far-reaching implications for voters, businesses, and the separation of powers.

Social Media Censorship

The court, led by Chief Justice John Roberts, is once again tackling big questions about the First Amendment and the understanding of how free speech protections apply on social media platforms, a relatively new technology in our nation’s history.

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In recent years, politicians have applied scrutiny to tech giants such as Facebook, Google, and X (formerly known as Twitter) over accusations of left-wing bias and the censorship or banning of certain users’ posts.

Texas and Florida have attempted to address censorship by passing laws restricting how social media companies can moderate users’ speech.

Among other things, Texas’s law prohibits censorship based on viewpoint or geographic location, while Florida’s law targets social media companies’ ability to shadowban, de-platform, and censor content.

Florida’s law also required that social media companies provide individualized explanations for removing or altering users’ posts. The 11th Circuit Court of Appeals partially affirmed an injunction against Florida’s law, arguing that social media moderation was itself a form of protected speech.

The Texas law was upheld by the 5th Circuit Court of Appeals, which said that the state law comported with how common law historically has treated common carriers. By contrast, the 11th circuit rejected a comparison to common carriers. The court also accused social media platforms of offering a “rather odd inversion of the First Amendment,” in which “buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”

Sen. Ted Cruz (R-Texas) speaks about free speech at a Senate Judiciary Committee hearing in Washington on April 10, 2019. (Alex Wroblewski/Getty Images)

The Texas and Florida laws went to the Supreme Court with the Biden administration supporting review of both statutes.

The justices accepted Florida’s appeal (Moody v. NetChoice LLC) and rejected a petition in which NetChoice asked it to consider the entirety of the state law rather than just the portions addressed by the 11th Circuit. The Supreme Court will consider whether the content-moderation restrictions and individualized explanation requirements violate the Constitution.

Dan Greenberg, general counsel for the Competitive Enterprise Institute, speculated that the Supreme Court will block the Texas law as the court has allowed a lower court’s injunction to remain in place.

In an interview with The Epoch Times, Mr. Greenberg likened social media companies’ activities to museums and movie theaters, which curate certain pieces to attract audiences.

The oral arguments for the cases haven’t been scheduled yet, but it’s likely they'll follow another group of cases involving the First Amendment and social media.

O'Connor-Ratcliffe v. Garnier and Lindke v. Freed have brought together two sides of the ideological spectrum—the liberal American Civil Liberties Union and the conservative Alliance Defending Freedom—in advocating free speech.

Both organizations argue that school officials shouldn’t be able to block parents on their social media accounts.

The Supreme Court will look at whether public officials engage in state action only if they use the account “to perform a governmental duty or under the authority of his or her office.”

Similarly, the Supreme Court is probing whether an official can block someone from a personal account that communicates “job-related matters with the public, but does not do so pursuant to any governmental authority or duty.”

The U.S. Supreme Court in Washington on Sept. 28, 2020. (Al Drago/Getty Images)

Executive Power and Chevron Doctrine

Multiple cases granted this term have indicated that the Supreme Court has an interest in reevaluating the executive branch’s leeway with the authority that Congress grants it.

For decades, U.S. agencies have enjoyed flexibility in making regulations based on ambiguous language in laws approved by Congress.

The Supreme Court created what’s known as the Chevron deference in 1984, ruling that the judiciary should defer to an agency’s interpretation if it is reasonable and if Congress hasn’t precisely addressed the particular issue at hand.

At a broader level, that precedent has been cited in thousands of cases, and overturning it could prompt a wave of litigation with the potential to upend other regulations.

The current Supreme Court has a reputation, however, of being somewhat incrementalist. Outside of reversing Roe v. Wade, it has favored small changes according to case specifics rather than sweeping changes connected to precedent.

“One of the hallmarks of a conservative court is that it does move incrementally,” said John Bursch, vice president of appellate advocacy for Alliance Defending Freedom.

“You don’t want the law to be making sudden lurches in any direction. Lurches are bad for citizens and bad for businesses because then they can’t rely on the stability of the law.”

This particular case, Loper Bright Enterprises v. Raimondo, involves fishermen suing the Commerce Department over a policy that requires them to pay for government-mandated monitors to travel onboard to ensure compliance with federal regulation.

Even if Chevron is flawed, the government has echoed arguments cited in Roe that state that special justification is needed to overturn longstanding precedents.

However, some of the current justices have already criticized Chevron or the way it’s been applied.

“Chevron deference precludes judges from exercising” their independent judgment in interpreting statutes, Justice Clarence Thomas wrote.

Separation of Powers and Appropriations

On Oct. 3, the Supreme Court oversaw a spirited debate on how much leeway Congress could grant agencies in determining the amount of money they spend.

The Constitution’s appropriations clause grants Congress the power of allocating funds, specifying: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

The Consumer Financial Protection Bureau is accused of receiving funding through means other than specific appropriations from Congress. (DCStockPhotography/Shutterstock, Joe Raedle/Getty Images)

But that provision has seen considerable debate as agencies, such as the U.S. Postal Service, receive funding through means other than a fixed amount assigned by Congress.

The case is Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America, Limited (CFSA).

CFSA, a group of payday lenders, is arguing that the CFPB, the brainchild of Sen. Elizabeth Warren (D-Mass.) and a byproduct of the 2008 financial crisis, is unique in its abuse of the Constitution.

Rather than receiving specific appropriations from Congress, CFPB’s director issues the agency’s own request for funding from the Federal Reserve, which is itself subject to congressional oversight but whose actions don’t need approval from the president.

Supreme Court decisions are difficult to predict. But granting cert, which requires at least four of the justices’ votes, can indicate that some justices view the case as a way to address broader questions in the law. Merely accepting the CFPB case has prompted speculation that the top court—which is mostly conservative—saw an opportunity to restrict executive power.

However, Carrie Severino, a former clerk for Justice Thomas, told The Epoch Times that cert petitions are “the most opaque” area in terms of understanding the Supreme Court’s decision-making.

“We don’t get a vote count,” she said. “We typically don’t know who wanted to do what, and we rarely know why.”

On Oct. 3, the court’s conservatives appeared to surprise observers as they pressed the CFSA for a standard by which they could limit the appropriations clause’s scope.

“Four of them took it up but none of the ones that I thought would be hardest against the agency were hard,” said Jim Burling, vice president of legal affairs for Pacific Legal Foundation.

U.S. Supreme Court Justices pose for their official portrait at the Supreme Court in Washington on Oct. 7, 2022. (Alex Wong/Getty Images)

“[Justice Amy Coney] Barrett seemed to be sympathetic, for example. [Justice Brett] Kavanaugh as well ... I think that could be a disappointment ... for those of us who would like to rein the administrative state in quite a bit more,” Mr. Burling told The Epoch Times.

Justices Elena Kagan and Ketanji Brown-Jackson were forthright with their frustration over CFSA’s advocacy, which indicated that fixed amounts should be the general standard for appropriations. Both Justice Kagan and Solicitor General Elizabeth Prelogar argued that the organization’s line of reasoning was at odds with how U.S. agencies historically receive funding.

Gerrymandering

The long-running and contentious battle over voting rights returned to the nation’s highest court on Oct. 11 when justices heard oral arguments regarding South Carolina’s alleged racial gerrymandering in the case Alexander v. South Carolina State Conference of the NAACP.

South Carolina Republicans are asking the justices to overturn a lower court ruling that one of three districts challenged by the NAACP was racially gerrymandered.

The ACLU, which joined the NAACP, quoted the lower court in alleging that Republican legislators attempted to “‘bleach’ Black voters from their former district.”

In constitutional terms, the ACLU accused legislators of violating the equal protection clause of the 14th Amendment. Legislators allege that they were motivated by politics—not race—and wanting to create a “stronger Republican tilt.”

According to the Supreme Court docket: “The three-judge district court never mentioned the presumption of the South Carolina General Assembly’s good faith, analyzed Congressional District 1 as a whole, or examined the intent of the General Assembly as a whole.

College students participate in the NAACP's “Vote Hard” event to encourage people to vote in Selma, Ala., in this file photo. (Mario Tama/Getty Images)

“It also disregarded the publicly available election data used to draw District 1 and legislator testimony demonstrating that politics and traditional districting principles better explain District 1 than race. And it never identified an alternative map that achieved the General Assembly’s political objectives while similarly adhering to traditional criteria.”

During oral arguments, the justices and attorneys discussed, among other things, whether the NAACP’s case, which leveraged expert testimony, used enough evidence. At one point, Chief Justice Roberts told NAACP attorney Leah Aden, “We’ve never had a case where there’s been no direct evidence, no map, no strangely configured districts, a very large amount of political evidence, whether the district court chose to credit it or not, and, instead, it all resting on circumstantial evidence.”

Ms. Aden, meanwhile, stood by the circumstantial evidence and later told The Epoch Times, “This court is not tasked with having another mini-trial on what evidence we did or did not establish, and we convinced three judges that there was a racial gerrymander, and I believe that will be respected by this court.”

Gun Rights and Domestic Violence

The United States v. Rahimi case presents justices with the opportunity to take up a case in which one of their prior decisions had influenced a lower court ruling.

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court said that gun regulations should be consistent with the country’s historical tradition. After that decision in June 2022, the 5th Circuit reversed its ruling that had upheld the conviction of a Texas man, Zackey Rahimi, who broke his domestic violence-related restraining order by being in possession of multiple firearms. That ran afoul of a 1994 law prohibiting people under such orders from possessing firearms.

A person practices with a pistol at a shooting range in New York on June 23, 2022. (Ed Jones/AFP via Getty Images)

Oral arguments are set for Nov. 7 with the court considering whether that decades-old law violates the Second Amendment on its face. The Biden administration has urged the Supreme Court to reverse the 5th Circuit’s ruling, arguing that “governments have long disarmed individuals who pose a threat to the safety of others.”

Mr. Rahimi was subjected to a restraining order after he dragged his girlfriend through a parking lot and threatened to shoot her, according to a USA Today report. He also fired at a passerby who allegedly witnessed the incident. The news outlet reported that in a separate incident, Mr. Rahimi threatened a woman with a gun and fired it into the air when his friend’s credit card was declined at a fast-food restaurant.

George Lyon of Arsenal Attorneys told The Epoch Times that while Mr. Rahimi isn’t what he would call “a good guy with a gun,” the statute’s constitutionality was suspect. He pointed to its effect of involving the federal government in domestic relations and giving the “federal government a general police power, which it was never meant to have under the Constitution.”

The amici on this docket come from a wide range of sources, including California Democrat Gov. Gavin Newsom and the U.S. Conference of Catholic Bishops. A brief from the libertarian Cato Institute argues that the law fails to ensure adequate due process before issuing a restraining order.