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The controversial cases that lie ahead in the Supreme Court's new term

AILSA CHANG, HOST:

Well, it's the first Monday in October, and as always, that means the Supreme Court is back on the bench for a new term, a term full of cases involving controversial issues like guns, abortion, social media and much more. Joining us now to talk about the highlights is NPR legal affairs correspondent Nina Totenberg. Hey, Nina.

NINA TOTENBERG, BYLINE: Hey there, Ailsa.

CHANG: OK, so how silly would it be for us to think the court would lie low for a bit after a couple of hugely important cases last term? But we are not so naive. This is not what they're doing at all, are they?

TOTENBERG: You're right about. The truth of the matter is that many of the court's biggest cases this term are being driven by the Fifth Circuit Court of Appeals, which covers Texas and some Deep South states. It is definitely the most conservative federal appeals court in the country with 12 Republican appointees, six of them Trump appointees and just four Democratic appointees. And it consistently rules in ways dramatically more conservative and different from other federal appeals courts. So its rulings have become sort of a hydraulic engine forcing the Supreme Court to resolve conflicts between the Fifth Circuit and other appeals courts around the country.

CHANG: Interesting. So give us some examples.

TOTENBERG: So, for instance, the Fifth Circuit overrode FDA regulations on the abortion pill, which now accounts for well over half the abortions in the United States. And if the Fifth Circuit's restrictions on the pills availability are upheld, it would make access to the pills significantly more difficult. The Fifth Circuit also struck down the funding mechanism for the Consumer Financial Protection Bureau, which has established regulations to protect consumers in getting mortgages and other financial dealings. The agency is funded by fees paid to the Federal Reserve Board. And the Fifth Circuit ruled that unless an agency is funded through annual congressional appropriations, it's unconstitutional. And then there's the federal law barring gun possession for any person who's the subject of a domestic violence restraining order. The Fifth Circuit struck it down as a violation of the Second Amendment right to bear arms.

CHANG: And why is that? Because there is ample evidence of the danger of guns in the hands of abusive spouses. So why did the Fifth Circuit conclude that law is unconstitutional?

TOTENBERG: Because of the Supreme Court's very expansive ruling in 2022 declaring that the right to own and carry guns is a fundamental right under the Second Amendment. This was a quintessentially originalist decision written by Justice Clarence Thomas in which he said that a gun law is only constitutional if it's analogous to laws at the time of the founding in 1789 - in other words, if it's like a law back then. The problem with that, of course, is that women really had no legal protections from abusive spouses in 1789.

CHANG: Exactly.

TOTENBERG: So it's going to be interesting to see how the court deals with this case, since no serious court observer thinks that the court will actually invalidate the law.

CHANG: That is fascinating. OK. Well, also on the docket, I understand, is a series of cases that challenged the regulatory powers of various federal agencies from like the Securities and Exchange Commission to the National Marine Fisheries Service and, of course, the CFPB, the Consumer Financial Protection Bureau. Why so many of these federal regulatory cases?

TOTENBERG: Because we have a court today that's probably the most conservative in 90 years. As Supreme Court advocate Roman Martinez put it recently...

ROMAN MARTINEZ: Over the past few years, it's become very clear that the Supreme Court, and especially the conservative justices, have been laser focused on what they see as the excesses of the administrative state and how it's gone beyond the original constitutional plan and structure. And so we've seen a steady diet of cases in which the court has been sort of walking back aspects of agencies run amuck in various ways.

CHANG: All right. Well, beyond cases about agencies run amuck, I hear that there are also a bunch of social media cases, right?

TOTENBERG: That's correct too, a slew of these cases. One tests when public officials can block constituents from their private accounts, and another one tests state laws that make it illegal for social media companies to moderate or ban content from their sites. The Fifth Circuit upheld one of those bans in Texas, while the 11th Circuit struck down a similar Florida ban as a violation of the First Amendment. And I should also add, Ailsa, that all of this seems to be happening while the court is unwilling or unable to write an ethics code for itself, despite mounting pressure on it to do so.

CHANG: That is NPR legal affairs correspondent Nina Totenberg. Thank you, Nina.

TOTENBERG: Thanks, Ailsa. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.