The Supreme Court will grapple with a sizable number of politically significant cases as the presidential election season heats up over the next few months, touching on abortion rights, gun control and the fate of criminal charges against the leading Republican candidate, Donald Trump.
The choices justices make this term could ripple through the election and the nation’s politics, experts said. That’s not just in terms of its decisions, but whether they take up a case, or the timing of their actions, could have immediate consequences.
“I can’t remember a time when there were so many hot-button and significant issues pending before the court right before an election,” Texas Republican Sen. John Cornyn said. “This seems unique in that regard.”
The court’s docket includes a case about whether Idaho’s six-week abortion ban should extend to emergency rooms and another about access to medication abortion nationwide. There are also looming decisions on whether the government can ban an attachment that makes a gun fire as rapidly as an automatic weapon and how much leeway government agencies get for regulations when a law is unclear.
And there are several cases that could determine whether Trump can be tried on federal charges tied to an attempt to overturn the 2020 election. On Thursday, the justices will hear oral arguments about whether that attempt is an insurrection that allows states to keep him from appearing on primary ballots.
This will be the first presidential election season where the current conservative-controlled Supreme Court will issue decisions, as the justices already are more in the public spotlight because of decisions that sided with Republican policy goals, such as wiping out the constitutional right to abortion.
They are expected to issue rulings before the conclusion of the term at the end of June. At the same time, the court has also seen a dip in public approval and had numerous reports about alleged ethical lapses among its members.
Since 2020, when Justice Amy Coney Barrett took her seat and made it a 6-3 conservative tilt, the court has overturned the constitutional right to an abortion in Roe v. Wade, expanded gun rights and more. That raises the stakes for the court in the eyes of Sen. Sheldon Whitehouse, D-R.I., and other court watchers who hope to pass changes to the institution.
“I think there’s actually some danger for the court in all of this. And there’s also some opportunity to redeem itself a little bit or right itself,” Whitehouse said.
Anna Greenberg, a senior partner at the GQR polling firm, said that as abortion issues continue to return to the court, it remains top of mind for voters. She said that while the two cases this term — challenging an exception to a six-week abortion ban in Idaho and the availability of medication abortion — are not as big as the reversal of Roe v. Wade, they will come out amid news of abortion restrictions in other states.
“It is already there in voters’ minds and it is additive, and the stakes get higher and higher,” Greenberg said.
In some cases, the justices agreed to decide the issue, such as a challenge to the legality of restrictions on so-called bump stocks that can allow a gun to effectively fire automatically. Other cases have forced the justices to consider the issues, such as a Colorado court’s decision to disqualify Trump from the ballot.
Rep. Darrell Issa, R-Calif., who heads the subcommittee with oversight of the federal courts, said the justices know what they’re doing and will likely issue nuanced opinions that take the law seriously on issues ranging from abortion to the ballot question. He and others put the blame for any fallout on outside actors who have forced controversial issues in front of the justices.
“I think they want to cry that the Supreme Court’s politicized. They’ve done things that they knew would get to the high court, and that they then could say it’s politicized. So they have no one to blame but themselves,” Issa said.
Cornyn, a member of the Senate Judiciary Committee, said he trusted the justices to handle the issues that have been forced in front of them.
“I trust the members of that court will do their duty and try to disregard politics and results-oriented judging, but I’m sure it will be subject to criticism depending on who loses,” Cornyn said.
Trump cases
Three cases surrounding the federal charges tied to Trump’s effort to overturn the 2020 election could end up on the court’s docket this term, or are already there.
Greenberg pointed out that the decisions this term could mean both that a former president can face criminal trial and set up the spectacle of Trump facing a jury amid the campaign — “a dream come true” for her as a Democratic strategist.
“They have unbelievable power to decide whether or not Trump can be convicted of a crime,” Greenberg said.
Perhaps the most prominent is Trump’s broad assertion of presidential immunity to any criminal charges, which is currently pending before the U.S. Court of Appeals for the District of Columbia Circuit. However those judges rule, the case will likely end up before the Supreme Court.
At oral arguments earlier this month, Trump’s attorneys said they would likely appeal an adverse ruling, and special counsel John L. “Jack” Smith has already unsuccessfully asked the justices to intervene in the case to keep a March trial date on track.
Another case concerns a gag order from District Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia restricting Trump’s ability to discuss the case against him. Trump, who spent months campaigning against the prosecution and disparaging witnesses in the case, argued it trampled on his free speech rights as a presidential candidate.
Earlier this month the D.C. Circuit denied Trump’s effort to reconsider that gag order, setting up yet another possible Supreme Court bout.
Separately, the justices will decide a challenge to a statute the Justice Department used in more than 300 cases tied to the Jan. 6, 2021, attack on the Capitol. The circumstances for the defendant in that case, Joseph Fischer, are different from those involving the former president, but both invoke the same statute.
How the justices handle those three cases could have a significant impact on whether Trump faces trial before the presidential election and what his campaign may look like if he does, experts said.
Greenberg said the public has already gotten a peek at how that might play out as Trump faced two civil suits in New York — which have featured wide-ranging news conferences just outside the courtroom and a state judge fining Trump for violating a gag order.
“A trial in itself would have a big impact on the election by just creating a different dynamic for voters,” Greenberg said.
Congress
This term’s decisions may have a more muted impact on Congress. Democrats have increasingly pushed for changes to the court through legislation to expand the court, install term limits or impose an ethics code.
Last year the Senate Judiciary Committee approved a bill to place an enforceable ethics code on the court on a party-line vote. But that effort and others have run into near-uniform Republican opposition, which is not expected to change anytime soon.
Rep. Dan Goldman, D-N.Y., who led a push for the court to adopt its own independent ethics counsel, said he didn’t see this term’s decisions changing the status quo in Congress.
“It’s unclear how much any of these rulings impact Republicans in Congress because of their own willingness to put their own personal interests over the interests of the American people,” Goldman said.
Republicans argue the greater danger to the court is politicization by outside actors like Democrat-controlled states kicking Trump off the ballot or the DOJ bringing charges against Trump in the first place.
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