Editorial Opinion: This article reflects the opinions of the author and not necessarily the views of the American Bar Association, the ABA Journal magazine, or NAPCO. Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.
I do not recall ever facing a new year with such a sense of trepidation and even fear of what to expect. The presidential election campaign of 2024 promises to be unlike any we have seen in American history, and it seems inevitable that the U.S. Supreme Court will play a large role. And the docket for the current term is filled with major issues about controversial matters, such as abortion, administrative law, gun rights and the First Amendment and social media.
The 2024 presidential election
Even with the election 10 months away, it is already clear that the Supreme Court is going to be involved. On Dec. 19, the Colorado Supreme Court, in a 4-3 decision, ruled that Donald Trump was disqualified from being on the Republican primary ballot for president because of Section 3 of the 14th Amendment. This provision precludes anyone who has previously taken an oath of office from holding public office if they have “engaged in insurrection or rebellion” against the United States. On Dec. 28, the Secretary of State of Maine ruled that Trump was disqualified from being on the ballot in that state. On the other hand, the Minnesota Supreme Court came to an opposite conclusion.
It is important for the United States Supreme Court to take the Colorado case and decide quickly whether Trump is disqualified from being on the ballot. It is urgent that this issue be resolved early and for the entire country before a significant number of primaries. The nightmare would be for the issue to come to the court only after Trump had sewn up the nomination or even worse, after he had been selected as president by the Electoral College.
But this is not the only case coming to the court with implications for the election. Trump faces criminal prosecution in federal court in Washington, D.C., for his efforts to undermine the 2020 election. Trump has claimed that he has absolute immunity from prosecution because it involves actions he took during the time he was president. U.S. District Judge Tanya Chutkan ruled against Trump’s claim of immunity, concluding that his actions were not in carrying out the duties of the presidency. Special Counsel Jack Smith asked the Supreme Court to grant review before the matter was heard by the D.C. Circuit. But on Dec. 22, the court, without opinion, denied this request. The D.C. Circuit will hear oral arguments on Jan. 9, and whatever it decides, it is likely there will be review in the Supreme Court. The crucial question will be whether the court grants expedited review so that the criminal trial can proceed before the November 2024 election.
The court granted review in Fischer v. United States, which involves whether a federal statute, 18 U.S.C. §1512(c), which prohibits obstruction of congressional inquiries and investigations, includes acts unrelated to congressional investigations. Although not the statute used in the Trump prosecution, it is the basis for most of the cases against those involved in the Jan. 6 assault on the Capitol.
And, of course, there likely will be many other suits during the election campaign and perhaps after the November election.
The Supreme Court has granted review in its first case concerning abortion since overruling Roe v. Wade in 2022. In Food and Drug Administration v. Alliance for Hippocratic Medicine, which has not yet been scheduled for oral arguments, the court will review a 5th Circuit decision that overturned actions of the FDA which made it easier to prescribe mifepristone, a drug used to induce abortions. Although the 5th Circuit overruled a district court decision that would have taken mifepristone entirely off the market, it found that the FDA acted in an arbitrary and capricious manner when it made it easier in 2016 and 2021 to administer the drug.
In 2016, the FDA said that the drug could be used until the 10th week of pregnancy rather than just to the seventh week, reduced the number of required in-person clinical visits from three to one and allowed non-physician health care providers licensed under state law to prescribe and dispense drugs—such as nurse practitioners—to prescribe and dispense mifepristone. It also reduced the dosage from 600 mg to 200 mg. In 2021, the FDA eliminated the requirement that mifepristone be obtained in person; it was the only drug where there was such a requirement.
It is quite possible the court will not reach the question of the FDA’s authority, instead deciding the case on standing grounds. One of the questions presented is whether the doctors who oppose abortion are injured by the easier availability of mifepristone.
More than half of all abortions in the United States are medically induced using mifepristone. In states that have greatly restricted abortions, including some that have prohibited virtually all abortions since the court overruled Roe v. Wade, medically induced abortions have taken on even greater importance.
This will be an important term for the Roberts court and the administrative state. On Nov. 29, the court heard oral arguments in Securities and Exchange Commission v. Jarkesy, that poses several important issues: Does it violate the Seventh Amendment right to a jury trial for a federal agency to impose monetary penalties? Is it an impermissible delegation of powers for Congress to let the agency choose whether to proceed in federal court or in agency proceedings? Is it a violation of separation of powers to have administrative law judges with protection from removal when there are limits on removal of the top agency officials?
On Jan. 17, the court will hear two cases—Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce—about whether it should end Chevron deference, the principle that courts should defer to federal agencies when they interpret the statutes they operate under. These are much anticipated cases about whether the court will overrule Chevron v. Natural Resources Defense Council (1984), which held that federal courts should give deference to agencies when they are carrying out their authority under federal statutes.
First Amendment and social media
Despite the enormous importance of the internet and social media for freedom of speech, there have been relatively few Supreme Court cases about it. That will change this term, as there are three sets of cases addressing the issue.
On Oct. 31, the court heard oral arguments in O’Connor-Ratcliff v. Garnier and Lindke v. Freed. Both involve the question of whether it violates the First Amendment for public officials, with private social media accounts where government business is discussed, to bar critics from access.
In Moody v. NetChoice and NetChoice v. Paxton, which have not yet been set for oral arguments, the court will decide the constitutionality of state laws that prohibit internet and social media platforms from engaging in content moderation. The cases involve laws in Florida and Texas respectively. The 11th Circuit struck down the Florida law as violating the First Amendment, while the 5th Circuit upheld the Texas law. The cases have huge significance in terms of the ability of state governments to regulate the internet.
Finally, there are two cases, also not yet set for oral argument, that involve when the speech of government officials is so coercive as to infringe the First Amendment. In Murthy v. Missouri, the 5th Circuit found that the Biden administration violated the First Amendment by encouraging and pressuring social media companies to remove false speech. In National Rifle Association v. Vullo, the court will consider whether Maria Vullo, then the head of New York’s Department of Financial Services, violated the First Amendment when she urged banks and insurance companies to consider the “reputational risks” from doing business with gun-rights groups like the National Rifle Association. In 1963, in Bantam Books v. Sullivan, the court found that threats of prosecution by government officials were coercion that violated the First Amendment. The court has not addressed this since, but it will do so in these two cases.
On Nov. 7, the court heard oral arguments in United States v. Rahimi, which involves the constitutionality of a federal statute making it a crime for a person under a restraining order in a domestic violence case from having a firearm. The 5th Circuit declared this unconstitutional because such restrictions did not exist in 1791 when the Second Amendment was adopted. Rahimi provides the court the opportunity to clarify the test that it announced in 2022 in New York State Rifle and Pistol Association v. Bruen. The decision likely will have great ramifications for many other federal, state and local gun regulations.
In just the last two years, the court has overruled Roe v. Wade, dramatically expanded gun rights, significantly changed the law concerning the religion clauses of the First Amendment, imposed a substantial new limit on administrative agencies (the major questions doctrine), effectively overruled 45 years of precedents allowing universities to engage in affirmative action, and for the first time, found a First Amendment right for businesses to violate anti-discrimination laws when they are engaged in expressive activity. There is every reason to believe that 2024 will be another momentous year for the Supreme Court.