AMAC Exclusive – By Aaron Flanigan
After two historic terms for the Supreme Court in 2021-2022 and 2022-2023 during which the Court’s conservative bloc overturned Roe v. Wade, declared that race-based college admissions are unconstitutional, and delivered several landmark victories for religious liberty, all eyes are on the Court once again as it prepares for the start of its new term on October 2.
To commemorate the start of the new term, the Heritage Foundation hosted a live discussion previewing some of the Court’s most high-profile upcoming cases at its campus in Washington, D.C.
The conversation kicked off with a discussion of Loper Bright Enterprises v. Raimondo, which many conservative legal experts consider to be the highest-profile case on the Court’s docket this term.
In Loper, the Court will decide whether to revisit the doctrine of so-called “Chevron deference,” first established in the 1984 case Chevron U.S.A., Inc. vs. Natural Resources Defense Council, Inc., which holds that when a law is vague or ambiguous, federal judges must defer to whatever interpretation of that law executive agencies put forward.
Conservatives have long held that Chevron deference was one of the great errors in the Court’s history, as it empowers unelected bureaucrats to essentially make law.
The Loper case concerns a series of family-owned fisheries who challenged a regulation enforced by the National Marine Fisheries Service, which, according to the Heritage Foundation, “required them not only to carry a person serving as a monitor on their fishing boats to ensure compliance with federal fishing regulations, but also to pay the salaries of the monitors they carry”—even though no such regulations are enumerated in statutory law.
The Court’s ruling in this case could yield significant consequences not only for the fishing industry, but also for the future of the administrative state and its ever-expanding presence in the daily lives of the American people. As former U.S. Solicitor General Paul Clement noted during the Heritage discussion, Loper could help to revert the executive and legislative branches to their constitutionally proscribed roles. “I don’t want to say that Chevron is responsible for all the ills of the modern administrative state—just most of them,” he said.
Another noteworthy case the Court is set to consider during its next term is Securities and Exchange Commission v. Jarkesy, in which the Court will decide whether actions taken by the Securities and Exchange Commission to enforce securities laws outside of district courts violate Americans’ Seventh Amendment right to a jury trial.
A third important case on the docket is Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited, in which the Court will determine whether the CFPB can constitutionally receive funding from the Federal Reserve instead of receiving congressionally appropriated money. Clement noted that if the Court rules against the CFPB in this case, one could make the case that “essentially everything the CFPB has done is constitutionally problematic.”
The Court will also consider two free speech cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed. Both of these cases consider whether public officials can block users on their social media accounts, and whether they are blocking individuals in their official or private capacities.
Another case mentioned during the Heritage discussion was Moore v. United States, in which the Court will decide whether the 16th Amendment permits Congress to tax Americans on income they technically earned but never received because it was re-invested back into a company. The case could have major implications for the U.S. tax code and potentially pave the way for a future “wealth tax.” Clement noted the case could be “one of the sleeper cases of the term.”
In United States v. Rahimi, the Court will weigh in on whether Americans under a restraining order for domestic violence can be constitutionally prohibited from possessing firearms. Noted Supreme Court advocate Lisa Blatt, who also participated in the Heritage discussion, said of the case, “From my way of thinking, there’s two ways of thinking about it: do you think of it as a right, or do you think of it as a privilege?” This question, Blatt indicated, will be at the heart of the Court’s ruling next summer.
Though this term is unlikely to generate the same degree of news-breaking headlines that the previous two terms have yielded, the Court’s docket is full of significant cases that could have far reaching implications for our legal system.
As we enter into the Court’s new term and await yet another summer of major decisions, Americans who care about the Constitution have every reason to be optimistic.
The Heritage Foundation event can be viewed here.
Aaron Flanigan is the pen name of a writer in Washington, D.C.