[ As rightwing supermajority starts third term, legal experts ask
how far it will go in reconfiguring the legal landscape of US]
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ABORTION, GUNS, DEMOCRACY: US RIGHTS AT STAKE AS SUPREME COURT TERM
BEGINS  
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Ed Pilkington
October 2, 2023
The Guardian
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_ As rightwing supermajority starts third term, legal experts ask how
far it will go in reconfiguring the legal landscape of US _

Experts say at stake this supreme court term is no less than ‘the
future of government as we know it’., Carol M. Highsmith Archive,
Library of Congress

 

The US supreme court
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Monday at the start of a new judicial term that has the potential to
catastrophically disrupt the functioning of government, expand the
assault on reproductive rights and unleash yet more gun violence on an
already reeling America.

When the nine justices convene on Monday morning it will mark the
start of the third full term in which the 6-3 rightwing supermajority
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by Donald Trump is in command. Explosive rulings delivered over the
past two terms have demonstrated the conservatives’ newfound muscle,
stripping millions of Americans of fundamental rights from abortion
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action
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Three significant cases before the court this term cut to the core of
the functioning of the US government itself. According to the co-hosts
of the Strict Scrutiny podcast
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less than “the future of government as we know it”.

On Tuesday the court will hear oral arguments in a case that poses the
greatest threat to consumer protections for decades. Stephen Vladeck,
an authority on constitutional law at the University of Texas law
school, said that although CFPB v CFSA
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it has the potential to “bring down much of the American financial
system”.

The case is the culmination of at least a decade of sustained effort
by groups to “declare war
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as Trump’s former chief strategist Steve Bannon put it, on the
administrative state. The focus is the Consumer Financial Protection
Bureau (CFPB), the government agency conceived by the Harvard law
professor and now US senator Elizabeth Warren that regulates banks,
credit unions, payday lenders and other financial entities.

Since its inception in 2011, the CFPB has been a target of the
far-right legal movement under the leadership of the co-chairman of
the Federalist Society Leonard Leo
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Seven amicus briefs supporting the CFPB challenge have been lodged
with the supreme court by groups associated with Leo.

The current assault on the CFPB has been channeled through the
Community Financial Services Association of America (CFSA) which
represents payday loan companies. “This is a well-coordinated
campaign by predatory lenders aligned with rightwing groups who want
to bring down a regulatory body standing up for everyday Americans,”
said Liz Zelnick of Accountable.US, a nonpartisan anti-corruption
watchdog.

A ruling from the fifth circuit
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year came up with a novel theory that had never before been espoused
by any other court. It found that the way the CFPB is funded, not
directly through Congress but via the federal reserve, violates the
appropriations clause of the constitution.

The argument, should it be affirmed by the supreme court, would render
the CFPB itself unconstitutional and strip it of all authority. The
implications go much further – several other critical government
programs, including social security and Medicare, are similarly funded
outside congressional appropriations.

“Where does this end, and what might be next?” asked Joe Gaeta of
the national legal organization Democracy Forward. “There’s no
logical stopping point for how this funding argument could be used in
other contexts.”

Two other cases could have significant implications for the workings
of government. Loper Bright Enterprises v Raimondo
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a 40-year precedent set by the supreme court itself in Chevron that
gives federal agencies the power to regulate key areas of public life
including the environment and labor rights.

[nine men and women in robes against a red curtain]

The nine supreme court justices in 2022. The 2023-24 term stands out
for the number of contentious cases which originate from the most
radical rightwing judicial panel in the nation, the fifth circuit
court of appeals. Photograph: Fred Schilling/Collection of the
Supreme Court/AFP/Getty Images

The Securities and Exchange Commission
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also in the cross hairs in a case that would undermine the power of
federal agencies to enforce their own policies in-house without
recourse to jury trials or congressional legislation.

The new 2023-24 term stands out not only because of the extreme
rightwing measures the justices are considering, but also because of
where those cases originated. Many of the most contentious issues,
spanning from attacks on federal government regulators to abortion and
gun rights, have bubbled up from the fifth circuit court of appeals
– the most radical rightwing judicial panel in the nation.

The arguments generated by the fifth circuit are testing the legal
boundaries of US constitutional law. In turn, they are putting the
supreme court’s new supermajority of conservatives justices to the
test: just how far are they prepared to go in reconfiguring the legal
landscape of America?

“This term is really a referendum on whether the supreme court is
willing to endorse the most reactionary impulses of certain lower
federal courts, especially the fifth circuit,” Vladeck said.

The fifth circuit covers the deep south states of Texas, Louisiana and
Mississippi, and as such has always had a conservative bent. But the
court took a drastic lurch to the right under the presidency of Trump,
who appointed six of its 17 active judges.

Three of the other huge cases that are likely to define the upcoming
supreme court term have also come from the fifth circuit. In August,
the appeals court sharply curtailed
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availability of the abortion pill mifepristone in an order that would
prohibit distribution of the medication online and by mail.

The drug, which is used in more than half of US abortions, remains on
the market while the appeals process continues. It is widely expected
that the supreme court will take the case and make a final ruling.

In June 2022 the supermajority moved to loosen
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already lax gun laws. Now it has agreed to take a major case, United
States v Rahimi
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which considers whether second amendment rights allow guns to be owned
even by people under restraining orders for domestic violence.

In February the fifth circuit
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in an opinion written by a Trump appointee, struck down the ban on
people under such restraining orders bearing firearms. The court found
that Zackey Rahimi’s gun rights were violated when he was sentenced
to six years in prison for possession of several firearms while under
a restraining order.

The appeal court’s decision was an outlier considering Rahimi’s
track record. He was put under the restraining order because he
allegedly assaulted his girlfriend and threatened to shoot her, having
also been involved in five shootings in Texas.

Almost half of all women murdered in the US are the victims of
current or former partners
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and of those partner killings more than half are committed using
firearms.

The fingerprints of the fifth circuit are also to be found on another
big case before the supreme court regarding misinformation on social
media platforms. Earlier this month a three-judge panel of the court
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an injunction barring contact between the Biden administration and
social media companies.

The administration had engaged in a joint attempt with the platforms
to counter misinformation around elections, the Covid pandemic and
other matters of public interest. The fifth circuit, however, ruled
that the effort was a breach of the first amendment right to free
speech.

All these highly contentious cases arrive at the supreme court at a
time when public approval in the court is at an historic low. The
latest poll from Gallup in August found that a dismal 40% approved
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the way the justices operated.

Over the summer there has been an almost constant drumbeat of ethics
scandals involving some of the justices, especially the rightwing
stalwarts Clarence Thomas and Samuel Alito. In the latest blockbuster
from ProPublica
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Thomas was revealed to have participated in donor events held by the
rightwing alliance the Koch network.

So far, the justices have proved to be resistant to mounting demands
for them to adopt a code of ethics – a form of accountability
required for all other judges. But Renee Knake Jefferson, a law
professor specializing in ethics at the University of Houston, said
she was “cautiously optimistic” that a resolution was getting
closer.

“Several justices have said that they have been talking about the
ethics code they might adopt, and that they are trying to come to
consensus,” she said.

_Ed Pilkington is chief reporter for Guardian US. He is the author of
Beyond the Mother Country. Twitter @edpilkington
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