Supreme Court opens new, likely contentious term with Texas cases on the line

The justices will likely decide on cases involving free speech, immigration and voting rights

Update: 11:31 a.m. with dates for the December argument calendar.

WASHINGTON — After a controversial U.S. Supreme Court term that featured a milestone decision to reverse Roe vs. Wade, justices begin oral arguments in its new term Monday amid historically low public trust.

Upcoming cases could yield landmark decisions on First Amendment protections for social media platforms, voting rights and more.

One of the most anticipated hearings in the upcoming session is a Big Tech, First Amendment case that hasn’t even made it to the docket yet. On Sept. 21, Florida’s attorney general asked the Supreme Court to decide if states have the right to regulate social media companies and how they moderate content.

This case could directly impact state laws in Texas and Florida that prevent social media platforms from blocking certain political speech. The Supreme Court is being asked to weigh in after conflicting rulings in federal appeals courts.

The Texas law passed last year also is being contested in federal court. The 5th Circuit upheld a Texas law signed by Gov. Greg Abbott that bars social media companies from removing posts based on political affiliation or viewpoint.

The judges sided with Texas’ finding that social media companies qualify as “common carriers” that are subject to government regulation, like phone companies. The judges also argued the First Amendment does not allow social media companies to regulate or block speech.

“The implications of the platforms’ argument are staggering,” Circuit Judge Andrew Oldham wrote in the decision. “On the platforms’ view, email providers, mobile phone companies and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate or business.”

On the other side, the 11th Circuit Court of Appeals blocked similar social media regulations passed in Florida, arguing they infringed on the companies’ First Amendment rights.

Republican leaders including Abbott and Texas Attorney General Ken Paxton have argued social media companies tend to eliminate conservative voices and ideas, while social media companies argue the Texas and Florida laws would prevent them from stopping the spread of harmful content and misinformation.

“The Texas law compels private enterprises to distribute dangerous content ranging from foreign propaganda to terrorist incitement, and places Americans at risk,” Matt Schruers, president of the Computer & Communications Industry Association told The Washington Post after the 5th Circuit decision.

Paxton celebrated the 5th Circuit decision as a conservative victory.

“Big Tech’s reign of endless censorship and their suppression of conservative viewpoints is coming to an end,” Paxton said in a prepared statement. “These massive corporate entities cannot continue to go unchecked as they silence the voices of millions of Americans.”

Earlier in the year, the Supreme Court responded to an emergency request from tech industry trade groups and stopped the Texas law from going into effect throughout court proceedings.

The new term opens in wake of disarray and controversy in its last term, largely over a leak of the landmark 1973 abortion rights ruling in Roe, a case that originated in Dallas County.

In a new Gallup Poll released Thursday, a record low 47% of Americans say they have at least a fair amount of trust in the judicial branch, headed by the Supreme Court. That’s down 20 percentage points from two years ago. Historically, the high court has enjoyed higher approval ratings than the other branches of government, but a record high 58% of Americans in the new poll said they disapprove of the job it is doing.

David Cole, the legal director of the ACLU, expects another term with potentially bold action on divisive cases, telling Roll Call that the slate of cases the court is choosing to hear “shows that the court is not likely to act modestly, or at least is not inclined to act modestly” on hot-button issues like race, elections and free speech.

The court’s conservative tilt is likely to continue, Irv Gornstein, executive director of the Georgetown Law School’s Supreme Court Institute, told Roll Call, a Capitol Hill news organization. “We’ve known for some time that the court was headed in a rightward direction, with the only questions being how far and how fast,” he said last week.

“There’s no reason to think this coming term, or any term in the foreseeable future, will be any different on things that matter most,” Gornstein said. “Get ready for a lot of 6-to-3s.”

Voting rights

The Supreme Court has two cases on the docket that may impact voting rights and 2024. One case coming from North Carolina asks the court to remove the ability of state courts to review election laws under their constitutions, while another out of Alabama challenges congressional redistricting.

The cases focus heavily on gerrymandering and the ability for state legislatures to redefine voting rules.

These cases could have major implications for Texas, which implemented a new elections law in 2021 that largely limits when and how voters cast their ballots.

The Alabama case — Merrill vs. Milligan — will be heard Tuesday. The North Carolina case — Moore v. Harper — has been scheduled for Dec. 7.

Environment, immigration back on docket

To start the term, the Supreme Court will hear oral arguments in Sackett vs. Environmental Protection Agency, a case that could challenge the 1972 Clean Water Act that protects U.S. waterways from pollution.

The plaintiffs hope justices will limit the definition of “waters of the United States.”

The case comes months after the Supreme Court ruled the Environmental Protection Agency overstepped its authority in the Clean Air Act, and sharply reduced its ability to reduce emissions.

Texas Republican leaders have long been critical of federal environmental regulations and enforcement, saying they hamper the oil and gas industry and stem economic growth. Most recently, Texas Comptroller Glenn Hegar lashed out at a proposal from the EPA to classify the Permian Basin as out of compliance with federal air quality standards — a suggestion he called “tone deaf” and “job killing.”

Other anticipated cases involve challenges to the inclusion of race as a factor in college admissions.

Additionally, this session will also bring another challenge to the federal government’s ability to regulate immigration policy. Justices have agreed to hear a challenge from Texas and Louisiana over President Joe Biden administration’s updated immigration enforcement regulation.

In 2021, the Biden administration issued a memorandum on immigration enforcement instructing immigration officials to prioritize apprehension and deportation of terrorism suspects, people who have committed serious crimes and those caught at the border. Texas and Louisiana have argued the policy gives the federal government too much oversight and is costly for states.

The oral arguments for the case, United States vs. Texas, are scheduled for Nov. 29.

In the last Supreme Court term, justices allowed the Biden administration to end the Trump-era “remain in Mexico” policy for asylum seekers.

Cases with Texas ties

Some other cases in the new session either originated from Texas or have significant ties to the state.

One is a free-speech case — 303 Creative LLC vs. Elenis — that is scheduled for Dec. 5. Sen. Ted Cruz led other lawmakers in filing an amicus brief in support of a graphic designer who claims a Colorado law violates her freedom of speech by not allowing her to advertise her refusal to design for same-sex marriages based on religious beliefs.

The case is a peremptory challenge, meaning a decision could have wider effects in negating anti-discriminatory policies than similar cases like Masterpiece Cakeshop, Ltd. vs. Colorado Civil Rights Commission.

Another case, set for Oct. 11, considers an appeal from Texas inmate Rodney Reed, who was sentenced to death over 20 years ago for the 1996 murder and rape of Stacey Stites in Bastrop County. The case — Reed vs. Goertz — will decide when prisoners can request DNA testing of crime-scene evidence after a conviction.

On Nov. 9, the Supreme Court will hear arguments in Haaland vs. Brackeen, a case that will determine the constitutionality of the Indian Child Welfare Act, a federal law intended to prevent the separation of Native American families and that creates a preference that Native American children removed from their parents be placed with extended family or in Native American foster homes.

The case has been consolidated with three other cases that all stem from the efforts of a white Fort Worth couple to adopt a Navajo child they had fostered.

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