WASHINGTON — The Supreme Court returns from its summer recess on Monday with a new slate of cases to rule on, but one issue that’s still not on the agenda: the presidential election.
The court, which has a 6-3 conservative majority including three justices appointed by Republican nominee Donald Trump, is likely to be asked to hear the cases before and potentially after the election. This happens during every election.
But will the resulting controversies be blockbusters like the 2000 Bush v. Gore case that settled in George W. Bush’s favor, or duds like the various attempts to overturn Joe Biden’s victory in 2020.
Unlike lower courts, judges decide which cases to hear and, in most cases, decline to intervene, as in Trump’s 2020 efforts.
“Something is going to happen,” said Nate Persily, an election expert at Stanford Law School and a contributor to NBC News. “I don’t think they will consider the case until the elections, but there will be attempts to attract them.”
The Supreme Court’s new nine-month term officially begins Monday, when the justices appear in the courtroom to hear oral arguments. It will be the first time all nine justices have appeared together in public since the previous term ended in early July with a series of controversial decisions, including one that delivered Trump. a big win In a federal criminal case related to an attempt to overturn the results of the 2020 election.
Voting law experts say it’s too early to say whether any potential election case could lead to Supreme Court intervention or be decisive, as it depends on whether the legal question — whether about contested ballots or another issue — is in a swing state. and whether the vote is close enough to matter.
Main cases in the Supreme Court:
- United States v. Skrmetti — Challenge state laws that prohibit gender-affirming care for transgender teens.
- Garland v. VanDerStock — Can the federal government ban “imaginary gun” kits?
- Free Speech Coalition v. Paxton — Free speech challenge to Texas law requiring age verification to access adult content online.
- Glossip v. Oklahoma — The death penalty case in which Oklahoma upheld the conviction of inmate Richard Glossip is moot.
There are already lawsuits on both the Democratic and Republican side, including in swing states. For example, the ongoing fight in Pennsylvania is over whether mail-in ballots can’t be counted if voters don’t enter the correct dates. In another potential key state, Georgia, a lawsuit is pending over an attempt by Republicans to purge voters in the Democratic stronghold of DeKalb County.
Roe v. The stakes could be high for the court, which continues to face questions about its legality after the 2022 decision that overturned the landmark abortion-rights decision in Wade. Allegations of ethical lapses directed at the justices, particularly conservatives Clarence Thomas and Samuel Alito, have contributed to the sense of an institution under siege.
When the Supreme Court ruled in Bush v. Gore, his reputation took a hit, but quickly rebounded. There is no guarantee that a similar verdict will be received in the same way this time.
“If people add the Supreme Court to the list of what makes the 2024 election a disaster, it could damage the legitimacy of the court more than Bush v. Gore,” NBC election law expert Franita Tolson said. News writer at the University of Southern California School of Law.
There’s reason to think there’s less potential for messy legal action this election than in 2020, when some states angered Republicans by making late changes to election rules because of the Covid-19 pandemic.
Republicans challenged the changes, but the Supreme Court did not hear any cases on the issue at the time. The idea that Democratic state officials are playing fast and loose with election rules in key states has been one of the cornerstones of Trump’s “big lie” about stealing the election.
Related claims have been included in some post-election lawsuits filed, including one in Texas filed with the Supreme Court seeking to overturn results in other states. The court quickly dismissed the claim.
But there is no pandemic emergency this year, and so these high-profile legal battles are off the table in this election.
“I think you’ve seen a lot of states take steps to avoid these situations again, and hopefully that will avoid the kind of last-minute panic that we’re seeing in 2020,” said Zack Smith, a Trump attorney at the Heritage Foundation.
Over the past few weeks, judges have already settled several pre-election disputes. They rejected the attempts of an independent candidate Robert F. Kennedy Jr. and the Green Party candidate Jill Stein to appear in the bulletins in the states of New York and Nevada, respectively, and is partially given Republicans’ demand to introduce a proof of citizenship requirement for voters in Arizona.
The Supreme Court’s argument calendar has relatively few high-profile cases to date. Highlights include a demonstration on state bans on gender-affirming care for transgender teenagers.
Some court observers have even speculated that the justices have deliberately delayed scheduling a large number of cases for oral argument over the next few months, so they have ample opportunity to resolve any late-election disputes.
But liberal Justice Elena Kagan pushed back against the idea of an election gap in the schedule when asked about the court’s light workload during a Sept. 9 public appearance at New York University Law School.
“I don’t think so,” he said.