October 6, 2023

The Supreme Court's New Term Is Underway

Russ Feingold President

This week, the Supreme Court kickstarted its 2023-24 term. We should be able to look to our highest court to protect our fundamental freedoms and to help realize the promise of equal protection under the law. Instead, after being packed by the Right, the Court’s conservative supermajority has repeatedly disregarded precedent and judicial restraint, resulting in the Roberts Court’s current legitimacy crisis. From Shelby to Dobbs to Bruen to SFFA, the Roberts Court has weakened voter protections, eroded our fundamental freedoms, undermined public health and safety, and hampered efforts to advance racial justice. Against this backdrop, we brace for this new term and the combination of cases that could see the conservative supermajority further distort the Court’s role for partisan gain.

This term will see the Court take up multiple cases on two big topics: administrative law and the First Amendment. The combination of administrative law cases has the potential to throttle the federal government’s ability to solve America’s problems. The First Amendment cases could define the parameters of twenty-first century online speech. In addition to these, there are consequential cases on redistricting, gun violence prevention, and workers’ rights.

Already this week, we saw the Court take up two potentially mammoth cases. The first, Consumer Financial Protection Bureau v. Community Financial Services Association of America, is a direct challenge to the funding mechanism and therefore the viability of the Consumer Financial Protection Bureau (CFPB). This is the agency that was set up in the wake of the 2008 financial crisis to protect consumers and counter the power of Big Banks. Over a decade later, our financial and housing markets are now heavily influenced by CFPB rules and regulations. There is a litany of special interests who wish that weren’t so, which is how we get to this week’s case.

Payday lenders are challenging how the CFPB is funded and are asking the Court to set aside a consumer-protection rule that limits the number of times lenders may attempt to withdraw payments from a consumer’s account. But this case has much broader implications. This conservative Supreme Court, which has multiple justices with well-known opposition to the size and authority of federal agencies, could effectively neutralize the CFPB if it rules in Respondents’ favor.

Respondents’ arguments, however, run counter to the history and text of the Constitution. During Tuesday’s oral argument, Justice Kagan summed this up well by telling Respondents’ counsel, “You’re just flying in the face of 250 years of history” in claiming that the Appropriations Clause of the Constitution requires Congress to pass annual line-item appropriations to fund federal agencies. The question is whether the Court will heed that history over the supermajority’s partisan agenda.

Also this week, the Court took up this term’s defining case on disability rights. The case challenges the standing of tester plaintiffs who file lawsuits against places of public accommodation for failing to comply with the Americans with Disabilities Act (ADA). Specifically, the case asks whether a plaintiff can pursue a lawsuit against a hotel that fails to provide accessibility information on its website when she does not have plans to stay there. Tester plaintiffs are pivotal to enforcing several civil rights laws, and their standing has been recognized by the Supreme Court in the past. However, we know this Court is more than happy to ignore precedent when it suits its agenda. Much of the oral argument on Wednesday focused on whether the Court should even reach the question of the plaintiff’s standing or instead decide the case on mootness, now that the tester plaintiff has dropped her lawsuit and the defendant no longer owns the hotel at issue. Depending on where the Court ultimately lands, this case could severely limit access to justice for people with disabilities.

There are ways for the Court to decide these two cases without causing more damage to our rights and freedoms. That said, we must remain vigilant. After the Court’s last term, there were some who claimed the Court had “moderated” itself. We know differently. This Court was not packed to be moderate. It was packed to be partisan and to push American jurisprudence to the Right.

As we track this new term and keep ACS members informed about the biggest cases and their implications, we will keep advocating for structural and non-structural Supreme Court reform. And I urge you not to get discouraged if comprehensive reform doesn’t happen imminently. We have fundamentally changed the national narrative on the Supreme Court. The narrative now accurately reflects that the Court is in a legitimacy crisis, and public support for reform is steadily increasing. And, justices are aware of both of these developments. Reform means more than Justice Thomas recusing himself in a single case, but his single recusal from the appeal brought by John Eastman this week was proof that Supreme Court justices are not immune to public pressure.

For more details and analysis of this Court’s new term, waste no time in checking out this week’s Broken Law podcast episode. Our team discusses the biggest trends and cases of the term and whether there is any hope for cautious, select optimism as we look to the months ahead.