October 04 Supreme Court’s new term takes on ghost guns, porn access and trans care bans The justice

The U.S. Supreme Court, at once a major flashpoint in the 2024 campaign and potential presidential election referee, gavels open a new term on Monday with the nation deeply divided over its recent rulings and skeptical of the justices’ ethics and impartiality.

The court’s fall docket includes high-profile disputes over age-verification to access pornography online, the marketing of flavored e-cigarettes to kids, regulation of untraceable “ghost guns,” and EPA limits on sewage dumped into the Pacific Ocean.

A challenge to Tennessee’s ban on gender-affirming care for transgender minors is considered one of the most significant cases of the term, so far. The justices have been asked to decide whether the medical restriction, adopted in more than 20 states, discriminates on the basis of sex in violation of the Constitution’s Equal Protection clause.

“This is one of the most significant LGBTQ cases to ever reach the Supreme Court,” said Chase Strangio, a staff attorney with the American Civil Liberties Union, who is expected to argue before the court. “This case will have a huge impact on the future of litigation on behalf of LGBTQ people.

The court could also be forced to weigh in on last-minute appeals over election rules, including changes to how ballots are cast and counted and, potentially, how contested election results are certified. It has already issued decisions allowing Arizona to require proof of citizenship for state voter registration and rejecting Green Party presidential candidate Jill Stein’s bid to appear on the Nevada ballot.

The six conservative and three liberal justices return to the bench for oral arguments after delivering an extraordinary round of socially and politically-consequential decisions in June.

“Depending on your point of view, last term was either the term that the court saved the presidency or the term that the court let the most dangerous man in the history of American politics off the hook,” said Irv Gornstein, executive director of the Supreme Court institute at Georgetown Law.

The court’s blockbuster ruling on presidential immunity for former President Donald Trump and a pair of decisions sharply curtailing the power of federal agencies, among others, galvanized partisan interests around the court and ignited fierce public debate even as the full scope and impact of the judgments remains unclear.

Just 43% of Americans say they approve of the court’s work, a near-record low, according to Gallup. A successive series of reported alleged ethics violations by several justices, their resistance to independent enforcement of a new ethics code, and extraordinary leaks to the media of internal justice communications has only complicated the public’s view.

Something does feel broken,” said Lisa Blatt, a veteran high court litigator, of the internal workings of the court. “Some of [the justices] up there seem visibly frustrated.”

With less than a month before the general election, the justices may be eager to maintain a lower profile, some court analysts say, and their lighter-than-normal case load might be a key indicator.

“This term is, at least at the moment, a much quieter term than we’ve had in the last couple of years,” said outgoing ACLU legal director David Cole. “But that could change if the presidential election is close and disputed.”

Here’s a look at five key cases to watch:

Transgender kids: U.S. v Skrmetti

Key question: Does Tennessee’s ban on gender-affirming medical treatments for transgender minors violate the equal protection clause of the 14th Amendment?

Tennessee and 25 other states have passed bans on medical treatments for minors seeking to identify with, or live as, a gender identity inconsistent with his or her sex at birth. The Supreme Court is asked to decide whether those bans are constitutional.

While leading American medical organizations have endorsed the use of puberty blockers, hormone therapy and, in some cases, surgeries to improve the health and wellbeing of young people diagnosed with gender dysphoria, some medical groups and conservative lawmakers consider the treatments inappropriate and dangerous.

LGBTQ advocates and families of transgender minors allege Tennessee’s ban prohibits an otherwise legal and approved treatment for some people illegal for others purely on the basis of their sex. They claim it violates the 14th Amendment’s equal protection clause and overrides parental authority.

The state denies discrimination, insisting it has the right to regulate medical treatments and access to certain types of procedures, independent of a patient’s sex. The Sixth Circuit U.S. Court of Appeals sided with Tennessee.

This case marks the first time the nation’s highest court will take up the merits of legislation targeting transgender Americans. A decision could most directly impact the more than 300,000 high school-aged transgender youth in the U.S., according to the Williams Institute.

We expect the Supreme Court is going to say whether governments have to treat trans people with equality, whether it’s okay for them to single us out for mistreatment, specifically in the realm of health, but with implications beyond,” said Gabriel Arkles, senior legal counsel with Advocates for Trans Equality.

The case has not yet been set for oral argument; a decision is expected by the end of June 2025.

Ghost guns: Garland v VanDerStok

Key question: Can the government require purchase-age limits, background checks, serialization and registration for self-assemble gun kits widely available online?

Facing an explosion of crimes and deadly accidents involving self-assembled and untraceable weapons known as ghost guns, the Biden Administration issued a new regulation in 2022 classifying online parts kits and gun templates as “firearms” under federal law.

The Supreme Court will now decide whether that regulation can stand, forcing manufacturers and retailers to comply with licensing, background check, record-keeping and serialization requirements for gun kits, parts, and blueprints as with any other fully-assembled firearm.

Gun groups, which sued over the rule, say parts kits and 3D blueprints do not meet the definition of a “firearm” under the Gun Control Act of 1968, which governs gun sales and production in the U.S. The administration says the law is broadly written and clearly applies to anything that can be “readily converted to a functional condition.”

The dispute centers on competing interpretations of the text of federal law – not Second Amendment rights – but the outcome could have a major practical impact, experts say.

“If the Court strikes down the rule, it significantly limits federal regulation in this area,” said Deepak Gupta, a Supreme Court litigator and Harvard Law professor. “There’s a real risk that criminals will be able to order guns on the internet, and the entire gun control framework will not apply to them.”

Oral arguments in the case have been scheduled for Oct. 8; a decision is expected by the end of June 2025.

Death penalty: Glossip v Oklahoma

Key question: Must Oklahoma put a man to death even though the state doesn’t want to, he maintains his innocence, and prosecutors suppressed key evidence that could have undermined a conviction?

Richard Glossip has been scheduled for execution 8 times and been given his “last meal” 3 times. In 2015, he won a temporary reprieve by challenging the method of lethal injection at the U.S. Supreme Court; he ultimately lost.

Now, Glossip is back at the high court in a last-ditch bid to save his life – this time with the state of Oklahoma on his side, declaring that he may be innocent and deserves a new trial.

Oklahoma’s Republican governor and attorney general – both staunch supporters of the death penalty – have called Glossip’s 2004 murder conviction “deeply flawed.” He was linked to the crime by only the testimony of the confessed killer who later recanted and, unbeknownst to the jury, was diagnosed with bipolar disorder and taking psychiatric medication.

The state’s highest court, in narrowly divided rulings, denied all of Glossip’s appeals and rejected the state officials’ requests to vacate the conviction and initiate a new trial. It has said the execution must go forward.

You might think this is extraordinary – someone having exculpatory evidence in the file that the state didn’t disclose and sometimes even allowing people to testify falsely,” said University of Chicago Law professor David Strauss. “It’s actually not that extraordinary. It actually happens pretty often, and the court should pay attention to that, and, if possible, do something about it.”

The dramatic case will test the Supreme Court on the competing values of finality after decades of failed appeals; the primacy of state courts on matters of state law; and the meaning of justice in a case with so many apparent flaws.

“It would be remarkable to me for the Supreme Court to say where the state and the individual don’t want execution it should go forward nonetheless,” said ACLU legal director David Cole.

Oral arguments in the case have been scheduled for Oct. 9; a decision is expected by the end of June 2025.

Online porn: Free Speech Coalition v Paxton

Key question: Can states require websites with sexual material “harmful to minors” to verify a user’s age and display warnings that porn is potentially addictive?

Nineteen states have enacted age verification requirements for websites with sexually-explicit material that could be harmful to minors. Under Texas’ law, adults must submit personal information – including an uploaded copy of their ID – in order to obtain access.

The Supreme Court will now decide whether forcing adults to prove their age unlawfully burdens their First Amendment rights to view constitutionally-protected material, even if the objective is to protect kids.

“Obscenity is not protected speech; that’s black letter law. Pornography is protected speech; that’s black letter law. Material that is not obscene as to adults may be obscene as to children; that’s black letter law. No one’s disputing any of that,” said Jeremy Broggi, a Supreme Court litigator with Wiley Rein LLP. “In this case, the dispute is about when you say that everyone has to verify their age to access the material, does that burden the rights of adults that want to access it?”

Free speech advocates and the ACLU argue that the law is astonishingly broad and burdensome – applying to not just porn sites but public health resources and R-rated entertainment, among other things. They say it also robs people of a right to anonymity and that there are more effective and automated ways to block children.

“In addition to the censorship problem, there’s a question about what happens to this data. You put your photo ID on the website. They, in theory, are not allowed to keep it, although, how is Texas going to police that?” said Alan Morrison, associate dean for public interest and public service at George Washington University Law School.

Texas insists its requirements are reasonable measures to protect children, not unlike lawful requirements to verify a customer’s age before purchasing liquor or entering a strip club.

“PornHub has now disabled its website in Texas,” said Attorney General Ken Paxton, “because Texas has a law that aims to prevent them from showing harmful, obscene material to children. In Texas, companies cannot get away with showing porn to children. If they don’t want to comply, they should leave Texas.”

Both sides say the Supreme Court’s ruling could have a sweeping impact nationwide.

“More people watch porn and view porn each year than vote and read the newspaper,” said Lisa Blatt, a veteran Supreme Court litigator with Williams & Connolly LLP. A 2016 study in the Journal of Sexual Medicine reports that up to 70% of men and 40% of women have used pornography within the past year.

The case has not yet been set for oral argument; a decision is expected by the end of June 2025.

Flavored e-cigarettes: FDA v Wages and White Lion

Key question: Did the FDA illegally refuse to approve the sale of flavored vapes, or e-cigarettes, popular among teens?

With e-cigarettes and vapes booming in popularity, the Supreme Court will scrutinize how the Food and Drug Administration vets new nicotine products for market and why it rejected a wave of flavored vapes in recent years.

Under federal law, the companies must provide FDA with reliable and robust evidence to show that the products would promote public health and that, on balance, the benefits to adult smokers would outweigh the risks of youth addiction.

At the center of the case is FDA’s refusal to approve applications from makers of e-liquid flavors like “Jimmy The Juice Man Peachy Strawberry,” “Suicide Bunny Mother’s Milk and Cookies” and “Iced Pineapple Express.”

The agency said the companies had provided insufficient evidence that the benefits of their flavored products exceed the dangers to hooking kids. The companies later sued, alleging a flawed analysis that discounted the ways vape products help people stop smoking.

A Fifth Circuit U.S. Court of Appeals panel concluded that the FDA refusal to approve new flavored nicotine products was “arbitrary and capricious” in violation of federal law. The agency has appealed.

“If you ask adults who smoke if they were to switch to e-cigarettes what kind of flavors are they interested in, the majority of responses are tobacco flavor. If you ask kids, they like the fruit or candy flavor,” said Caroline Cecot, an administrative law expert at George Washington University Law School. “This was a big part of what the FDA was sort of thinking about. And we have this evidence.”

Nearly a quarter of high school students who use e-cigarettes consume illicit menthol-flavored varieties, according to the 2023 National Youth Tobacco Survey.

The Supreme Court’s decision could impact how quickly and how much more widely available additional flavored nicotine products will be on the market in the U.S. The case has not yet been set for oral argument; a decision is expected by the end of June 2025.