What to expect in the Supreme Court's next term

Watkins: The Supreme Court is empowering voters

The Supreme Court’s recent term signaled a monumental shift toward liberty as it rolled back the unchecked power of federal agencies and reaffirmed the constitutional right to jury trials. The coming fall term could prove just as significant, with critical cases on the docket poised to further limit bureaucratic overreach and restore accountability to our government.

Last term, the court delivered two significant blows to agency abuse. First, in Loper Bright, the court dismantled the assumption that unelected federal agencies can create law, reinforcing the constitutional constraint that only elected representatives in Congress have that power. Second, in Jarkesy, it upheld Americans’ right to a jury trial, rejecting the idea that agencies could serve as prosecutors, judges and juries.

This term, the court is expected to weigh in on three pivotal cases that could ensure democratic accountability. The questions are monumental: Can unelected bureaucrats prosecute individuals or establish binding rules without presidential oversight? Can Congress delegate its lawmaking power — including the authority to levy taxes — to federal agencies without direction on how much to levy? And can states fine companies for causing global climate change in foreign nations?

In Consumer Research v. Consumer Product Safety Commission, the court is asked to consider whether so-called independent agencies can operate without presidential oversight. This case clarifies the 1935 decision in Humphrey’s Executor, which allowed Congress to limit the president’s power to remove certain officials who did not exercise core executive functions. More recently, in Seila Law (2020), the court ruled that the Consumer Financial Protection Bureau’s director must be removable by the president because the agency exercises significant executive authority.

Unfortunately, lower courts have misapplied Seila Law by allowing multi-member agency boards to exercise core executive powers, such as prosecuting individuals, without presidential control. The Supreme Court now has an opportunity to correct this misinterpretation and ensure that all executive actions remain under the president’s oversight.

Another critical case is Consumer Research v. FCC, which involves the Federal Communications Commission’s authority to impose a tax through the Universal Service Fund without clear congressional guidance. The Court of Appeals for the 5th Circuit found that Congress delegated this power too broadly, allowing the FCC to require phone users to pay into a fund supposedly aimed at expanding telecommunications infrastructure but without instruction on how much to raise.

Moreover, the FCC passed this tax-setting power to a private organization (the Universal Service Administrative Company) dominated by telecommunications companies. This effectively allowed these companies to force their consumers to pay them extra and without direction on how much extra.

This unchecked delegation of tax power violates the Constitution’s principle that only Congress — the people’s elected representatives — can set tax rates. The Supreme Court should agree to hear this case and reaffirm that such power cannot be handed over to unelected bureaucrats or private entities.

A third case, Shell v. Honolulu, raises the question of whether states can sue oil companies like Shell for contributing to global climate change, even when many of the alleged actions occur outside the state or the country.

The Hawaiian city is seeking billions in damages for global warming, following in the footsteps of New York City and other municipalities that have tried to hold international corporations liable for environmental effects worldwide. However, courts nationwide have rightly rejected such claims, pointing to the Clean Air Act’s explicit prohibition against states regulating interstate emissions.

If a single city can force international companies to bend to its will globally, it removes the ability of voters in other cities to have a say in that process. The Supreme Court should block this overreach and protect Congress’s role.

Each of these cases represents a crucial battle in restoring accountability to elected officials. The Supreme Court has a chance to further empower voters by ensuring that unelected bureaucrats cannot create laws, impose taxes or prosecute individuals without oversight. Americans should hope the court takes up these cases and continues its vital work of defending liberty and upholding the rule of law.

Editor’s note: Devin Watkins is an attorney with the Competitive Enterprise Institute. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.

Ombres: Supreme Court is headed further right next term

Recent reporting reveals Chief Justice John Roberts has entirely thrown off the veneer of being willing to moderate extremists on the Supreme Court. His opinions in multiple cases related to the Jan. 6 insurrection have been alarming, and he’s refused to push two ethically conflicted justices — Clarence Thomas and Samuel Alito — to recuse themselves from cases. 

And by granting presidents nearly unfettered immunity to commit crimes, he has turned his back on the foundational American principle that no one is above the law. His unmasking takes with it any realistic hope that the Supreme Court will move to the center this new term instead of continuing to advance a right-wing political agenda.

The court has already sided with right-wing litigants to scuttle the Biden-Harris administration’s efforts at relieving student debt and providing protections for transgender students facing discrimination. And there are several cases before the court in which they will likely continue to side with powerful special interest groups and corporations to the detriment of everyday Americans. We already see it happen in the court’s “shadow” docket.

For example, the same anti-abortion justices who overturned Roe v. Wade recently denied an emergency motion — in a 6-3 vote — to stay the execution of a Missouri man, Marcellus Williams. The state prosecutors argued that Williams had been wrongfully convicted, and even the victim’s family agreed he should have been given a life sentence. We can expect the justices to behave similarly in a coming death penalty case in which the Oklahoma Supreme Court is requiring an execution to proceed over wrongful conviction protests from the state’s attorney general.

Perhaps the most troubling shadow docket case illustrating the court’s continued lurch to the right is Republican National Committee v. Mi Familia Vota. In RNC, five justices allowed a 2022 Arizona voter suppression law provision to go into effect, making it harder to register to vote in the state. The limited decision goes against the court’s rule against changing voting laws directly ahead of elections. As a result, multiple voting-related cases will make their way to the Supreme Court — which has already shown hostility toward voting rights — even as the 2024 presidential election comes into focus.

Several other pending cases before the court could further undermine Americans’ health, safety and rights. For example, one case challenges the Bureau of Alcohol, Tobacco and Firearms’ rule barring the sale and distribution of “ghost guns” without a background check. The court could also hear a Texas case in which the judge who attempted to ban medication abortion also stopped enforcement of a law requiring background checks for firearms purchases. 

The Roberts Court has been one of the most pro-corporate — and anti-worker — courts in history and could further roll back important labor protections for America’s working class. One case, for example, could limit the federal guarantee of overtime wages, which would pave the way for Project 2025 to let employers ignore those protections entirely. Oral argument will likely signal the court’s position in other pending cases, including a challenge to the Biden-Harris labor rule expanding overtime protections to 4 million Americans and a separate rule — already enjoined by a Texas judge — prohibiting the use of anti-competitive non-compete employment contracts.

These cases provide only a tiny preview of the harm a brazen Supreme Court run amok could inflict upon our nation this coming term. The American people should demand that Congress implement 18-year term limits on these justices in addition to an enforceable code of conduct that will hold them accountable to more than their billionaire benefactors and the right-wing legal movement. 

Transparency and accountability are essential to ensure the court rededicates itself to advancing the rule of law with reason rather than accruing power for itself and its far-right benefactors.

Editor’s note: Devon Ombres is the senior director for Courts and Legal Policy at the Center for American Progress. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.