With a pugnacious Republican state attorney general, and a conservative judiciary that always seems to be spoiling for a fight, Texas routinely plays what some might describe as a large (maybe even oversized) role in when it comes to the United States Supreme Court. This term has been no exception.
Even in a year that saw the court examining everything from presidential immunity to voting rights and the environment, Texas managed to offer up the chance for the nine justices to make decisions about issues as varied as social media First Amendment rights and whether the Second Amendment rights of domestic abusers are being violated by not allowing them to own guns.
Here are a few takeaways from this session and some things to keep in mind while we wait (or prepare) for the justices to reconvene on the first Monday in October.
So do domestic abusers have the right to keep their guns?
Nope, but it has been a years-long process to get to that answer.
Shortly after Zackey Rahimi went on a shooting spree around the Dallas suburb of Arlington back in 2020, police officers searching his apartment found firearms. The thing is, since his girlfriend had been issued a protective order against him earlier that year, he was in violation of both state and federal law which forbids possession of a firearm while under a domestic violence restraining order.
Rahimi argued that not being allowed to own a gun was a violation of his constitutional rights, a claim that didn’t hold water until the SCOTUS 2022 decision in New York State Rifle & Pistol Association v. Bruen that found gun control rules must be “consistent with the Second Amendment’s text and historical understanding.” Rahimi’s case got another hearing which led to the stunning 2023 decision from the Fifth U.S. Circuit Court of Appeals that Rahimi “while hardly a model citizen” did, in fact, have the right to bear arms.
But all of that nonsense was put to a stop when it hit the U.S. Supreme Court. Even though it is viewed as one of the most conservative courts in history, in United States v. Rahimi eight of the nine justices ruled that the Second Amendment only goes so far. (Justice Clarence Thomas was the lone dissent.)
Will SCOTUS ever make an actual decision about whether Medicare-recipient hospitals can be federally required to perform emergency abortions?
Still unclear, but the U.S. Supreme Court is almost certainly about to get another chance next term, courtesy of the Lone Star State.
Back when the Biden administration was suing Idaho, claiming the state’s near-total abortion ban was in violation of the Emergency Medical Treatment and Labor Act, Texas Attorney General Ken Paxton opted to sue the Biden administration contending that EMTALA is being used to get around state abortion bans and “mandate that every hospital and emergency-room physician perform abortions.”
Thus, when SCOTUS took up the Idaho case, there was every expectation that the court’s ruling would end up impacting the Texas case, which the Fifth Circuit U.S. Court of Appeals had already sided with the state on. And maybe that would have happened if the court had opted to make a decision on the case either way. Instead, they kicked the Idaho case back to the lower courts and ordered that Idaho hospitals continue performing emergency abortions for the time being.
However, that wasn’t the high court’s last chance on this front. Although the justices kicked this question down the road, judicially speaking, for this term, keep an eye out for what cases they take up in the fall. Once somebody challenges the Fifth Circuit’s Texas decision – which found that our state abortion ban supersedes the federal EMTALA – the odds are high SCOTUS will agree to hear it next term. And who knows, once we’re not in an election year, they may even be ready to make an actual decision.
Can Texas control social media company censorship?
The short answer is we still don’t know.
Shortly after Texas passed a law that would forbid social media companies from acting to “censor” users based on “viewpoint” tech companies responded by suing, claiming their First Amendment rights were being violated.
On the final day of the term, the court dodged ruling on whether Texas (and a similar law out of Florida) actually can restrict how much social media companies can moderate content the platforms find objectionable, kicking it back to the lower courts and noting that the courts should take a closer look at whether these laws violate First Amendment rights.
“Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities,” Justice Elena Kagan wrote in her decision. “But under the First Amendment, that is a preference Texas may not impose.”
So, basically, they haven’t decided yet, but they have ordered the Fifth Circuit and other lower courts to actually do all of the relevant work before handing in their assignment.
Why isn’t SCOTUS a Fifth Circuit fan?
In a divided court, it might be surprising to find that there’s one thing the nine justices probably agree on – they are all completely over the Fifth U.S. Circuit Court of Appeals.
Although once upon a time known for being one of the most liberal appeals courts in the country, today the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas, boasts the dubious honor of being the most overturned appeals court in the country, with SCOTUS justices striking down eight of 11 rulings from the New Orleans-based circuit court for this term alone.
Remarkably, in this specific moment in the United States, some of the Fifth Circuit’s rulings have been so strident that even the conservative justices have voiced their displeasure, and even exasperation.
So what does this mean? Well, considering that the Fifth Circuit, boasting six President Donald Trump-appointees, is now the most conservative court in the land, it’s safe to assume that the court is going to keep on issuing decisions that leave everyone from Chief Justice John Roberts to liberal Justice Elena Kagan to ultra-conservative Justice Clarence Thomas writing out the legal equivalent of a face palm when in the face of another extreme Fifth Circuit decision.
In other words, don’t expect the Fifth Circuit’s SCOTUS losing streak to end any time soon. Whether that’s a good thing or a bad thing all depends on your point of view.
This article appears in Jan 1 – Dec 31, 2024.
