Four SCOTUS cases to watch this term
The 2023-24 term starts today. Let's break down some cases worth tracking.
This free edition of Public Notice is made possible by paid subscribers. If you aren’t one already, please sign up to support our work. We’re offering free trials for all new signups. Just click the button below.
The 2023-24 Supreme Court term starts today and we’re staring down the barrel of nine months of decisions from a hyper-conservative majority. Not every case will turn out badly, and not every one on the docket affects millions the way, say, Dobbs v. Jackson did. That said, it’s distressingly easy to see which cases have the potential to leave us worse off.
Previewing an entire Supreme Court term isn’t really possible, because the Court enters the term not having chosen all the cases it will hear. Prior to September 29, the Court had agreed to hear only 22 cases. But last Friday, justices agreed to hear twelve more.
While the official United States Courts website says that the Supreme Court typically hears 100-150 cases per year, that hasn’t been the case in recent years. In the 2022-2023 term, for instance, they heard just 60 cases, and from 2007-2021, they heard an average of 75 per year. So, as the months of the terms goes on, the Court will pick another 35 cases, give or take.
RELATED FROM PN: The Supreme Court's "deal with the devil"
The Court can take whatever cases it wants, as long as four justices vote to hear it. Those are typically limited to cases decided at the highest state court or a federal circuit court of appeal. Often, these are cases where there is a conflict in the law — where one federal court of appeal has come to a different decision from another, creating what is known as a “circuit split,” which the Court chooses to resolve. So even if these first 34 are relatively anodyne, there's still a few dozen more opportunities for the Court to immiserate everyone who isn’t a conservative or large corporation.
So, out of those first 34 cases, which should you be the most worried about? Probably many! But here are the top four that might keep you up at night.
Consumer Financial Protection Bureau v. Community Financial Services Association of America
What you have to remember most about the Consumer Financial Protection Bureau (CFPB) is that conservatives absolutely hate it. Prior to its creation in 2010, there was no agency dedicated to looking out for consumer interests, and the limited accountability measures that did exist were spread across seven agencies.
The CFPB has saved or recouped consumers money — a lot of money, as in billions of dollars. The way they save that money is by holding accountable big companies that are big offenders. The CFPB recently went after Bank of America, which was opening unauthorized accounts for consumers, screwing them on non-sufficient funds, and lying about credit card rewards. Bank of America is giving up $190 million over this. That’s a pittance over what the CFPB ordered regarding Wells Fargo, which had to pay $2 billion to consumers it harmed and another $1.7 billion in fines over its longstanding habit of jacking consumers with misapplied loan payments, improperly repossessed vehicles, and undisclosed overdraft fees, among other antics.
An agency that stood for the people against big corporations was never going to be free of Republican attempts to just make it go away. This latest effort stems from a group of payday lenders suing CFPB by arguing that the way the agency gets funded is unconstitutional. They aren’t really mad over funding. What they’re mad over is a 2017 rule from the CFPB that would stop them from hammering bank accounts with multiple withdrawal attempts when the first two fail for lack of funds.
Payday lenders already prey on people on the margins who can’t get loans from their banks or don’t have credit cards. The lenders’ habit of repeatedly trying to withdraw payments they know full well aren’t there, because they’ve already received two insufficient funds notices, has led to bank penalties for nearly half of people using online payday lenders. One-third of online borrowers racked up enough penalties thanks to payday lenders to have their accounts closed by their banks.
Payday lenders hate this because their business succeeds, in part, by being able to wring every last dollar out of a borrower by trying every which way to get money out of their account, including splitting required payments into multiple transactions in the hopes they’ll get a smaller amount. The punchline here is that these aggressive attempts to collect money are not generally successful. So, even though the lenders don’t see their money, consumers are slowly destroyed by repeated bank fees and the loss of a bank account.
A note from Aaron: Working with brilliant contributors like Lisa requires resources. To support this work, please click the button below and sign up for a free trial.
This seems like exactly the sort of thing a government should want to stop from happening, but instead the CFPB is now entangled in an arcane constitutional fight about whether they properly receive funding. But make no mistake — what this case really is about is the right of companies to stomp on consumers without oversight or consequences.
CFPB v. CFSA will be argued on October 3.
United States v. Rahimi
In July of last year, the Court struck down a New York state gun law in New York State Rifle and Pistol Association v. Bruen. Bruen created a new test for how to evaluate gun laws, which is that gun restrictions will be overturned unless the law has a historical analog that existed roughly from 1791, when the Constitution was ratified, to 1868, when the 14th Amendment was ratified. If there was no similar law in effect in that roughly 75-year period, the law gets thrown out.
This led to some truly undesirable results. Federal courts have reluctantly thrown out laws such as those that prevent people from buying guns if they are under felony indictment and another that barred people from removing the serial numbers from guns, which makes it much easier to traffic weapons.
Rahimi is one of the worst post-Bruen challenges to gun laws, and there have been over 200. In a two-month period from December 2020 to January 2021, Zackey Rahimi, a Texas drug dealer, was essentially going on shooting sprees, with five shootings, including firing at someone involved in a car accident with Rahimi and firing multiple shots in the car at a Whataburger after the restaurant declined a friend’s credit card. When the cops caught up with him, they learned he was under a protective order that barred him from having a firearm after he’d assaulted his girlfriend.
The Fifth Circuit threw out this law, holding that a restriction on letting domestic abusers have guns was something “our ancestors would never have accepted” because the government couldn’t point to any similar law from the time of the nation’s founding. The fact that domestic abusers often use guns to kill their victims is of no consequence in this analysis. The only thing that matters is whether sometime between 1791 and 1868 there was a similar law. Given that domestic abuse was not even recognized as a crime during that time, this law was likely doomed.
Now, the same group of justices who thought it was dandy to create a test that basically obliterates gun regulation in America will get to decide if domestic abusers get to keep their guns — their tools of terrorism against their victims.
United States v. Rahimi will be heard on November 7.
Moore v. US
There’s one case that would likely have flown under the radar save for the fact that Sam Alito is notoriously thin-skinned and did two interviews with the Wall Street Journal in April 2023 and July 2023.
In the latter, Alito was thrown comically softball questions and declared that, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.” Recall, first, that this was all in reaction to Pro Publica kicking off a spate of reporting about Clarence Thomas’s penchant for expensive luxury trips, paid for by rich Republicans who often are connected to business before the Court.
RELATED FROM PN: A brief primer on why Clarence Thomas doesn't give a damn about ethics
The July 2023 interview was conducted by David Rifkin, who just so happened to have a pending request for the Court to take Moore v. United States, and who also just so happened to see that request granted a couple weeks after the interview. In response to calls he recuse from Moore, given his cozy interview with Rifkin, Alito explained it was perfectly fine to talk with an attorney with business before the Court because somehow, magically, Rifkin did the interview “as a journalist, not an advocate” without explaining how he could just glide between these roles.
After the interview, many called for Alito to step aside in the Moore case, which he refused to do. And why would he? There are no ethics standards for the Court and Alito would not want to risk Moore not going the way conservatives would like it to, which is that they would like to see the Court strike down a tax law applying to “unrealized” income. This gets weedy and involves discussing tax policy, so hang tight.
The Moore plaintiffs are shareholders with a controlling interest in a foreign company. They’re challenging a provision of the Trump-era 2017 Tax Cuts and Jobs Act, the “mandatory repatriation tax.” This calls for people like the Moores to pay a one-time tax on their share of the foreign corporation’s earnings. Nope, the Moores said. They reinvested their earnings back into the company instead of taking dividends, which means they technically received no income. (This, of course, ignores that they got to do something with those profits that still was profitable — namely, putting money back into the company.) They’re arguing the tax is unconstitutional, and should they prevail, it will cost the country billions in lost tax revenue.
Nearly three dozen conservative groups have written to the Court either asking the Court to take the case or providing friend-of-the-court briefs in support of Moore’s position. The usual suspects are here, such as the Cato Institute and the Chamber of Commerce. These are groups devoted to making sure the rich get richer, and if they prevail, a narrow, yet usually wealthy, group of Americans will be able to deprive the rest of us of significant tax revenue.
There is not yet a hearing date for the Moody case.
Moody v. NetChoice/NetChoice v. Paxton
Of the twelve cases the Court agreed to hear just a few days ago, one that should concern people a great deal is the decision to hear Moody v. NetChoice and NetChoice v. Paxton.
These are over the harebrained laws passed by Texas and Florida that sought to regulate large social media companies because conservatives believe they remove their posts unfairly. Never mind that the social media companies are private entities and are not obliged to air all viewpoints. Never mind that often, conservatives are blocked for actively harmful speech, such as covid denialism and Trump’s Big Lie regarding the 2020 election. And finally, never mind that X/Twitter is now owned by Elon Musk, who, if not an actual fascist, is certainly fascist-adjacent or fascist-curious.
This is a law that should never have made it out of a federal district court and, if it did, should have been roundly smacked down at the appellate level. But since the federal courts are controlled by just the sort of people who believe they are being “shadowbanned” when their hateful posts don’t get enough engagement, this case is now at the Supreme Court. A victory for Texas and/or Florida would allow the government to put a heavy thumb on the scale when it comes to social media, forcing companies to give equal time and credence to the worst, most dangerous, right-wing ideas.
There is not yet a hearing date for the NetChoice cases.
The Court is not your friend
It’s hard to be optimistic about these cases, given the current composition of the Court. However, the Court did issue some surprising decisions last term, such as throwing out Alabama’s gerrymandered maps — a stance the Court has stuck to, despite Alabama’s efforts to refuse to follow the ruling.
Ultimately, the problem with the conservatives on the Court is that they are results-driven. They decide what they’d like the decision to be, and then work backward to justify the result. That’s just no way to run the nation’s highest Court.
That’s it for today
We’ll be back with more Wednesday. Thanks for reading, and please consider supporting us by signing up and getting each new edition in your inbox.
Expand the court. These six don’t respect the Constitution and treat us like fools
A great assessment of some of the cases that will come in front of the court in the near term. The court wants to interpret a modern world by 18th and 19th standards stemming from an idealized view of American history that overlooks the prevalence of domestic violence and its relationship with guns, the rampant struggle for consumers to secure fairness and accountability against corporate tycoons, the steady drumbeat of rich conservatives trying to avoid paying taxes while complaining in a condescending manner about the people screwed over from the U.S. losing its tax revenue and thus it's public square, and finally, the hypocrisy of conservatives regarding the free market and the freedom of expression and speech.