US Supreme Court Expands Ambitious Agenda on Free Speech, Guns

The US Supreme Court’s new term begins next week, and the Roberts court looks set to continue developing—or unraveling, depending on your perspective—the law in key controversial areas that have defined a conservative doctrinal revolution.

Unraveling Key Mechanisms of Democracy

In Alexander v. South Carolina State Conference of the NAACP, South Carolina is challenging a unanimous lower court finding that the state intentionally moved tens of thousands of Black voters to “crack” minority communities.

The defense of the South Carolina legislators? They were not trying to racially gerrymander but rather to ensure “a stronger Republican tilt.”

Under any ordinary logic, this defense would be confession. But two years ago, the Supreme Court declared in Rucho v. Common Cause that partisan gerrymandering, despite being “inimical to democracy,” will not be examined by the court.

And before Rucho, the court effectively permitted politicians to choose their voters—such as in Davis v. Bandemer—in rather than the other way around, by treating legislators trying to rig the democratic game in their own favor as a legitimate, rather than shameful, goal.

It just so happens that rigging the playing field against Democrats looks a lot like discriminating against Black voters, given voting patterns. And so this series of decisions enables states like South Carolina to potentially camouflage racial gerrymandering under the guise of political gerrymandering. Both should be prohibited, but the Supreme Court’s imprimatur of approval of partisan gerrymandering is enabling racial gerrymandering.

First Amendment

Just a few decades ago, judicial support for the First Amendment was so associated with liberal justices that pro-free speech decisions were used to measure how liberal justices were. But the Roberts court has used free-speech challenges to promote conservative goals.

Under the guise of free speech, it has struck down protections for equality—such as for same-sex couples against discrimination, and of vulnerable groups, such as protection of animals from torture. And back when women had a right to choose their own reproductive destinies, the court used free speech as a justification to allow harassment of women trying to enter abortion clinics.

Now the court is taking two cases—Lindke v. Freed and O’Connor-Ratcliff v. Garnier—that challenge whether public officials can block members of the public from their own personal social media accounts.

It is also considering whether the trademark office violated the First Amendment when it prohibited a mark from being registered that contains criticism of a government official or public figure.

In Vidal v. Elster, a citizen was prevented from registering a trademark because it contained the name of former President Donald Trump. “Trump Too Small” is a reference to Marco Rubio’s taunt that Trump has small hands.

The mark is clear political commentary and not controversial like some of the court’s previous decisions, such as permitting a religious group to protest military funerals with anti-gay slurs. But each of these cases permits the court to expand free-speech doctrine at the cost of privacy, equality, and freedom from hate.

All Americans value free speech, but it isn’t the only constitutional value worth protecting.

Second Amendment

The facts of US v. Rahimi couldn’t make it clearer why the government should be able to restrict firearm possession by those subject to domestic-violence restraining orders.

After assaulting his girlfriend, Zackey Rahimi threatened to shoot her if she told anyone about the assault. A court issued a restraining order that included prohibiting him from possessing firearms for the duration of the restraining order.

And yet the lower court struck down the gun restriction, because the Supreme Court last term in New York State Rifle & Pistol Association v. Bruen said that only gun restrictions that were consistent with the country’s history of gun regulation were permissible. Thus, because men were traditionally allowed to abuse their wives, the country is incapable of progressing under this court’s jurisprudence.

Like the logic in Dobbs v. Jackson Women’s Health Org., the more a group has faced discrimination in the past, the more this court will stop another branch of government doing anything to protect them. Rahimi seems a likely vehicle for the court to continue to expand gun rights while extending its disregard for women’s safety and wellbeing.

The Administrative State

The “deconstruction of the administrative state” was a self-proclaimed goal of the Trump administration. That included rolling back specific Obama-era protections, such as the Affordable Care Act, pollution regulation to address climate change, and immigration rules, such as the Deferred Action for Childhood Arrivals program.

The Supreme Court in recent years is more ambitious, taking aim at the overall system undergirding federal regulation. Last term, the court permitted challenges to the appointment of administrative judges to agencies.

This term, the court is no longer working on tangents. It’s going straight to the heart of the matter, considering in Loper Bright Enterprises v. Raimondo whether agency determinations should receive a presumption of reasonableness by courts.

That presumption, known as Chevron deference, was initially created by the conservative Rehnquist Court. But in subsequent decades, anti-government ire has focused on Chevron’s rule that presumes that ambiguity within a statute, however it is interpreted by an agency, is to be presumed correct.

Reasonable people may disagree about Chevron. But at the same time as the court is restricting agency power under the guise of deferring to legislatures, it is restricting legislatures and presuming legislation does not mean what it says if what it says is major change.

The court tried the same trick in the 1930s, leading to President Franklin D. Roosevelt’s efforts to reform the court. That court retreated; this court shows no inclination to put the institution ahead of policy ambitions.

An overview of the Supreme Court’s cases doesn’t reveal how many important cases the court decided not to take. We should continue to reflect on the court’s institutional role and the extent to which it’s not doing its job.

Taking only around 55 cases each year, the court is failing to resolve circuit splits. It’s not bothering to decide cases that may not offer the opportunity for the court to push major policies areas in a radical conservative direction.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.