Transgender rights, ghost guns – and an election? The Supreme Court returns.

As the U.S. Supreme Court begins a new term, events outside its marble walls could define the next eight months.

The justices are set to grapple with cases involving transgender rights, “ghost guns,” and fallout from the court’s decisions last term significantly weakening the regulatory power of federal agencies.

But with a presidential election in November – and lower courts deliberating over federal prosecutions against one of the candidates, former President Donald Trump – the most divisive and high-stakes questions may only reveal themselves as the term unfolds.

The Supreme Court now leans the most conservative it’s been in almost a century, and it would be surprising if the court doesn’t continue to deliver policy wins for Republicans, legal experts say. Whether the court will deliver electoral wins for the GOP is another question.

“Cases will absolutely be brought,” says Amy Steigerwalt, a political scientist at Georgia State University, of the November election. “The court turned back those arguments the last time but left open some possibility that they might want to reconsider them in the future.”

Will the justices need to weigh in on the 2024 election?

Some 2024 election issues have already reached the high court. In August the justices allowed Arizona to partially enforce a proof-of-citizenship voter registration law. Two weeks ago they declined to let Green Party candidate Jill Stein appear on the Nevada presidential ballot, and a week ago they refused Robert F. Kennedy Jr.’s request that he be added to the New York ballot.

Other litigation is ongoing around the country. And with polls forecasting a tight race between Mr. Trump and Vice President Kamala Harris, it’s possible that the courts could play a pivotal role in the presidential election.

One possible scenario, experts say, involves a high court decision two years ago. In that ruling, the justices held that federal courts could review state supreme court election-law rulings if they exceed “the bounds of ordinary judicial review.” The justices could choose to review, for example, a lawsuit in swing-state North Carolina alleging that hundreds of thousands of noncitizens are on the state’s voter rolls.

Another scenario involves the Electoral Count Reform Act. Passed in response to the Jan. 6, 2021, insurrection, the bipartisan law updated rules for how election results are certified. Experts say that some of its provisions – including a requirement that states submit their electors by a certain date, or a mechanism for members of Congress to object to a presidential candidate on constitutional grounds – could lead to legal action.

What is easier to predict is that, should Mr. Trump lose the election, the criminal prosecutions against him will return to the Supreme Court.

In July, the court ruled that former presidents are entitled to broad immunity from criminal prosecution for official acts. A federal judge is determining how that decision will affect the case against Mr. Trump for allegedly attempting to overturn the 2020 election. Whatever happens, if Mr. Trump loses in November the case will be appealed back to the justices.

In another criminal prosecution of Mr. Trump, a federal judge in Florida dismissed the case outright, ruling that the special prosecutor bringing the case was unlawfully appointed. The Supreme Court may review that decision, but an appeal is currently before a federal appeals court.

“An inflection point” for transgender rights in the U.S.

As for cases already on the court’s docket, the most high-profile involves a challenge to a Tennessee law banning gender-affirming care for transgender children.

The case, United States v. Skrmetti, asks whether the Tennessee law violates the equal protection clause of the 14th Amendment.

Jonathan Mattise/AP/File

Protesters rally at the State Capitol in Nashville, Tennessee, to oppose a series of bills that target the LGBTQ+ community, Feb. 14, 2023. This Supreme Court term is expected to be a pivotal one for transgender rights.

Transgender rights are a new area for the courts, and in this term, starting with Skrmetti, the justices will begin deciding the extent to which statutory and constitutional protections extend to transgender Americans.

“This is an inflection point” for transgender rights in the U.S., said Chase Strangio, co-director of the American Civil Liberties Union’s LGBTQ Rights project, which is representing plaintiff teenagers and their parents in the case.

“Is this going to be a [case] that sets off years of government-legitimized discrimination against LGBTQ people?” he added, during a briefing on the court’s new term. “Or is this going to [affirm] that LGBTQ people are protected under the Constitution and civil rights law?”

Twenty-six states have passed laws banning gender-affirming care for transgender minors in recent years, and at least four states have also sought to restrict access to transition care for adults. Beyond health care, lower courts are also considering whether a law prohibiting sex discrimination at federally funded schools also bars discrimination based on gender identity and sexual orientation.

Courts may also be asked to decide if states can prevent residents from changing their sex on state-issued documents, as Texas did with driver’s licenses this summer.

The questions in Skrmetti “may be distinct,” said Mr. Strangio. “But these [cases] are all going to have an impact on each other.”

Ghost guns, but not the Second Amendment, up next week

On Oct. 8, the court will hear oral argument in another high-profile case concerning government regulation of “ghost guns,” firearms that can be bought online and assembled from kits.

But while it involves guns, the Garland v. VanDerStok case doesn’t concern the Second Amendment. Instead, the case could have broader implications for the regulatory power of federal agencies – a power that the Supreme Court has curtailed in recent years.

Carolyn Kaster/AP/File

A 9 mm pistol build kit with a commercial slide and barrel and a polymer frame is displayed April 11, 2022, when President Joe Biden announced a rule barring the sale of “ghost guns.” The Supreme Court will hear a case this term about whether the federal government has the power to issue such a ban.

In June, in Loper Bright v. Raimondo, the court overturned a 1984 precedent requiring federal courts to defer to agency interpretations of ambiguous statutes. Within three months, Loper Bright had been cited by parties or judges in 110 cases. Courts are now reevaluating federal regulations in areas ranging from overtime pay to airline fees to abortion access, ProPublica reported.

“A lot of the activity is happening at the lower court level, and it may take another term or two to have some of the open questions resolved,” says Cary Coglianese, a regulatory law expert at the University of Pennsylvania Carey Law School.

There are other significant cases the justices could hear this term. In particular, two petitions filed to the court are seeking to expand the president’s power to remove the heads of major federal regulators.

In 2020, the justices made it easier for a president to remove the single director of an executive agency. They could now choose to decide if it should be easier for a president to remove the top officials at agencies headed by multiple directors, like the Federal Communications Commission or the Federal Reserve.

If the justices do take up those petitions, “It could well amount to one of the biggest administrative law cases of the last century,” says Professor Coglianese. That is not least because of how the Supreme Court has expanded presidential power in the past year.

If presidents “have more power because of the immunity decision, and then they have more power because they can remove officials at will,” he adds, “we’re going to have a government that has a greater degree of concentration of authority in the presidency.”