5 Cases to Watch in Supreme Court’s 2023–24 Term

The U.S. Supreme Court at sunrise in Washington on July 31, 2023. Madalina Vasiliu/The Epoch Times

News Analysis

School isn’t the only thing back in session this fall. The Supreme Court will resume hearing cases when its new term begins on Oct. 2.

So, what’s on the docket?

If you’d like an in-depth analysis of the cases the high court will hear this term, watch The Heritage Foundation’s annual Supreme Court Preview with former U.S. Solicitor General Paul Clement and noted Supreme Court advocate Lisa Blatt.

In the meantime, here’s a sneak peek at five upcoming cases that the high court will hear:

1. Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited

In the wake of the 2008 financial crisis, Congress created the Consumer Financial Protection Bureau as an independent regulatory agency. Congress gave the bureau broad authority and provided it with a unique funding mechanism outside the normal appropriations process. Instead of receiving congressionally appropriated money each year, the bureau receives its funding from the Federal Reserve.

Consequently, several financial service organizations claimed that the funding mechanism for the Consumer Financial Protection Bureau violates the Constitution’s appropriations clause.

The U.S. Court of Appeals for the 5th Circuit agreed and ruled in favor of the challengers. Of course, the government disagreed with this ruling and asked the Supreme Court to review the case, which the Supreme Court agreed to do.

If the Supreme Court agrees with the 5th Circuit, the government contends, “virtually every action [the bureau] has taken in the 12 years since it was created” could be called into question.

But the challengers contend that the Supreme Court must agree with the 5th Circuit because to do otherwise would gut the Constitution’s requirements and allow Congress to create unique, unchecked funding mechanisms that could exist in perpetuity without appropriate—and constitutionally required—accountability.

2. Loper Bright Enterprises v. Raimondo

This case asks the Supreme Court to decide whether courts must defer to an executive branch agency’s fishy interpretation of the laws governing its conduct.

If the high court agrees that no such deference needs to be given, it would be overruling one of its controversial precedents, and the much-dreaded Chevron deference (requiring courts to defer to an executive branch agency’s interpretation of an ambiguous statute) no longer would exist.

Here, family-owned fisheries took issue with a regulation promulgated under the auspices of the National Marine Fisheries Service that required them not only to carry a person serving as a monitor on their fishing boats to ensure compliance with federal fishing regulations, but also to pay the salaries of the monitors they carry.

Loper Bright and other fisheries challenged this regulation, arguing that the National Marine Fisheries Service lacked the statuary authority to force the fisheries to pay for these government-mandated monitors.

The district court sided with the government, as did the U.S. Court of Appeals for the D.C. Circuit, which applied Chevron deference to defer to the agency’s interpretation that the statute governing its conduct allowed it to take such actions.

Of course, the Supreme Court’s decision in this case will have far-reaching implications across the administrative state. If the court discards the idea that it must defer to an agency’s interpretation of an ambiguous statute, many other programs promulgated by the federal bureaucracy could be ripe for reexamination by the courts.

3. Moore v. United States

Charles and Kathleen Moore invested in an Indian startup company. However, the Moores never received any distributions from the company, since any funds were always reinvested back into it. Nevertheless, the U.S. government taxed them based on their stake in the company.

The government levied this tax in accordance with the mandatory repatriation tax provision of the 2017 Tax Cuts and Jobs Act. This supposedly one-time provision stated that reinvested earnings from certain foreign companies should be considered part of the 2017 income of U.S. taxpayers.

As a result, the Moores went to court on the grounds that the tax was unconstitutional under the 16th Amendment, which authorizes Congress to levy “taxes on incomes ... without apportionment among the several States.” Essentially, the Moores argued that because they hadn’t realized any income, there could be no income tax levied.

The 9th U.S. Circuit Court of Appeals upheld the tax against the Moores’ challenge.

So now, the Supreme Court must decide whether the 16th Amendment allows Congress to tax unrealized sums (profits that people don’t receive) without apportionment among the states.

How the high court rules in this case could have a ripple effect on the U.S. tax code. If the court upholds the tax, this might set the stage for a future “wealth tax.”

4. Securities and Exchange Commission v. Jarkesy 

The Securities and Exchange Commission suspected that George Jarkesy and his investment advisers committed fraud. So the SEC commenced an enforcement action against them through its own in-house administrative law process and ultimately found that they had committed fraud. The agency issued a variety of sanctions.

Mr. Jarkesy, however, argued that, among other defects, the SEC’s in-house adjudicative process violated his Seventh Amendment right to a jury trial.

The U.S. Court of Appeals for the 5th Circuit agreed with Mr. Jarkesy. It also held that “Congress unconstitutionally delegated legislative power to the SEC by failing to give the SEC an intelligible principle by which to exercise [its] delegated power” and held that the “statutory removal restrictions” for administrative law judges at the SEC were unconstitutional.

Now, the Supreme Court will review these three holdings. Regardless of what the court decides, it will have major implications for the administrative state.

5. O’Connor-Ratcliff v. Garnier and Lindke v. Freed

Both cases broadly revolve around whether a public official’s use of social media can constitute state action sufficient to establish a constitutional violation, and if so, when.

Specifically, in both cases, public officials blocked people from their social media accounts. If they did so in their official capacities, it could be a First Amendment violation. If they did so in their private capacities, it would not be a violation.

In O’Connor-Ratcliff v. Garnier, two school board candidates in California’s Poway Unified School District—Michelle O’Connor-Ratcliff and T.J. Zane—created Facebook and Twitter profiles for their campaigns and posted about issues in the school district. Once they were elected and in office, they added their official titles to their social media pages and continued to post about news related to the school district.

Christopher and Kimberly Garnier are parents of children in the same school district where Ms. O’Connor-Ratcliff and Mr. Zane got elected to the board of trustees. The Garniers consistently posted comments criticizing the board on social media and did so on Ms. O’Connor-Ratcliff’s and Mr. Zane’s pages.

Ms. O’Connor-Ratcliff and Mr. Zane decided to block the Garniers from their social media pages. As a result, the Garniers sued the two school board members for violating their First Amendment rights.

In Lindke v. Freed, James Freed created a private Facebook profile; however, he became popular and reached Facebook’s threshold for the number of friends he could have, so he had to switch his profile to a public page.

In 2014, Mr. Freed became a city manager (a government official) and put his job on his page profile. Mr. Freed also posted about the COVID-19 pandemic on his page.

Because anyone could view Mr. Freed’s page, Kevin Lindke posted comments there that were critical of Mr. Freed’s posts. Mr. Freed then blocked Mr. Lindke for making those comments.

Mr. Lindke sued Mr. Freed for violating his First Amendment rights.

The Supreme Court’s decisions in these cases could have far-reaching implications for how public officials and citizens interact on social media.

*   *   *

These are only a few of the cases that the Supreme Court will hear this term.

The court also will weigh in on an important bankruptcy case involving the opioid crisis and the ability of a court to limit the liability for those involved in Harrington v. Purdue Pharma L.P.

The court also will give further clarification to a recent Second Amendment ruling, when it addresses whether people subject to restraining orders for domestic violence may be prohibited from possessing firearms consistent with the Second Amendment in United States v. Rahimi.

The court also will likely add several more cases to its docket throughout the term, so stay tuned.

Reprinted by permission from The Daily Signal, a publication of The Heritage Foundation.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.