The Supreme Court returns from its summer break Monday with a new slate of cases to decide, but it is an issue not even on the docket yet that is the center of attention: the presidential election.
The prospect that the court, which has a 6-3 conservative majority, including three justices appointed by Republican candidate Donald Trump, could be asked to weigh in on cases before and potentially after the election is high. It happens during every election.
But whether disputes that arise will be blockbusters like the 2000 Bush v. Gore case, which effectively decided the outcome in favor of George W. Bush, or duds like the various attempts to overturn Joe Biden's win in 2020 remains to be seen.
Unlike lower courts, the justices decide what cases they hear, and in most situations, as with Trump's efforts in 2020, they decline to intervene.
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"There’s going to be something," said Nate Persily, an election expert at Stanford Law School and an NBC News contributor. "I don’t think they are going to hear a case before the election, but there will be attempts to draw them in."
The new nine-month Supreme Court term officially starts Monday, with the justices appearing in the courtroom to hear oral arguments. It will be the first time all nine justices have been seen in public together since the previous term ended with a series of contentious rulings in early July, including one that handed Trump a big win in his federal criminal case related to his effort to overturn the 2020 election results.
Election law experts say it is too early to say whether any potential election case could warrant Supreme Court intervention or could be decisive because it depends precisely on whether the legal question — whether it be about contested ballots or some other issue — is in a swing state and whether the vote is close enough to matter.
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Major cases at the Supreme Court:
- U.S. v. Skrmetti — Challenge to state laws that ban gender-affirming care for trans teenagers.
- Garland v. VanDerStock — Whether the federal government can ban "ghost gun" kits.
- Free Speech Coalition v. Paxton — Free speech challenge to a Texas law requiring age verification to access adult content online.
- Glossip v. Oklahoma — Death penalty case in which state of Oklahoma concedes inmate Richard Glossip's conviction is unsound.
Lawsuits are already circulating, on both the Democratic and the Republican sides, including in swing states. In Pennsylvania, for example, an ongoing fight concerns whether mail-in ballots can be counted if voters did not include correct dates. In Georgia, another potentially key state, litigation of an attempt by Republicans to purge voters from the rolls in DeKalb County, a Democratic stronghold, is pending.
The stakes could be huge for the court, which continues to face questions about its legitimacy in the wake of the 2022 ruling that overturned the landmark abortion-rights decision in Roe v. Wade. Claims of ethics shortcomings aimed at justices, most notably conservatives Clarence Thomas and Samuel Alito, have contributed to the sense of an institution under siege.
When the Supreme Court decided Bush v. Gore, its reputation took a hit but quickly rebounded. There is no guarantee that a similar ruling would be received the same way this time.
"If people add the Supreme Court to that list of things that led to the 2024 election being a calamity, then that could be significantly more damaging to the court's legitimacy than Bush v. Gore," said Franita Tolson, an election law expert and NBC News contributor at the University of Southern California Guild School of Law.
There are reasons to think there is less potential for messy legal action in this election than there was in 2020, when some states enraged Republicans by making late changes to election rules because of the Covid-19 pandemic.
Republicans challenged those changes, but the Supreme Court never took up a case about the issue at the time. The idea that Democratic state officials played fast and loose with election rules in key states became one of the foundation stones of Trump's "big lie" that the election was stolen.
Related claims featured in some of the postelection lawsuits that were filed, including one Texas filed at the Supreme Court asking for results in other states to be thrown out. The court quickly dismissed the lawsuit.
But this year, there is no pandemic emergency, and therefore those high-profile legal fights are off the table this election.
"I think you’ve seen many states taking steps to try to avoid those situations again, and I’m hopeful that will avoid some of the last-minute worry that we saw in 2020," said Zack Smith, a lawyer with the Trump-aligned Heritage Foundation.
The justices have already resolved several pre-election disputes in the last few weeks. They rejected attempts by independent candidate Robert F. Kennedy Jr. and Green Party candidate Jill Steinto appear on ballots in New York and Nevada respectively and partly granted a Republican request to enforce a proof-of-citizenship requirement for voters in Arizona.
The Supreme Court has relatively few cases of consequence on the argument calendar so far. Highlights include a showdown over state bans on gender-affirming care for transgender teenagers.
Some court watchers have even speculated that the justices have deliberately held off scheduling a large number of cases for oral argument in the next couple of months so they have the bandwidth to handle any late-breaking election disputes.
But liberal Justice Elena Kagan pushed back against the idea of an election-related gap in the schedule in a public appearance at New York University School of Law on Sept. 9 when she was asked about the court's low caseload.
"I don't think it's that," she said simply.
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