Conservative Supreme Court reunion with its maker gets attention of court watchers

WASHINGTON (CN) — Though fewer in number, President Joe Biden’s Supreme Court wins narrowed conservative policy ambitions and stymied massive shifts in federal governance. The incoming Trump administration could push the justices in the opposite direction.

And Biden’s high court losses have shaped the conservative supermajority’s reputation with rulings broadly expanding gun rights, curtailing federal agency authority, limiting climate protections, giving presidents near absolute immunity from criminal charges and overturning federal abortion rights.

With three of his own appointees already on the bench, President-elect Donald Trump will face a friendlier audience when his administration inevitably goes before the Supreme Court.

“He has a highly sympathetic Supreme Court that’s hostile to health, safety and environmental regulations,” Lawrence Gostin, professor and faculty director of the O’Neill Institute for National and Global Health Law, said. “I think we’re likely to see a lot of activity and a symbiotic relationship between the White House and the conservative supermajority.”

For starters, Trump could quickly influence the Supreme Court’s 2024 term by abandoning the Biden administration’s positions in key cases. The Biden administration has defended crackdowns on untraceable do-it-yourself gun builder kits — known as ghost guns — and tougher pollution controls while opposing bans on gender-affirming health care for transgender minors.

The Trump administration will likely oppose most — if not all — of Biden’s positions, but the new Justice Department will have to prioritize which cases warrant immediate intervention.

“There are a range of considerations that come into play, including, the significance of the issue, the timing of of the decision,” Jonathan Adler, a law professor at Case Western Reserve University, said. “The earlier a change can be made, the easier it is to make the change in some respects, but their new administration can change position.”

The justices heard arguments on Biden’s ghost gun ban last month. Adler said cases that have been fully briefed are the least likely to see any changes, but that doesn’t mean intervention is 100% out of the question.

The Trump administration could notify the justices that the regulation is going to be withdrawn, mooting the case.

“There are cases in which the court has dismissed the case because the government said we’re no longer going to defend this regulation, we don’t think it’s defendable, and we are revising it,” Adler said. “So that’s essentially what the administration would have to do. That’s a big step, but  they certainly could do that.”

In December, the Biden administration will argue that Tennessee’s ban on gender affirming health care for transgender minors is unconstitutional. While this case isn’t fully briefed, it’s far enough along that winding it down would be difficult. However, the Trump administration might not need to revise Biden’s position to get its preferred outcome.

“If the government thinks the court’s going to agree with them, it’s not clear why they even necessarily want to change the position,” Alder said. “Certainly the Trump administration could say, hey, we’re no longer defending this position, but I do think the calculus is a little different because of the fact that that they may decide that they’re just happy to let the court resolve the issue.”

Retracting the Biden administration’s opposition to Tennessee’s ban wouldn’t resolve the dispute. Transgender kids and their parents are also challenging the ban and have been given time to argue their case.

The Trump administration will have to make a similar calculation on a challenge to the Food and Drug Administration’s order denying e-cigarette companies’ marketing approval for flavored vapes.

“Trump has said that he’s going to be a pro-vape president, so it’s very likely that he would pressure the FDA to grant approval for the marketing of the vaping product, which would make the case moot before the Supreme Court,” Gostin said.

The biggest changes could come on pending appeals. The federal government has been asked to weigh in on several significant petitions under consideration, including the city of Honolulu’s attempt to hold fossil fuel companies liable for pollution causing climate change.

While the justices did not give the government a deadline to file its brief, the solicitor general typically files amicus briefs before the end of December so the justices can fill their docket in the new year.

Court watchers suspect that the Biden administration still plans to submit its positions, but the incoming administration could reverse once in office.

Lower court cases involving Title IX protections for transgender people and emergency and medication abortion challenges were expected to land back on the high court’s docket. The Trump administration will have the authority to retract the Title IX protections and Emergency Medical Treatment and Labor Act guidance requiring abortions in medical emergencies.

Legal experts also expect new challenges to Trump’s policy proposals around the FDA.

“RFK Jr. and the president have put out the idea that they might want to ban vaccines or certain vaccines, so they might put pressure on the FDA to withdraw approval for vaccines or put on warning labels,” Gostin said. “Those are the kinds of cases that are likely to be challenged and come up before the Supreme Court.”

Biden’s solicitor general Elizabeth Prelogar has been widely praised for her defense of the administration’s policies with the odds stacked against her. While she was unable to convince the court to uphold Roe v. Wade or gun control policies like the bump stock ban, Prelogar succeeded in limiting gun access for domestic abusers and upholding the funding scheme for the government’s financial consumer watchdog agency.

There are many prominent conservative contenders to fill her position including state attorneys general like Ken Paxton or the architect of Texas’ abortion ban Jonathan Mitchell. Last term, Mitchell represented Trump in his successful ballot disqualification challenge and convinced the justices to overturn the bump stock ban. He has aggressively pushed for abortion restrictions — filing a wrongful death lawsuit against women who helped an abused wife obtain abortion pills — and fought against LGBTQ protections by representing a Texas judge who refuses to perform LGBTQ weddings.

“It’s very clear to me that for [attorney general] and [solicitor general], that Trump will appoint culture warriors who are in red state capitals and have been very aggressive in litigating issues like abortion, gun rights and against sexual and transgender health,” Gostin said.

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