When the Supreme Court opens for business again Oct. 7, it will have before it for argument and eventual decision in the term ahead at least three cases directly involving the protection of children and young people. The issues include internet pornography, gender-affirming treatment of transgender youths, and flavored e-cigarettes.
The court will be returning under the threat of a plan floated by President Biden limiting the terms of justices to 18 years. But the proposal has little chance of enactment now or in the foreseeable future.
Article III of the Constitution says Supreme Court justices and judges of other federal courts “shall hold their offices during good behavior.” That is, they have life tenure allowing them to serve until they die, resign, or are impeached. Changing that would require amending the Constitution, something highly improbable in today’s heated political environment.
The idea does serve a political purpose, however, providing a talking point in the runup to the November election. As such, it illustrates liberal determination to punish the court for rulings liberals don’t like. The special target is of course the decision two years ago in Dobbs v. Women’s Health Organization overturning the 1973 Roe v. Wade ruling that created a constitutionally protected right to abortion.
So far, however, abortion is not on the court’s agenda during the 2024 term. But the protection of children certainly is.
In a case from Texas, the Supreme Court is being asked to consider a state law, adopted in 2023, that bars producers of pornographic material from sending it to anyone in the state under the age of 18. Potential recipients must provide documentation showing them to be older than that. Violators are subject to a fine of $10,000 a day.
The law’s challengers include a trade association for pornography producers who contend that the law places unacceptable burdens on the First Amendment free speech right of adults who choose to receive pornography. A three-judge panel of the U.S 5th Circuit Court of Appeals agreed with a lower court in upholding the law. The case is Free Speech Coalition v. Paxton.
The case involving transgender rights comes from Tennessee and focuses on a state law enacted in 2023 that bars treatments for the condition known as dysphoria, including puberty blockers and surgery intended to bring about gender transition. More than 20 other states have similar laws. The suit was filed by three transgender teenagers, their parents, and a physician who treats such patients.
The Biden-Harris administration has joined the case, arguing that the law violates 14th Amendment equal protection. A divided panel of the 6th Circuit U.S.Court of Appeals reversed a trial judge’s ruling last fall and upheld the law. The case is United States v. Skrmetti.
The case involving flavored e-cigarettes concerns a U.S. Food and Drug Administration policy in denying producers’ applications to market them. The e-cigarettes have fruit or candy flavors and work when a liquid containing nicotine is heated by the e-cigarette, to form an inhalable aerosol. The product is said to be highly popular among teenagers, with nearly 20% of U.S. high school students and 5% of middle schoolers said to be users according to the most recent numbers.
Manufacturers contend that the e-cigarettes help keep children from smoking real cigarettes. But the FDA says they present a “serious, well-documented risk” of causing children to become addicted to nicotine and turn to real cigarettes. Lower courts have sided variously with the FDA and the e-cigarette makers. The case is FDA v. Wages and White Lion Investments, LLC.
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