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Roberts court hands major wins to Trump, conservative movement in 2023-24 term

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Former President Donald Trump loomed large over the Supreme Court’s 2023-24 term. The presumptive Republican presidential nominee for 2024 brought two cases to the justices and fared well in both; Trump could also benefit from the decision in a third case, brought by a defendant charged in the Jan. 6 attacks on the U.S. Capitol.

But more broadly, the three justices that Trump nominated during his time in office cemented a 6-3 conservative majority that pushed the court further to the right not only in embracing a broad view of presidential immunity, but also on an array of other topics – most notably, reducing the power of federal agencies, a long-favored target of conservative lawyers and legal scholars.

The Trump docket

Even before the Supreme Court issued its July 1 decision holding that former presidents cannot face criminal liability for their official acts, Trump had already effectively scored a major victory from the justices. Trump’s trial on charges that he conspired to overturn the results of the 2020 election had been scheduled to begin on March 4, 2024. The court’s decision to take up Trump’s appeal of a ruling by a federal appeals court rejecting his claim to immunity, along with the justices’ decision to hold oral arguments two months later (with a decision to follow just over two months after that), put the trial on hold indefinitely, all of which increased the likelihood that it will not happen before the November elections.

The 6-3 ruling that came from the court on July 1 made the prospect of any trial even more uncertain. In an opinion by Chief Justice John Roberts, the court held that former presidents will normally enjoy immunity for their official acts. The court left open the possibility that some of the charges against Trump could still go forward if they were based on his private acts, but it generally left the task of drawing those distinctions for the trial court – and in so doing, further reducing the chances that Trump might face trial before the elections.

Roberts explained that allowing criminal charges against a former president might affect his decision-making while he is in office, and he stressed that the justices were drafting a “farsighted” opinion to establish (as Justice Neil Gorsuch put it at the oral argument) “a rule for the ages,” rather than one intended solely to address Trump’s situation.

But the court’s liberal justices pushed back sharply in their dissents. Justice Sonia Sotomayor cautioned that the majority’s decision would sweep expansively, so that “[i]n every use of official power, the President is now a king above the law.” And Justice Ketanji Brown Jackson characterized the “practical consequences” of the ruling as “a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government.”

In a line that rang like a theme for the liberal bloc this term, Jackson also noted that with Monday’s decision, “the Court today transfers from the political branches to itself the power to decide when the President can be held accountable.”

Trump prevailed outright earlier this year in his challenge to a ruling by the Colorado Supreme Court that would have allowed him to be removed from the state’s ballot as an insurrectionist because of his role in the Jan. 6 attacks. The justices unanimously agreed that Colorado could not disqualify Trump, citing the prospect of a “patchwork” in which candidates were declared ineligible for the ballot in some states but not others, based on the same conduct. And a five-justice majority went on to declare, in an unsigned opinion, that only Congress can enforce the provision on which Colorado had relied to try to disqualify Trump: Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War.

Four justices – Amy Coney Barrett, writing only for herself, and the court’s three liberal justices – agreed that Colorado could not remove Trump from the ballot, but they contended that the court should not have gone further and weighed on how Section 3 can be enforced.

Barrett’s opinion provided a glimpse into the tensions behind the scenes at the court, as she appeared to criticize the tone of the joint opinion filed by the three liberals. Barrett emphasized that at a time when the court “has settled a politically charged issue in the volatile season of a Presidential election,” the justices should not “amplify disagreement with stridency.” “Writings on the Court should turn the national temperature down, not up.”

The court’s opinion in a third case could further complicate Jack Smith’s prosecution of Trump in Washington, D.C. In Fischer v. United States, the justices narrowed the scope of a federal criminal statute under which hundreds of Jan. 6 defendants – including Trump – were charged. The law makes it a crime to “otherwise obstruct, influence, or impede, any official proceeding.” By a vote of 6-3 (with Jackson joining the majority and Barrett dissenting), the court sent the case back to the lower courts for another look. The law, Roberts reasoned, requires prosecutors to show that a defendant tampered (or attempted to tamper) with physical evidence for use in an official proceeding.

Major wins for conservatives in the “war on the administrative state”

Although the court’s “Trump docket” may have had the highest profile, the court’s rulings in a series of cases on the power of federal administrative agencies could ultimately also prove highly consequential. In recent years, the justices had fielded, and rejected, several requests to overturn their landmark 1984 decision in Chevron v. Natural Resources Defense Council, holding that federal courts should generally defer to an agency’s reasonable interpretation of an ambiguous law. But once the court agreed last year to take up a pair of cases involving the same question, it appeared that the court could be poised to abolish the Chevron doctrine.

In an opinion by Roberts on June 28, the court – again by a vote of 6-3 – did just that. Roberts emphasized that the federal law governing administrative agencies (as well as federal courts’ review of agency actions) requires courts to “decide legal questions by applying their own judgment.” The doctrine of Chevron deference, he reasoned, is inconsistent with that instruction.

In a dissent joined by her liberal colleagues, Justice Elena Kagan predicted that because the Chevron doctrine was so firmly entrenched in the U.S. legal system, the court’s ruling would lead to a “massive shock.” In particular, she characterized the decision as a judicial power grab that gave federal courts “exclusive power over every open issue … involving the meaning of regulatory law,” even though federal agencies are more likely to have the technical and scientific expertise necessary to make the kinds of decisions that courts will now make.

On the same day as its ruling overturning Chevron, the justices ruled in Securities and Exchange Commission v. Jarkesy that the SEC cannot use in-house proceedings, without a jury, to impose fines in securities-fraud cases. Although the decision came in a dispute involving the SEC, it is likely – as Ronald Mann wrote – to “have a far-reaching impact on dozens of federal administrative agencies that use similar processes.”

Two other decisions, while highly technical, also proved important for judicial review of agency actions. In Ohio v. Environmental Protection Agency, the court granted a request by three states and several private companies and trade groups to put a rule issued by the EPA on hold while a challenge to it continues in a federal appeals court. The EPA adopted its Good Neighbor Provision to reduce interstate air pollution from power plants and other industrial facilities in 23 states. But by a vote of 5-4, the court reasoned that the EPA had not adequately explained why the emissions-control measures required by the plan, which assumed that the plan would apply to all 23 states, should still apply even if (as eventually happened) fewer states remained in the plan.

Barrett joined the court’s three liberal justices in dissent, arguing that the ruling “leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years.”

Environmental experts predict that the decision could prompt more challenges to new environmental rules in the future.

The court’s ruling in a case that had largely flown under the radar, Corner Post v. Federal Reserve, took on new significance in the wake of the decision overturning the Chevron doctrine. The court in Corner Post ruled that the window to challenge an action by a federal agency, a six-year statute of limitations, begins to run when the plaintiff is injured, even if that injury comes long after the action occurs.

Barrett, who wrote for the six-justice majority, described the decision as “straightforward” and consistent with “our deep-rooted historic tradition that everyone should have his own day in court.”

But Jackson, in a dissent joined by Sotomayor and Kagan, called the ruling “profoundly destabilizing” and argued that “even the most well-settled agency regulations can now be placed on the chopping block.”

Voting rights and homelessness

Conservatives scored important victories in other areas of the law as well. In Alexander v. South Carolina Conference of the NAACP, a court divided on ideological lines threw out a federal district court’s ruling finding that a congressional district on the South Carolina coast was an unconstitutional racial gerrymander – that is, it sorted voters based primarily on their race. And more generally, the court’s decision made it harder to challenge redistricting plans as unconstitutional racial gerrymanders going forward.

Members of the state’s Republican-controlled legislature had argued that party politics, rather than race, had been at the center of the map that they drew in the wake of the 2020 census. Writing for a majority made up of the court’s six Republican-appointed justices, Justice Samuel Alito stressed that if courts could conclude that a legislature acted in bad faith in drafting a map in a jurisdiction where there is a close correlation between race and party affiliation, litigants could get around the court’s bar on considering claims of partisan gerrymandering in federal court by simply recharacterizing their claims as illegal racial gerrymandering.

Kagan dissented, in an opinion that was joined by Sotomayor and Jackson. She characterized the court’s opinion as creating “special rules to specially disadvantage suits to remedy race-based redistricting.” And the court’s ruling, she suggested, told legislators who wanted to rely on race to “go right ahead.”

In Grants Pass v. Johnson, a court (again divided on ideological lines) upheld ordinances in an Oregon city that bar people who are homeless from using blankets, pillow, or cardboard boxes for protection from the elements while sleeping on public property within the city limits. The justices reasoned that the ordinances simply prohibit camping on public property by everyone, not specifically the homeless, and do not violate the Eighth Amendment’s ban on cruel and unusual punishment. That ban, Gorsuch emphasized, does not give federal judges the power to “dictate this Nation’s homelessness policy.” Instead, he contended, such a task should fall to the American people and the democratic process.

In her dissent, Sotomayor countered that the ordinances at the center of the dispute “criminalize being homeless” and therefore violate the Eighth Amendment. She acknowledged the “immense problems” created by the homelessness problem, particularly in the West, but she insisted that current law gives local authorities latitude to address problems like littering, drug use, and harassment.

Decisions delayed, and the 5th Circuit denied

To the extent that liberals breathed a sigh of relief during the 2023-24 term, it came primarily from cases in which the court pushed off a decision on the merits of major disputes until later, rejected a ruling by the ultraconservative U.S. Court of Appeals for the 5th Circuit – or simultaneously did both.

The justices declined to weigh in on the merits of not one but two cases involving abortion access. The court ruled on June 13 that several doctors and medical groups challenging the Food and Drug Administration’s expansion of access to mifepristone, one of two drugs used in medication abortions, did not have a legal right to sue, known as standing. The justices found that those groups had not been particularly harmed by the FDA’s expansion of access. The unanimous opinion reversed a ruling by the conservative U.S. Court of Appeals for the 5th Circuit, which had rolled back the FDA’s expansion of access to the drug in 2016 and 2021.

The Supreme Court’s decision means that mifepristone will remain widely available in the United States, where it is used in nearly two-thirds of all abortions. The FDA approved the drug in 2000, and in 2016 and 2021 it made a variety of changes to the conditions on the use of the drug – for example, allowing it to be used later in pregnancy, allowing it to be prescribed by health-care providers who are not physicians, and permitting it to be prescribed without an in-person visit.

Although the justices’ ruling disposed of the dispute in the Supreme Court for now, the case returns to the lower courts, where it may not be over: Three states with Republican attorneys general – Idaho, Missouri, and Kansas – joined the dispute in the trial court earlier this year, and they could seek to move the case forward.

And on June 27, the justices dismissed a pair of cases involving the Biden administration’s challenge to Idaho’s administration of its strict abortion ban, which (among other things) bars abortions except to save the life of the mother. The Biden administration contends that the law is superseded by a federal law that requires emergency rooms in hospitals that receive Medicare to provide “necessary stabilizing treatment” to patients who arrive with an “emergency medical condition.” That means, the Biden administration argues, that emergency rooms must provide abortions not only to save the life of the mother, but also in cases when she faces serious health problems without one.

The justices splintered on both the result and rationale for the disposition of the dispute, but the court’s ruling cleared the way for emergency abortions to go forward – at least for now. The dispute could still return to the Supreme Court later, and – if former President Donald Trump were to win the presidency in November – he could reverse the Biden administration’s stance on EMTALA.

Two more cases signaled that – even in the eyes of the conservative Roberts court – the 5th Circuit had gone too far. In United States v. Rahimi, the court upheld a federal law that bars anyone subject to a domestic-violence restraining order from possessing a gun. The first case to interpret the scope of the Second Amendment right to bear arms since the court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, Rahimi focused on Bruen’s instruction that courts should uphold gun restrictions only when there is a tradition of such regulation in U.S. history. Writing for the eight-justice majority, Roberts explained that courts should look at whether the modern regulation being challenged is “relevantly similar” to historical regulations.

And the justices in mid-May rejected a challenge to the constitutionality of the structure used to fund the Consumer Financial Protection Bureau. The 5th Circuit had ruled that the agency’s funding – which comes directly from the profits of the Federal Reserve rather than through the normal appropriations process – violates the Constitution, but the Supreme Court reversed that ruling.

Writing for a seven-justice majority, Justice Clarence Thomas explained that the CFPB’s funding scheme falls squarely within the definition of a congressional “appropriation.” Congress specified the source – the Federal Reserve – of the CFPB’s funding, as well as how the CFPB should use that funding.

Ethics questions continue

If the justices had hoped that questions about their ethical obligations might fade away with their adoption of a code of conduct in November, those hopes were dashed in the spring, when the New York Times reported that an upside-down American flag – popular among the “Stop the Steal” movement – had flown outside Alito’s Virginia home in the days following the Jan. 6, 2021, attacks on the U.S. Capitol. Subsequent reporting also revealed that the Alitos had flown an “Appeal to Heaven” flag, which has been associated with both the “Stop the Steal” movement and Christian nationalism, as recently as the summer of 2023.

Alito rejected requests from Democratic lawmakers to recuse himself from cases related to the Jan. 6 attacks. He contended that his wife, Martha-Ann Alito, had flown the upside-down American flag in response to a neighborhood dispute, although a later account published by the Times suggested that the dispute only occurred after the flag was hoisted at the Alitos’ home. Alito said that neither he nor his wife was “aware of any connection between” the “Appeal to Heaven” flag and the “Stop the Steal” movement.

Citing the justices’ code of conduct, he deemed himself “duty-bound” to continue to participate in the Trump immunity and Jan. 6 cases. A “reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude this event does not meet the applicable standard for recusal,” Alito wrote.

The code of conduct generally leaves decisions about recusals to the individual justices. There is no mechanism for its enforcement.

This article was originally published at Howe on the Court

Recommended Citation: Amy Howe, Roberts court hands major wins to Trump, conservative movement in 2023-24 term, SCOTUSblog (Jul. 3, 2024, 6:19 PM),