First, the good news, or at least what this conservative court believes to be the case. It’s important to understand that good news in this context isn’t about making good law in the sense of groundbreaking protections for individual rights. Winning is about containing the damage or postponing the damage for another day.
Damage control was paramount in major firearms cases. United States v. RahimiTwo years ago, the Supreme Court rewrote the rules for evaluating gun laws, mandating a new test that Justice Sonia Sotomayor described as a “myopic focus on history and tradition,” sparking confusion among lower courts.
This term, the Supreme Court decided to do it again. With Justice Clarence Thomas, who had written the previous decision, as the lone dissenter, Chief Justice John G. Roberts Jr. took to his pen to try to clear up the confusion. He stressed that precise “historical twins” are not necessary for gun control to pass Second Amendment scrutiny. It remains to be seen how reasonable the Supreme Court’s more pragmatic approach will be in a case that requires a tougher decision than whether to disarm a domestic abuser who is deemed dangerous.
The two abortion cases the Supreme Court took up this term were another example of Roberts-style good news: The justices rejected a challenge to the availability of the abortion drug mifepristone, finding that anti-abortion doctors had no right to sue. While this is undoubtedly true, it could mean that other states, including anti-abortion states, will have more success going forward.
The second abortion case, involving a clash between a federal law requiring emergency rooms to provide necessary stabilizing treatment and a strict Idaho law banning abortions except to save the mother’s life, was another example of the court resolving a problem of its own making.
The court accepted the emergency abortion case without going through the normal appeals process, then five months later dismissed it as “thriftily approved” after women in the state were airlifted to get emergency abortions to preserve their fertility or prevent other serious health problems. Is this better than a ruling that the Biden administration was wrong and federal law does not protect women in these situations? Yes, it is, but it’s just buying time.
Here’s where the news gets even worse.
The shock of the final day of his term was the presidential immunity decision. What was shocking was not the decision itself, granting Donald Trump and other former presidents some protection from criminal prosecution, but the breadth of the Supreme Court’s decision.
This was no cautious clean-up Roberts, as evidenced in the gun case, and also in the “simple but fundamental principle of judicial restraint: If no further decision is necessary to dispose of the case, do not have To decide more.”
Instead, Roberts and the majority ran wild in defense of executive power. So much for fundamentalism and constitutional text. The Framers knew well how to provide immunity from prosecution, and that’s exactly what they did. They crafted the Speech and Debate Clause to protect members of Congress from criminal liability in their official duties. The opposite is true for the President, who, if removed from office by impeachment, “shall nevertheless be liable to and subject to prosecution, trial, sentence and punishment according to law.”
Nevertheless, Roberts and the majority have established surprisingly broad protections for former presidents. They have absolute immunity from prosecution for acts within the scope of their “definitive and exclusive constitutional powers,” and the Court has interpreted this core presidential power expansively. On the other hand, they have also found that “at least Putative “The president is immune from criminal prosecution for conduct that is outside the scope of his official duties.” And even if former presidents are prosecuted for purely private activities, their official duties cannot be used as evidence against them.
What’s going on? Trump has achieved a triple crown at the Court this term: an immunity action, an Article III voter nullification action, and a separate criminal case that narrows the scope of federal obstruction of justice statutes against the January 6, 2021 defendants. Looking at these cases, it is tempting to conclude that conservatives, including three Trump appointees, were siding with the former president, but this theory is complicated by the fact that Justice Amy Coney Barrett dissented entirely from the immunity and voter nullification actions and wrote a dissenting opinion in the obstruction of justice action.
I think there’s something more complicated at work — not so much support for Trump, but a deep-seated pro-executive tendency and an instinctive allergy to destabilizing actions like removing candidates from the ballot or indicting a former president. At least in the immunity cases, these instincts, perhaps aided by the conscious or unconscious partisan sympathies of some of the justices, led the Court to a deeply wrong conclusion.
This also applies to and is connected to the other big substantive event of this term: the Supreme Court’s continuing dismantling of the administrative state. Here, too, instinct is at work: conservatives’ deep-seated aversion to government regulation. This majority worships executive power, over-correcting to keep the president from taking bold action, while also distrusting the regulatory apparatus he oversees.
And in four cases, the Supreme Court has strengthened its plans to make it harder for agencies and departments to issue rules or take enforcement actions. While immunity rulings are riskier, especially given Trump’s prospects for reelection, a Supreme Court that routinely cripples agencies’ ability to govern effectively may have more serious consequences. This represents a dramatic shift in the realm of administrative law.
the most important, Roper Bright Enterprises v. Raimondooverturned Chevron v. Natural Resources Defense CouncilThe 1984 case directs courts to defer to agency interpretations when a statute is ambiguous and a reasonable interpretation is possible. Yet another case of deferring to precedent. The ruling probably won’t have much practical impact; courts may continue to defer to agency expertise in some cases. But the justices’ move is a power grab for the courts.
Adding to the difficulties regulators face, the court noted that agency rules can be challenged even years after they are enacted, despite the six-year statute of limitations. Thus, agencies may no longer be respected and their regulations may be overturned years or even decades after they were adopted.
Later, in the air pollution cases, the court allowed the agency to go after it if it did not provide a “satisfactory explanation” for its actions and a “reasonable response” to comments. This means more pressure on regulators and expanded court power. Courts may not be in the best position to exercise that power. Here’s one thought-provoking and amusing example: Justice Neil M. Gorsuch’s majority opinion initially referred to the pollutant nitrogen oxides as “nitrous oxide,” or laughing gas, five times.
These are our new regulatory overlords. And don’t think their role is over. Watch the upcoming cases raising the nondelegation doctrine, a pre-New Deal concept that some justices want to resurrect in order to critically undermine Congress’ ability to delegate regulatory authority to government agencies.
His term begins in October 2023, and I predicted that it would be an opportunity to see whether the conservative majority’s tendencies are “radical aggressiveness or relatively restrained.”
We now have an answer, on a broader scale than was imaginable before the Trump case reached the Supreme Court: aggressiveness with a moment of restraint. The prudence and institutionalism that were supposed to be the watchwords of the Roberts Court have been largely ignored.
