The good news first, or at least what passes for it with this conservative court. It’s important to understand: Good news in this context doesn’t mean making good law, in the sense of pathbreaking protections for individual rights. Victory, such as it is, lies in containing the damage or postponing the harm to another day.
Damage control was front and center in an important gun case, U.S. v. Rahimi. Two years ago, the justices rewrote the rules for assessing gun restrictions, creating chaos in the lower courts with a new test that mandated what Justice Sonia Sotomayor described as a “myopic focus on history and tradition.”
This term, the court gave itself a do-over. With Justice Clarence Thomas — the author of the earlier ruling — the sole dissenter, Chief Justice John G. Roberts Jr. took the pen to clean up the mess, emphasizing that there doesn’t need to be a precise “historical twin” for a gun regulation to survive Second Amendment scrutiny. It remains to be seen how reasonable the court’s more realistic approach will be in cases that pose a tougher call than whether to disarm domestic abusers who have been deemed dangerous.
The two abortion-related cases the court grappled with this term offer another illustration of good news, Roberts-style. The justices tossed out a challenge to the availability of the abortion medication mifepristone, saying that the antiabortion doctors didn’t have standing to file suit. That’s undoubtedly right, but it leaves open the possibility that others, including antiabortion states, might have more success down the road.
The second abortion case, involving the collision between the federal law that requires emergency rooms to provide necessary stabilizing care and a draconian Idaho law that prohibits abortion except to save the life of the mother, represented another example of the court fixing a problem of its own creation.
The court took the ER case even before it had gone through the usual appeals process. Then, five months later — and after women in the state had to be airlifted out to obtain emergency abortions to preserve their fertility or prevent other serious health problems — it dismissed the case as “improvidently granted.” Better than a ruling that the Biden administration is wrong and federal law doesn’t protect women in these circumstances? Yes. But this is just buying time.
Which gets us to the worse news.
The shocker of the term came on its final day, in the form of the presidential immunity ruling. The shock was not the outcome itself — granting Donald Trump and other former presidents some degree of protection from criminal prosecution — but the breadth of the court’s reasoning.
This was not the Roberts of the careful cleanup, as evidenced in the gun case; it was not the Roberts who famously proclaimed “a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
Instead, this was Roberts and the majority gone wild — in defense of executive power. So much for originalism and reading the constitutional text. The framers knew very well how to provide immunity from prosecution; they did just that, crafting the speech and debate clause to shield members of Congress from being held criminally liable for official acts. With the president, they did the opposite, providing that a president removed from office through impeachment “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Nonetheless, Roberts and the majority established breathtakingly broad protections for former presidents. They possess absolute immunity from prosecution for acts within their “conclusive and preclusive constitutional authority,” and the court interprets this core presidential power in expansive terms. Meanwhile, they have “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” And even when former presidents are being prosecuted for purely private activity, official action can’t be used as evidence against them.
What’s going on here? Trump won a trifecta at the court this term: the immunity case, the Section 3 ballot disqualification case, and the separate criminal case narrowing the reach of the federal obstruction statute against Jan. 6, 2021, defendants. It is tempting to look at these cases and conclude that the conservatives, including the three Trump appointed, were in the tank for the former president — a theory complicated by the fact that Justice Amy Coney Barrett was not fully on board in the immunity and ballot disqualification cases and wrote the dissent in the obstruction case.
I think something more complicated is at work — not as much pro-Trumpism as a deep-seated inclination toward executive power and an instinctive allergy toward destabilizing actions such as striking candidates from ballots and prosecuting former presidents. At least in the immunity case, these instincts — perhaps undergirded by partisan sympathies, conscious or unconscious, on the part of some justices — led the court to a profoundly mistaken result.
That is true of, and connected to, the other big substantive story of the term, the court’s continued dismantling of the administrative state. Here, too, instinct is at work: the conservatives’ similarly deep-seated aversion to government regulation. As much as this majority reveres executive power, and overcorrects in the service of ensuring that presidents are not deterred from acting boldly, it distrusts the regulatory apparatus that presidents oversee.
And, so, in a quartet of cases, the court reinforced its project of making it harder for agencies and departments to issue regulations and bring enforcement actions. The immunity ruling is more dangerous, particularly given the prospect of Trump’s reelection, but on a day-to-day basis the court’s neutering of the agencies’ ability to govern effectively might be more consequential. It represents a seismic shift in the landscape of administrative law.
The most important, Loper Bright Enterprises v. Raimondo, overturned Chevron v. Natural Resources Defense Council, a 1984 case that instructed courts to defer to agencies’ interpretations when a statute is ambiguous and the interpretation is reasonable. So much for respecting precedent, again. Perhaps in practice the impact of the decision won’t be enormous; courts may continue to defer to agency expertise in some cases. But the justices’ move is a power grab for courts.
Further adding to the difficulties faced by regulators, the court said agency rules were subject to being challenged even years after they go into effect, notwithstanding a six-year statute of limitations. So agencies no longer receive deference — and their regulations are subject to being overturned years or even decades after they are adopted.
Then, in an air pollution case, the court opened up agencies to second-guessing if they fail to provide “a satisfactory explanation” for their actions and a “reasoned response” to comments. In short, more pressure on regulators — and more power for courts, which might not be in the best position to exercise it. One telling, and amusing, illustration: The majority opinion, by Justice Neil M. Gorsuch, originally referred — five times — to the pollutant nitrogen oxide as “nitrous oxide,” or laughing gas.
Such are our new regulatory overlords — and don’t think they’re finished. Look for a future case to raise the nondelegation doctrine, a pre-New Deal concept that some of the justices would like to revive to definitively cripple Congress’s ability to transfer regulatory power to agencies.
As the term began in October 2023, I predicted it would be a window into the conservative majority’s inclinations, “whether to high-octane aggressiveness or relative restraint.”
We now have our answer — and on a broader playing field than was imaginable before the Trump cases landed at the high court: aggressiveness, with brief interludes of restraint. Caution and institutionalism, the supposed watchwords of the Roberts court, have been largely left behind.
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