Supreme Court's Roberts turns court to the right as Barrett emerges as a key player
The U.S. Supreme Court wrapped up an historic and momentous term this week, reshaping presidential powers by granting former President Donald Trump an immunity from prosecution that had been unimaginable to previous presidents.
Cast aside, among other precedents, was a legal opinion embraced by every Justice Department, Republican and Democratic, for more than a half century: a legal opinion that said presidents cannot be criminally prosecuted while in office, but can be held to account in court after leaving office. That’s why President Ford pardoned President Nixon after Nixon resigned, and why Nixon accepted the pardon. Both understood he would be prosecuted in connection with the Watergate scandal unless he was pardoned.
But all those assumptions — including the notion that presidents are not above the law — were called into question by the Supreme Court’s decision last Monday, written by Chief Justice John Roberts, and blasted by Justice Sonia Sotomayor in her dissent.
For Roberts and the other conservatives on the court, the real threat was that presidents would be “enfeebled” if they could be prosecuted after leaving office for things they did while in office. And so Roberts crafted a decision that did three things: It totally immunized presidents from prosecution for their “core” acts as president; it granted them a presumption of immunity overall, and for leaving office; and it said there is no immunity for completely private acts.
For the three dissenters, Roberts’ opinion was an open invitation to criminal conduct by future presidents. In a rare oral dissent from the bench, Sotomayor spoke for nearly a half hour. Concluding without the usual “ I respectfully dissent,” she said simply, “With fear for our democracy, I dissent.”
The immunity decision sent the election subversion case against Trump back to the trial judge to decide what charges would survive, thus guaranteeing that the former president would not face trial until after the election, if ever.
Indeed, for Trump, who during his tenure as president and afterward often railed against the court, this was a great Supreme Court term; he got everything he wanted, and sometimes more than his own lawyers asked for.
Justice Barrett breaks off from the court's conservatives
In addition to giving him practical immunity from prosecution, the court restored his name to the ballot in states that had banned him because of his participation in the Jan. 6 attempt to reverse Joe Biden’s electoral victory. While the justices were unanimous on the outcome, conservative Justice Amy Coney Barrett, the last of the Trump appointees, wrote separately to say that the majority had gone further than necessary in declaring that the Fourteenth Amendment's ban on insurrectionists in the government could only be enforced with additional congressional action, a point made also by the court’s three liberal justices. Or as University of Chicago law professor William Baude put it in an op-ed piece, the chief justice “concocted” a position not proposed by any of the lawyers in the case.
Barrett similarly broke off from the court’s other conservatives in the Trump immunity case; for her, the chief justice’s opinion went too far in barring evidence of wrongdoing by a president after he leaves office — for example, barring evidence that a president received millions of dollars in exchange for a pardon. The pardon is protected under the Constitution, she observed, but not the evidence of the bribe, and a bribe is what's illegal under federal law.
Her more subtle view of presidential power reflects, perhaps, her life experience. The court’s other conservatives spent much of their careers before becoming judges as acolytes of Republican presidents, toiling in the White House or the Justice Department, and viewing opposition party attacks as an assault on presidential power. All either grew up in Washington or came to D.C. as young men. Roberts was an associate counsel in the Reagan White House and a top Justice Department aide; Brett Kavanaugh worked in the George W. Bush administration as staff secretary, sitting just outside the Oval Office; and Neil Gorsuch was a teenager in the nation’s capital when his mother, Reagan appointee Anne Gorsuch, became the first agency director to be cited for contempt of Congress.
In contrast, Justice Barrett grew up in Louisiana and spent almost all of her professional life in academia at Notre Dame Law School in South Bend, Ind., far from the power politics of Washington.
So it may be unsurprising that she has a conservative, but different world view from the court’s other conservatives. Indeed, she wrote the dissent for herself and the court’s three liberals in two important cases. One was the court’s decision to block an EPA plan to curb air pollution that floats from one state to another.
The other was the court’s decision making it more difficult to prosecute Jan. 6 rioters. She viewed the case against the rioters as “open and shut,” and she was incredulous that the defendant, who invaded the capitol and allegedly assaulted a police officer, could not be tried for obstructing and impeding an official proceeding, namely the counting of the Electoral College votes at the Capitol that day.
Admittedly, she wrote, Congress, when it passed this broad law, did not have in mind the events of Jan. 6th, but she added caustically, “Who could blame Congress for that failure of imagination?”
In several cases this term, she wrote concurring opinions that pushed back against the courts three most conservative justices on the question of “originalism,” specifically as to what role history and tradition should play in deciding constitutional cases. For instance, in a case testing a federal law that makes gun possession a crime for anyone under court order for domestic abuse, she wrote a concurring opinion stressing that gun regulations, in order to be upheld “need not be an updated model” of a law that existed at the nation’s founding. “History is consistent with common sense,” she wrote. “It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”
“We really saw Amy Coney Barrett come out of whatever was left of her shell this term,” observes Georgetown law professor Steven Vladeck. “She really has a series of principles” that we may or may not agree with, but “she’s going to follow them” even when they are not aligned with her political preferences.”
A decline in public approval of the court
That, said, he adds, overall the court this term decided its “most politically charged” and highly visible cases by a 6-to-3 vote, with the Republican appointees on one side, and the three Democratic appointees on the other. “Whether you think the court got these cases right or wrong, it’s bad for the court as an institution” to be seen as dominated by Republican appointees, over the protest of Democratic appointees, Vladeck adds.
Supporting that proposition is the fact that public opinion polls have shown public approval of the court at historic lows. Indeed, even before the court’s immunity decision, an Associated Press-NORC poll showed that 7 out of 10 Americans think that the justices make their decisions “to fit their own ideologies,” instead of serving as “an independent check on other branches of government by being fair and impartial.”
Of course the justices uniformly would reject that characterization. Especially the chief justice, who sees himself as an “institutionalist” and has worked hard, and with less success this term, at achieving consensus in the highest profile cases. The task he has is admittedly difficult, with three justices on his right flank often writing separate concurring opinions, and Justices Barrett and Brett Kavanaugh uncertain allies. Still, even Roberts admirers are less admiring this term.
Sarah Isgur, co-host of a Supreme Court podcast for the conservative Dispatch, sympathizes with “the parade of horribles” the chief justice tried to deal with, especially the fear that after a Democratic administration brought charges against Trump, the former president, if elected again, would then seek to indict President Biden, leading to a constant cycle of retribution. But Isgur adds that Roberts produced an opinion that is “fairly chaotic” and “difficult to apply.”
But after preaching the sermon of consensus and institutionalism for nearly 20 years, she agrees, it is harder for Roberts to make the case that he’s done that this term. After all, the court decided the majority of its non-unanimous cases by a 6-to-3 vote along ideological lines—the most important being the decision to give Trump and future presidents sweeping immunity from prosecution.
Roberts 'failed the test'
The court managed to avoid these kinds of partisan splits the last time it faced such a direct test of presidential powers in 1973 when the court ruled unanimously that President Nixon had to turnover incriminating tape recordings subpoenaed by a special prosecutor in the Watergate investigation. The chief justice then was Warren Burger, and his first draft failed to gain a majority. But with other justices working together, they produced a document that all could sign on to. And they did it in 16 days, not the two months that the court took this time.
“This was a wonderful chance for [Roberts] to show that there are not Republic and Democratic justices,” says Yale law professor Akhil Amar. “And he failed the test."
“I think he not only failed the country and failed the constitution, because what he said is all made up, he failed himself,” adds Amar, author of America’s Constitution.
If the Trump case dominated the final week of the Supreme Court term, perhaps the court’s boldest assertion of its own power came in three decisions aimed at gutting the so-called administrative state: by votes of 6-to-3, it obliterated decades of precedent that required courts to defer to agency expertise in interpreting ambiguous federal laws; it dramatically expanded, by years, the time available for business interests to challenge final agency rules; and it demolished the administrative proceedings used by the Securities and Exchange Commission to enforce anti-fraud rules, a decision that likely will affect other agencies too.
Isgur, a conservative, likes those decisions, and sees them as a necessary corrective to agencies run amok. But she concedes that while the court is telling Congress to “do its job,” Congress has “become so anemic in the last 20 years” and so polarized that the task of approving or disapproving regulations will fall to the courts, and the policy preferences of judges.
Vladeck adds that there are so many hundreds of federal agencies that even if Congress devoted itself to one agency a day, it still “couldn’t answer most of the “very technical and precise questions it has otherwise delegated to those agencies to resolve.” The upshot, he maintains, is that “these [regulatory] cases are going to be decided by handpicked judges in parts of the country where you can find a judge most likely to be…sympathetic to your administration’s policies.
“That’s a recipe for chaos and instability,” he contends.
Overruling the Fifth Circuit
Perhaps a good example of that has been the large number of cases that ended up at the Supreme Court from the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, and is undoubtedly the most conservative appeals court in the country. But as it turned out in this term at least, the Fifth Circuit, populated with lots of young and aggressive Trump Appointees, was firmly rebuffed by the Supreme Court’s conservative and liberal justices.
Indeed, the justices overruled the Fifth Circuit in eight of the 11 cases appealed to the high court. Among them: the court overturned a Fifth Circuit ruling that would have invalidated a law that banned guns for domestic abusers; they overturned a decision that would have invalidated the funding mechanism for the Consumer Financial Protection Bureau; and they firmly rejected state laws that sought to bar social media companies’ content moderation policies. Indeed, the court’s rejection in the social media case was so firm that Justice Elena Kagan, writing for a unanimous court, warned the Fifth Circuit not to come back with the same approach because it would be “wrong.” Notably the Fifth Circuit did have a big win in a case striking down the federal regulation banning bump stocks, which convert semi-automatic weapons into guns that can fire as many as 800 bullets a minute. The Supreme Court upheld that decision by a 6-to-3 vote along ideological lines.
Judge shopping, observes Vladeck, is common in the Fifth Circuit, where plaintiffs can easily file national claims with individual judges, knowing that the outcome will almost certainly be to their liking. Take the case that sought to ban abortion pills, which made its way to the Supreme Court this term. The court dodged a ruling in the case, leaving in place, at least for now, the broad availability of the pills which are used in more than 60 per cent of all abortions. But the decision was based on a legal technicality.
In a separate abortion case, this one involving emergency room abortions to save the health, but not the life of the mother, the court also ended up with a procedural ruling that allowed such emergency abortions to resume in Idaho. Interestingly, it was the high court itself, not the lower courts, that had stopped emergency room abortions while it considered the case. In the end, though, the justices apparently thought better of it, sending the case back to the lower courts, perhaps to avoid another big abortion ruling in an election year.
That said, however, like the mifepristone case, the emergency abortion case may well end up back at the court in the not so distant future.
Finally, the court has brought a good deal of public skepticism upon itself again this term. Though the Chief Justice finally managed to get his colleagues to agree on a code of ethics early in the term, the justices got little credit for it because of the gaping holes in the code that critics said they could drive a truck through. Indeed, FixTheCourt, an organization dedicated to greater court transparency, found that Justice Clarence Thomas had received some $4.2 million in gifts and luxury trips over the past 20 years, much of it from Republican megadonors. In contrast, FixTheCourt reported that the other eight justices, plus the eight retired or deceased justices got gifts that altogether were valued at roughly $600,000 over the same 20-year period.
Perhaps worse was the fact that Neither Justice Thomas nor Justice Samuel Alito recused himself from the Trump cases. Alito might be forgiven for not recusing himself when his wife flew a flag sympathetic to the Stop the Steal movement outside the couple’s home. But Thomas’s wife, Virginia, was actively involved in efforts to recruit fake electors to overthrow the 2020 election, yet he participated in the Trump case directly involved in that issue.
