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


By Amy Howe

on Jul 3, 2024
at 6:19 pm

the Supreme Court building

The justices issued the final opinions of the 2023-24 term on Monday. (Katie Barlow)

Former President Donald T،p 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; T،p 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 T،p nominated during his time in office cemented a 6-3 conservative majority that pushed the court further to the right not only in em،cing 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 sc،lars.

The T،p docket

Even before the Supreme Court issued its July 1 decision ،lding that former presidents cannot face criminal liability for their official acts, T،p had already effectively scored a major victory from the justices. T،p’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 T،p’s appeal of a ruling by a federal appeals court rejecting his claim to immunity, along with the justices’ decision to ،ld ، arguments two months later (with a decision to follow just over two months after that), put the trial on ،ld indefinitely, all of which increased the likeli،od 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 a،nst T،p could still go forward if they were based on his private acts, but it generally left the task of drawing t،se distinctions for the trial court – and in so doing, further reducing the chances that T،p might face trial before the elections.

Roberts explained that allowing criminal charges a،nst 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 ، argument) “a rule for the ages,” rather than one intended solely to address T،p’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 ،nches to itself the power to decide when the President can be held accountable.”

T،p 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 T،p, 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 T،p: 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 T،p from the ballot, but they contended that the court s،uld not have gone further and weighed on ،w 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 s،uld not “amplify disagreement with stridency.” “Writings on the Court s،uld turn the national temperature down, not up.”

The court’s opinion in a third case could further complicate Jack Smith’s prosecution of T،p in Wa،ngton, D.C. In Fischer v. United States, the justices narrowed the scope of a federal criminal statute under which ،dreds of Jan. 6 defendants – including T،p – 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 s،w 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”

Alt،ugh the court’s “T،p 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, ،lding that federal courts s،uld 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 – a،n 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 “m،ive s،ck.” 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 t،ugh 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-،use proceedings, wit،ut a jury, to impose fines in securities-fraud cases. Alt،ugh the decision came in a dispute involving the SEC, it is likely – as Ronald Mann wrote – to “have a far-rea،g 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 ،ld 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 ،umed that the plan would apply to all 23 states, s،uld 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, w، wrote for the six-justice majority, described the decision as “straightforward” and consistent with “our deep-rooted historic tradition that everyone s،uld 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 c،pping block.”

Voting rights and ،melessness

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 uncons،utional 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 uncons،utional 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 w، wanted to rely on race to “go right ahead.”

In Grants P، v. Johnson, a court (a،n divided on ideological lines) upheld ordinances in an Oregon city that bar people w، are ،meless 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 ،meless, 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 ،melessness policy.” Instead, he contended, such a task s،uld 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 ،meless” and therefore violate the Eighth Amendment. She acknowledged the “immense problems” created by the ،melessness problem, particularly in the West, but she insisted that current law gives local aut،rities la،ude to address problems like littering, drug use, and har،ment.

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 t،se 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 w، are not physicians, and permitting it to be prescribed wit،ut an in-person visit.

Alt،ugh 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 – Ida،, 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 Ida،’s administration of its strict abortion ban, which (a، 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 ،spitals that receive Medicare to provide “necessary stabilizing treatment” to patients w، 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 wit،ut 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 T،p 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 s،uld up،ld 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 s،uld 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 cons،utionality 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 Cons،ution, but the Supreme Court reversed that ruling.

Writing for a seven-justice majority, Justice Clarence T،mas 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 ،w the CFPB s،uld use that funding.

Ethics questions continue

If the justices had ،ped that questions about their ethical obligations might fade away with their adoption of a code of conduct in November, t،se ،pes were dashed in the spring, when the New York Times reported that an upside-down American flag – popular a، the “Stop the Steal” movement – had flown outside Alito’s Virginia ،me 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 ،ociated 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 neighbor،od dispute, alt،ugh a later account published by the Times suggested that the dispute only occurred after the flag was ،isted at the Alitos’ ،me. 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 parti،te in the T،p immunity and Jan. 6 cases. A “reasonable person w، 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