From unanimity to ‘fear mongering’: How the raucous Supreme Court term turned in Trump’s favor

CNN
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Just as the Supreme Court was heading into its final arguments of what would become a dramatic and historic term, Justice Amy Coney Barrett issued a plea to her warring colleagues.

“This is not the time to amplify disagreement,” Barrett, a conservative and the second-most-junior justice, scolded the court’s liberal wing in a decision allowing former President Donald Trump to appear on presidential ballots despite his actions on January 6, 2021. “Writings on the court should turn the national temperature down, not up.”

Four months later, it seems no one took her advice.

In a decision Monday granting sweeping immunity to Trump, Chief Justice John Roberts accused the liberal dissenters of “fear mongering” and “ignoring” fundamental constitutional principles. In an unusually hostile dissent, Justice Sonia Sotomayor dispensed with the traditional nod to “respectfully” disagreeing and instead noted her “fear for our democracy.”

As the early-in-the-term bonhomie smashed up against politically fraught legal questions, the six conservative justices lined up against the three liberals in significant cases overturning a Trump-era ban on bump stocks, severely reducing the power of federal agencies to approve regulations, and giving cities and states more power to punish people who are homeless from sleeping outside.

Even when they agreed on the bottom line, such as in a June decision that upheld a federal law aimed at disarming domestic abusers, they split sharply in a series of concurrences over the reasoning of their decisions.

Here are some key takeaways from the term:

For years, Trump had an at-best spotty record on a high court that he largely helped to build, with the court’s conservatives breaking with him on the 2020 election and his tax records.

This term, the former president got the Supreme Court he always wanted.

A 6-3 majority ruled that Trump had broad immunity from prosecution for official actions he took in office, making it unlikely he would face trial in special counsel Jack Smith’s election subversion case until after the November election – if at all.

Trump named three justices to the court during his four years in office – Neil Gorsuch, Brett Kavanaugh and Barrett. In the majority immunity decision on Monday, all three sided with the court’s underlying conclusion.

That wasn’t the only win for Trump this term. In March, the court ruled that he could appear on presidential primary ballots despite a claim that he violated the “insurrectionist clause” in the 14th Amendment for his actions on January 6, 2021. And late last month, the court limited the power of prosecutors to pursue obstruction charges against those who rioted at the US Capitol that day, narrowing the scope of a law that could have tacked years onto sentences.

Trump claimed victory in that outcome, with his campaign seizing on the political message it helps him make about the Justice Department.

Biden, on the other hand, had an especially difficult term. The court blocked his proposal to reduce smog and air pollution, overturned a bump stock ban that Trump had implemented and Biden defended, and severely limited the ability of the federal government to approve regulations.

The administration did post some wins, notably in two abortion cases and a major gun rights appeal.

The justices dodged major legal questions posed by two bombshell abortion cases, with the court sweeping away one of its biggest controversies in an election year through technicalities.

In one case – a challenge to the availability of a drug used for medication abortion, which makes up two-thirds of all abortions in the country – a unanimous court ruled that the anti-abortion doctors and medical associations that filed the lawsuit did not clear a procedural threshold known as “standing.” That means that the doctors and groups weren’t harmed by the Food and Drug Administration’s expanded access to mifepristone in a way that permitted them to challenge it.

“We recognize that many citizens, including the plaintiff doctors here, have sincere concerns about and objections to others using mifepristone and obtaining abortions,” Kavanaugh wrote for a unanimous court. “But citizens and doctors do not have standing to sue simply because others are allowed to engage in certain activities – at least without the plaintiffs demonstrating how they would be injured by the government’s alleged under-regulation of others.”

A second case dealt with abortion access in medical emergencies, and a bare majority of justices determined that the court had taken up the dispute over Idaho’s abortion ban prematurely. Four justices – three stalwart conservatives and one liberal – dissented from the punt and accused the majority of depriving the country of much-needed resolution to the question of whether a federal emergency care law trumps strict state abortion bans.

In one sense, the decisions represented another political win for Trump. Democrats have been able to organize, raise money and move votes based on the court’s decision two years ago to overturn Roe v. Wade, the 1973 ruling that established a constitutional right to abortion. By backing away from the abortion decisions this term, it may make it harder for progressives to keep that issue front and center in an election year.

The Supreme Court, in many ways, is stuck in 2022.

That’s the year the conservative majority overturned Roe v. Wade and vastly expanded gun rights. Echoes of those rulings featured prominently on the court’s docket this year, and the latest decisions will almost certainly bring back both issues again – eventually.

An 8-1 majority upheld a federal law that bans people who are the subject of domestic violence restraining orders from possessing guns. While that was a significant win for the Biden administration, the court made exceedingly clear that a series of related gun control measures will be vulnerable to challenge in short order.

On Tuesday, the court declined to hear oral arguments next term on cases dealing with gun ownership for nonviolent felons and people addicted to drugs as well as bans on “assault-style” weapons in Illinois. But the justices sent many of those matters back to lower courts, meaning those same issues will almost certainly return.

A punt in two First Amendment cases challenging state laws that attempted to regulate social media will likely return to the high court. And the decision about Trump’s immunity may also wind up thrusting procedural questions about Smith’s election subversion charges back on the court’s plate.

Abortion, too, seems destined to return because the court declined to resolve the central questions in each dispute.

In the medication abortion case, three conservative states have intervened to push forward with the legal attack on the drug, vowing to take the case back up to the high court. The emergency abortion case will play out in lower courts.

If Trump wins another term, however, both abortion cases could be moot. Trump, for instance, could withdraw regulatory moves that made abortion drugs easier to obtain. His Justice Department could also rescind government guidance to hospitals that interprets federal law as obligating emergency abortion in states that ban the procedure.

It often takes several terms for a Supreme Court justice to find their voice. Barrett, who took the bench in October 2020, showed a streak of independence in her fourth term that some of her critics may have found surprising.

That was particularly notable in the immunity decision, in which Barrett departed from her colleagues on a technical but potentially significant question of whether a jury can even consider evidence of Trump’s official actions in a potential trial. Barrett raised concerns that decision could “hamstring the prosecution.”

“The Constitution does not require blinding juries to the circumstances surrounding conduct for which presidents can be held liable,” she wrote.

In the Idaho abortion case, it was Barrett who wrote a concurring opinion for the court’s more centrist conservatives, including Roberts and Kavanaugh, that offered the clearest explanation for the unsettled outcome. More to the point, it was the position she had raised during oral arguments in that case in April that the court ultimately appeared to embrace.

Her argument was that Idaho’s abortion law no longer appeared to conflict with the Biden administration’s federal guidance on emergency abortions.

“What’s the conflict?” Barrett demanded from the attorney representing Idaho. “Why are you here?”

While the court sometimes resolved cases with lopsided majorities, there was considerable disagreement about the reasoning of some of those decisions. Supreme Court-style scraps repeatedly broke out in concurrences over how to think about history when deciding cases and over the plain meaning of the text of the laws involved. Barrett was at the center of many of those disputes.

In perhaps the most notable example, the former law professor and appeals court judge sided with two liberal justices in a dissent from the court’s decision to narrow a felony obstruction charge federal prosecutors filed against hundreds of people involved in the January 6, 2021, attack on the US Capitol. At the center of that case was a former Pennsylvania police officer, Joseph Fischer, who briefly pushed his way into the Capitol.

Writing for a six-justice majority, Roberts ran through a text-heavy analysis of the law, parsing meaning from the word “otherwise” and relying on “common sense intuition” to glean that Congress couldn’t have possibly meant to tuck so broad a prohibition into a law enacted in response to evidence tampering after the 2001 Enron scandal.

But Barrett quickly waved aside that analysis, breaking with her conservative colleagues on what it means to read the plain meaning of a law. Fischer’s case, she asserted, should have been an “open and shut” matter.

“So why does the Court hold otherwise?” she asked. “Because it simply cannot believe that Congress meant what it said.”

Last year, the Supreme Court adopted a code of conduct in a response to a barrage of criticism about the off-bench activities of some justices, namely Clarence Thomas and Samuel Alito.

If the hope was that the document would take ethics out of the limelight, it failed.

For a second year in a row, the final months of the court’s session were dominated by the ethics controversies that plagued some members of the bench almost as much as its caseload.

Congressional Democrats repeatedly called on Thomas to recuse himself from the cases concerning Trump because of efforts by the conservative justice’s wife to reverse the 2020 election in Trump’s favor. Thomas, the court’s longest-serving member, rebuffed those appeals.

Alito, too, was shrouded in controversy again this year, with the conservative justice also rejecting calls for his recusal in the cases concerning the 2020 election and Capitol attack that came after media reports documenting two provocative flags raised at his properties: an upside-down US flag hoisted at his home in Virginia in early 2021 and an “Appeal to Heaven” flag at his New Jersey home last summer.

Both flags became symbols for Trump’s supporters and were carried by January 6 rioters, though Alito said that was not the message the flags were intended to convey.

Alito pinned responsibility on his wife, Martha-Ann Alito, and later told Democratic lawmakers who urged him to recuse himself that the flag controversies “do not meet the conditions for recusal” put forth by the newly adopted ethics code.

Weeks later, Alito and his wife were in the spotlight again after an activist critical of the court released secret recordings of conversations she had with the two during an event this spring. The woman, who represented herself as a religious conservative, goaded them into speaking candidly about a range of politically sensitive topics, with the justice at one point endorsing the idea that the country should be returned “to a place of Godliness.”

Some ethics experts say the court’s issues in that space undermine their decisions, particularly in hot-button cases.

“You would assume that ethics and jurisprudence go hand-in-hand in that so long as the first one is buttoned up, the majority of the country will not be questioning as much the second part of that equation. But that’s not where we’re at,” said Gabe Roth, executive director of Fix the Court, which has pushed for more transparency from the federal judiciary.

“Ethics is continuing to be a major issue. And it’s continuing to erode the legitimacy of the court and the trust in the court,” Roth added. “Until these issues are put to rest, they’re going to continue to dog the nine of them.”

Several major rulings from the court’s conservative bloc will make it harder for agencies to defend regulations in court, shifting power away from the executive branch and into the judiciary.

For the conservative legal movement, the rulings were milestone victories in the war against the so-called administrative state. In scorching dissents, the liberal justices accused the majority of a power grab that kneecaps Congress’ ability to address evolving and complicated problems.

The Supreme Court’s ruling in a pair of cases dealing with a fishing regulation were arguably the most consequential this term for determining how the federal government functions. Roberts, writing for an ideologically divided 6-3 court, overruled a decades-old precedent that instructed courts, in disputes over regulations, to defer to the agency interpretation of a statute if the law was unclear. That practice was known as “Chevron deference,” based on the 1984 decision in Chevron v. Natural Resources Defense Council.

The deeply entrenched precedent in Chevron touched on all areas of regulatory law, meaning its reversal will invite litigation against scores of agency rules, and gives judges a more central role in deciding the nuances of a regulatory statute.

The court also ruled that the Securities and Exchange Commission must handle fraud claims in court rather than with in-house tribunals, saying it was unconstitutional for the SEC to use an internal administrative process to enforce security fraud law.

Finally, in a 6-3 decision issued Monday, the court also essentially extended the statute of limitations for when lawsuits against government regulations can be filed. Tied with the Chevron decision, critics say that could open the floodgates of litigation over federal regulations.

“At the end of a momentous term, this much is clear,” Justice Ketanji Brown Jackson wrote in dissent. “The tsunami of lawsuits against agencies that the court’s holdings … have authorized has the potential to devastate the functioning of the federal government.”