The Supreme Court’s term ends with rash of divisive rulings
BEFORE presenting her opinion in a sleeper case on July 1st, the final day of the Supreme Court’s term, Justice Amy Coney Barrett elicited chuckles in the courtroom. “Sorry,” she quipped, announcing the result in Corner Post v Board of Governors of the Federal Reserve System, “this is not one of the cases you’re waiting to hear.” Chief Justice John Roberts would deliver the highly anticipated presidential-immunity decision—smoothing over Donald Trump’s most profound legal troubles—a few minutes later.
Justice Barrett’s downplaying of that case was misplaced. In her dissent, Justice Ketanji Brown Jackson contended that the decision magnified the fallout from Loper Bright v Raimondo, the case that spelt the demise of the Chevron doctrine. This might have been the most important rule governing government that most Americans had never heard of—until the court struck it down this term too. “The tsunami of lawsuits against agencies” would empower plaintiffs to challenge long-settled regulations issued by federal agencies, she warned, and could “devastate the functioning of the federal government”.
In the last five days of the term, the three justices appointed by Democratic presidents each took a turn decrying the conservative majority’s attack on the administrative state. Justice Jackson had a go in Corner Post, Justice Kagan in Loper Bright v Raimondo, the case concerning herring fisherman that gave the justices reason to strike down the Chevron doctine. And Justice Sotomayor took her turn in Securities and Exchange Commission (SEC) v Jarkesy, a successful challenge to the SEC’s procedure for adjudicating and penalising securities fraud. Each also took the unusual step of delivering an oral summary of her dissent from the bench—a sign of especially vehement disagreement.
This three-pronged throttling of administrative agencies would have added a fourth had Justices Samuel Alito and Neil Gorsuch found three colleagues to kill the Consumer Financial Protection Bureau (CFPB), an agency established in 2011 to promote fair-dealing among America’s financial institutions. Still, the long-developing deregulatory goal of the conservative legal movement had a banner year at the Supreme Court—a trajectory that would probably be supercharged if Mr Trump wins a second presidential term.
The chances of another four years for Mr Trump improved on July 1st when, in Trump v United States, the case concerning presidential immunity, the six conservative justices gave the candidate something approaching a stay-out-of-jail card.
Chief Justice Roberts, who wrote the majority opinion, worried that presidents would not be able to fulfil their responsibilities if their days in office could later subject them to criminal prosecution. There is no refuge in the “good faith of prosecutors”, he wrote, so former presidents should be handed a wide umbrella on their way out of the White House. While Chief Justice Roberts acknowledged that private behaviour with no connection to the presidency can get ex-presidents in hot water, he gave no examples, nor any guide as to when a president is acting as a president (and is therefore immune) and when he’s not. That is for the lower courts to sort out. But the presumption, after Trump v United States, is always on the president’s side.
In her concurring opinion, Justice Amy Coney Barrett was willing to say that Mr Trump’s “alleged attempt to organise alternative slates of electors” is “private and therefore not entitled to protection”. Or as Lawrence Lessig of Harvard Law School put it, “the president has no role in the selection of the president”. But rather than let Jack Smith, the special counsel, get on with litigating a pared-down version of his indictment, the chief justice opted for the path of most resistance.
The pacing of Mr Trump’s immunity plea helped the former president—and contrasted with the alacrity with which the court handled Trump v Anderson, the ruling that he was not disqualified from the Republican primary ballot in Colorado. The justices declined to weigh in early when Mr Smith asked in December. They took 16 days (compared with two in Anderson) to decide to review the appellate court’s ruling against Mr Trump. They scheduled the oral argument 57 days later, compared with 34 in Anderson, and handed down the decision after 67 days, compared with 25. So when time was of the essence for the viability of Mr Trump’s candidacy, the court acted quickly. When the time crunch involved prosecution of Mr Trump, urgency was absent.
Decisions, decisions
What of the other disputes that dotted the justices’ docket? In Fischer v United States, six justices said January 6th rioters could not be charged under a section of a federal obstruction law. (The effect seems muted, as Merrick Garland, the attorney-general, says all of them were charged under other laws, too.) City of Grants Pass v Johnson rejected a claim that it is cruel and unusual punishment to fine homeless people for sleeping outdoors. The justices also threw out a settlement compensating victims of the opioid crisis, subjecting the Sackler family to individual lawsuits.
Two decisions involved abortion rights. Food and Drug Administration (FDA) v Alliance for Hippocratic Medicine concerned an attack on mifepristone, a pill used in 63% of abortions in America. Starting in Amarillo, Texas, where they were sure to land in the courtroom of a conservative judge, the plaintiffs struck a blow against mifepristone last year. The judge took the extraordinary step of de-authorising the drug, which the FDA approved in 2000. After this ruling partially survived a trip to the Fifth Circuit Court of Appeals, the Supreme Court weighed in. The justices decided unanimously that the pro-life challengers had no plausible argument for “standing”—the legal right to sue: plaintiffs must show they have suffered a concrete injury that is traceable to the FDA’s moves expanding mifepristone’s availability.
For now, mifepristone continues to be available through telehealth appointments and post. But more legal challenges are on their way, with several states (Kansas, Idaho and Missouri) leading the charge. Project 2025, the Heritage Foundation’s 920-page manifesto for transforming America if a Republican becomes president, calls abortion medication, “the single greatest threat to unborn children in a post-Roe world. The drug’s FDA approval, it reads, should be reversed.
Another partial and potentially fleeting win for abortion access came in Moyle v United States, a fight over Idaho’s abortion law allowing terminations only in rare circumstances. It appeared the Supreme Court would resolve whether the Emergency Medical Treatment and Labour Act, a federal law requiring hospitals receiving public funds to provide “necessary stabilising treatment” to all-comers, trumped Idaho’s ban on emergency abortions for women whose pregnancies threatened their health. But the justices opted to dismiss the case as improvidently granted and let the district court’s previous modification of Idaho’s law take effect, for now.
More return correspondence is expected after the court’s array of opinions in United States v Rahimi, a case asking whether a Zackey Rahimi, a man who threatened his girlfriend with a gun—and shot up a few locales—nevertheless has a Second Amendment right to his weapons. The justices published seven different opinions, coalescing 8-1 against Mr Rahimi to hold that the government can take guns away from demonstrably dangerous people, and from those subject to a domestic-violence restraining order. But Justice Thomas, author of the 2022 ruling radically bolstering gun rights, dissented, telling his colleagues they had mangled his masterpiece.
Over the past three years the court has ticked the three boxes of the conservative legal movement: ending abortion rights, overturning affirmative action and constraining the administrative state—along with bolstering the Second Amendment. This term has been particularly busy. So a fair question is: what’s next? A large share of the justices’ attention in the next couple of years may turn to clarifying what they meant in the streak of big decisions they have just issued. ■
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