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The Supreme Court’s Power Grab

Jacquelyn Martin-Pool/Getty Images

The current Supreme Court justices and former justice Anthony Kennedy at a memorial service for Sandra Day O’Connor in the Great Hall at the Supreme Court, Washington, D.C., December 18, 2023

The Supreme Court in its just-concluded 2023–2024 term extended substantial new rights to hedge fund managers, big business, and former president Donald Trump, while denying constitutional protection to homeless people punished for sleeping in public, Black voters in South Carolina, and an American citizen whose noncitizen husband was denied a visa without explanation. This is perverse. We give unelected courts the power they have so that they can defend the rights of those who cannot protect themselves through the political process. Yet the Court flipped the script this term, consistently doing the bidding of the powerful while turning away the claims of the powerless. And it did so, in its most consequential cases, by the same 6–3 vote, with Republican-appointed justices imposing their will less by law than by sheer force of numbers.

In previous terms, the Roberts Court has vacillated between naked assertions of power, as when it overturned the right to abortion in 2022, and more restrained rulings that rose above partisan divides, as when it last year affirmed that state courts and state constitutions can constrain state legislatures in redistricting. This term, restraint was largely out, as the Republican justices repeatedly upended or refused to follow precedents in order to further conservative ends on voting rights, presidential power, the treatment of the homeless, immigration, and, most consequentially, the authority of the administrative state.

There were some bright spots. The Court protected speech rights in significant cases, including a pair rejecting state efforts to control the content on social media platforms. It dismissed a challenge to federal rules easing access to medication abortion and restored, for now, an injunction that ensures that women in Idaho can get abortions when necessary to stabilize an emergency medical condition. And in a win for women’s safety and gun control, the Court turned back a Second Amendment challenge to a law banning the possession of firearms by individuals subject to domestic violence restraining orders. But on the whole, it was a term in which the conservative justices abandoned modesty, humility, and fealty to precedent and instead voted as a bloc to conform the law to their preferences, using their authority to augment the power of the powerful. 

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The term’s last decision, Trump v. United States, was also its most shocking. Justices generally seek to act as statesmen and rise above partisan lines when confronted by profound questions of presidential power. Not this time. The six-justice Republican majority, who when convenient purport to be bound by the Constitution’s original meaning, abandoned all pretense of originalism to proclaim a brand-new, judicially created presidential immunity. Never before had anyone even asserted that presidents are immune from criminal liability after they leave office. The text of the Constitution provides immunity to members of Congress for certain acts on the legislative floor but affords none to the president. The framers, fresh on the heels of the Revolution, feared strong executives and sought to impose checks and balances, not to grant absolute power. Gerald Ford pardoned Richard Nixon because, everyone assumed, the former president otherwise could have faced prosecution for his involvement in the crimes of Watergate. Even President Trump’s own lawyers, when urging Congress not to impeach him in February 2021, argued that he could be prosecuted after he left office. The executive branch had long maintained that sitting presidents cannot be prosecuted but that former presidents could be.

Yet the Court granted immunity from criminal prosecution for the president’s “official acts,” a term it defined expansively as including all that lies within the “outer perimeter” of the office; it excluded only acts “manifestly or palpably beyond his authority.” The potential effects make Trump’s infamous boast about getting away with shooting someone in broad daylight seem overly modest. As Justice Sonya Sotomayor wrote in dissent, under the decision the president would be immune if he were to order “the Navy Seal Team 6 to assassinate a political rival.” 

The majority reached this result, it claimed, out of concern that absent such immunity, presidents, deterred by the prospect of criminal liability, would not act firmly and energetically. But presidents since George Washington have assumed that, if they committed crimes while in office, they could be prosecuted after their term ended—and whatever else one might say about it, the history of the American presidency shows no signs of timidity. Henceforth, however, presidents will know that they have a blank check. Trump has made no secret of his intention to use the presidency, should he be reelected, to take vengeance against his enemies. Now he can go ahead without fear of prosecution.

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On civil liberties and civil rights, the Court’s record was more mixed. In a pair of much-watched cases, it preserved access to abortion, though without addressing the merits of the disputes. In FDA v. Alliance for Hippocratic Medicine, doctors who opposed abortion sued to challenge FDA rules that approve medication abortion, or mifepristone, and make it easier to obtain (including through telemedicine and by mail). Medication abortion is the most commonly used form of early abortion. The lower courts, including an infamous right-wing federal district judge in Texas, Matthew Kacsmaryk—the judge of choice for outside-the-box lawsuits challenging liberal federal initiatives—ruled against the FDA. But the Court unanimously ruled that the doctors lacked “standing” to challenge the FDA rules, because they were not harmed by them. The doctors did not themselves provide abortions, and their worries about the prospect of treating someone who had used an abortion pill were too speculative to afford them standing to sue. 

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The second abortion case, Moyle v. United States, asked whether hospitals in Idaho were mandated to provide abortions by a federal law requiring emergency rooms to give “stabilizing” treatment to all patients experiencing an emergency, even though Idaho bans abortions except where necessary to save the mother’s life (not her health). A district court ruled correctly that the federal law overrides the state ban in emergency situations, but the Court stayed that ruling and took up the case before the court of appeals could even address it. After intervening prematurely, however, the Court dismissed review “as improvidently granted,” ducking the issue. But significantly, it lifted the stay it had previously issued: for the time being women who need an abortion in Idaho to avert a medical emergency can get one.

William A. Clark Collection/National Gallery of Art

Honoré Daumier: Counsel for the Defense, 1862-65

In two important gun cases, the Court ruled, respectively, for gun owners on what constitutes a machine gun, but against them in a Second Amendment challenge to a ban on possessing guns. The first case, Garland v. Cargill, asked whether a federal statute prohibiting possession of machine guns applied to semiautomatic rifles, such as AR-15s, when they are fitted with a “bump stock.” The whole purpose of a bump stock is to transform a semiautomatic rifle, which fires only one bullet per trigger pull, into a gun that fires multiple rounds with a single trigger pull.

Congress defined a “machinegun” as one that “automatically” shoots multiple bullets with a “single function of the trigger.” In 2018, a year after a shooter in Las Vegas used a bump stock to fire more than one thousand rounds at concertgoers, killing sixty people and wounding at least 413 others, the Bureau of Alcohol, Tobacco, Firearms and Explosives (under President Trump) announced that bump stocks were covered by the prohibition on machine guns, because they enable a shooter to unleash a torrent of bullets with a single trigger pull.

The Supreme Court, 6–3, disagreed. The conservative majority reasoned that the phrase “single function of the trigger” in the statute referred not to the gunman pulling the trigger once but to the inner workings of the gun. Since the bump stock uses the gun’s recoil to cause the trigger to wiggle back and forth internally for each shot, they reasoned, it’s not shooting multiple shots with a “single function.” Maybe that reading is plausible—if you ignore the purpose and context of the law. Surely Congress was concerned not with the inner workings of the gun but with whether a human being could fire multiple shots with a single trigger pull. 

In a second gun case, “common sense” prevailed, as the Court put it. The justices voted 8–1 to reject a Second Amendment challenge to a federal law that bars persons from possessing a gun while subject to domestic violence restraining orders. In United States v. Rahimi, the US Court of Appeals for the Fifth Circuit ruled that because there were no similar domestic violence–related gun laws when the Second Amendment was adopted, the prohibition was unconstitutional. The lower court relied on a 2022 Supreme Court decision that struck down New York’s law limiting the carrying of handguns in public because it found no suitable historical analogues from the time of the Framing. Only Justice Thomas, the author of the 2022 opinion, agreed with that conclusion. Domestic violence was practically the prerogative of husbands at the founding, so it’s hardly surprising that no direct analogues exist. But the majority examined history at a higher level of generality and found it sufficient that there were laws disarming individuals who were found to pose a danger to others. 

The Court divided 6–3 again in Alexander v. South Carolina State Conf. of NAACP, the term’s only voting rights decision.1 The case challenged as “racial gerrymandering” the congressional map that South Carolina’s legislature adopted in 2022 after the 2020 census. A three-judge federal court unanimously found that South Carolina had impermissibly used race to draw the lines between two adjoining districts, to the detriment of Black voters. The mapmakers moved over 100,000 more voters than necessary to equalize populations across the districts, disproportionately relocated heavily Black neighborhoods, had racial data available on their computer screens as they drew the lines, and, after all the moves, ended up with almost exactly the same percentage of Black voters in the district at issue (17 percent)—a percentage that just happened to ensure a safe Republican district. The three judges found that the legislature used race for partisan purposes, which the Supreme Court has long ruled is unconstitutional discrimination. 

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In an opinion by Justice Samuel Alito, the Court not only reversed that decision but effectively upturned the traditional rule that reviewing courts must defer to trial courts’ factual findings unless they are “clearly erroneous.” That standard recognizes that judges who oversee a trial and view the testimony firsthand are in a far better position than a reviewing court on a cold record to assess credibility and determine facts. But Alito announced that in redistricting cases where politics and race are both implicated—meaning almost always—reviewing courts must defer to the legislature accused of racial gerrymandering, by presuming its “good faith” regardless of what the trial court found.

J. Paul Getty Museum

Honoré Daumier: A Criminal Case, 1865

By the same vote of 6–3, the Court ruled that the Eighth Amendment’s prohibition on “cruel and unusual punishments” does not preclude punishing homeless people for sleeping in public. In 1962 the Court invalidated as cruel and unusual a California law that made it a crime to be addicted to drugs, reasoning that states cannot punish “status.” In Grants Pass, Oregon v. Johnson, the lower court reasoned that punishing someone who has nowhere else to go for sleeping outside was cruel for the same reason: it punished them for being homeless. Justice Neil Gorsuch, writing for his conservative colleagues, rejected the analogy, concluding that the Grants Pass law punishes the conduct of sleeping in public, not the status of being homeless. But that is pure (one might even say cruel) semantics; to be homeless is to have nowhere to sleep. As Justice Sotomayor wrote in dissent, “Sleep is a biological necessity, not a crime.”

It was a good term for the First Amendment, at least. The Court ruled unanimously that allegations that New York’s top financial regulator, Maria T. Vullo, had targeted the National Rifle Association for its ideological views and sought to compel banks and insurance companies to blacklist the group were sufficient to establish a First Amendment violation.2 Government officials are free to express their views, the Court acknowledged, but not to coerce others to punish a group for its political ideas. 

And in a pair of cases challenging Texas and Florida laws that seek to control the content posted on social media platforms, the Court unanimously ruled that states have no legitimate interest in regulating platforms’ content because they disapprove of their editorial choices. The platforms, the Court wrote, like bookstores, newspapers, and even private parades, have their own First Amendment rights to determine what content to include and exclude; it’s their decision, not the government’s. 

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The Trump immunity case garnered most of the public’s attention, but the Court’s most consequential decisions continued its aggressive assault on the administrative state—the executive agencies that govern so much of our lives, including financial markets, agriculture, health care, energy, the airwaves, the environment, and the workplace. At least since the New Deal, it has been self-evident that given the complexity and size of the nation, governing would be impossible without these agencies. Business interests nonetheless favor private power over public control and rankle at regulation. As do the Court’s six conservative justices. A 2022 study by the scholars Lee Epstein and Mitu Gulati found that of the fifty-seven justices who have served over the last century, the six most pro-business are the present six Republican appointees. That’s remarkable, considering that period includes the so-called Lochner era, when the Court invalidated virtually every law that sought to regulate big business. 

Along with restricting abortion, expanding access to guns, and reducing barriers between the state and religion, limiting the power of administrative agencies is at the top of the conservative justices’ (and the Federalist Society’s and Chamber of Commerce’s) agenda. Shortly after President Trump took office in 2017, his chief adviser, Steve Bannon, identified the “deconstruction of the administrative state” as a major priority, and the Koch brothers have bankrolled efforts to enlist the courts in that campaign. But administrative law cases tend to attract little public attention, as they involve obscure rules like the “nondelegation” doctrine, the appointments and removal powers, and a newly minted “major questions doctrine.” In recent years the Court invented and invoked the latter to strike down executive branch efforts to protect workers from Covid, reduce pollution in the production of electricity, and forgive student loan debts.

This term, the Court issued three more decisions that will further weaken administrative agencies. In Securities and Exchange Commission v. Jaresky, it ruled that the SEC could not use administrative proceedings to assess fines against a hedge fund manager for violating anti-fraud and pro-transparency rules. Instead, the agency had to file suit in a federal court and afford the defendant the right to a jury. More than two hundred federal statutes empower federal agencies to issue fines against violators of their rules without having to go to federal court, a practice the Court had long approved. The new decision will make it much harder to fine businesses for breaking the rules, and will necessarily reduce accountability given limited government resources. Indeed, because some agencies’ statutes do not authorize them to sue in federal court, they will have no way to fine violators at all. 

The second case, Loper Bright Enterprises v. Raimondo, also 6–3, reversed a unanimous decision that had governed administrative law for forty years and has been applied in thousands of lower court rulings. In Chevron USA Inc. v. Natural Resources Defense Council (1984), the Court reasoned that when a statute is ambiguous or incomplete, Congress is presumed to have intended the agency that enforces it to resolve the ambiguity or fill the gap. Courts therefore deferred to the agency’s interpretation, as long as it was reasonable.

The Morgan Library & Museum

Honoré Daumier: Two Lawyers Conversing, 1879

There are many reasons for such deference to agencies. Resolving ambiguities often requires scientific or technical expertise, a comprehensive understanding of how a regulatory scheme operates, or making policy choices among competing values. It’s clearly preferable to grant deference to agencies, which are staffed by experts and are overseen by politically accountable officials, rather than judges, who have no expertise in the subject and are unaccountable. Or at least it has been for forty years. 

But no longer. In Loper Bright, the Court overruled Chevron and announced that from now on the courts, not administrative agencies, would resolve the ambiguities inevitably left in regulatory statutes. To the majority, it was simple: interpreting statutes is the courts’ job and requires nothing more than legal reasoning. There is no reason to defer to agencies.

Justice Elena Kagan’s dissent was one of her most trenchant in a career of trenchant dissents. She illustrated her point with specific case examples, including one that involved whether a particular squirrel would be covered under the Endangered Species Act, which directs the Fish and Wildlife Services to protect “distinct” species:

Deciding when one squirrel population is “distinct” from another (and thus warrants protection) requires knowing about species more than it does consulting a dictionary. How much variation of what kind— geographic, genetic, morphological, or behavioral—should be required? A court could, if forced to, muddle through that issue and announce a result. But wouldn’t the Fish and Wildlife Service, with all its specialized expertise, do a better job of the task—of saying what, in the context of species protection, the open-ended term “distinct” means?

Proponents of deregulation greeted the Loper Bright decision with as much enthusiasm as anti-abortion groups welcomed Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade. Tony Romm reported in The Washington Post that “mere hours after the Supreme Court sharply curbed the power of federal agencies, conservatives and corporate lobbyists began plotting how to harness the favorable ruling in a redoubled quest to whittle down climate, finance, health, labor and technology regulations in Washington.” Any agency rule that was upheld by applying Chevron deference is now subject to renewed legal challenge.

On the last day of the Court’s term, as everyone was waiting for the Trump immunity ruling, the Court slipped in a third administrative law decision, Corner Post, Inc. v. Board of Governors of the Federal Reserve SystemThe case concerned the driest of legal questions: when a statute of limitations is initiated for challenging agency regulations. The rule had been that challenges to the validity of regulations had to be filed within six years of their publication. The Court, again dividing on 6–3 lines, determined that the statute of limitations is initiated not by publication of the rule but by its application to a party. Now, in order to challenge an agency regulation, no matter how long-standing, all one has to do is incorporate a business and sue. As Justice Ketanji Brown Jackson pointed out in dissent, “There is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face.” The decision practically invites across-the-board challenges to agency rules that the business community dislikes. With the new nondeferential standard of review announced in Loper Bright, a lot more of those challenges are likely to succeed.

It may seem odd that the Court’s conservative justices are so hostile to administrative agencies yet so enamored of presidential power. The agencies, after all, are part of the executive branch. But conservatives have long objected that the agencies are a fourth branch of their own, at odds with the original tripartite structure of our government, and too independent of the president. More significantly, the president’s ability to regulate the private sector on his own is limited and would be toothless without robust administrative agencies. The conservative justices, it seems, favor a muscular president—as long as he can’t interfere with private capital. 

The Jarkesy, Loper Bright, and Corner Post decisions will empower businesses to obstruct administrative agencies’ efforts to slow climate change, protect air and water, ensure the safety of food and medicine, provide access to health care, and counter fraud and instability in financial markets. But the decisions are not just deregulatory. They also dramatically increase the Supreme Court’s power at the expense of administrative agencies. They are thus the very opposite of the judicial restraint that conservatives used to champion—before they had their 6–3 majority. As Justice Kagan wrote in dissent in Loper Bright, “A rule of judicial humility gives way to a rule of judicial hubris,” and the “majority turns itself into the country’s administrative czar.” Or as Justice Sotomayor wrote in dissent in Jarkesy, “Make no mistake: Today’s decision is a power grab.” 

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