Presidential immunity, abortion, guns. The Supreme Court will be issuing major rulings on all these subjects and many more in the next month. With a docket that is unusually loaded with controversial legal questions, the justices are way behind where they usually would be at this point in the term.
Normally, by the second week in June, there are somewhere between four and six really big cases that have not been decided. But this year, there are well over a dozen. And while the court almost always finishes its work by the end of June, this year even some justices are privately predicting they won’t finish until July.
Probably the most headline-grabbing case yet to be resolved is the test of former President Trump’s claim of immunity from criminal charges for his attempts to overturn the Biden electoral victory in 2020. It is the most important test of presidential power since the Supreme Court’s 1974 decision ordering President Nixon to turn over to the Watergate special prosecutor specific — and ultimately incriminating — tape recordings of his White House conversations.
Trump is also implicated in a separate case involving the Jan. 6 riot at the U.S. Capitol, this one involving a federal statute that makes it a crime to obstruct an official proceeding. It is the most serious offense charged against many of the rioters, and Trump is charged as well under the statute.
Aside from those cases, there are other major controversies: two involving abortion, two involving gun regulations and a raft of regulatory cases in which business interests are asking the Supreme Court to limit the federal government’s powers to regulate.
The abortion and gun cases before the court
The most high-profile abortion case tests the FDA’s rules for prescribing and dispensing abortion pills. Since the court struck down Roe v. Wade two years ago, more than half the women terminating pregnancies in this country use pills, and anti-abortion groups are trying to limit the pills' availability. Abortion opponents have challenged not just the FDA’s 2000 approval of the drug mifepristone but also the FDA’s decisions to make the drug easier to get, for instance allowing prescriptions to be filled at pharmacies instead of a doctor’s office.
The other abortion case involves a federal law aimed at ensuring that hospitals don’t turn away patients needing emergency care. Specifically, the issue is whether the law requires abortions in emergency situations when needed to save not just the mother’s life, but also her health.
The gun cases before the court involve challenges to two very different federal laws. One makes it a felony for anyone subject to a domestic violence court order to own or possess a gun. The other is a federal ban, initiated by then-President Trump, on so-called bump stocks — devices that can convert legal semi-automatic guns into illegal machine guns that can fire up to 800 rounds in a minute.
The 'Chevron deference' — and social media platforms are also on the docket
Less high profile, but perhaps more far-reaching than any single one of those cases are a raft of cases brought by business and conservative groups aimed undoing the power of what they call “the administrative state.” The current Supreme Court, with a conservative supermajority that includes three Trump appointees, has been very receptive to many such challenges.
The most consequential seeks to overturn something called “Chevron deference.” That doctrine, adopted by the court 40 years ago, says that if the meaning of a statute is ambiguous, courts should defer to the regulators’ interpretation of the law — the idea being that agencies have the expertise to fill in the gaps to carry out broad congressional mandates. If the court abandons that doctrine, and there is every indication it will, the consequences would almost certainly be profound, limiting the ability of federal agencies to issue regulations on air and water pollution, food and health safety, indeed, just about anything.
Social media platforms are also on the docket. Two cases involve laws enacted in Texas and Florida that limit the choices the companies can make about what to put on their platforms. The companies claim they are like newspapers or broadcast networks, and that they have a First Amendment right to decide what to publish and not to publish. The states counter the companies are more like utilities and subject to regulation.
On a totally different topic, there’s a case that pits the rights of municipalities to clear homeless encampments against the rights of people to sleep outside if there is no shelter.
And there’s a constitutional challenge to a provision of the tax code. That may sound boring but former Republican House Speaker Paul Ryan has warned that if the court were to invalidate the provision, it could unravel a third of the tax code.
With all of this still pending, the court has decided roughly half the cases argued, but only two were on anyone’s list of major cases. In one, the court ruled that states could not ban candidate Donald Trump from the ballot, and in the other the court upheld the funding mechanism of the Consumer Financial Protection Bureau. The Trump ballot case was dispatched quickly in less than a month, but the CFPB case was the second argued in the term, way back on October 3, and wasn’t decided until mid May. Making matters even more puzzling, the decision, written by Justice Clarence Thomas, was by a 7-to-2 vote.
So what took so long?
Just why the court is so backed up is unclear. Among the theories are that even the court’s conservatives are having a hard time reaching consensus, or that some justices are dragging their feet in producing dissenting opinions, or that some of the security measures adopted after the unprecedented leak of the Dobbs abortion decision are slowing down the process. Or maybe it’s just the number of really significant cases the court is considering this term.
So what can you expect in the coming weeks? If you look at the numbers as to which justices have written the most majority opinions and which justices have written the fewest, you see that the two more senior liberal justices — Sonia Sotomayor and Elena Kagan — have written the most, meaning they may not have many more majority opinions to write, only dissents. At the same time, though, the court’s conservatives, especially Chief Justice Roberts, have written the fewest, meaning they likely have lots more majority opinions getting ready to drop.
None of this is good news for the court’s liberals. In fact, in a moment of unusual candor, Justice Sotomayor recently told an audience at Harvard that, “There are days that I’ve come to my office after an announcement of a case, and closed my door and cried.” And, she added, “There are likely to be more” of those days.
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