Scott Gurvey's Public Offerings

Every summer professors at the nation’s law schools huddle to discuss what, if any, changes should be made to their teaching curriculum after the Supreme Court term just ended. This year, they are scrambling to deal with the train wreck for constitutional law that was the Court’s 2023-2024 term.

I am not a lawyer. But after fifty years as a journalist, I am spending my emeritus years in part teaching a course titled “Media Law and Ethics for Journalists” in the UCLA Extension program. This is a required course in the school’s journalism certificate program and is available online.

In the course we limit our discussion of constitutional law to First Amendment issues, specifically those concerning the freedom of the press. I do give a general overview of how the Court reaches its decisions, using material I learned fifty years ago in the first class I took on constitutional law. That lecture has noted the Court paid particular attention to prior cases, (precedent or stare decisis), deferred to the legislative branch, deferred to the executive branch and the specialized agencies it administers, attempted to keep its rulings as limited as possible and did not address issues that haven’t been raised by the litigants in the case before it.

My class will have to be updated this year because the current conservative supermajority on the Court has been pretty much ignoring all those traditions. In 2022, it ended a woman’s right to make her own decisions on abortion after 50 years of precedent (Dobbs v Jackson Women’s Health). In 2023 it ended affirmative action programs in college admissions after 60 years of precedent (Students for Fair Admissions v. Harvard).

In the term just ended there are four cases I want to note. The Court put judges in charge of reviewing the decisions of experts at federal regulatory agencies, allowed cities to criminalize homelessness, made it easier for people indicted for their role in the January 6th insurrection to escape some charges, and said it is okay for public officials to take bribes as long as the payoff comes after the act.

LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO,
SECRETARY OF COMMERCE, ET AL.

In issuing this ruling, the court overturned a 40-year-old legal precedent known as “Chevron deference,” which required courts to defer to the administrative actions taken by federal agencies. The issue, decided by a six to three ideological split, has long been a target of conservatives interested in reining in the power of the agencies, which they call “the administrative state.”

“Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires,” Chief Justice John Roberts wrote for the Court. The chief justice called the earlier decision a “judicial invention that required judges to disregard their statutory duties.”

The conservatives claim their opposition to the federal bureaucracy is based on the belief that a smaller government is better for the nation. Critics say they are simply doing the bidding of corporate America. The fallacy in the conservatives’ argument is that the regulatory agencies were not created on a whim. They were created in recognition of the fact that the country has grown greatly since its founding and the world has become highly technical in nature requiring expert administration that cannot be expected of a member of Congress. The agencies are mostly staffed with nonpartisan technical experts who have the skills required in a complex technical society.

The court’s decision will significantly curtail the federal agency’s ability to regulate thousands of private companies, products, industries, and the environment. Congress often retained the option of overturning regulatory decisions of the agencies. Now the courts will have that power and judges will make the decisions, not actual scientists and experts. We can expect lawsuits demanding that judges review:

• – drug safety approvals
• – banking regulations
• – aviation safety rules
• – environmental regulations
• – consumer product safety regulations

“In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar,” wrote Justice Elena Kagan, who voted against repealing the precedent. “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role,” wrote Kagan. “It is not a role Congress has given them. … It is a role this court has now claimed for itself, as well as other judges.”

The precedent the Republican justices overturned is one of the most cited in American law. It is the basis for 70 Supreme Court decisions and around 17,000 rulings from the lower courts. The Food and Drug Administration now expects a slew of new lawsuits ranging from challenges to their powers over tainted food to deciding whether certain drugs are safe. The tobacco industry is also expected to sue. “This is disastrous for public health. This is disastrous for the critical role of science-based regulatory agencies,” said former FDA. associate commissioner and tobacco division director Mitch Zeller. “Chevron has worked well for half a century and makes a lot of sense.”

Laurence Tribe, liberal legal scholar who is University Professor Emeritus at Harvard University, writes, “Once again, the conservative judges have sided with corporate profits over the well-being over the American people. They don’t care what these companies do to us if the shareholders (and MAGA donors) are pleased. By undoing such a bedrock precedent, the court is once again making it clear that they don’t care about the law. The conservatives on the court are right-wing activists working to enact the Republican Party’s plutocratic agenda.”

In the same vein as Loper, SEC v. Jarkesy, another 6-3 opinion, invalidated the Security and Exchange Commission’s ability to enforce securities fraud laws by no longer allowing the SEC to impose civil penalties without a jury trial.

In Corner Post v. Board of Governors of the Federal Reserve System, the dissent warned the majority that its 6-3 opinion will allow industry groups to launch shell companies to fight governmental regulations imposed decades ago without any time limit.

And in Ohio v. EPA, a 5-4 majority opinion blocked the EPA’s interstate plan to reduce air pollution from upwind states. Justice Amy Coney Barrett joined the liberal justices in dissent, criticizing the majority for basing its decision on the EPA’s alleged failure to respond to one “vaguely” worded comment from a trade association – out of thousands of pages of comments from other groups.

As if to underscore the folly of the Court’s ruling in Loper, the opinion of the Court in Ohio, written by Justice Neil Gorsuch, referred five times to “nitrous oxide,” which is greenhouse gas that’s more commonly known as an anesthetic and referred to as “laughing gas.” The opinion meant to refer to “nitrogen oxide,” an air pollutant that the EPA’s policy at issue was aimed at reducing.

The court embarrassingly issued a rare corrected opinion that fixed the error throughout the ruling, after the mistake gained traction on social media. The mistake was seized on by critics of the court’s conservative majority, with writer Elie Mystal noting on X, “Remember folks, Neil Gorsuch thinks that he should have the final say on environmental regulations, not the experts at the EPA.” P.S., Gorsuch’s mother worked to cripple the EPA during the Reagan administration.

CITY OF GRANTS PASS, OREGON v. JOHNSON ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED

Here the Court, in another 6-3 decision dominated by the supermajority, held that homelessness is not a status protected by the Eighth Amendment’s prohibition on cruel and unusual punishment, therefore laws banning homeless people from sleeping in public spaces are constitutional.

Local and state officials across the nation are struggling with how to manage the nation’s homelessness crisis. Prohibiting homeless encampments is one potential tool, but many jurisdictions do not have enough beds for everyone, and many unhoused people prefer staying outdoors to being in a shelter. Now, according to the Supreme Court, homelessness can be made a crime.

FISCHER v. UNITED STATES

Here the supermajority handed a victory to Donald Trump and the January 6 insurrectionists, throwing out charges against a former Pennsylvania police officer who entered the U.S. Capitol during the Jan. 6, 2021, attacks. By the now familiar vote of 6-3, the Court ruled that the law Joseph Fischer was charged with violating, which bars obstruction of an official proceeding, applies only to evidence tampering, such as destruction of records or documents, in official proceedings.

The ruling could affect charges against more than 300 other Jan. 6 defendants. The same law is also at the center of two of the four charges brought by Special Counsel Jack Smith against former President Donald Trump in Washington, D.C.

SNYDER v. UNITED STATES

And then there is the little matter of bribery, or rather, the supermajority’s continuing drive to weaken anti-corruption laws. On another 6-3 party-line vote, the Supreme Court ruled that state officials may accept “gratuities” from people who wish to reward them for their official actions, despite a federal anti-corruption statute that appears to ban such rewards.

Snyder turns on a distinction between “bribes” and “gratuities.” As Justice Kavanaugh writes for the supermajority, “bribes are payments made or agreed to before an official act in order to influence the official with respect to that future official act.” Gratuities, by contrast, “are typically payments made to an official after an official act as a token of appreciation.” If that doesn’t sound like much of a distinction to you, you are not alone.

The case involved James Snyder, a former mayor who accepted a $13,000 gratuity from a truck company after the city purchased five trash trucks from that company for $1.1million. Snyder claims that the money was a consulting fee, but federal prosecutors nonetheless charged him with violating an anti-corruption statute. That statute prohibits state officials from “corruptly” accepting “anything of value from any person, intending to be influenced or rewarded” for an official act.

Justice Jackson writes in her dissent; the most natural reading of this statute is that it targets both bribes (payments that “influenced” a future decision) and gratuities (payments that “rewarded” a past decision). Jackson writes the statute should be read to prohibit “rewards corruptly accepted by government officials in ways that are functionally indistinguishable from taking a bribe,” much like the payment at issue in this case appears to be. Look for people wanting favors from public officials to become big tippers.

These cases are just my most notables. C-SPAN has a great review of the entire Supreme Court term. So does the University of Chicago Law School. I wrote in my previous column about the Court’s decision granting the president powers of immunity not found in the Constitution. I’ll post a concluding column in this series in a few days.

#####