Scott Gurvey's Public Offerings

In my two previous columns (here and here) I detailed some of the winners and losers resulting from the opinions issued during the Supreme Court term just ended. Now let us look at the biggest winner of them all, the Supreme Court itself. In the last three weeks of the term, the Supreme Court transferred much of regulatory and administrative authority and rulemaking to itself. The federal courts were not authorized and are not equipped to serve as roving regulators of last resort for hundreds of federal agencies. According to the Court:

• Judges know more about science than scientists.
• Judges know more about medicine than doctors.
• Judges know more about structural safety than engineers.
• Judges know more about climate change than meteorologists.

In addition, the Court has set itself up as the arbitrator for all presidential claims of immunity. It sent the case, Trump v. United States, back to the district court to rule on each individual claim but gave such convoluted and ambiguous instructions that it almost guarantees the case will be coming back to the Supreme Court in the future. Unless Trump wins a second term and stops it.

It appears Chief Justice John Roberts, who wrote the opinion for the supermajority, was so offended by the multiple indictments of Trump that he went far beyond what even the most pessimistic court observers expected. His grant of near total immunity to presidents is not grounded in any part of the Constitution. It is simply made up.

The Court has also put itself in a position to review each state law passed on the subject of abortion, now that it has ruled (Moyle v. United States) that hospitals in Idaho that receive federal funds must allow emergency abortion care to stabilize patients, even though the state strictly bans the procedure. The lower courts, and the Supreme Court, will have their hands full.

The bottom line is that the Court trusts no institution in America as much as it trusts itself. Judicial supremacy is not something the framers of the Constitution planned. They designed a system of co-equal branches of government, each having checks to balance the other two. The supermajority on the Court believes the other two branches cannot be trusted. But it does not look in the mirror. The flaws and biases it sees in the other branches are also true of itself.

This term the Court took an unusually small number of cases. But it issued an unusually high number of blockbusters opinions upsetting what had been understood to be settled law and precedent. Roberts assigned himself to write many the cases decided by the conservative supermajority. Yet he was unable to rein in the rest of the coalition, who often chimed in with concurring opinions attempting to qualify their positions.

Justice Clarence Thomas, he of the ethically challenged, has frequently deviated from tradition, and invited litigants to file cases that would give the supermajority a vehicle for overriding precedents Thomas dislikes. In a concurring opinion in the presidential immunity case he raised the separate question of whether Attorney General Merrick Garland violated the Constitution when he appointed Special Prosecutor Jack Smith in November 2022 to oversee the two federal prosecutions of Trump.

Special counsel appointments have been around since the administration of Richard Nixon and they have survived all challenges in court. Justice Thomas should have recused himself in the immunity case because his wife, Ginni Thomas, was an active player in Trump’s conspiracy to subvert the 2020 election. Yet Thomas acted as though there had been no conflict of interest.

Thomas, serving as counsel for Trump, has already been successful in making his position law. Trump appointed South Florida District Court Judge Aileen Cannon completely dismissed the criminal case against Trump charging him with mishandling top-secret documents, finding that prosecutor Smith was improperly appointed. In her opinion, Cannon cited Thomas’s concurrence three times. Smith will appeal. The Eleventh Circuit is likely to overturn Cannon, but who knows what will happen when the case reaches the Supreme Court. We already know Thomas’s vote. Ironically, Cannon’s decision might help Hunter Biden. The president’s son was also convicted by a special counsel, although the details are different. And if Trump wins election to a second term, Cannon has already submitted her resume for the next Supreme Court opening.

UPDATE 7-19-2024–> Lawyers for Hunter Biden filed a motion asking that his conviction be vacated and the indictment against him dismissed because the special prosecutor was improperly appointed. The motion makes the same arguments Trump made in his case and cites Judge Cannon’s dismissal.

Jesse Wegman, a member of The New York Times editorial board, writes, “The court’s power derives from its perceived legitimacy, which in turn depends on its public approval. The more it issues unpopular, unhinged decisions, the more that approval rating, already at record lows, continues to plummet. The justices could choose to respond to this by showing a modicum of respect for the plain language of the Constitution, for longstanding federal law and for its own established precedents.

“But that would betray the long effort by right-wing activists and lawmakers to transform this court into the sword and the shield in their culture war. Senator Mitch McConnell didn’t play the most egregious political hardball in living memory only to be rewarded with a bunch of moderate legal nerds in robes.

“So instead, the justices in the court’s supermajority have raced to push through a lengthy conservative wish list of decisions, upending decades of well-settled law even as they pretend they’re being measured and reasonable. In its way, this subterfuge is understandable: Who wants to be seen as allowing violent people to walk around armed, or forcing pregnant women to wait until they are on the verge of death before they can receive standard medical care?”

It is the job of the courts to say what the law is. But this does not give judges the right to make binding pronouncements about any legal or political question that strikes their fancy. And it does not give the Supreme Court, in particular, the right to rewrite the Constitution for its own ends.

The importance of the election this November looms large.

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