This post first appeared at Common Dreams on July 5, 2024.
An Arrogant Supreme Court Is Now the Enemy Within
By Steven J. Harper
Americans know the Supreme Court’s anti-democratic agenda when they see it. Americans know a judicial power grab when they see it. Americans know a king when they see one. Tell me, America, do you like what you see?
Former president Richard Nixon used a ridiculous line to rationalize his misconduct: “If the President does it, that means it’s not illegal.”
On July 1, 2024, Nixon’s outrageous position became the law of the land.
But that is only the most recent illustration of how Donald Trump’s Supreme Court is remaking America. The justices comprising the Court’s six-member conservative supermajority are foisting their personal vision for the country on citizens who largely disagree with that vision. Trump appointed three of them.
Two years ago, Dobbs v. Jackson Women’s Health Organization was a harbinger. The Court’s six conservatives overruled the landmark 50-year-old precedent, Roe v. Wade, and obliterated a woman’s right to abortion – a right that the vast majority of Americans across the political spectrum support.
Dobbs was only the beginning.
The Court Abandons Stare Decisis
The conservatives justices’ agenda requires violating the bedrock principle of stare decisis.
Justice Kagan explained, “Adherence to precedent is ‘a foundation stone of the rule of law.’…. Stare decisis ‘promotes the even-handed, predictable, and consistent development of legal principles.’ It enables people to order their lives in reliance on judicial decisions. And it ‘contributes to the actual and perceived integrity of the judicial process,’ by ensuring that those decisions are founded in the law, and not in the ‘personal preferences’ of judges.” [Citations omitted]
Already at a historic low, the Court’s perceived integrity continues to suffer self-inflicted wounds at the hands of its conservative members. They are imposing their personal preferences on the entire nation.
In the waning days of the Court’s 2023-2024 term, some of the most draconian – and dangerous – emerged from the shadows.
The Court Guts the SEC and Imperils Other Federal Agencies
On June 27, 2024, the Court’s conservative block (Justices Alito, Barrett, Gorsuch, Kavanaugh, Roberts, and Thomas) issued SEC v. Jarkesy. The ruling bars the Security and Exchange Commission from adjudicating civil fraud actions itself before an administrative law judge. Instead, the SEC must now file all such actions in federal court where a defendant can request a jury trial, thereby crippling the agency’s enforcement capabilities.
On behalf of the Court’s three dissenting liberals (Jackson, Kagan, and Sotomayor), Justice Sotomayor wrote, “Congress has enacted countless new statutes in the past 50 years that have empowered federal agencies to impose civil penalties for statutory violations… Similarly, there are, at the very least, more than two dozen agencies that can impose civil penalties in administrative proceedings… The constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.”
Justice Sotomayor added, “Today’s ruling is part of a disconcerting trend: When it comes to the separation of powers, this Court tells the American public and its coordinate branches that it knows best… Make no mistake: Today’s decision is a power grab.”
The Court Kills the Climate
Also on June 27, 2024, in Ohio v. EPA, five of the Court’s conservatives blocked the Environmental Protection Agency’s plan to protect “downwind” states from the air pollution that “upwind” states generated.
From 1981-1983, Justice Gorsuch’s mother, Anne, had led the EPA during the Reagan administration. Repeatedly, she clashed with environmentalists and congressional investigators challenging her management of the agency. In 1983, the White House forced her to resign.
In her 1986 memoir, Anne Gorsuch wrote that her rocky tenure and unceremonious departure distressed her son, Neil, who was 15 years old at the time:
“You should never have resigned,” he told her. “You didn’t do anything wrong. You only did what the President ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?”
Forty years later, Justice Neil Gorsuch wrote the majority opinion in Ohio v. EPA.
The Court “Grasps for Power”
The following day, on June 28, the conservative block struck again in Loper Bright Enterprises, v. Raimondo, overruling a 40-year-old precedent, Chevron v. National Resources Defense Council.
Back in 1984, conservatives had scored a big victory when a unanimous Supreme Court first issued the Chevron ruling. It required that courts defer to administrative agencies that filled in gaps or resolved ambiguities in Congress’ regulatory statutes.
At the time, business leaders cheered the decision because President Reagan’s EPA (under Anne Gorsuch) had loosened air pollution emission regulations. To preserve that loosening, the affected businesses wanted courts to respect the EPA’s scientific and technical expertise. The Court agreed, observing, “Judges are not experts in the field, and are not part of either political branch of the Government.” The latter point meant that federal judges had lifetime appointments and weren’t accountable to the electorate, whereas agency administrators served at the pleasure of an elected President..
But in the years that followed, businesses chafed at agency regulation. Along with the conservative legal movement, business leaders reversed course and attacked Chevron unsuccessfully – until Trump’s appointment of Amy Coney Barrett gave the conservatives a supermajority on the Supreme Court.
In dissent, Justice Kagan observed that Chevron “served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies… [It] has formed the backdrop against which Congress, courts, and agencies – as well as regulated parties and the public – all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds – to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
Under Chevron, Justice Kagan added, the Supreme Court itself “has upheld an agency’s reasonable interpretation of a statute at least 70 times. Lower courts have applied the Chevron framework on thousands upon thousands of occasions… Chevron was cited in more than 18,000 federal-court decisions.” [Citations omitted]
“A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority,” Justice Kagan concluded. “The majority disdains restraint, and grasps for power.”
The Court Helps Trump Avoid Accountability
The conservative block saved its worst for last – the July 1, 2024 ruling in Trump v. US. If democracy dies in America, Chief Justice Roberts’ opinion in the case will have been a key contributor.
“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote on the final day of the Court’s term. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”
Writing for the three dissenting liberal members, Justice Sotomayor declared, “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law… [O]ur Constitution does not shield a former President from answering for criminal and treasonous acts,….”
Trump asserts that, if re-elected, he’ll be “dictator for a day.” The Supreme Court’s ruling makes him comparable to a king – a law unto himself – for an entire four-year term.
“I Know It When I See It”
In discussing a pornography case, Justice Potter Stewart once remarked, “I know it when I see it.”
Americans know the Supreme Court’s anti-democratic agenda when they see it.
Americans know a judicial power grab when they see it.
Americans know a king when they see one.
And as Americans come to understand the conservative Supreme Court justices’ profoundly negative impact on their daily lives, they won’t like what they see.
The Belly of the Beast 