With the conclusion of the most recent Supreme Court term, contemplating the notable decisions that have been handed down from the highest court in the land leaves one both vexed and intrigued. The liveliness of the Court in exercising its judicial powers has been astonishing, including deciding upon longstanding or controversial cases that will have a still-untold impact on the American system of government from adjudication to law-making. The flexing of judicial strength is even more jarring given the momentous impact of recent terms on the American body politic, most notably the overturning of Roe v. Wade and the reversal of affirmative action in college admissions. One would expect after such consequential alterations that the Supreme Court would temper its vigor and keep itself in reserve lest it wear out its welcome. But it seems the justices are revving their engines rather than cooling their jets.
In this most recent term, they had tackled various cases, but for the sake of brevity I am keeping the number down to just three cases. But don’t worry, they’ll be the ones you’ll be enticed to read about. The first concerns presidential immunity, Trump v. United States; the second on the state of homelessness, City of Grants Pass v. Johnson; and the last concerned two cases that, in conjunction, overturned the longstanding Chevron doctrine. I will touch on each one by one and then bring it back full circle to the Supreme Court’s robust exertion of influence.
In Trump v. United States, the Court held in a 6-3 decision that former presidents have absolute immunity from criminal prosecution for official acts as within their conclusive and preclusive constitutional authority (a.k.a. exclusive authority). For acts that fell outside official actions there was presumptive immunity. This was seemingly to allow the Chief Executive to perform their duties without looking over their shoulder for fear of being stymied. For unofficial or personal actions, the president holds no immunity from prosecution, though what constitutes these acts is rather opaque. This decision made quite the stir, especially in evoking the idea of an unbounded president being above the law, while others asserted that such immunity for the president was already there but now explicitly defined. Nonetheless, it put the Supreme Court front and center.
Next, in City of Grants Pass v. Johnson, we come to the controversial 6-3 decision regarding the enforcement of “anti-camping” ordinances and other similar laws affecting homeless people in American cities. The issue was whether these laws were considered “cruel and unusual punishment” in violation of the Eighth Amendment. The Court, reversing a prior ruling, asserted that this was the purview of the local and city governments to decide upon. The Court reasoned that the Eighth Amendment generally applied only to methods of punishment rather than criminalizing particular conduct. The Court was unwilling to wade into the complex issues of involuntary homelessness and believed that it should be left with individual cities to craft policy to address it. Detractors believed that forcing the homeless to constantly move or be kicked out of public areas is akin to cruel and unusual punishment, having their status used against them. The issue of rising homelessness has put it in the national spotlight and this ruling has illuminated it further.
Lastly, we come to the ill-fated Chevron doctrine. First coming about in the 1984 decision in Chevron U.S.A v. Natural Resource Defense Council, it allowed for courts to give deference to administrative agencies when it came to construing a statute and creating regulations based on those statutes. That deference was now overturned with the twin cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. Chevron had grown to be an unworkable standard that neither side of the political aisle was fully advocating for, since such interpretation of statutes could change with each new administration coming to power. The Court, in yet another 6-3 decision, dispensed with Chevron deference as being based on a flawed assumption that Congress would only defer the interpretive authority to agencies when a law was ambiguous. The reality was far from such an assumption and, since it then contradicted the Administrative Procedure Act’s (APA) requirement that courts decide all relevant questions of law, it was tossed out. What this means for the interpretation of statutes by agencies is unclear, but what is not is that the Court was not shying away from deciding upon these powder keg cases.
In looking for a greater understanding about these cases, I spoke with Professor Kyle Shen, one of Cleveland State Laws resident Constitutional Law professors, for his take on them and the Courts reasoning for the decisions. We did speak on them, but we also zoomed out from them to examine the Courts exercise of influence as a historical trend.
Prof. Shen saw the Court’s power as a type of battery, where over time it would be stored up and all the while the Court would bide its time before expending that power for cases that were pivotal, controversial, or necessary to rule on. One example would be during the 1960s and 1970s when Civil Rights were at the forefront and thus the Court utilized its stored reserves of power for those cases. It then would again go into a kind of dormant state until it had “recharged” the battery. Such action would preserve and maintain the Court’s credibility.
When looking at the current Court’s activities, Prof. Shen was surprised that the Court was continuing to expel their power without tampering it down given its active state for the last couple terms. He based the change on the internal politics of the Court and these rulings being the culmination of decades of activist groups pushing for issues like abortion, affirmative action, and Chevron deference, coming before the court. These groups had been advocating for years if not decades, fighting cases in the courts and recruiting lawyers to help argue their chosen cases. With the makeup of the Court now having a greater conservative tilt and the well-argued cases coming up, it was the ideal time to have the Court expend its power again. Still, it may be that they’re pushing it further than normal, which could dangerously affect their credibility if there is no attempt to pull back the judicial reins.
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