Kate Shaw, a contributing Opinion writer, hosted a written online conversation with Will Baude, a law professor at the University of Chicago, and Stephen Vladeck, a law professor at Georgetown and the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” to reflect on the dramatic end to the Supreme Court term.
Kate Shaw: This Supreme Court term ended on a shocking note with Trump v. United States. I didn’t expect Trump to win this case, and I definitely didn’t expect the court to issue such a sweeping opinion, broadly insulating ex-presidents from criminal liability and fundamentally reshaping the relationship of the presidency to the law.
We’ve now had a week to digest the opinion — what are you still puzzling over, and what most stands out to you?
William Baude: I don’t think the outcome was a surprise, given the arguments and the breadth of the D.C. Circuit opinion, which rejected any claim of executive immunity rather than focusing on the specifics of the Trump case. But I remain confused about what the difference is between Justice Amy Coney Barrett’s quite sensible opinion and the much more sprawling majority opinion — Justice Barrett claims to agree with most of the majority opinion, but I don’t know if we should take that at face value!
Stephen Vladeck: I continue to be baffled by both the really problematic discussion of which evidence can and can’t be used even for prosecutable conduct and more generally the remarkable endorsement not just of broad executive power but of “preclusive” executive power (those not subject to any limitations by other branches, a variation of which was known as the “commander in chief override” during the George W. Bush administration).
Shaw: Steve, I’m wondering what remains of United States v. Nixon. Almost exactly 50 years ago, the court unanimously ruled against the president in that case. How do you think Nixon’s arguments against producing the Oval Office tapes would have fared under the logic of this opinion?
Vladeck: What I find striking about Chief Justice John Roberts’s majority opinion is its failure to explain why the executive privilege the court recognized in Nixon isn’t the relevant consideration. Now we have a new, different constitutional ground for suppressing or refusing to allow the introduction of evidence of an ill-defined array of presidential conduct. And it raises all sorts of questions: Is that only for criminal prosecutions of former presidents? Or only criminal prosecutions? Or can current and future presidents use it to resist congressional subpoenas and other previously available means of seeking information from the executive branch? At least historically, when it came to conflicts over access to information between the executive branch and Congress, most were resolved informally — through negotiations and compromise. Instead, the justices dropped this bomb, and it will only embolden presidents of both parties to fight that much harder against disclosure.
Shaw: The majority opinion suggests that the president’s relationship with the Justice Department is essentially sacrosanct. That really struck me. When I was in the Obama White House Counsel’s Office, we worked hard to maintain a degree of separation between the White House and Justice Department — something administrations of both parties have long done. What does the opinion mean for those settled practices?
Baude: You have to read this opinion in the context of the court’s other jurisprudence about executive power — which have generally supported the originalist vision of a “unitary executive,” where the president ultimately can control the entire executive branch.
Shaw: The court’s previous “unitary executive” cases are primarily about the president’s ability to remove executive branch officials. But total control over “investigative and prosecutorial decisionmaking,” as the opinion put it? That seems very new to me.
Baude: At a minimum, Trump v. U.S. doubles down on that vision, but in places it seems to push it even farther. If the president wants to politicize the Justice Department, he can. We have to rely on norms.
Shaw: Will, I want to ask a couple of questions about your recent Times piece reflecting on the term. As I read you, you think the court went (badly?) astray in its two cases directly involving Trump, on immunity and on Colorado’s efforts to disqualify Trump under Section 3 of the 14th Amendment. Your paper with Michael Stokes Paulsen played a critical role in the Section 3 debates.
Yet you also write that elsewhere this term, the court was faithful to originalism, a method of interpretation you favor. But is this any kind of originalist court if it’s willing to jettison the method in the term’s two biggest constitutional cases? One way to view the court after this term is “originalist for Republican results, pragmatic for anything else.”
Baude: There are plenty of examples of the court adhering to its principles even in ruling against right-wing claims — the Consumer Financial Protection Bureau appropriations case, Rahimi (the Second Amendment case), the standing cases that reversed the Fifth Circuit on both mifepristone and social media jawboning.
But I agree with your basic point. The law professor Gerald Gunther once criticized the law professor Alexander Bickel for wanting the Supreme Court to maintain “100 percent insistence on principle, 20 percent of the time.” Maybe now we’re getting closer to 80 percent of the time, but that remaining percentage is killer.
Shaw: Your piece ends on a tantalizing note: “When dealing with Mr. Trump in particular, the court is so sure that our other institutions cannot be trusted that it fails to look in the mirror.” If it looked in the mirror, what do you think it would see?
Baude: See, that line worked so well when I could end with an ambiguity.
Shaw: I know!
Baude: It’s no secret that the Supreme Court trusts no institution in America as much as it trusts the Supreme Court. That’s not something unique to the Roberts court — we’ve been living in an age of judicial supremacy for more than 50 years. But I think the court should recognize that all of the flaws and biases it sees in other institutions are potentially true of itself, too. The justices are only human, even if they are really doing their best.
Shaw: Let’s pivot to Loper Bright v. Raimondo, which overruled the 1984 Chevron decision. To me, it fundamentally changes the relationship between agencies and courts. How much do you think the decision will actually impact the work of the executive branch?
Baude: It actually depends a lot on the agency. The court goes out of its way to distinguish laws that expressly delegate decisionmaking authority to agencies as unaffected by the ruling. But some agencies have been relying more on statutory ambiguities and less on any express delegation from Congress, and they will be much harder hit. I haven’t seen a good list of which agencies those are. Maybe immigration?
Vladeck: We should look at Loper Bright as one of four major agency rulings the court handed down — and the effects those rulings will have in the aggregate. Thanks to Loper Bright, there will now be some additional number of cases in which courts reject agencies’ reasonable interpretations of ambiguous statutory language. Thanks to S.E.C. v. Jarkesy, there will now be some number of cases in which courts reject the power of agencies to enforce their rules and regulations internally (before an administrative law judge) rather than through far-more-expensive civil litigation before a jury. Thanks to Ohio v. Environmental Protection Agency, there will now be a greater number of cases in which courts second-guess the precise way that an agency responds to public comments when it engages in rule-making. And thanks to Corner Post (which gave companies more time to challenge many regulations), all of these new rules will apply not just to recent and new actions by federal agencies but to old ones as well.
Shaw: And when you add them all together?
Vladeck: As Justice Ketanji Brown Jackson argued in her Corner Post dissent, they will lead to massive destabilization — where agencies are skittish about exercising anything but the clearest of powers and where those subject to agency regulation are increasingly unable to rely, with any confidence, on the continuing validity of even old agency actions.
Shaw: Will, you identified the court’s dismissal of the mifepristone challenge on standing grounds as an example of the court acting in a principled and apolitical fashion. What do you make of the argument that the court’s disposition of that case, together with its “dismissed as improvidently granted” of the EMTALA case involving medically necessary emergency abortions in Idaho, are best understood as punts on the issue of abortion in order to reduce its salience during an election year?
Baude: I know I’m going to sound completely naïve, but I don’t think it’s politics. Frankly, I just don’t think the court cares that much about what people think of it or how the political world reacts to its decisions. And as for the mifepristone case, from the moment Judge Matthew Kacsmaryk issued his outlandish ruling in the district court, it was obvious that standing was a big problem. I don’t think it’s a shock that the court agreed that standing is a big problem. It’s a relief, but not a shock. You can also see the EMTALA case in a more charitable light: At the emergency stage, the court saw the case one way; but upon reflection and more careful analysis, they realized it was more complicated (and maybe contrary to their initial policy instincts too). So they slowed down and sent the case away for more time.
Shaw: The EMTALA case feels to me like an important example of the very real human costs of the court’s inability to see its own limitations. People had to be airlifted out of Idaho because of the court’s intervention, and at the end of the day the court threw up its hands, said “oops” and put the district court injunction back into place.
Baude: So I think part of what we’re really seeing here are some of the institutional challenges of the Supreme Court’s “shadow docket.” Somebody should write a book about that!
Shaw: Will, you’re being modest, but you coined the term, and Steve did literally write the book. As the two people perhaps most responsible for bringing the shadow docket, er, into the light, do you think the sunshine is having an impact? Is the court changing how it handles shadow docket cases?
Vladeck: I don’t think there’s any question that the court is thinking more carefully about when and why it pursues unusual interventions — whether through emergency applications, taking up a case “before judgment” in the court of appeals (as in the EMTALA case) or other abnormal procedural moves.
That said, the more the justices are writing about what they’re doing, the more questions they’re raising about why they’re doing it. I’ve been fairly critical of opinions from Justice Kavanaugh in the Idaho transgender medical care case and Justice Barrett’s discussion of “administrative” stays in the Texas/SB4 case. There’s also Ohio v. E.P.A., which, as Justice Barrett flagged in her dissent, was made much harder by the fact that the court took a series of emergency applications and treated them like a full-blown merits appeal.
Baude: Sometimes I worry that those of us who study the shadow docket the most closely are too quick to jump to the critical side. It would be great if they never made mistakes on the shadow docket, but they will, and we should be happy when they think better of them, as they did with EMTALA.
Vladeck: I have no problem with the idea that the justices will make mistakes on the shadow docket; indeed, that’s been one of my arguments for years. I just wish they’d do more to show that they (1) realize they were mistakes and (2) are trying to learn from them. In the EMTALA case, there were very real costs to the court’s premature intervention.
Baude: Fair enough. Learning as they go is probably the best we can hope for.
Shaw: Let’s do a lightning round here. Before this term, John Roberts was often described as an institutionalist. What word will it be after this term?
Vladeck: Median: the median justice in the court’s most politically charged cases.
Baude: Tired.
Shaw: Narcissus (inspired by Will’s Times essay).
Next question: Justices have faced multiple ethics scandals in the past year. On a scale of 1 to 10 — 1 being much ado about nothing, 10 being a genuine legitimacy crisis — how important are these revelations?
Vladeck: I’ll go 7.5 — not because I believe that any one of these episodes requires the immediate resignation (or impeachment) of the putatively offending justices, but because they reveal a court that needs a more robust accountability mechanism — and one that shouldn’t come from the justices themselves.
Baude: In reality, 1. But as a political matter, at least a 4 or a 5, and maybe climbing.
Shaw: What was the sleeper case of the term, and in a sentence or two, why?
Vladeck: Department of Homeland Security v. Texas. That’s the razor-wire case from January, in which a 5-4 court ruled that the federal government could remove obstacles Texas Gov. Greg Abbott had ordered to be placed along the U.S.-Mexico border. It’s a sleeper not because of the opinions (there weren’t any), but because prominent Republicans, like Representative Chip Roy, went on television and urged Abbott to defy the ruling. We could see a lot more of that if we have a second Trump administration in which the court stands up to the executive branch.
Baude: Harrington v. Purdue Pharma, a 5-4 ruling that overturned the Purdue opioid settlement and may have a huge impact on the ability of the bankruptcy system to handle other mass tort cases. Justice Kavanaugh’s dissent there is really worth a read.
Shaw: I’ll throw in Department of State v. Muñoz, a case that takes a very narrow view of constitutional liberty and I think confirms that Dobbs is in no way limited to abortion. To me it suggests that the court’s precedents on matters like contraception and maybe even marriage are exceedingly vulnerable.
Next question: What was the best dissent of the term, and in a sentence or two, why?
Vladeck: Although I’m usually partial to Justice Elena Kagan’s dissents (and her dissent in Loper Bright is a doozy), there is an analytical ruthlessness to Justice Barrett’s dissent in Ohio v. E.P.A. that is hard to beat.
Baude: I would be happy to go with any of Justice Barrett’s dissents (her dissent in Fischer v. United States, the case about the Jan. 6 prosecutions, is another good one), but I’m actually tempted to give it to Justice Sonia Sotomayor’s dissent in the Trump case. As somebody who rarely agrees with Justice Sotomayor, I found it really powerful.
Shaw: That was my pick too, but that’s predictable coming from me. It’s really striking to hear it from Will.
Next one: If a close election in the fall comes down to litigation in one or two outcome-determinative states, should the public trust that the court will decide the case with “[c]lear heads” and “honest hearts”? (to mimic Chief Justice Roberts, in Loper Bright, in quoting an early Supreme Court justice’s description)?
Baude: I hope so.
Shaw: Now I’m even more worried.
Vladeck: As my friend and former dean Ward Farnsworth once wrote about Bush v. Gore, “those who accuse the majority of having partisan motives underestimate the good faith of the justices; however, those who acquit the Court of partisan behavior may overestimate the utility of good faith as a constraint on wishful thinking.”
Shaw: Thank you both for your insight and wisdom.
The post ‘The Justices Dropped This Bomb’: Three Legal Experts on a Shocking Supreme Court Term appeared first on New York Times.
