Supreme Court justices express concern about ‘secret evidence’ in TikTok case
Two Supreme Court justices expressed concern about redacted evidence the government presented in the TikTok case, which attorneys for the app were not able to review. According to an attorney representing TikTok users, the evidence is classified and a lower court agreed to make its decision solely based on the public record.
“I’m concerned about the government’s attempt to lodge secret evidence in this case without providing any mechanism for opposing counsel to review it,” Justice Neil Gorsuch said. “I noted that there are mechanisms to read in counsel and that other countries, including our allies, often do that.”
The subject was first raised when Gorsuch asked the attorney representing TikTok a question that he could not answer.
“Well, Your Honor, the problem there is everything that follows what you just read is redacted, and so I don’t know what it says,” Noel Francisco of Jones Day, which represents TikTok, said.
Gorsuch later said the government has made an increased number of appeals to secret evidence in recent years and therefore it’s something Congress should pay attention to.
Solicitor General Elizabeth Prelogar made reference to a sealed appendix while she was making her case before the justices. She never said exactly what it contained, she gave a brief overview and urged the justices to read it.
“If you look at that information, it was a wealth of data about Americans that was going to have to go back to China in order for the platform to just continue its basic operations,” Prelogar said.
Prelogar went on to explain that there was factual evidence to show that even when the company said it walled off its U.S. data from China, employees at TikTok’s parent company in China surveilled U.S. journalists in an attempt to learn who was leaking information from inside the company.
“You get to look at it, but your friends on the other side don’t get to look at it,” Chief Justice John Roberts responded to Prelogar. “That doesn’t seem fair.”
“That’s the sealed appendix, Mr. Chief Justice,” Pregolar responded. “So it’s their information. They can look at it. It’s just under seal to protect their proprietary business information.”
Supreme Court casts serious doubt on TikTok’s free speech arguments
Supreme Court justices cast serious doubt on TikTok’s free speech arguments in a case that will decide the future of an app that is used by 170 million Americans. TikTok is fighting a law passed by Congress last year that requires its parent company to sell the app or be prohibited from operating in the United States.
The justices were skeptical from the very beginning, when Justice Clarence Thomas asked the app’s lawyers, “What is TikTok’s speech?”
The attorneys argued their speech is their algorithm, which suggests content for users based on their personal traits, preferences and consumption habits. Thomas responded by saying they are converting the restriction on ByteDance’s ownership of the app as TikTok’s speech.
Chief Justice John Roberts pointed out that the free speech argument does not address Congress’ stated intention for passing the law.
“It seems to me that you’re ignoring the major concern here of Congress which was Chinese manipulation of the content and acquisition and harvesting of the content,” Roberts said.
“I don’t think you are supposed to ignore that at all, but I also don’t think that it changes the analysis,” said Noel John Francisco of Jones Day, which represents TikTok.
“I don’t know if it’s directly affecting the company’s speech or the speech of third parties,” Roberts said.
The law is often described as a TikTok ban, although that’s not technically accurate. The law prohibits distributing, maintaining or providing internet hosting services for an app that’s under the control of a foreign adversary. In this case, the app is TikTok, which is owned by ByteDance, a company based in China, the foreign adversary.
If ByteDance sold the app to an American company, TikTok would be allowed to operate in the United States exactly as it does today.
“TikTok can continue to operate on its own algorithm, on its own terms, as long as it’s not associated with ByteDance. So isn’t this really just all about association?” Justice Ketanji Brown Jackson proposed to TikTok’s attorneys.
Jackson then cited arguments from government attorneys who said the real problem is foreign adversaries manipulating content that is shown to Americans.
“Are you saying those are not compelling government interests?” Jackson asked.
“I am 100% saying that content manipulation is not just not a compelling governmental interest, it is an impermissible governmental interest,” Francisco said.
Arguing on behalf of the federal government, Solicitor General Elizabeth Prelogar said the law has a “laser-like focus” on the national security threat.
“No one disputes that the [People’s Republic of China] seeks to undermine U.S. interests by amassing vast quantities of sensitive data about Americans, and by engaging in covert influence operations,” Prelogar said. “And no one disputes that the PRC pursues those goals by compelling companies like ByteDance to secretly turn over data and carry out PRC directives.”
Those realities mean that the Chinese government could weaponize TikTok at any time to harm the United States.
Solicitor General Elizabeth Prelogar
The justices also pointed out holes in the government’s case, particularly the argument that content manipulation would be covert.
“If you just mean what’s covert is the fact that there’s China behind it, I mean, honestly, really, like everybody does know now that there’s China behind it,” Justice Elena Kagan said.
Justice Gorsuch questioned Prelogar’s reasoning that manipulated content could be harmful.
“If that’s true, then wouldn’t that be true for all social media companies for all content,” Justice Gorsuch asked.
If the TikTok ban takes effect Jan. 19, current users will still have the app on their phone and will likely be able to use it.
The law prohibits new downloads and updates. So it should keep working for current users until they update their phone, which will make it no longer compatible with the phone’s operating system, at which point it will stop working.
A look at US Supreme Court 2025 docket and a warning from Chief Justice Roberts
Supreme Court Chief Justice John Roberts is expressing concerns about the growing disregard for the U.S. Supreme Court ahead of major rulings expected in 2025. In his year-end report, Roberts emphasized the importance of maintaining judicial independence, urging that court decisions be honored regardless of their political implications.
“Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings,” Roberts wrote. “These dangerous suggestions, however sporadic, must be soundly rejected. Judicial independence is worth preserving.”
Roberts also warned of the rise in violence directed at judges performing their duties. He noted that the number of hostile threats against judges has more than tripled in the past decade. One reason for the increase in threats, he suggested, is public officials who accuse the judiciary of political bias without credible evidence.
While acknowledging that public officials are entitled to criticize the judiciary, Roberts cautioned that “irresponsible rhetoric can fuel dangerous behavior.”
He added, “It is not in the nature of judicial work to make everyone happy. Most cases have a winner and a loser. Every administration suffers defeats in the court system — sometimes in cases with major ramifications for executive or legislative power or other consequential topics. Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed, and the nation has avoided the standoffs that plagued the 1950s and 1960s.”
Roberts also issued a warning that court rulings must be followed and respected, just as the Supreme Court heads into a new year with several high-stakes cases on its docket. Some of these cases could have significant political and social implications.
Major cases in 2025
Attention is focused on these five major cases:
One of the most closely watched is the challenge to a proposed ban on TikTok, prompted by national security concerns due to the app’s ties to China. President Joe Biden signed a law that would ban the app unless it is sold to a U.S. company, and the Supreme Court is expected to rule on whether the ban should proceed.
The Supreme Court will also hear a case challenging a Tennessee law that bans transgender surgeries and hormone treatments for minors. The ruling could set a precedent for similar laws in other states.
Another key case will determine whether the federal government can regulate “ghost guns,” firearms made from kits that lack serial numbers. The justices will consider whether such kits, which can be assembled at home, should be classified as firearms subject to federal regulation.
Justices will also hear a challenge to a Texas law requiring age verification for visitors to pornography websites. The ruling could influence similar laws in around 20 states.
Lastly, the Supreme Court will address the scope of environmental impact assessments required under the National Environmental Policy Act, with the justices set to consider how broad these environmental considerations should be for federal agency actions.
As the justices prepare to rule on these major cases, which are likely to bring political and societal changes, Chief Justice Roberts is getting ahead of these decisions with the warning. He says that the rulings, no matter the outcome, will likely have a negative impact on either side of the political spectrum. However, he reiterated the decisions will be the law of the land, as intended by the U.S. government.
Supreme Court immunity ruling sends most of Trump case back to lower courts
The Supreme Court ruled Monday, July 1, that presidents are entitled to absolute immunity from prosecution for actions that fall within their constitutional duties and presumptive immunity for official acts. However, justices ruled there is no immunity for unofficial acts.
The 6-3 decision was split along ideological lines. Chief Justice John Roberts wrote the opinion and was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh; Justice Barrett joined in part. Justice Sotomayor wrote the dissent which Justices Kagan and Jackson joined.
This case was brought forward by former President Donald Trump in an attempt to throw out special counsel Jack Smith’s four count indictment. Trump is charged with conspiring to overturn the results of the 2020 election. He moved to dismiss the case, arguing he had presidential immunity.
The Supreme Court’s decision does not dismiss the case. Instead, the justices are sending most of it back to the district court to determine whether the alleged actions are official or private. The court outlined how some of the former president’s conduct should be categorized.
For instance, the justices ruled that Trump is immune from prosecution for allegedly pressuring the acting attorney general to open an investigation into voter fraud.
A district court will have to decide whether Trump is immune for attempting to pressure then-Vice President Pence to reject certain state’s electoral votes during the certification process.
“The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct,” the justices wrote.
“The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity.”
However, Trump’s lawyers admitted during oral arguments that other actions alleged in the indictment are private. So the following line of questioning from Justice Barrett may prove consequential.
Barrett: “Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results, private?”
Trump Attorney D. John Sauer: “As alleged, I mean we dispute the allegation, but that sounds private.”
Barrett: “Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge.”
Sauer “That also sounds private.”
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” Justice Sotomayor wrote in her dissent. “It makes a mockery of the principle … that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the president, the Court gives former President Trump all the immunity he asked for and more.”
Supreme Court strips federal agencies of widely used power, kicks it to courts
The Supreme Court overturned 40 years of legal precedent, nullifying the most cited Supreme Court administrative law decision of all time. The Chevron doctrine has been in place since 1984, and this week’s ruling confirms critics’ view that Chevron gave government agencies too much power in interpreting laws passed by Congress.
The Chevron doctrine said that when a law is open to interpretation; when the intent of Congress in passing that law is unclear; when the statute is ambiguous; courts should defer to the agency’s interpretation of that law, as long as it’s sensible.
“Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” Chief Justice John Roberts wrote on overruling Chevron. “Courts do.”
The case that led the Supreme Court to overturn Chevron is Loper Bright Enterprises v. Raimondo — as in Commerce Department Secretary Gina Raimondo. Loper Bright Enterprises is a commercial fishing company.
The Magnuson-Stevens Act of 1976 says the National Marine Fisheries Service can require fishing companies to allow federal agents on board as observers. But the agency also interpreted that statute to mean it could require the fishing companies to pay for the salaries of those federal observers. Loper fought that assumption all the way to the Supreme Court.
Today, the Court places a tombstone on Chevron no one can miss.
Supreme Court Justice Neil Gorsuch
In a concurring opinion, Justice Neil Gorsuch wrote, “Today, the Court places a tombstone on Chevron no one can miss.”
In her dissent, Justice Elena Kagan wrote, “Given Chevron’s pervasiveness, the decision to do so is likely to produce large-scale disruption. All that backs today’s decision is the majority’s belief that Chevron was wrong — that it gave agencies too much power and courts not enough.”
Chief Justice Roberts said the decision does not affect any previous rulings decided under the Chevron deference. However, it will have significant impact on future statutory interpretations.
Immediately following the ruling, Straight Arrow News Business Correspondent Simone Del Rosario interviewed Caroline Cecot, an associate professor of law at Antonin Scalia Law School at George Mason University.
The following has been edited for clarity. You can watch the interview in the video at the top of this page.
Simone Del Rosario: What is your initial reaction to the impact of this decision?
Caroline Cecot: My first reaction was, ‘Wow, they actually did this.’ This could turn out to be a big deal, especially in its practical implementation. Another small reaction I had is how little the majority opinion, authored by Chief Justice Roberts, really thought about the practical implications of this or seemed to downplay them.
Simone Del Rosario: What do you mean by that?
Caroline Cecot: One thing that I do a lot of research in is in the environmental space and in the energy space. And a lot of those statutes are very complex. They deal with a lot of issues of expertise, issues of trade-offs between competing interests.
When we look in those cases, you look at these statutory interpretation questions, they’re really fraught with intersecting expertise and political policy preferences that can change in different administrations, et cetera.
The Chevron case is a perfect example of this, actually. In the Chevron case, this was the EPA under President Reagan adopting a more flexible interpretation of when a source would trigger more stringent standards. And the court had to sort out whether this interpretation was authorized by the statute.
But the statute just wasn’t clear about how to answer that question. It talked broadly, obviously, about the importance of environmental protection, pollution reduction, but then it also talked about economic growth and how it’s important to think about those issues.
So how should the court figure this out? Its options basically were: Make some decision on the question despite not having any expertise on the subject matter, the statute, or the appropriate balancing of these competing interests or any political accountability for its decision; or allow the agency to make this choice as long as it’s within these reasonable bounds. And the court went with option two, and that’s essentially the Chevron decision on what to do in these kinds of cases.
Meanwhile, in the Loper Bright case, Chief Justice Roberts talked about statutory interpretation much more abstractly or simplistically and didn’t really grapple with these kinds of issues. The dissent, which was authored by Justice Kagan, offers numerous examples about how statutes implicate these kinds of expertise and policy choices.
Simone Del Rosario: The majority explicitly stated that any interpretations made to this point under Chevron stand. So we’re not going to see this huge 40-year unraveling of law. But what do you envision happens next when agencies and businesses are navigating through largely vague statutes that they operate under?
Caroline Cecot: So the majority’s answer, essentially, is that without Chevron, we go back to a time where the background rule on how a court deals with this is something referred to as Skidmore, the Skidmore deference or Skidmore respect. The Skidmore deference basically says that you kind of give the agency’s interpretation the respect it deserves based on how thoroughly reasoned it was.
This is a very difficult concept to wrap one’s mind around. I teach administrative law and this is something we talk a lot about, our students and I. What are the differences? How would this be decided under Skidmore?
Just a few years ago, when the court was deciding a case, Kisor v. Wilkie, which was about a related concept about whether to defer to an agency’s interpretation of its own regulation, so different, not a statute.
At oral argument, the Chief Justice had this funny remark that I actually play for students, which is, ‘Counsel, to get back to the stare decisis questions. I think the issue depends, at least in part, on how much of a change you’re asking. And one of the things I have trouble getting my arms around is if you start with Auer and recognizing the limitations on Auer that have accumulated over the years and you’re changing that to Skidmore, which I find hard to get my hands around too. I think I know more about what a moiety is than I know what Skidmore deference is.’
And so if the Chief Justice made this joke during oral arguments about how difficult it would be to apply Skidmore, I’m glad we’re not looking back, but looking at the future, I think this is going to lead to a lot of inconsistency and a lot of litigation.
And probably, and I hate to say this, but this is based on some research by Ken Barnett, Christopher Walker and Christina Boyd, we’re going to see more decisions that are influenced by the makeup of the panel, whether it’s a more liberal panel or more conservative panel.
Simone Del Rosario: How much of this is on Congress for writing these ambiguous laws to begin with? Do you think that Chevron has allowed them to put too much legislative authority on agencies?
Caroline Cecot: Some research has shown that Congress is aware of Chevron. So it is possible that in some ways they leave some ambiguities purposely because they want agencies to fill in these gaps using their expertise, which I would find perfectly appropriate within the bounds of constitutionally-correct delegations.
That said, now that there is no Chevron and Congress has to write statutes. I guess I’m in the camp where — and I don’t say this to degrade Congress in any way — I think it’s just impossible to write a perfect statute that includes everything at the outset. I think there’s something that happens with experience under a statute where agencies realize that something’s not working or the facts on the ground change. That’s something I care a lot about. And the agency has to respond to these changing facts on the ground.
The whole scheme of administrative implementation of statutes is partly because we get some efficiency benefits from this. If we revert back to Congress having to do everything at the outset, we’re gonna see a lot of increases in inefficient regulatory actions across the board.
Simone Del Rosario: But in the same vein, critics of Chevron have said that this precedent, to this point, has allowed these agencies far too much authority and deference to say, ‘This is how they interpret it so that must be the way that it is.’ It takes the issue away from courts and away from Congress when the majority opinion in Loper clearly believes that that subject does belong in the courts.
Caroline Cecot: It doesn’t take the issue away from the people, though, because at least as compared to courts, agencies are more politically responsible and we see changing presidential administrations all the time.
I say this because the doctrine of Chevron itself to give deference to agency interpretations, it’s neutral. And then the Chevron case itself, as I recounted, this was an agency that wanted to take a deregulatory action. But of course, Chevron could also allow an agency to take more aggressive agency action.
Over time, the doctrine became associated with judicial acquiescence to these ever-increasing grabs of power by the agency, or that’s how it’s sort of thought about, which started this anti-Chevron movement that even led to this question of whether to overrule it.
But I think at its core, Chevron is just saying, look, here we have a statute that the agency has that Congress wants the agency to implement given what’s happening on the ground. And here’s the way that the agency has decided to do this. Is it reasonable? If it’s not, then no.
And obviously, I almost forgot the first step. If it goes against Congress’s language, that’s out. Congress is supreme. The agency has to do what Congress allows it to. But at the point that there’s not a clear answer and it’s a reasonable interpretation, I think it should go to the agency. And if the people disagree with this, you have an election, you have a new presidency, you have a new administration and then you have new ways of interpreting the statute.
I don’t mean to also defend this process too much because I think it’s important to have predictability. So I say this as someone who knows that there’s another backstop, which is this other doctrine, State Farm, which ensures that agency decision-making is fact-based, that there’s logical connections.
Even though there might be some policy reversals in the presidencies, it always requires some explanation. To me, to this point, this felt like a nice balance, making sure that courts aren’t making decisions that are actually politically motivated but unaccountable, that leave Congress in an impossible position and leave us in an inefficiency spiral, but also cabined because of this reasonableness inquiry.
Simone Del Rosario: Do you think that the National Marine Fisheries Service overstepped its bounds by saying that fishing companies had to pay for these federal observers?
Caroline Cecot: You know, that’s a tough one for me to answer because I think most folks that I’ve talked to seem to think that even if there were not a world of Chevron, that the answer is that the Marine Fisheries overstepped in some way.
When I looked at the history behind the statute itself, this is the Magnuson-Stevens Act, that amendment that created this situation where these councils are allowed to require observers on domestic vessels. But then also there’s a separate provision for one of the Pacific fisheries to be able to spread some of these costs in specific ways with some limits.
That amendment happened because that council was the first pre-amendment to want to impose these costs. During the deliberations on this, the industry protested bearing the costs and wanted taxpayers to bear the costs. And the council had said, ‘Go to Congress with that, beg them for it, but we’re going to impose this on you because we need to save the fishery.’
So to me, the more clear answer here is that the default is that the industry pays and if they don’t want to pay, they can lobby Congress and get their own provision, which is what happened with the Pacific fisheries where they got a provision that talked a little bit more about capping these fees.
Simone Del Rosario: As Gorsuch said, the court today placed a tombstone on Chevron. So regardless of how helpful you found it to be as far as keeping things more stable in this system between agencies and courts and businesses, it’s effectively gone. Who’s the big winner today?
Caroline Cecot: The big winner is definitely lawyers. What I said about Skidmore deference being hard to wrap yourself around, I think this is going to trigger more litigation over agency action now, on robust litigation, on both the fact-based front with State Farm and the legal interpretation front with the Skidmore deference.
Other than that, because I have a different view of Chevron, I didn’t see it as anti-regulatory or pro-regulatory, I think a loser in this in some ways is each presidential term. They’re going to have to grapple with a lot less flexibility in their statutes and a lot less ability to respond to emerging issues on the ground without having to go to Congress.
And then Congress is going to have to change some things because as pessimistic as I was in my first recount, they do have to step up at this point in some ways. And at least, responding to big emergencies that come up, they will need to.
And that’s already been true in some ways with the major questions doctrine, but they will need to do a lot more and schedule a lot more time for legislation.
Supreme Court sides with Jan. 6 rioter on obstruction charge
On Friday, June 28, the Supreme Court limited obstruction charges the government brought against Jan. 6 rioters and former President Donald Trump. This case, like others in the high court, revolved around the meaning of individual words in a statute, in this case, it was the meaning of “otherwise.”
The justices were split largely ideologically. Chief Justice John Roberts wrote the opinion and was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh and Jackson. Justice Barrett wrote the dissent which Justices Sotomayor and Kagan joined.
Here’s the back story.
Joseph Fischer went into the U.S. Capitol building on Jan. 6, 2021 and, in his words, “pushed police back about 25 feet.” A grand jury returned a seven count indictment against him, which included allegations of assaulting a federal officer and entering a restricted area.
Count three charged him with violating the Sarbanes-Oxley Act of 2002 which imposes criminal liability on anyone who corruptly “alters, destroys, mutilates or conceals a record, document or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.”
The law also applies to anyone who “otherwise obstructs, influences or impedes any official proceeding, or attempts to do so.”
Fischer argued that the statute only applies to those who impacted the integrity or availability of evidence. The government countered that the law applies to all forms of obstructive conduct.
In the decision, the nation’s top juris doctor explained how the majority reached its conclusion with a line that could come straight from English textbook: “Resolving such a dispute requires us to determine how the residual clause is linked to its ‘surrounding words.’”
The justices ultimately concluded that to prove a defendant violated the statute, “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects or other things used in an official proceeding, or attempted to do so.”
“The Court does not dispute that Congress’s joint session qualifies as an ‘official proceeding’; that rioters delayed the proceeding; or even that Fischer’s alleged conduct was part of a successful effort to forcibly halt the certification of the election results,” Justice Barrett wrote in her dissent. “Given these premises, the case that Fischer can be tried for ‘obstructing, influencing or impeding an official proceeding’ seems open and shut. So why does the Court hold otherwise? Because it simply cannot believe that Congress meant what it said.”
Hundreds of other Jan. 6 rioters are charged with the same statute as Fischer, and so is former President Trump in the case brought forward by special counsel Jack Smith. This decision will make it more difficult for prosecutors to bring charges and secure a guilty verdict.
SCOTUS sides with conservative radio host Jarkesy in case fighting SEC ruling
A conservative radio host took on the Securities and Exchange Commission (SEC) and won. The Supreme Court Thursday, June 27, ruled 6-3 in favor of George Jarkesy, who was charged with securities fraud and ordered by an SEC judge to pay a civil penalty of $300,000.
Jarkesy appealed, claiming the SEC violated his Seventh Amendment right to a jury trial by deciding his case using an in-house judge, known as an administrative law judge (ALJ). These are judges in the executive branch, not the judicial branch. They are employed by the agency bringing the charges.
The argument for ALJs across government is that they’re specialized judges in that field. But remember the saying, “the house always wins.” A Wall Street Journal analysis from 2010 to 2015 showed the SEC won 90% of cases before its in-house judges and just 69% before federal court judges.
“I think it’s, honestly, a cheap default by the SEC,” said Stephen Best, an attorney at Brown Rudnick who successfully defended Mark Cuban against the SEC’s insider trading claims.
Straight Arrow News interviewed Best following the Supreme Court’s oral arguments in the Jarkesy case.
“I think that it was a ghost that nobody really focused on until after the Mark Cuban insider trading case,” Best said. “And when the SEC had incredible difficulties accommodating the requirements of the U.S. District Court’s rules on discovery and trial practice, they ran back to their home at the ALJ.”
The Jarkesy case had the potential to upend the court system. There are more than twice as many ALJs as federal judges. Had the Supreme Court ruled the use of ALJs as a whole is unconstitutional, this would have flooded the courts with cases.
“The floodgates are about to open up and that’s what the Supreme Court’s worried about,” Best said at the time. “And so they’re going to be very careful in tailoring their opinion, but nonetheless, however careful they’re going to be, it’s still going to leave room for interpretation.”
At last count by the U.S. Office of Personnel Management, there are more than 1,900 ALJs across federal agencies. Eighty-six percent of them deal in Social Security cases. Just five judges come from the SEC as of 2017. In Thursday’s decision, the Supreme Court was careful to keep its ruling specific to that house, and even more narrowly, to fraud cases.
“A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator,” Chief Justice John Roberts wrote in the majority opinion. “Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands.”
“Beyond the majority’s legal errors, its ruling reveals a far more fundamental problem: This Court’s repeated failure to appreciate that its decisions can threaten the separation of powers,” Justice Sonia Sotomayor wrote for the dissent. “Here, that threat comes from the Court’s mistaken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary.”
This likely isn’t the last time the issue of ALJs will come up. Facebook parent company Meta sued the Federal Trade Commission last year challenging its use of the in-house justice system, also claiming it violates the company’s right to a trial jury.
Senior Senate Democrat wants to block Alito from writing majority opinions
Sen. Richard Blumenthal, D-Conn., wants to prohibit Supreme Court Justice Samuel Alito from writing majority opinions following the release of a secret recording. Blumenthal, a senior member of the Senate Judiciary Committee, said Chief Justice John Roberts should use his administrative powers to prevent Alito from writing any majority opinions and block him from presiding over a federal circuit court.
“He can say that Justice Alito no longer writes majority opinions, he can say that Justice Alito no longer presides over a circuit,” Blumenthal told reporters Wednesday, June 12. “He can take action within the court that sends a message that Justice Alito is either going to recuse himself or he will be, in effect, sanctioned within the court.”
Blumenthal made the comments in response to secret recordings that were released by liberal activist Lauren Windsor who posed as a pro-life conservative at an event with Alito.
“People in this country who believe in God have got to keep fighting for that to return our country to a place of godliness,” Windsor said to Alito in the recording.
“I agree with you,” Alito responded.
EXCLUSIVE UNDERCOVER AUDIO: Sam Alito x John Roberts x The Undercurrent 🧵
1/ Justice Alito admits lack of impartiality with the Left, says: “One side or the other is going to win.” pic.twitter.com/b5nmxToZ9z
Democrats on the Judiciary Committee have been trying to get the Supreme Court to adopt an enforceable code of ethics and are renewing their efforts in the wake of this recording.
“I think we ought to begin to think about using funding as a potential means of persuading justices that they should adopt a code of ethics,” Blumenthal said. “Justice Alito and Justice Thomas are politicians in robes. They’re hacks in the judicial robes that they wear and I think the chief justice has to take action to force them to recuse themselves.”
“Oh, I disagree with all of that,” Sen. Josh Hawley, R-Mo., said when asked about Blumenthal’s comments.
Republicans on the committee are against legislation that would create new requirements for the high court, citing separation of powers.
“Some of them involve Trump, I think, some of them involve [Jan. 6], some of them involve abortion,” Hawley told Straight Arrow News. “It’s been a big turn for the court and this is an attempt to pre-butt all of those so they could say, ‘Oh see it’s illegitimate, it’s illegitimate.’ My Democratic colleagues, if they don’t like the way an institution’s operating they say it’s illegitimate, if they like it, then they say, ‘Oh, it’s sacrosanct.’”
The Alito recordings received a lot of attention and also included audio of Windsor’s interactions with Alito’s wife and Chief Justice John Roberts.
“It’s a campaign of harassment against the Supreme Court in order to try to undermine public confidence,” Sen. John Cornyn, R-Texas, said.
Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is expected to ask unanimous consent to pass the Democratic-led Supreme Court ethics reform bill the afternoon of June 12. It will likely be blocked by a Republican member.
Reaction to conservative Supreme Court justices secretly recorded at Gala
A recent undercover operation by liberal activist Lauren Windsor, who posed as a Catholic conservative at a charity event, has brought new scrutiny to the U.S. Supreme Court. Windsor, known for covertly recording prominent Republicans, secretly recorded conversations with conservative Supreme Court Justice Samuel Alito and Chief Justice John Roberts.
The release of this audio has reignited debates over the court’s credibility, coinciding with the anticipated rulings on several high-profile cases in June.
“As a Catholic and as someone who like really cherishes my faith, I just don’t, I don’t know that we can negotiate with the left in the way that needs to happen for the polarization to end,” Windsor said to Alito. “I think it’s a matter of like, winning.”
“I think you’re probably right,” Alito responded. “On one side or the other — one side or the other is going to win. I don’t know. I mean, there can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So, it’s not like you are going to split the difference.”
“People in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness,” Windsor said.
“Well I agree with you,” Alito said. “I agree with you.”
These remarks have led some Democrats to question whether personal beliefs might influence judicial decisions on politically sensitive cases.
Justice Roberts, however, defended the court’s role, emphasizing its duty to decide cases impartially.
“You don’t think there’s, like, a role for the court in guiding us toward a more moral path?” Windsor asked Roberts.
“No, I think the role for the court is deciding the cases,” Roberts said. “If I start — would you want me to be in charge of guiding us toward a more moral path? That’s for the people we elect. That’s not for lawyers.”
“I believe that the founders were godly, were Christians, and I think that we live in a Christian nation, and that our Supreme Court should be guiding us in that path,” Windsor said.
“I don’t know if that’s true,” Roberts said. “I don’t know that we live in a Christian nation. I know a lot of Jewish and Muslim friends who would say, ‘Maybe not,’ and it’s not our job to do that. It’s our job to decide the cases as best we can.”
Sen. Richard Blumenthal, D-Conn., has been vocal calling for Supreme Court ethics reform. He criticized Justice Alito, saying, “Alito is becoming a loose cannon turned on the court itself. He mocks ethics.”
In contrast, conservative advocacy groups like the Judicial Crisis Network released a statement dismissing the recordings as “pure click bait” and said there was nothing inappropriate in the justices’ comments.
The Supreme Court Historical Society, which hosted the event where the recordings took place, condemned Windsor’s undercover tactics. Windsor defended her actions, citing the legality of her recordings under Washington’s one-party consent law. She argued that the Supreme Court “has been shrouded in secrecy and refuses any degree of accountability.”
Supreme Court adopts code of conduct but has no enforcement mechanism
The Supreme Court announced Monday, Nov. 13, that it has formally adopted a new code of conduct amid scrutiny over alleged ethical lapses, including justices accepting luxury vacations and high-end gifts and using taxpayer-funded staff to promote a book, though critics note the ethics code did not come with a plan of enforcement.
All nine justices signed the code, which said they should “avoid impropriety and the appearance of impropriety” in their actions on and off the bench.
It is long past time for a code of conduct that explicitly applies to the Justices. However, the lack of any way to enforce the code of conduct should any Justice decide to ignore it is a glaring omission.
“The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” the statement said. “To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.”
While the code does not restrict gifts or travel specifically, it does caution the justices should not take part in activities that “detract from the dignity” of their office or “reflect adversely to their impartiality.” The code says, “A justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment.”
SCOTUS took a first step to set rules of the road for ethical conduct for justices.
It is long past time for a code of conduct that explicitly applies to the justices.
However, the lack of any way to enforce the code should any justice decide to ignore it is a glaring omission. https://t.co/5AqwaArDik
Having the code is aimed to dispel any misunderstandings that the justices have been operating “unrestricted.” Senate Majority Leader Chuck Schumer, D-N.Y., calls the code of conduct “an important first step” but said the lack of any way to enforce it is a “glaring omission.”