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.
What Trump’s second presidency could mean for the Supreme Court
U.S. Supreme Court watchers are wondering who may retire as President-elect Donald Trump prepares for his second term. Trump’s election and the GOP’s takeover of the Senate means Republicans would be able to replace any court justice if they retire.
The court’s oldest member is 76-year-old Clarence Thomas, who was nominated by President George H.W. Bush in 1991. Justice Samuel Alito, who was nominated by President George W. Bush in 2005, is the second oldest at 74.
Thomas and Alito make up a third of the conservative majority on the court.
In his first term, Trump was able to nominate and get senate approval for three conservative U.S. Supreme Court appointees, Justices Neil Gorsuch, Brett Cavanaugh and Amy Coney Barrett.
They were instrumental in voting to overturn Roe v. Wade in 2022. The court also ruled on the expansion of presidential powers earlier this year.
That ruling found that a former president is entitled to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority, but not for unofficial acts.
However, there is no indication that Thomas and Alito are considering retirement. However, the option is more realistic under a Trump presidency as opposed to allowing a future Democratic president to pick their successors.
Supreme Court clears path for homeless bans in western states
The Supreme Court gave Western states the green light Friday, June 28, to ban homeless encampments on sidewalks and public spaces. It’s one of the most significant homelessness decisions in decades. The ruling in Grants Pass v. Johnson overturns a Ninth Circuit decision that blocked cities from enforcing penalties on the homeless.
These penalties include fines for first-time offenders, bans on repeat offenders from public parks, and jailing persistent violators for up to 30 days.
The appeals court had called the laws a form of cruel and unusual punishment.
The high court overturned that ruling, saying enforcing anti-camping laws doesn’t violate the Eighth Amendment. This decision comes at a time when many U.S. cities are facing increased homelessness due to high housing costs and the end of COVID-19 aid programs.
Many state and local leaders see these bans as essential for public health and safety, but critics argue they criminalize homelessness.
Leading California Democrats, including Gov. Gavin Newsom and San Francisco Mayor London Breed, have been vocal in urging the Supreme Court to take this action.
“Today’s ruling by the U.S. Supreme Court provides state and local officials the definitive authority to implement and enforce policies to clear unsafe encampments from our streets,” Newsom said in a statement. “This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities.”
Justice Neil Gorsuch, writing for the conservative majority, argued that the Eighth Amendment focuses on the type of punishment after a criminal conviction, not on criminalizing certain behaviors. He emphasized that enforcing public camping bans is a matter for local governments, not federal courts.
In dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, argued that the ruling undermines protections for homeless individuals. She stressed that the decision disregards the realities of homelessness and the complex reasons people refuse shelter.
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 rules Sackler family can’t be protected under Purdue bankruptcy case
The Supreme Court ruled Thursday, June 27, that the Sackler family — which owned Purdue Pharma and marketed the opioid pain reliever OxyContin — is not immune from lawsuits. The high court said the deal made with a bankruptcy court to avoid liability is improper.
The 5-4 decision was ideologically mixed. The opinion was written by Justice Neil Gorsuch, joined by Justices Thomas, Alito, Barrett and Jackson. The dissenting opinion was written by Justice Brett Kavanaugh and joined by Chief Justice John Roberts and Justices Sotomayor and Kagan.
Here are the facts of the case from the court:
Between 1996 and 2019, Purdue made $34 billion in revenue mostly from the sale of OxyContin. That gave the Sackler family an estimated net worth of $14 billion. In 2007, a Purdue affiliate pleaded guilty to a federal felony for misbranding OxyContin as “less addictive” and “less subject to abuse” than other pain medications. Thousands of lawsuits followed, so the Sacklers began taking $11 billion out of the company thinking the lawsuits would eventually impact them directly.
During bankruptcy proceedings with Purdue, the family proposed to return $4.3 billion to the company in exchange for a judicial order releasing them from all opioid-related claims.
The Supreme Court just decided that can’t happen.
“The code generally reserves discharge for a debtor who places substantially all of their assets on the table,” Justice Gorsuch wrote in the majority opinion. “And, ordinarily, it does not include claims based on ‘fraud’ or those alleging ‘willful and malicious injury.’ The Sackler discharge defies these limitations. The Sacklers have not filed for bankruptcy, nor have they placed virtually all their assets on the table for distribution to creditors. Yet, they seek an order discharging a broad sweep of present and future claims against them, including ones for fraud and willful injury.”
Gorsuch also wrote that the decision is a “narrow one.”
“Nothing in the opinion should be construed to call into question consensual third-party releases offered in connection with a bankruptcy reorganization plan,” Gorsuch explained. “Nor does the Court express a view on what qualifies as a consensual release.”
However, there is concern this decision could negatively impact what opioid victims ultimately receive as compensation.
“Today’s decision is wrong on the law and devastating for more than 100,000 opioid victims and their families,” Justice Kavanaugh wrote in the dissent. “The Court’s decision rewrites the text of the U.S. Bankruptcy Code and restricts the long-established authority of bankruptcy courts to fashion fair and equitable relief for mass-tort victims.”
The families of the late Dr. Mortimer Sackler and late Dr. Raymond Sackler said in a statement that they remain hopeful about reaching a resolution that provides substantial resources to combat a complex public health crisis.
The statement continued, “The unfortunate reality is that the alternative is costly and chaotic legal proceedings in courtrooms across the country. While we are confident that we would prevail in any future litigation given the profound misrepresentations about our families and the opioid crisis, we continue to believe that a swift negotiated agreement to provide billions of dollars for people and communities in need is the best way forward.”
It’s unclear exactly what happens next. The bankruptcy deal will have to be renegotiated and some victims’ families want the Sacklers to face criminal charges.
Views of SCOTUS’ credibility remain polarized ahead of major June rulings
As June progresses, the U.S. Supreme Court is set to deliver decisions on several landmark cases that could have significant implications across various sectors. These cases include issues of presidential immunity potentially affecting former President Donald Trump, limitations on access to the abortion pill Mifepristone and the regulation of social media companies’ content moderation practices.
The court, which currently holds a conservative majority, finds itself under intense scrutiny as it approaches these pivotal decisions.
Public opinion on the Supreme Court is deeply divided. Democrats have raised concerns about the ethical conduct of the justices, while many Republicans view these concerns as politically motivated attempts to undermine the court ahead of crucial rulings. The ethical controversies primarily revolve around financial disclosures and the acceptance of gifts by the justices, which have drawn nationwide attention.
Conservative Justice Clarence Thomas recently amended his financial disclosures to include vacations funded by Republican billionaire Harlan Crow. These trips sparked debate over Thomas’ impartiality. Similarly, Justice Samuel Alito faced scrutiny for accepting gifts from billionaire Paul Singer. Both justices’ connections to wealthy benefactors fueled questions about the influence of outside interests on the court.
Justice Alito was further scrutinized for allegedly flying flags associated with the Jan. 6 riots and Republican movements outside his homes, leading to calls from some Democrats for his recusal from certain politically charged cases. Republicans dismissed these calls as attacks on the court’s reputation.
Conservative Justices Brett Kavanaugh and Neil Gorsuch also reported significant earnings from book royalties. Despite these revelations, there are no current rules explicitly prohibiting such activities since the Supreme Court lacks a formal code of conduct.
The heightened scrutiny of the justices’ personal lives has led to an investigation by the Senate Judiciary Committee into whether judicial ethics reform is necessary. The committee invited Chief Justice John Roberts to testify, but he declined, and Democrats have so far refrained from issuing a subpoena.
As the Supreme Court’s term draws to a close with a series of high-stakes decisions, the integrity of the court remains a contentious issue. The outcomes of these cases are expected to generate widespread reactions and underscore the ongoing debate over the ethical standards governing the nation’s highest judicial body.
Trump lawyers admit some actions alleged in indictment are private, not official
Do former presidents have immunity from criminal prosecution? If so, to what extent? The Supreme Court will answer those questions in a case that will decide whether multiple criminal trials can move forward against Donald Trump. The decision will also further define Article II of the United States Constitution.
“We’re writing a rule for the ages,” Justice Neil Gorsuch said during the two-and-a-half-hour oral argument.
“This case has huge implications for the presidency, for the future the presidency, for the future of the country,” Justice Brett Kavanaugh added.
Trump’s lawyers began arguments by saying presidents have total immunity for their official acts.
“Without presidential immunity from criminal prosecution there can be no presidency as we know it,” attorney D. John Sauer told the justices. “If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president’s decision making precisely when bold and fearless action is most needed.”
The justices put that argument to the test with a series of hypotheticals.
“Somebody says, ‘I’ll give you a million dollars if I made the ambassador to whatever.’ How do you analyze that?” Chief Justice John Roberts asked Sauer.
“That I think would fall under this court’s discussion in Brewster where the court held, with respect to legislative acts, that bribery is not an official act,” Sauer responded.
“How about if a president orders the military to stage a coup?” Justice Elena Kagan asked.
“I think that, as the chief justice pointed out earlier, where there is a whole series of, you know, sort of guidelines against that, so to speak. Like the UCMJ prohibits the military from following a plan for the unlawful act,” Sauer said.
Justice Amy Coney Barrett did not use hypotheticals. She laid out specific accusations against Trump and asked his attorneys to state plainly whether they are private or official acts.
“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?” Barrett said.
“As alleged, I mean we dispute the allegation, but that sounds private,” Sauer answered.
“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,” Barrett said.
“That also sounds private,” Sauer said.
Barrett later asked government lawyers: If they are concerned about this case moving quickly due to the upcoming election, why not drop the charges that involve acts that may be official and move forward with the acts that are admittedly private?
“It is another option for the special counsel to just proceed based on the private conduct and drop the official conduct?” Barrett asked.
“There’s really an integrated conspiracy here that had different components,” attorney Michael Dreeben, who argued for the special counsel, said. “The petitioner reaching for his official powers to try to make the conspiracies more likely to succeed. We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct.”
Other justices questioned whether the former president’s actions were done for official purposes or personal gain.
“Isn’t that the nature of the allegations here — that he’s not doing them, doing these acts in furtherance of an official responsibility, he’s doing it for personal gain,” Justice Sonia Sotomayor said.
“I agree with that characterization of the indictment and that confirms immunity,” Sauer said. “Because the characterization is that there’s a series of official acts that were done for…”
“No, because immunity says even if you did it for personal gain, we won’t hold you responsible,” Sotomayor said.
Despite the tough questions for Trump’s lawyers, the justices indicated there are larger questions to be answered about Article II of the Constitution and presidential powers.
Justice Roberts expressed concern with the lower court’s ruling in this case that said Trump can be prosecuted.
“Why it concerns me is, I read it says simply, a former president can be prosecuted because he’s being prosecuted,” Roberts said. “Now you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment and reliance on the good faith of the prosecutor may not be enough in some cases. I’m not suggesting here.”
“I do take as a very legitimate concern about prosecutorial abuse, about future presidents being targeted for things that they have done in office,” Justice Ketanji Brown Jackson said. “I take that concern. I think it’s a real thing. But I wonder whether some of it might also be mitigated by the fact that existing administrations have a self interest in protecting the presidency, that they understand that if they go after the former guy, soon, they’re going to be the former guy.”
A decision should be released by June, but that may not be the end of it. The justices could create new parameters for judges to consider then send the case back to the lower courts to sort out.
SCOTUS casts doubt on plaintiff’s ability to sue FDA over mifepristone approval
The Supreme Court heard oral arguments in a case that could not only impact access to an abortion pill used by millions of women, but also change the way the Federal Drug Administration approves medicine. However, the justices raised serious questions about challenging the FDA’s approval process and about the plaintiffs standing to sue in the first place.
The Alliance for Hippocratic Medicine, an organization that says it believes in the sanctity of life from fertilization to natural death, sued over the FDA’s approval of mifepristone, an abortion pill women can take at home to terminate early-stage pregnancies.
“Rolling back FDA changes would unnecessarily restrict access to mifepristone with no safety justification,” Solicitor General Elizabeth Prelogar told the justices. “Some women could be forced to undergo more invasive surgical abortions, others might not be able to access the drug at all.”
The FDA approved the drug in 2000. In 2016, the FDA expanded access by only requiring one in-person visit to get a prescription and allowing it to be used through the 10th week of pregnancy. In 2021, during the coronavirus pandemic, the FDA allowed the drug to be prescribed via telemedicine and sent through the mail.
The original approval and access changes in 2016 and 2021 are at the heart of the case. The justices were presented with multiple questions, including whether a lower court erred when it placed an injunction last year on the 2016 and 2021 FDA actions.
“In 2021, it eliminated the initial in-person visit based on data it says elsewhere is unreliable. And in 2016, it failed to consider or explain the cumulative effects of its wholesale removal of safeguards,” said Erin Morrow Hawley, an attorney for Alliance Defending Freedom who represented Alliance for Hippocratic Medicine.
The justices are also deciding whether the plaintiffs have standing to sue in the first place and they cast serious doubt on that, including conservative Justices Clarence Thomas and Neil Gorsuch.
“Counsel, you assert the, an injury on the part of the Alliance of diverted time and resources,” Justice Thomas asked. “Isn’t it just the cost of litigating, of pursuing this litigation?”
“If you look at how our organizations have been harmed, they’ve been forced to divert resources from speaking and advocating for their pro-life mission generally to explaining the dangers of the harm from abortion drugs,” Hawley responded.
“But that would be anyone who is aggressive or vigilant about bringing lawsuits,” Thomas said. “Just simply by using resources to advocate their position in court, you say now, causes an injury. That seems easily — easy to manufacture.”
Gorsuch raised concern about a universal injunction, something that was echoed by Justice Ketanji Brown Jackson.
“I went back and looked, and there are exactly zero universal injunctions that were issued during Franklin Delano Roosevelt’s 12 years in office, pretty consequential ones,” Gorsuch said. “And over the last four years or so, the number is something like 60 and — maybe more than that, and they’re a relatively new thing. And you’re asking us to extend and pursue this relatively new remedial course.”
A decision in the case should be released by June.