Writing in the The Conversation, Dr Colin Provost (UCL Political Science) argues that the potential ramifications of the shifts caused by the US Supreme Court in the past two weeks cannot be underestimated.
The US Supreme Court has concluded its 2023-24 term in the past two weeks with a number of profoundly consequential decisions that have major implications for the years to come.
This is the court of last resort in the US and no other court may overrule its decisions. It possesses tremendous authority, having the power to strike down as unconstitutional or illegal a vast range of actions or policies undertaken within the US political system.
Just before it adjourned for the summer, the court handed down a raft of hugely consequential decisions in just ten days. The winners included current and future presidents who will enjoy immunity from prosecution for official acts, while losers included the agencies over which the president presides.
The court has succeeded in amassing significant amounts of power, giving federal judges more authority over regulatory decisions that previously had been the province of federal agencies such as the Environmental Protection Agency (EPA). The EPA creates and enforces regulations over air and water quality.
The potential ramifications of these shifts cannot be underestimated.
In this short period, the court issued decisions on abortion , gun control , climate and environmental rules , the opioid crisis , presidential power , and the power to regulate the economy.
It also ruled on whether the January 6 rioters who broke into the Capitol building could be prosecuted. The court ruled that prosecutors had overreached, and this decision casts doubt over hundreds of January 6 convictions.
And perhaps most memorably, in Trump v USA, the court ruled that the president is entitled to immunity from criminal prosecution for official acts committed in the course of presidential duty, but not for unofficial or personal acts.
Republicans have traditionally favoured a strong presidency, particularly since 9/11 - and the immunity decision furthers that objective. But the ruling also raises pointed questions about what presidents will be able to get away with in the future. More immediately, it is likely to further delay the election interference trial against Donald Trump and it also delays sentencing in the Manhattan hush money trial in which Trump has already been convicted.
"This is a court that is in a hurry to drastically reshape the law. It’s in a hurry to throw out precedents and upset settled law and make profound and fundamental changes in our law," was the opinion of Cliff Sloan, a law professor at Georgetown University.
A major goal of the Trump administration was to work with organisations, such as the right-wing Federalist Society , to recruit judges who advance conservative causes, such as reducing the power of the federal bureaucracy to write new rules and regulations.
During his presidency, Trump and Senate minority leader Mitch McConnell worked together to add scores of conservative judges to the federal bench. But it was the three Supreme Court court vacancies during Trump’s presidency that gave Republicans a chance to dramatically reshape that court’s decision making. The six-to-three Republican majority has been the backdrop to recent court decisions that have shifted policy dramatically to the right.
How does the court work?
Because a seat on the court is also a lifetime appointment, nominating and confirming a new justice to the court is a contested, high-stakes process.
While many observers may think that the role of judges should be somehow neutral or apolitical, numerous scholars have demonstrated that justices nominated by Republican presidents are more likely to issue conservative decisions, while justices nominated by Democratic presidents are more likely to issue liberal decisions.
Thus, as the two main political parties have become increasingly polarised, the fight to shape the direction of the federal judiciary has become increasingly contentious.
One of the key goals of conservatives for decades was the overturning of Roe v Wade, the 1973 Supreme Court decision that granted a constitutional right to an abortion. In the 2022 decision of Dobbs v Jackson Women’s Health Organisation , the court reversed the longstanding precedent of a constitutional right to abortion.
Some states, such as Idaho, have introduced near total bans on abortion, which have come into conflict with the 1986 Emergency Medical Treatment and Labor Act (EMTALA) . Emtala requires hospitals that receive Medicare (state) funding to "provide necessary stabilizing treatment" to patients with an "emergency medical condition".
With Idaho’s law in effect, women have routinely been airlifted out of Idaho to receive abortions in other states. The court ruled that emergency abortions could proceed in Idaho, but its failure to resolve other conflicts between state and federal law on this issue shows that its work on abortion is far from over.
The court’s decision to weaken federal agency power will mean that it is more difficult to craft new rules on climate change, public health or worker safety, among other issues.
The decision has its origins in the court’s 1984 case Chevron v Natural Resources Defence Council. This established that federal judges must defer to the interpretations of federal agencies when the meaning of a federal statute is not clear. This reliance on agency expertise as the last word became known as "Chevron Deference" . Conservatives over time came to see Chevron as a means of adding burdensome regulations which impose costs on the economy.
In two cases in this term , the court gave federal judges the final say on how to interpret federal rules. In her dissent, Justice Kentaji Brown Jackson anticipated a "tsunami of lawsuits against agencies..." . It will now be considerably easier for businesses and political allies to challenge federal regulations, knowing that so much of the federal judiciary leans to the right.
In 2024 presidential power has increased, but federal agency power has decreased markedly. This means that addressing a number of challenging policy issues, such as climate change, economic inequality and others just became more difficult. While conservatives have much to cheer about in this Supreme Court term, these decisions will surely further polarise public opinion about the court.
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