SCOTUS Hands Trump Presidential Immunity | Crooked Media
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July 01, 2024
Strict Scrutiny
SCOTUS Hands Trump Presidential Immunity

In This Episode

It’s the last decision day of the year, and SCOTUS goes out with a bang. Kate, Leah, and Melissa unpack the frankly terrifying decision granting Trump immunity for “official acts” taken as president. As if that’s not enough, the court takes further steps to hobble the administrative state, which will have serious consequences for the functioning of the federal government.






Show Intro Mr. Chief justice, may it please the court. It’s an old joke, but when an argued, man argues against two beautiful ladies like this, their going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it, we’re your hosts today, I’m Melissa Murray.


Leah Litman I’m Leah Litman.


Kate Shaw And I’m Kate Shaw, and we are going to just go right now. No banter. We got the immunity ruling that is honestly terrifying, both with respect to how the court wrote the opinion in ways that will affect the Trump case in particular, but also more profoundly with respect to how the court’s opinion fundamentally reshapes aspects of our constitutional democracy. So with that, obviously, we were talking about the long awaited opinion in Trump versus United States. Let’s dive right in.


Leah Litman Not clear why it had to be so long awaited, because if the court was just going to fire off some biased takes that were divorced from law, history and constitutional principle, you would think that they could do so quickly. You know, along these lines, Justice Sotomayor noted in her dissent, quote, settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.


Kate Shaw Indeed it does. And again, for folks who are just maybe tuning in now a little tiny bit of background, this is the federal election interference case arising out of January 6th, just to put on the table the specific charges against Donald Trump. He was charged with obstructing an official proceeding, conspiring to do the same, conspiring to defraud the United States and violating a reconstruction era law that prohibits interfering with civil rights here at the right to vote. The factual basis for these charges were various aspects of his monthslong effort to overturn the results of a valid election, including by doing things like assembling fake elector slates and seeking to throw out lawfully cast votes.


Melissa Murray Trump, as he has want to do, argued for the application of a totally novel form of immunity that would shield him from criminal exposure for any official acts taken as precedent. And this means that if he was acting as president, including doing things like ordering his subordinates to engage in illegal actions like, for example, assassinating a political rival, he might never face criminal charges for that. And the court mostly endorsed that theory, though it pretended like it was rejecting that argument. But mostly it’s really a big endorsement. So in a 6 to 3 opinion written by the Chief Justice, which split along ideological lines, the court rejected parts of the indictment, adopted a broad notion of immunity that would knock out other parts of the indictment, and definitely ensures that there will be no pre-election trial because of the kinds of proceedings it imagines has to take place on remand. And so basically, we’re left with a democracy. You really in danger, girl?


Leah Litman Yeah. The shorter Republican Supreme Court. The Tldr here is that they are hot. Go for a second. Trump administration with apologies to Chapel Roan for the misappropriation there, but Justice Sotomayor’s dissent for the three Democratic appointees called the Supreme Court out on the attempt to distance that the majority tried to put between themselves and Trump’s argument. Justice Sotomayor wrote, quote, finally, in an attempt to put some distance between its official Fox immunity and Trump’s requested immunity, the majority insists that Trump asserts a far broader immunity than the limited one the majority has recognized. If anything, the opposite is true. And, quote, so, so much for that. 333 moderate court.


Kate Shaw I guess I really appreciated that moment where Sotomayor is calling Roberts out on actual gaslighting because he is giving Trump everything he has asked for and pretending that he isn’t. And the dissent is really explicit about that. So, okay, so what exactly is the court doing in this case? Let’s give a high level description and then unpack a bit further. So the rule the court lays out seems to be as follows okay. So there are three different kinds of charges and allegations against Trump. And there are three categories. And each of these categories are entitled to different kinds of immunity. So first for any actions and this is as to Trump or any future president actions taken within the president’s conclusive and preclude sive constitutional authority, the president is entitled to absolute immunity from criminal prosecution. So again, certain presidential acts that are taken pursuant to core article two powers. We can talk a little bit more about what that means. Absolutely. Immune case has to be thrown out of the pass category to involve actions taken within the outer perimeter of the president’s official duties. And for those kinds of actions the president is entitled to, at least and this is important, at least presumptive immunity from criminal prosecution. So at least presumptive immunity, that presumption would have to be rebutted. And maybe the court doesn’t rule this out. Absolute immunity for all official acts taken by the president. And then third, with respect to purely private or unofficial activity, the president is not entitled to immunity. But by the time the case was in front of the Supreme Court, Trump wasn’t even arguing for immunity for private conduct. So ruling against private conduct immunity does not convert this into a partial loss for Trump. He wasn’t even asking for it. So those are the three categories that the case lays out. And the majority also limits the kind of evidence that can be used in a case in addition to. Directing the district court here to carefully analyze the indictments for meeting allegations, to determine whether they to involve conduct for which a president must be immune from prosecution. The court also says the parties and the district court must ensure that sufficient allegations support the indictments charges without such conduct and then adds a footnote saying what the prosecutor may not do is admit testimony or private records of the president or his advisers probing the official act itself. So things that the court says are off limits. Those can’t be charged, but they can’t even come in as evidence to support the things that remain fair game for prosecution. So this takes off the table huge reams of evidence that Jack Smith and his team might be able to introduce to support what few charges might remain. In light of this decision.


Melissa Murray Even leaving aside its implications for Jack Smith’s case, I think all of this is just really striking for the broader question of presidential authority. I just want to sort of maybe make the observation that this sort of three part test recalls the three part test that Justice Jackson, the first Justice Jackson, Robert Jackson, offered in Youngstown Sheet in two, but that sort of three tiers of presidential authority. And it’s like the murky zone of twilight where all of the action is like, that’s kind of what’s happening here. The second category, where it’s not private action, it’s not obviously constitutional action, but it may be in the outer perimeter. That’s where all of the action is going to be. In the Donald Trump case. It’s going to be where all of the action is going forward. In any question, where a president might be subject to criminal liability. The big issue looming in Youngstown was whether a president had gone too far to usurp authority that had been given over to the legislature. That’s obviously not the question here, but one of the things the Youngstown court had been really concerned about was this idea of an energetic, nimble president who took from other branches and in doing so, consolidated enough governmental power to make himself a dictator. And they were obviously thinking to the very recent past, Hitler and Mussolini here in this opinion, this court is celebrating and indeed endorsing the idea of an energetic, nimble executive. They see this multiple times. In the majority opinion. Justice Thomas echoes it in his concurrence. They want a president who’s going to do a lot of things. And in the end, the court essentially says if the president does something that the president has constitutional authority to do, that’s the end of it. No criminal prosecution. It doesn’t matter if the president is abusing the powers of his office for political gain or retribution. Motive doesn’t matter. And they say this, quote, in dividing official from unofficial conduct, courts may not inquire into the president’s motives. End quote. This is a lot. This is a really huge, sweeping sea change, I think, in the way we think about presidential authority and perhaps even a sea change in the way we think about the president and whether or not executive authority is a threat to other aspects of government.


Leah Litman Yeah. And Melissa, you mentioned that they wanted a nimble and quick president. I think they want a nimble and quick Republican president, because I’m pretty sure that if Joe Biden declared himself King Joe.


Melissa Murray He does move slowly.


Leah Litman They would be like, you know, you know, immunity doesn’t go that far. But we’ll get to the.


Melissa Murray I mean Joe Biden has the chance to do the funniest thing ever right now.


Leah Litman Many funny things. So I think another indication of how broad the court’s second category, where all the action is, as Melissa was saying, is how they apply that standard to the facts of this case. And we’ll get to that application in a second. But again, just to pause over the big picture here, it’s like 50 years after Richard Nixon said, when the president does it, that means it’s not illegal. The Supreme Court decided, you know what, tricky Dick? He had a point. He was on to something.


Kate Shaw I mean, you know, it’s like literally 50 years ago this month. So it’s alive, 74 that the court rules against Nixon unanimously and in September of 74, this just doesn’t really come up in the case. And it continues to drive me so insane that it doesn’t. But Ford pardoned Nixon, and the text of the pardon says, because otherwise he would be susceptible to criminal prosecution. But because he’s already had to endure the indignity of resigning the office of president, we’re going to spare the country and pardon him, because we need to. Otherwise he’d be prosecuted. And that, of course, echoes with Mitch McConnell said three years ago when voting against convicting Trump in his second impeachment, which was ex-presidents can be criminally prosecuted. So we have this whole body of utterances and understandings, and the court just like blows right past them on this vibe based notion that it’d be bad if presidents were killed in the exercise of the office by the possibility of criminal indictment. So there you have it. Okay, so the court talks about some of the specific allegations in the indictment and says very clearly the prosecution cannot rely on those because they fall within that first category of the president’s conclusive and reclusive authority. So, first, Trump’s threatened removal of the attorney general implicates this. Is the court speaking here? Conclusive and precludes presidential authority. And now I’m finished with the quote, and I will editorialize. The court is saying that it doesn’t matter if the threatened removal was predicated on the government officials support for baseless allegations of voter fraud. They just basically say dismissal of an official, like an attorney general or an acting attorney general, something the president alone has the power to do. Now, where in the Constitution, the president has the exclusive power to remove a federal official is a question that would be a hard one for on a constitutional exam, because it’s nowhere in the Constitution. But the Supreme Court is very fixated on the kind of importance of presidential removal authority. But that is one example of the conduct at issue in the complaint that the court says is categorically off limits, cannot be pursued in this case.


Melissa Murray And that also means that a future president could remove a special counsel, say, like Jack Smith, and there would be no recourse. So that’s chilling. Also chilling. And an obvious implication of the court’s decision here is that any communication or action involving the DOJ would allow a president to, say, remove a special counsel or direct the attorney general to terminate a prosecution, and that all would be considered an official act. So this is sort of the lovechild of the unitary executive theory and this idea that the president is a king. I mean, it’s it’s the unitary executive monarch principle, in real time being developed for us.


Leah Litman And the court also rules that other allegations in the indictment are entitled to a presumption of immunity. So the opinion notes that the indictment alleged that Trump and his coconspirators tried to enlist the vice president and also, you know, pressure the vice president to reject states legitimate electoral votes. And it says Trump is at least presumptively immune from prosecution for such conduct. And, you know, it goes on to say that, like whenever the president and vice president are discussing their official responsibilities, they engage in official conduct. That part is just absolutely bananas, because it’s not clear why pressuring states to reject legitimate electoral votes would count as official conduct. But again, no matter.


Kate Shaw Bottom line so far, this is a perfect way to celebrate Independence Day, July 4th. Happy birthday America.


Leah Litman Yeah. I mean, like literally marking the occasion when we declared ourselves independent of a king. The Supreme Court is like, well, but actually.


Melissa Murray That King thing. I wish the king in question or not, Donald Trump. And instead a different ginger like Prince Harry.


Kate Shaw I know this is hard for you because of your royalist instincts.


Melissa Murray I’m torn. I do like a good monarchy, but it really depends on a good monarch. Right?


Leah Litman King George did say in Hamilton, I’ll be back. I’ll be back.


Melissa Murray Well. Here we are. So let’s take stock. So Scotus definitively strikes some allegations. I’m saying that they can’t be the basis for prosecution. It definitely says that other allegations are entitled to a presumption of official immunity, such that they can’t be the basis for a prosecution, and it doesn’t rule in any of the allegations. Instead, it remand the entire indictment back to the district court to go through what remains very carefully and determine whether the actions that are still on the table are entitled to a presumption of immunity, and whether the government has rebutted that presumption of immunity. They did cite to the transcript to suggest that both sides agree that some of what is alleged in the indictment is, in fact, unofficial conduct. So there is that.


Leah Litman I just want to underscore this last point. Like the court refuses to rule out the possibility that any of the president’s efforts to overturn a valid election might fall within the outer perimeter of the president’s official responsibilities, for which presidents are entitled to immunity. They’re just not sure about that. And when pressed by Justice Sotomayor about their failure to do so, they’re like, look, we’re trying to decide this case quickly, and it’s complicated. You know, basically like, okay, you you tried to maybe murder your vice president into a coup, but did you do so officially? And, you know, compare like.


Kate Shaw And if so.


Leah Litman Exactly. And like compare the, like at minimum uncertainty about that question to the opening of Justice Sotomayor’s blistering dissent, which says, quote, because our Constitution does not shield a former president from answering for criminal and treasonous acts. I dissent. Not respectfully.


Kate Shaw We need to read a lot of excerpts from the Sotomayor dissent. Unlike the majority opinion, it is actually one for the ages.


Melissa Murray All right, well. Let’s start there. I’ll start. Yeah. Do it. Here’s Justice Sotomayor, quote. The majority makes three moves that, in effect, completely insulate presidents from criminal liability. First, the majority creates absolute immunity for the president’s exercise of, quote, core constitutional powers. This holding is unnecessary on the facts of the indictment and the majority’s attempt to. Apply it to the facts. Expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all official acts, whether described as presumptive or absolute. Under the majority’s rule, a president’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the president is immune can play no role in any criminal prosecution against him. That holding, which will prevent the government from using a president’s official acts to prove knowledge or intent in prosecuting private offenses is nonsensical. End quote.


Kate Shaw And I feel like she’s talking simultaneously about January 6th and these allegations, but also, and in some ways more urgently about what this case is perspective. A fact will be on both a potential second Trump term and also the presidency and the country more broadly.


Melissa Murray Yes.




Leah Litman So let’s turn to that question like what does this opinion do with respect to the presidency in our democracy writ large, including the possibility of a second Trump term because of the kind of unity the court has embraced and the kind of immunity it might embrace still. You know, again, it wasn’t ruling out absolute immunity. They are placing the president above the law. They are saying as long as the president does something within the president’s official duties, it doesn’t matter why the president does it. If the president is doing so for corrupt or personal or vindictive or vengeful ends. No criminal liability is possible. And again, just hypothetically, imagine that a president orders, let’s say, the military, to break into a hotel, to steal in opposing political parties records, and then threatens to fire his attorney general if the attorney general looks into it, or the attorney general doesn’t grant immunity for the break in.


Melissa Murray This sounds historical.


Kate Shaw Were not supposed to engage in farfetched hypotheticals, Leah.


Leah Litman Exactly. Are too far fetched, obviously, I’m taking this afield. But this is the reality that they are creating.


Melissa Murray Somewhere Richard Nixon is turning over in his grave being like, this is the court I needed.


Leah Litman Exactly, exactly.


Kate Shaw Well. He’s being they are vindicating his when the president does it. It’s not illegal. It just comes half a century too late to actually benefit him. But Trump is here to reap the benefits. And all of that, I think, is what prompts another passage that we wanted to read from Justice Sotomayor’s dissent. And this is joined by Justices Kagan and Jackson. And and Jackson actually also write separately for herself. So here’s the quote, looking beyond the fate of this particular prosecution, the long term consequences of today’s decision are stark. The court effectively creates a law free zone around the president, upsetting the status quo that has existed since the founding this.


Melissa Murray One second, Kate. Do you think that Law Free Zone is an Easter egg for us? I think it might be. I think we have said that.


Kate Shaw I wish you would say that the the court is operating on vibes here. She’s kind of saying that.


Melissa Murray No, but we also say it’s a law free zone. Leah has often said, talked about vibes and then said, you know, it’s a law free zone. I think this. I think is for us.


Kate Shaw All right, we’ll go with easter egg, okay. All right.


Leah Litman Well, this is also actually a callback to Justice Kagan’s dissent in Brnovich, where she also accused the majority of inhabiting a law free zone.


Kate Shaw That’s true.


Melissa Murray Which also might have been, I think, a Easter Egg for us.


Leah Litman Yes.


Kate Shaw So this is like Easter egg squared, which is way better than hubris squared if you have to choose. So so this new official asked immunity just to continue quote lies about like a loaded weapon, which is a reference to Justice Jackson’s dissent from Korematsu giving this power to the president, essentially to, in turn, individuals, because, you know, of the invocation of the exigencies of war time and sort of the need to respond. That’s a loaded weapon, according to Jackson Korematsu. And she reprises that here. So she says it’s a loaded weapon for any president that wishes to place his own interest, his own political survival, or his own financial gain above the interest of the nation. The president of the United States is the most powerful person in the country, and possibly the world, when he uses his official powers in anyway, under the majority’s reasoning, he now will be insulated from criminal prosecution. And she gives some of these examples. Orders a Navy Seal Team six to assassinate a political rival. Immune organizes a political coup to hold on to power. Immune takes a bribe in exchange for a pardon. Immune, immune, immune.


Leah Litman So I had to suffer through some people suggesting there’s no way this opinion would authorize a Seal Team Six assassination or a military coup. But I think the point is it could. Right. It is, at a minimum, unclear about this. And there are points that suggest it would. You know, again, the majority says the president’s orders to the Department of Justice are absolutely immune, even though the president was allegedly doing this to subvert an election for illegitimate ends. And on the same logic, a court could say the president’s orders to the military are absolutely immune, even though the president is doing this for personal gain, political vengeance or whatever. And that is the kind of terrifying dystopia that this opinion creates. And just to kind of take stock of where the Supreme Court has placed us, the president can maybe try to overturn an election if they do so officially, but they cannot cancel student debt, cannot adopt clean energy transition, cannot adopt a vaccination requirement in the middle of a pandemic.


Melissa Murray Just to hammer home how hypocritical and unhinged all of this is, let’s play a clip from Brett Kavanaugh asking a question at oral argument. We’ll let you guess which oral argument this was. And if you can’t guess, we’ll tell you the answer on the other side.


Clip Last question. Which is, there was talk about democratically elected political branches, but just want to get your agreement on something that I think you’ll agree on, which is the role of the judiciary historically under the Constitution, to police the line between the legislature and the executive to make sure that the executive is not operating as a king, not operating outside the bounds of the authority granted to them by the legislature. You agree? That’s, a proper judicial. Role. I would assume.


Melissa Murray If you guess that this came up in the case where some guy is arguing that presidents can assassinate their political rivals and potentially not be subject to prosecution. You would be wrong. This question arose as the court considered whether courts to defer to administrative agencies about technical regulatory matters, i.e., overruling Chevron that was in relentless versus Department of Commerce.


Kate Shaw They are so concerned about kings when it’s agencies regulating to protect people’s air, the air we breathe that is the mark of a true monarch, and that’s what we should fear.


Leah Litman Chef’s kiss no irony detected. Makes total sense. The majesty of the law. Ladies and gentlemen.


Melissa Murray Majesty indeed.


Leah Litman Exactly.


Kate Shaw Can I? Can I make another relentless point? We drew some Relentless and Dobbs parallels on our emergency episode about relentless, which is, like, big overruling and kind of denigration of the earlier courts here. I think there’s a real parallel between this Trump case and Dobbs in that Sotomayor is, I think, entirely correct to say Seal Team Six, like that’s official, that is protected under this court’s test. And the court does this kind of hand-waving about this, you know, being kind of a partial win and the president not being a king, et cetera, etc., which I think is about as credible as alito’s insistence in Dobbs that nothing but abortion is imperiled by the court’s opinion. It is exactly that credible, and you should take it exactly as seriously.


Melissa Murray Well, I don’t know what else to say. I think Justice Sotomayor said it best when she ended her dissent with the following words. Quote, never in the history of our republic has a president had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law? Moving forward, however, all former presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain. The criminal law that the rest of us must abide will not provide a backstop with fear for our democracy. I dissent, end quote.


Kate Shaw That was powerful. Yeah.


Leah Litman Now we know why she saved the omission of, respectfully for a later date. We there are a couple of times this term where we’re like, Sonia, respectfully doesn’t really need to happen here, but she’s like, nope, nope. There’s more. I’m going back to my office to cry now and I’ll take the respectfully out then.


Kate Shaw Remember Kagan in her Ruto gerrymandering dissent, says with sorrow I dissent. And this, I think with fear just ratchets that up like a significant additional level.


Melissa Murray So can we talk about that? Because there’s this there’s a line in the Chief justice’s majority opinion where he basically calls out the three dissenters as like fear mongering harpies.


Leah Litman Yes.


Melissa Murray I mean, he actually uses the term fear mongering. And yes.


Kate Shaw Although not harpies.


Melissa Murray He doesn’t call them harpy. That was me. Fair share. But if he could and still be institutionally minded, I think he would. But the idea that this is fear mongering and that, you know, these three women are just hyperbolic, crazy lady parts like it. So maddening. Such gaslighting. I mean, this is a really massive sea change in the way we think about executive authority, and I wish they just call it what it is.


Leah Litman We had some other things we wanted to flag about the majority opinion that were also terrifying, that I don’t know, we have explicitly pointed to just yet. So one to me was in recounting, you know, what the president’s exclusive and preclusive authority was that entitle presidents to absolute immunity, like no matter how they were using their powers. The majority opinion writes, investigative and prosecutorial decision making is the special province of the executive branch. And it continues to say that the indictments allegations that the requested investigations were shams doesn’t remove their immunity. So again, just to draw this out, this would mean that a president would be immune for instituting and ordering attorney general to institute baseless charges done for political retaliation or personal vendettas. And again, this has to be read alongside the fact that Donald Trump is already threatening to prosecute political rivals and seek retribution.


Kate Shaw Yeah.


Melissa Murray And to underscore something we have said earlier, if the president were to initiate these kinds of actions, there would be no inquiry into the motive behind. It wouldn’t matter if it was for retribution. The fact that it is undertaken and it’s constitutionally authorized for the president would make it okay. And even if it wasn’t, if it was in that outer perimeter, it is presumptively immune from criminal liability until the government can rebut that presumption.


Kate Shaw Yeah. One other thing I wanted to flag from the majority opinion, which is sort of a small citation, but I thought quite revealing the court is largely reasoning from this kind of free floating principle of the importance of like presidential non constraint, including, you know, constraint of the law. And there’s a quote to the 2016 McDonnell opinion that we talked about when we talked about the Snyder Gratuities corruption case. Right. The court is on this tier of striking down anti-corruption statutes. McDonnell is an important one in that line. And the court quotes that case to say the hesitation to execute the duties of his office fearlessly and fairly. That might result when a president is making decisions. Is under a pall of potential prosecution. So this kind of fear that public officials will be chilled in ways that are problematic by the threat of prosecution, hangs over the anti-corruption cases and is how the court has narrowed those statutes. And we see it on full display in this constitutional case, and I think very much shores up our intuition that these statutory cases about the right to do corruption are at some point going to become constitutional cases about the privilege to engage in corruption and this case I think really makes that clear.


Melissa Murray Fundamental right to be corrupt.


Kate Shaw Yeah. So absolutely.


Melissa Murray Not in the Constitution. Penumbra. It’s penumbra of these courts, the courts decisions. Let’s talk about some of the separate writings. They they’ve been glossed over, I think, in mainstream media coverage. But I think some of them are really quite striking. And, I wanted to start with Justice Thomas’s insane concurrence. And now you’re looking confused. You’re like, which insane concurrence, Melissa? Well, the one in this case, like, not some of the others from this term, but just this case. So let’s focus on it. No one joined this concurrence that Justice Thomas filed, although Aileen Cannon probably would like to give her tab here and join.


Kate Shaw Future Justice Aileen.


Melissa Murray Future Justice Aileen Cannon would like to join, per usual. Justice Thomas concurred separately to underscore his agreement with the majority, but also his desire to go further and this time challenge the constitutionality of the appointment of the special counsel. This is the very same issue that Judge Cannon recently had a hearing on in her Fort Pierce, Florida, courtroom. It is also an issue ostensibly settled by earlier precedents, including a very recent DC circuit decision that the court denied cert on. But while we’re reconsidering this whole democracy versus monarchy versus autocracy thing, it seems that Justice Thomas thinks it’s an ideal time to just question everything, including whether it is constitutional, to appoint a special counsel. Notably, he has no problems with the removal of the special counsel that is clearly within the president’s scope of authority.


Kate Shaw I think we’ve already mentioned this, but Barrett concurs and withholds her join from the part of the majority opinion that talks about how the prosecution cannot use this evidence that would fall into the first category, even to prove up charges that might be permissible under the second category. Essentially saying like, yes, you can introduce testimony or records that even if they pertain to official and exclusive presidential duties and it’s a sixth vote, so it actually doesn’t matter. But it does suggest that she is less enthusiastic about these profound limitations on what the prosecution can do, and at least the second category. And she is at pains to underscore that she really, really doesn’t think the president is a king, even though she joins most of an opinion, saying pretty clearly that the president is a king. So I guess thank you, Amy.


Leah Litman Was that a Taylor reference?


Kate Shaw It was.


Leah Litman Yeah, thank you. Justice Jackson also had a separate writing. You know, she joined Justice Sotomayor’s dissent in full, but she elaborated in her separate dissent about how the majority’s approach was inconsistent with the kind of theoretical model of accountability underpinning the Constitution. And she also elaborated on the dangers to democracy from the court to doing so. So we solicited questions from listeners in advance of the episode. And here’s a sampling. I’m not sure we have answers. How long do we have left as a society was one what the fuck is another? What is the point? Hypothetically. How easy? Hypothetically, how easy would it be to emigrate to, say, Finland? And why in all caps?


Kate Shaw We’re not going to venture answers to any of this.


Leah Litman Above my pay grade.


Melissa Murray Well, the Finland point is interesting. Lots of people talking about where they can flee to. Just to note that authoritarianism, far right politics is rising all over Europe. So not sure that there are better places to go. We might just have to stay here and try and stave off the coming onslaught of the Anschluss. But yeah.


Leah Litman [AD]


Kate Shaw These are dark times, you guys.


Melissa Murray But fear not.


Leah Litman But um, Yeah.


Melissa Murray There’s more.


Kate Shaw We don’t have. There is more. Yeah.


Melissa Murray There’s more. It wasn’t the only bad decision that we got today from the court. And we really don’t want to bury this one because it is actually hugely significant, even though its significance was largely dwarfed by the magnitude of the court’s decision and Trump versus United States. So let’s talk about Corner Post versus board of Governors of the Federal Reserve.


Kate Shaw And this case, I think paired with the relentless case also known as Loper Bright, I’ll use the two interchangeably, which is the overturning of Chevron and Jarkesy, the SEC adjudication case and the EPA case. I mean, I’m not sure there’s ever been a worse term for administrative agency is and the future of government as we know it. And this case is just kind of the nail in the coffin of this term. So let’s talk briefly about this case. So this case involves the Administrative Procedure Act which is also a central player in the lower right case. The case that overturned Chevron. And specifically at issue here is whether a Plaintiff’s Administrative Procedure Act claim first accrues under 28 U.S.C. section 24 01A when an agency issues a rule, regardless of whether that rule injures the plaintiff on that date, or rather, when the rule first causes a plaintiff to suffer legal wrong or be adversely affected or aggrieved. So sorry, that sounded really technical, but it’s super important. And essentially the question is how long you have to challenge a rule, right? Whether the time that a party has to challenge a rule starts when the rule goes into effect, or whether the time to challenge rule starts when you’re injured by it. And if it’s the latter, that massively expands the amount of time that essentially anybody has to challenge an agency rule if they don’t like it. Even if the rule has been on the books for years or decades. And maybe the plaintiffs are a brand new entity, maybe even formed to challenge a long standing regulation. But what the plaintiffs were asking for was a massive shift that would allow such entities to challenge all of these rules.


Melissa Murray So this was a 6 to 3 majority opinion authored by Justice Barrett. There was a dissent from Justice Jackson in which the other two Democratic appointees joined. But essentially, the court here held that the cause of action accrues when an entity experiences an injury, not when the regulation is enacted. So what does that mean in plain English? Well, it doesn’t matter how old or longstanding a rule or regulation is, if there is some new entity or individual that experiences a fresh injury as a result of that rule or regulation, they can challenge the rule or regulation even if it is 30, 40, 50 years old. As long as the injury is fresh, as long as the injury is within the statute of limitations, it’s all fine. And that’s really enormous. Given the fact that the lower right case opens the door to new challenges to federal rules and regulation, this amps it up. This is basically like a Red bull for Loper Bright.


Leah Litman Yeah. And from Justice Jackson’s dissent, she writes, quote, the court’s baseless conclusion means there is effectively no longer any limitations, period, for lawsuits to challenge agency regulations on their face. Allowing every new commercial entity to bring fresh facial challenges to long, existing regulations is profoundly destabilizing for both government and businesses. It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline. End quote.


Kate Shaw And I want to read one more passage, this one from the end of her dissent. She says, quote, at the end of a momentous term this much as clear wait, pause. Editorialize. This case came out before the Trump immunity case on Friday morning, and when I read that line this momentous term, I was like, oh shit, I know how immunity is going down. And 20 minutes later, that was clear. But it was 20 minutes because she actually read this dissent from the bench. She was she was so incensed, and I think correctly, by this ruling, even though it’s one of the lower profile cases of the term, it’s extraordinarily important. So she continues, the tsunami of lawsuits against agencies, of the courts, holdings in this case and Luber Bright have authorized, has the potential to devastate the functioning of the federal government. Even more to the present point, that results simply cannot be what Congress intended when it enacted legislation that stood up and funded federal agencies and vested them with authority to set the ground rules for the individuals and entities that participate in our economy and our society, it is utterly inconceivable that section 2401 A’s statute of limitations was meant to permit fresh attacks on settled regulations from all newcomers forever. Yet that is what the majority holds today.


Leah Litman So I just want to kind of try to make the implications concrete, because this statute of limitations that was at issue in corner post was the same statute of limitations at issue in the medication abortion case coming out of the Fifth Circuit. So imagine, for example, some entirely new entity says, look, I didn’t exist when the FDA approved a stone, but hey, I just incorporated in Amarillo yesterday.


Melissa Murray Not Amarillo.


Leah Litman I know, I know. I experienced a new injury, and this decision potentially allows them to bring that challenge. It is just a field day, an open season on agencies. Because again, the question is going to be why not create a new entity that experiences a new injury and create that new entity in a jurisdiction where you have a friendly judge? Despite that doomsday proposition, we do want to note that some agencies have agency specific limitations periods. So, for example, a fair number of environmental statutes don’t use this kind of general default statute of limitations. They have their own. But for example, the CFPB, the Consumer Financial Protection Bureau, they do not have their own statute of limitations or accrual period. So this is going to be open season and field day on consumer finance regulations.


Kate Shaw Could that be the point?


Melissa Murray I kind of fell out a little when you mentioned a friendly judge, Leah, because all I could think about is Kacsmaryk, the friendly judge like Casper the Friendly Ghost.


Leah Litman That’s a good one.


Melissa Murray That’s a t shirt. I think we just, like, put his face on it. Anyway, Corner Post should be considered in tandem with the rest of the court’s decisions this term on the administrative state. Because it’s not just that the court is opening up more regulations to challenges, it’s that the court is actually made it easier for those challenging the regulations to be successful when they bring those challenges. The court has constructed a new legal landscape that’s more hospitable to agency challenges. At the same time that it’s renewing, restarting, allowing more challenges to be brought. So you can see all of this sort of percolating from Ohio versus EPA. Looper bright, the major questions doctrine cases from last term. So it is full on open season on the administrative state. I will note that project 2025 makes dismantling the administrative state a core aspect of the hope for imagined second Trump presidency. While it seems like it’s going to get a massive assist from this court.


Kate Shaw Yeah, and I want to read another, my whole vibe right now is just channeling CBJ dissent. So I’m going to read another short excerpt.


Melissa Murray That seems right. Relatable content.


Kate Shaw From her dissent, because she’s also like, don’t focus on these opinions in isolation. Look at them together, understand what the court has done here. And so she says, quote, seeking to minimize the fully foreseeable and potentially devastating impact of its ruling. The majority maintains that there is nothing to see here because not every lawsuit brought by a new industry upstart will win. And at any rate, many agency regulations are already subject to challenge. But this myopic rationalization overlooks other significant changes that this court has wrought this term, with respect to the long standing rules governing review of agency actions, the discerning reader will know the court has handed down other decisions this term that likewise invite and enable a wave of regulatory challenges, decisions that carry with them the possibility that well-established agency rules will be upended in ways that were previously unimaginable. I could go on, but I will stop there.


Leah Litman Yeah. So this decision is, again, a really big deal again, potentially alongside the other administrative law cases. And Justice Barrett when announcing this opinion, since she is the author. And so she read it from the bench, began the announcement with like a joke about how this wasn’t the case. People were here to hear, it’s it’s like so funny and cute. Like, once again, thank you. Amy-just not not what we needed.


Kate Shaw Well, she was just, like, doing exactly in the announcement what she did in the opinion, which is to try to minimize it. And it’s bullshit. Like, this is a huge deal.


Leah Litman Yeah.


Kate Shaw All right, so finally, we got the joint opinion in another big case from the term Moody versus Net Choice and Net Choice versus Paxton. This is a challenge or two consolidated challenges to two different state laws. One in Texas, the other in Florida that seek in different ways to regulate how large social media companies like Facebook and acts formerly Twitter, can control content posted on their sites. So these two states enacted their respective laws in 2021, in response to their belief that the companies were censoring users, particularly those with conservative views. The laws prohibited censoring certain users in one case and then censoring certain content in the other. The companies countered that these laws violated their First Amendment rights to control what speech appears on their platforms, and so they mounted a constitutional challenge against both state laws.


Melissa Murray Side note about these laws. The New York Times had some reporting where it spoke with the legislators in both Texas and Florida who passed these laws. And basically, they either didn’t know about the Constitution or didn’t really care, weren’t really thinking about whether any of this violated the First Amendment. But they wanted to be very responsive to their conservative constituents in their various districts to prove that they were tamping down on these social media companies that were censoring conservative voices. This was interesting. In any event, in May 2022, a divided Supreme Court put the Texas law that had been challenged on hold while the challenges to the law continued in the lower courts. The US Court of Appeals for. The Fifth Circuit, however, rejected those challenges and upheld the law, while the U.S. Court of Appeals for the 11th Circuit barred the state from enforcing most of the law. The Supreme Court agreed to weigh in, and it heard oral argument in the consolidated appeal in February, and now the court has decided to vacate both of the opinions below.


Kate Shaw That’s right. So the court vacated both opinions and sent them both back to the courts of appeal, saying that the courts of appeals did not apply the appropriate facial challenge standard. And as a reminder, a facial challenge argues the law is invalid on its face. You know, in its entirety can’t be enforced against anyone that is different than an as applied challenge, which argues the law can’t be applied to a particular individual or group of individuals.


Leah Litman So although the Supreme Court sends these cases back to the courts of appeals, the district court injunctions in these cases against both the Texas and Florida laws remain in place. This opinion was ostensibly unanimous. There were several separate opinions, but Justice Kagan had the opinion for a majority of justices, and girl used the pen well to take some shots at the Fifth Circuit. So I’ll just read a few highlights. Quote. There has been enough litigation already to know that the Fifth Circuit, if it stayed the course, would get wrong at least one significant input into the facial analysis, unquote. It’s like, look, we’re not even going to send this back down to them to allow them to have a first crack, like we know they’re going to fuck it up. So here’s some guidance.


Melissa Murray Again. We haven’t done our term recap yet, but I think bitch slapping the Fifth Circuit is a big theme this term.


Leah Litman And that wasn’t all because Justice Kagan also wrote, quote, it is necessary to say more about how the First Amendment relates to the law’s content moderation provisions to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit end quote. Yes, girl. You know, she like, goes on to explain, like other ways the Fifth Circuit was wrong, you know. But again, just like she’s like you want to see a dead body. And this is what we got.


Kate Shaw Yes. So some of that is it’s dicta maybe whatever. But she has a court for that. Like she has their separate writings, but that is an opinion of the Supreme Court. And that at least is one satisfying moment today.


Leah Litman Like stupidity truly offends Justice Kagan and she just can’t take it any longer.


Kate Shaw That’s true.


Melissa Murray Seriously though, when the best thing that happened to us today, was that this whole shitty case got remanded back to the Fifth Circuit with some instruction to stop being so stupid. The bar is actually in hell.


Kate Shaw It’s low. It’s very low.


Leah Litman For sure.


Kate Shaw She does. In terms of the guidance that she gives to the, you know, obviously like desperately in need of guidance. But circuit she says and this it seems important that content moderation is expressive activity. She definitely pretty strongly signals that several platforms have good challenges at least as applied. And if that is right, once applied, this view would seriously limit the application of the laws. And so that I think, is good news for the platforms and bad news for laws like these going forward. And I think it does. You know, when we had Evelyn Douek on the I can’t remember was a preview or a recap, Evelyn suggested that these are kind of tough questions and you actually a big win for either the states or actually the platforms might be problematic. And you want to bring some nuance to this area now. No. Obviously confidence that this circuit is going to do that. But the court here having some restraint and humility in terms of actually like issuing a big, broad ruling here was probably a good thing. Of course, we’d love to see this energy in other domains, but it keeps not happening. All right. So until the term recap.


Leah Litman Until the term recap, everyone.


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Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Our interns this summer are Hanna Saraf and Tess O’Donohue. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production thanks to our digital team, Phoebe Bradford and Joe Mataskey. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at Slash at Strict Scrutiny podcast if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast apps. You never miss an episode, and if you want to help other people find the show, please rate and review us. It really helps and make sure to make your review official.