One of the first major decisions issued by the U.S. Supreme Court in its 2023-24 term was a 9-0 ruling in March that states do not have the authority to kick a presidential candidate off the ballot through a provision in the 14th Amendment related to an insurrection. And on the final day of the term, the justices expanded presidential immunity for official acts.
Three lawyers who closely follow the court lamented on Aug. 3 at the 2024 ABA Annual Meeting that these “bookend” opinions were rushed and poorly crafted. But aside from those two decisions, the justices rendered numerous rulings this past term that were more carefully written and based on solid legal reasoning.
The July 1 decision, in which the court ruled 6-3 that former presidents can never be prosecuted for actions relating to the core powers of their office, triggered the most criticism. “This is a completely made-up immunity,” said Vikram D. Amar, former dean of the University of Illinois College of Law who is now a law professor at the University of California Davis. “If you are going to make something up, why not make something up that makes sense and is coherent.”
The program, “The Roberts Court 2023–2024: Chevron Deference, the Abortion Pill and Presidential Juris-Politics,” marked the 19th consecutive Annual Meeting event organized by the Litigation Section and moderated by Miami lawyer John M. Barkett. Other panelists were Pamela S. Karlan, co-director of the Supreme Court Litigation Clinic at Stanford Law School, and Andrew Koppelman, a professor at Northwestern Pritzker School of Law.
As he has done in the past, Barkett provided a statistical view of the Supreme Court which showed it was divided even more than prior years. In terms of voting blocs of liberal and conservatives, he said the “liberal” justices dissented 17 times, reflecting “a greater division this year than in the past.”
Amar and other panelists said the majority opinion in the Trump case left unsettled what “official conduct” was, among many other lingering issues. Karlan, who served in the U.S. Department of Justice during both the Obama and Biden administrations, said the decision raised “interesting” questions of a “conflation of illegality or immunity” and whether individuals who acted illegally at the direction of a president could be prosecuted.
Although the justices ruled unanimously in the Colorado ballot case, Amar said the opinion lacked legal foundation and explanation. Citing the need for uniformity, the court held that states are not allowed to implement Section 3 of the 14th Amendment without congressional legislation but stopped short of saying that presidents were not covered by the provision.
Overall, the panelists pointed to some of the “good work” the court did during the past term that they suggested got lost with the “bookend” decisions.
They played down, for instance, the significance of the so-called Chevron Doctrine case, in which the justices cut back sharply on the power of federal agencies to interpret the laws they administer, ruling that courts should rely on their own interpretation of ambiguous laws. The panel’s consensus was that a new doctrine would emerge through future cases.
“I don’t think it is that big a deal all by itself,” Koppelman said of the Chevron decision, explaining that the Supreme Court “is approaching agency action with a presumption against government action.”
The panelists gave the high court mixed marks on gun cases. They questioned its legal and practical rationale for striking down federal regulations classifying bump stocks as a machine gun under the National Firearms Act of 1934, effectively banning them. But the panelists praised the court for upholding gun restraining orders in domestic violence cases.
They also agreed that the court ruled correctly in throwing out a challenge to rolling back access to mifepristone, one of the two drugs used in medication abortions. The justices ruled unanimously that the doctors and medical groups challenging the Food and Drug Administration lacked standing, or the legal right to sue.
The panel made two other observations of the past Supreme Court term. Numerous times the court reversed, or “repudiated,” decisions made by the U.S. Court of Appeals for the 5th Circuit, which is based in New Orleans and known as the most conservative circuit in the nation. And Karlan noted that in 11 instances the court made revisions on a written opinion after issuing it.
“Haste,” she said, “makes waste.”