Sholeh: SCOTUS term leaves no clear theme

If one word could describe the U.S. Supreme Court’s colossal term that adjourned last week, it’s incongruous. In a court with a clear political majority, that’s surprising. Perhaps even encouraging. 

In unprecedented times, they granted more power to the office of president yet less to the executive agencies the president controls. 

In the battle over social media, whether the court ultimately favors those trying to curb misinformation or trying to protect it under the First Amendment, remains unclear. Decisions (or deflections) on guns and abortion offered no consistent theme. Whenever they could, they kicked things back to lower courts to see how they’d play out, in no rush to decide tough issues the public is debating so hotly. 

Executive. Two decisions favored former President Trump. They shouldn’t be viewed myopically; beyond current political candidates and parties, these decisions ultimately expand the power of the presidency itself, no matter who occupies it in the future. 

In Trump v. U.S. (vote of 6-3) the majority ruled he is partially immune from prosecution on charges of plotting to subvert the 2020 election, returning the case to the trial court to determine which acts were in his official capacity as president (immune) and which were private conduct (not immune). The last time SCOTUS considered executive privilege in a similar context they ruled against a president, requiring Richard Nixon to produce tapes in the pending Watergate case. In March, SCOTUS ruled the Constitution did not prevent Mr. Trump from again standing for election, charges of insurrection notwithstanding. 

No matter where you stand politically, the impacts of these decisions affect future candidates of all political parties and expand the scope of presidential power, according to legal analysts. 

Executive agencies. In terms of the three branches of government, agencies such as the IRS, military, EPA, Social Security Administration and so on are extensions of the presidency. So expanding or reducing their power is expanding or reducing the executive branch’s authority. 

In Loper Bright v. Raimondo (6-3) the court scaled it back significantly by reversing longstanding precedent, upending a basic legal foundation: Courts no longer need to defer to agency expertise in cases challenging their policies and applications. The court also extended time restraints on filing lawsuits against agencies and gutted the authority of Securities and Exchange Commission’s tribunals, which puts other agencies’ tribunals potentially on the chopping block. In other words, if you have a beef with a federal agency someday, you can probably skip a step and go straight to court. 

A win for the little guy, and the removal of a check against powerful industries. By extension, it shifts more power to regulate to Congress and courts. A hit against the executive branch. 

Social media vs. government. Florida and Texas are at war with social media. The two states enacted laws to control private companies including TikTok, Facebook/Meta, X and YouTube, who tried to limit or filter content on their sites. The social media companies cited concerns over misinformation and fraud on their platforms. Texas and Florida called it censorship that violates the First Amendment. While precedents have not involved the internet, prior cases deciding a private company’s right to control or allow certain speech have gone both ways. 

Combining the two cases (Moody v. Netchoice; Netchoice v. Paxton) SCOTUS simply dodged the issue, unanimously kicking it back to lower courts for more complete First Amendment analysis. While this happens the two laws are legally on pause, not invalid but not enforceable. 

However, another case this term, Murthy v. Missouri (6-3), upheld the president’s authority to “informally” communicate displeasure with misinformation on social media platforms (without legal consequence).

State authority, conflict of rights. In essence, states came out on top. In City of Grants Pass v. Johnson (6-3) pitting individual civil rights against the state, the court ruled in favor of an Oregon law criminalizing the homeless simply for sleeping outside. That paves the way for this trend to grow, despite increasing rates of people, including the employed, who can’t afford high rents. 

Ohio vs. EPA (closer call, at 5-4) may ostensibly look state vs. fed, but at heart the conflict of rights involved states on both sides, and in effect, individuals. In temporarily blocking enforcement of a federal policy requiring industrial actors in one state to curb air pollution that flows across state borders (resulting in lower air quality and serious health risks in neighboring states), the court implied the impacts on neighboring states did not warrant pausing the conduct while the case is adjudicated. Combined with the Raimondo decision limiting federal agency influence in litigation against them, such issues will have to play out in lower courts. 

Second Amendment. As with abortion, three cases suggest mixed views on gun rights. While striking down a ban on bump stocks (increasing the fire rate of semiautomatics) in Garland v. Cargill (6-3), SCOTUS almost unanimously upheld a federal law preventing people under domestic violence restraining orders from owning a gun (U.S. v. Rahimi, 8-1). Score a point for abuse victims. 

Abortion. While some abortion rights advocates celebrated the decision, FDA v. Alliance for Hippocratic Medicine (9-0) didn’t actually decide the core issue. The court simply said a pro-life medical advocacy group didn’t have standing to sue the FDA for requiring patient access to mifepristone. The so-called abortion pill is the basis for the majority of abortions in the U.S. 

Standing is a legal point SCOTUS uses to opt against deciding a case. If a similar suit is brought by another party which the court finds is more directly impacted by the law, it’s unclear how they will decide. In the past two years, this court decided against a constitutional right to abortion access (Dobbs, 2022), yet allowed access to mifepristone pending ongoing litigation (Danco Laboratories, 2023). For now, access continues. 

Finally, in Moyle v. U.S. (plurality decision with concurring and dissenting opinions), SCOTUS declined to decide a case challenging Idaho’s near-total abortion ban in emergency cases. For now, the appeals court ruling pausing its enforcement, potentially making it a crime even when a woman’s health is at risk, holds. Both restrictions and challenges have been proliferating across the country, guaranteeing this is not the last time the high court will consider the issue. 

Nearly every SCOTUS decision is controversial by nature. Considering conflicts of fundamental constitutional rights is their remit. Ideally, they should neither please everyone nor the same side consistently, lest the scales of justice teeter too far out of balance. As long as both ends of the political spectrum have something to celebrate, as well as something to complain about, the scales of justice might balance as designed.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Email sholeh@cdapress.com.