Opinion: From legal bribery to Trump’s immunity, a dark theme ran through the Supreme Court’s term
In the three years since conservatives seized a Supreme Court supermajority, they have overruled at least one major precedent a year. This year, from crippling federal agencies to giving presidents sweeping protection from accountability, they showed no signs of slowing down.
While it’s difficult to boil down any Supreme Court term to a single theme, this one was marked by the court’s determination to make the country safe for corruption. Officials who abuse their offices — including Supreme Court justices eager to seize power at the expense of democracy — had a very good year.
Take, for example, Snyder vs. United States, in which the court rewrote federal anti-corruption laws to permit rather than prohibit corruption.
The ex-president’s New York hush money case concerned unofficial, unprotected acts. But the justices’ opinion casts doubt on the permissibility of some evidence.
The case concerned a trucking company that paid an Indiana mayor $13,000 for “consulting services” after his city awarded the company a $1.1-million contract. In considering whether state and local officials may receive gifts, tips or gratuities for official acts, the court’s six Republican-appointed justices concluded that such rewards are perfectly legal even though, as Justice Ketanji Brown Jackson explained in dissent, they “are functionally indistinguishable from taking a bribe.”
Jackson pointedly wrote that the majority’s “absurd and atextual reading of the statute is one only today’s Court could love.” Indeed, the majority that decided the case included Justices Clarence Thomas and Samuel A. Alito Jr., who themselves have accepted gifts and rewards from billionaires, some of whom have a stake in the court’s business.
The court’s penchant for insulating abuses of power from accountability is not limited to public corruption. In a series of less noticed cases, the court gave powerful corporations a kind of immunity from regulation even when they endanger the public. These cases are technical, but their effects are profound.
The conservative who wrote fiery opinions overturning Roe vs. Wade and dissenting on LGBTQ+ rights can’t stand criticism for his free fishing trip or anything else.
In one such case, the court overruled the 40-year-old so-called Chevron doctrine, asserting that the federal courts, not federal agencies, have the power to determine when corporations violate federal environmental, consumer protection, workplace safety and public health laws. Under Chevron, when a statute was ambiguous, courts were required to defer to the judgments of expert administrative agencies. Now the courts, many of them stocked with conservative judges who are hostile to regulation and keen on catering to corporate interests, have the last word.
That’s not all. The court also claimed the power to second-guess and pick apart agency regulations, making it easier for companies to challenge them. In Ohio vs. Environmental Protection Agency, five Republican justices blocked an EPA anti-pollution rule because they didn’t think the agency’s experts had sufficiently explained their efforts to control ozone pollution.
(It was not clear that the court itself possessed the expertise to render this determination. The majority opinion initially confused nitrogen oxides, which cause smog, with nitrous oxide, the “laughing gas” often used for dental procedures.)
In another attack on agency authority, the court hobbled the Securities and Exchange Commission’s ability to enforce federal securities laws. In SEC vs. Jarkesy, the conservative bloc held that agencies can’t use administrative law judges and internal procedures to impose civil penalties on companies that violate federal securities laws.
Rather, the court declared that companies are entitled to have these cases heard in the federal courts, which are slower than the agencies and populated with Trump appointees handpicked by the Federalist Society partly for their enthusiasm for deregulation. The ruling is likely to force agencies to triage their enforcement of securities laws, focusing on the most egregious violations while abandoning smaller claims often brought by individual investors.
On the last day of the term, the court tilted the legal landscape even further in favor of corporations by inviting more challenges to regulation. In an under-the-radar case, the six conservatives held that plaintiffs may challenge even long-standing agency regulations as long as they claim some new injury from them. As Justice Jackson warned in dissent, this means any new business can contest even thoroughly established regulations, and “well-heeled litigants” can “game the system by creating new entities” to challenge such rules.
The finale of a term preoccupied with protecting corrupt abuses of power was, of course, the decision effectively crowning the president a king unbound by the constraints of law. In Trump vs. United States, the court granted presidents “absolute immunity” from criminal prosecution when they are exercising their core constitutional authority — even if they are abusing that authority for corrupt ends. That means special counsel Jack Smith, for instance, can’t prosecute Donald Trump for pressuring the Department of Justice to gin up baseless allegations of voter fraud.
This decision is all the more terrifying in light of the former president’s promise to seek retribution and prosecute his political rivals and critics. The majority’s embrace of an executive absolutely unfettered by judgment or law was so chilling that Justice Sonia Sotomayor, joined by Justices Elena Kagan and Jackson, was moved to write, “With fear for our democracy, I dissent.”
But the immunity decision goes even further by cloaking presidents with at least a presumption of immunity for any actions that fall within the perimeters of their official duties. There too, the court insisted that the president’s motives are irrelevant even if he corruptly abuses the powers of his office — say, by ordering his subordinates to prosecute or assassinate a rival. Indeed, the court even made it difficult to prove abuses of presidential power by prohibiting prosecutors from introducing evidence of the president’s motives for official acts, which effectively blocks any criminal prosecution of such conduct.
In all, it’s been a banner term for public and private corruption, which the court’s conservatives repeatedly blessed in its various forms. Even in dodging any substantial holding on two key abortion cases, which on the surface had little to do with government or corporate accountability, the court seemed to be striving to limit the salience of reproductive rights in the coming election. So as the court was seizing power and using it to enable corruption, it also invited suspicion that it was corruptly using its own power to boost the electoral fortunes of the party it favors.
Leah Litman is a professor of law at the University of Michigan Law School. Melissa Murray is a professor of law at the New York University School of Law. They are co-hosts of the “Strict Scrutiny” podcast.
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