A closer look at the Supreme Court's decisions this historic and controversial term
ARI SHAPIRO, HOST:
An historic and momentous term wrapped up this week at the U.S. Supreme Court. The justices ruled on abortion pills and the federal law banning guns for domestic abusers, voting rights and attempts to regulate social media. The powers of federal administrative agencies took multiple hits. On the other hand, former President Trump had a great year at the court. Joining us to talk about the term is NPR legal affairs correspondent Nina Totenberg, Georgetown University Law Professor Stephen Vladeck and Sarah Isgur, host of a Supreme Court podcast for the conservative media outlet the Dispatch. Good to have all three of you here.
NINA TOTENBERG, BYLINE: Good to be here.
STEPHEN VLADECK: Hi, Ari.
SARAH ISGUR: Great to be here.
SHAPIRO: OK, let's start with the Trump cases, because there was this unanimous decision barring states from removing him from the ballot. And then the huge case this week in which the court granted total immunity from prosecution for his core official acts as president, and then some beyond that. What do each of you have to say about the decision? Nina, let's start with you.
TOTENBERG: Look, the Justice Department for the last half century, through administration's Republican and Democratic, took the position that presidents while in office cannot be criminally prosecuted but that they have no immunity after leaving office. And that's why President Ford pardoned President Nixon after he resigned and it's why Nixon accepted the pardon. All of those assumptions, including the notion that presidents, to some degree, are not above the law, were called into question by the Supreme Court's decision this week, written by Chief Justice Roberts and blasted by Justice Sotomayor in her dissent.
VLADECK: Yeah, I mean, I'll just say, I think what's striking about the two decisions are is reading them side by side. In both cases, you have a five-justice majority opinion, with a narrower concurrence by Justice Barrett, and then with the three Democratic appointees saying something else. And, you know, what's really, I think, unfortunate about that is that for better or for worse, it really does reinforce the perspective that every major dispute this court hears, or at least every sort of politically charged dispute the court hears, separates the justices into their camps. And I think that's, in the long term, whether you think the court got these cases right or wrong, it's bad for the court as an institution if all we think is driving the decision-making, if all that the public sees, is that the six Republicans voted for Trump and the three Democrats didn't.
SHAPIRO: Sarah?
ISGUR: I absolutely agree with the effect on the court that Steve just described. I think you have the chief justice in particular - you know, he's the chief justice; he's also in many ways the chief institutionalist representing the interests of the court - struggling with what he sees as two parades of horribles. You have those laid out in the dissent, SEAL Team Six assassinating a political rival, pardons for money. But you also have the reality that you have one president criminally charging his predecessor when that predecessor was not impeached for that same conduct, and you have that same former president promising to charge the current president if he were to win an election.
And so the chief, I think, is deeply concerned about that parade of horribles as well, that we end up in this cycle of political retribution and is trying to stave off this constant charging of political enemies by basically having a fairly chaotic opinion that is difficult to apply, hard to understand where the boundary lines are. But it is going to make it hard to bring those cases.
SHAPIRO: Sarah raises an interesting point about the role of the chief justice as an institutionalist. For nearly 20 years, he has been preaching that the court is not a partisan institution. At the end of this term, is it harder for him to make that case?
VLADECK: I mean, I don't think, Ari, there's any question. You know, if you look at the median votes in some of the most important cases this term, I think a lot of us started the term trying to figure out who would be the other justice who might sometimes go along with the chief in joining the three Democratic appointees in some of those, you know, weird high-profile cases. Turns out, actually, it was Barrett all along, and the question was when she could pull the chief with her. So, you know, it really is the Roberts court, not just in name, but in tone.
And I think one of the things that's really striking about this term is, you know, the institutionalists, the can't we be above this, the, you know, can't we find a way through this John Roberts was nowhere to be seen and instead is writing, for example, the majority opinion in the cases overruling Chevron, and the majority opinion in Trump, where, you know, he couldn't even get Justice Barrett to go along, and the majority opinion, you know, in other contexts in which the court is really moving the law pretty sharply to the right where John Roberts, 10, 15 years ago, might have been the one saying, wait, why are we moving this quickly?
SHAPIRO: Well, Nina, we're talking about decisions. But in terms of context, this was also a term where there were these debates over Justice Alito flying flags, Justice Thomas accepting gifts. I mean, the context makes it really hard to argue that the court is above partisanship.
TOTENBERG: And I just saw a poll from last week that said that something like 70% of the people in this country believe that the court is more interested in its ideological points of view than in being independent arbiters. That's a desolate message for the Supreme Court.
SHAPIRO: Sarah, you wanted to jump in?
ISGUR: I do think that we can spend too much time looking at this term in isolation. There is no question that this term had more 6-3 ideological decisions. The three liberal justices were in the dissent in non-unanimous cases over half the time this term. But last term wasn't like this at all. In 9 out of 10 cases last term, there was a liberal justice in the majority. And the two justices most likely to be in dissent, least likely to get their way on the law, were Justices Thomas and Alito. So that totally blows up the narrative that I think we're talking about today. This term looks very different than last term - that's true - but you do have to think of the court in, I think, a larger, you know, trend context, not any one term, any one case.
SHAPIRO: Steve brought up the name Amy Coney Barrett. And she has written some really interesting concurring and dissenting opinions this term. What does this year say about her role on the court?
VLADECK: Ari, I think it's a great question. I mean, I think we really saw Amy Coney Barrett come out of whatever was left of her shell this term. And I think we saw that, you know, she really has a series of principles that we may agree with, we may disagree with, but that she's going to follow even when they lead to results that are not necessarily aligned with what might be her political preferences. That led her to write the dissenting opinion in the Fischer January 6 obstruction case. It led her to write the dissenting opinion in the Ohio v. EPA ozone pollution case. She wrote her own concurrence in Vidal v. Elster, the trademark case about how the court should be doing originalism that's pretty different from Thomas and Alito and Gorsuch.
And I think, you know, it's not just that she's found her voice, Ari, it's that she's using her voice even in context, if not, especially in contexts in which the other Republican appointees, in her view, at least, might be being at least to some degree inconsistent.
SHAPIRO: Nina?
TOTENBERG: I have one observation here. There are six conservative justices on this court. Five of them had experiences when they were not judges as acolytes of Republican presidents, and their whole careers in some ways were invested in giving the president more power. She was Justice Scalia's law clerk for a year, but largely, she has been not in Washington. She's a Midwesterner...
SHAPIRO: She was in academia
TOTENBERG: And in academia. And she has a very different view. And it's much less muscular and self-confident about, oh, I can do almost anything and I can change the world. That is not her approach. She's very conservative, but that's not her approach.
SHAPIRO: I need to ask you about some cases that are wonky but huge, three cases in which the court limited the power of federal agencies. The biggest of those cases overturned 40 years of regulatory law that had deferred to reasonable agency interpretations of ambiguous laws. The phrase here is Chevron deference. Sarah, you really liked these decisions. Why?
ISGUR: This was a whole bouquet of decisions stripping power from the executive and reallocating it back to Congress, back to the courts. So, yes, you have the Chevron decision. But that, in some ways, was the least important one. Chevron had been dead at the Supreme Court for about a decade. And even those lower courts that were applying it, I think they were sort of using it as shorthand to get to an outcome they would have probably reached anyway.
More important to me were the decisions on administrative agencies not getting to try their own cases as prosecutor, judge and jury, about being able to challenge administrative law actions when you've been injured rather than, look, if you weren't born when the regulation was promulgated 40 years ago, you're out of luck. It's about rebalancing, I think, between the three branches of government. We've seen Congress become so anemic in the last 20 years. This is certainly the court's attempt to say, Congress, do your job.
SHAPIRO: Steve, what are the chances that Congress actually does?
VLADECK: Zero, and zero for two reasons.
ISGUR: (Laughter).
VLADECK: I mean, one, this Congress can't even agree on what day it is. But even an ideal Congress - I mean, we're talking about 435 federal agencies. If Congress devoted, you know, one agency per day - which it never will, right? - maybe it could start answering some of the very technical and precise questions that it has otherwise delegated to those agencies to resolve. So, you know, folks can tell themselves a story about how this is transferring power to Congress. I mean, let's be clear - it's transferring power to the courts. And it's transferring power to the courts to decide for themselves which agency actions are reasonable, which ones are not, which agency actions are appropriate, which ones are not.
And, you know, that might make some sense in a world in which we have one Supreme Court in Washington. But when the Supreme Court's hearing so few cases, when most of these cases are going to be resolved by, you know, handpicked judges in parts of the country where you can find a judge most likely to be against the current administration's policies, I think that's a recipe for chaos and instability.
ISGUR: But they also struck down the Trump administration's bump stock regulation. Again, you have every single administration changing the rules, changing the law. Why should Congress act when the president has been taking all the political heat for them? I think it's caused the anemia in Congress.
TOTENBERG: The only thing I would say about this is that gutting the administrative state has been a mainstream conservative project for years and years. And it was a project and has been financed by conservative billionaires and business interests that see many regulations as promoting inefficiency, costing too much. And that project has now succeeded. I may or may not live to see the pendulum swing back again. But when people start to suffer bad air and water quality or find their food or workplaces unsafe, it will swing back at some point.
SHAPIRO: That is NPR legal affairs correspondent Nina Totenberg, Georgetown University Law Professor Stephen Vladeck and Sarah Isgur, host of a Supreme Court podcast for the Dispatch. Good to have all three of you here wrapping up this hugely consequential term. Thank you all.
TOTENBERG: Thank you, Ari.
VLADECK: Thank you, Ari.
ISGUR: Thanks, Ari.
(SOUNDBITE OF AKON SONG, "CRACK ROCK")
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