Substacks
The Takeaways from Three Supreme Court Rulings Jed Rubenfeld
Yesterday the Supreme Court published its decision in the Trump immunity case. Depending on who you believe, it was either a righteous victory for the former president—or the beginning of the end of democracy as we know it.
This politically high-stakes ruling was just one of a series of important judgments decided by the court at the end of a busy term. And reader, a confession: we’ve been too preoccupied by all the debate fallout to properly chew through it all. And so, in search of some much-needed clarity, we dropped Jed Rubenfeld a line. Jed is a professor of constitutional law at Yale Law School and, whether in the classroom or on his YouTube show Straight Down the Middle, he demonstrates his knack for stripping away the hyperbole that accompanies so much legal commentary these days. In other words, he explains complicated legal cases in a way that the layman can understand. So here’s Jed, explaining the Trump immunity and two other important rulings.
The Presidential Immunity Case
Should a former president be immune from prosecution after leaving office? Believe it or not, we had no law on that issue for two hundred years. There didn’t need to be any: until now, no former president had ever been criminally prosecuted for actions taken during his presidency. But Trump is being prosecuted for (among other things) his involvement in January 6, so the immunity issue had to be confronted.
Trump’s lawyers argued for complete immunity. The special prosecutor, Jack Smith, argued for zero immunity, and the D.C. Circuit basically adopted the prosecution’s position. The Supreme Court rejected both extremes, laying down a new test for presidential immunity and giving something to both sides.
At its most simple, the Court’s new test first asks whether the conduct in question was an “official” act—i.e., an exercise of the president’s powers. If it was not an official act, then there’s no immunity at all. If it was official, the next question is whether the president was exercising a “core” constitutional power. If so, then there’s complete immunity—no prosecution is permissible. But if we’re dealing with an official act outside the core, then “presumptive” immunity applies—the president will be presumed immune unless the prosecution can rebut that presumption. What does that mean? Well, no one knows exactly, because it’s new law.
It will now be up to the lower courts to apply those standards. The practical upshot: contrary to the prosecution’s hopes, there’s no way this case can be tried before the election. With more appeals likely, applying the Court’s new tests to the various allegations against Trump could take years.
The Chevron Case
You’ve read by now that the Court overruled Chevron, but you probably have no idea what that means. Here’s the story.
Administrative agencies do the bulk of federal lawmaking. Is that constitutional? Yes, said the Court eighty years ago. Congress can delegate legislative powers to agencies, and agencies can make law as long as they stay in their lane—i.e., within the scope of the powers Congress gave them.
But who decides if agencies are staying in their lane? Who gets to interpret the statutes that give the agencies their power? You might think statutory interpretation is a judicial prerogative. But no. The agencies get to interpret their own statutes, said the Court in the famous 1984 Chevron case.
Not anymore. In the just-decided Loper Bright case, the High Court overturned Chevron, telling lower courts that it’s up to them to interpret the relevant statutes. Critics make two points. First, competence. As Justice Kagan asked in her dissent, how is a court supposed to decide when an alpha amino acid polymer qualifies as a “protein” under the food and drug statutes? With Chevron gone, courts may find themselves struggling with questions they can barely understand.
But the deeper question is about power. According to Justice Kagan, the majority’s decision is a “grasp for power”—with the justices getting the last word on more and more issues. That’s the second big critique, but it may be overstated. Read carefully, the majority opinion in Loper Bright gives Congress—not the courts—the last word. If Congress wants agencies to have the interpretive power, and require courts to defer to agency interpretations, Congress just has to say so.
Bottom line: Loper Bright might not be as big a deal as some say. The Chevron doctrine was already full of holes. Loper Bright may ultimately be seen less as a judicial power grab and more as part of a line of recent Supreme Court decisions reimposing needed checks and balances on federal agencies.
The Social Media Censorship Case
In a case originally called Missouri v. Biden, a federal district court enjoined the Biden administration’s years-long, multiagency campaign to get social media platforms to censor disfavored content, calling that campaign “arguably the most massive attack on the freedom of speech in United States history.” But the Supreme Court reversed that injunction in the just-decided Murthy v. Missouri.
Full disclosure: I’m a lawyer in many cases challenging social media censorship, including a case connected to Murthy in the lower courts. So for me, the Supreme Court’s decision is disappointing. I view government involvement in social media censorship as a major First Amendment problem, especially when the speech being blocked or shadowbanned is factually accurate or political opinion, like the Hunter Biden laptop story, which was suppressed by all the major platforms in the run-up to the 2020 election.
But here’s what you need to know. Murthy did not reach the merits. It reversed solely on the basis of lack of standing. According to the Court, the plaintiffs hadn’t shown that the government had specifically targeted them for censorship and even worse, the plaintiffs had shown only that they’d been censored in the past. That wasn’t enough, said the Court, to establish standing for an injunction.
Because the Murthy decision is based on standing, the fight is far from over. Murthy leaves the door open for other plaintiffs, with firmer standing, to bring essentially the same claims. For more details on this, see my Murthy episode on Straight Down the Middle:
One more thing on Murthy. . . Free Press contributor Jay Bhattacharya was one of the plaintiffs in the case. He wrote about it for us when they won in a lower court last year. We asked him what he made of the Supreme Court’s decision.
He told us that he was as optimistic about their chances in a fresh case in a lower court, but said that “our loss in the Supreme Court points to the need for Congress and voters to act to protect American free speech rights now that it is clear that the Supreme Court will not do so. Congress should pass a law prohibiting the executive branch and associated federal bureaucracies from censoring Americans via direct and indirect pressure on social media.”
He added that “In a sense, by exposing and publicizing the government’s censorship operation, which cannot survive in the sunlight, we have already won despite the disappointing result in the Supreme Court.”
Jed Rubenfeld is professor of constitutional law at Yale Law School.
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