The 2023-24 Supreme Court That Was—And Wasn’t

Posted in: Constitutional Law

Unlike lower courts, the U.S. Supreme Court has almost complete discretion to choose what cases to hear. It exercises that discretion mostly to decide important and recurring legal questions. Its primary role is not to correct individual lower court errors but to set and occasionally alter or overrule precedents that will govern subsequent disputes.

The October 2023 Term that just concluded contained its share of decisions setting, altering, or overruling important precedents. For example, in Moody v. NetChoice, the Court declared that social media “platforms’ selection, ordering, and labeling of third-party posts” is First-Amendment-protected free speech akin to a newspaper’s editorial discretion to decide what to publish. In United States v. Rahimi, the Court upheld a federal law that forbids persons subject to domestic violence restraining orders from possessing firearms, in the process softening a Second Amendment ruling from just two years ago, when it had announced that firearms regulations will be allowed only if they are closely analogous to laws on the books in the eighteenth or nineteenth century. And in Loper Bright Enterprises v. Raimondo, the Court reversed a forty-year-old precedent that required federal courts to defer to reasonable administrative agency interpretations of unclear statutes.

Yet while the just-completed Term included those and other precedent-setting rulings, it also included an unusually large number of two other kinds of cases. One category comprises cases in which the Court essentially punted, finding a procedural reason not to decide an issue it had teed up. The other consists of cases in which the stakes were very high even independent of any precedent that might be set. In this column, I discuss three of each kind.

Non-Merits Decisions

When the Court dismisses a case on procedural grounds, it forgoes the chance to decide the important questions it granted review to resolve. Doing so leads to continued confusion in the lower courts and sometimes confuses the public in consequential ways as well. Consider three examples from the past Term.

(1) Murthy v. Missouri involved lawsuits claiming that the Biden administration pressured social media platforms to suppress third-party content concerning vaccines, election integrity, and other topics in violation of the First Amendment. The Court held that the plaintiffs lacked standing for the injunctive relief they sought.

Murthy was a missed opportunity to resolve an important and recurring legal question. If the government coerces a private actor to censor third parties—for example, by criminalizing failure to censor—then it violates the free speech rights of those third parties. However, government officials routinely ask private actors to take steps that they could not directly compel, as when the Pentagon requests that news organizations suppress or delay stories that could jeopardize the safety of troops in the field. Such “jawboning” is not censorship. Murthy presented the question of when jawboning crosses the line into coercion. By resolving the issue on standing grounds, the Court left that important question unanswered.

That was an especially unfortunate result because Justice Amy Coney Barrett’s majority opinion could have supported a merits ruling. She wrote that the plaintiffs had failed to show that the administration had done more than ask the social media platforms to moderate content, which could have been a basis to defeat the claims on the merits. To be sure, standing is a threshold jurisdictional question, but given that issues relevant to standing frequently overlap with merits issues, the Court could have found standing and clarified the law.

(2) FDA v. Alliance for Hippocratic Medicine was one of the most closely watched cases on the court’s docket. Plaintiffs—anti-abortion doctors and an organization that represents them—went judge-shopping in Amarillo, Texas, where staunchly conservative Judge Matthew Kacsmaryk and nobody else has his chambers. The shopping spree succeeded. He ruled that the FDA had acted unlawfully when, in 2000, it approved the abortion pill mifepristone, in effect banning the most common method of abortion in the United States. The U.S. Court of Appeals for the Fifth Circuit rejected Judge Kacsmaryk’s invalidation of the original approval of mifepristone but affirmed his invalidation of subsequent FDA actions that made it more widely available—including a 2021 action that allowed the prescription of mifepristone without the need for an in-person medical visit.

As in Murthy, so too here, the Court found that the plaintiffs lacked standing. Justice Brett Kavanaugh’s opinion spoke for a unanimous Court. The plaintiff doctors contended that mifepristone complications could lead patients to show up on their doorstep seeking abortions but, the Court said, that would not impose any legal obligation to perform abortions because federal law provides a conscience exception.

The plaintiffs’ alternative theory was even weaker. Based on the claim that mifepristone complications would lead to a need for other (non-abortion) care, they claimed standing because the drug’s availability meant they would have to treat patients suffering side effects, thereby distracting them from their other patients. As Justice Kavanaugh persuasively explained, this theory would give just about everybody standing to challenge just about every regulatory or deregulatory agency decision.

The news coverage of the mifepristone case was predictably unfortunate. It came with headlines like “Supreme Court maintains access to abortion pill in unanimous decision” (CNN) and “Supreme Court unanimously strikes down legal challenge to abortion pill mifepristone” (ABC News). Although the bodies of those stories accurately reported that the Court decided on standing grounds, millions of Americans who did not pay close attention were likely misled into thinking that the Court now views abortion rights more favorably than it did two years ago, when it eliminated the constitutional right to abortion.

(3) If so, that erroneous impression was likely reinforced when, two weeks after dismissing the mifepristone challenge, the Court dismissed another closely watched abortion case. Moyle v. United States posed the question whether the Emergency Medical Treatment and Labor Act obligates Medicare-funded hospitals in Idaho to offer abortions when necessary to preserve a pregnant patient’s health, notwithstanding an Idaho abortion prohibition that contains a life exception but no health exception. The Court dismissed the writ of certiorari as improvidently granted, or DIG’d in Supreme Court lingo. When the Court DIGs, it is saying that it goofed by taking the case—typically because there was some aspect of it that the Justices did not or could not notice when they decided to grant review.

This time the news coverage was better. Headlines in each of The New York Times, Washington Post, and Reuters included the qualifier “for now” after announcing that the Court had allowed emergency abortions in Idaho. But there is little reason to think that many readers of the articles realized that because a DIG is the equivalent of a retroactive certiorari denial, it sets no precedent. Given the difficulty of explaining what exactly a DIG is to a lay audience, it would not be surprising if large swaths of the public inaccurately perceive a Supreme Court that has moved on abortion. In an election year in which many candidates are campaigning on opposition to the Supreme Court’s 2022 overruling of Roe v. Wade, that could be decisive.

Outcomes That Are Important Beyond Their Precedential Value

Some cases present extraordinarily high stakes in themselves, regardless of whether they will set precedents for future cases. Three such cases stood out this past Term.

(1) Harrington v. Purdue Pharma scrambled conventional conservative-versus-liberal leanings. Justice Neil Gorsuch wrote an opinion for an ideologically mixed majority rejecting a bankruptcy court’s resolution of billions of dollars’ worth of claims against Purdue Pharma—maker of OxyContin, the drug that fueled the opioid addiction crisis that has ended the lives of hundreds of thousands of Americans and continues to haunt millions more.

The plan called for Purdue and its owners—the Sackler family—to pay billions to their victims but, crucially, also allowed the Sacklers to retain much of their wealth and released them from future liability. However, the Sacklers had not gone into personal bankruptcy, nor did the potential future plaintiffs who might sue them consent to the release of their liability. The Court held that the Bankruptcy Code does not authorize such an arrangement. While that holding is significant as a limit on what bankruptcy judges may do in future cases, the stakes in this one case are also enormous.

Whether the Purdue ruling will benefit victims remains to be seen. Justice Kavanaugh, writing for himself and an ideologically mixed group of dissenters, averred that the Court’s ruling would be “devastating for more than 100,000 opioid victims and their families.” He further noted that nearly all of the potential plaintiffs actually supported the plan, that similar non-debtor discharges had been used in other mass-tort cases, and that the Bankruptcy Code’s authorization of “appropriate” relief conferred broad discretion on bankruptcy judges. For good or ill, the parties and lawyers must now go back to the drawing board.

(2) Section 3 of the Fourteenth Amendment forbids any person “who having taken an oath . . . to support the Constitution . . . shall have engaged in insurrection or rebellion” from holding “any office, civil or military, under the United States, or under any State.” Last year, two generally conservative scholars—Professors William Baude and Michael Stokes Paulsen—released a draft of an article (subsequently published in the University of Pennsylvania Law Review) arguing that Section 3’s language automatically disqualified former President Donald Trump from seeking the Presidency as a consequence of his actions leading up to and on January 6, 2021. Apparently influenced by their argument, some courts and government officials ruled Trump ineligible for the 2024 Republican Presidential primary ballot.

In Trump v. Anderson, the Court reversed one such ruling by the Colorado Supreme Court. A per curiam opinion that five Justices joined in full concluded that “nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.” Although the Court fractured over how broadly to rule, all nine Justices worried that allowing the Colorado court’s ruling to stand could lead to what Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson called a “chaotic state-by-state patchwork.” That was a dubious rationale, however, given that the Constitution itself—through Article II and the Twelfth Amendment—creates a sometimes-chaotic state-by-state method for electing a President.

The Court’s ruling did not resolve the critical constitutional question of what counts as engaging in insurrection or rebellion and may have ensured that it never will. So long as Republicans hold at least one house of Congress or the Presidency, they will prevent the enactment of the legislation the Court said is necessary to implement Section 3. If Trump is elected again, he would veto any effort to implement Section 3. If Democrats somehow capture the Senate while holding the House and the Presidency, they could enact a Section 3 law, but in those circumstances it would not be needed to keep Trump out of office, and we are unlikely (one must hope) ever to see another President who even comes close to engaging in insurrection or rebellion.

(3) On the last day of the Term, the Court handed down Trump v. United States, the federal case arising out of former President Trump’s efforts to overturn the result of the 2020 Presidential election. The Court held that a former President enjoys absolute immunity against prosecution for any “exercise of his core constitutional powers” and a presumption of immunity for other “official” acts. The Court also held that in determining whether an act is official or not, the former President’s motive is irrelevant. And it ruled inadmissible evidence of a President’s official acts even for the purpose of proving a charged unofficial act.

Those legal principles are important but perhaps less so than the immediate impact of the case. Although the majority opinion by Chief Justice John Roberts declared that some of the charges brought by Special Counsel Jack Smith against former President Trump must now be thrown out, it did not say whether any of the charges can go to trial. Instead, the Supreme Court remanded the case to Federal District Judge Tanya Chutkan for an in-depth charge-by-charge determination of whether the case can proceed. Even if she is able to conduct that process quickly, as Justice Barrett’s concurring opinion highlighted, Trump would be entitled to appellate review before trial. Consequently, the ruling effectively guarantees that Trump will not face trial before the November election.

During the oral argument in Trump v. United States, Justice Gorsuch proclaimed that the Court could not focus too closely on the details of any one case because it must lay down “a rule for the ages.” Given the Court’s willingness to overrule its own precedents, that claim is dubious on its face, but even granting the importance of attention to future ramifications, courts should not look to the ages at the expense of the present. In facilitating Trump’s evasion of accountability for his actions subverting American constitutional democracy, the Supreme Court lost sight of that basic obligation.

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