Dem
47
GOP
53
The Supreme Court released its rulings in four cases yesterday, and declined to hear two others. Donald Trump got one big win, and five smaller losses.
We'll start with the win, which came in Trump v. Slaughter, with the decision breaking 6-3 along the usual ideological lines, and with Chief Justice John Roberts writing the majority opinion. One of the most important cases in Supreme Court history, at least until yesterday, was Humphrey's Executor v. United States (1935). In that decision, which was unanimous, the Hughes Court held that Congress is allowed to create independent executive agencies, and if Congress chooses to do so, the president may only remove the president-appointed, Senate-confirmed officials that lead those agencies for "inefficiency, neglect of duty, or malfeasance in office."
When it comes to Humphrey, Roberts has had a bug in his bonnet for more than 40 years. In 1983, when he was a bright-eyed and bushy-tailed lawyer in the Reagan White House, he wrote a memo pooh-poohing the idea that independent agencies are constitutional. Slaughter finally offered Roberts and his five conservative colleagues the opportunity to strike, and strike they did. Yesterday's ruling says that the commissioners of (most) independent agencies do indeed serve at the pleasure of the president, and so can be fired by him. Per Roberts, "Then, and only then, can they remain accountable to the President, and the President to the people." Because if there is one phrase that describes Donald Trump, it's "accountable to the people." Especially the people who are "Dumocrats," to use his word.
Trump, of course, was delighted by the late birthday gift, and got on his social-media-platform-for-the-shortsighted to gloat:
To show the importance of the Slaughter Case, 90 years of precedent has been COMPLETELY AND UNEQUIVOCALLY OVERRULED, greatly increasing Presidential Power at a time when it is most needed! President DONALD J. TRUMP
Trump does not care, and the six conservatives on the Supreme Court apparently don't care, but this will obviously result in "independent" agencies that are run in partisan fashion. One has to assume that, for example, Trump is about to pack the Federal Elections Commission with Republicans, and probably the Federal Communications Commission, as well. It is worrisome to think about the harm that might be done in the short term. But, of course, the shoe will be on the other foot someday, and then we will see what an all-Democratic Federal Energy Regulatory Commission (FERC) or National Labor Relations Board (NLRB) will do.
Meanwhile, according to SCOTUS, there is one independent agency that is still independent, and that is the Federal Reserve. The second decision of the day, and Trump's first setback, came in Trump v. Cook. By a vote of 5-4, with Roberts and Associate Justice Brett Kavanaugh joining the three liberals, and Roberts writing for the majority, the Court said that Fed governor Lisa Cook, who Trump tried to fire, can remain on the job while her case plays out.
The basis of Cook's case is that fed governors can only be fired for cause, and Trump failed to demonstrate any cause before terminating her. That would seem to be a dead argument, given the Court's ruling in Slaughter, but Roberts stands on his head to explain why the Federal Reserve is different from other independent agencies. His argument boils down to two things. First, that in the legislation creating the Fed, Congress very clearly intended that agency to be independent from politics. How Roberts can tell that the legislature really meant it in this case, and not with the other agencies explicitly described as "independent" in their enabling legislation, he did not explain.
Roberts' second argument is that it's always been the position of the government that fiscal policy must be insulated from politics; a position that pre-dates the Fed, and goes all the way back to the two Banks of the United States. This is true, and is even sensible. However, it's also a red herring. The reason that there is no 19th century history of the FCC being independent is that there was no broadcasting in the 19th century, and therefore no need for an FCC. The same basic dynamic holds for nearly all independent federal agencies, and it's rather disingenuous to claim that an agency can only be independent if people alive at the same time as George Washington happened to see a need for it. It's also not too hard to notice that Roberts and his colleagues are not too likely to be affected by limits on gas-powered cars (FERC) or a labor dispute (NLRB), but the justices' stock portfolios could take a beating if Trump stocks the Fed with a bunch of pliant lackeys.
Trump has made remaking the Fed a centerpiece of his agenda. He thinks that if the governors answer to him, then he'll be able to implement lower interest rates (good for real estate developers like... Donald Trump), or he'll be able to get rid of inflation by fiat (though he has no idea how), or both. However, this project has been an epic failure for the President. He did not get the right to fire governors, and he probably won't be able to get rid of Cook. Jerome Powell is hanging around, at least for now, and may linger until a Democratic Senate is seated, in either 2026 or 2028. Even the new, Trump-appointed Fed Chair Kevin Warsh has been acting like an independent governor and not a Trump stooge.
Moving on to the third decision from yesterday, Watson v. Republican National Committee was decided 5-4, with Roberts and Associate Justice Amy Coney Barrett joining the three liberals in the majority, and Barrett writing the opinion. The case was triggered by a Mississippi law that allows ballots, as long as they are postmarked by Election Day, to be accepted up to 4 days later. The argument made by the RNC was that Congress sets the date of Election Day, and states are not allowed to develop their own "interpretation" of that date. The five justices in the majority decided that states are responsible for running elections, and are entitled to accept cast-on-time-but-received-late ballots.
In the short-term, this is a loss for Donald Trump, who did much grumbling about the decision, and a win for Gov. Gavin Newsom (D-CA) in particular, who did some crowing. In the medium-term, this is also a loss for Trump, since much of his carping about the midterms, not to mention the bulk of the SAVE Act, involves the federal government assuming the election-running responsibilities of the states. In the longer-term, however, Republicans may end up praising the Watson ruling, while Democrats may end up regretting it. That is because SCOTUS agreed yesterday to hear Republican National Committee v. Mi Familia Vota, which addresses whether states can refuse to register voters who do not provide proof of citizenship. Given that yesterday's ruling was based on the proposition that states have wide latitude to decide how to run elections, and given the makeup of this Court, the RNC figures to win that one.
Finally, the fourth decision yesterday was in Chatrie v. United States. The vote was 6-3, with Roberts, Kavanaugh and Associate Justice Neil Gorsuch joining with the three liberals, and Associate Justice Elena Kagan writing for the majority. The question here was whether a government subpoena for cell phone location data (in this case, to determine whether a person was near a bank before it was robbed) constitutes a "search" for Fourth Amendment purposes. The majority ruled that it does indeed constitute a search, which means that the courts must then determine if such searches were reasonable. Put another way, if the cops have good reason to think you robbed a bank, and they use cell phone data to supplement their case, that's probably OK. But if the cell phone data is just a fishing expedition, then that's not OK.
Chatrie is nowhere near as big a deal as the other three decisions. However, it did make libertarians very happy.
Of course, we can't forget the two cases the Court declined to hear. Alan Dershowitz had much to say during and after Donald Trump's first impeachment trial. CNN reported on Dershowitz's comments, and he felt their reporting was inaccurate, and so sued for defamation. The problem, which the Court briefly (and unsignedly) reminded Dersh of yesterday, is that if you are a public figure, there has to be actual malice behind the incorrect reporting. So, his suit is dead. While this is not directly a loss for Trump, the President really wants to sue any and every news outlet that says mean things about him. SCOTUS just warned him that's not going to fly.
The Court also advised that it will not hear an appeal of the $5 million jury verdict rendered against Trump for sexually abusing E. Jean Carroll in the mid-1990s and defaming her. Their brief and unsigned order contained no information as to why they chose not to hear the case. To nobody's surprise, Trump went ballistic at the news:
Surprisingly, the Supreme Court declined to "review" a Fake Case brought against me by a woman I never met (Decades old celebrity photo line, standing with her husband, does not count!). I will continue the fight against this Weaponization and Lawfare Case against me, including the ridiculous claim of Defamation, with all of my power and strength. This Case is really against the United States of America, and all it stands for, and should never be allowed to happen to another President, or Candidate to be! New York State created a Law, for an instant speck of time, going back many decades, in order to wrongfully "nab" me. It was tailormade, and this Injustice cannot be allowed to stand! Thank you for your attention to this matter. President DONALD J. TRUMP
Trump's posturing is cute and all, but it's one, two, three appeals and you're out in this particular ball game. And as a condition of filing the appeal that was rejected yesterday, Trump had to put the money, plus interest, in an escrow account. So, he can't even play games with withholding payment. Carroll should get her cash in the next week or two. Perhaps worst of all for the President is that his best chance of beating the larger, $83 million judgment was winning this case. That is because his guilt in case #1 made him automatically liable in case #2, per Judge Lewis Kaplan, leaving the damages as the only issue for the jury to decide. If Trump had managed to reverse case #1, it would have made case #2 much more tenuous.
Today is going to be another big day, as the Supremes will hand down decisions in the three remaining undecided cases for this term: The first is National Republican Senatorial Committee v. FEC, which is the RNC challenging rules that govern coordination between PACs and candidates. The second is West Virginia v. B.P.J. and Little v. Hecox, which are about trans girls' right to play high school sports. And the third, and the biggie, is Trump v. Barbara, which is Trump trying to overturn birthright citizenship. We will, of course, have write-ups of all three tomorrow. (Z)