Consequential Supreme Court Decisions 2023 Term, Part 2

By Mary Alice Miller

This year’s end of term Supreme Court decisions are proof that it is important to vote and vote intelligently. Trump’s appointments to the court have for the most part dismantled decades of precedent. The high court did not issue all of its rulings by the end of business last Friday in June, leaving everyone in suspense for their decision on whether Trump (or any president) is immune to criminal charges.

Was Trump prescient when he said he could shoot someone in the middle of Fifth Avenue and get away with it? The Supreme Court essentially ruled that yes, Trump could shoot someone in the middle of Fifth Avenue if it is in the course of his presidential duties. The court sent the case back to the lower court to determine which of Trump’s actions related to denying the results of the 2020 presidential election were part of Trump’s absolute constitutional powers and which were not, for instance, any communications between Trump and former Vice President Mike Pence when Pence was acting as president of the Senate during the certification of the election.

The court ruled that homelessness can be criminalized. Grants City, Oregon, enacted an ordinance that, on its face, seems neutral: camping on public property is banned by everyone. But homeless people, by definition, have no choice but to sleep outdoors wherever they can find a safe space. By a 6-3 decision, the high court found that imposing fines, banishment from city property, presumably including streets, and imprisonment are not an Eight Amendment violation against cruel and unusual punishment. Considering there are approximately 600,000 homeless across the nation, including New York City, the decision will have a far-reaching impact.

We all saw what happened at the Capitol building on Jan 6, 2021; our Congressional Representatives and Senators experienced it firsthand. Former House Speaker Nancy Pelosi and former Vice President Mike Pence were literally hunted and threatened with death, as other legislators ran for their lives and hid in fear wherever they could. At the behest of then-President Trump, hundreds who stormed the U.S. Capitol were charged with obstruction of an official proceeding.

By a 6-3 decision, the court ruled that obstruction of an official proceeding applies only to evidence tampering in official proceedings, such as the destruction of records or documents. One wonders if the temporary 8-foot fencing installed in front of the Supreme Court in May 2022 after the decision overturning Roe v. Wade was leaked was placed solely to protect records and documents. The ruling could impact more than 600 other defendants, including Trump, although all of them were charged with other crimes connected to the attack on the Capitol.

The Supreme Court found its opportunity to curtail the power of federal agencies to interpret laws they administer, transferring interpretation of ambiguous laws to the courts. In yet another 6-3 decision, the high court overruled the Chevron doctrine, derived from a 1984 case that found if Congress had not directly addressed the question at the center of a dispute, then a court was required to uphold an agency’s interpretation as long as it was reasonable.

The Chevron doctrine was derived from a Reagan-era case that reduced strict adherence to environmental protection law. At first, conservatives applauded the decision but rejected it because it was based on the power of any president’s administration to interpret vague law. Congress deliberately crafts laws with ambiguity, allowing those with technical expertise to craft regulations based on law.

Conservatives prefer to take any obscure law to court rather than have agencies with technical expertise interpret the law. Of course, court backlogs would increase delaying outcomes, and conservatives would be able to judge shop for a court that would provide favorable rulings to them. This decision will have far-reaching consequences for any Congressional law that requires interpretation.

In yet another blow to administrative powers, the high court ruled that in cases of securities fraud, the Securities and Exchange Commission can no longer impose fines to penalize fraud, a routine practice. The court reasoned that the fines violated the Seventh Amendment right to trial by jury. The case involved a hedge fund founder and investment manager who misled investors by making misleading statements.

The Supreme Court dismissed a pair of cases that leave in place a federal judge’s order that temporarily blocks Idaho from enforcing its abortion ban to the extent that it conflicts with federal law: The Emergency Medical Treatment and Labor Act (EMTLA). That 1986 law requires hospital emergency rooms that receive Medicare to provide necessary stabilizing treatment to patients who arrive with an emergency medical condition.

Idaho’s ban would allow an abortion only if the woman’s life were at risk or in cases of rape and incest. But the EMTLA would cover if the woman would face grave health consequences, including infertility. Until the high court’s ruling, Idaho has had to airlift a pregnant woman in medical distress to another state every other week. The Idaho abortion protection is temporary until fully adjudicated in lower courts.

There was a time when the conservative faction of the Supreme Court would rail against the court using decisions to make new laws and saw court cases that confirmed the rights of citizens as job creators for progressive lawyers. Now that conservatives have a firm 6-3 majority on the court, none of that applies.