Supreme Court term will tackle executive power, executive power, executive power : NPR

The Supreme Court opens a new term Monday, which promises to be hugely consequential and focused in large part on how much power the Constitution gives to the president.

Among the issues already on the court’s docket: a case that could end what’s left of the landmark Voting Rights Act; a case that could do away with one of the few remaining laws that limits campaign fundraising; a challenge to the Trump tariffs; a challenge to his firing of independent  agency commissioners before their fixed terms are completed; and much much more.

Indeed, coming soon is likely to be the unanswered question from last term: Did President Trump exceed his authority when he issued an executive order barring a constitutional provision that guarantees automatic citizenship for every child born in the United States.

Record-breaking eight months

Since Trump took office for a second term, the conservative court’s 6-to-3 majority has been rocking the boat big time.  In just eight months, it has broken all records for granting a president’s wishes on the “emergency docket.”

By the end of last week, the court had granted 20 of Trump’s requests  to block lower court orders opposed by the administration. In contrast, the court ruled against  the administration in these emergency cases just three times.

“The granting of these emergency applications creates a feedback loop and the more they get granted the more incentive the solicitor general has to seek additional emergency relief in many cases,” observes Donald Verrilli, who served as solicitor general for five years in the Obama administration.

Technically, these decisions to halt lower court rulings, are temporary, because the court did not hear arguments in the cases, nor was there full briefing. Instead, as befitting the “emergency” title, the court simply made a temporary decision, but, in most cases it gave no explanation at all for its ruling.

Now, some of these cases are back at the high court to be heard on the merits. That means the court will have full briefing and arguments and it will spend months putting its conclusions on paper where they can be read by all.

Without this early early intervention, lower courts would have “put a halt on the programs and policies that the executive branch is pursuing that are in some ways fundamental to the president’s agenda,” says Roman Martinez, a seasoned Supreme Court advocate.

Cases return to the court

At the same time, though, in many of the cases where the court intervened quickly, the temporary intervention was a death knell for the cases—the Education Department is already decimated, the Trump takeover of private Social Security records is complete; Democratic commissioners at previously independent agencies have been fired. In addition, time has expired for spending money previously appropriated by Congress, so for all practical purposes, not only is the money gone, so too are the programs that the money was meant for fund.

Among the big cases that are already back for a full hearing this term are those that strike at the heart of how the government is structured. Although Congress set up the system of independent regulatory agencies a century ago, the court this year has allowed Trump to fire agency commissioners at will, the only exception, so far,  being the Federal Reserve Board of governors.

Although Trump didn’t try to fire independent agency officers in his first term, his second term began with his firing Democratic commissioners before their fixed terms were over, and late last month, the justices said they would hear a test case involving the firing of a Federal Trade Commissioner. Ironically, the FTC was the very agency that the Supreme Court protected from such at-will firings in a unanimous 1935 decision. Back then,  the president who was doing the firing was Franklin Delano Roosevelt.

Late last month, the court said it would hear a test case, but the handwriting may already be on the wall, at a court dominated by conservatives and keen on enhancing  the powers of the presidency.  

The outcome “will matter a lot for Congress when we’re digging up the rubble from this administration and trying to think about what kind of institutional arrangements are constitutional,” says Supreme Court advocate Deepak Gupta.

The court will also hear a variety of other important cases, including whether Trump exceeded his statutory authority in imposing huge tariffs. This summer a federal appeals court ruled he had exceeded his statutory authority, and the Supreme Court quickly agreed to  hear arguments in the case on an expedited basis this November.

Last week the court also said it would hear a test case involving Trump’s efforts to fire Federal Reserve Governor Lisa Cook, but unlike in the FTC case the court did not immediately remove Cook from her job.

Other cases

Not all the big controversies at the court this term are focused on the powers of the president. This week the court hears arguments in a case brought by a Colorado therapist who contends that the state violated her first amendment right of free speech by barring so-called conversion therapy for minors, a practice that the country’s  major medical associations have found to be dangerous. Later in the term, the court will hear arguments in a case involving transgender female students and school sports.

That said, the court term is more focused on the presidency than on any other issue. And it is returning to work  after a summer in which the justices never really got away from it all as they have before. Indeed, it was rare, if ever, that a week went by without the actions of the Trump administration ending up on the court’s emergency doorstep.

Indeed, you could see tempers fraying in August when Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, filed a concurrence in one of the emergency docket cases, accusing lower court judges of defying the Supreme Court.

The opinion prompted a slew of lower court judges from across the ideological spectrum to respond with public critiques of the Supreme Court’s behavior. Indeed, even the normally mild-mannered Justice Stephen Breyer, who retired from the court in 2022, leaped to the defense of Reagan appointee William Young, the author of the decision Gorsuch criticized.

If Gorsuch and Kavanaugh have attracted  blowback for their individual writings of late, on the left side of the court, Justice Ketanji Brown Jackson’s rhetoric has also raised eyebrows for her slashing dissents. Most notable was her dissent in June when the court stripped lower court judges of the power to impose nationwide court orders. Justice Sonia Sotomayor wrote the major dissent, but Jackson issued a searing dissent for herself alone in which she accused the majority of creating “a zone of lawlessness within which the executive has the prerogative to take of leave the law as it wishes.”

Her opinion, in turn,  prompted an uncharacteristic rebuke from Justice Amy Coney Barrett, the author of the opinion, who replied, “We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.”

All of this will continue to play out at a time when  the court’s approval ratings continue to sink to negative territory.

Ultimately, says William Baude, a law professor at the University of Chicago Law School, the question is whether the court “can convince the country that it would be exercising its discretion the same way if it were Joe Biden or Kamala Harris doing things that are the legal equivalent” of what Trump is  doing now.