Rulings by the conservative majority on the Supreme Court favor Trump and right-wing, anti-democratic interests and values, threatening to upend an already weakened American democracy. The right-wing bias of the court goes back to Trump’s successful nominations of three reactionary justices to the court while he was president. As it stands now, there are six right-wing justices on the court and 3 “liberals.” 

In one of its most disturbing recent rulings on June 2022 the court overturned Roe v. Wade, the 1973 law that gave women the right to an abortion. The story of this ruling is told in masterful detail by Elizabeth Dias and Lisa Lerer in their book, “The Fall of Roe, The Rise of a New America” (publ. 2024). 

In this post, the contention about the court’s right-wing bias is exemplified by three recent Supreme Court rulings dealing with expanding gun ownership rights, deregulation, and presidential immunity.

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Bump Stocks

Supreme Court Rejects Ban on Gun Bump Stocks

Abbie VanSickle reports on this issue (https://nytimes.com/2024/06/14/us/politics/supreme-court-gun-bump-stocks.html). 

“The Supreme Court on Friday struck down a ban on bump stocks, which enable semiautomatic rifles to fire at speeds rivaling those of machine guns.” The case against the bump stock law was brought by Michael Cargil, “a gun shop owner in Texas, backed by the New Civil Liberties Alliance, an advocacy group with financial ties to Charles Koch, a billionaire who has long supported conservative and libertarian causes. The organization primarily targets what it considers unlawful uses of administrative power.”

The 6-3 decision broke down along ideological lines. Justic Clarence Thomas wrote the decision and identified the main justification for it, arguing that “the Bureau of Alcohol, Tobacco, Firearms and Explosives had exceeded its power when it prohibited the device by issuing a rule that classified bump stocks as machine guns.” But, as subsequent commentary and analysis have noted, and as liberals on the court pointed out, bump stocks do transform an assault weapon into a weapon that fires like a machine gun.

Liberal dissent 

VanSickle points out that “Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson.” The three dissenting judges, all Democratic appointees, argued that the majority’s reasoning served to ‘legalize an instrument of mass murder.’”

“Justice Sotomayor summarized her dissent from the bench, a practice reserved for profound disagreements and the first such announcement of the term. ‘The majority puts machine guns back in civilian hands,’ she said.

“‘When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck,’ Justice Sotomayor wrote. ‘A bump-stock-equipped semiautomatic rifle fires ‘automatically more than one shot, without manual reloading, by a single function of the trigger.’ Because I, like Congress, call that a machine gun, I respectfully dissent.”

“The congressional law outlawing machine guns is named ‘the National Firearms Act of 1934.’ Under that law, ‘Congress outlawed machine guns, defined as ‘any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.’ That definition was expanded under the Gun Control Act of 1968 to include parts that can be used to convert a weapon into a machine gun, a category heavily regulated by the A.T.F.”

Biden opposes the court’s ruling to allow the device and has urged Congress to ban the device. 

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The Chevron decision

This decision is an example of how Trump and right-wing forces want to extend deregulation measures by the federal government. Now they have the Supreme Court in their corner. 

The 6-3 ruling, written by Chief Justice John G. Roberts, Jr. and supported by the five other conservative justices, could make it easier to block climate and wildlife regulations involving “the environment, public health and other fundamental aspects of American life.” It replaces the authority and expertise of executive branch agencies with the judgements of the courts, and of the Supreme Court as the final rule enforcer or maker. 

Matthew Daly informs readers that the Chevron precedent was made 40 years ago and “has been the basis for upholding thousands of regulations by dozens of federal agencies, but has long been a target of conservatives and business groups who argue that it grants too much power to the executive branch, or what some critics call the administrative state” (https://apnews.com/article/supreme-court-chevron-regulations-environment).    

Maxine Joselow, staff writer who covers climate change and the environment, considers some of the implications (https://washingtonpost.com/climate-environment/2024/06/28/supreme-court-chevron-environmental-rules). 

What did the Supreme Court decide?

“The pair of cases — Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce — challenged a federal rule that requires the herring industry to cover the costs of observers on fishing boats.

“In the decision released Friday [June 26, 2024], the Supreme Court struck down the rule, issued by the National Marine Fisheries Service, finding it to be overly burdensome.” 

“The decision effectively overturns a long-standing precedent known as the Chevron doctrine.”

What is the Chevron doctrine?

“The doctrine says that courts should defer to an agency’s interpretation of a law, as long as that interpretation is reasonable. It was established by the Supreme Court’s landmark 1984 ruling in Chevron U.S.A. v. Natural Resources Defense Council.”

Environmental groups challenged the rule, saying it violated the Clean Air Act and would cause more air pollution. But in the unanimous 6-0 1948 decision, “Justice John Paul Stevens wrote that the court should defer to the EPA’s reading of the Clean Air Act, and to other agencies’ interpretations of other statutes.”

Who supported overturning Chevron?

“A wide array of conservative advocacy groups have urged the court to overturn Chevron. But petrochemicals billionaire Charles Koch has played a particularly influential role.

“Both cases were backed by conservative legal organizations — the Cause of Action Institute and New Civil Liberties Alliance — that have received millions of dollars from the Koch network, founded by Charles Koch and his late brother, David Koch. Charles Koch is the CEO of Koch Industries and a fierce critic of federal regulations.

Environmental groups wanted the retention of the Chevron rule.

“Two heavyweights in the environmental movement — the Environmental Defense Fund and the Natural Resources Defense Council — both submitted amicus briefs urging the justices not to overturn Chevron. The environmental law firm Earthjustice also filed a joint brief in defense of the doctrine on behalf of Conservation Law Foundation, Ocean Conservancy and Save the Sound.

“Additional support for Chevron came from a wide range of other individuals and groups, including Democratic senators, the American Cancer Society and the Lawyers’ Committee for Civil Rights Under Law.”

The ruling will reduce efforts to combat climate change

Joselow cites David Doniger, senior strategic director of the climate and clean energy program at the Natural Resources Defense Council. He “argued the Chevron case. Doniger said the ruling released Friday could prevent agencies from using older environmental laws to tackle newer environmental problems — such as climate change — as they arise.”

What right-wing interest groups want

“‘The real goal of the interest groups on the right that are backing this litigation is to enfeeble the federal government’s ability to deal with the problems that the modern world throws at us,’ Doniger said. ‘We could end up with a weaker federal government, and that would mean that interest groups would be freer to pollute without restraint.’”

The decision reverses efforts by the Biden administration

“…President Biden’s signature climate law gave the EPA more authority to curb planet-warming emissions,’ Doniger said. For the first time, the climate law, known as the Inflation Reduction Act, defined greenhouse gases as air pollutants that the EPA can regulate under the Clean Air Act.”

How the Supreme Court’s Chevron Decision Benefits Big Oil and Gas

L. Delta Merner, lead scientist on climate litigation at the Union of Concerned Scientists, considers how the Chevron ruling benefits big oil and gas in an article published on July 1, 2024 (https://blog.ucsusa.org/delta-merner/how-the-supreme-courts-decision-benefits-big-oil-and-gas).

“Last Friday [June 28, 2024], the Supreme Court overruled the 40-year-old Chevron doctrine, fundamentally changing the landscape of federal regulatory power.” 

“Ironically, the downfall of the Chevron doctrine will give Chevron and other major oil and gas corporations more latitude to slow down and block regulations, allowing them to pollute with near impunity. At the end of the day, this decision means that courts will play a more active role in interpreting regulatory statutes, undermining scientific expertise, slowing regulatory processes, and creating obstacles at a time when urgent action is needed to address the climate crisis.”

Understanding the Chevron Doctrine

“Under Chevron, when a statute was ambiguous, courts would typically side with the agency’s interpretation, recognizing the specialized expertise of agencies in their respective fields. This doctrine has played a crucial role in enabling agencies to enforce regulations on complex issues such as environmental protection, public health, and consumer safety. The ambiguity in statutes is often intentional, acknowledging that Congress isn’t equipped to design prescriptive policies across the whole suite of issues before them—let alone in a way that can evolve as science and technology evolve over time. This intentional ambiguity enables expertise to shape rulemaking as needed. During the 40 years Chevron was law, federal courts cited the doctrine more than 18,000 times.”

The Supreme Court’s ruling

“Chief Justice Roberts, writing for the majority, declared that courts must now exercise their independent judgment in deciding whether an agency has acted within its statutory authority, rather than deferring to the agency’s reasonable interpretation. He emphasized that this change does not retroactively affect past cases decided under Chevron deference but will influence all future regulatory interpretations.” 

“Lobbying for Favorable Decisions: Judges will have more leeway and more need to rely on Amicus, or ‘Friend of the Court’ briefs in writing opinions. Fossil fuel companies and their attorneys will have the incentives and funding to file such briefs aggressively. The views expressed by oil companies will have equal weight compared to agency scientists and experts. It should be noted that the plaintiffs in both cases leading to the overturning of Chevron were represented pro bono by attorneys from conservative law firms with ties to the Koch brothers.”

The upshot

“By employing a range of tactics, these corporations can delay public health and environmental protections, effectively postponing climate accountability cases for years. This strategy not only prevents plaintiffs from achieving justice through the courts but also allows these companies to use the courts to delay essential regulations. During this time, they can continue their operations with minimal restrictions, further exacerbating environmental and public health issues.” 

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Supreme Court Delivers Anti-Democracy Win to Trump in Immunity Case

Chris Walker reports for Truthout, July 1, 2024, on how Trump benefits from the Supreme Court’s ruling on presidential immunity (https://truthout.org/articles/supreme-court-delivers-huge-win-for-trump-in-january-6-case). Walker is a news writer at Truthout, and focuses on both national and local topics.

Benefits Trump

“Following 123 days of delay in the pre-trial stage of the case regarding former President Donald Trump’s attempt to overturn his 2020 election loss to President Joe Biden, the U.S. Supreme Court has issued a ruling on Trump’s claims of absolute immunity, granting him a huge win and creating an unprecedented burden for prosecutors.

“The Court found that a president is presumed to have immunity for acts that fall within their office’s authority, and should have wide leverage to argue that their actions as president were consistent with those protections. While the Court stated that such standards wouldn’t apply to non-official acts, the ruling gives tremendous leeway for future presidents to facilitate illegal actions without criminal consequence, so long as they’re done using constitutionally granted tools within the executive branch.

Stay in the loop

Chief Justice John Roberts, who authored the majority opinion, offered the following self-serving rationale for the decision. 

“The system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.

Chief Justice Roberts explained the rationale for the immunity ruling. “‘The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law….But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.’

‘The President therefore,” Roberts argued, “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.’”

Trump’s thirst for revenge

“Indeed, in public statements over the past year, Trump has promised ‘revenge’ against his adversaries if he’s elected in November, which he would be able to pursue without criminal consequence under the standard created on Monday.”

David Corn refers to it as an “obsession.” (https://motherjones.com/politics/2024/06/trumps-obsession-with-revenge-a-big-post-verdict-danger). “Three days after a New York City jury turned Donald Trump into the first former president branded a felon, the onetime reality television host told Fox News, ‘My revenge will be success.’ This above-the-fray rhetoric was not to be believed, for Trump, through much of his life, has exhibited an intense obsession with vengeance and seeking retribution against those he considers his foes and detractors.

“In subsequent interviews, Trump adopting contradictory stances on the matter of retaliation. Appearing on Newsmax, he said that if he is elected his political opponents might face prosecution. 

“Despite all this back-and forth, the historical record is clear: Trump has long had a love affair with revenge—to such an extent that this fixation should be added to the list of concerns reasonable people ought to have about a Trump restoration. If Trump, with his authoritarian impulses, returns to the White House, it is rather likely he will use his power to extract payback—for this conviction, the other civil and criminal cases filed against him, and all perceived slights and assaults. There will be a revenge-a-thon.”

Corn points out, “Commenters on pro-Trump websites called for violence against the judge in Trump’s hush-money/election-interference case and against liberals in general. Trump supporters also tried to dox the jurors—setting them up as targets—and posted violent threats against the prosecutors. John Eastman, the indicted lawyer who helped Trump’s efforts to overturn the 2020 election (and whose law license has been suspended in California and Washington, DC), came close to justifying violence when he warned that if Trump is sentenced to prison, Trump supporters will be ‘taking matters into their own hands’ and ‘seeking remedies on their own.’”

“All these responses—and other similar reactions—were extremely Trumpian. Throughout his presidency, Trump condoned and encouraged violence. And for decades, Trump has cited revenge as one of his key motivators. He has even touted it as crucial to his success.”

The liberal dissent

Walker [cited earlier] notes that Justice Sonia Sotomayer authored the liberal view. 

““Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,’ Sotomayor wrote. ‘It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” Sotomayor continued.

“The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.

Sotomayor condemned the Court’s conservative bloc for essentially stating that a president cannot be prosecuted if they’re using their constitutionally granted powers.”

Walker continues citing Sotomayor.

“‘The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity,’ Sotomayor added. Quoting precedent established by the conservative justices in Dobbs v. Jackson Women’s Health Organization, she went on, ‘This official-acts immunity has ‘no firm grounding in constitutional text, history, or precedent.'”

She is quoted as follows. “This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash.”

Sotomayor concluded her dissent by adding, “Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law.” 

Further objections to the immunity ruling

“‘Welp, that’s all folks. The President is immune from prosecution so long as he says he committed crimes as part of his ‘official’ duties,” said The Nation’s Elie Mystal. ‘So ends the part of the American experience where our leaders were bound by the rule of law. Thanks for playing.’”

“The Supreme Court originally stalled the case in February, agreeing at that time to hear an appeal from Trump’s lawyers over claims that his ‘presidential immunity’ should have protected him from being charged in the first place. That argument rested on the dubious premise that Trump had been acting in his capacity as president during the January 6, 2021, attack on the U.S. Capitol, and that his attempt to usurp the Electoral College process through the use of fake electors was somehow a legitimate part of his job as then-head of the executive branch.

“The Supreme Court did not rule on Monday whether Trump’s actions were official. But their decision will return the case to the lower court, where those arguments will be made. Even if the lower court determines that the former president wasn’t acting in an official capacity when he ordered the mob of his loyalists (some of whom he knew were armed) to the Capitol, Trump can appeal the ruling to the High Court, which will have the final say on whether or not his actions were official.”

Concluding thoughts

The principal implication of this analysis is that very right-wing Supreme Court cannot be counted on to rule on the basis of the best evidence or to uphold the integrity of the presidency or executive branch agencies. If Trump wins the presidential election in November, this court will likely continue to make decisions that are extreme, that undermine American democracy, and that threaten to enshrine Trump as a king. What is worrisome is that Trump as president would be in a position to nominate persons to replace older justices who favor extremist remedies. What is also worrisome is that he and his allies will manipulate the law and law enforcement to punish his opponents and critics. Will we hear a knock on our door in January 2025?

July 5, 2024