Front Burner - President as ‘king’, and other giant Supreme Court cases

Episode Date: July 5, 2024

The U.S. Supreme Court’s latest ruling grants presidents the ability to break the law without fear of criminal prosecution as long as it counts as an “official” act. It’s the latest in a string of wide-ranging decisions, from abortion to corporate deregulation, that critics say are reshaping America.We take a look at some of those cases with University of Michigan law professor and co-host of Crooked Media’s Strict Scrutiny, Leah Litman, and break down what motivates this majority conservative court, and how these decisions will impact the lives of Americans now and for years to come.For transcripts of this series, please visit: https://www.cbc.ca/radio/frontburner/transcripts

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Jamie Poisson. So I just want to read you a few lines from a dissenting opinion on a monumental U.S. Supreme Court case that came down this week. The president of the United States is the most powerful person in the country and possibly the world. When he uses his official powers in any way under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy SEALs Team 6 to assassinate a political rival? Immune.

Organizes a military coup to hold onto power. Immune. Takes a bribe in exchange for a pardon. Immune. Immune. Immune. Immune. Justice Sonia Sotomayor continues, the president is now a king above the law.

Okay, so today we are going to look at that decision. And we're also going to look at a number of others made by the court that some think represent a massive and fundamental reordering of American social and political life. And I'm going to do that with Leah Littman. Leah is a professor at the University of Michigan and the co-host of the Supreme Court podcast, Strict Scrutiny by Crooked Media. Let's get to it. Leah, hi. Thanks so much for coming on to FrontBurner. Thanks for having me. It's really great to have you. So as I mentioned, we're going to try today to look at some recent Supreme Court decisions and talk about how many people, critics of the court, say they are reshaping America. Not a simple task.

So thank you so much for being here. And let's start with the most recent one that came out earlier this week that I talked about, the presidential recent one that came out earlier this week that I talked about, the presidential immunity one. The six conservative judges supported it, three liberal judges dissented. And just briefly, tell me what the ruling says. So what the ruling says is that presidents are entitled to absolute immunity. They cannot be criminally prosecuted for anything that falls within the president's core exclusive constitutional authority. The U.S. Constitution gives presidents vast powers over certain things like issuing pardons or leading the military. But the decision also said presidents are entitled to

presumptive immunity anytime the president is acting within the outer perimeter of their authority. So even things that the Constitution doesn't give to the president exclusively, but that, say, Congress has empowered the president to do or the president and Congress do together, the president is entitled to a presumption of immunity such that he or she cannot be prosecuted, even if he or she violates criminal law in the course of exercising their official duties. It's not lost on me that you and I are speaking on July 4th, American Independence Day. I've seen some people describe this ruling as, quote, how republics die. And then I talked about the dissent from Justice Sonia Sotomayor.

And she said that this would essentially make a president a king above the law. And so what do you make of those comments? Fair? Hyperbole? I think they're very fair and very concerning. You know, if you think about what this decision means in the event of a second Trump administration, Donald Trump has promised to go after political rivals, people in the media who criticize him. In a series of interviews, Trump implying that if he's reelected, he will seek payback against Democrats, including Joe Biden. Look, when this election is over, based on what they've done, I would have every right to go after them. In an interview with Dr. Phil, he doubled down. And I think this decision would mean if he drummed up baseless criminal charges against his media critics or political rivals, he could not be criminally prosecuted for that. And you are staring down the prospect of electing someone as president who has said, I will be a dictator on day one, all of a sudden saying, and they're not bound by any criminal laws whenever they're doing anything related to their official duties.

Would this decision impact any of the criminal cases that he's facing right now? I believe there are four, right? Yes, there are four. And I think it's unclear the extent to which this decision will implicate some of those cases, but at least for the cases related to election interference and January 6th and Donald Trump's months-long effort to overturn the results of a valid presidential election, the Supreme Court has already told us that at least some of the allegations in the indictments cannot be used to prosecute him. This includes Donald Trump's threats to the Department of Justice and threats to remove officials at the Department of Justice if they didn't go along with his false notions of voter fraud. And the court also said he was entitled to a presumption of immunity

for his conversations with Vice President Mike Pence, during which he was pressuring him to, again, embrace this notion of false voter fraud in order to throw out presidential votes. election interference in January 6th, I think it's least likely to affect the New York falsification of business records case just because so much of that case happened before he became president and doesn't plausibly relate to official acts. Although I should note, his lawyers have argued that the conviction needs to be overruled on the basis of immunity. And then it's also possible it will affect the documents and obstruction of justice case in Florida related to his wrongful retention of classified information and refusal to comply with federal law enforcement demands to give those documents back because he's insisting that he declassified the documents and he has an interest in them as a former president. And so the court in

that case is going to have to make a determination about whether he's entitled to a presumption of immunity there. All right, so that is the immunity case from this week. Really a huge bombshell case. And so now let's focus on, the Chevron framework. And this was also similarly a six in favor, three against decision that split along ideological lines. And just tell me a little bit about this decision, maybe not as sexy as the presidential immunity decision, but I think a lot of people would argue also very, very important. Yes. So this decision, I think, fundamentally reshapes how American government works under the previous law, the Chevron Doctrine, when Congress, our legislature passes laws, it oftentimes allows federal agencies that are staffed with experts to implement those laws. So these are agencies like the Environmental Protection Agency, or the Consumer Financial Protection Bureau, or agencies

like the Securities and Exchange Commission, or the Food and Drug Administration, you know, so agencies that oversee health, welfare, safety, consumer integrity, and the financial fraud. And so, whereas previously agencies would determine what these unclear statutes mean, now the Supreme Court has declared, never mind all of that, it's up to us, federal courts and Supreme Court, Never mind all of that. It's up to us, federal courts and Supreme Court, to determine what these unclear statutes mean. And that's a pretty frightening prospect because a lot of these areas are very complex and turn on policymaking judgments and balancing the costs and benefits of different policies, stuff that federal judges don't know a thing about. And the other concern is that the federal courts who are now going to be determining what these statutes require of companies, you mentioned that this decision split along ideological lines. You have a Supreme Court that is constituted with six justices appointed by Republican presidents who are all hostile to regulation and want to give the benefit of doubt to powerful interests,

companies, and corporations. And so they are less likely to conclude these statutes require much of anything of companies and corporations. I know people say this decision needs to be read along with a decision that the court made recently that paused a plan by the Environmental Protection Agency to stop smog from drifting across state lines, right? And so just talk to me a little bit about that. I think it probably builds on what you were just talking about. Yeah. So this decision both underscores how federal courts are not expert in these technical matters that used to be left to administrative agencies and is another example where federal courts have seized power away from agencies and given them to themselves. So in Ohio versus EPA, what the Supreme Court said is, look, we Supreme Court just are not convinced by the agency's explanations for why they required

upwind states to limit emissions in order to minimize the risk of pollution in downwind states. The high court also upending a Biden administration effort to reduce smog and air pollution wafting across state lines. The five to four decision is a win for the Republican led states and industry groups that challenge the Environmental Protection Agency's good neighbor plan. That plan. So they basically said, we're just not satisfied with the agency's explanation or the basis for their decision. And that is a huge deal because it basically allows non-expert federal courts to fly spec and second guess agencies over matters that they have no expertise in. kind of underscores that in the opinion invalidating the EPA, the Environmental Protection Agency's rule, Justice Gorsuch, who wrote the majority opinion, misdescribed nitrogen oxides,

which are the gases that cause smog and pollution, as nitrous oxide, which is commonly known as laughing gas. Got it. And of course, he's one of the conservative judges. Yes. So let's talk about yet another decision. This one has to do with racial gerrymandering. This is a decision that came down in May, again, 6-3 along ideological lines. And the court decided with Republicans, right, saying that they could keep the borders of a district in South Carolina that a lower court deemed unconstitutional and resulted in, quote, bleaching of African-American voters out of a district. And so what do you think the impact of this decision will be beyond South Carolina? Talk to me a little bit about this case. is the legislature basically relied on race in order to draw these districts. That is, the legislature said, look, we want to make sure that enough seats in Congress from our state stay Republican. And because we know Black voters primarily don't vote Republican,

we are going to move Black voters around between districts to ensure that a super majority of these districts stay Republican and won't go Democratic. And under the Constitution, you are not supposed to be able to use race as a sorting mechanism to draw legislative districts, especially in order to dilute the voting power of racial minorities, which is what the legislature's plan did here. And what the U.S. Supreme Court said, the six Republican justices, was basically, what's the big deal when there is so much racial polarization in voting? That is, Black voters prefer one party. And the Supreme Court said when there's that much racial polarization, well, you know, it's not surprising that legislators were moving Black

voters around between districts. They were just trying to advantage their political party. And because we, Supreme Court, think you can do that, that is, you can basically have legislatures draw districts in order to advantage one political party, even if that political party doesn't get a majority of the votes, then that's so much more important than enforcing the prohibition on racial gerrymandering that we're kind of going to let them get away with it. racial gerrymandering that we're kind of going to let them get away with it. Gotcha. And this idea that the Supreme Court thinks it's okay that you can do that for your political ends, it's because there have been other cases, right, on gerrymandering that it has... Yes, exactly. So the racial gerrymandering case that we were just talking about, part of why it's so concerning is the Supreme Court's earlier decision in a case called Rucho versus Common Cause said that when legislatures draw districts in order to favor one political party over another, something that's

known as partisan gerrymandering, federal courts cannot invalidate that. And that's deeply undemocratic because, as I was saying, you can imagine a legislature moving voters around and drawing districts such that even when one political party doesn't win a majority of the votes, they nonetheless win a majority of seats in that state's congressional delegation. That's happened in states like Wisconsin, and it's happened in other states as well. And so the problem with these two decisions is, basically, in Rucho, the Supreme Court said you can't remedy partisan gerrymandering. And now, more recently, the Supreme Court has said, and because you can't remedy partisan gerrymandering,

we're also going to make it near prohibitively difficult to enforce racial gerrymandering, we're also going to make it near prohibitively difficult to enforce racial gerrymandering prohibitions because of the strong correlation between race and party in the United States. So it's effectively defanged, you know, another constitutional protection in voting as well. Just over a year ago, the court made it unlawful for colleges to take race into account as a specific factor in college admissions, though, you know, applicants can talk about how race has affected their character, etc. in admission essays. Again, 6-3, ideological lines. And do we have a sense at all of how this ruling is now playing out in kind of real life? So it's a little bit difficult to tell just because it's been only a year since the ruling.

We're likely to know more about the downstream effects of the decision after a few years when you can see whether the makeup of college classes or graduate school classes has changed. college classes or graduate school classes has changed. But this is another example of the six to three Republican-controlled Supreme Court overruling a major case. You know, they basically overruled at least one major decision every year that the court has had a supermajority of Republican justices on the court. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections.

Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people, and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income. That's not a typo. 50%. That's because money is confusing. In my new book and podcast, Money for Couples,

I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. When we talk about overruling major decisions, the biggest one, the loudest one, the one people will know the most about is obviously the Dobbs case in 2022 when Roe v. Wade was overturned, essentially taking away the constitutional right to access safe abortions. And abortion has continued, of course, to be this firestorm of a topic. And abortion, you know, has continued, of course, to be this firestorm of a topic. But there was a case on emergency abortions, which this court dismissed rather recently. And what happened there? And just talk to me a little bit about what this court has done since on the issue of abortion and, you know, what you think that they might do in the future? Sure. So one immediate after effect of the Supreme Court overruling Roe versus Wade was to jeopardize medical care for pregnant patients, because it's basically impossible to separate abortions from miscarriage care, since in many circumstances, the medical treatment that is recommended for certain types of health conditions, including miscarriages at certain points in a pregnancy or a condition known as the premature

rupture of membranes, the recommended medical treatment is an abortion. So as soon as states began restricting abortion, there were horrifying stories about the costs to women and pregnant patients, people who came within minutes of losing their life because they went into septic shock after they were initially denied abortions, or people who had to be put on ventilators because they became so ill after being jeopardized or after being denied an abortion. And so what the emergency medical case was about is there's a federal law in the United States known as EMTALA. That's the Emergency Medical Treatment and Active Labor Act. And what that federal law says is any hospital that accepts federal money has to offer care that is necessary

to stabilize a patient when a patient comes to an emergency room. If their life or health is in jeopardy, you have to give them medical care. And that obligation, of course, ran straight up against states' abortion bans, which prohibited abortions in circumstances that were necessary to save people's life or health. So the case that went up to the Supreme Court was basically about whether federal law, the guarantee of emergency medical treatment, or state law, the abortion ban, would govern in those circumstances.

And the U.S. Supreme Court opted not to decide that question. They said, you know what, we opted to take this case and it turns out we just think it's premature. And so we're just dismissing the case and we will come back to it later at some point. And I think that was a pretty cynical ploy to avoid making another deeply unpopular ruling on abortion in the lead up to the 2024 presidential election. Because of course, after the Supreme Court overruled Roe, there was, you know, a pretty obvious wave of support for Democratic candidates who promised to protect abortion rights. And I think the Supreme Court may have been concerned about issuing a ruling that said states can deny women and pregnant patients emergency care in the lead up to a presidential election and reinforcing the salience of abortion in this election. Because this is a problem issue for the Republicans. Yes. I mean, of course,

more than 80 percent of people in the country believe that hospitals should be able to provide pregnant patients emergency care, even when that emergency care is abortions, right? This is not a difficult issue when you think about, you know, what an emergency room and hospitals are supposed to do. You know, when you look at some of the decisions that we've talked about today, when you look at them together, how would you articulate the through line here? How would you articulate like what you see as the vision, the vision of this current court or the majority of the judges on this current court? Yeah. You know, it's a little bit difficult to articulate one through line. So maybe I can quickly rattle off two or three. One would be seizing power for the

federal courts, you know, taking power away from agencies and taking power away from prosecutors and insisting that courts get to decide when prosecutions go forward. All of that, right, is seizing power to the federal courts and the Supreme Court. Another is, I think, rolling back, you know, the 20th century, when the court is dismantling administrative agencies, overruling abortion rights, prohibiting colleges from taking race into account. You know, those are all things that developed in the 20th century, and the Supreme Court seems to want to take us back to the time before any of those things existed. The final thing I would say is I think another important through line is insulating corrupt abuses of power from accountability.

Obviously, that's the immunity case. But I think the agency cases also fall under that bucket, because in those cases, you are making it easier for corporations to get away with doing things like mislead investors or harm consumers or negatively affect the planet and consumer welfare. And all of that is insulating a type of abuse of power as well. There's another one that we haven't talked about yet, which might be worth mentioning here. I think it's the Snyder case, right? It was delivered recently, and it's been highly criticized, essentially, for weakening anti-corruption laws for elected officials. Am I right? Yes. No, that's exactly right. I mean, Snyder is the latest in a line

of decisions that basically make it impossible to prohibit different types of public or political corruption. So in Snyder itself, the situation or the question that the Supreme Court was answering is whether it is illegal for people to give a gratuity or a tip to a public official for an official act. So in that case, this trucking company gave a local mayor more than $10,000 by saying they were hiring them for consulting services after the mayor awarded them a million-dollar trucking contract. And what the Supreme Court said is, look, those later after-in-time gifts and gratuities, no big deal, not corrupt, so can't prosecute them. Some of these conservative justices have also been accused of corruption themselves,

right, which feels sort of relevant here. I'm thinking of like the reporting that we've seen that conservative justice Clarence Thomas has taken all these lavish gifts and vacations from a billionaire, a law firm that regularly has cases before the court, bought a piece of land owned by conservative justice Neil Gorsuch. And how do you think that fits into the conversation that we're having? I think it's a big part of it. You know, one is it's not that surprising to see the Supreme Court effectively legalizing gifts to public officials when many of them are accepting gifts as public officials. It's okay. So what a surprise. We do it all the time.

Don't worry about it. Yeah. So what a surprise. We do it all the time. Don't worry about it. Yeah. And then the other thing is just this court's kind of friendly ear and inclination to be receptive toward big business and corporate interests. You know, many of the billionaires who are gifting these justices with lavish vacations or whatnot, they own companies and corporations, and those companies and corporations obviously have an interest in being subjected to less regulation. And so I think all of this is really related. You know, talking about three lines, just listening to you, another one that occurred to me, I don't know if you'd agree, is sort of the court acting as an arm, essentially, acting as an arm, essentially, of the Republican Party. I mean, your view on why they dismissed the abortion case would fit into that, and maybe sort of the gerrymandering stuff would fit into that. And also, you know, when we're talking about justices individually, Justice Alito has really, it seems, abandoned any sense that judges should appear impartial, right? Like they have there have been like upside down flags at his homes, which is something a lot of Trump supporters who thought the 2020 election was stolen did.

And so, you know, do you think that that's a fair thing for me to pull out of some of what we have been talking about today? I mean, absolutely. And it's not just the abortion decision. I think also the immunity case. The Supreme Court delayed deciding that case for so long they effectively ensured there was not going to be a pre-election trial or verdict in the election interference case. And that's in addition to what they said about the president actually being entitled to some immunity for his efforts to overturn the results of the 2020 election. So yes, I mean, I think the justices have appeared partisan in many respects, not just the lineup in many of these big cases where the justices divide based on the president that appointed them, but also in the substance of their decisions and their behavior off the court, you know, flying upside down flags or whatnot.

Yeah. So, you know, the last thing I wanted to ask you about before we wrap up is that, you know, a lot of Americans are really angry about the decisions that this court is handing down. Of course, there are also a lot of Americans who are quite happy about them. is handing down. Of course, there are also a lot of Americans who are quite happy about them. But just over history, there has been swings, right, from the left to right and back again on the court over time. And I do wonder, do you see this as one of those swings? Or do you think something else is happening here? I think this is part of a pretty long trajectory. You know, the Supreme Court has not had a majority of justices who were appointed by Democratic presidents since the 1970s. Republicans have controlled the court for a while, and they have basically perfected the process of selecting increasingly conservative and extreme nominees who are willing to do more and more to reshape American life. And I think for, honestly, many parts of our history, the Supreme Court has erred on the

side of the powerful and conservatism. You know, there was a brief period in the 1950s and 1960s, a period known as the Warren Court, named for the chief justice at the time, Earl Warren, when the court struck down segregation in schools or afforded rights to criminal defendants. But aside from that, I think most of the Supreme Court's history has been as a pretty conservative institution. All right. Leah, I want to thank you very much for this. This was really interesting and great. And it was such a pleasure to have you. Thanks for having me. All right, that is all for this week.

Front Burner was produced this week by Joytha Sengupta, Matt Mews, Allie Janes, Derek Vanderwyk, and Julia Israel. Sound design was by Matt Cameron and Sam McNulty. Music is by Joseph Chabison. Our senior producer is Elaine Chao. Our executive producer is Nick McCabe-Locos. And I'm Jamie Poisson. Thanks so much for listening

and we will talk to you next week.