News analysis: U.S. Supreme Court continues to undermine its legitimacy

By William H. Freivogel

In the U.S. Supreme Court term just concluded, Chief Justice John G. Roberts Jr. wrote landmark opinions that may further undermine the legitimacy of the court that carries his name in the history books.

The decision recognizing broad immunity for former President Donald Trump shocked many legal commentators because it granted Trump such broad immunity that the decision would seem to have protected Richard M, Nixon from the Watergate crimes for which he needed a pardon. And it explicitly protects Trump’s pressuring of Justice Department officials to support his attempt to overturn the 2020 election he lost to President Joe Biden.

In another case, Roberts buried a long-standing, much-cited precedent by overruling the 1984 Chevron decision that had required courts to defer to the expertise of regulatory agencies when there was ambiguity in the law. In an increasingly complicated and technical world, Roberts left it up to judges to sort out the complicated questions about the environment, health and safety, even though the justices have often shown they are lost among the intricacies of modern technology. 

For example, a few days before the court overruled Chevron, Justice Neil M. Gorsuch embarrassed the court in a ruling against the EPA ozone rules by confusing nitrous oxide – “laughing gas” – with nitrogen oxide, an air pollutant. Gorsuch is the son of the Reagan-era EPA director forced out for mishandling toxic waste sites such as Missouri’s dioxin contamination.

The emergence of a more moderate middle – especially the moderating views of Justice Amy Coney Barrett – may soften the hard-right conservative image of the court. But those more moderate decisions had fleeting significance because they didn’t have deep constitutional roots. 

The Biden administration’s win over Missouri and the Gateway Pundit in an internet free speech case decisively rebuked the extremely conservative 5th U.S. Circuit Court of Appeals. And the court’s refusal to ban the abortion medication mifepristone soundly rejected the extreme argument of Erin M. Hawley, the wife of Sen. Josh Hawley, R-Mo. But both decisions were based on the technicalities of legal standing and don’t foreclose further challenges to the abortion drug or social media moderation of false or dangerous posts about immunizations and false election claims.

The legitimacy of the U.S. Supreme Court is more important to Roberts than anyone else on the planet. He has been chief justice for almost two decades and, at 69, could be chief for two more.

Even though Roberts has taken actions and made statements to shore up trust in the court as an apolitical caller of balls and strikes, his big decisions this term appeared to undermine that effort. 

The Roberts court is viewed today as the most conservative since the Great Depression and the least respected among the American people, according Gallup.

Upending precedents

One reason it has lost legitimacy is the willingness of its Republican-appointed judges to knock down or dodge established precedents to achieve conservative results on abortion, affirmative action, guns, health and safety regulations, voting rights and campaign finance.

Roberts tried in 2022 to keep the conservative majority from overturning Roe by proposing in Dobbs to preserve a limited constitutional right. But even with all the power and influence of the chief justice, he failed.

The justices in the Dobbs 5-justice majority did not seem to foresee the consequences of ending reliance on 49 years of law compiled after Roe v. Wade in 1973.

Some of the justices in that Dobbs majority seemed to genuinely believe that they were removing the issue from the Supreme Court docket and sending it back to the states. They didn’t realize that two years later they would face cases like the one this term from Idaho about whether hospitals should try to stabilize the health of a woman facing a dangerous pregnancy or fly her out of state. The court decided that, for the time being, the Idaho hospitals should care for the women instead of putting them on helicopters as they had been to comply with Idaho’s anti-abortion law.

There seems to have been little realization among the conservative majority in Dobbs that doctors in red states banning abortion would soon be faced with deciding whether a pregnant woman had a complication serious enough to threaten her life. Or deciding whether to withdraw the FDA approval of mifepristone for medicated abortions early in pregnancy. The court this term turned down a challenge to medicated abortions filed by Hawley on behalf of anti-abortion doctors. The court ruled that the doctors had not been injured by the availability of the drug and therefore didn’t have standing to sue. But the court left for another day the regulatory issues about the FDA’s approval of the drug that accounts for two-thirds of abortions.

Roberts claims immunity decision is narrow

Roberts seemed genuinely taken aback by the tone of the vociferous dissents from Justices Sonia Sotomayor and Ketanji Brown Jackson to his landmark decision extending broad immunity from prosecution to Trump. Sotomayor, instead of concluding with the traditional language about dissenting “respectfully,” wrote instead, “With fear for our democracy, I dissent.”

Roberts accused the dissenters of “fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law.’”

He suggested his opinion was narrower than the dissents claimed. The separation of powers established by the Constitution requires the court to protect the president’s ability to forcefully execute his office without fear of future prosecution, he said. The president isn’t above the law, but he is the only person who is his own branch of government, Roberts noted.

He said the dissents had “a chilling tone of doom that is wholly disproportionate to what the Court actually does today —conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine…whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.”

Roberts did leave the door open to prosecutors presenting evidence in the lower court to show that Trump shouldn’t have immunity for organizing slates of fake electors, his pressure campaign on then Vice President Mike Pence to accept the slates and his tweets and speech related to the Jan. 6, 2021 attack on the Capitol.

But it is the absolute immunity that Roberts extended to Trump’s discussions with the Justice Department that brought much of the criticism. Trump badgered the Justice Department to take his side on the 2020 election even though it had found no evidence of election irregularities.

By ruling that prosecutors could not introduce evidence of the president’s motive or even of the illegality of the president’s actions, the Roberts’ opinion opened itself to an array of damaging hypotheticals and historical comparisons.

The president could order Seal Team 6 to kill a political opponent. The president could orchestrate a coup. Nixon’s orchestration of the Watergate coverup would not have been a crime. Ordering the Watergate burglary might not have been a crime.

Even though Roberts cited favorably the 1974 Supreme Court decision ordering Nixon to turn over the Watergate related tapes of Oval Office conversations, would that decision have even arisen if prosecutors were barred from seeking and using evidence of a president’s conversations to establish motive? Would Nixon have been forced from office?

One of the six conservatives in the majority – Justice Barrett – disagreed with the portion of Roberts’ decision that prevents prosecutors from introducing evidence related to Trump’s official acts as context for Jan. 6 actions that may not have immunity – such as assembling fake slates of electors. She wrote that the Constitution did not require “blinding” the trial court by blocking evidence of crimes by a president.

If Roberts had taken Barrett’s lead, he could have achieved a narrower majority opinion that would have attracted less criticism – just the kind of more limited decision he has often urged.

The strong public reaction to the Trump decision is partly fueled by the involvement of the wives conservative Justices Samel Alito Jr. and Clarence Thomas in the events of Jan. 6, with Alito’s wife flying a flag associated with the attack and Thomas’ wife contacting the White House in support of Trump’s efforts. Had Alito and Thomas recused themselves, Barrett’s more moderate position might have had a 4-3 majority.

Many liberal commentators accused the court of favoring Trump for partisan political reasons. But Roberts wrote that he was writing for all times and that the court’s opinion “applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”

Georgetown law professor Irv Gornstein, director of its Supreme Court Institute, told the Los Angeles Times.

“If you think that tit-for-tat prosecution of ex-presidents poses a greater risk to the presidency and democracy than Trump, you probably think that presumptive immunity for all official acts makes sense. But if you think that Trump is the greater threat, as many Americans almost certainly do, you probably think the court cares more about Trump and his reelection prospects than it does about democracy and the rule of law.”

Some conservatives also criticized Roberts’ opinion for failing to correctly apply the conservative majority’s “originalist” approach to constitutional interpretation – that the Constitution should be interpreted the way it was understood by the Framers. The critics pointed out that the Constitution does not include the word immunity and that the Framers were rebelling from the trappings of a monarchy that included sovereign immunity.

The Roberts opinion could offer Trump more protection than the Trump could have given himself with a pardon if he were elected president. Presidents can’t pardon in state prosecutions, such as the ones in Georgia and New York. But Trump’s new armor of immunity, fitted for him by the chief justice, applies in state courts as well as federal ones.

Conservatives in the middle

Barrett is increasingly emerging as the most moderate of the conservatives who sometimes join Roberts and the Democratically appointed justices to make a majority. Stephen I. Vladeck, a law professor at Georgetown University, wrote in the New York Times that Barrett had found “her literal and figurative voice — and has easily become the most interesting justice.”

 Trump’s other two appointees, Brett Kavanaugh and Gorsuch, also occasionally cross over.  Justices Alito and Thomas, whose acceptance of lavish gifts have raised ethical questions, almost never make common cause with the Democratically appointed justices.

The more moderate middle emerged most often in cases appealed from the conservative 5th Circuit, headquartered in Texas, which is to the right of the conservatives on the Supreme Court.

That was true in two decisions protecting the prerogatives of online platforms to make editorial decisions removing false or dangerous posts from their social media platforms. The court turned down the attempt by Missouri, Louisiana and far-right commentators such as the Gateway Pundit to wrap their posts in First Amendment protection because of claimed Biden administration coercion forcing the platforms to remove conservative posts.

Last month, the court also overturned lower court decisions involving Florida and Texas laws restricting social media moderation. The court said that the 5th Circuit and another appeals court had not properly protected the “editorial discretion” of the social media companies. Barrett, Roberts and Kavanaugh joined the liberals in that decision.

The rejection of 5th Circuit decisions may not mean the court is as moderate as it sometimes appears, Pamela Karlan, a Stanford law professor, told the New York Times. The“Fifth Circuit is making the Supreme Court seem more moderate than it is,” she said.

As a whole, the more moderate conservatives joined conservative decisions that will have a lasting impact – such as Trump v. U.S. and decision overturning Chevron. The decisions where they joined the liberals have a fleeting shelf life.

William H. Freivogel is a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar and covered the Supreme Court. He is the publisher of Gateway Journalism Review.