Our Unbridled Supreme Court

At the conclusion of the current term of our Supreme Court, Representative Alexandria Ocasio-Cortez (aka “AOC”) announced that she intends to introduce articles of impeachment targeting the U.S. Supreme Court justices. Of course, this is political theatrics as it is inconceivable that House Speaker Johnson would ever allow any such proposal to reach the floor of the House; and even if he did AND it was adopted (which is also highly unlikely), it would never receive the 67 votes in the Senate required for conviction. So why would AOC, a very bright young lady who has quickly become a very effective legislator, embark on such a quixotic quest and why did she wait until now to express her displeasure with those members of the Court who have issued so many appalling decisions over the past few years?

The U.S. Constitution provides that judges appointed and confirmed pursuit to Article III shall serve as long as they display “good behavior” which has been taken to mean that they can only be removed for “bad behavior” as determined by Congress in an impeachment proceeding.  Accordingly, AOC’s announcement was met by complaints that judges shouldn’t be subjected to an impeachment proceeding simply because a majority of the members of the House of Representatives disagree with their decisions. Stated another way, “bad decisions” are not the equivalent of “bad behavior.” Moreover, the Constitution provides judges immunity from liability for the decision which they render; nor does it even allow the  Congress to reduce the salaries of federal judges once they have been appointed.

This is not the first time that the Supreme Court (which now has an approval rating of roughly 40%) has fallen out of grace with the American public. This happened in the 1930s after the Court had declared unconstitutional a number of programs that FDR had instituted to work our nation out of the Great Depression. Rather than threaten to impeach the members of the Court, FDR proposed to increase the number of judges on the Court so as to reduce those who had been blocking his initiatives to a minority position. Although this may have been a viable plan, he didn’t have to implement it as the justices opposing his programs chose to reconsider their view of FDR’s programs in what has been labeled “The switch in time that saved nine.” With the House of Representatives controlled by Republicans and the Democrats lacking a sixty-vote majority in the Senate, FDR’s solution to an out-of-control Supreme Court is not currently available.

The current problems created by the Supreme Court are not limited to the quality of its decisions. The Court has been resisting adopting an enforceable code of conduct that applies to its justices. This has led to a host of ethical issues. For example, Justice Thomas has been regularly receiving sizable gratuities from Harlan Crow for which the Court has been unwilling to even admonish him. In addition, both Justices Thomas and Alito have been unwilling to recuse themselves from deciding cases in which they appear to have conflicts of interests (offenses which require recusal of lower federal court judges). In fact, Chief Justice Roberts has even refused to discuss ethical issues bedeviling the Court with the Senate.

One might also ask why has the Court’s majority recently chosen to act in such a brazen manner. The answer likely lies in the refusal of Senate Republicans to vote to convict former President Trump in his second impeachment proceeding notwithstanding their immediate condemnation of his having incited the January 6th attack on the Capitol. That action has understandably led the Court’s “conservative” (for want of a better description) justices to conclude that the impeachment process has effectively been rendered inoperable. Accordingly, they now believe they are impervious to accountability and free to act as they please.

That raises the question as to whether the Court can render a decision that is so offensive that it could constitute an impeachable offense. The answer is “Yes”, however, as Trump’s second impeachment trial reveals, it may not be possible to muster the 67 votes in the Senate to remove a justice from the Court. There is indeed a qualitative difference between “bad decisions” and those that would be considered “bad behavior” under the Constitution. As more fully discussed below, the ruling of the Court’s majority in Trump v. United States that our presidents enjoy lifetime immunity from criminal prosecution for a wide range of “official acts” goes far beyond simply being an overwhelmingly unpopular decision. That ruling stands in direct conflict with the very ideological foundation of our nation that ours’ is a government of laws and that no man (not even our presidents) is above the law.

The distinction between unpopular decisions and decisions in violation of Constitution can be seen in a comparison of two of the Court’s decisions rendered during the final week of its current term: Trump v. United States and its single decision covering both Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.

The Court’s decision in the Loper/Relentless cases overturned a 40-year old legal doctrine relating to administrative agencies commonly referred to as the “Chevron Doctrine.” That doctrine calls for the decisions of administrative agencies (more fully described below) to be accorded due deference when being reviewed by a federal court. Stated in lay terms, a federal district court may not reject a determination of an administrative agency unless it finds the ruling or regulation being challenged was “arbitrary and capricious”, a relatively high standard. In fact, the Court’s decision deciding the Loper/Relentless cases held that decisions made by administrative agencies need not even be taken into consideration when reviewed by a federal court.  This is a decision of far-reaching importance in the way our government has operated during the past 90 years.

Our free enterprise system, while catapulting our nation into an industrial powerhouse, also marched our economy into The Great Depression.  To address the problems created by businesses being free of government controls the administration of Franklin Roosevelt caused the Congress to establish literally dozens of independent administrative agencies within the federal government to regulate a wide variety of business practices deemed detrimental to the interests of the American public. These administrative agencies included such well-known regulatory bodies as the Securities and Exchange Commission (or SEC), the Federal Trade Commission (or FTC), the Federal Housing Administration (or FHA), the Federal Communication’s Commission (or FCC), the Federal Deposit Insurance Corporation (or FDIC) and the National Labor Relations Board (or NLRB). Each of the administrative agencies was authorized to issue regulations to govern the operations of the businesses they were formed to regulate and to enforce those regulations. Enforcement was generally accomplished through the creation of administrative tribunals operating within each agency. To carry out these functions each agency had to develop expertise regarding the operations of the businesses they were empowered to regulate.

Understandably, business entities opposed to any and all efforts to regulate their activities. That’s because the rules published by those agencies prohibited (or at least limited) a variety of ways in which they had been conducting their businesses and imposed burdens upon them which reduced their profitability. In response to a rising chorus of complaints voiced by the regulated enterprises the Congress in 1946 enacted the Administrative Procedure Act (APA) which set down a series of procedural rules to govern the actions of the administrative agencies. This protected regulated enterprises from “arbitrary and capricious” administrative actions. Still, there was unhappiness over what has become known as “the administrative state.”

The Republican Party which had traditionally served as the “champions” for business entities embarked on a continuing effort to reduce business regulation. Each of the Republican presidents starting with Richard Nixon made campaign promises to reduce regulations that were claimed to be suffocating American businesses. President Trump had even promised to eliminate two administrative regulations for every new one that was issued.

When the Republicans finally were able to appoint a majority of the justices of the Supreme Court during the administration of George W. Bush, the Court began attacking the power of the administrative agencies. In 2000, the Court ruled that any delegation of power by the Congress to an administrative agency which would allowed the agency to issue regulations having a major impact must be expressly and clearly delineated in an act of the Congress. That requirement (commonly referred to as “the Major Issues Doctrine”) has been employed to strike significant regulations issued by a number of administrative agencies. This line of attack on the power of administrative agencies has proven to be quite effective since in many cases Congress did not understand or even contemplate the types of regulations the administrative agencies would need to issue in order to carry out their assigned missions.

The Court’s overturning its Chevron doctrine was just another effort in the Republican Party’s prolonged campaign to limit the power of administrative agencies. The mere promulgation of a regulation, however, will never completely eradicate actions taken by business enterprises detrimental to the public. Business enterprises that fail or refuse to comply must be prosecuted and that invariably is done in trials that take place in tribunals maintained and operated by the administrative agencies. The Chevron doctrine required federal courts that review the decisions of administrative tribunals to accord deference to the agencies’ findings because of their greater understanding of the operations of the businesses they regulate.

The Supreme Court’s decision in the Loper/Relentless litigations effectively rules that no weight need be attributed to the findings of the administrative tribunals and frees federal judges (many with little or no understanding of the issues involved) to exercise their own discretion in ruling. A good example of what this leads to is the recent decision of U.S. District Court Judge Matthew Kacsmaryk that the FDA’s efforts underlying its approval of Mifepristone (the abortion pill) were flawed even though Mifepristone had been successfully used by tens of millions of women over the preceding 20 years with few or no adverse side effects.

Although the implications of the Court’s decision in the Loper/Relentless litigations are both widespread and affront to common sense, there is no legal or Constitutional provision that makes this extremely bad decision an impeachable act. Yes, it overturns a longstanding judicial precedent, it removes expertise from the decision-making process and it wreaks of political partisanship, but those are simply violations of norms that we expect our courts will honor.

The decision of the six Republican-appointed justices in Trump v. United States, however, goes well beyond endangering the public, ignoring a long-established judicial precedents and political partisanship although each of these sins are amply represented in this decision. More importantly, the impact of this decision will greatly alter the relationship between the three branches of the federal government and will remove almost all legal restraints on the actions of U.S. presidents and afford them with a latitude of action of which even Vladimir Putin would be envious.  At the same time, it will place the well-being of all U.S. residents in the hands of their presidents and the only restrictions on their actions will essentially be those that are self-imposed. Although I am confident that the justices who subscribed to this abhorrent decision might believe that it is not that far reaching, I will explain below how it could even put their own lives in danger.

Specifically the Court’s decision held that a sitting president enjoys lifetime immunity from criminal prosecution for the overwhelming majority of his/her “official actions.” It does not provide immunity to presidents for their acts that are not deemed to be “official actions” such as writing personal checks to satisfy a personal obligation. The Court’s opinion, however, goes on to define “unofficial actions” quite narrowly. Conversely, those actions of a president specifically authorized in the Constitution (like the power to pardon violations of federal law) enjoy unqualified immunity and are broadly defined.

  In the middle of this spectrum are “official actions” assigned to presidents by an Act of Congress. This category probably covers in excess of 90% of all actions taken by U.S. presidents, with the primary exception being those taken to gain re-election which are characterized as “unofficial actions.” With respect to this class of “official actions” the Court (using its most eloquent legalese) ruled that they are to treated as being immune from criminal prosecution “unless the prosecutor can show that applying a criminal prohibition to that act would pose no danger of intrusion on the authority and functions of the Executive Branch.” In layman’s terms, the vast majority of a president’s actions authorized by the Congress will be deemed immune from criminal prosecution. To appreciate just how radical this decision is you need only know that during the 235 years since the Constitution was ratified, the federal judiciary has deemed that only the very few presidential actions expressly authorized by the Constitution are immune from criminal prosecution.

  The Court’s opinion, however, goes even further. It also provides that a president’s “official actions” cannot be used as evidence in determining the president’s state of mind or intentions while taking actions which do not rise to the level of an “official action.” For example, Trump’s speech at the rally at the Ellipse prior to the January 6th attack on the Capitol would not likely be considered an “official action.” Yet, in order to prosecute him the Special Counsel has to prove that Trump’s speech was intended to incite his supporters to stop the Congress from confirming President Biden’s election. Under this ruling, in determining whether Trump knew he was lying when he told his supporters that the election had been stolen, a jury would not be allowed to consider conversations between Trump and his advisers in which Trump was told that the election was not tainted. Not even Trump’s attorneys when arguing this case before the Court had the temerity to suggest such a far-reaching ruling.

Now, back to the Constitutional violations in the Court’s decision. The role of the judiciary as set forth in the Constitution is to decide “cases and controversies” brought before it.  In this case, however, the opinion of the majority neglected to do even that. It was asked by former President Trump to determine whether he is immune from criminal prosecution asserted against him in the indictment obtained by Special Counsel Jack Smith. That indictment charged Trump for his various efforts during the final two and a half months of his presidency aimed at overturning the results of the 2020 presidential election. The majority’s decision, however, set that issue aside and proceeded to establish a broad doctrine of presidential immunity that would govern this and all future criminal prosecutions of those who have served as our nation’s president. In effect, the Court acted in the role of a legislature, a power which the Constitution specifically grants to the Congress and not the judiciary. Thus, the Court’s decision is in direct conflict with the Constitution’s division of responsibilities among the three branches of the federal government.

Equally abusive of its powers was its recognition of a broad doctrine of presidential immunity, the very thing that prompted the nation’s founders to declare their independence from England, a country ruled by a monarch with absolute powers. A doctrine of presidential immunity also places presidents over the laws of the land, rather than subject to those laws as envisioned in the Constitution. It should be well-understood that a doctrine of presidential immunity was not omitted from our Constitution by accident or oversight. The nation’s founders were adamant that no man would be absolved from complying with the laws of the land. Not only is this decision in direct conflict with the Constitution, it is in conflict with the justices own purported embrace of “originalism” (their bogus doctrine requiring them to ascertain the intentions of the nation’s founders in rendering their decisions).

The ostensible rationale underlying their decision is that, without a doctrine of presidential immunity, presidents might be reticent to take necessary actions out of fear that they would be criminally prosecuted after they leave office. Although this is a possibility, that possibility has never previously arisen in the 235 years since its Constitution was ratified. Indeed, throughout that period presidents have displayed respect for their predecessors even though they may have harbored strong differences of opinions.  Just as Donald Trump caused his supporters to attack the Capitol by telling them the “Big Lie” that the election had been stolen, he got his supporters on the Court to create a doctrine of presidential immunity by insisting that he was being wrongly prosecuted by his successor. The fact that the Court would accord any credibility to Trump’s rationale is difficult to accept since Trump had already been convicted in the one case that he had been unable to prevent from going to trial. Moreover, that was a case tried in a state  (as opposed to a federal) court by a locally elected prosecutor (as opposed to a presidential appointee).

The simple fact is that arming a president with immunity poses a far greater danger than leaving a former president open to criminal charges by his/her successor. This would be especially true if Donald Trump were re-elected as our nation’s next president.  Trump has openly stated that he plans to act in an autocratic mode from day one and to take vengeance on all of those who sought to do him harm including the prosecutors, judges and witnesses who were  or are involved in the four criminal cases now pending against him. He has also asserted that he would use his powers as president of the most powerful nation on earth to attack numerous people he has already branded as traitors and terrorists, including former Chairman of the Joint Chief of Staff, General Mark Milley and Liz Cheney, a staunch conservative Republican who co-chaired the House Select Committee investigating the January 6th insurrection. Even more frightening are the plans laid out for him in the Heritage Foundation’s Project 2025 which has been drafted by a number of his close advisors.

Although it probably did not occur to the six justices that subscribed to this abominable decision, they too could fall prey to the terror of an unrestrained president. The judicial immunity which they have just granted also applies to President Biden who has vowed to do all in his power to preserve our democratic system of government. In pursuit of that quest he could conceivably direct the Secretary of Homeland Security to have members of the Secret Service assassinate Trump and each of the six justices who have tried to extricate him from criminal prosecution through this decision. Biden’s actions in doing so would constitute “official actions” under the terms of the Court’s decision because it would be a communication with a senior member of the Executive Branch. It would also be immune from prosecution because, in the language of the Court’s opinion, a “criminal prosecution of him could intrude on the authority and functions of the Executive Branch” to protect our nation from enemies, both foreign and domestic.

  Then, just as Trump has promised to pardon those who attacked the Capitol on January 6th, Biden could pardon all of those who participated in the assassinations. According to the Court’s decision, those pardons would be entitled to unqualified immunity from prosecution. Having done that, Biden could nominate six replacement justices which our current Democratic-controlled Senate could confirm. Those justices, in turn,  could reverse this Court’s abominable decision which Biden has decried. In this way Biden could dispose of the threats to our nation posed by Trump, the six justices that have become his protectors and their decision which has distorted the Constitutional framework of our government—a veritable trifecta.

At the outset of this article, I raised the question of why AOC has embarked on a quest to impeach the justices of the U.S. Supreme Court who subscribed to these two horrendous decisions? The answer is because she wants to call attention to the frightening prospect that the Court’s Republican-appointed justices have come to the conclusion that they are free of all restraints on their actions.  It may have also occurred to her that the only near-term way to prevent the damage those justices will likely cause is for President Biden to take advantage of the course of action suggested herein made possible by the Court’s decision in Trump v. United States.