President Joe Biden issued a rare prime-time threat to the Supreme Court during his State of the Union address on March 7, warning the justices that they could cause political backlash for their 2022 decision to overturn Roe v. Wade.
“With all due respect, justices, women are not without electoral or political power,” he said.
In doing so, the president amplified the mounting pressure on the Supreme Court, which seems to build each week as the election nears and the queue of cases related to former President Donald Trump gets longer.
The justices are taking up two major appeals related to President Trump, who is the presumptive GOP nominee and is leading President Biden in polling matchups, including in crucial battleground states.
President Trump’s former advisors are also facing multiple charges, raising the prospect that some may request the high court’s intervention, as former White House adviser Peter Navarro did on March 15. The court’s denial made Mr. Navarro the first Trump White House adviser to end up in prison.
“This is certainly a blockbuster year for the court,” Heritage Foundation Vice President John Malcolm told The Epoch Times.
‘High Stakes’
The combination of several Trump-related cases, the potential for landmark changes to legal precedent, the vigorous calls for reform, and the coming elections have made 2024 a year of high-impact decisions for the court.One decision has already affected the course of the 2024 presidential campaign.
In March, the justices rejected an effort that could have resulted in millions of President Trump’s supporters not having their preferred candidate on the ballot. During oral argument, Justice Amy Coney Barrett referenced the “very high stakes” surrounding the case, which has been described as the court’s most influential election-related matter since Bush v. Gore.
Its landmark opinion in Trump v. Anderson foreclosed the possibility that states like Colorado could, under their existing authority, remove federal candidates from ballots.
The majority opinion, however, has been criticized for lacking clarity around how Congress should act. The decision emphasized the role of Congress in enforcing the 14th Amendment, while the three liberal justices and Justice Barrett favored a more limited approach that overruled state authority over federal candidates for office.
President Trump’s presidential immunity appeal, scheduled for oral argument on April 25, could affect his Florida documents case and hush money trial, wherein he has requested a delay pending the U.S. Supreme Court’s decision on his immunity claims.
The stinging criticism that followed the court’s unanimous opinion in Trump v. Anderson indicates that no matter how united the justices are, they will continue to face heavy scrutiny—especially when it comes to President Trump.
President Trump’s appeal, like Mr. Navarro’s, questions the separation of powers as well as the authority of the legislative and judiciary branches in challenging the executive.
In Trump v. Anderson, the court avoided wading into the specifics of President Trump’s alleged wrongdoing on Jan. 6, 2021, and will likely try to do the same with his immunity appeal. But its decisions in two other cases might affect the indictment in President Trump’s federal election case.
A challenge brought by Jan. 6 defendants against the Department of Justice’s (DOJ’s) use of an Enron-era obstruction charge in prosecutions will be heard before the high court on April 16.
Beyond Trump
Besides President Trump’s cases, the court is considering several major cases in administrative law—including potentially overturning the decades-old Chevron doctrine that gives deference to agencies in construing vague language in statutes. A reversal would significantly roll back the power of the administrative state.
In February, it considered whether the DOJ legally restricted bump stocks. The case, Garland v. Cargill, was the second of three major gun-related cases announced for the term. Two—Cargill and Rahimi v. United States—could alter who owns guns and how they operate them. The third, NRA v. Vullo, could make it easier or more difficult for governments to pressure organizations such as those promoting gun rights.
The justices also heard arguments over the constitutionality of two sweeping social media laws from Texas and Florida that, combined with similar cases this term, could dramatically change the landscape of online expression.
In striking those laws, the justices could prevent future state legislation aimed at how social media platforms moderate users’ content and the transparency they provide for censoring certain posts. If laws succeed, social media platforms could see a patchwork of rules for moderating users’ content across the United States and enjoy less discretion in how they do so.
Court’s Image
With such contentious issues before the court, it seems inevitable that the justices’ decisions will upset large swaths of the American public. The justices could also be weighing how the way they phrase rulings will affect public opinion during such a high-stakes year.University of Michigan law professor Barbara McQuade previously told The Epoch Times that she imagined that with Trump v. Anderson, Chief Justice John Roberts felt pressure to “maintain the credibility of the court as an independent and apolitical institution.”
She said that “a 9–0 decision would provide the country with far more confidence than would a 6–3 decision.”
Justice Barrett emphasized the importance of unanimity and language while appearing to offer a glimpse into the justices’ concerns. Her concurring opinion in Trump v. Anderson seemed to criticize her colleagues for lacking restraint in their opinion. She had joined the liberal justices in favoring a more limited approach but didn’t sign onto their concurrence, which had some strong words for the majority.
“In my judgment, this is not the time to amplify disagreement with stridency,” she wrote. “The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”
The associate justice’s words stood apart in their focus on the court’s public image rather than the legal merits of a particular case. Former federal prosecutor Neama Rahmani told The Epoch Times that Justice Barrett’s statement was something that he had never seen in his more than 20 years of practice.
Justice Barrett emphasized the prevalence of unanimous decisions on the court while Justice Sotomayor underscored the importance of not assuming malintent from colleagues.
The rhetoric in Justice Sotomayor’s and her liberal colleagues’ concurrence, however, was less collegial. In it, the three justices accused the majority of attempting ”to insulate all alleged insurrectionists from future challenges to their holding federal office.”
Culmination of Pressure
Justice Jackson’s nomination was surrounded by talk of affirmative action when President Biden explicitly attributed her selection to her race and gender—both integral in identity politics debates during her confirmation.
Her nomination followed Justice Barrett’s—a sore spot for Democrats, who had just lost a liberal legend, former Justice Ruth Bader Ginsburg, and accused Republicans of hypocrisy after denying then-Judge Merrick Garland’s nomination to the bench before the 2016 presidential election.
Justice Barrett was also thought at the time to solidify a conservative majority that would make overturning Roe v. Wade—one of the most controversial decisions in recent U.S. history—even more likely. That turned out to be true as she joined the 6–3 decision in Dobbs v. Jackson Women’s Health.
A more recent poll from Marquette Law School showed the Supreme Court’s approval rating rising to 47 percent. The poll was conducted from March 18 to 28, after the Supreme Court released its opinion in Trump v. Anderson.
Avoiding Polarization
Harvard law professor Laurence Tribe has speculated that by attempting to portray the court as nonpartisan, justices do more damage.Carrie Severino, a former clerk for Justice Clarence Thomas, defended the court. “The court is still the most trusted branch of government, easily,” she told The Epoch Times.
“I think people’s trust in government is going down across the board,” Ms. Severino, who leads the Judicial Crisis Network, told The Epoch Times. “And it’s actually amazing that the approval rating of the court is what it is, when you consider the concerted campaign against the Supreme Court that has been going on even slightly before Dobbs, I think in anticipation of it.
“But from the left, the outrage that there’s a court that was putting the Constitution before liberal policy goals is really clear.”
The U.S. Marshals Service also reported that serious threats against federal judges more than doubled from 224 in fiscal year 2021 to 457 in fiscal 2023.
Calls for Reform
Politicians have added to and encouraged criticism of the court through investigations, public statements, and calls for reform. Even before Dobbs, then-Senate Minority Leader Chuck Schumer (D-N.Y.) followed a 2020 hearing about Louisiana’s abortion law by warning Justices Kavanaugh and Neil Gorsuch, “You have released the whirlwind and you will pay the price!”
The Supreme Court responded to criticism by producing an ethics code that was nonetheless attacked by Democrats for lacking an enforcement mechanism.
Ms. Severino told The Epoch Times: “The court has always considered high-pressure, high-stakes cases that reflect the most complex legal questions of the day. Never before, however, has the court been subjected to the unyielding partisan attacks from the far-left that it faces today.”
Scrutiny of the justices has come from multiple sources—politicians, interest groups, the media, and the public. Sen. Sheldon Whitehouse (D-R.I.) has proposed an 18-year term limit for judges to take part in the court’s appellate jurisdiction.
Mr. Tribe, who took part in President Biden’s commission on the Supreme Court, has called for court packing and told the Post, “You can unpack only by addition.”
The court’s decision in Trump v. Anderson allowed it to avoid responsibility—at least temporarily—for the outcome of the election. Rather than deciding whether President Trump engaged in an insurrection, it left that decision in the hands of Congress.
But in deferring to Congress, it’s unclear how much the majority will avoid blame for potential election-related chaos that occurs in the months following their decision.
The polarized political environment in Congress substantially lessens the possibility that it will pass any disqualification-related legislation for President Joe Biden to sign before he leaves office.
Senate Republican leadership has expressed confidence in the party’s 2024 prospects for that chamber. But if Democrats maintain their majority and retake the House of Representatives, they could turn the weeks before the inauguration into a pressure cooker steamier than its current state.
