Open Thread: Last Batch of SCOTUS Decisions

[NB: check the byline, thanks. /~Rayne]

The last batch of decisions will drop shortly — I think. Last week the Supreme Court didn’t deliver all of the remaining decisions it had on its plate and pushed them into a new month.

I hope these outstanding cases will be decided today:

NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC (these are both about social media and may come as one or two decisions)

Corner Post, Inc. v. Board of Governors Of The Federal Rsrv. Sys.

Trump v. United States

Decisions released today follow in an update at the bottom of this post.

~ ~ ~

First decision: Corner Post, Inc. v. Board of Governors Of The Federal Rsrv. Sys.

Justice Barrett wrote the 6-3 decision; Justice Brown Jackson wrote the dissent joined by Sotomayor and Kagan.

This one could cause a lot of problems forcing reassessment of past rules and decisions by the Fed Reserve’s Board based on the dates used — the date an injury occurred due to a new Fed rule versus the date the new rule was first in force.

Second decision: NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC

Justice Kagan wrote the unanimous decision on these consolidated cases, though there are concurrences:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined in full, and in
which JACKSON, J., joined as to Parts I, II and III–A. BARRETT, J., filed a
concurring opinion. JACKSON, J., filed an opinion concurring in part and
concurring in the judgment. THOMAS, J., filed an opinion concurring in
the judgment. ALITO, J., filed an opinion concurring in the judgment, in
which THOMAS and GORSUCH, JJ., joined.

Whew. I don’t see the word “dissent” in this, do you? It’s another smackdown of the Fifth Circuit as well.

Third decision: Trump v. United States

Justice Roberts wrote the 6-3 court decision; Justice Sotomayor wrote a dissent joined by Kagan and Brown Jackson. Justice Brown Jackson also wrote a dissent.

From SCOTUSBlog’s thread:

The court holds that a former president has absolute immunity for his core constitutional powers.

Former presidents are also entitled to at least a presumption of immunity for their official acts.

There is no immunity, the court holds, for unofficial acts.

The core constitutional powers are things like appointing ambassadors and foreign governments.

This is not all of the decision – Roberts was still reading his decision at 10:37 a.m. ET. It looks like this is being handed back to lower courts because of the lack of distinction between official and unofficial acts. It also looks like the rightwing of SCOTUS has extended immunity to Trump for his discussions with Department of Justice, which I assume means if he made any false statements to FBI or other DOJ personnel, those charges will be dropped.

~ ~ ~

This is an open thread. Any further updates related to these cases will appear at the bottom of this post.

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42 replies
  1. harpie says:

    https://bsky.app/profile/chrisgeidner.bsky.social/post/3kw7zziuljv2e
    Jul 1, 2024 at 9:58 AM

    It is a two-box day at SCOTUS, so we are expecting up to four decisions. There are four cases remaining, including Trump immunity and the APA accrual rule case. The NetChoice cases out of Florida and Texas could come as one or two decisions. Here we go.

    According to Steve Vladeck’s chart, these are the decisions that remain: https://www.stevevladeck.com/p/87-and-then-there-were-sixish

    22-1008 Corner Post v. Bd. Of Governors
    22-277 Moody v. NetChoice, LLC
    22-555 NetChoice, LLC v. Paxton
    23-939 Trump v. United States

      • harpie says:

        This is what GEIDNER wrote about Corner Post:

        […] In other words, if Corner Post wins on Monday and after Loper Bright, we could have a situation — depending on the specifics of the Corner Post ruling where any newly formed company could challenge any rule that it is affected by, no matter how long the rule has been in place, and the Roberts court would get to decide, under a Chevron-free analysis, if it wants to allow the rule.

        Forget the imperial presidency. John Roberts wants an imperial SCOTUS. Justice Kagan lays it out: “The majority disdains restraint, and grasps for power.” https://www.lawdork.com/p/forget-the-imperial-presidency-john CHRIS GEIDNER JUN 28, 2024

      • harpie says:

        https://bsky.app/profile/chrisgeidner.bsky.social/post/3kwa2gtaa3k2v
        Jul 1, 2024 at 10:06 AM

        Jackson urges Congress to “address this absurdity and forestall the coming chaos” in dissent.

        Jackson is reading from her dissent — meaning all three Democratic appointees have read from their dissent in one of the big administrative law cases decided over the past week, a clear attempt to highlight the importance of these decisions.
        (Not that SCOTUS lets you hear.)

      • harpie says:

        via Kate Starbird:
        Jameel Jaffer thinks this decision is “good”:
        https://bsky.app/profile/jameeljaffer.bsky.social/post/3kwa6bat6ik2k
        Jul 1, 2024 at 11:14 AM

        I was prepared for disaster, but the Netchoice decision is good. It rejects the broadest arguments made by the states and the platforms. It recognizes that platforms are ‘editors’ but dismisses the argument that regulation in this sphere is categorically unconstitutional. [link]

    • harpie says:

      https://bsky.app/profile/chrisgeidner.bsky.social/post/3kwa3w3been2b
      Jul 1, 2024 at 10:32 AM

      BREAKING: The Supreme Court holds, 6-3, that a former president is absolutely immune from prosecution for actions within their “conclusive and preclusive” authority and presumptively immune from prosecution for all official acts.

      More to come at Law Dork [link]

      Roberts has the opinion for the court.
      Thomas concurs.
      Barrett concurs in part.

      Sotomayor dissents for the Democratic appointees.
      Jackson also writes her own dissent. [link]

        • Rayne says:

          I like how we published nearly identical comments at the same time. I imagine we’re both frantic in tandem remotely.

        • harpie says:

          haha! good description…and it feels good not to be alone!

          we’re both frantic in tandem remotely

      • harpie says:

        https://bsky.app/profile/chrisgeidner.bsky.social/post/3kwa4pjiwot2d
        Jul 1, 2024 at 10:46 AM

        Sotomayor is reading from her dissent. You cannot hear it because, despite having the capacity to do so, the Supreme Court does not livestream opinion announcements.

        Thomas concurs to question the constitutionality of the special counsel’s appointment.

        Barrett concurs in part because she does not join a part of the court’s opinion not allowing evidence of any official acts even to be admitted as evidence.

        From Sotomayor’s dissent: [screenshot]

        Jul 1, 2024 at 11:09 AM // That’s that. // Orders at 9:30a Tuesday.

        • harpie says:

          The screenshot of Sotomayor’s Dissent begins on [pdf70/119]

          […] 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. […]

  2. earlofhuntingdon says:

    And since there are no rules about this, there’s no guarantee SCOTUS will issue its decision on Trump’s immunity case, instead of holding it until next term.

  3. Rayne says:

    I feel sick to my stomach.

    I hope the Democratic Senate caucus is and has been discussing what to do about the Supreme Court. This is the insurrection continuing but through the judicial branch.

  4. earlofhuntingdon says:

    Partial win for Trump on immunity. Another 6-3 decision. “Presumption of immunity” for official acts. None for personal acts. The Court weighs in to protect Trump. Case would have to go to district court for further proceedings.

    Chutkan’s follow-up hearings will be most interesting. She is likely to go into excruciating detail.

    Per MSNBC: How to determine whether presumption survives: Court excludes from trial testimony or private records from president himself. Makes prosecutor work with hands tied behind his back. Bullshit.

  5. earlofhuntingdon says:

    The Court’s immunity decision is a significant but not total win for Trump. The majority buried the hard parts in the details, presumably to hide how hard they’ve just made it to prosecute a president. Roberts claims to base his decision, in part, on separation of powers. Note to Roberts: federal prosecutors work for the same branch as the president.

  6. Fiendish Thingy says:

    The big question in my mind:

    Can Trump appeal every ruling by Chutkan on official/unofficial acts all the way to SCOTUS, or must he wait until convicted to appeal his convictions based on immunity for official acts?

    • earlofhuntingdon says:

      Chutkan’s decisions are likely to be appealable to the Court. The Court has substantially added to the cost, time and process for resolving the cases against Trump.

    • earlofhuntingdon says:

      The Court has invented out of whole cloth rules and a process that heavily protect Trump. The exclusion of evidence at trial derived from the president himself is a big new hurdle for the prosecution.

      The decision carves out a huge exception to the rule of law that only the president – and all former presidents – benefit from.

      If Fascism comes to America, it will come wrapped in a flag, a prayer book, and Supreme Court decisions. This Court subsidizes the radical right’s demand for “Bold and Fearless Action.” AKA – Fascism.

  7. FL Resister says:

    This stacked Supreme Court is doing a lot of damage to basic public rights, including voting rights, women’s health and reproductive freedom, clean air and water, safe cars and buildings, and ability to prosecute corrupt politicians who can now legally take bribes and commit crimes while in office.

  8. harpie says:

    Rayne: It also looks like the rightwing of SCOTUS has extended immunity to Trump for his discussions with Department of Justice, which I assume means if he made any false statements to FBI or other DOJ personnel, those charges will be dropped.

    Like when he planned to make Jeffrey Clark the AG?

    1/3/21

    80. Also on the morning of January 3, Co-Conspirator 4 [CLARK] met with the Defendant [TRUMP] at the White House-again without having informed senior Justice Department officials-and accepted the Defendant’s offer that he become Acting Attorney General.

    • David Brooks says:

      NYT blog makes exactly that point: trying to install Clark was a part of the government’s case, but it is an official act. The act needs to be within his “conclusive and preclusive constitutional authority”, but I doubt that leaves enough room for the prosecution.

      • earlofhuntingdon says:

        It’s clearly an official act. The issue is whether the prosecution could rebut the presumption of immunity, restricted as it is from using evidence of official acts at trial.

        Buried in the details, the Court took a scalpel to Jack Smith’s cases, precisely shaping its decision to help Trump. Chutkan, for example, cannot consider evidence of the president’s motive(s). So legal attacks of hypothetical pardons or appointments of ambassadors cannot consider illegal motivations. The pardon and appointment would stand, even if the president charged $2 million for each.

        Roberts claims its decision is narrower than the broad immunity that Trump demanded. But it gave him much of what he – and the Court – wanted. The Court is not just protecting Trump, it is relitigating a hypothetical prosecution of Richard Nixon.

  9. Konny_2022 says:

    OT yet related b/c triggered by earlofhuntington above at https://www.emptywheel.net/2024/07/01/open-thread-last-batch-of-scotus-decisions/#comment-1057679:

    I followed the link to Rawstory and from there to “Truth Social” — and was surprised that I could see Trump’s original message. I’m not on any social media whatsoever, but once in a while I try to read some. All the time “Truth Social” has been existing, I was denied access from my foreign internet account. Now I’m even invited to create an account on TS.

    Whatever that’s supposed to mean for the remainder of the election campaign.

  10. earlofhuntingdon says:

    Btw, Katy Tur’s moderation of MSNBC’s coverage of the immunity case is as bad as CNN’s moderation of the debate.

  11. David Brooks says:

    As scotusblog points out the phrase “conclusive and preclusive constitutional authority” seems to extend only to: ambassadors, foreign policy, and I’d add the Take Care clause. Is the Supreme Court dumping originalism all of a sudden?

    • Attygmgm says:

      As the court keeps establishing, originalism is abandoned whenever it gets in the way of the desired result. So, of course now it’s the “structure,” not the text.

      KBJ’s dissent provides a competing theory for accountability that would make a former president fully accountable but provide more defenses due to having been President.

      The biggest blow today seems to me to be to the norm of an independent DOJ.

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