Ups & downs at the Supreme Court

The United States Supreme Court has now gone into recess for the northern summer, so this week saw a flurry of decisions released, including one (which the justices deliberately left till last) that has made worldwide headlines. We’ve noted before the importance of the court for the fortunes of the second Trump administration, and therefore potentially of the future of humanity, so it’s worth trying to understand just what this week revealed about its workings.

There are two opposing blocs on the court. Three Democrat-appointed justices – Ketanji Jackson, Elena Kagan and Sonia Sotomayor – form a liberal group that can be counted on to rule against Donald Trump on just about any seriously contested issue. At the other extreme, Samuel Alito and Clarence Thomas are reliable supporters of the president whenever he has even a vaguely plausible case (and sometimes when he hasn’t).

That leaves four justices in the middle: very roughly from left to right, John Roberts, Amy Barrett, Neil Gorsuch and Brett Kavanaugh. All are conservatives, appointed by Republican presidents (Roberts by George Bush Jr, the rest by Trump), but not hardliners in the mode of Alito and Thomas. They determine the outcomes; if any two of them vote with the liberals, their view will prevail.

With that background, consider three cases decided this week. The first, Watson v. RNC, was a straightforward case about interpretation of election law. Mississippi, like many states (and Australia), allows postal votes that arrive within a set time after the election to be counted provided they are postmarked beforehand. The Republican Party, backed by the Trump administration, sued to invalidate votes that arrive after election day, based on the flimsiest of arguments.

Alito and Thomas agreed with them, and Gorsuch and Kavanaugh joined them, although Kavanaugh did not endorse all of Alito’s historical reasoning. But Roberts and Barrett went with the three liberals to form a majority to throw out the case. As Rick Hasen explains, it’s a mixed omen as far as election integrity goes:

The greatest significance of Watson is that a court majority (barely) rejected a bonkers reading of a federal statute on the basis of voter-fraud fantasies; had the court agreed with the RNC, it would have signaled that the court would avoid text, history, and precedent to further constrict voting. The scary part is that four justices were willing to do just that.

The other two cases raised constitutional questions. In Trump v. Slaughter the issue was Trump’s attempt to sack two members of the Federal Trade Commission in order to replace them with his supporters, even though the legislation establishing the FTC states that commissioners can only be removed for cause. In Australia, a case like that would be uncontroversial; we are used to the idea that parliament can provide for all sorts of government officers to be protected from summary dismissal.

But the US, with strict separation of powers, is different. The president, as head of the executive branch, is responsible for its activities and is immune to direct legislative interference: ever since the 1926 case of Myers v. US, it’s been held that that means the president must have the power to remove subordinate executive officers at will. In 1935, in Humphrey’s Executor v. US, an exception was carved out for the FTC and similar bodies, but in recent years this has looked increasingly shaky as it came under attack from the “unitary executive theory“.

So Slaughter basically came down to a straight liberal vs conservative contest. By a 6-3 majority the court overruled Humphrey’s Executor and gave Trump the power he claimed, although five of the six (Thomas being the exception) made a point of noting that this did not cover all legislatively-created agencies, since not all exercise executive powers. And Gorsuch filed a separate judgement in which he suggested that further measures might be necessary to rein in an over-powerful executive.

The last case was the big one: the fourteenth amendment citizenship case of Trump v. Barbara. It was more fractured than the others; the result was not a surprise, but it was noteworthy how close Trump came to winning. As Maanvi Singh puts it, “There is worry that the three conservative justices who dissented have given weight and legitimacy to fringe theories in legal scholarship that challenge the longstanding understanding of American citizenship.”

While the headline result was six to three, on the key constitutional claim the majority was only 5-4; Kavanaugh agreed with the ruling but would have grounded it in statute rather than the constitution, holding that although the president alone could not deny citizenship to the children of unlawful immigrants, Congress could. But Roberts, Barrett and the three liberals all stuck with the traditional and obvious interpretation of the amendment: that all who are born on American territory are citizens unless they are actually outside American jurisdiction (such as, for example, the children of foreign diplomats).

Thomas spent 91 pages, by far the longest of the opinions, trying to justify his disagreement with that interpretation – I’d recommend Ilya Somin’s explanation of why his argument doesn’t work. Gorsuch and Alito both concurred with Thomas, but also filed their own opinions, which showed their different priorities. Alito is more concerned with excluding unlawful immigrants; he adopts all the rhetoric of the far right on the subject. Gorsuch on the other hand is relatively untroubled about immigrants, lawful or not; his main concern is to exclude the children of temporary visitors, who have a home (or domicile) elsewhere.

The bottom line is that the court remains divided, politicised and unpredictable, and that there’s no sign of that changing. Its willingness to resist Trump and enforce the rule of law is by no means all that it could be, but it’s better than nothing.