The cynicism of the Supreme Court: Helping Trump kill the American experiment

A guideline to explain SCOTUS’ end-of-term decisions

Published June 30, 2024 5:46AM (EDT)

Donald Trump | Supreme Court of the United States (Photo illustration by Salon/Getty Images)
Donald Trump | Supreme Court of the United States (Photo illustration by Salon/Getty Images)

Friday’s most significant Supreme Court decisions, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, fit within a guideline that explains the conservative majority’s recent spate of key decisions.. In a pair of opinions released on the penultimate day of the term, the majority made clear its intent to follow right-wing ideology — unless doing so would hinder their preferred candidate’s election, in which case ideology yields, at least temporarily.

If that sounds too crass a view of judges who took an oath to support and defend the Constitution, please join me in wishing it weren’t so. The harsh reality that reigns over the radical majority, however, is that they manipulate the law to accommodate the victory of a would-be dictator who suits them as president and nominator of their replacements. 

In Friday’s two biggest cases, the Court fulfilled the Federalist Society’s fever dreams by overruling a 40-year-old precedent that required judges to defer to the expertise of government agencies. The decisions fit the reactionary ideology of the six Republican-appointed justices — as elected officials in the GOP and conservative legal scholars have long targeted this crucial component of our nation’s federal regulatory scheme. It is now clear that they are dedicated to taking us backward.

Since the New Deal, agency expertise has provided consumer and social regulatory protections in business, environment, health and medicine that have protected us. Nearly a century later, those protections have been sacrificed on the altar of a right-wing movement that worships laissez faire capitalism. In case you don’t remember, unregulated markets got us into the Great Depression. 

But there’s a political qualification on the free-wheeling use of ideology. That election-year modulator helps explain several important end-of-term decisions that appear – at least on their surface –  not to be relentlessly conservative. In sum, the decision-making model looks like this:

  1. An outcome that fulfills the right-wing justices’ conservative views AND seems unlikely to damage the election result they desire – Trump in ‘24! – leaves the majority justices free to be as ideological as their hearts desire.
  2. But when an outcome that would fulfill their reactionary world-view bears too great a risk of harming their partisan choice in the election, ideology gives way to short-term political calculation . . . at least until the election is over. 

Consider how the above two rules make sense of the results in important recent cases. Friday’s decisions will have no effect on the election. The just-overturned doctrine of deference for government agencies is not a subject of household discussions, and the decisions’ effect of killing consumer and social protections will not be felt for months or more. Hence, rule no. 1 is operative; the Court has a free hand to destroy those protections in order to further empower the unregulated economy in which they believe.

Now let’s move to the two recent Second Amendment cases.

The explanatory rules above reconcile cases that seem to have gone in different directions. 

In U.S. v. Rahimi, decided on June 21, all justices but Clarence Thomas agreed to uphold the federal statute that banned people subject to domestic abuse restraining orders from possessing firearms. Had the case come out the other way, it would surely have stirred a firestorm among anti-abuse activists and women generally, motivating a mass of anti-Trump voters. One poll showed that an astonishing 74% of Americans polled agreed with that gun safety statute. Rule 2 applies.

Garland v. Cargill, decided a week earlier, came out the other way. In it, the 6-3 majority of Republican appointees struck down a Bureau of Alcohol, Tobacco and Firearms regulation banning “bump stocks,” a piece of equipment that allows a semi-automatic weapon to fire automatically like a machine gun. Congress banned machine guns in 1986. 

The ATF promulgated the regulation after the deadliest mass shooting in American history. In 2017, from the 32nd floor of Las Vegas’s Mandalay Bay hotel, Stephen Paddock used a rifle equipped with a bump stock to reign terror on young people at a music festival on the ground. In minutes, he killed 58 people and wounded more than 500.

But memories of 2017’s mass killings are short, and most people don’t know what a bump stock is. Regrettably, mass shootings are so commonplace that bump stocks won’t be on voters’ minds 

Hence, Cargill illustrates Rule 1 above – Ideology prevails when it determines a result that is unlikely to damage the election result the majority desire.

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Now let’s look at the two abortion cases. We know from the Court’s 6-3 decision overruling Roe v. Wade how the right-wing justices are bent on destroying reproductive freedom. We also know how strong the backlash that followed was in the 2022 midterms and in elections since, with abortion rights winning every vote where they were on the ballot. 

And so, on June 13, in Food & Drug Administration v. Alliance for Hippocratic Medicine, the Supreme Court upheld FDA guidelines for distributing mifepristone, an over-the-counter abortion pill. This result accords with Rule  2 above – when adhering to the majority justices’ reactionary world-view carries too great a risk of harming their partisan choice in the election, ideology gives way to short term political calculation.

Note this, however: The court ruled on technical grounds, deciding that the plaintiff lacked standing because it failed to show it had suffered a concrete and particularized injury from the distribution of mifepristone. Thus, there was no decision on the merits of the case. After the election, some other plaintiff with standing could bring the same suit and prevail. Kicking the can down the road is a convenient game politicians play to avoid deciding a hard issue at a difficult time.

The second abortion decision was similar. On June 27, the Court dismissed, for the time being, a red state’s attempt to reinstate its law that would stop abortions needed to protect the health of the mother though her life might not be in danger. Polling shows that 80% of Americans believe that emergency abortions should be provided, contrary to such a state law. Again, with abortion, Rule. 2 applied: Validating the anti-abortion state law could affect the election, so the Court blocked the law for now.

As in the previous case, this was no real “victory” for reproductive freedom. The Court simply said it had decided prematurely to hear the case. Another such challenge will almost certainly come next term . . . unless Trump wins the election, in which case the federal challenge to state abortion bans will be dropped.

On Monday, we will get the Court’s long-delayed decision in Trump’s January 6-related immunity case. Sadly, like gun violence, such delays in Trump’s federal trials are already baked into the public’s expectations. Hence, the outcome will almost certainly fit neatly into Rule 1: A partisan result in some way favoring Trump will prevail – likely in the form of more delay –  because more delay will help more than hurt his election prospects.

At the turn of the 20th century, Finley Peter Dunne, the Chicago humorist and journalist, had his fictional alter ego, the Irish-American immigrant character, Melvin J. Dooley, deliver what became a most famous adage in cynical Supreme Court lore: “[T]h’ soopreme coort . . . follows th’ iliction returns.” With the 21st century’s radical Court majority, that axiom requires a modern-day modification: [T]h’ soopreme coort figgurs out how to iffect th’ iliction returns.

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

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