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ketanji brown jackson
'The President Is Now a King Above the Law,' Sotomayor Warns in Chilling Dissent
A legal journalist described the liberal justice's dissent as "one of the most terrified and terrifying pieces of judicial writing I've ever encountered."
Jul 01, 2024
In her
dissent against the U.S. Supreme Court's Monday ruling in Trump v. United States, liberal Justice Sonia Sotomayor listed several acts that she argued the high court's right-wing supermajority has effectively sanctioned as unprosecutable exercises of presidential authority.
"Orders the Navy's SEAL Team 6 to assassinate a political rival? Immune," wrote Sotomayor. "Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."
The high court's 6-3 decision along ideological lines granted former President Donald Trump "absolute immunity" for acts that fall within the scope of the "responsibilities of the executive branch under the Constitution," as Chief Justice John Roberts wrote for the majority.
The new ruling leaves it to the lower courts to determine whether the election-subversion acts for which Trump was charged last year in a case led by Special Counsel Jack Smith were "official" or "unofficial." The Supreme Court took more than four months to decide the case after agreeing to hear it, meaning Trump is unlikely to face trial before the November presidential election.
The Associated Pressnoted that the Supreme Court "further restricted prosecutors by prohibiting them from using any official acts as evidence in trying to prove a president's unofficial actions violated the law"—a move that Sotomayor condemned as "nonsensical."
While Roberts acknowledged that "not everything the president does is official," Sotomayor argued that the majority's expansion of "the concept of core powers beyond any recognizable bounds" means that "a president's use of any official power for any purpose, even the most corrupt, is immune from prosecution."
"Whenever the president wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him," wrote Sotomayor. "Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law."
Sotomayor: Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent. pic.twitter.com/sJjM6iMvk1
— Leah Litman (@LeahLitman) July 1, 2024
Sotomayor expressed "fear for our democracy" as she closed her dissent against the ruling by the Supreme Court's majority, two members of which have recently faced intense scrutiny and calls to resign for accepting lavish gifts from right-wing billionaires.
"Justice Sotomayor's alarmed dissent was signed 'with fear for our democracy,'" U.S. Sen. Sheldon Whitehouse (D-R.I.) said in a statement Monday. "This is a blaring warning to voters of the anti-democratic forces pulling the strings both at the Supreme Court and in the Republican Party."
"Not only does this decision deprive the American people of knowing whether the former president is guilty of attempting to overturn the last election before they head to the polls in November, it also makes it much harder to hold a former president accountable for illegal acts committed while in office," said Whitehouse. "The far-right radicals on the court have essentially made the president a monarch above the law, the Founding Fathers' greatest fear."
Mark Joseph Stern, who covers the U.S. courts for Slate, called Sotomayor's dissent "one of the most terrified and terrifying pieces of judicial writing I've ever encountered."
Pointing to Sotomayor's dissent, U.S. Rep. Rashida Tlaib (D-Mich.) wrote Monday that "it is a dark day for democracy when presidents can commit any crime they want in their official capacity, and these justices are bribed for their decisions."
"Coup attempts are not 'official acts,'" she added.
Also writing in dissent was liberal Justice Ketanji Brown Jackson, who warned that "in the majority's view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions, the president cannot be made to do so; he must sometimes be exempt from the law's dictates depending on the character of his conduct."
"Indeed, the majority holds that the president, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties," wrote Jackson, who criticized the right-wing majority's "arbitrary and irrational" attempt to distinguish between official and unofficial acts.
"It suggests that the unofficial criminal acts of a president are the only ones worthy of prosecution," the justice continued. "Quite to the contrary, it is when the president commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire."
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Justice Jackson Warns New Ruling Could 'Devastate' Federal Regulators
The liberal justice said Congress can remedy the "profoundly destabilizing" decision by passing legislation to strengthen the federal regulatory regime.
Jul 01, 2024
As the U.S. Supreme Court dealt yet another blow to the federal government's regulatory authority, Justice Ketanji Brown Jackson on Monday stressed that "the ball is in Congress' court" to enact legislation to "forestall the coming chaos" wrought by the right-wing supermajority's decision.
The justices ruled 6-3 in Corner Post Inc. v. Board of Governors of the Federal Reserve System that the Administrative Procedures Act's (APA) statute of limitations period does not begin until a plaintiff is adversely affected by a regulation. The ruling reverses a lower court's dismissal of a lawsuit filed by Corner Post—a North Dakota truck stop that challenged a U.S. Federal Reserve rule capping debit card swipe fees—because the six-year statute of limitations on such challenges had passed.
Monday's ruling makes it much easier to sue government agencies. As Sydney Bryant and Devon Ombres at the Center for American Progress explained, the decision "is intended to allow a swarm of legal challenges to rules that have protected the American people from bad actors and corporate malfeasance for decades."
"Corner Post is not the story of David versus Goliath but rather the Trojan Horse, where moneyed interests attempt to sneak in their anti-regulation politics under the guise of altruism."
In a dissent joined by fellow liberal Justices Sonia Sotomayor and Elena Kagan, Jackson wrote that "today, the majority throws... caution to the wind and engages in the same kind of misguided reasoning about statutory limitations periods that we have previously admonished."
"The court's baseless conclusion means that there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face," she continued. "Allowing every new commercial entity to bring fresh facial challenges to long-existing regulations is profoundly destabilizing for both government and businesses. It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline."
"At the end of a momentous term, this much is clear: The tsunami of lawsuits against agencies that the court's holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the federal government," Jackson added, referring to last week's 6-3 overturning of the so-called Chevron doctrine, the legal principle under which courts deferred to federal agencies' interpretations of ambiguous laws passed by Congress.
While numerous business advocates welcomed Monday's ruling, a broad range of consumer, labor, and other groups echoed the alarm in Jackson's dissent.
"Americans expect that safeguards will protect us and our families from unsafe food, products, polluted air and water, and dangerous and unfair working conditions. This decision provides special interests, opposed to the safeguards that people rely upon, with more opportunities to challenge and seek to overturn these important protections," said Rachel Weintraub, executive director of the Coalition for Sensible Safeguards.
Weintraub added that the ruling "undermines federal agencies' ability to use administrative courts to impose civil penalties for violating regulatory protections" and "starkly impedes agencies' ability to protect the public."
Bryant and Ombres wrote that "Corner Post is not the story of David versus Goliath but rather the Trojan Horse, where moneyed interests attempt to sneak in their anti-regulation politics under the guise of altruism."
Jackson's dissent states that "Congress still has a chance to address this absurdity and forestall the coming chaos" by "clarifying that the statutes it enacts are designed to facilitate the functioning of agencies, not to hobble them."
"In particular, Congress can amend §2401(a)," Jackson offered, referring to the default six-year statute of limitations, "or enact a specific review provision for APA claims, to state explicitly what any such rule must mean if it is to operate as a limitations period in this context: Regulated entities have six years from the date of the agency action to bring a lawsuit seeking to have it changed or invalidated; after that, facial challenges must end."
"By doing this," she added, "Congress can make clear that lawsuits bringing facial claims against agencies are not personal attack vehicles for new entities created just for that purpose."
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Supreme Court Puts Countless 'Lives at Risk' by Ruling Against Clean Air
"With this decision, the Supreme Court has abandoned any pretense of neutrality in cases involving environmental regulations," an expert said.
Jun 27, 2024
Health and environmental groups decried a U.S. Supreme Court decision on Thursday that suspended an air pollution rule with far-reaching implications set by the Environmental Protection Agency.
The justices ruled 5-4 in Ohio v. EPA to nullify the rule, designed to protect people in states downwind from smog-forming pollution, until the case can be decided on its merits in federal court, siding with the industrial polluters and upwind states who'd petitioned them to do so.
"With this decision, the Supreme Court has abandoned any pretense of neutrality in cases involving environmental regulations," Sam Sankar, a senior vice president at Earthjustice, an environmental law firm, said in a statement.
"The court's order puts thousands of lives at risk, forces downwind states to regulate their industries more tightly, and tells big polluters that it's open season on our environmental laws," he added.
A coalition of health and environmental groups, including Earthjustice, agreed that the ruling would have devastating effects.
"Today's decision is deeply disappointing," the coalition wrote in a joint statement. "It will result almost immediately in pollution that endangers the health of millions of people."
Initial thoughts on Ohio v. EPA - Justice Gorsuch's majority opinion reflects two longstanding trends in his environmental law jurisprudence: deep skepticism of agency experts and emphasis on state authority over environmental protection. You can read my analysis of these trends…
— Rachel Rothschild (@ProfRRothschild) June 27, 2024
The legal dispute stems from the EPA's 2015 ozone pollution regulations. States were required to issue plans showing compliance, and last year the EPA determined that 23 of the plans were insufficient, issuing its own plan for those states. The agency said that in 2026 alone, the multi-state plan would prevent about 1,300 premature deaths.
The EPA plan set off a flurry of legal challenges by fossil fuel companies, power companies, and related trade associations, as well as upwind states. Some challenges were successful in getting federal courts to temporarily suspend the EPA rules in individual states. However, the consolidated case, Ohio v. EPA, hasn't yet been heard by the Court of Appeals for the District of Columbia Circuit, and that court denied a request for a suspension of the rule in the meantime.
The plaintiffs then sought emergency relief from the rule at the Supreme Court, arguing that it could cost "hundreds of millions if not billions of dollars in costs over the next 12 to 18 months." The Supreme Court normally dismisses such relief requests, but in this case not only accepted the case onto its shadow docket, but took the unusual step of hearing oral arguments, which most shadow docket cases don't have, as they tend to deal with stays and injunctions, and not the fully-fledged merits of a case.
At the oral arguments, in February, Justice Ketanji Brown Jackson expressed concern that the case was even before the court, given that it hadn't even been heard on its merits by the D.C. Circuit court.
"What I’m a little concerned about is that really your argument is just boiling down to we think we have a meritorious claim and we don't want to have to follow the law while we’re challenging it," Jackson said to the plaintiffs' legal team. "And I don’t understand why every single person who is challenging a rule doesn’t have the same set of circumstances."
Jackson is one of three liberal justices on the court, but it was in fact conservative Justice Amy Coney Barrett who authored what The New York Times called a "spirited" dissent to Justice Neil Gorsuch's majority opinion.
"The court today enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits," Barrett wrote. "In so doing, the court grants emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record."
Rachel Rothschild, a law professor at the University of Michigan, wrote on social media that Gorsuch's opinion drew on his "deep skepticism of agency experts and emphasis on state authority over environmental protection."
The conservative justices' aversion to agency expertise was also evident in both its 2022 ruling against the EPA's climate change rules and its 2023 ruling against the EPA's water pollution rules.
The Center for American Progress wrote in February that a loss in Ohio v. EPA would be another "devastating reversal" for the EPA as the agency struggles to assert "the authorities that Congress has explicitly granted it."
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