Supreme Court Decision Season is Here 

Happy Wednesday! It turns out the driver who went viral last week for attending a court hearing about a suspended license via Zoom while actively driving actually had his suspension lifted by a judge back in 2022—but the order was never processed because apparently, no one told him he had to pay a fee to get it reinstated. Bureaucracy strikes again! 

• President Joe Biden issued an executive order on Tuesday that blocks migrants from seeking asylum at the southern border when the average number of daily crossings in a seven-day period reaches 2,500. Daily crossings in the last week have exceeded that threshold, so the suspension of asylum claims went into effect today. Under the order, asylum claims of people crossing between ports of entry would only be heard once the number of daily crossings fell below 1,500 for seven consecutive days. “The simple truth is, there is a worldwide migrant crisis, and if the United States doesn’t secure our border, there’s no limit to the number of people who may try to come here,” Biden said yesterday. “Frankly, I would have preferred to address this issue through bipartisan legislation. … But Republicans have left me with no choice.” House Speaker Mike Johnson decried Biden’s move as a “desperate political stunt to try and stabilize his plummeting poll numbers,” while the American Civil Liberties Union announced it intends to sue the Biden administration over the order.
• Hamas on Tuesday seemed to reject Biden’s three-part peace proposal, demanding that Israel first commit to a permanent ceasefire before the terror group makes any concessions. The office of Israeli Prime Minister Benjamin Netanyahu said on Saturday that “Israel’s conditions for ending the war have not changed: the destruction of Hamas military and governing capabilities, the freeing of all hostages and ensuring that Gaza no longer poses a threat to Israel.” The deal Biden outlined last week would have begun with a provisional ceasefire that would theoretically lead to a permanent cessation of hostilities after several phases of negotiations.
• Meanwhile, Biden delivered sharp criticism of Netanyahu in an interview with Time magazine conducted on May 28 but published on Tuesday. “I’m not going to comment on that,” Biden said when asked whether the Israeli prime minister was prolonging the war out of political self-interest. “There is every reason for people to draw that conclusion.” The president appeared to try to walk his comments back later on Tuesday when asked if Netanyahu was playing politics with the war. “I don’t think so,” he said. “He’s trying to work out a serious problem he has.”
• Early results from Tuesday’s vote in India’s general election showed Prime Minister Narendra Modi’s alliance winning more parliamentary seats than the opposition, enough to keep him in power. But Modi’s Bharatiya Janata Party (BJP) lost more seats than expected, leaving the prime minister with the narrowest parliamentary majority of his career and requiring him to rely on allied parties’ support to form a government. The BJP won 303 seats in the 2019 election but only 240 seats this time around. Modi’s broader coalition won a total of 293 seats—more than the 272 needed for a majority but far below the 400-seat supermajority Modi had predicted.
• New Jersey hotelier Curtis Bashaw defeated Christine Serrano Glassner—the mayor of Mendham who was endorsed by former President Donald Trump—in the Garden State’s Republican Senate primary on Tuesday. Bashaw will face off against Democratic Rep. Andy Kim and incumbent Sen. Robert Menendez—facing federal corruption charges and now running as an independent—in the general election in November. Menendez’s recent entry as an independent could put the usually safely Democratic New Jersey seat in play for the moderate Republican Bashaw. Meanwhile, despite being weighed down by his father’s indictment, Menendez’s son, Rep. Robert Menendez Jr., fended off a stiff primary challenge from Hoboken Mayor Ravi Bhalla.

The nine justices of the Supreme Court agreed to hear 62 cases this term, which began in October. Decisions are released as the justices reach them, which typically means the most straightforward ones are out of the way quickly.

That also means that the more complicated and often controversial cases—the ones people like Sarah and David drool over—tend to be released during the first few weeks of summer. All the better to trigger mass protests in the sweltering D.C. heat.

The justices still have 32 decisions to release before their July recess, and several are poised to become lightning rods at a time when the court faces attacks from both sides of the political aisle. In the next month or so, the court could make landmark changes to the breadth of executive power (for both the president and the administrative state), the rules that govern the internet, and states’ ability to restrict access to abortifacient drugs, among other pressing questions.

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Decision season has already begun. On May 30, the Supreme Court ruled unanimously that if the New York State Department of Financial Resources, directed by Maria Vullo, advised banks and insurance groups to end business ties with the National Rifle Association (NRA), that would constitute a First Amendment violation. Critically, the Supreme Court did not make a judgment on whether Vullo actually advised financial services to cut connections with the NRA. “Rather, the Court said that, if the NRA is correct on the facts, then it should win on the law,” Eugene Volokh, a UCLA law professor and counsel-of-record for the NRA in NRA v. Vullo, told TMD. 

Prior to that, on May 23, the Supreme Court overturned a district court’s decision that South Carolina’s new congressional district map—passed by a GOP-controlled legislature—was racially gerrymandered. The court’s 6-3 decision held that there was insufficient evidence that race—rather than partisanship—was a motivating factor in the map’s design.

But the justices don’t always have to decide questions based on what interested parties (and headline writers) consider the main topic at hand. One of the key cases still to be decided, for example, involves the legal status of mifepristone, a drug first approved by the Food and Drug Administration (FDA) in 2000 that is often used to induce abortions. The Alliance for Hippocratic Medicine (AHM), a pro-life medical advocacy group, sued the FDA, claiming the federal agency improperly approved the abortion drug’s use in 2000 and later relaxed regulations around it. But that claim garnered little attention from the justices during oral arguments, as they seemed more focused on the question of standing—whether AHM had the legal right to sue to begin with. Such a decision might be exciting for legal nerds, but would represent no slam dunk for the pro- or anti-abortion cause. 

For other cases, though, the justices seem likely to sink their teeth into the substance more directly. Prior to January 6, 2021, Joseph Fischer was a police officer in Pennsylvania. But one “Stop the Steal” rally later, he could face prison time for a bevy of federal charges, including “obstructing an official proceeding.” Federal prosecutors have argued that’s literally a description of what he—and more than 350 other January 6 defendants—did. “Take democratic congress to the gallows,” Fischer texted before the rally turned violent. “Can’t vote if they can’t breathe..lol.” 

But Fischer has argued all the way up to the Supreme Court that punishing him as someone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” is an overinterpretation of the statute at hand. Fischer’s legal team has argued that the law only applies to evidence tampering in matters such as in congressional inquiries and federal investigations.

During the case’s oral arguments in April, Justice Elena Kagan noted there were “multiple ways” the law could have been written to only apply to evidence tampering, “but it doesn’t do that.” But Justice Samuel Alito—who has faced and dismissed calls for his recusal in this case after the New York Times reported on a flag-related neighborhood dispute last month—appeared concerned about an overly broad application of the law, asking whether five people chanting during proceedings could be charged under this law. “What happened on January 6 was very, very serious, and I’m not equating this with that,” Alito said. “But we need to find out what are the outer reaches of this statute under [federal prosecutors’] interpretation.”

Fischer’s case isn’t the only one that has its roots in election denial. In United States v. Trump, the question before the Supreme Court—emerging from special counsel Jack Smith’s federal election interference case against Trump, who was also charged with obstructing an official proceeding—is about the breadth of presidential immunity from criminal prosecution.   

Trump’s legal representative, John Sauer, argued before the court that presidents need to be unflinching and undaunted—and that “without presidential immunity from criminal prosecution, there can be no presidency as we know it.” Sauers claimed that without immunity, President Joe Biden could be charged for permitting illegal immigrants entry into the country because public policymaking is a form of official conduct. The line between official conduct and private conduct can often be “fuzzy,” Ilya Somin, a law professor at George Mason University, told TMD. 

But Trump may be aiming too high. “Trump is asking for near-total immunity for anything that the president might do as an ‘official act,’ broadly defined,” Somin said. “I think it’s very clear there is no majority on the Supreme Court that’s going to give him that, but it could be that there is a majority for creating some sort of narrower presidential immunity.”

Justice Brett Kavanaugh for example appeared inclined during oral arguments, at least in part, toward a narrow immunity, saying there is a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”

Why is this question just being answered now? “There is very little precedent because we have never had a current or former president of the United States charged with a crime that, at least in some way, relates to things he did while in office,” Somin said. That’s why Justice Neil Gorsuch stressed during oral arguments that he is “not concerned about this case as much as future ones”—because there’s no previous precedent, he said, the court is “writing a rule for the ages.”

The Supreme Court could deal another blow to executive power in Loper Bright Enterprises v. Raimondo when it revisits the so-called Chevron doctrine. The court’s 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. was a major victory for the Reagan administration’s Environmental Protection Agency (EPA)—and its then recently departed administrator, Anne Gorsuch Burford, Justice Gorsuch’s mother—allowing the agency to pare down lengthy review and permit processes by changing its interpretation of federal law. But some have argued that deferring to the agency’s interpretation of the law, so long as it is “reasonable” and “permissible,” has allowed the executive branch to grow too powerful and unaccountable to Congress in the 40 years since Chevron. 

A majority of justices seemed inclined during oral arguments in January to at least limit the scope of Chevron—and possibly overturn the decision completely. “The reality is the kind of uniformity that you get under Chevron is something only the government could love because every court in the country has to agree on the current administration’s view of a debatable statute,” Gorsuch said during oral arguments in a statement that, 40 years ago, probably would have seen his mother revoke his dessert privileges. “You don’t get the kind of uniformity that you actually want, which is a stable decision that says, ‘This is what the statute means.’”

And in what’s been a big year for efforts to regulate social media companies, three cases before the court—Murthy v. Missouri and two cases against Florida and Texas likely to be reviewed together—could draw First Amendment lines in the sand as it relates to social media content.

In Murthy v. Missouri, Missouri and Louisiana sued the Biden administration, claiming the federal government pressed social media companies to censor what it saw as misinformation and disinformation on issues ranging from the COVID-19 pandemic to the results of the 2020 presidential election. The states make two core arguments, Volokh said: that the government’s actions were coercive, and that even if simply asking companies to take content down isn’t coercive, it’s still unconstitutional.

The second case consists of two challenges to laws in Florida and Texas. “Florida and Texas essentially passed laws which say—with very few exceptions—social media firms are not allowed to engage in content moderation,” Somin said. Republican state legislators grew frustrated by what they saw as unfair content moderation by these private companies, so they banned content moderation of political speech altogether.

Does that amount to a First Amendment violation? It depends on how you view social media companies. “If you look at what one might call platforms—private entities that host speech by others—you might think of them as falling on a spectrum,” Volokh told TMD. 

On one side are editorial outlets, like The Dispatch, for example. Our editors are very kind, but they surely are not compelled to publish every article that writers pitch to them. “They have every right to pick and choose what they include—what they host essentially—in their publication,” Volokh explained.

But not every company has that right, per se. For example, Volokh said, phone companies may be displeased that their services are being used by a local communist party or Ku Klux Klan chapter, but they don’t have the right to cancel such groups’ phone lines for that reason. That being said, the Supreme Court isn’t deciding where to place social media companies on that spectrum as much as it’s deciding whether they have a First Amendment right to exclude service.

We may know the decisions in these cases or any of the others remaining as early as tomorrow at 10 a.m. ET—and the court will keep cranking them out on Mondays and Thursdays for the foreseeable future. Sarah predicts United States v. Rahimi—a due process case that could decide whether individuals with domestic violence restraining orders can be banned from possessing firearms—could be on deck. There is also an emergency case evaluating whether an Idaho law restricting abortion conflicts with a federal law mandating “necessary stabilizing treatment” be provided in hospitals receiving Medicare funding, a decision that could affect not only Idaho but six other states that have enacted similar abortion restrictions. 

And in the background of the substantive legal decisions is longstanding criticism of the court from the left—reignited by the Alito flag controversy—and potential discontentment on the right if Republican-appointed justices rule presidential immunity does not protect Trump from special counsel Jack Smith’s felony charges.

By the time July rolls around, the justices likely will be craving their summer recess. 

• Former Clinton administration Treasury Secretary Larry Summers caught a lot of flack in 2021 for warning Biden White House officials that their economic and monetary policies would exacerbate inflationary pressures. Ronald Brownstein interviewed Summers for his latest piece in the Atlantic. “Summers sees the risk of another price shock in the economic plans of former President Donald Trump,” Brownstein wrote. “‘There has never been a presidential platform so self-evidently inflationary as the one put forward by President Trump,’ Summers told me in an interview this week. ‘I have little doubt that with the Trump program, we will see a substantial acceleration in inflation, unless somehow we get a major recession first.’ Summers is far from alone in raising that alarm. Trump’s greatest asset in the 2024 campaign may be the widespread belief among voters that the cost of living was more affordable when he was president and would be so again if he’s reelected to a second term. But a growing number of economists and policy analysts are warning that Trump’s second-term agenda of sweeping tariffs, mass deportation of undocumented migrants, and enormous tax cuts would accelerate, rather than alleviate, inflation.”
• Writing for Law and Liberty, Andy Smarick explored the lessons about public leadership in the 2000 film Gladiator. The movie outlines “two competing visions of virtue in the public square,” Smarick wrote. “One—that of Marcus Aurelius—is about justice, judgment, self-control, and fortitude. … This model fosters personal attributes that enable us to think and act well on behalf of others. That is, it leads us to become better individuals who can then better contribute to society. In the film, Commodus knows he lacks these qualities, so he offers up his own strengths as a second, very different set of virtues: ambition, resourcefulness, loyalty, and a certain sort of courage. … At the core of his son’s system is selfishness not selflessness: Commodus’s principles are not public virtues; they are means to empower himself and his friends to do as they choose. The virtue of Marcus Aurelius only makes sense when the community believes in and is committed to a common good. … This sense of virtue fades fast, however, when we no longer embrace a common good. As we break into political or ideological teams and see those who disagree not as fellow citizens but as permanent opponents or enemies, concepts like accommodation, prudence, curiosity, forbearance, and integrity appear counterproductive.” 

New York Times: Louisiana Passes Surgical Castration Bill for Child Molesters

GOP Rep. French Hill of Arkansas: “My record and history show that I have been a strong supporter of NATO. Today, I mistakenly voted in favor of an amendment to defund the NATO Security Investment Program. I have submitted a statement to the Congressional Record clarifying my vote and that I intended to vote NO on Roll Call No. 239.”

Former GOP Rep. Ken Buck of Colorado, on The Daily Show: 

“I left because I couldn’t tell the lie. [The] 2020 election wasn’t stolen. The January 6 defendants aren’t political prisoners. … There’s a lot of life out there besides arguing about nothing and telling lies, and so I made a choice to go enjoy what I’ve got left.”

Robert Downey Jr. and Jodie Foster sat down to discuss their decades in film, and Downey revealed that he’s become “surprisingly open-minded to the idea” of reprising his role as Iron Man. Makes sense to us, since that’s the part that jump-started his career. 

• How can the courts restrain Title IX overreach? What’s ahead for Mexico after last weekend’s elections? Are Sen. Bob Menendez’s legal woes affecting his son’s congressional race? Sarah was joined by special guests David Super of Georgetown Law and Alison Somin of the Pacific Legal Foundation—as well as Grayson and Charles—to discuss all that and more on last night’s episode of Dispatch Live (🔒). Members who missed the conversation can catch a rerun—either video or audio-only—by clicking here.
• In the newsletters:  Nick debated whether (🔒) Democrats would be well-served to lean into Trump’s felony conviction in their campaigning.
• On the podcasts: Jonah is joined on The Remnant by Nellie Bowles, a reporter with the Free Press, to discuss her new book, Morning After the Revolution: Dispatches from the Wrong Side of History.
• On the site: Drucker reports on his experience attending a Robert F. Kennedy Jr. rally in Colorado and Jonah explores why we really don’t know how Trump’s guilty verdict will affect the election.

What Supreme Court case are you most interested in this term?