SCOTUS Is About to Drop 19 Decisions—Here’s What You Need to Know (w/ Leah Litman) | Illegal News
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Quick Read
Summary
Takeaways
- ❖The Supreme Court's immunity decision effectively allows the president to direct sham investigations and prosecutions without legal consequence.
- ❖The consideration of suspending habeas corpus for immigration purposes represents a radical departure from constitutional norms, traditionally reserved for wartime and requiring Congressional approval.
- ❖Critical pending Supreme Court cases could drastically alter election procedures and the independence of federal agencies, further concentrating power in the presidency.
Insights
1Supreme Court's Immunity Decision Empowers Executive Abuse
The Supreme Court's 2024 immunity decision explicitly stated that the president's powers over the Department of Justice (DOJ), including investigations and prosecutions, are so expansive that they allow the president to order sham investigations or prosecutions for improper purposes. This ruling effectively green-lights the weaponization of law enforcement for political retribution.
Leah Litman states, 'In the court's immunity decision from 2024, the court flat-out said explicitly that the president's powers over the DOJ, over investigations and prosecutions, were so expansive and so exclusive, it didn't matter if he was ordering sham investigations or prosecutions for an improper purpose.'
2Trump Administration Considered Suspending Habeas Corpus for Mass Deportations
Reports indicate the White House seriously considered suspending habeas corpus as part of its immigration efforts, aiming to deport immigrants without trials. This move is constitutionally problematic because only Congress can suspend the writ, and it is typically reserved for extreme circumstances like war, not for administrative convenience.
Litman explains, 'The Constitution allows Congress to suspend the writ of habeas corpus, not the president... The Constitution only allows suspension of habeas in limited circumstances, including war.' She adds that the idea of suspending it 'because I don't like the fact that these judges are giving people due process' is 'antithetical to the concept of due process, the concept of the rule of law.'
3Supreme Court Nullified Remaining Voting Rights Act Protections
The Supreme Court's decisions in *Louisiana versus Cale* and a follow-on case out of Alabama effectively nullified what remained of the Voting Rights Act. The court reinterpreted the law to prohibit only intentional discrimination, despite Congress's intent to prohibit districting that merely had the effect of reducing minority political power. This has led to states redistricting in ways that erase minority political power, reminiscent of the post-Reconstruction era.
Litman asserts, 'Louisiana versus Cale the Voting Rights decision and then the follow-on case out of Alabama, I think are among the worst Supreme Court decisions of my lifetime. The court effectively nullified what remained of the Voting Rights Act.'
4Upcoming Decisions Threaten Absentee Voting and Agency Independence
Among 19 pending Supreme Court decisions, a case on absentee ballots could nullify election laws in nearly half of U.S. states by prohibiting the counting of ballots received after Election Day, even if postmarked by then. Another case could grant the president the power to fire heads of almost all independent federal agencies, expanding executive control over critical regulatory and enforcement bodies.
Litman highlights the absentee ballot case: 'If the Supreme Court says, 'Yep, this federal statute prohibits states from counting those absentee ballots,' that would nullify the election laws in almost half of the states.' Regarding agencies, she notes it's about 'whether the Supreme Court is going to say that the president has to have the power to fire people who had every single independent agency in the federal government.'
Bottom Line
The Supreme Court's consistent embrace of the 'unitary executive theory' is a foundational enabler of presidential overreach, allowing the executive to control all significant executive power and disregard Congressional checks.
This theory provides the legal justification for the president to circumvent legislative intent and consolidate power, leading to actions like ordering sham investigations or withholding appropriated funds, fundamentally altering the separation of powers.
Understanding this underlying legal theory is crucial for anticipating future executive actions and developing strategies to counter the erosion of democratic institutions, potentially through legislative reforms or public pressure campaigns that highlight the court's role.
The public relations backlash against extreme executive actions, such as suspending habeas corpus or invoking the Insurrection Act, can still act as a deterrent, even if legal arguments fail.
This suggests that widespread public awareness and outrage can create political costs that even a determined administration might consider too high, preventing the implementation of highly authoritarian measures.
Advocacy efforts should prioritize educating the public on the severe implications of proposed executive power expansions, leveraging public opinion to raise the political cost for administrations considering such actions.
Lessons
- Stay engaged and informed about Supreme Court decisions and their implications for democratic institutions, as public outcry can still deter extreme executive actions.
- Support organizations focused on voting rights and election integrity, as upcoming Supreme Court rulings could significantly impact absentee voting and state election laws.
- Recognize that the Supreme Court's interpretation of executive power, particularly the unitary executive theory, is a key driver of current political and legal challenges, and advocate for reforms that rebalance governmental powers.
Notable Moments
Discussion of Gavin Newsom's investigation as a politically vindictive act by the Trump administration, highlighting the weaponization of law enforcement.
This moment illustrates how political power can be abused to target rivals, eroding trust in government institutions and creating a climate where legitimate investigations are also viewed with suspicion.
Leah Litman's shift to supporting Supreme Court expansion due to the court's demolition of the Voting Rights Act and its obstruction of multiracial democracy.
This marks a significant change in perspective for a legal scholar, underscoring the perceived severity of the court's actions and the belief that traditional checks and balances are no longer sufficient.
Quotes
"The weaponization of law enforcement is still a serious concern. And it's also a concern because it is causing us to ask these questions and basically dismiss out of hand the possibility that this investigation might be onto something because so much of what the administration does is right?"
"The president's powers over the DOJ, over investigations and prosecutions, were so expansive and so exclusive, it didn't matter if he was ordering sham investigations or prosecutions for an improper purpose."
"The Constitution allows Congress to suspend the writ of habeas corpus, not the president."
"It is an unfortunate reality that Pride basically now includes us all sitting around our computers refreshing our screens frantically to figure out what rights like we might lose and which rights we might have, etc."
"The court effectively nullified what remained of the Voting Rights Act, said, 'Sure, Congress amended the law to prohibit districting that had the effect of reducing the political power of minority voters, but we Supreme Court in all of our wisdom basically think that's a bad call.'"
"They have redistricted the country into hell, like we need to redistrict the Supreme Court."
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