Reviewing consequential and controversial decisions from the Supreme Court (2024)

Amna Nawaz:

The nine justices of the Supreme Court considered more than 60 cases this term, before rendering their final decisions earlier this week.

Their rulings on abortion access, presidential immunity and the limits of federal agencies could have long-lasting impacts. They also showcased sharp divides among the justices.

I sat down with two Supreme Court watchers to reflect on this historic term.

Steve Vladeck is a professor at Georgetown University's Law Center, and Joan Biskupic is CNN's senior Supreme Court analyst and author of the book "Nine Black Robes."

Welcome to you both. Thanks for being here.

Joan Biskupic, Author, "Nine Black Robes": Thank you.

Amna Nawaz:

Joan, start us off here, and let's begin with what was easily the court's most anticipated decision on Monday, deciding that presidents are entitled to some immunity from prosecution.

How consequential is that decision, given how it could reshape the presidency?

Joan Biskupic:

Consequential for this year, but consequential for many, many years.

This was such a robust reading of executive power. It was a very bold statement by this court, the 6-3 supermajority conservative court. So I think it gave us a new insight into the court under John Roberts. And in terms of going forward, it's certainly already affecting prosecutions against former President Donald Trump and will affect presidential powers and authority down the road.

Amna Nawaz:

Steve, this undeniably leaves us with a more powerful executive after that decision. How does that decision square with the trend you saw from the justices and how they viewed the power of executive branch agencies and other decisions?

Stephen Vladeck, Georgetown University Law Center:

Yes, I mean, I think, Amna, it makes sense if you distinguish between the power of the presidency as an institution versus the power of executive branch agencies.

This court seems to be very comfortable with the president himself exercising an awful lot of power, perhaps not being as accountable as the founders would have wanted him to be, while still reining in the power of lower-level agencies and reining in the power of Congress to even give authority to those agencies.

That might seem like a tension at first. I actually think it has the same core goal, which is enhancing the power of the presidency, enhancing the role of the courts, and actually weakening as much as any other institution in American government the legislature.

Amna Nawaz:

And, Joan, as we know, the issue of abortion loomed large over this term as well, two years after the Dobbs decision overturned that constitutional right to abortions.

But this court basically punted on two related cases that came before them, one related to abortion medication, the other on access to emergency abortions. How did you look at those decisions?

Joan Biskupic:

Well, the first one, the one that ensured that women would still have access to mifepristone, the abortion medication, that was a logical outcome when they said the challengers there, the anti-abortion physicians who didn't even engage in any kind of abortion or prescription of this drug, that they didn't have what's known as legal standing, that they couldn't bring that case.

The other case from Idaho involving the ability to get emergency abortions for women who had complications in pregnancies, that one was a surprise. First of all, it was a surprise even the way the justices took it. They reached out to take that case. They allowed this Idaho law, a complete ban, to take effect.

They sidestepped that with an unusual compromise in the end, but I think that compromise that they had, saying that they were going to put it off for a while, that they should not have granted it in the first place, that they shouldn't have reached out, I think it just showed, though, that they're kind of champing at the bit to have another bite and a case that could really diminish access to abortion, what's left of it after they have rolled back constitutional abortion rights.

Amna Nawaz:

And, Steve, you have noted in your analysis before that, when the justices weren't unanimous in their decisions, we often saw this 6-3 split, which is clearly along ideological lines.

What does that say to you about the evolution of this Roberts court?

Steve Vladeck:

Well, I think what's striking, Amna, is, remember that the justices are choosing virtually all of their cases. And so it's not like this is a random cross-section of cases from lower courts that are just happening to split them ideologically.

What it shows, and I think what the Idaho abortion case shows, is that the six conservative justices know what they want to do and are taking the cases where they are going to be able to stake out what really are in the main ideological positions that are going to provoke the dissents of the three Democratic appointees.

We shouldn't be surprised by that, but I think it's striking that there were twice as many of those 6-3 ideological splits this year as last term. It suggests, as in the Idaho case, the court is just taking whatever the conservatives want to take, even if in some of these cases it is coming to regret that down the road.

Amna Nawaz:

I also wanted to ask what you make of some of the tone we have seen in the dissents in these cases from those liberal justices. What do you make of that? We have seen stronger language there.

Joan Biskupic:

Certainly stronger language, and it was escalating.

It had been building on the part of Justices Sotomayor, Elena Kagan, and Ketanji Brown Jackson, our newest justice. The anger, the passion, and I felt like when I was hearing some of those earlier dissents, it revealed what was to come.

They just are not able to make any kind of inroads. The six-justice conservative majority is really flexing its muscle. And I think Steve and I have observed that there is such a difference between a five-justice conservative majority and six, because they have got wiggle room. Somebody can drop off, and they can still be pretty bold in where they're going toward the right.

Amna Nawaz:

Steve, we should also note this is a court that's faced the same decline in public trust that all other American institutions have seen. Pew Research tracked a more than 30-point drop in Supreme Court's favorable ratings since 1987. That was as of summer of 2023.

And then we saw this slew of reports, many from ProPublica, raising questions about ethics concerns. The court adopted an ethics code late last year, but how do you look at that? Can they win back the public's trust?

Steve Vladeck:

I mean, Amna, yes, they can. I don't know that anything the court has done in the last couple of weeks has been in any way taking steps in that direction.

And it's really striking. Joan mentioned the voices of the three liberal dissenters. I think we have also heard the emerging voice of Justice Amy Coney Barrett. She is marking out position in between herself and the other conservative justices, Amna, where I think she actually is perhaps the most cognizant of the need to not look like they're jumping the gun.

In the Colorado ballot disqualification case, she wrote specifically about what message the court was sending to the American people. She seems worried about that. The problem, as Joan points out, is, there are now six. And so one's not enough. The fact that Chief John Roberts has really gone more over to the Thomas/Alito/Gorsuch win is part of why I think we're going to see this credibility gap continue to grow.

Amna Nawaz:

We have described this term as historic so many times, I have lost count. But, Joan, how would you briefly sort of describe the impact of some of their decisions and how you look ahead to the next term?

Joan Biskupic:

Where it was a turning point, I think, is in the immunity decision, the justices' regard for the presidency and the justices regard for themselves.

Even though they certainly protected the executive branch much more than any court has ever in American history, it also leaves to the court itself what are official acts, what are not official acts, which is the crucial question coming out of the immunity thing.

We talk about the imperial presidency. There was a certain imperial kind of oomph to what the justices did for the judiciary. And, also, I think, for John Roberts — Steve mentioned that Amy Coney Barrett is a little bit more in the center than how we would have regarded John Roberts once upon a time.

John Roberts, in this immunity case, in the regulatory movement of the justices against protections for environment, for labor, for public health, he has really shown himself to be much more vigorous in moving to the right and enforcing a certain kind of conservative agenda that he started his career with in Washington when he first worked in the Reagan administration.

Amna Nawaz:

Steve, what about you? How do you reflect back on this term and what are you looking for in the next?

Steve Vladeck:

Yes, I mean, I think there's no question that this term saw the most aggressive restructuring of the federal government since the New Deal, since 1937, we had a slew of Supreme Court decisions that really had helped to set the stage for the modern administrative state.

Whether that restructuring is going to be a good thing in the long term, Amna, very much remains to be seen. The early returns are not especially inspiring. And looking ahead to next term, they know as much as anyone that there's an election coming in November.

And how we are talking and looking at the Supreme Court next year is going to depend a heck of a lot, I think, on who wins in November and on whether we have a second Trump administration, where the question is, how much will that court stand up to a President Trump?

Or Joe Biden or another Democrat wins in November and we have more of the same. I think that's really very much all the play for. The problem is that the real watchword, the real takeaway is, all of these decisions in the cumulative are going to destabilize settled understandings of law, are going to destabilize the power of the federal government.

And in the long term, Joan is right, it's about the imperial judiciary and how much more judges are going to be deciding features of our everyday lives.

Amna Nawaz:

All right, that is Steve Vladeck and Joan Biskupic.

Thank you so much for your time and for your insights. We appreciate it.

Joan Biskupic:

Thank you.

Steve Vladeck:

Thank you.