At the end of another momentous term, the Supreme Court has issued major rulings that will reshape the law. Like much that the court does today, these decisions, in areas like administrative law, have been widely criticized as corrupt or illegitimate.
For the most part, this criticism does not give the Supreme Court enough credit. In case after case, it has rightly emphasized the importance of turning to historical understandings in deciding constitutional cases rather than imposing modern policy views. Most of the court’s decisions are principled and sound — most but unfortunately not all.
There were two particularly salient blemishes on the court’s performance this year — and they are particularly unfortunate because they related to Donald Trump.
Still, for most of the term, the court based its decisions on historical understandings. Perhaps most significant, it has imposed important limitations on the administrative state, sharply limiting the ability of agencies to impose regulatory fines without a jury and holding that courts, rather than agencies, will be in charge of deciding whether ambiguous laws forbid new agency initiatives. The court has also increased the power of cities to displace unhoused people from public spaces, curtailing an activist string of rulings from the Court of Appeals for the Ninth Circuit. In these cases, Justices Sonia Sotomayor and Elena Kagan dissented orally from the bench. Yet the same logic has led to some victories for the Biden administration, too.
The court rejected an important challenge to the Consumer Financial Protection Bureau’s appropriations structure in an originalist opinion by Justice Clarence Thomas, with an emphatic concurrence about the importance of history joined by the cross-ideological group of Justices Kagan, Sotomayor, Brett Kavanaugh and Amy Coney Barrett. The court upheld a federal gun control statute dealing with domestic violence by an 8-to-1 vote, with many justices thoughtfully discussing the role of history in shaping these cases.
In other high-profile cases, the court has insisted on enforcing the Constitution’s limits on judicial power, rejecting challenges brought by conservative activists because they lacked standing to bring those challenges into federal court. In doing so, the court showed that the doctrine of standing, which has often been used to curb lawsuits by environmentalists and consumer protection groups, can also be used to block right-wing lawsuits and is not just a shield for one cause or ideology.
Many of these rulings curtailed an equally activist string of rulings from the more conservative Court of Appeals for the Fifth Circuit. The Supreme Court’s performance as a principled, neutral arbiter is especially important as partisanship and lack of perspective seem to seize so many other public and private institutions. We need the court to adhere to neutral principles of law, derived from text and history, more than ever.
Which leads us to the unfortunate cases that deal directly with Mr. Trump.
In the first, Trump v. Anderson, the court overturned a decision by the Colorado Supreme Court that Mr. Trump was ineligible for the state’s ballot because he had engaged in the insurrection of Jan. 6, 2021. The state court had relied on Section 3 of the 14th Amendment, which forbids holding federal office by anyone “who, having previously taken an oath” as an “officer of the United States” to support the Constitution of the United States, “engaged in insurrection or rebellion against the same.”
The Supreme Court swiftly overruled the decision without even confronting the question of whether Mr. Trump had engaged in an insurrection or was therefore disqualified from office. Instead it concocted an argument, not raised by any of the parties, that states specifically lack the power to consider this part of the Constitution in making ballot access decisions.
Trump v. Anderson’s holding lacked any real basis in text and history and also is at odds with the basic structure of the Electoral College, in which states have primary authority to decide how their slates of electors are chosen. The ruling’s real function was to let the court reverse the Colorado Supreme Court and avoid the political firestorm that might have ensued, without requiring the court to take sides on what happened on Jan. 6.
In the second, Trump v. United States, the court announced broad and novel principles of presidential immunity from criminal indictment for official acts, opining at length about how these principles might apply to the criminal prosecution against Mr. Trump for attempting to overthrow the 2020 election. While the court rightly rejected the absolutist arguments made by Mr. Trump’s lawyers, it still put a broad and vague shield over the presidency that will require extensive litigation in the lower courts before the prosecution can go forward — if it ever does.
The court’s reasoning went well beyond any specific part of the Constitution or any determinate constitutional tradition. Its methodology was explicitly grounded in Nixon v. Fitzgerald, a policymaking precedent from the 1980s akin to ones the court has criticized elsewhere. Justice Barrett, who joined only part of the majority, wrote a concurring opinion proposing a narrower, much more grounded form of immunity limited to core executive acts.
What is going on? Some critics say that everything the court does is generally unprincipled and illegitimate, which is not correct.
Others may suggest that the court is pro-Trump, that it is twisting the law in order to help the most recent (and potential future) Republican president. But that is highly doubtful, too. Among other things, Chief Justice Roberts, the author of Trump v. United States, was repeatedly attacked by Mr. Trump.
What is more likely is that in these cases, the court sees itself as trying to save the country from other institutions’ disproportionate responses to Mr. Trump. It believes that lower courts and the Justice Department have succumbed to a version of Trump derangement syndrome, which is said to afflict so many liberal elites and even Never-Trump conservatives.
Indeed, in Trump v. United States, the court aristocratically insisted that “unlike the political branches and the public at large,” the Supreme Court was taking the long view, not thinking about Mr. Trump’s situation in particular.
The court is motivated by statesmanship, which the country sorely needs today. The problem is that this statesmanship is a form of the kind of outcome-oriented policymaking that the court disparages in other contexts. It trusts states to handle the homelessness crisis but not ballot access for insurrectionists, even though the Constitution trusts states with both. It trusts juries to handle fines for securities fraud but not punishment for abuse of the presidency, even though the Constitution trusts juries with both.
When dealing with Mr. Trump in particular, the court is so sure that our other institutions cannot be trusted that it fails to look in the mirror.
William Baude (@WilliamBaude) is a professor of law at the University of Chicago Law School and a host of the podcast “Divided Argument.”
