Theatre of the Court

Decision Days

The Supreme Court of the United States released their decisions on two cases Wednesday.  The first is Murthy (US Surgeon General) v State of Missouri . It’s about the Federal Government’s ability to “advise” social media platforms about posts that are factually inaccurate.  The Missouri Attorney General aimed the suit at the Biden Administration’s reaction to false Covid information. But the issue is much broader. It includes the FBI advising social media platforms about Russian disinformation efforts (like those that occurred during the 2016 election).  

The Court ruled that Federal agencies advising the platforms about false and misleading information is NOT an abridgement of the Media companies “corporate” First Amendment freedom of speech.  That’s an important consideration going into the 2024 election cycle, and in dealing with possible future pandemics.

The Court split six to three.  Chief Justice Roberts assigned the opinion to Justice Amy Coney Barrett. She wrote for the Chief, herself, and Justices Kavanaugh, Jackson, Kagan and Sotomayor.  Justices Alito, Gorsuch and Thomas dissented. They claimed the First Amendment right of corporations applies not just to laws, but also to Federal pressure in the form of “advising”.  

The second decision is an issue of state versus federal law regarding state officials accepting gifts. The Court, six to three, ruled that the Federal law on bribery doesn’t apply to “tips” or “fees” given to public officials without a direct quid-pro-quo. I’m sure they were thinking about Justices Thomas and Alito’s actions at the time.

Wrong Button?

Later in the afternoon, the Court “accidentally” released their decision on the Idaho abortion law case. After the Dodds case was decided and Roe was overturned, Idaho wrote the most restrictive abortion law in the nation. It was so restrictive that even women at risk for their health, organs, and even their lives were unable to get treatment.

That violated a Federal law requiring emergency departments to provide life and health saving “standards” of care. Groups sued in Federal District court to stop Idaho’s law. The District upheld Idaho, and the state then asked the Supreme Court to skip the appellate level and hear the case directly.

It takes four Justices to agree to hear a case, but five justices to reach a decision. After all of the hearings, the Court is “enjoining” Idaho from enforcing the state law, then sending the case back to the District court for re-hearing and Appeals. Basically, the Supreme Court is saying – we shouldn’t have taken the case in the first place.

How did this get released? It looks like a clerical error. Someone hit the wrong button. The decision was immediately taken down, so we’ll see if it appears on Thursday or Friday. If it stands, it’s a small short-term victory for pro-abortion folks, but not at all determinative.

Hold Your Breath

What’s missing?  The two seminal cases dealing with ex-President Trump and the Insurrection.  One case will determine if the President has immunity from prosecution for crimes committed while in office. The other will decide whether the law used to prosecute many of the protestors and Trump for disrupting a Federal proceeding is being applied correctly.  They’re both incredibly significant and timely. Both have direct bearing on the 2024 Presidential election, and the multiple indictments Trump faces.  

Both of these cases have been “hanging fire” for months.  Why didn’t the Court see fit to “expedite” these important decisions, and let the legal process continue to play out?  The Federal cases against Trump are stalled, waiting for a decision, either way, from the Court.  And that’s the point.

The Court will release decisions Thursday, and more again on Friday.  I would be shocked if the Court’s decisions on the two “Trump” cases came out Thursday. It’s the day of the first Presidential debate.  I believe the Court is hanging onto these, in a desire to take the Federal Court system out of the 2024 election as much as possible.  Ultimately, the majority on the Court doesn’t want the Federal charges against Trump determined prior to November. They don’t want the Court seen as “making the Presidential decision”.  So posting their decision(s) Thursday, up-staging the Presidential debate regardless of what the decisions say, just seems far too “political” for this divided Court.

Come Friday

Which leaves us waiting until Friday morning (at least) to learn the results of the immunity case.  It’s always dangerous to “predict” the Supreme Court, but after listening to the oral arguments on Presidential immunity, I suspect that the decision will be six Justices to three or even seven to two.  I can’t imagine that there’s a majority of the Court in favor of an unlimited  “get out of jail” card for a sitting President.  If they rule in favor of that, then Joe Biden could do literally anything he wants to do.

I suspect there may be a small, carefully drawn area of foreign policy where the Court might consider some immunity, but beyond that, the majority will vote to hold even a serving President as criminally accountable for her/his actions.  My guess:  the Chief Justice writes the majority opinion, with perhaps a concurrence or two from the more liberal judges narrowing immunity even more.  And then I expect a scathing dissent from Justices Alito and Thomas.  And, my best guess is the Court has waited for that dissent for weeks. That created the delay that served Trump so well, pushing his Federal trials until after November.

Come November

Why has the majority allowed this critical case held so long?  Because, in the end, they see the issue of Donald Trump and Democracy as “too important” to determine by Court or trial.  Instead, they want to allow the voters of the United States to make that final call.  

After the election, assuming Biden is the winner, the Court will move to defend the democratic voting system, and to allow Trump to be held accountable.  (If Trump wins on the votes, there won’t be a need to defend the voting system.  Biden and Democrats will accept the legal results). Until then, I expect the Justices will drop the decision out “the back door” of the Court on Friday morning.  It’s a short hop from the Court Building to Union Station: the Justices will catch the noon train out of town for the summer.