By John Kruzel
WASHINGTON (Reuters) – Divisions within the U.S. Supreme Court have intensified during its nine-month term, which culminated this week in a ruling backed by the 6-3 conservative majority that ruled that former President Donald Trump significant criminal immunity for acts performed in the exercise of office.
A period in which the court limited the U.S. government’s ability to regulate the industry — following recent periods in which it rolled back abortion rights, expanded gun rights and rejected college admissions based on race — exposed ideological fault lines that reflect a deeply divided country.
These and other rulings have shifted American law significantly to the right.
Liberal Judge Sonia Sotomayor accused her conservative colleagues of embracing a dangerous expansion of presidential powers by ruling that Trump, now seeking a return to the White House, is immune from prosecution for some of his efforts to overturn his 2020 election defeat, which led to the January 6, 2021, attack on the Capitol by his supporters.
Trump is the first former U.S. president to be criminally charged and the first to be convicted. He is now the Republican challenger to the Democratic President Joe Biden in the November 5 US election, a rematch from four years ago.
“The relationship between the president and the people he serves has been irrevocably altered,” Sotomayor wrote in a dissent joined by his liberal colleagues Justices Elena Kagan and Ketanji Brown Jackson. “In every use of official power, the president is now a king above the law.”
Chief Justice John Robertswho is part of the conservative majority bolstered by the three Trump appointees, accused liberals in his statement of “scaremongering based on extreme hypotheses.”
Professor at Harvard Law School Mark Tushnet said that this term has deepened the ideological divisions within the highest American judicial body.
“The divide between conservatives and progressives, which existed before this term, seems to me to have hardened a little bit, although it’s not completely rigid,” Tushnet said. “The resentment, which was also evident before this term, seems to me to have been ratcheted up a notch.”
PUBLIC OPINION
The court’s standing in opinion polls is divided along party lines.
Before the June 2022 decision that ended the court’s recognition of a woman’s constitutional right to abortion, majorities of Republicans and Democrats had viewed the court favorably, according to Reuters/Ipsos polls. Since then, Democrats have grown less enthusiastic about it, while Republican approval has risen.
In December 2021, 57% of respondents — including 57% of Democrats and 55% of Republicans — said they had a favorable opinion of the court. A poll last month found that Democratic approval fell to 22%, while Republican approval rose to 69%, bringing overall approval to 41%.
A sustained push by congressional Democrats for Supreme Court ethics reform has made little headway this term, even as conservative justices have faced renewed scrutiny for actions outside the judiciary. These have included revelations that flags linked to Trump’s efforts to overturn the 2020 election were flown outside two of Justice Samuel Alito’s homes, and that Judge Clarence Thomas failed to mention that he had accepted lavish vacations from a billionaire benefactor.
Alito has said it was his wife who flew the flags. Thomas has said he saw the trips as the kind of personal hospitality regularly exchanged between friends.
‘JUDICIAL OVERCOURAGE’
Another ruling, made on ideological grounds, dealt a major blow to federal regulatory power last week. It overturned a 1984 precedent that had established a legal doctrine known as the “Chevron deference,” which called for judges to defer to federal agencies in interpreting laws they enforce.
Kagan said the court had expanded its power over the other two branches of the U.S. government — the executive and the legislative branches.
“A rule of judicial humility is giving way to a rule of judicial arrogance,” Kagan wrote. “In recent years, this Court has too often usurped for itself the decision-making authority that Congress has granted to agencies.”
The court’s liberals did not express their displeasure only through their written dissents.
“There are days when I come to my office after an announcement of a case, I close my door and cry,” Sotomayor said during a speech in May at Harvard University. “And there will probably be more days.”
The fierce debates within the court did not always run along the dividing line between conservative and liberal.
The court ruled 6-3 last month to allow abortions in Idaho for now when pregnant women face medical emergencies. But the justices let the contentious issue rest without actually resolving the underlying legal dispute.
Alito, Thomas and fellow conservative Neil Gorsuch were the dissenters.
“Apparently, the court has simply lost the will to answer the easy but emotional and highly politicized question that this case raises. That is unfortunate,” Alito said.
Jennifer Mascott, a law professor at Catholic University, said sharp dissent has a long history at the Supreme Court. Mascott pointed to cases using the term that “run counter to the narrative” that the court is ideologically divided or reflexively opposed to the regulatory “administrative state.”
Mascott pointed to the 7-2 court ruling, authored by Thomas, that upheld the Consumer Financial Protection Bureau’s funding mechanism, a victory for the Biden administration but a setback for the agency’s conservative critics.
But according to other legal experts, this term will be remembered for rulings that undermined federal regulatory authority and vastly expanded the president’s power, all of which received scant support from the court’s liberals.
“Under other circumstances, Chief Justice Roberts’ failure to enlist even a single progressive in the presidential immunity case would be viewed as a serious failure of leadership,” Tushnet said. “His tone in responding to the dissent, which is more vehement than I think necessary, may stem in part from that frustration.”
(Reporting by John Kruzel; additional reporting by Allenda Miglietta; editing by Scott Malone and Will Dunham)
