High Court, High Stakes: The Massive Weight of Recent Supreme Court Rulings

Jeff Fisher: The Court decided a lot of very important cases, but by way of expressing itself in extremely modest terms, saying, oh, we’re not doing very much. We’re just doing this little bit. We’re leaving this thing to the side or that thing to the side, but at the same time, handing down decisions that have enormously consequential effects for our democracy, people’s rights, and everything in between.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available. Today, I’m joined by my two co-directors of the Stanford Supreme Court Litigation Clinic and we’re going to do a roundup of this past term at the Supreme Court.

Jeff Fisher is a leading authority on constitutional law, federal courts, and Supreme Court practice, and a special focus on criminal justice issues. He’s argued 48 cases in the Court on issues ranging from criminal procedure to maritime law, which is his favorite, I think, and civil and human rights. His successes include the landmark cases of Crawford against Washington and Melendez-Diaz against Massachusetts, which persuaded the Supreme Court to adopt a new approach to the Constitution’s Confrontation Clause, Riley against California in which the Supreme Court for the first time applied the Fourth Amendment’s protections against unreasonable searches to digital information on smartphones, and Ramos against Louisiana, which established that the constitutional right to a jury trial requires unanimous verdict to convict. He’s also was co-counsel for the plaintiffs in Obergefell v. Hodges, in which the Court held that the 14th Amendment guarantees same sex couples the right to marry. 

Easha Anand joined the clinical faculty in 2023 and really hit the ground running. She’s already argued three cases before the Court. She came to Stanford from the MacArthur Justice Center, where she served as Supreme Court and Appellate Counsel and litigated police excessive force, prison conditions, habeas and other criminal defense and civil rights cases around the country, so it’s great to see you guys over the summer when we see each other a little bit less than the five times a week at minimum that we see during the school year. So if you had to kind of say, what was this term about? What struck you about this term? Where to start? 

Jeff Fisher: I guess I’ll start with the theme and then maybe we can talk different areas, but I think what strikes me about this term, where John Roberts really did reassert himself as being not just the Chief Justice on the Court in terms of his title, but also kind of the driving engine behind a lot of the Court’s decision making and the opinion writing is that the Court decided a lot of very important cases, but by way of expressing itself in extremely modest terms saying, oh, we’re not doing very much. We’re just doing this little bit. We’re leaving this thing to the side or that thing to the side, but at the same time, handing down decisions that have enormously consequential effects for our democracy, people’s rights, and everything in between, so there’s this sort of odd dichotomy from the Court, where it looks like it’s in words trying to take as low a profile as possible, but in deeds, I think becoming more and more influential on not just the daily lives of Americans, but even on the structure of government itself.

Pam Karlan: Yeah, it’s kind of interesting. He’s always had this, I’m just an umpire calling the balls and strikes back to his time during the confirmation hearings, but the Court this year made some major changes, and I think some of the ways in which they seemed not to be doing major changes were just a refusal to go as far as the most conservative judges on lower courts have gone.

Easha Anand: Yeah, I think that’s right. I think we continue to see the Fifth Circuit providing a little bit of Overton window cover for the Supreme Court, right? The Supreme Court gets to look like it’s tacking back toward the center because it doesn’t go quite as far as the Fifth Circuit. I think the other theme is the kind of newest justices, Justice Barrett and Justice Jackson, starting to develop their own voice and profile in the Court.

We see a lot of Justice Barrett writing separately to kind of put forward her own view of what originalism requires, in some cases saying we should be less reliant on history, in some cases more, in some cases saying we should be looking at, for instance, post ratification history, in some cases saying we shouldn’t, so sort of taking her colleagues to task a little bit on what originalism really means, and we see Justice Jackson similarly staking out a very separate set of positions from her liberal colleagues, perhaps most notably, breaking from Justice Kagan and Justice Sotomayor and announcing that she thinks Apprendi, a sort of seminal criminal defense case about the jury trial, right, was wrongly decided. Sort of surprising for a former public defender. 

Pam Karlan: One of the things and Jeff, you had raised this point almost immediately when the membership of the Supreme Court changed as it did with Justice Barrett coming on, is that the liberals on the Court no longer have any control over the Court’s agenda whatsoever.

For those of our listeners who aren’t aware of this, it takes four justices on the Supreme Court to agree to hear a case, and there now aren’t four liberal or moderately liberal justices on the Court, so that’s changed, I think somewhat, what kinds of cases the Court is taking. They’re not taking cases that only the liberals want to take, and there are some cases, and you’ve made this point numerous times, Jeff, where if you could get the Court to take the case, the Court would probably rule for the plaintiff or rule for the criminal defendant, but you can’t even get the Court to take those cases anymore. 

Jeff Fisher: Yeah, I think that’s right. I think there are, you know, maybe a handful of cases a year, half dozen cases a year, or maybe even up to 10 that are kind of missing from the docket now that the Court has changed its membership, and I think we focus so much on the Court’s decisions with the crescendo at the end of June that we often forgot to ask, we often forget to ask ourselves, you know, what cases did they decide to take or not to take in the first place? And that can be just as consequential, and I think the other thing that ties back into Easha’s comment about Justice Jackson, in particular, which I think is really fascinating is, you know, she wrote more separate opinions this term than anybody on the Court, which is really, I don’t know if that’s the first time a junior justice has ever done that, but it’s quite remarkable, and it’s part of this kind of overall thing that I’ve noticed, which is the Court is taking fewer and fewer cases, and yet, they’re busier than ever, and I think one reason they’re busier than ever is all these separate writings not just by the junior justices, but by all of them, and another reason, I think, is the shadow docket, and so, you know, the Court hears more and more emergency applications for relief and for stays and for quick decision making, and big political policy issues often sometimes than it ever has before, and so, even the nature of the Court’s work itself is changing, partly because of the shape of the docket and much more generally, because of the kinds of things it does nowadays.

Pam Karlan: Yeah, and they had two cases this year that were blockbusters in some ways, that came off of that shadow docket where they granted certiorari without there actually being a cert petition or the like, obviously the Ohio against EPA case, which we may talk about a little bit later, and then the EMTALA abortion case from Idaho, so they, I guess they were responding a little bit to the criticism that they shouldn’t be deciding these things without briefing and oral argument, but then it turned out in the abortion case, after they had the briefing and the oral argument, they threw up their hands and said, Oh, maybe we shouldn’t have taken this at all, and in the meantime, of course, several months had gone by and several women had to be airlifted out of Idaho to get, you know, reproductive health care in other states because the Supreme Court had jumped in maybe a little too quickly. 

Jeff Fisher: I was going to say, I think the other thing that might have happened in that Idaho abortion case is that is the Court saw where the votes landed at or after oral argument, which looked like Justice Barrett was going to join the three Democratic appointees to potentially create a 5-4 decision with men on the one side and women on the other ruling against the rights of the women in that case, and maybe quite possibly that punt in that case might be ascribable to that, which also underscores Easha’s other point about the influence of Justice Barrett that’s starting to emerge on the Court. 

Pam Karlan: Yeah, and, you know, and the other thing obviously is maybe the Supreme Court didn’t want to come down with an unpopular abortion decision in the middle of a presidential campaign where that’s a big issue.

Easha Anand: I think that’s probably right, and maybe that’s an explanation for both the Idaho EMTALA case, which you’ve alluded to, so as a reminder to our listeners, this was a case about an Idaho law that virtually never allowed for abortions, and had an exception only to save the life of the mother or in cases of rape or incest, and then in some respects, arguably conflicted with the federal law, EMTALA, that requires hospitals that receive federal funding, which is virtually every hospital, to provide stabilizing treatment to patients who arrive with an emergency medical condition, and the argument that the United States have made is, look, to the extent that Idaho doesn’t allow doctors to provide the kind of stabilizing care that EMTALA requires them to provide, the federal statute trumps the state law, and the Idaho law has to fall, and so the Supreme Court reached out, as you alluded to Pam, took this case before there had even been a judgment in the court immediately below, and then a few months later, threw up its hands and said, actually, we’re going to dismiss this case. The other case that you alluded to that sort of the punt on an abortion issue was a case where doctors and medical groups had brought a challenge to the FDA’s loosening of various restrictions around the prescribing of mifepristone, which is one of the drugs used in the medical abortion procedure, and there too, the Court punted, right? It didn’t say we think the FDA is right. What it said is that this particular group of doctors doesn’t have standing. That is, they aren’t sufficiently injured by the FDA’s decision to challenge what the FDA has done here. Now that decision is almost certainly correct, right?

The chain was highly speculative. The idea was the FDA’s changing of some of these requirements, for example, allowing the drug to be prescribed by non-physicians or to be prescribed via telemedicine rather than in person, would lead to more complications. Asterisks, turned out there was no empirical evidence for that.

Some of those patients with complications would go see some of these doctors. Asterisks, no evidence that had ever happened or whatever happened. Those doctors may be forced to perform treatments that were contrary to their sort of conscientious objections. Asterisks, not clear those are the procedures they would have to perform or that they wouldn’t be covered by various objections for various protections for conscience provisions, and therefore the Supreme Court held, you know, you’re just, this isn’t hurting you in any way, so you can’t bring suit. Both those cases, though, I think are not really wins for folks who care about reproductive rights. They’re simply punts, and so to circle back to your point, Pam, it’s not clear whether the punt is for now only, as in, we don’t want to decide this in an election year, or if the Supreme Court is really trying to get out of the business of adjudicating these abortion issues.

Pam Karlan: And speaking of election issues and hot button topics, the Supreme Court also had two guns cases this year, or maybe even three if you want to count the NRA case. Does one of you want to say a little bit about those cases? 

Jeff Fisher: Sure, I can start, so the first case, and maybe the big headliner was a case called Rahimi against the United States, which deals with the federal statute that bars various people from possessing firearms in the particular category.

An issue in that case was people who have a domestic violence restraining order against them. The Fifth Circuit had held that law unconstitutional, and the Supreme Court reversed the Fifth Circuit eight to one, holding that the Second Amendment right to bear arms does not extend to somebody who has a domestic violence restraining order, and the interesting thing about that case was it required the Court to grapple with and maybe rewrite a decision it issued just a few years ago in a case called Bruen, where it extended the Second Amendment right outside the home into public and said that firearm regulations should now be governed by the history and tradition of this country, and if you ask whether there’s a history and tradition of prohibiting people with domestic violence restraining orders or any other domestic violence issues from possessing guns, you’re going to find out the answer is probably no. That the more modern concern of legislators and society, but what the Supreme Court did is they said, Oh we don’t have to have a historical twin, which is what they’d suggested in their prior case, it’s enough to have a historical analog that we can abstract to a higher level of generality and say, yes, we have a history of preventing dangerous people from possessing firearms, and so the interesting thing in that case is really from a methodological standpoint, what that means going forward, you know, is the Court really loosening up this history and tradition test in ways that will matter in the Second Amendment and allow more regulation?

Or was it more of just sort of a policy decision on the justices part that for whatever reason, you know, they’re okay with this restriction, but when they see the next one, they might not think the same thing. The Court also dealt with a case involving restrictions on so-called bump stocks, which are devices that you can attach to guns to, in effect, make them operate like machine guns, and so the question was whether or not attaching that to a rifle to make it act like a machine gun then makes it subject to the regulations that cover machine guns. This was something the Trump administration started and the Biden administration continued after the horrible shooting in Las Vegas at a concert several years ago, and the Court, I believe, by six to three decision written by Justice Thomas and along party lines said that even though a bump stock makes a gun in many ways act like a machine gun, it’s not enough exactly like a machine gun to be regulated the same way, so this was purely a statutory decision, but in this case, coming down on the side, you might say of expansive conception of gun rights. 

Pam Karlan: Yeah, I mean, I thought two things that were interesting about these cases in Rahimi, as you said, the vote was eight to one, and the one who thought that the restriction was totally unconstitutional was Justice Thomas, who had written Bruen, and so it shows a point that we often say to our students, but might not be generally publicly understood, which is you can’t read a Supreme Court opinion as necessarily meaning, all the justices who joined it, signed on to everything in it, and so, Justice Thomas is saying, I wrote Rahimi and this is what it means. 

Jeff Fisher: I think you meant just say, I wrote Bruin and I know what it means. 

Pam Karlan: Yeah. Several justices who joined it said well, that’s, either that’s not what we think it means, or we’re not going to go that far, and then, of course, he wrote Cargill, which was the bump stock case as well, and one of the extraordinary things about that case was he put all of these diagrams into the opinion and the diagrams come out of the brief of a gun rights group and, you know, weren’t subjected to adversarial testing at all, and it’s an example, I think, of the Supreme Court saying we know better than the ATF how these guns actually operate and how they fit into the statute, which is something that the Supreme Court has shown in the Loper Bright decision. They want to generalize, and I don’t know, Easha, if you want to say a little bit about Loper Bright. 

Easha Anand: Sure, so this was a little bit of a blockbuster term in a lot of ways, but particularly for the administrative state. That is the apparatus of federal agencies that help the president carry out his agenda, so think, you know, the Environmental Protection Agency or The Department of Health and Human Services, the Department of Homeland Security. Alphabet soup of agencies that help the president carry out his agenda that are sort of feature of modern politics for many decades now, so for a long time, the Supreme Court adopted a regime of deference to those agencies, so that is, Congress would pass a law and the agency would be in charge of kind of figuring out the nuts and bolts of how you operationalize that law, right? The agency would be in charge of figuring out, okay, Congress says we’re supposed to protect public health or prevent water from being polluted or whatever it is.

We’re going to be the ones to figure out how many parts per million of this particular chemical can you discharge in these particular ways, these particular sites, and it is, Congress has neither the time nor the expertise nor the kind of political capital to get into that kind of nitty gritty, and so we defer to these kind of expert agencies.

The Supreme Court has come in now and reversed that. They’ve said that agencies don’t get what was called Chevron difference. The idea was where the statute left the question open, where Congress hadn’t spoken clearly to it, and there was some ambiguity, you kind of sided with the agency. Now, this sounds like a very big shift in the balance of power between courts and the administrative state, and it is in some ways, but as many of our colleagues have documented, Chevron’s kind of been on its way out for a little while, and so it remains to be seen whether this is as momentous a shift as it might have been 10 or 15 or 20 years ago, because many conservative judges and justices had already eschewed the use of this kind of deference in interpreting statutes and judging agency action.

Jeff Fisher: Easha, can I ask you a question? You know, I’m curious your views and maybe Pam yours as well. Even apart from the waning effect of Chevron on its own terms, I kind of wonder whether Loper Bright is as big as people say it is for two other reasons. You know, one is the Court says that courts can still look to what agencies think the law means, which may be, you know, grounded in expertise and experience, and in these really complicated, how many parts per billion cases, I still wonder whether lower courts, particularly given how much busier they are and resource constrained they are than the Supreme Court, might nevertheless defer in a lot of those cases, and then I also understand Loper Bright, although tell me if I’m wrong, to allow Congress, if it wishes, expressly to give the agency this sort of power, and the Court, I think, leaves for another day, I guess it’s not a guarantee, but leaves for another day at least any constitutional challenge to Congress, you know, letting agencies do this expressly, and all I understand Loper Bright to do is say, you know, Congress has to take at least that step.

Do you think those are mitigating factors or, you know, or is it still as big as some people say? 

Easha Anand: I think those are certainly mitigating factors, and, you know, I mentioned that Chevron had been waning in influence. The other piece of that puzzle is Chevron had been replaced with a doctrine in some ways, the major questions doctrine, which was basically the Court’s idea that if the statute was ambiguous, we assume that Congress didn’t actually want the agency to do anything too big or too sweeping.

This comes up in cases like the student debt relief case, and I think that combination, what it meant was, in the cases where courts would care significantly about the outcome in some ways, the non parts per billion cases, the major questions doctrine had already kind of sucked up that oxygen. Where the statute was ambiguous, the major questions doctrine was going to step in and say, we assume Congress didn’t want an agency to just do this huge thing without an express authorization to do, and so, where were you were left using Chevron was in the sort of parts per billion type cases, and to your point, Jeff, I think those are the cases where courts are least likely to go in and second guess the agency.

Pam Karlan: We’ve talked about abortion. We’ve talked about guns. We’ve talked about the administrative state, but of course there are two other big buckets of cases at the Supreme Court this year. One of them involving technology and the other involving Trump, so Jeff, do you want to say a little bit about the technology cases that were at the Supreme Court this year?

Jeff Fisher: Sure. The Court had a few different kinds of cases at the Court this term. One involved, actually two cases in one involving laws from Florida and Texas that sought to restrict the big tech companies like Facebook and YouTube from engaging in their ordinary, what they call content moderation on the website where the algorithm and other aspects of the way the platform works, select and curate and sometimes flag or even delete speech online, and the idea was, behind those state laws, was that the content feeds and things like Facebook’s newsfeed was slanted against conservative speech, so the idea was to try to force the platforms to have a more neutral and diverse set of point of views, and this was really the first time the Supreme Court had applied the First Amendment to social media, and so that’s maybe why that was such a big deal, and what’s interesting about what the Supreme Court did, I think, and Pam, you mentioned in the intro the Riley case our clinic did years ago. We asked the Court to apply the Fourth Amendment to cell phones for the first time, and really what the Court said there is, look, digital is different.

You know, you can’t just treat a cell phone just like another container, so all the information, all of our past cases don’t necessarily apply, and what was interesting about the tech cases this term is the Court kind of did the opposite, and in an opinion by Justice Kagan, she said, look, this is just the newest form of speech in our society and all the old rules about editors and publishers and content selection apply, and so, therefore, Facebook and Youtube and other companies like that have full First Amendment rights and consistent with our to use a phrase, history and tradition, you cannot tell private actors that they need to have greater viewpoint diversity or anything else. They get to choose what speech they present and how, and so I think that was maybe the biggest thing the Court did this term, and it sets the stage for probably many more cases to follow down the line about the social media platforms. 

Pam Karlan: You think there’s something weird about, I mean, it’s so interesting that the Court this term, of course, says, they’re just like every other editor, but a couple of terms back, because of Section 230 and causation questions, they seem to be treating the platforms a little bit differently than other editors. 

Jeff Fisher: Yeah, I think the question is whether that’s the Court doing it or just the law doing it. 

Pam Karlan: Yeah. 

Jeff Fisher: And so I think the way I understand Section 230 of the Communications Decency Act, which says that the platforms are immune for things like defamation lawsuits or the like, based on content that others provide post on their site is to give them statutory immunity for something they would otherwise be subject to suit for because they are in fact editors or publishers, so what the outcome is that they’re treated, you know, like an editor and publisher sometime, but not others, but it’s because the statute gives them a special immunity in certain circumstances, I think. That’s the way I understand it. 

Pam Karlan: Yeah I think you’re right about that, and it’s a kind of interesting, you know, they’re in between when you take all of the law and add it up, the constitutional and then the statutory. 

Jeff Fisher: And you might say, the lobbyists in Silicon Valley have done pretty well for themselves, so they get the First Amendment full protection when it’s useful, and when they, and when the status of editor or publisher might get them into trouble, they get protection from Congress, so it’s, I guess, it’s good to be a member of those companies right now, for the time being at least. Two other areas the Court issued important tech decisions, one in which, you know, Pam, you handled a case for our clinic and argued at the Court, involved public officials who use so-called private social media accounts to communicate with their constituents, and the question in this case was if they use their own account, but branded as their official way of communicating with their constituents and in fact, do official business over their own platform, whether that subjects them to First Amendment lawsuits as a state actor under the Constitution. The Court didn’t squarely decide either of the cases, including ours before it involving a couple from San Diego area who was banned from the social media platforms of local school board officials, but the Court did say that if somebody brands themselves as speaking in their official capacity and they have the authority to do so, that suits there can lie. We’ll see whether that applies in the future, as we’d all wondered in the past, to Donald Trump’s Twitter account, if he’s ever elected to public office again, or any number of other spats that may occur, involving a public officials use of social media. The Court kind of dipped his toe in the water, but didn’t really bite down too hard in those cases. 

Pam Karlan: That’s one of the things that really struck me was, you know, this issue first went up to the Supreme Court with the question of whether Donald Trump, who was then the president, could ban critics from his Twitter feed, and at that point, Donald Trump was arguing his Twitter feed was entirely private and therefore he shouldn’t be bound by the First Amendment in deciding to knock critics off, and one of the most ironic things is you get to this term at the Supreme Court and the Trump against United States case, which Easha will talk about in a moment, and the Court points to using your Twitter account as one of those things that might be official, even though earlier Donald Trump was arguing this is totally unofficial, so Easha, do you want to say a little bit about the biggest of the Trump cases at the Supreme Court, which is I think is Trump against United States. There was also one that nobody pays any attention to, which was a First Amendment case about whether the Patent and Trademark Office could refuse to trademark a guy who wanted to trademark the phrase “Trump Too Small” and put it on t-shirts, but he has been looming large at the Supreme Court, however much on the t-shirt market he wasn’t. 

Easha Anand: Fair enough. There’s been a lot of Trump activity. I agree with you that Trump versus United States is probably the biggest, so I think folks are probably familiar with the broad strokes of this case, right?

Special Counsel Jack Smith is criminally prosecuting once and maybe future president Donald Trump for various conduct in connection with his attempts to overturn the results of the 2020 election, and the Court, in an opinion written by the Chief Justice, basically says, look, presidential acts are divided into three categories and whether or not you can be prosecuted depends on which category you’re in, so category one is the core stuff. This is the stuff only the president can do, and no one can interfere with. Stuff like pardoning people, vetoing legislation, recognizing foreign governments. As to that stuff, can’t be prosecuted at all. Category two is the official stuff that’s not at the core, so it’s stuff that’s kind of within your authority as president to do, but is not at that core, and as for that stuff, you get at least presumptive immunity, so maybe you can be prosecuted, but certainly not if there’s any danger that the prosecution is going to intrude on the prerogatives of the executive, and in fact, we’re not going to tell you the answer, but it’s possible you can’t be prosecuted at all, and then bucket three is the kind of unofficial or private stuff. The stuff that you’re doing as a kind of ordinary citizen and not as the president. Working through the allegations about trying to overturn the 2020 election, the Court says, look, Trump tried to tell the DOJ to investigate different states and cast doubt on the results of the election, that’s absolutely immune.

No prosecution. That’s core presidential stuff. Conversations with the vice president about trying to get him not to certify the results of the election, that’s in that bucket number two. It’s official but not core, and so maybe you can prosecute it if you can show that prosecuting this kind of thing poses no danger of trenching on the executive prerogative, and then we’re going to remand for the trial court to try to figure out whether the other, stuff like talking to state officials and private parties to try to organize fraudulent slates of electors, stuff like public communications and as Pam noted, Tweets, levying false election fraud claims, whether that stuff was official or private to figure out whether it can be prosecuted, and oh, by the way, Trump gets one additional degree of protection, which is, if there’s immunity for something, you not only can’t be prosecuted for it, a prosecutor can’t use that conduct as evidence, so Justice Sotomayor, in dissent, gives the example of, let’s say the president gives a speech, say, I’m going to stop that legislator by any means necessary, then hires a private hitman to assassinate the guy. Private hitman, clearly private conduct can be prosecuted, but it would seem, on the majority’s telling, can’t use that speech as evidence in the prosecution about the private hitman, because that speech is speaking to the public as the president. That’s sort of an official act. I want to take one minute to just talk about the kind of separate writings in this case, because I think they’re somewhat significant.

I think the most important one is proven to be Justice Thomas’s concurrence. Justice Thomas concurs and says, agree with all of that. I’ve got one additional problem with this prosecution, which is that Jack Smith was not constitutionally appointed. The special counsel shouldn’t have been able to bring this prosecution in the first place, and a short time afterward, Judge Cannon, who’s the judge in Florida overseeing a different Trump criminal case, that’s the case about his mishandling of classified documents, dismisses the indictment saying, I think Justice Thomas is right. I think that Jack Smith was not constitutionally appointed as special counsel, and therefore, he can’t bring this prosecution at all, so when you look at the four Trump criminal cases, right, we’ve got the overturning the 2020 election case, which the Supreme Court has cut some of the legs out of and is remanded for a very time consuming determination of what can go forward. We’ve got the Florida case on classified documents, which has been dismissed altogether.

We have the one criminal conviction that’s already on the books out of New York. That case is almost certainly about private conduct, but the Supreme Court’s ruling about evidence of official acts coming in has given the Trump legal team a basis to try to overturn that verdict, and then you’ve got the Georgia prosecution about trying to subvert the results of the election in Georgia.

That’s find me 11,000 votes phone call, and the Supreme Court decision doesn’t answer all the questions about whether or not that would be subject to prosecution. 

Pam Karlan: I mean, geez, it seems like not since the kind of heyday of really creative death penalty lawyers has any defendant been able to delay so many proceedings, throwing up so many roadblocks to actually getting the case adjudicated.

Easha Anand: I think that’s absolutely right, and as our listeners may recall, even before issuing this opinion, prescribing this sort of complex, multi-part inquiry that will surely take some time to work through, the Supreme Court had taken an extraordinarily long time to adjudicate this case, given the sort of time sensitive nature of it, right?

So, Jack Smith had gone up there in December and basically said, look, we’ve got to get this trial done before the election, so can you please decide on this as soon as possible? And the Supreme Court took ages to decide whether or not it was even going to hear the case, then ages more to brief the case, and then ages more to issue the opinion.

Contrast this with the way that the Court handled, for instance, Trump versus Anderson. The case about whether or not Donald Trump could be on the Colorado ballot, despite some Court’s conclusions that he had led an insurrection. The way it handled cases like the OSHA test or vaccinate mandate last term.

The way it’s historically handled cases of electoral significance like Bush versus Gore. You’ll see that this case took many, many times as long to adjudicate, and so even before we got the opinion itself, the sort of delay, delay, delay tactic had proven remarkably effective.

Pam Karlan: Well, and the thing that’s amazing about the opinion, and you kind of alluded to this is it doesn’t even really resolve very much.

That is, it’s, with the exception of saying that you cannot prosecute him for what he did with the Justice Department, and you can’t use what he did with the Justice Department as evidence, it’s not clear what else in the prosecution is actually prevented, you know, which of these things actually was an official act, and the other thing is that the court came up with this remarkably expansive definition of what an official act of the president is. I mean, generally, you know, if you compare this to go back to what Jeff was saying earlier to what they treat as an official act of a school board member or presumably almost any other official, it’s like you have to be authorized to do the stuff you’re doing. It’s not just any random thing, and then in the Trump case, the Court says, well, you know, presidents, it’s not just talking about things that are within their responsibilities. It’s also talking about anything, like if there’s a national tragedy, the president, people will want to hear from the president because he’s the president.

Jeff Fisher: I mean, I guess the thing that occurs to me about this conversation, and Pam, I know you teach constitutional litigation and immunities is, you know, when you ask what an official act is for purposes of an immunity, I think it does tend to be pretty broad, because the whole point of an immunity is to get courts away from second guessing particular applications of some power somebody has, and if it falls into their general ability to, you know, direct the military around or speak to the Department of Justice or whatever else, then, you know, I think they tend to be covered by immunity, so I think the real question in the Trump case for me, cause I do take it to be a really big win for Trump, even going forward is, you know, what’s motivating the Court to, in effect, confer such broad protection on the president and, you know, the former president himself, and I guess the office going forward, and I guess the thing that I take away from this, and I’m also curious about this, Pam, you know, cause you teach voting rights is I think of the two Trump election cases, the January 6th case and the Colorado case, both these instances were that where the conservative majority is saying we don’t want any part of this.

We don’t want to be involved in choosing sides in these battles, and it’s kind of like the ritual against Common Cause case for me, where Chief Justice Roberts wrote an opinion saying, we’re not going to police partisan gerrymandering with constitutional principles because, you know, it’ll just sully the Court and get the Court involved in politics.

Now, of course, by choosing not to participate, you are in effect still making a very meaningful choice, and that’s maybe even more true in the Trump situation, but that seems to me the through line of the Court thinking to itself, you know, we don’t want to get sullied into this business, and we’re also worried that going forward, if we did, especially on the January 6th prosecution, that there’s gonna be a tit for tat, and so the next president, whether it’s President Trump or whoever it may be, is gonna indict Joe Biden and all the way down the line, and so they seem to be so worried about the Court, and this is so strikingly different from past courts who saw their role as stepping in to protect democratic values when they were otherwise breaking down, so I think it seems striking to me. 

Pam Karlan: Yeah, I mean, I think you’re absolutely right that some of it is the Court, on the one hand, not wanting to be involved, but not being involved is itself an involvement in a way, right? I mean, there’s that old line. I can’t remember if it’s Justice Cardozo or it’s Justice Brandeis, it’s just sometimes the most important thing we do is not doing, and the thing here that’s so ironic about it is that what they’re really saying is we have to give the former president immunity in order to protect the executive branch, but of course, the current executive branch is saying we think it’s important to prosecute here, and as you say, Jeff, this is about what I think of as the most fundamental form of accountability, which is elections, and I think the Supreme Court has shown itself, this Court, as really quite uninterested in protecting the democratic process. I mean, they’ve been very hostile on voting rights cases. This term, for the first time, they announced that political gerrymandering is totally legitimate. I mean, the Rucho case that you spoke about, the Court did not say, political gerrymandering, trying to barricade yourself in office so the voters can’t vote you out, they didn’t say it was legitimate. They just said, we’re not sure that we can come up on our own with a way of regulating it, or stopping it, but they left open all sorts of other mechanisms for getting rid of political gerrymandering, you know, independent redistricting commissions, state constitutional rules, and several states have used those, so they weren’t saying, it’s a good thing, political gerrymandering. They were just saying we can’t fix it. This term, by contrast, in the Alexander against South Carolina case in South Carolina Conference of NAACP case, the Supreme Court came right out and said, political gerrymandering, trying to screw your opponents over is a legitimate defense that you can use when somebody says you’ve taken race into account too much, and so I think the Supreme Court has come full circle on, you know, people wanting to barricade themselves in office and prevent elections from getting rid of them. 

Jeff Fisher: Yeah, I mean, both the Colorado case and the immunity case seem to me the opinions are written, and the great hope that no version of those questions will ever come back to the Court. 

Pam Karlan: Yeah, but that’s what’s so ironic is that like at the very end of the Trump case, right, the Court said, Chief Justice Roberts opinion says, look, we are writing for the ages. We are not focused on the exigencies of the thing in front of us, and yet, that’s what they’re, at the same time, they’re doing exactly what you say. 

Easha Anand: I suppose the only other thing I’ll say on this point is, you know, I think there’s a sort of interesting strategic decision on display between Justice Barrett and Justice Sotomayor that I think replicates in a lot of Supreme Court decisions.

They’re both obviously very worried about the breadth of the majority opinion, right? But they take very different tacks. Justice Sotomayor takes the tack of trying to call it out to the public, right? She says, read what the majority is saying. It’s basically telling you, you can use SEAL Team 6 to assassinate a political rival and you are immune from prosecution with fear for our democracy, I dissent, right?

She’s sort of saying alarm bells. This is a huge fire and a threat to our system of democracy. Justice Barrett takes the opposite tack. I think she’s sort of just as worried about the majority’s breadth, but formally, she says she’s concurring in the opinion. She says, I’m concurring in the opinion.

I would frame things a little bit differently, and she goes on to lay out a test that would immunize a much smaller subset of conduct than the majority opinion would immunize, and so that’s the sort of other strategy that Supreme Court justices have used throughout time is, rather than dissenting and calling out the breadth of the majority, they concur and say, look, I understand the majority would actually be saying this much narrower thing, and so time will tell which strategy proves to be more effective, but it was interesting to see these two justices, who clearly share some of the same fears about what the majority is doing, take these very different tacks to try to respond to that.

Pam Karlan: Well, time will indeed tell, but we’re out of time for today, so I want to thank Jeff Fisher and Easha Anand for coming on to Stanford Legal. This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us improve and get new listeners to discover the show.

I’m Pam Karlan. See you next time.