Members of the news media gather outside the U.S. Supreme Court, where justices made it clear that a sitting president cannot evade criminal investigations, ruling that a prosecutor in New York City can obtain President Donald Trump’s financial records including tax returns, in Washington, July 9, 2020.
Leah Millis | Reuters
On the last day of the first full Supreme Court term with his two hand-picked appointees on the bench, President Donald Trump spent the morning cursing the court.
“This is all a political prosecution. I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York,” Trump screamed on Twitter. “Not fair to this Presidency or Administration!”
The court, in a pair of 7-2 rulings, paved the way for a New York City prosecutor to access Trump’s tax records, and suggested that it was possible for Congress to do so as well, though it established a relatively high bar. All nine justices, even the dissenters, dispatched with Trump’s claim that he has absolute immunity from state criminal investigations. Though the rulings fell short of what the president wanted, they did effectively ensure the public will not see Trump’s tax returns before Election Day.
If it were possible to transport the Supreme Court’s tax rulings back to the most fiery days of the confirmation battle over Justice Brett Kavanaugh in 2018, it’s likely that Trump would not be the only person surprised. While Trump framed securing five conservatives on the court as an antidote to his own and his administration’s legal problems, many liberals worried that he could be right.
But the tax rulings are reflective of a somewhat more complicated trend that has been illustrated in the most recent blockbuster term. The court continues to issue rulings that fully satisfy nobody.
Or, to be more precise: The court has refused to give either Democrats or Republicans complete victories. (Native Americans do have reason to be satisfied with the court, and particularly with Justice Neil Gorsuch, who authored an opinion declaring that half of Oklahoma remains their land in an opinion that came down shortly before the tax rulings.)
Instead, the top court has defied expectations. It has moved incrementally, giving partial wins to both sides and leaving some of the most important questions to be decided after November’s presidential contest between Trump and presumptive Democratic nominee Joe Biden.
Not so simple
This approach, shepherded by the institutionalist conservative chief justice, has been disguised somewhat by the convoluted nature of Supreme Court opinions, and the order in which they were handed down.
In June, for instance, it might’ve seemed like the court had turned outright liberal.
In the space of just 14 days, the court ruled that workers can’t be fired for being gay or transgender; rejected Trump’s effort to shut down the Obama-era immigration program shielding hundreds of thousands of young migrants known as Dreamers; and struck down an abortion law in Louisiana that was nearly identical to one that Chief Justice John Roberts had voted to uphold just a few years back.
But looking under the hood on the opinions, it’s evident that the wins for liberals were more muted than they might seem, and are more than likely to be temporary.
Leah Litman, a law professor at the University of Michigan and a co-host of the Supreme Court podcast Strict Scrutiny, said that each of those June decisions either contains “explicit indications” that the issue will come back to the court in a way that benefits conservatives, or at least allows the precise legal question to come back in a future term.
The court’s decision on DACA, or Deferred Action for Childhood Arrivals, is the clearest case. The court was explicit about not ruling on the program’s legality, which remains the subject of litigation in the lower courts. The justices left open the possibility that they could strike down the program in a future case. And they did not close the door on Trump simply ending the program again with a more thought out process.
The limitations of the court’s abortion and LGBT rights opinions are slightly more technical, but not complicated.
Gorsuch, who authored the opinion protecting gay and transgender workers, did so in a workmanlike opinion that reasoned it was impossible to discriminate on the basis of sexual orientation or gender identity without, by definition, discriminating on the basis of “sex.” Sex discrimination was already outlawed by Title 7 of the Civil Rights Act, so Gorsuch’s opinion applied the law to gay and transgender workers.
Big question remains on LGBT rights
But the opinion left a cavernous question open, which was only deepened by some of the court’s decisions later in the term. What if an employer has a religious objection to a gay or transgender worker?
Gorsuch didn’t answer that directly, but three high-profile opinions handed down in subsequent weeks seemed to suggest the court as a whole is moving further in the direction of religious deference.
In those three cases, the court shielded religious schools from employment discrimination lawsuits, rejected a challenge to Trump administration rules allowing employers with religious or moral objections to deny contraceptive coverage to their employees, and said that if a state runs a scholarship program that funds secular schools, it can’t exclude religious schools.
Katherine Franke, the faculty director of the Law, Rights, and Religion Project at Columbia University, pointed to the case over religious objections to contraceptive coverage, which was decided on Wednesday, as an illustration of how LGBT worker rights could be narrowed in the future.
She said it showed how the court uses religious liberty to carve out “huge exceptions to general rules around workplace equality.”
“They give with the one hand and they take with the other,” Franke said.
A mixed bag
The top court’s decision on abortion likewise seemed to deliver only a short-term win for liberals.
In that case, the court’s four liberal justices voted to strike down a Louisiana law that threatened to limit the state to one abortion clinic on the basis that the law didn’t have any medical benefits and posed a substantial obstacle to women seeking abortions.
Roberts joined the liberals, but made it clear that he was only doing so because the court had struck down a nearly identical law in 2016. In future cases, Roberts suggested he will apply a more narrow formula to assessing the legality of abortion laws, a move that could allow measures as restrictive as Louisiana’s to be upheld as long as they are not identical to it.
Just how fast those laws could be declared lawful was illustrated a few days after the court ruled in the abortion case, known as June Medical Services v. Russo.
On July 2, the court ordered the 7th U.S. Circuit Court of Appeals to reconsider two Indiana abortion laws the appeals court had struck down, regarding parental notification and mandatory ultrasounds, in light of its decision in June Medical Services.
“That is a pretty strong indication that at least five of the justices think they’re too restrictive,” said Carolyn Shapiro, the co-director of Chicago-Kent’s law school’s Supreme Court institute.
Shapiro added that the fact that the court’s most high-profile cases seemed to be wins for liberals gave cover to some of the more consequential but under-the-radar wins for conservatives.
A decision that weakened the independence of the director of the Consumer Financial Protection Bureau, Shapiro noted, seemed to lay the groundwork for undermining other independent agencies that tend to be opposed by conservatives.
While the court’s mixed bag of opinions has so far failed to satisfy liberals or conservatives, just about everyone acknowledges that the situation could change quickly, particularly given the likelihood of another vacancy in the next presidential term.
Four of the nine justices are in their 70s or 80s. The eldest, Justice Ruth Bader Ginsburg, is 87 and has fought a number of health problems. Senate Majority Leader Mitch McConnell, R-Ky., has made it clear that he would work to fill any vacancy on the court quickly.
“Any one of those cases could have changed with one appointment,” said the University of Michigan’s Litman.