Waiting for the justices

Good morning! It’s Tuesday, June 27, 2023. The 2024 elections are 497 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.

If you’ve ever felt bad about procrastinating, perhaps the U.S. Supreme Court will make you feel better about yourself.

The justices are poised this week to wrap up their annual term — which traditionally runs from the beginning of October to the end of June — and they still have 10 more opinions to issue, including decisions in all of the most closely watched cases of the year.

Granted, the court always waits until the last week to unveil its highest-profile rulings: it was this week last year that the justices overturned Roe v. Wade, expanded gun rights, and shrunk the EPA’s regulatory power in a dizzying and consequential 8-day period.

But the Supreme Court has moved at a slower pace this year than any term in the last century; in recent years, the court has always had more opinions out by this point in June than they do now. In fact, two of the court’s lingering cases — the much-anticipated Harvard and UNC affirmative action disputes — were argued all the way back in October, meaning the justices have had nearly eight months to mull them over.

Why the historically slow pace?

The Supreme Court is, as ever, shrouded in mystery, so it’s anyone’s guess.

But, connected or not, it’s worth noting that the court is facing more internal turmoil behind the scenes than at any other point in recent memory.

First off, there’s still tensions simmering from the unprecedented leak of the draft Dobbs abortion opinion last year, which the court spent months investigating before announcing it was unable to identify a culprit. Politico recently reported on the lingering fallout from the leak, as the justices labor to build back the ironclad trust that once existed between them.

Then there’s the drip-drip-drip of ethics revelations that have emerged about several of “The Nine” in recent months, including ProPublica’s reporting on separate luxury vacations Justices Clarence Thomas and Samuel Alito have taken with Republican billionaires. Both Thomas and Alito failed to disclose the trips and declined to recuse themselves from cases involving the billionaires.

In addition, the Daily Wire reported that Justice Sonia Sotomayor declined to recuse from cases involving Penguin Random House, her own book publisher, and Thomas has been tied in other ways to his billionaire benefactor.  

It’s unlikely that the ethics reporting has directly slowed down the court’s opinions — but it has certainly distracted the justices of late, from giving public speeches on the topic to Chief Justice John Roberts having to respond to letters from investigating lawmakers to Alito writing up a rare retort in the Wall Street Journal editorial page. (ProPublica had a revealing story this weekend on the behind-the-scenes of Alito’s response, including the Supreme Court’s spokesperson telling the reporters Alito would not comment but asking them not to write that he had declined to comment.)

All of this — along with the continued backlash to Dobbs — has had the effect of pushing the Supreme Court further into the spotlight, even as the justices have worked to maintain their usual aura of secrecy. A Quinnipiac poll last week found that just 30% of registered voters now approve of the Supreme Court, the lowest marks the court has received since Quinnipiac began asking the question in 2004.

What can we draw from the opinions the court has issued this term?

After the court’s 6-3 conservative majority practically ran the table last year, this term has — so far — featured a handful of notable liberal victories.

In Haaland v. Brackeen, conservative Justices Roberts, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined the three liberals (Sotomayor, Elena Kagan, and Ketanji Brown Jackson) in siding with Native tribes to uphold the Indian Child Welfare Act, which sets Native adoption policy.

In United States v. Texas, Roberts, Gorsuch, Kavanaugh, Barrett, and Thomas all joined with the liberal trio to reject a challenge to the Biden administration’s immigration policies.

And, perhaps most notably, in Allen v. Milligan, Roberts and Kavanaugh teamed up with Sotomayor, Kagan, and Jackson in ordering Alabama to redraw its congressional map to create a second majority-Black district, which will likely hand Democrats an additional House seat. (On Monday, the court issued an unsigned order that will likely lead to the same result in Louisiana.)

All in all, in the 49 cases that have already been decided this term, the three liberal justices were in the majority in 42 of them. That shouldn’t be terribly surprising: despite the image of the court as sharply ideologically divided, the most common result in Supreme Court cases is usually 9-0. (The only recent term where that wasn’t true was last year, when 6-3 decisions were more frequent than 9-0 decisions amid the spree of conservative victories.)

What is somewhat surprising, though, is that the liberals have found themselves in the majority even in non-unanimous cases. So far this term, the most common dissenters have been Alito, Thomas, and Gorsuch — the court’s most conservative justices — who have been in the majority only 37, 38, and 39 times, respectively, each less than all three of the liberals.

A high number of unanimous decisions are always a given. But this term has seen an unusual number of 8-1 and 7-2 splits with conservative, not liberal, dissenters, a break with recent history. As of last month, Supreme Court stats guru Adam Feldman concluded that liberal justices have dissented less this term than in any other year since 2005.

But don’t go declaring this term a win for the Supreme Court’s liberals just yet. While the court does usually decide a majority of its cases with cross-ideological coalitions, that is generally due to the lower-profile cases that come out early in the year. The decisions at the end of the term — the ones coming out this week — are when the court tends to live up to its ideologically divided stereotype.

The liberal victories (and conservative dissents) we’ve seen so far are worth keeping in the back of your head, but any final conclusions about this term should wait until the remaining, most prominent decisions come out.

So, what’s coming down the pike this week? Here are the major issues set to be decided:

• Affirmative action. The conservative justices’ questioning at oral arguments led most observers to predict that they will rule against race-based affirmative action for college admissions in some fashion, which would create dramatic changes for universities across the country. But it’s unclear how far the justices will go: they could opt for a narrow decision striking down the Harvard and UNC programs, while still allowing race to play some role in admissions processes.
• Student loans. Six Republican-led states have challenged President Biden’s plan to wipe away up to $20,000 in student loan debt for federal borrowers. The recent decisions in Haaland v. Brackeen and United States v. Texas (see above) have given progressives some hope that the justices will rule their way — since conservatives rejected GOP-led states’ standing to sue in both cases — but the questioning at oral arguments was certainly not sympathetic to the Biden program.
• Election law. In past opinions, some of the conservative justices have expressed support for a radical doctrine known as the “independent state legislature theory,” which argues that only state legislatures — not state courts — are allowed to set election rules. In Moore v. Harper, a dispute stemming from North Carolina, justices are being asked to rule on the theory for the first time. Swing votes Roberts, Kavanaugh, and Barrett seemed skeptical during oral arguments, but even a decision embracing parts of the theory could upend redistricting and election law.
• LGBT rights. In 2018, the Supreme Court issued a narrow ruling in a closely watched case about whether a Colorado baker’s refusal to make a wedding cake for a gay couple violated the state’s anti-discrimination law. Now, the same Colorado law is before the court again, as a website designer asks whether she has the right to refuse to create wedding websites for same-sex couples. In 303 Creative LLC v. Elenis, the more conservative court has an opportunity to tread where the justices didn’t in 2018 and make a more expansive ruling on the intersection of gay rights and the freedom of speech.

All of these cases are expected to be decided this week. So far, the court has only announced one session for releasing opinions — this morning at 10 a.m. ET — but the justices will likely add others as the week goes on.

LORDY, THERE ARE TAPES

Several news outlets — including CNN, the New York Times, the Washington Post, and ABC News — have obtained an audio recording of former President Donald Trump appearing to brag about a classified military document in his possession after he left office.

The recording is from a July 2021 meeting at Trump’s golf club in Bedminster, New Jersey, between the ex-president, two aides, and the publisher and writer of his former chief of staff Mark Meadows’ memoir. The conversation was quoted in the federal indictment against Trump; the audio is likely to be played for jurors at Trump’s eventual trial.

In the tape, Trump can be heard rustling through papers and then producing what he described as a “highly confidential” document outlining a secret plan to attack Iran brought to him as president by Gen. Mark Milley, the chairman of the Joint Chiefs of Staff.

“Isn’t that interesting?” Trump can be heard saying. “It’s so cool.”

He continues: “As president, I could have declassified it. Now I can’t. But this is classified.”

And then an aide says, laughing: “Now we have a problem.”

In an interview with Fox News last week, Trump said he was referring in the recorded conversation to “newspaper stories, magazine stories and articles.”

“There was no document,” he insisted, a claim that seems to be undercut by the recording.

One notable reaction: Garrett Graff, the author of “Watergate: A History,” wrote on Twitter: “Speaking as a Watergate historian, there’s nowhere on thousands of hours of Nixon tapes where Nixon makes any comment as clear, as clearly illegal, and as clearly self-aware as this Trump tape.”

Listen to the audio by clicking on the video above.

MORE HEADLINES

The latest from Russia: In his first remarks since a short-lived uprising against him threatened his hold on power, Russian president Vladimir Putin declared Monday that his country was united and that “any attempts to create internal turmoil are doomed to failure.”

• More: Wagner Group commander Yevgeny Prigozhin, who led the 24-hour coup, also broke his silence on Monday, saying the rebellion was a mere “protest” of Russia’s plans to fold his private military into the defense ministry.

Speaking of the Trump investigations: The Justice Department’s other Trump probe — investigating his efforts to overturn the 2020 election — is “barreling forward on multiple tracks,” according to the Washington Post, with prosecutors examining “ads and fundraising pitches claiming election fraud as well as plans for ‘fake electors’ that would swing the election to the incumbent president.”

• Per NBC News: About half a dozen Secret Service agents have testified before the grand jury in the DOJ’s ongoing Trump investigation.
• Per WaPo: Georgia Secretary of State Brad Raffensperger — whom Trump asked to “find 11,780 votes” in an infamous phone call — will be interviewed by DOJ prosecutors tomorrow.

Speaking of the Supreme Court: The justices announced Monday that they will hear a case next term on the scope of the 16th Amendment, which gives Congress the power to levy income taxes. They also declined to hear a case challenging charter school dress codes.

An update to yesterday: In Monday’s newsletter, I offered my takeaways from the Faith and Freedom Coalition’s annual conference, which featured speeches from every declared Republican presidential candidate. In the piece, I noted that Trump was given the keynote slot at the conference’s Saturday night “Patriot’s Gala” (and allowed to speak for 90 minutes), while his rivals were given 20-minute morning time slots.

• I asked for comment from the conference organizers before publishing, but did not hear back until after the newsletter was sent. “The speakers were given the time slots that worked best for their schedules,” Faith and Freedom Coalition executive director Timothy Head told me in a statement. “This year, the gala worked best for Trump’s travel schedule, Friday morning worked best for DeSantis, Saturday morning worked best for Nikki Haley, and so on.”

More 2024 news: Florida Gov. Ron DeSantis unveiled his immigration plan in an event at the border Monday, his first formal policy announcement as a presidential candidate. DeSantis’ plan included ending birthright citizenship, sending the U.S. military to the border, and allowing law enforcement to use “deadly force” against migrants suspected of bringing drugs into the U.S.

• The new GOP: DeSantis also called for building a wall along the U.S.-Mexico border, borrowing a signature idea from Trump. Axios notes that nearly every GOP candidate now supports a border wall, including contenders like Nikki Haley and Chris Christie who were skeptical of the controversial idea back in 2016.

Quote of the day: “I think Tucker’s seeing it, Rogan’s seeing it, other people—the Tucker-Rogan-Elon-Bannon-combo-platter right, obviously some of us are farther right than others—I think are seeing it. It’s a new nomenclature in politics.” — Steve Bannon to The Atlantic on the populist energy fueling Robert F. Kennedy Jr.’s run for president

POLITICS PLANNER

All times Eastern.

President Biden is kicking into fundraising mode before the current campaign-finance reporting period comes to an end on Friday. The only events on his public schedule today are a pair of fundraisers in Chevy Chase, Maryland.

Vice President Harris has nothing on her public schedule.

Second Gentleman Emhoff is in Colorado for the Aspen Ideas Festival. He will participate in a panel discussion on antisemitism moderated by Katie Couric.

The House and Senate are on recess all week.

The Supreme Court will release opinions at 10 a.m.

On the campaign trail, several GOP presidential candidates are stopping in New Hampshire, the first-in-the-nation primary state:

• Former President Donald Trump will headline an annual luncheon in Concord hosted by the New Hampshire Federation of Republican Women and attend his state headquarters’ grand opening in Manchester.
• Florida Gov. Ron DeSantis will hold a town hall in Hollis. The women’s group hosting Trump has criticized DeSantis for scheduling his event at the same time as theirs, which a New Hampshire GOP strategist called “the worst strategic move he has exhibited thus far.”
• Former UN ambassador Nikki Haley will also hold a (separate) town hall in Hollis.
• Entrepreneur Vivek Ramaswamy will hold a town hall in Londonderry.

In federal court in Miami, Trump’s valet and co-defendant Walt Nauta will be arraigned this morning. Nauta, who is expected to plead not guilty to the six charges against him, appeared in court alongside Trump earlier this month but did not formally enter his plea because he had yet to hire a Florida-based attorney.

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