As the Supreme Court term nears its end, the Court has issued a series of decisions in many blockbuster cases, including overturning Chevron deference, upholding a law disarming domestic violence offenders and applying obstruction laws to January 6 prosecutions. Sarah Isgur of The Dispatch and Marcia Coyle of The National Law Journal join Jeffrey Rosen to review the Supreme Court’s most important decisions from this term so far.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, Harry Hou, Shailee Desai, Tyler Shasteen, and Yara Daraiseh.
Participants:
Marcia Coyle is the chief Washington correspondent for The National Law Journal. A lawyer and journalist, Coyle has covered the Supreme Court for 20 years. She regularly appears on PBS News Hour and is a contributor to the NCC’s Constitution Daily blog.
Sarah Isgur is currently a staff writer at The Dispatch, hosts the legal podcast Advisory Opinions, and frequently appears as a legal analyst on cable news. Prior to joining The Dispatch, Sarah served in the Justice Department as the director of the Office of Public Affairs and as senior counsel to the Deputy Attorney General.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Fischer v. United States (2024)
- Loper Bright Enterprises v. Raimondo (2024)
- United States v. Rahimi (2024)
Excerpt from Interview: Marcia Coyle explains that the Supreme Court's decision on a statutory interpretation case involving obstruction of official proceedings hinged on whether the phrase "otherwise" was defined by preceding clauses.
Marcia Coyle: This is the kind of case that is really sort of the meat-and-potatoes work of the Supreme Court. It's a statutory interpretation case. They have a law that has basically, you know, I would say two clauses. The first clause talks about, you know, obstructing official proceedings by the destruction or use of documents, records, blah, blah, blah, you know, that way. And then thrown at the end is, or otherwise obstructing the official proceeding, but not defining otherwise. Does the first part of the step they provision define otherwise? Is otherwise more of a catch-all phrase that there could be other ways of obstructing an official proceeding? So the court had to deal with that. And the Chief Justice said that the first part of the provision does define the otherwise at the end.
And that is an approach to statutory interpretation that is not uncommon at all. In fact, they had another case which he mentioned very recently, in which they faced a similar situation as to whether the first part of the provision governed the last part of the provision. And said that, yes, it did. So that's how he found that, no, this statute, you have to have some destruction or use of records, documents, whatever, as you intend to obstruct an official proceeding. The dissent, of course, saw it very differently. They felt that otherwise could be read to be a catch-all provision, that certainly there were other ways to do this. But again, the majority said, well, look at what this law originally was intended to do. As Jeff, you pointed out, this was a post-Enron statute in which Enron, you know, did engage in widespread document destruction in order to defeat an obstruction of justice charge. So it was unusual in the lineup here 'cause you saw Justice Jackson joining the conservative members of the court in the majority, and you saw Justice Barrett in the dissent and writing the dissent for the court.
And how important this is going to be, you know, I'm not sold that this is hugely important, to be honest with you. It may affect a couple hundred, well, maybe not even that many, defendants in the January 6th prosecutions for two reasons. One, after the oral arguments, I've been told that the DOJ, the Department of Justice, saw the handwriting on the wall, and so they stopped charging this particular provision. And then, as for those who have been charged under this statute, there were other charges involved, and they may still face prosecution, or their convictions will stand based on other charges. Even Justice Jackson said in her concurring opinion, Mr. Fisher, who was the one who brought the case, he was a January 6th defendant, he may still be prosecuted under this very provision if the prosecution has some evidence of how records or documents may have flown through, you know, his activities when he was in the Capitol. And as far as President Trump goes, this was one of the charges in his indictment. He may still face it. Some have said that the slate of fake electors that went to I think the Vice President, or headed to the Vice President, it depends on whether that passed through his hands or his knowledge. So he may not be totally free from that charge as well.
It was just interesting to see the lineup and to see Justice Barrett. She, again, she's a textualist, and she thought if you look at the text and you read the otherwise language, that it was not confined by the records and documents part of the provision, that there are other ways of obstructing an official proceeding. And Congress, you know, Congress can't always, when it writes legislation, anticipate every possibility and try to cover every possibility. And that's why they had the language otherwise in this provision, so that, you know, if the country faced a similar situation that didn't involve records and documents, but this was an obstruction of an official proceeding and intended to obstruct, that you could still, the law still could apply.
Excerpt from Interview: Sarah Isgur argues that the Roberts Court is shifting power from the executive to Congress and the judiciary, as seen in its recent decisions, aiming to restore balance among the branches of government.
Sarah Isgur: I would argue that the lower courts have been using Chevron for the last 20 years as a shortcut to get to the decision they were gonna reach anyway. So I just don't think this will actually matter, but here's why it does matter, because it's part of what I'm now gonna call the admin law triumvirate of the Roberts Court from the last two terms. One overturning or rather striking down president Biden's student loan debt forgiveness program, which was done while sort of beefing up the major questions doctrine. This idea that Congress needs to speak clearly for the President to use and wield like huge powers that weren't specifically mentioned in these statutes. So that's really moving power from the executive back to Congress. The second case is the SEC case. It was actually also decided this week on whether for the sort of civil penalty type cases from the SEC that the SEC can be the judge and the prosecutor in those cases, or whether you get to do that in an Article three court with a jury, with the due process protections and federal evidentiary rules.
And the Supreme Court in that case also six three said, yeah, you get to go to a court for those things. And you have Justice Gorsuch noting in that case, for instance, that the SEC wins 90% of the cases that the SEC brings before the SEC, they can take six years to hear your appeal. You're sort of trapped in this administrative law anti-process. Hell versus 90% if the SEC tries you in front of the SEC only 69% when they're in Article III courts. So we know that it makes a huge difference. And for those who you know, I saw some of this conversation online. Well, but you could always appeal your case from the administrative law judge to the Article III courts. Yes. But they accepted the evidentiary findings and the fact findings of the A LJ and that was a huge problem because they were using non-federal court evidentiary rules. So different hearsay rules, no discovery, you know that was systematic like it would be in the federal courts.
So I think that's a really second pillar where you're moving power away from the executive branch and into Article III courts. The third pillar of this admin law revolution is Chevron. And it's, again, I said, I don't think this will make a huge difference, but the point is Congress is always gonna write statutes that can't cover everything. There's gonna be some ambiguity or some situation that has arisen. Who gets to decide what then the law says? Is it the executive branch or is it the courts that decide what the law says like they do in everything else? So this is, again, moving power from the executive into the courts. And of course, the theme of all this is moving power away from the executive. And so I think the Chevron case is important from sort of that first principles philosophical idea that our three branches of government has really been distorted over the last 40 years, and in particular, I would argue the last 15 years, as the executive branch grew first from administrative agency bloat, I would call it, just the huge proliferation of administrative agency actors and regulations, but then following on that and related to it are the executive action and the executive orders so that Congress had basically come to a standstill. So I see the court sort of trying to rebalance a healthy ecosystem there.
Another interesting point about the Chevron case was Justice Gorsuch's concurrence about how to think about stare decisis and when precedents can or should be overturned. And this is very much like Gorsuch being Gorsuch. As I said, I sort of refer to him as the Yolo justice. And so for him, precedent is, precedent serves a purpose as vibes, as he's sort of putting it in this concurrence. If there's a whole lot of cases that are all coming out the same way from our elders, they're probably onto something. But think of it more like Chesterton's fence. Instead of just taking down the fence before figuring out why it's there, assume that it's probably there for a reason and look into the wisdom behind that fence. But if there's just one plank of wood sticking up out of the ground, that does not make a stare decisis precedent make. And so he set out his three standards. One, a past decision may bind the parties to a dispute, but it provides this court no authority in future cases to depart from what the constitution or the laws of the United States ordain.
I mean, that's basically saying it has no purpose unless it is showing some wisdom, unless it has a point. That's very different from how stare decisis has been understood where incorrect decisions stand for the sake of stability and reliability. He noted that back in sort of the strong stare decisis days, think of like the Roe v. Wade era, the court was overturning about three precedents a year. Today it's only doing one to two, and yet it's known as the court that somehow is overturning a lot more. His second one, another lesson tempers the first. While judicial decisions may not supersede or revise the constitution or federal statutory law, they merit our respect as embodying the considered views of those who've come before. So that's the fence versus the single post. And then third, and this is the part that I found sort of most interesting and persuasive, it would be a mistake to read judicial opinions like statutes adopted through a robust and democratic process. Statutes often apply in all their particulars to all persons. By contrast, when judges reach a decision in our adversarial system, they render a judgment based only on the factual record and legal arguments the parties at hand have chosen to develop.
A later court assessing a past decision must therefore appreciate the possibility that different facts and different legal arguments may dictate a different outcome. That last line is actually quoting Justice Jackson without attribution, because I think it would have seemed sarcastic if he had put the attribution there, but quoting her from last term, because that's exactly something that she believes very strongly. And so, one of the Chevron babies was called Brand X, and it basically said that not only do you defer to the agency interpretation, but the agency can change its interpretation in different administrations. And in fact, the Brand X case was about broadband. That agency interpretation changed through all of the last four administrations each time there was a new president. So Chevron didn't create stability. It didn't sort of create the purpose of precedent and stare decisis to have reliance on the law. In fact, it had created the opposite. The laws were flip-flopping around every four years, even though the law from Congress had never changed. So if anything, I think my hope is less power to the executive branch, because again, if you watch that debate, I just think we should all be rooting for less power in the executive. And two, in theory, we should actually be seeing more stability in the law as agencies are tied down to a single interpretation of the laws that Congress passes rather than getting to change it as the president changes.
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