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Vox
02-07-2025
- Politics
- Vox
What the Supreme Court did to America while all eyes were on Trump
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. There are two big winners in the Supreme Court's most recent term. One is social and religious conservatives. In the last two days of its term, the Court imposed heavy new burdens on public schools at the request of religious conservatives, and it rendered much of federal Medicaid law unenforceable in a case lashing out at Planned Parenthood. It heard its first major pornography case in over two decades, upholding a Texas law that seeks to limit youth access to porn. And the Republican justices handed a historic defeat to transgender Americans, permitting states to block at least some trans people from receiving gender-affirming medical care. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Four justices also voted that the Constitution requires most states to fund religious public charter schools. And Justice Amy Coney Barrett, who was recused from this case, is likely to provide the fifth vote for religious public schools in the future. Indeed, as I'll explain in more detail below, the Court's Republican majority is willing to tear down major American institutions in order to advance the cultural right's political goals. Another winner is President Donald Trump. One year after the Republican justices ruled that Trump is allowed to use the powers of the presidency to commit crimes, these same justices continue to treat him as the special favorite of the laws. The Court's most high-profile Trump-related decision, Trump v. CASA, placed vague new restrictions on lower courts' power to block Trump administration policies. This decision is defensible — the Biden administration sought a similar ruling while it was in power — but it is notable that the justices waited until a Republican was president before weakening lower courts' power to rein in the executive. Even before the CASA decision, however, the Court frequently blocked lower courts that ruled against the Trump administration. When lower courts block Trump's policies, the Republican justices routinely reinstate those policies on the Supreme Court's 'shadow docket,' a mix of emergency motions and other matters that the justices consider on an expedited basis. There was also one unexpected loser this term: the business and fiscal conservatives that have historically dominated the Republican Party. In the same week that the Court handed down most of its biggest decisions, it also rejected an attack on Obamacare. And it waved away a request to put drastic new limits on federal agencies' power to regulate business. So, while the Court now hands out victories to the cultural right as if it were passing out candy on Halloween, several of the GOP justices did show more moderation on the kinds of issues that preoccupied Republicans as recently as a decade ago. It was a lot to keep track of, especially given Trump's ability to dominate the news, so here's a quick rundown of how the Court reshaped the law during its recent term. The Court gravely wounded key American institutions to benefit social conservatives At least two cases this term did serious harm to institutions that millions of Americans depend upon, both in decisions that benefited cultural conservatives. In Mahmoud v. Taylor, the Court's Republican majority ruled that public schools must inform parents before their children are taught a lesson those parents might object to on religious grounds, and that those parents must be given an opportunity to opt their child out of that lesson. The Supreme Court used to treat public schools with more respect. Mahmoud arose out of a dispute over queer-themed books — Montgomery County, Maryland, approved several books with LGBTQ characters that could be used in classroom instruction. But the First Amendment prohibits discrimination among people with different religious beliefs. So, if parents with anti-LGBTQ religious views have a right to notification and an opt-out, so too does every parent who might object to any lesson on any religious ground. This rule, as Justice Sonia Sotomayor warns in a dissenting opinion, is likely to cause 'chaos for this Nation's public schools.' Requiring every public school teacher to anticipate which lessons might implicate a parent's religious beliefs 'will impose impossible administrative burdens on schools,' especially in a nation as diverse as the United States. In the past, courts have rejected similar lawsuits brought by parents who object to books or lessons that feature magic, women who have achievements outside the home, and include topics as diverse as divorce, interfaith couples, 'immodest dress,' and 'false views of death.' After Mahmoud, however, all of these parents now have a right to advance notice. Schools that fail to predict that a lesson about a Jewish woman with a career, a Hindu husband, or an immodest wardrobe will offend a parent's religious belief will now face very serious financial consequences. Federal law often lets the 'prevailing party' in a suit about constitutional rights collect attorney's fees from the losing party. So lawyers can hunt for parents with idiosyncratic religious views, file a lawsuit against a school, and demand payment to avoid litigation that will be even more expensive for the school district. The Supreme Court used to treat public schools with more respect, out of concern that the Constitution should not be read to prevent such an important institution from functioning. Like the right to free exercise of religion, the right to free speech is also protected by the First Amendment. That is why the Court held in Tinker v. Des Moines (1969) that public school students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' But Tinker recognized that free speech should not be used as a weapon that can shut down classroom instruction altogether — if any student could get up in the middle of class and start yelling, for example, their right to free speech would destroy every one of their classmates' right to an education. And so Tinker also held that public school students may not engage in speech that 'materially disrupts classwork or involves substantial disorder or invasion of the rights of others.' The Court struck an appropriate balance between protecting free expression by young people, and making sure that public schools continue to produce an educated workforce that ultimately benefits every single American. That decision stands in stark contrast to Mahmoud, which establishes that the rights of religious objectors must be advanced at all costs, even if it would mean imposing such enormous burdens on public schools that every child receives an inferior education. A similar dynamic was in play in Medina, which pitted the GOP's disdain for abortion providers against a federal law permitting Medicaid patients to choose their own doctors. Just as in Mahmoud, the Republican justices handed a sweeping victory to social conservatives — seemingly without any regard for how their decision would damage Medicaid. Federal Medicaid statutes are riddled with provisions establishing who must be covered by Medicaid, how that coverage should be provided, and what minimum standards of care Medicaid patients are entitled to receive. South Carolina illegally forbade Medicaid patients from choosing Planned Parenthood as their health care provider. Rather than ordering South Carolina to comply with the law, in Medina the Republican justices effectively repealed the choice-of-provider provision. The question of which Medicaid laws can be enforced through federal lawsuits, and which provisions are essentially worthless, is one of the most important questions in American poverty and elder law and has been litigated for decades. But two years ago, in Talevski, the Supreme Court finally settled on a clear rule that judges could apply to identify which provisions are enforceable. If you want to know more about these many decades of litigation, I explain many of those details here. But the most important thing to know about Talevski is that it established that Medicaid laws which are 'phrased in terms of the persons benefitted' and that 'focus on the benefitted class' are enforceable. So, if a specific provision of Medicaid law mentions Medicaid patients, or otherwise names the individuals who are supposed to benefit from that law, it is enforceable. The choice-of-provider provision at issue in Medina refers to 'any individual eligible for medical assistance.' So it was enforceable under Talevski. Medina should have been an open and shut case. Yet, instead of following Talevski, the Republican justices produced an incoherent opinion that does not even announce a new legal rule, beyond a vague statement that Medicaid laws are 'especially unlikely' to be enforceable. Much of Justice Neil Gorsuch's opinion in Medina fixates on seemingly random facts about the choice-of-provider provision, such as the fact that it 'appears in a subsection titled 'Contents,'' as if that's somehow relevant to the question of whether this provision is a meaningless husk. It is impossible to come up with a principled explanation for why, two years after Talevski, the Republican justices decided to abandon that decision and replace it with a new legal standard that renders much of federal law completely useless. But it's certainly possible to come up with a political explanation. Unlike Medina, Talevski did not involve an abortion provider. Several of the Court's Republicans appear to have flipped their votes between Talevski and Medina in order to lash out at Planned Parenthood. The worst thing about the Medina decision is that the Republican justices could have come up with some good-for-this-ride-only legal reasoning that denied Medicaid funding to Planned Parenthood, but that otherwise left Talevski intact. Instead, they appear to have overruled Talevski and replaced it with a vague new rule that does little more than tell lower court judges that Medicaid plaintiffs should nearly always lose. It seems that, in order to spite Planned Parenthood, the Supreme Court stripped tens of millions of Americans of countless rights protected by federal law. Donald Trump's fixers Many of the Court's most consequential decisions were handed down on its shadow docket, a process that allows a party that lost in a lower court to seek an immediate Supreme Court order blocking that decision. This term, the Republican justices used the shadow docket to temporarily nullify the Convention Against Torture, a treaty that is supposed to prevent the United States from deporting noncitizens to countries where they may be tortured. The Court also used its shadow docket to effectively repeal federal laws protecting the leaders of several federal agencies from being fired by Trump, and to prevent lower courts from interfering with the chaotic work of Elon Musk's former office, the Department of Government Efficiency (DOGE). (In an unusual liberal victory on the shadow docket, the justices also ruled that Trump must give certain immigrants due process before he ships them off to a notorious Salvadorian prison.) The Supreme Court's shadow docket, visualized. Traditionally, the Supreme Court takes months or even longer before it decides a case. With rare exceptions, a case must be heard by a trial court and at least one appeals court before the justices will even consider taking it up. And getting the justices to hear a case is a bit like winning the lottery. Lawyers hoping the Court will review their case file over 8,000 petitions seeking such review in any given year, but the justices only grant about 60–70 of these petitions. Then, once a case is granted, that's only the beginning of a months-long process where lawyers submit briefs, the justices review them and hold oral arguments, and then they spend months working on the final decision. Contentious suits can wait an entire year for a decision, even after the justices announce that they will hear the case. The reason for this slow, highly selective process is that the Supreme Court has the final word on questions of US law. So if it gets a case wrong, that mistake can linger uncorrected for decades. The Court's plodding deliberation is supposed to minimize the risk of that happening. Beginning in Trump's first term, however, the Court started relying heavily on a separate, much less cautious process to decide cases involving Trump and his government. Historically, the Court's shadow docket was used primarily for death penalty appeals, where the petitioner seeking Supreme Court review would be killed if the justices did not act very swiftly. Litigants in non-death penalty cases could seek expedited review on the shadow docket, but it was so discouraged, and shadow docket petitions were so rarely granted, that smart lawyers typically decided not to annoy the justices with them. During the George W. Bush and Obama administrations, the Justice Department sought shadow docket review about once every other year. Now, however, whenever the Trump administration claims that it must have a Supreme Court order blocking a lower court's decision, the Court treats that claim as an emergency that must be tended to immediately. In Nken v. Holder (2009), the Supreme Court held that a party seeking shadow docket relief must do more than simply show they are likely to prevail if the Court hears their case on the merits. Among other things, they must also show that they 'will be irreparably injured' if the justices do not immediately block the lower court's decision. But, as Justice Ketanji Brown Jackson pointed out in a pair of opinions dissenting from two shadow docket orders, the Republican justices seem to have decided that the Trump administration is exempt from Nken, as they often grant shadow docket relief to Trump even when he cannot show irreparable injury. In Social Security Administration v. AFSCME, a case about whether DOGE may access highly sensitive Social Security data, Trump's lawyers didn't even make an argument that his administration would experience irreparable harm without Supreme Court intervention. Yet the Republican justices intervened anyway. As law professor Steven Vladeck has pointed out, the Court granted, at least in part, 'each of the last 14 [shadow docket] applications filed by the Department of Justice.' The federal government's exemption from Nken, moreover, only appears to be in effect when a Republican occupies the White House. In one dissenting opinion, Jackson pointed to several Biden-era cases where the Justice Department sought shadow docket relief from lower court orders. In some of those cases, the Court left the lower court's injunction in place for as much as a year, before finally concluding that the injunction was illegal after the case went through the much slower, traditional appeals process. The Republican justices, in other words, are manipulating the Court's calendar to benefit Trump. When ordinary litigants — or a Democratic administration — seek shadow docket relief, the justices often apply the traditional rules and norms that prevent them from granting those requests. But when Trump asks the Supreme Court to do him a favor, the Republican justices swiftly oblige. The Republican justices did abandon some fights pushed by business and fiscal conservatives While the cultural right was one of the biggest winners in the Court's recent term, the Republican Party's traditional business constituency fared less well. On the final decision day of the term, the Court handed down a ruling upholding provisions of Obamacare that require health insurers to cover certain treatments, as well as a decision rejecting an aggressive attempt to limit federal agencies' power to regulate business. Earlier in the term, a unanimous Court also rejected a suit challenging the FDA's decision to pull many nicotine vaping devices off the market. The Court's Obamacare decision, known as Kennedy v. Braidwood Management, aligns with broader trends within the Republican Party. During Trump's first term, the GOP famously tried and failed to repeal the Affordable Care Act in its entirety. Eight years later, the party has a more modest health care agenda, at least when compared to their ideas from 2017. Congressional Republicans are likely to enact deep cuts to Medicaid, but they are not pushing for full repeal of Obamacare. Decisions like Braidwood and Medina, in other words, closely track the Republican Party's agenda in Congress. Like their counterparts in Congress, the Republican justices voted to drastically cut back on Medicaid in Medina. But many of them voted to uphold key provisions of Obamacare in Braidwood. One common element in the Braidwood, the agency power case (FCC v. Consumer's Research), and in the vaping case, (FDA v. Wages & White Lion Investments), is that they all arose out of the US Court of Appeals for the Fifth Circuit, a court dominated by MAGA-aligned judges who routinely hand down decisions that are too extreme even for this Supreme Court. The Supreme Court frequently balks at the Fifth Circuit's decisions, but it does not do so all of the time. Just last week, for example, in Free Speech Coalition v. Paxton, the Court upheld a Texas law requiring pornographic websites to verify that their users are over age 18, despite a 21-year-old Supreme Court decision that struck down a nearly identical law. The Court took up the Free Speech Coalition case after the Fifth Circuit decided it wasn't bound by that two-decade-old decision. The best lesson to draw from cases like Braidwood, White Lion, and Consumer's Research, in other words, is that no matter how partisan or ideological the Supreme Court may be, there will likely be other voices within the judiciary pushing the justices to go harder. These voices will even sometimes succeed, as they did in the Free Speech Coalition case.
Vox
02-07-2025
- Politics
- Vox
What the Supreme Court did to America in 2025
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. There are two big winners in the Supreme Court's most recent term. One is social and religious conservatives. In the last two days of its term, the Court imposed heavy new burdens on public schools at the request of religious conservatives, and it rendered much of federal Medicaid law unenforceable in a case lashing out at Planned Parenthood. It heard its first major pornography case in over two decades, upholding a Texas law that seeks to limit youth access to porn. And the Republican justices handed a historic defeat to transgender Americans, permitting states to block at least some trans people from receiving gender-affirming medical care. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Four justices also voted that the Constitution requires most states to fund religious public charter schools. And Justice Amy Coney Barrett, who was recused from this case, is likely to provide the fifth vote for religious public schools in the future. Indeed, as I'll explain in more detail below, the Court's Republican majority is willing to tear down major American institutions in order to advance the cultural right's political goals. Another winner is President Donald Trump. One year after the Republican justices ruled that Trump is allowed to use the powers of the presidency to commit crimes, these same justices continue to treat him as the special favorite of the laws. The Court's most high-profile Trump-related decision, Trump v. CASA, placed vague new restrictions on lower courts' power to block Trump administration policies. This decision is defensible — the Biden administration sought a similar ruling while it was in power — but it is notable that the justices waited until a Republican was president before weakening lower courts' power to rein in the executive. Even before the CASA decision, however, the Court frequently blocked lower courts that ruled against the Trump administration. When lower courts block Trump's policies, the Republican justices routinely reinstate those policies on the Supreme Court's 'shadow docket,' a mix of emergency motions and other matters that the justices consider on an expedited basis. There was also one unexpected loser this term: the business and fiscal conservatives that have historically dominated the Republican Party. In the same week that the Court handed down most of its biggest decisions, it also rejected an attack on Obamacare. And it waved away a request to put drastic new limits on federal agencies' power to regulate business. So, while the Court now hands out victories to the cultural right as if it were passing out candy on Halloween, several of the GOP justices did show more moderation on the kinds of issues that preoccupied Republicans as recently as a decade ago. It was a lot to keep track of, especially given Trump's ability to dominate the news, so here's a quick rundown of how the Court reshaped the law during its recent term. The Court gravely wounded key American institutions to benefit social conservatives At least two cases this term did serious harm to institutions that millions of Americans depend upon, both in decisions that benefited cultural conservatives. In Mahmoud v. Taylor, the Court's Republican majority ruled that public schools must inform parents before their children are taught a lesson those parents might object to on religious grounds, and that those parents must be given an opportunity to opt their child out of that lesson. The Supreme Court used to treat public schools with more respect. Mahmoud arose out of a dispute over queer-themed books — Montgomery County, Maryland, approved several books with LGBTQ characters that could be used in classroom instruction. But the First Amendment prohibits discrimination among people with different religious beliefs. So, if parents with anti-LGBTQ religious views have a right to notification and an opt-out, so too does every parent who might object to any lesson on any religious ground. This rule, as Justice Sonia Sotomayor warns in a dissenting opinion, is likely to cause 'chaos for this Nation's public schools.' Requiring every public school teacher to anticipate which lessons might implicate a parent's religious beliefs 'will impose impossible administrative burdens on schools,' especially in a nation as diverse as the United States. In the past, courts have rejected similar lawsuits brought by parents who object to books or lessons that feature magic, women who have achievements outside the home, and include topics as diverse as divorce, interfaith couples, 'immodest dress,' and 'false views of death.' After Mahmoud, however, all of these parents now have a right to advance notice. Schools that fail to predict that a lesson about a Jewish woman with a career, a Hindu husband, or an immodest wardrobe will offend a parent's religious belief will now face very serious financial consequences. Federal law often lets the 'prevailing party' in a suit about constitutional rights collect attorney's fees from the losing party. So lawyers can hunt for parents with idiosyncratic religious views, file a lawsuit against a school, and demand payment to avoid litigation that will be even more expensive for the school district. The Supreme Court used to treat public schools with more respect, out of concern that the Constitution should not be read to prevent such an important institution from functioning. Like the right to free exercise of religion, the right to free speech is also protected by the First Amendment. That is why the Court held in Tinker v. Des Moines (1969) that public school students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' But Tinker recognized that free speech should not be used as a weapon that can shut down classroom instruction altogether — if any student could get up in the middle of class and start yelling, for example, their right to free speech would destroy every one of their classmates' right to an education. And so Tinker also held that public school students may not engage in speech that 'materially disrupts classwork or involves substantial disorder or invasion of the rights of others.' The Court struck an appropriate balance between protecting free expression by young people, and making sure that public schools continue to produce an educated workforce that ultimately benefits every single American. That decision stands in stark contrast to Mahmoud, which establishes that the rights of religious objectors must be advanced at all costs, even if it would mean imposing such enormous burdens on public schools that every child receives an inferior education. A similar dynamic was in play in Medina, which pitted the GOP's disdain for abortion providers against a federal law permitting Medicaid patients to choose their own doctors. Just as in Mahmoud, the Republican justices handed a sweeping victory to social conservatives — seemingly without any regard for how their decision would damage Medicaid. Federal Medicaid statutes are riddled with provisions establishing who must be covered by Medicaid, how that coverage should be provided, and what minimum standards of care Medicaid patients are entitled to receive. The Medina case involved a federal law that permits all Medicaid patients to choose their own health providers. South Carolina, however, illegally forbade Medicaid patients from choosing Planned Parenthood as their health care provider. Rather than ordering South Carolina to comply with the law, the Republican justices effectively repealed the choice-of-provider provision in Medina. The question of which Medicaid laws can be enforced through federal lawsuits, and which provisions are essentially worthless, is one of the most important questions in American poverty and elder law and has been litigated for decades. But two years ago, in Talevski, the Supreme Court finally settled on a clear rule that judges could apply to identify which provisions are enforceable. If you want to know more about these many decades of litigation, I explain many of those details here. But the most important thing to know about Talevski is that it established that Medicaid laws which are 'phrased in terms of the persons benefitted' and that 'focus on the benefitted class' are enforceable. So, if a specific provision of Medicaid law mentions Medicaid patients, or otherwise names the individuals who are supposed to benefit from that law, it is enforceable. The choice-of-provider provision at issue in Medina refers to 'any individual eligible for medical assistance.' So it was enforceable under Talevski. Medina should have been an open and shut case. Yet, instead of following Talevski, the Republican justices produced an incoherent opinion that does not even announce a new legal rule, beyond a vague statement that Medicaid laws are 'especially unlikely' to be enforceable. Much of Justice Neil Gorsuch's opinion in Medina fixates on seemingly random facts about the choice-of-provider provision, such as the fact that it 'appears in a subsection titled 'Contents,'' as if that's somehow relevant to the question of whether this provision is a meaningless husk. It is impossible to come up with a principled explanation for why, two years after Talevski, the Republican justices decided to abandon that decision and replace it with a new legal standard that renders much of federal law completely useless. But it's certainly possible to come up with a political explanation. Unlike Medina, Talevski did not involve an abortion provider. Several of the Court's Republicans appear to have flipped their votes between Talevski and Medina in order to lash out at Planned Parenthood. The worst thing about the Medina decision is that the Republican justices could have come up with some good-for-this-ride-only legal reasoning that denied Medicaid funding to Planned Parenthood, but that otherwise left Talevski intact. Instead, they appear to have overruled Talevski and replaced it with a vague new rule that does little more than tell lower court judges that Medicaid plaintiffs should nearly always lose. It seems that, in order to spite Planned Parenthood, the Supreme Court stripped tens of millions of Americans of countless rights protected by federal law. Donald Trump's fixers Many of the Court's most consequential decisions were handed down on its shadow docket, a process that allows a party that lost in a lower court to seek an immediate Supreme Court order blocking that decision. This term, the Republican justices used the shadow docket to temporarily nullify the Convention Against Torture, a treaty that is supposed to prevent the United States from deporting noncitizens to countries where they may be tortured. The Court also used its shadow docket to effectively repeal federal laws protecting the leaders of several federal agencies from being fired by Trump, and to prevent lower courts from interfering with the chaotic work of Elon Musk's former office, the Department of Government Efficiency (DOGE). (In an unusual liberal victory on the shadow docket, the justices also ruled that Trump must give certain immigrants due process before he ships them off to a notorious Salvadorian prison.) The Supreme Court's shadow docket, visualized. Traditionally, the Supreme Court takes months or even longer before it decides a case. With rare exceptions, a case must be heard by a trial court and at least one appeals court before the justices will even consider taking it up. And getting the justices to hear a case is a bit like winning the lottery. Lawyers hoping the Court will review their case file over 8,000 petitions seeking such review in any given year, but the justices only grant about 60–70 of these petitions. Then, once a case is granted, that's only the beginning of a months-long process where lawyers submit briefs, the justices review them and hold oral arguments, and then they spend months working on the final decision. Contentious suits can wait an entire year for a decision, even after the justices announce that they will hear the case. The reason for this slow, highly selective process is that the Supreme Court has the final word on questions of US law. So if it gets a case wrong, that mistake can linger uncorrected for decades. The Court's plodding deliberation is supposed to minimize the risk of that happening. Beginning in Trump's first term, however, the Court started relying heavily on a separate, much less cautious process to decide cases involving Trump and his government. Historically, the Court's shadow docket was used primarily for death penalty appeals, where the petitioner seeking Supreme Court review would be killed if the justices did not act very swiftly. Litigants in non-death penalty cases could seek expedited review on the shadow docket, but it was so discouraged, and shadow docket petitions were so rarely granted, that smart lawyers typically decided not to annoy the justices with them. During the George W. Bush and Obama administrations, the Justice Department sought shadow docket review about once every other year. Now, however, whenever the Trump administration claims that it must have a Supreme Court order blocking a lower court's decision, the Court treats that claim as an emergency that must be tended to immediately. In Nken v. Holder (2009), the Supreme Court held that a party seeking shadow docket relief must do more than simply show they are likely to prevail if the Court hears their case on the merits. Among other things, they must also show that they 'will be irreparably injured' if the justices do not immediately block the lower court's decision. But, as Justice Ketanji Brown Jackson pointed out in a pair of opinions dissenting from two shadow docket orders, the Republican justices seem to have decided that the Trump administration is exempt from Nken, as they often grant shadow docket relief to Trump even when he cannot show irreparable injury. In Social Security Administration v. AFSCME, a case about whether DOGE may access highly sensitive Social Security data, Trump's lawyers didn't even make an argument that his administration would experience irreparable harm without Supreme Court intervention. Yet the Republican justices intervened anyway. As law professor Steven Vladeck has pointed out, the Court granted, at least in part, 'each of the last 14 [shadow docket] applications filed by the Department of Justice.' The federal government's exemption from Nken, moreover, only appears to be in effect when a Republican occupies the White House. In one dissenting opinion, Jackson pointed to several Biden-era cases where the Justice Department sought shadow docket relief from lower court orders. In some of those cases, the Court left the lower court's injunction in place for as much as a year, before finally concluding that the injunction was illegal after the case went through the much slower, traditional appeals process. The Republican justices, in other words, are manipulating the Court's calendar to benefit Trump. When ordinary litigants — or a Democratic administration — seek shadow docket relief, the justices often apply the traditional rules and norms that prevent them from granting those requests. But when Trump asks the Supreme Court to do him a favor, the Republican justices swiftly oblige. The Republican justices did abandon some fights pushed by business and fiscal conservatives While the cultural right was one of the biggest winners in the Court's recent term, the Republican Party's traditional business constituency fared less well. On the final decision day of the term, the Court handed down a ruling upholding provisions of Obamacare that require health insurers to cover certain treatments, as well as a decision rejecting an aggressive attempt to limit federal agencies' power to regulate business. Earlier in the term, a unanimous Court also rejected a suit challenging the FDA's decision to pull many nicotine vaping devices off the market. The Court's Obamacare decision, known as Kennedy v. Braidwood Management, aligns with broader trends within the Republican Party. During Trump's first term, the GOP famously tried and failed to repeal the Affordable Care Act in its entirety. Eight years later, the party has a more modest health care agenda, at least when compared to their ideas from 2017. Congressional Republicans are likely to enact deep cuts to Medicaid, but they are not pushing for full repeal of Obamacare. Decisions like Braidwood and Medina, in other words, closely track the Republican Party's agenda in Congress. Like their counterparts in Congress, the Republican justices voted to drastically cut back on Medicaid in Medina. But many of them voted to uphold key provisions of Obamacare in Braidwood. One common element in the Braidwood, the agency power case (FCC v. Consumer's Research), and in the vaping case, (FDA v. Wages & White Lion Investments), is that they all arose out of the US Court of Appeals for the Fifth Circuit, a court dominated by MAGA-aligned judges who routinely hand down decisions that are too extreme even for this Supreme Court. The Supreme Court frequently balks at the Fifth Circuit's decisions, but it does not do so all of the time. Just last week, for example, in Free Speech Coalition v. Paxton, the Court upheld a Texas law requiring pornographic websites to verify that their users are over age 18, despite a 21-year-old Supreme Court decision that struck down a nearly identical law. The Court took up the Free Speech Coalition case after the Fifth Circuit decided it wasn't bound by that two-decade-old decision. The best lesson to draw from cases like Braidwood, White Lion, and Consumer's Research, in other words, is that no matter how partisan or ideological the Supreme Court may be, there will likely be other voices within the judiciary pushing the justices to go harder. These voices will even sometimes succeed, as they did in the Free Speech Coalition case.
Yahoo
18-05-2025
- Politics
- Yahoo
Donald Trump keeps declaring national emergencies. Why?
President Donald Trump has made a habit of declaring emergencies. Since he took office for his second term, Trump has issued declarations of emergency at the southern border. On energy and trade. About drug trafficking and cartels, and even the International Criminal Court. In all, he's declared eight emergencies in his first 100 days, a rate that far outstrips any previous president, including his own first term. It's unclear whether all these things meet the legal standard for an 'emergency' — a situation so unusual and extraordinary that it can't wait for congressional action. The US trade deficit with China, for instance, has been the status quo for decades. But by declaring it an emergency, Trump unlocks special authorities that wouldn't otherwise be available to him. The question of whether Trump can use his emergency powers this way is currently making its way through the courts, and our colleague Ian Millhiser has been following along as proceedings kicked off in the Court of International Trade. In the meantime, we at Today, Explained wanted to understand why Trump is so keen to tap these powers to achieve his agenda, so we called up Elizabeth Goitein. She's a senior director at the Brennan Center for Justice and an expert on presidential emergency powers. Goitein spoke with Today, Explained co-host Noel King about the history of national emergencies, what Trump can do with his powers, and whether Congress should do something about it. An excerpt of their conversation, edited for length and clarity, is below. There's much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts and Spotify. I don't think most Americans feel like we're living in a time of eight distinct emergencies that we weren't living in six months ago. Why does the president do this? A national emergency declaration is an extraordinarily powerful thing. It unlocks enhanced powers that are contained in 150 different provisions of law, all of which say something like, 'In a national emergency, the president can do X,' or, 'In a national emergency, the president doesn't have to do Y.' These are powers that allow the president to take actions that go beyond what Congress has authorized in nonemergency situations. In some cases, they allow him to take actions that Congress has expressly prohibited in nonemergency situations. This can be a very tempting tool in order to implement policy in situations where there's not sufficient support from Congress or where Congress has actually prohibited that policy. You can see why the temptation is there for presidents to use these powers rather than go through the normal policy-making and law-making process. President Trump sometimes behaves as if the emergency powers were granted by God, but actually what you're saying is: They come from Congress. This is Congress saying, 'We will allow you to have additional power in times of emergency.' When and why did Congress initially do this? Congress has been providing these powers to the president since the founding. Our current system, in which the president declares a national emergency, and that declaration unlocks powers that are included in other statutes, dates back to World War I. This system where Congress would talk about national emergencies and then the president started issuing declarations of national emergency evolved organically. In fact, the organic nature of it turned out to be a problem, because there was no overarching law that governed the process. There was no time limit on how long an emergency could stay in place. There was no reporting to Congress. This is why Congress, in the 1970s, enacted the National Emergencies Act. It placed a time limit on how long an emergency declaration could stay in place without being renewed by the president. The NEA also, as originally enacted, gave Congress the power to terminate an emergency declaration using a legislative veto. That's a law that goes into effect with a simple majority of both houses of Congress and without the president's signature. That was a ready means for Congress to shut down an emergency declaration that was either inappropriate or was lasting too long. But then in 1983, the Supreme Court held that legislative vetoes are unconstitutional. So today, if Congress wants to terminate an emergency declaration, it basically has to pass a law by a veto-proof supermajority, which is next to impossible in today's political climate. How far can the president go with emergency powers? What kinds of things could he do? If you look at these 150 powers that are at the president's disposal in a national emergency, a lot of them really do seem reasonable on their face. They seem measured, something that you would want and expect the president to have. But others seem like the stuff of authoritarian regimes. There is a law that dates back to 1942 that allows the president to take over or shut down communications facilities. This was last invoked in World War II. Today, it could arguably be used to assert control over US-based internet traffic. There's another law, the International Emergency Economic Powers Act, that allows the president to freeze the assets of almost anyone, including a US person, if the president deems it necessary to address a foreign or partially foreign threat. In fact, the president can also make it illegal for anyone to engage in any financial transactions with that person, including something as simple as renting them an apartment or giving them a job or even selling them groceries. So these are some really alarming authorities in terms of the potential for abuse. You've laid out why granting some of these powers does make sense in times of emergency. Some of them, though, seem like a lot of power. Donald Trump is a highly unusual American president. Is it possible that Congress made a mistake in assuming that every American president would be like the guy who came before? Yes. Congress made a mistake. To be fair, Congress did give itself a ready means of terminating emergency declarations, and Congress did not foresee that the Supreme Court was going to take that off the table. However, I think it was a mistake to leave the law in place as it was without that safeguard. I think it is time — past time — for a reckoning for Congress, to not only reform the process of national emergency declarations and the termination of those declarations, but also to look at some of these individual powers like the Communications Act, which allows the president to take over or shut down communications facilities, and the power over domestic transportation. Congress should put some limits and safeguards on those powers.
Vox
15-04-2025
- Politics
- Vox
The Supreme Court threatens to bring 'Don't Say Gay' to every classroom in America
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. Remember Florida's 'Don't Say Gay' law? The unconstitutionally vague law imposed such unclear restrictions on teachers who speak about sexual orientation or gender identity that many feared they could be fired merely for mentioning their spouses. Eventually, Florida agreed to a settlement which affirmed its right to do things like excluding Harvey Milk from the state history curriculum, but which also clarified that teachers may refer to the concept of being gay. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Now, however, the Supreme Court will hear a case that could impose a regime similar to Florida's original Don't Say Gay law on every public school in the country. The plaintiffs in Mahmoud v. Taylor — a group of Muslim and Christian parents — don't specifically ask the justices to ban discussions of homosexuality or gender identity from classrooms. Instead, they seek a right to be notified if their children are about to be taught from certain books they claim contain LGBTQ themes, as well as an opportunity to opt those children out of the lessons. To grant this request, they want the Court to embrace a legal rule that would place such heavy obligations on teachers who discuss these topics that it is unclear whether they would practically be able to do so. Furthermore, even if public schools tried to comply with these disclosure requirements, they are so burdensome that doing so would likely be impossible. The case arises out of a Maryland school district's decision to approve a handful of books with LGBTQ themes for use in public school classrooms. While the plaintiffs and the school district appear to agree that some books that focus on queer characters were approved for some purpose, they can't seem to agree on any of the other facts of the case. The plaintiffs, who are represented by the Becket Fund, an influential legal organization that often represents conservative Catholic causes, list seven books in their brief that they claim the school district approved for classroom use (though the brief acknowledges that two were later withdrawn). The district's brief, by contrast, claims that only five books are at issue. Only three books appear on both parties' lists. Indeed, as a federal appeals court that heard this case complained, the case record contains no information 'about how any teacher or school employee has actually used any of the Storybooks in the Parents' children's classrooms, how often the Storybooks are actually being used, what any child has been taught in conjunction with their use, or what conversations have ensued about their themes.' It is quite odd that the highest Court in the nation decided to weigh in on this case before the lower courts have even determined what the case is actually about, especially given it's not even clear that these books have been used in any classroom instruction whatsoever. The Court's decision to prematurely take up the Mahmoud case, however, is consistent with the current crop of justices' past behavior, which has favored religious — especially Christian — causes. Just one month after Justice Amy Coney Barrett's confirmation gave the Republican Party a 6-3 majority on the Supreme Court, five of the Court's Republicans handed down a sweeping decision that revolutionized the Court's approach to religion, giving individuals who object to laws on religious grounds a broad new right to ignore those laws. And that's just one of many decisions the Court has handed down since then which benefit conservative Christian causes. Related The Supreme Court is leading a Christian conservative revolution The Court's Republican majority has appeared quite impatient to remake the law to be much more favorable to the religious right. Still, the legal rule Becket seeks in Mahmoud would be so disruptive to public schools that teachers and administrators can only hope that the justices stay their hand in this case. The Mahmoud plaintiffs would impose impossible obligations on public schools The First Amendment does not permit laws — or school district policies, for that matter — 'prohibiting the free exercise' of religion. The key word here is 'prohibiting.' As the Supreme Court said in Lyng v. Northwest Indian Cemetery (1988), the Constitution's free exercise clause targets government actions that tend 'to coerce individuals into acting contrary to their religious beliefs.' It's certainly possible to imagine LGBTQ-focused classroom instructions that could violate this rule against coercion. If a teacher required a student who believes that being gay is a sin to write an essay repudiating that belief, for example, that would be unconstitutional. It would also likely be unconstitutional to require this student to read aloud from a pro-gay text. So it is possible that, once the Mahmoud case is fully litigated and the facts are known, that courts will discover that some of the plaintiffs' rights were violated. Because the Supreme Court took this case up before any of that could happen, however, there is no way to know if the school district complied with the Constitution. Becket's brief seeks to bypass the normal litigation process and instead impose a new obligation on public schools. Schools, they argue, must notify parents if their children will receive 'instruction on gender and sexuality in violation of their parents' religious beliefs,' and give those parents an opportunity to opt their child out of that instruction. If it were possible to limit this obligation solely to the plaintiffs in this case, then it might at least be logistically feasible for schools to comply with Becket's proposed rule. But the Constitution does not permit schools to provide a service to people with anti-LGBTQ religious beliefs that it does not also provide to any other person of faith. Imagine, for example, that a public school offers kosher lunches to Jewish students who request one. Barring extenuating circumstances, it must also offer halal lunches to Muslim students, because the government cannot discriminate against Muslims and in favor of Jews. The same rule also applies to students with idiosyncratic religious beliefs. Suppose that a school has a dress code which requires all students to wear white shirts. If one student's religion compels him to wear red shirts, and the school permits this student to do so, it must also allow another student from a blue-shirt-wearing religion to depart from the dress code. This rule against discrimination has profound implications, if Becket's clients prevail. If a school gives a particular accommodation to people with one set of religious beliefs — the belief that their children should not be exposed to literature with LGBTQ characters — then it must provide this same accommodation to any other person with a religious objection to how the school operates. If Becket's rule were implemented, in other words, every public school would have to provide advance notice to any parent about any lesson that might offend that parent's religious views. But, in a nation as religiously diverse as the United States, it is simply not possible for public schools to comply with such an obligation. Consider, for example, Bowen v. Roy (1986), a case involving parents who objected, on religious grounds, to the government's decision to issue a Social Security number to their daughter. According to the Court's opinion in Bowen, the girl's father believed that 'he must keep her person and spirit unique, and that the uniqueness of the Social Security number as an identifier' would ''rob the spirit' of his daughter.' Under Becket's framework, this parent could legally say that he needed to be notified — and allowed to object — before any attempt was made by a school district to assign a unique identification number to his daughter, and other parents might need to be given an opportunity to opt their children out of the school's internal record-keeping system also. Consider, as well, a federal appeals court's opinion in Mozert v. Hawkins County Board of Education (1987), a case very similar to Mahmoud where the appeals court rejected parents' attempt to opt their children out of lessons they disagreed with on religious grounds. Unlike the parents in Mahmoud, however, the parents in Mozert had much broader religious objections. One of them opposed lessons that touched on themes as diverse as 'evolution and 'secular humanism,'' 'futuristic supernaturalism,' 'pacifism, magic and false views of death.' Under Becket's proposed rule, in other words, schools must provide advance notice if their child will be exposed to works of fantasy like The Chronicles of Narnia or the Harry Potter series, to lessons about famous pacifists like Mahatma Gandhi or Martin Luther King Jr., to the concept of death, or to 'secular humanism' — however it was defined. Indeed, if you spend enough time reading old legal cases brought by people of faith, it's possible to uncover a nearly infinite variety of religious believers that, under the Constitution, must be treated with the same dignity and given the same rights as Becket's clients in the Mahmoud case. If public schools were required to provide advance notice of any lesson that might offend any parent's religious views, they would be overwhelmed by this obligation. Parents would be deluged with paperwork informing them of every minor detail of any upcoming lesson. Teachers would face the impossible task of tracking which students must be shielded from The Lion, the Witch and the Wardrobe, which students cannot be assigned an ID number, which students must be excused from lessons on the civil rights movement, and which students must never read a book where two women hold hands. And woe betide the poor educator who, without first warning their students' parents, makes a spontaneous remark that might offend someone's religious beliefs. As Justice Robert Jackson warned in a 1948 concurring opinion, 'if we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds.' Becket's proposed rule is unworkable even in a limited form Perhaps recognizing that it would be impossible for schools to inform parents of every single lesson that might offend some person's religious views, Becket spends much of its brief arguing that lessons concerning gender and sexuality are special. They even make the extravagant claim that 'no state has ever affirmatively denied parents access to information and opportunity to opt-their child out from instruction on gender and sexuality.' The idea that children are not routinely exposed to stories about gender and sexuality would baffle anyone with even a passing familiarity with the Disney canon. Snow White, Sleeping Beauty, and Cinderella are all romances about women who marry princes. Some of the most famous, and widely taught, works of literature are musings on gender and sexuality. Think of the first line of Pride and Prejudice: 'It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife.' But let's assume that the Court decides to create a narrowly gerrymandered rule that gives the Mahmoud plaintiffs what they appear to want — advance warning and a right to opt their children out from any exposure to queer gender or sexuality. Even this relatively narrow rule would be a logistical nightmare for public schools, for the simple reason that teachers cannot possibly anticipate everything that will happen in their classrooms and advise parents of it in advance. Suppose, for example, that during a civics lesson on the structure of America's executive branch of government, a student raises their hand and asks whether any members of President Donald Trump's Cabinet are gay. Is the teacher required to halt the lesson, and immediately call every child's parents to notify them, before they reveal the forbidden knowledge that Treasury Secretary Scott Bessent is a gay man? Or suppose that a teacher asks their students to read a novel of their own choosing and deliver an oral report on that book to the entire class. Must that teacher also call a halt to a student's book report if the student selects the book Less, a Pulitzer Prize-winning novel about a gay writer? As a practical matter, the only way a school could comply with an obligation to inform parents of any instruction that touches on queer gender or sexuality would be to ban spontaneous discussion of these topics from the classroom altogether. What Becket is asking for is a 'Don't Say Gay' rule on steroids. The Supreme Court isn't supposed to decide cases before they know what they are about The Constitution limits the federal judiciary's jurisdiction to 'cases' and 'controversies' where one or more parties can articulate a concrete legal dispute with another party. For nearly all of American history, this provision has been understood to prevent the courts from answering hypothetical questions. When the Washington administration submitted a list of questions to the Supreme Court concerning the new nation's treaty obligations to France, the justices responded with a letter informing President George Washington that they could not answer these questions unless they arose in a proper lawsuit. One important reason for this rule is that, when judges decide cases involving very particular facts, they can tailor those decisions to the specific dispute between the two parties. Instead of handing down a sweeping, quasi-legislative decree that all public schools are now bound by unworkable disclosure rules, they can craft a legal rule that vindicates a plaintiff's constitutional rights without doing unnecessary harm to institutions. That is how the Mahmoud case should proceed. The Supreme Court should send it back to the lower courts without a decision — a process known as dismissing the case as 'improvidently granted' — to allow those courts to figure out what is actually going on in this case. Again, it is entirely possible that some of the Mahmoud plaintiffs' rights were violated by their children's school district, and if that is the case then the courts should provide them with appropriate relief.
Vox
26-03-2025
- Politics
- Vox
Kavanaugh and Barrett appear likely to break with the Supreme Court's MAGA wing
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. The Supreme Court spent Wednesday morning giving very serious consideration to a case that no one should take seriously. FCC v. Consumers' Research asks the justices to revive a long-dead legal doctrine known as 'nondelegation,' which places strict limits on Congress's authority to delegate power to federal agencies, and essentially move that power over to the judiciary. The problem with this legal doctrine, besides the difficulty it would create for agencies trying to carry out their mandates, is that it appears nowhere in the Constitution, and so it is impossible to come up with principled rules to guide when judges should strike down a law empowering an agency. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. The Consumers' Research case is also a strange vehicle to revive the Nondelegation Doctrine because the particular statute at issue in this case clearly should be upheld under the Court's current nondelegation precedents. In fact, even if the Court were to abandon those precedents in favor of an alternative, more restrictive nondelegation framework that was proposed by Justice Neil Gorsuch in a 2019 dissent, the federal program at issue in Consumers' Research should still be upheld. While all six of the Court's Republicans showed sympathy with the broader project of expanding the Court's power to overrule federal agencies, only three of them appeared likely to strike down the law that is actually at issue in Consumers' Research. The Court's opinion in this case could still have considerable long-term implications if it embraces Gorsuch's proposed framework or otherwise expands the judiciary's authority. But the statutory scheme that is before the justices right now seems likely to survive. So what is at issue in this case? Consumers' Research involves a program known as the Universal Service Fund, which provides telephone and internet service to rural areas and other regions that are difficult to wire. In the absence of this program, these services would be prohibitively expensive in many poorer or more sparsely populated regions of the country. Related A new Supreme Court case seeks to revive one of the most dangerous ideas from the Great Depression The Universal Service Fund effectively taxes telephone and internet service providers and uses that money to pay for service in these expensive areas. As a practical matter, that means service providers pass the cost of this tax onto their urban and suburban customers — so people in cities wind up subsidizing communications for people in rural communities. One challenge Congress faced when it created this program is that the amount of money the Fund must raise to achieve universal service varies from year to year. So, rather than setting a precise annual tax rate for service providers, Congress tasked the Federal Communications Commission (FCC) with determining how much money the fund should collect. The federal statute at issue in Consumers' Research provides extraordinarily detailed instructions regarding how to make this determination. It only permits the FCC to subsidize services that are used by 'a substantial majority of residential customers,' it instructs the FCC to raise enough money so that rural customers pay 'reasonably comparable' rates to other customers, and it lays out numerous other principles which the FCC must follow. Thus, the FCC should look at which communications services the overwhelming majority of Americans already have, and it should raise enough funds to ensure that rural customers pay similar rates to urban customers, without raising so much money that rural rates are significantly cheaper. Under the Court's current precedents, Congress must only provide an agency with an 'intelligible principle' that it must follow when it exercises its authority, and there's no serious argument that this statute fails this test. Gorsuch's dissent in Gundy v. United States (2019), which also concerned nondelegation, proposed a new and much vaguer rule — Congress must put 'forth standards 'sufficiently definite and precise to enable Congress, the courts, and the public to ascertain' whether Congress's guidance has been followed' — but even under Gorsuch's standard it is tough to make an argument that the Universal Service Fund is illegal. Only three of the justices seemed to believe that the Universal Service Fund is illegal Perhaps for this reason, Justice Clarence Thomas suggested a completely novel way to invalidate the Fund. Thomas suggested that the nondelegation doctrine should apply with more force in taxing cases, limiting Congress's power to determine how much a federal agency may raise. One problem with Thomas's approach, however, is that the Court held in Skinner v. Mid-America Pipeline Co. (1989) that the Constitution does not 'require the application of a different and stricter nondelegation doctrine in cases where Congress delegates discretionary authority to the Executive under its taxing power.' So reaching Thomas's preferred result would require the Court to overrule Skinner. Justice Samuel Alito, meanwhile, followed his typical practice of peppering the side that counters Republican orthodoxy with a series of unrelated questions, in the hopes that they would stumble over one of them — and he was joined in this tactic by Justice Gorsuch. Over the course of the argument, Alito and Gorsuch complained that the FCC created a corporation to advise it on how to set rates, that the taxing power can potentially be used to destroy companies, and that the FCC sought input from the same companies that they are taxing. At one point, Gorsuch went off on a strange tangent about how the government's decision to break up 'Ma Bell' in 1982 created other telephone monopolies. None of these arguments are relevant to whether the Universal Service Fund is constitutional, at least under existing law. Meanwhile, the Court's other Republicans asked some skeptical questions of the two lawyers who defended the Fund, but they ultimately seemed to conclude that this particular nondelegation challenge is unworkable. Justice Brett Kavanaugh, for example, did ask acting Solicitor General Sarah Harris how to distinguish between a tax and a 'fee,' a question that suggests that Kavanaugh has some sympathy for Thomas's position, but ultimately seemed satisfied with Harris's response that this distinction is 'unbelievably murky in practice.' Similarly, while Justice Amy Coney Barrett asked Harris to distinguish this law from other hypothetical laws that would raise more serious nondelegation questions, such as a law that merely instructed the IRS to raise enough money to provide 'food for the needy,' she too seemed skeptical that this particular law is unconstitutional. Notably, Barrett threw cold water on Thomas's suggestion that there should be a special rule for taxes. Congress, she noted, could potentially solve the problem by imposing a cap as high as $3 trillion on the Fund's ability to raise money, but that would be an empty requirement that amounts to nothing more than throwing 'out a number for the sake of throwing out a number.' It appears, in other words, that the Republican justices' general desire to expand the nondelegation doctrine — a desire that five of them have expressed openly at one point or another — is likely to run aground in the Consumers' Research case because this case is such a poor vehicle to expand nondelegation. Congress's instructions to the FCC were as detailed as they could possibly be, unless the Supreme Court wants to strip Congress of its ability to, as Justice Ketanji Brown Jackson said, 'provide a service, however much it costs.' The Court could still use this case to seize power It's notable that, while even the Trump administration agrees that the Universal Service Fund is legal, the federal government switched its position in this case after Trump took office. The government's initial brief, which was filed in the final two weeks of the Biden administration, argues that the Court should apply existing law and uphold the Fund. By contrast, its reply brief (a brief responding to the other side's arguments) treats Gorsuch's Gundy dissent as if it were the law. The reply brief was filed after Trump took office. Even if the Court upholds the Universal Service Fund, which seems likely, the Republican justices could still use this case to abandon the longstanding 'intelligible principle' framework, which gives Congress a great deal of authority to delegate power to agencies, and replace it with Gorsuch's 'sufficiently definite and precise' framework. Because that later framework is so vague, a decision embracing Gorsuch's approach would give judges far more discretion to strike down federal programs that they do not like. So, even if the Court rejects the exceedingly weak attack on the law at issue in this case, it could still use this case to achieve a significant power grab. Gorsuch's framework would transfer a great deal of power from federal agencies, which are controlled by an elected president, and toward a judiciary dominated by Republicans who serve for life. That would mean that the American people would have far less control over how they are governed.
