Alito’s Flag Controversy Foreshadows Contentious US Supreme Court Rulings
(Bloomberg) -- Justice Samuel Alito’s flag-flying controversy has reignited the political firestorm over the US Supreme Court, just as it prepares to issue a blizzard of high-stakes rulings topped by a clash over Donald Trump’s bid for immunity from prosecution.
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Alito left Democratic lawmakers stewing last week by rejecting calls to step away from Trump cases amid revelations that his wife flew flags at their homes that also were displayed by the former president’s supporters during the Jan. 6 Capitol riot. Chief Justice John Roberts backed Alito by telling lawmakers that recusal decisions are up to individual justices.
Amid that turmoil, the court will issue about 30 rulings by the end of June, including decisions that could stop abortion pills from being dispensed by mail, strike down gun restrictions and slash the power of regulatory agencies. The biggest will come on Trump’s bid to avoid criminal charges for trying to overturn his 2020 election defeat.
The case is “probably the most important presidential power case since the Nixon tape case or something close to it,” said Josh Blackman, who teaches constitutional law at South Texas College of Law, referring to the 1974 ruling that led to President Richard Nixon’s resignation.
Critics say the court has slow-walked the case to the point where a trial before the November election is now unlikely, no matter how the justices rule on Trump’s immunity claim. The court in December rejected Special Counsel Jack Smith’s request to expedite the case and then waited to hear it on the last argument day of the term.
Even if the justices fully reject immunity later this month, “they’ve given the gift to Trump of not having a trial before the election,” said Michael Waldman, president of the Brennan Center for Justice at New York University School of Law.
The schedule stands in contrast to the timeline earlier this year when the court reviewed the Colorado Supreme Court decision barring Trump from the ballot for inciting the Jan. 6 riot. The US Supreme Court resolved that case – from the filing of Trump’s appeal to the final ruling in his favor – in only 61 days.
The Alito flag issue comes after Justice Clarence Thomas had similarly declined to recuse even though his wife, conservative activist Virginia “Ginni” Thomas, supported the push to overturn the 2020 results.
The Trump prosecution could also be affected by a separate appeal pressed by a Capitol riot defendant. He is seeking to limit prosecutors’ use of a 2002 law that makes it a crime to obstruct an official proceeding. Trump has also been charged under the law, as have hundreds of other Capitol riot defendants.
Regulation Battles
The rulings could put new strain on an institution whose public standing is already near a record low. A Marquette Law School poll last month found approval of the court at 39%, the lowest level since it hit 38% in July 2022 in the aftermath of a blockbuster abortion ruling overturning Roe v. Wade. Approval among Democrats in the latest poll was 23%. The poll had a margin of error of 4.3 percentage points.
Beyond Trump, the most sweeping legal changes might come from a group of federal regulation cases. Business groups and big-government foes have asked the court to toss out the so-called Chevron doctrine, which since 1984 has required judges to defer to regulators on the meaning of ambiguous federal statutes.
The court is also considering declaring that defendants in Securities and Exchange Commission cases have a constitutional right to make their case to a federal jury. The ruling could undercut the SEC’s ability to press cases before its in-house judges and affect the Federal Trade Commission, Agriculture Department and Environmental Protection Agency.
“There’s a lot there for administrative law that I think will tell us how aggressive the court’s going to be,” said Jonathan Adler, a Case Western Reserve School of Law professor whose specialties include administrative law.
Abortion and Guns
The court is poised to decide its first two abortion cases since Alito wrote the 2022 opinion that overturned Roe. One fight will determine whether mifepristone, the drug used in more than half of US abortions, remains fully available. A federal appeals court said the Food and Drug Administration during the Obama and Biden administrations gave short shrift to safety issues when it loosened restrictions on the drug.
The second abortion case will affect emergency rooms in states with the strictest bans. The justices are weighing whether a federal law designed to ensure hospitals don’t turn away patients who need emergency care means pregnant women can get an abortion when necessary to avoid a serious health risk.
In one of its two gun cases, the court will determine the constitutionality of a federal law that bars firearm possession by people under domestic-violence restraining orders. It’s the court’s first Second Amendment dispute since the conservative majority established a tough new test for gun restrictions in 2022.
The court will also decide the fate of a federal prohibition on bump stocks, attachments that let a semiautomatic rifle fire at speeds rivaling a machine gun. That case concerns the reach of the US law banning machine guns rather than the Second Amendment.
This year may be a “mixed bag” for conservative causes, in contrast with 2022, when the abortion and gun rulings were among several conservative triumphs, Blackman said.
Most likely, “the court, or at least the court’s center, will be very happy to say, ‘Look, look, we’re not radicals. We’re going to scale back,’” he said.
Even so, recent comments by liberal Justice Sonia Sotomayor may have been a hint that Alito and the other conservatives have more sweeping rulings on the way.
“There are days that I’ve come to my office after an announcement of a case and closed my door and cried,” Sotomayor said late last month at the Radcliffe Institute at Harvard University. “There have been those days. And there are likely to be more.”
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