The New York Times, summarizing the major Supreme Court opinions of 2024, many of which were issued in June of 2024, in the closing days of the Supreme Court’s last term, opined that ‘[n]o Supreme Court term in recent memory has featured so many cases with potential to transform American society.’ While all of those cases are important, this report will focus on three cases that, in this reporter’s judgment, make the most momentous changes in U.S. public law.
One of these decisions looms over all the others because of its importance for the whole U.S. political order, the decision on presidential immunity in Trump v. United States, the first decision by the U.S. Supreme Court in American history to suggest a presidential immunity to criminal law charges for actions taken while in office. The other two decisions are Securities and Exchange Commission v. Jarkesy and Loper Bright Enterprises v. Raimondo. Jarkesy overturns apparently settled law that supported the system of adjudication and factfinding through agency tribunals instead of using the regular federal courts in cases brought by the agency to enforce the regulatory statutes the agency is charged with administering and the agency rules promulgated to supplement that regulation. Loper Bright overturns the so-called ‘Chevron deference’ that for forty years has required federal courts to defer to agency interpretation of the law governing their areas of delegated policymaking discretion to the extent that the governing law left gaps or ambiguities the courts could not resolve using their powers of interpretation. Taken together, these cases continue the pattern the Court has set under Chief Justice Roberts of cutting back on the regulatory power of the administrative state while also concentrating greater power in the President.
Chief Justice Roberts writes the opinion for the Court in each of these three cases. The result in each case is supported by the five other right-leaning justices, Justices Thomas, Alioto, Gorsuch, Kavanaugh and Barrett. Some of them file concurring opinions in some of the cases. Justice Barrett’s concurrence in the Trump case is notable because it makes it clear that she disagrees with major portions of Justice Roberts’ opinion. The three leftleaning justices, Justices Sotomayor, Kagan, and Jackson, dissent in each case, except that Justice Jackson recused herself from the decision of one of the two cases combined for the appeal in Loper Bright because of her involvement in the case when it came before the court on which she served prior to being appointed to the Supreme Court. Despite the division of opinion revealed by the dissenting and concurring opinions, it is the opinion agreed to by at least five justices that counts as binding law under the rule of stare decisis in U.S. law. This report therefore concentrates mainly on the Roberts’ opinions in these cases except to the extent that the concurrences and dissents help clarify the meaning of
the Court’s opinion.
The report is limited to these three cases because for several reasons this reporter has found that it takes a great deal of space and effort to explicate these opinions properly. First, Chief Justice Roberts seems to find it very difficult in these cases to admit when he is fundamentally changing the interpretation of a previous Supreme Court case or actually overruling it. Only in Loper Bright does he openly admit that he is overruling a major Supreme Court precedent, and in that case he could not avoid admitting that fact because that is the issue on which certiorari was granted. (The grant of certiorari signals that the Supreme Court will hear the appeal.) Second, the cases are difficult to under-stand because the reasoning in each of opinions for the Court is so problematic, especial-ly in the Trump and Jarkesy cases. Finally, each case raises more questions than it resolves. This feature of the cases is partly the product of the questionable and unclear logic that Court uses in some of the cases, but also the product of the fact that the Court granted certiorari in each of these cases on a purely abstract legal issue, concluding its opinion in each case by remanding the case to the lower courts to apply the new legal rules the Court has decreed to the facts of the actual cases that raised those issues. The Court’s opinion gives only sketchy guidance for that process. Finally, whenever a court radically changes the rules, even if the court applies the new rule to the facts of the case before it, a host of questions follow about how the new rules will affect other specific situations not specifi-cally presented by the case. In these three cases, the Court has not shown much willing-ness to address those questions.
