Unexpected Majorities and Conservative Victories at the Supreme Court
27:37 Share

The spirit of innovation is deeply ingrained in America, and Google is helping Americans innovate in ways both big and small. The Air Force Research Laboratory is partnering with Google Cloud, using AI to accelerate defense research for air, space, and cyberspace forces. This is a new era of American innovation. Find out more at g.co slash American innovation. From the opinion pages of The Wall Street Journal, this is Potomac Watch.

The Supreme Court wrapped up another term on Friday with some blockbuster rulings, as is typical at the end of a term, on national injunctions by judges, religious liberty, and access to pornography by children, among others. We'll talk about these cases, but also what we've learned about the Supreme Court in this past year,

as its new conservative majority evolves. To do that, I'm joined by Ilya Shapiro. He's a senior fellow and director of constitutional studies at the Manhattan Institute. He's also the author of the book,

Supreme Disorder, Judicial Nominations in the Politics of America's Highest Court. Welcome, Ilya. Good to have you here, as usual. Great to be back with you, Paul. So let's talk about these big end-of-the-term cases and start with the one on national injunctions. This was about birthright citizenship, but the court really

didn't address the constitutionality of birthright citizenship and instead talked about the legality of national injunctions by district court judges. 6-3.

with the three liberals in dissent. Yeah, this came down about what people were expecting, I think, that they wouldn't discuss the birthright citizenship. Stay tuned for that next term. Instead, this procedural issue of nationwide or universal, as they're better described, injunctions of which Donald Trump has faced more than by some accounts

All previous presidencies combined, they've definitely been increasing in line with increased governance through executive action, which then gets sued in favorable forums and favorable courts. And what the court did was writing through Justice Barrett, interesting that Chief Justice Roberts assigned the opinion to Barrett, said that injunction should be no broader than is necessary to give complete relief

to the party who's presenting the case. There's an asterisk there because it'll now go down to the lower courts to determine how broad that relief needs to be. And for example, states are arguing that still we need nationwide relief because people who are born in this country move around. Right. And Barrett, in her opinion, she gave an example of

what could be a narrower relief than the universal injunctions offered in this case in particular. But what do you make of the criticism, particularly from Democrats and the left, that this decision empowers the imperial presidency because it's going to limit what individual district court judges can do in analyzing executive orders by the president? Well, it rebalances power between

the judiciary and the executive branch, or more specifically district judges, because at the end of the day, when these things get to the Supreme Court, that court could enter a universal injunction. And this is an issue that has plagued presidents from both parties. Joe Biden faced plenty of nationwide or universal injunction, whether it's on student loans or vaccine mandates or a whole host of things. And so it really is a matter of putting district judges back

in the box of having more narrow authority that they historically have been given in light of this problem of governance where nationwide policies can be blocked by one judge out of hundreds in the country. Right. And conservative plaintiffs...

States in particular would move to Texas in particular to file a lawsuit because they figured that the judges there might be more amenable to their complaint. And vice versa, the liberals would go to the Ninth Circuit, district court judges in California and the West.

So you had this kind of almost the multiplication of these national or universal injunctions. Absolutely. And I agree with the criticism about the imperial presidency, but I would fault Congress with that for abdicating its responsibility to legislate and not taking back its power from the executive branch. One of the most interesting things about this case was why Justice Barrett was assigned. Do you know? Because I think it's fascinating. Usually on a case this large, the chief would take it himself. That is the most surprising thing.

Yes, it was the only case heard in a special May sitting. Typically, the chief has in the past taken these kind of complicated but politically salient procedural issues. So there's two possible things that people have speculated about. One is that she is, after all, when she was a professor, she was an expert in civil procedure. So I know this area well.

very well. And also she'd been taking a lot of criticism for drifting or not having a certain jurisprudence. So maybe Roberts said, okay, I'll give her the opportunity to show herself. Oh, and a third thing, the way that she writes and how gracious she is in general would be one to hold together the court without splintering off more conservative concurrences that might only agree on the judgment. So she definitely held that sixth justice majority together.

She did. But boy, did the dissenters crank up their opposition. I mean, it was...

But Justice Sotomayor and her dissent and then Justice Jackson and hers, dyspeptic, almost distraught, saying that this essentially strips the rights of Americans to get judicial relief. And Justice Barrett was unsparing in reply, particularly to Justice Jackson, whose opinion got under the skin of Justice Barrett a little bit. Justice Barrett replied at one point,

in her opinion. No right is safe in the new legal regime the court creates, Justice Jackson says, calling it a existential threat to the rule of law. And Barrett writes, the line advanced by Justice Jackson is at odds with more than two centuries worth of precedent, not to mention the Constitution itself. Justice Jackson decries an imperial executive. Well,

while embracing an imperial judiciary, end quote. That's the most heated rhetoric that I've seen from the Supreme Court since, probably since Justice Scalia was dissenting from Justice Kennedy's Obergefell decision about a decade ago. And Barrett clerked for Scalia, but she has less pointy elbows. So that was definitely sharp talk the way that judges go. Well, I wanted to ask about one other element of this case, not to get too much in the legal weeds for our listeners, but

I thought Justice Kavanaugh's concurrence was especially interesting because what he wrote about was what he called the interim of the interim. And this is a question of relief for plaintiffs.

And it gets to this point you brought up earlier, which is when you have an executive action that has tremendously broad impact, let's say student loans by President Biden, writing off $400 billion worth of student loans with the executive's interpretation, controversial interpretation of an old law, or the Clean Power Plan, that's

that President Obama imposed, which would have changed the entire electric grid production system in the United States. If you can't have national injunctions,

The danger is that as those cases go up the chain of appeal, they become fait accompli. The Biden administration just writes off the student loans, and by the time the Supreme Court says it's unconstitutional, there's nothing you can do because they've all been written off. Contracts have been done. It's over. Same with the Clean Power Plan. In both those cases, there were national injunctions. And Kavanaugh pointed out that in those kinds of cases—

the Supreme Court would have an obligation to jump in.

So that relief is still available at a national level. That's how I read his concurrence. What do you think? Nobody joined his concurrence, but I think he's right. That has to be the dynamic that this results in, that you take away power or cut back power of the district courts, but these things will get appealed. Or you can imagine with a travel ban, right? You can't have different rules in place, whether you fly into JFK versus LAX. That would get up to the Supreme Court pretty quick. So as it cuts back the localities,

The lower court's power, I think it may at the margins increase its own. Alito's concurrence is interesting as well, noting that this leaves more litigation to be done. What we're seeing already in the area of trying to do these things through class actions, and in fact, the challengers in the Casa case have already filed a class action to get the same universal relief and disputes over third party standing, especially with states trying to challenge the executive.

Yeah, the states claim that they can sue saying we are trying to vindicate the rights of individuals. But then the question becomes, do the states have standing? Alito's warning was maybe not. And don't overreach here when it comes to standing. That was how I read his opinion. We are going to take a break. And when we come back, I'll talk to Ilya Shapiro about some of the other late cases in the Supreme Court term when we come back.

This message comes from Viking, committed to exploring the world in comfort. Journey through the heart of Europe on an elegant Viking longship with thoughtful service, destination-focused dining, and cultural enrichment on board and on shore. And every Viking voyage is all-inclusive with no children and no casinos. Discover more at viking.com.

Welcome back. I'm Paul Gigot here on Potomac Watch, and I'm joined by Ilya Shapiro of the Manhattan Institute. All right, let's talk about a couple of the other cases last week. One is the parental rights to be able to withdraw their children from topics in school that they said violated religious liberty. That was a 6-3 conservative opinion. And then another one,

Upholding a Texas law that said pornography sites must verify the age of users in order to be able to block minors from having access to pornography. Again, the three liberals and the opposition, either of those cases surprise you.

Not really. And I should say that I filed in both cases in what ended up being on the winning side. Mild surprise that Justice Kagan did not join the majority in the Mahmoud case, the demand for an opt-out from sexually sensitive topics, not for sex ed, but that were integrated into English classes and other parts of

of the standard curriculum. In Montgomery County, Maryland, here nearby, I'm in Virginia, it's nearby me, it's one of the DC suburbs, apparently an outlier nationwide, no other school board doesn't allow opt-outs for these sorts of sensitive gender-related instructional materials.

And so even Randy Weingarten, the head of the biggest nationwide teachers union, lamented that this got to the Supreme Court. Now, I don't think she agreed with necessarily the analysis of religious liberty, but she didn't like the precedent this was setting to give parents more power. But it's true. I don't know why the board at one point, which allowed an opt out, but then it said too many parents started taking advantage of it. And so they removed it. Maybe that should have been an indication if too many parents object.

that you got to reevaluate your curriculum. But no, they took it to the court and they lost, setting up the precedent that indeed, you have to give this opt-out. The other case, the child access to pornography case, I thought that would have been nine zip. Ilya, I really did. But Justice Kagan in dissent said that she disagreed with the ruling and the opinion by Justice Thomas for the court, because again, it was 6-3, saying that this was actually a burden on the speech of adults.

because they would have a more complicated time. That is, websites that sought to verify the ages of users to rule out minors, this would have a burdening effect on the speech rights of adults and therefore should have been subject to Texas law to so-called strict judicial scrutiny.

Thomas said, no, no, no, this is intermediate scrutiny. It seems to me that this is a pretty easy case, and I was puzzled by the Kagan and the three liberal dissenters. What do you think? Yeah, this kind of artificial debate over the levels of scrutiny, I think, isn't that helpful. Justices eventually rule on the merits, whatever scrutiny they try to apply. And here, the majority was saying, Justice Thomas was saying, that there's only an incidental burden on adult speech, that these days,

The way the technology works, it's not showing your ID to a clerk. It's not even necessarily uploading your ID or giving credit card information to a company that could get leaked or what have you. The way that the technology works now, it just goes yay or nay. Are you 18 or not? And so really not a burden on privacy speech or anything else. And Kagan suggested that had the majority stuck with

strict scrutiny, maybe the Texas law still might have survived in her view. I personally think that the Texas law would survive any level of scrutiny because again, the burden is just so, so slight. And I'm a big free speech proponent. I'm not someone who carries water for would-be censors.

But I think this is an important case we'll see in coming years as we deal with internet regulation. Another case that was decided in the end, which went the other way with the liberals in the majority, along with the chief justices Barrett and Kavanaugh and the three conservatives, Thomas, Alito, and Gorsuch in the minority, was a case involving the non-delegation doctrine, which is whether or not Congress can delegate

certain powers to the agencies, in this case, the FCC. And then it was alleged this was a double delegation because...

The FCC then delegated this to private parties, the power to tax, to impose a tax in order to create money for so-called universal service, internet service. And again, I was really surprised. I was surprised at this one. I thought because of the double delegation here, the court would say this is a bridge too far in delegating the taxing power.

But the court didn't agree. I mean, I guess my question to you, Ilya, why do you think that Gorsuch, who wrote an impassioned dissent here, his arguments aren't prevailing among the other conservatives? I don't know. I filed in this case as well on the losing side this time, fully agreed with Gorsuch's point. I think that's probably his best writing of the whole term. It's a 38-page dissent, fully explains the delegation, the non-delegation doctrine, why it needs to be enforced. I mean,

Maybe like the Gundy case of a number of years ago where this first resurfaced, the non-delegation arguments, the court thought that this was too weird an area, this FCC universal service fund. Congress did give the FCC power of a certain sort. I don't know. None of the justices are saying the non-delegation doctrine is a complete dead letter. So that gives some hope because it's going to be debated again, even with the Trump tariff case that's making its way up through the courts. I found Gorsuch's opinion prescient.

persuasive, and court hasn't validated a federal law on or a federal action, agency action on non-delegation grounds since 1935, I believe it is. So they're due to reconsider in the right case. I consider this to be part of the kind of constitutional cleanup agenda for the conservative justices. They've done so much other work on other areas, but this is one they haven't

My own concern here is that if you make the non-delegation doctrine a dead letter, then are you ever going to get Congress to actually do what it is supposed to do, which is to pass specific legislation that says the regulators are supposed to do this, as opposed to saying, okay.

Well, here's our goal. And regulators, you just go ahead and do what you think is right to fulfill that goal. That's very dangerous, in my opinion. It could be that the rest of the conservatives want the major questions doctrine to do all the work in...

remedying those kinds of concerns. Certainly the chief and Justice Barrett are very much into the major questions talk on the idea that if an agency is deciding a major question, then judges shouldn't defer. Agencies get no deference there. It's up to judges. It kind of goes hand in hand in cutting back on the Chevron deference that they eliminated last term that courts are to determine for themselves. But I think it'll be much cleaner if they did enforce delegation. But

Right.

But statistically speaking, those are outliers. That is, half the cases this term were either unanimous or with one dissent. Only six involved the six Republican appointees over the three Democrats. Only another four involved the three more conservatives in dissent alone. So the statistics kind of belie the vibe, if you will, that we get from this last week of the term. Yeah, I think just to give you a couple more statistics to reinforce your point, you know, Elena Kagan was in the majority vote.

70% of the time in this term. That's a higher figure than Justice Thomas and Justice Alito, both at 62. Justice Sotomayor was also at 62 and Neil Gorsuch at 61. So that's a high degree of accommodation for Elena Kagan, presumably based on the kind of discussion you get about the court. You think she was in the opposition all the time.

Even in Sotomayor too. Right. So there's a high degree of unanimity here. 42% of the cases were unanimous. Yes. And like I said, if you add in the ones with just one dissent, that bumps it up to half of them altogether. Now, this isn't necessarily statistically significant and they, of course, choose their own docket.

Plus, there's the overlay of the emergency docket, which gets politicized at times somewhat more. But yes, despite this very last day of the term where every case looked supercharged, plus the Scrimetti ban on gender-related treatment in Tennessee for minors the previous week, also riven like this. But overall, these sorts of political divisions are the exception, not the rule.

We are going to take another break. And when we come back, we'll talk about where the Supreme Court might go next as it considers the future of the law when we come back. Tariff and trade policies are dynamic, supply chains squeezed, and cash flow tighter than ever. You need total visibility from global shipments to tariff impacts to real-time cash flow. That's NetSuite by Oracle, your AI-powered business management suite trusted by over 41,000 businesses.

NetSuite brings accounting, financial management, inventory, HR into one suite to help you know what's stuck, what it's costing you, and how to pivot fast. If your revenues are at least in the seven figures, download the free e-book, Navigating Global Trade, Three Insights for Leaders at netsuite.com slash wallstreet.

Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker. Play the Opinion Potomac Watch podcast. That is Play the Opinion Potomac Watch podcast. From the opinion pages of The Wall Street Journal, this is Potomac Watch.

Welcome back. I'm Paul Gigo here on Potomac Watch with Ilya Shapiro, head of constitutional studies at the Manhattan Institute. What have you learned about the court? And what do you think about this court? And I'm going to offer a statement you may disagree with, but I think this court, not just this year, but you look at the last three or four years,

with a 6-3 majority since Barrett became a justice. I think this is the best Supreme Court of my lifetime, just in the way it looks at the law, the opinions it comes down with. I don't always agree with their ruling, but just in terms of the way they think about these cases.

this is what you want a Supreme Court to be like. I agree with that, although it's a low bar to talk about the best Supreme Court of our lifetimes. What was frustrating- You didn't like the Berger Court, you didn't like the Rehnquist Court, you didn't like- The thing is, if a hallmark of the law is predictability and being able to understand the rules of the game, it's much more whether you like it or you don't, what results are coming. Based on oral argument, based on their backgrounds, you can understand what the

court is doing. It's not consulting your Ouija board or bird entrails to see what Justice Kennedy is going to do at the end of the term, or Justice O'Connor for that matter. Now, there are some guesses in some cases, you know, more about some justices than others.

But still, it is solid doctrinally on lots of different things. And you and I are in agreement that we don't like its non-delegation decisions. You know, I don't like certain other things that it does here or there. I'm not saying that it's the best court because I agree with it 100% of the time. But it's clear. It's the inter-right debates, both on the substance and on the methodology, is academically rigorous. The battle is joined cleanly between different sides of the court on the more politically contentious issues.

So I think both on the substance and on how they go about their decision making, I agree with you. It's a strong court. And despite, again, this narrative that it's lost its legitimacy or what have you, it still enjoys more public confidence than any other national institution, save the military, at a time of historically low societal trust.

And it enjoys itself a higher confidence than it has in many years. In fact, it's higher now than it was before the Dobbs case overturning Roe v. Wade. So the public has kind of digested that for whatever it's worth. How would you draw the distinctions among the conservatives on the court? What distinguishes, say, the chief conservative?

Barrett and Kavanaugh, who seem to agree more than they do with Gorsuch, Alito, and Thomas. The chief is more pragmatic, and he's more of an institutionalist. So he doesn't call himself an originalist. He's probably a textualist, although he doesn't talk about it that way. And he would

would rather decide not to decide if that's an option. But of course, he's no longer the middle of the court, even though he was in the majority slightly more than Kavanaugh this term. He's more often the sixth man, and he more often controls the court by assigning the opinions rather than being the median vote. Kavanaugh is cautious. Barrett is cautious for procedural things.

All of them joined the majority in, you know, you name it, all of the hot button issues, whether it's affirmative action or guns or education or abortion or all these different issues. They were overturning Chevron. They were all in the majority. But, you know, some of them were more cautious in various ways. Gorsuch is more libertarian. Alito is probably more conservative and more of a prosecutorial bent. We haven't talked, there weren't really major criminal law cases this term, but that comes out there. Thomas is perhaps the most hard-ribbed

Once Scalia was alive, he used to say that, you know, I'm an originalist, I'm not a nut, kind of throwing a little bit of shade at Thomas, who follows his understanding of the public meaning of the text wherever that might lead. So it's a lot of intellectual fervent, and they align differently depending on the doctrinal area of the law. Where do you see this court going in the future? As you say, it chooses its own docket. What other areas of the kind of post-New Deal jurisprudence do you see?

Do you think that this court has a mind to clean up or to return to more originalist principles? Well, the Trump appointees, Gorsuch, Kavanaugh, Barrett, were picked for their administrative law bona fides.

Steve Bannon famously called it deconstructing the administrative state. And so some of the frustrations that Trump 2.0 is having with them might come out of that because they're looking for something different than what Trump 1.0 was looking for. But, you know, I guess they're not yet interested in non-delegation. But again, let's see what they do with the tariff case that's coming up. But there are other administrative law issues that are going to be coming up as

We haven't fully fixed the dynamic of Congress abdicating its authority to the executive branch. And then, you know, the court is reactive. So who knows what executive actions or in the internet age, different kinds of internet regulations come up.

constitutionally speaking, I don't think they have an appetite for finding new rights, but as different assertions of rights are made, whether in terms of whether with parents in education, I'm not sure where else, but it's going to be pro-presidential and executive power, but maybe not in the same way that President Trump or whoever his successor is of whichever party might want. So it's a court that is

not for judicial supremacy, but it's definitely for rebalancing the powers in a more healthy constitutional way. One other area they might go at, and I think they just accepted a case today on campaign finance limits on political party spending. They might end up trying to clean up that area of the law going back to Buckley v. Vallejo in the late 70s, which said that such limits on donations to candidates were constitutional.

Right. And so as a result of succeeding cases, including Citizens United, you have this weird situation where independent groups are completely unlimited in what they can do, but parties are restricted in various ways. And don't we want stronger parties, both as a matter of policy and constitutional law? So you're right about that. And famously, the campaign finance jurisprudence was the most convoluted from the Rehnquist or early Roberts court. That's when you were

would read these summaries and you'd say, well, Justice so-and-so agrees with Part 2A, but not Footnote 7 of this majority. But then there's a concurrence with respect to Part 3 and a dissent with all of this stuff. You're trying to figure out what the law of the land is. And yeah, they would be well-placed to clean that up. All right. We'll end it there. Ilya Shapiro, always a pleasure to have you here talking about the court and the law. Appreciate it. We're here every day on Potomac Watch. See you tomorrow, listeners.

In business, they say you can have better, cheaper, or faster, but you only get to pick two. What if you could have all three? You can with Oracle Cloud Infrastructure. OCI is the blazing fast hyperscaler for your infrastructure, database, application development, and AI needs.

where you can run any workload for less. Compared with other clouds, OCI costs up to 50% less for compute, 70% less for storage, and 80% less for networking. Try OCI for free at oracle.com slash wallstreet. oracle.com slash wallstreet.