Rule of Law

SCOTUS Conservatives’ Selective Embrace of Text and History

This Supreme Court term, the conservative supermajority handed down a series of major decisions discarding precedent, shifting power to judges, and hobbling agency efforts to enforce the nation’s laws. Though the justices claim to be guided by text and history, many of their most important decisions this term suggest otherwise.

By creating out of whole cloth a new presumptive presidential immunity for official acts, the Supreme Court’s conservative justices rejected our Framers’ vision of a president who is not above the law. As CAC President Elizabeth Wydra told Bloomberg’s Balance of Power podcast, “the potential dangers for our democracy are real and frankly terrifying.” Justice Sotomayor’s dissent, citing our brief on behalf of an ideologically diverse group of legal scholars, emphasized the completely ahistorical nature of the conservative majority’s opinion. CAC Appellate Counsel Smita Ghosh told NBC News, “For justices who purportedly care about text, history and tradition, this failure to engage more fully was eye-opening — and profoundly disappointing.”

The Supreme Court also issued seismic decisions harming the ability of regulatory agencies to work for the American people. As CAC Appellate Counsel Miriam Becker-Cohen wrote in response to the Supreme Court’s decision shifting power away from expert decisionmakers to unelected judges, “If there were any lingering doubt that this Supreme Court’s conservative supermajority is on a brazen mission to overturn longstanding precedents that don’t align with its ideological goals, today’s decision in Loper Bright should put it to rest.”

Loper-Bright, along with other major decisions on the docket affecting business and regulation, represents “the Supreme Court’s continued power-grab,” according to CAC Deputy Chief Counsel Brian Frazelle in our annual report on corporate interests at the Supreme Court. As Brian writes, “In its zeal to weaken the reach of regulatory agencies, the conservative supermajority bulldozed longstanding precedent in some areas while elsewhere—using a familiar Roberts Court tactic—it distorted precedent beyond recognition to reach a desired outcome.”

Other decisions on the Court’s docket emphasized the devastating real-world impact of the Court’s disrespect for text and history. In City of Grants Pass v. Johnson, the Court’s conservative justices rejected legal principles stretching all the way back to ancient Anglo-Saxon codes to allow a city to criminalize taking shelter outside, even when a person has virtually no other alternatives. In Garland v. Cargill, the Court’s conservative supermajority legalized bump stocks that convert weapons into illegal machine guns, even though statutory text and history make clear that Congress defined the term “machine gun” broadly enough to encompass bump stocks.

To be sure, the Court’s conservatives (or at least some of them) did sometimes engage with text and history arguments, and unexpected victories for progressives were the result. In CFPB v. CFSA, Chiaverini v. City of Napoleonand Moore v. United States, for example, the Court rejected unsupported theories that were at odds with text and history arguments. But make no mistake, this is no moderate Court: principled engagement with text and history should be the norm, not the exception.

  • Minnesota Telecom Alliance v. FCC The United States Court of Appeals for the Eighth Circuit is considering the legality of the FCC’s new regulations promoting nondiscrimination in access to broadband internet service. CAC’s amicus brief in support of the FCC argues that the agency is not seeking “an unheralded power representing a transformative expansion in its regulatory authority,” and its regulations do not constitute an “extraordinary” case to which the major questions doctrine might apply. Eighth Circuit, filed July 5. 
  • Garland v. VanDerStok — The Supreme Court is considering whether weapon parts kits and incomplete frames and receivers, also known as “ghost guns,” should be regulated as “firearms” under the Gun Control Act. CAC’s brief explains that the Bureau of Alcohol, Tobacco, Firearms and Explosives’ rule, which includes ghost guns in the definition of “firearm,” is consistent with the plain text and history of the Gun Control Act of 1968. Supreme Court, filed July 1.
  • Trump v. United States — In a 6-3 decision, the Supreme Court ruled that presidents have presumptive immunity for “official acts” committed while in office. In a dissent, however, Justice Sotomayor cited CAC’s brief and explained that history and tradition show that the Framers presumed that our chief executive would be subject to criminal prosecution. Supreme Court, decision rendered July 1.
  • City of Grants Pass, Oregon v. Johnson — In a 6-3 decision, the Supreme Court ruled that punishing homeless people for sleeping in public does not impose “cruel and unusual punishment” in violation of the Eighth Amendment. The Court’s conservative majority endorsed an ahistorical and exceedingly narrow view of what constitutes “cruel” under the Cruel and Unusual Punishments Clause. Supreme Court, decision rendered June 28. 
  • Loper Bright Enterprises v. Raimondo — In a 6-3 decision, the Supreme Court overruled the Chevron doctrine of administrative deference and held that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority. In doing so, the Court overturned a forty-year-old precedent. Supreme Court, decision rendered June 28.
  • Moyle v. United States & Idaho v. United States — In a per curiam opinion, the Supreme Court dismissed this case as improvidently granted and vacated the stay that prevented Idaho physicians from providing emergency abortion care when a pregnant patient’s health was threatened, deferring a decision on the merits for another day. Echoing our brief’s textual analysis in her concurring opinion, Justice Jackson argued that “under federal law, a hospital must provide an emergency abortion that is reasonably necessary to preserve a patient’s health within the meaning of EMTALA.” Supreme Court, decision rendered June 27.
  • Intuit, Inc. v. FTC — The United States Court of Appeals for the Fifth Circuit is considering whether the FTC’s authority to issue cease-and-desist orders against false and misleading advertising is constitutional. CAC’s brief argues that the FTC Act’s history and structure are consistent with the understanding that cease-and-desist orders do not infringe on private rights. Fifth Circuit, filed June 21. 
  • Gonzalez v. Trevino CAC WIN — In a per curiam decision, the Supreme Court ruled that plaintiffs bringing retaliation claims are not required to supply evidence that other people have engaged in “virtually identical” conduct without being arrested. Just as CAC argued in our brief, the Court clarified that the Nieves exception requires only that the plaintiff’s evidence “must be objective,” which avoids “the significant problems that would arise from reviewing police conduct under a purely subjective standard.” Supreme Court, decision rendered June 20. 
  • Chiaverini v. City of Napoleon CAC WIN — In a 6-3 decision, the Supreme Court held that the presence of probable cause for one charge does not categorically defeat a Fourth Amendment claim for seizures caused by other, illegitimate charges. Echoing our brief, the Court explained that “established Fourth Amendment law” dictates that “courts should evaluate suits like Chiaverini’s charge by charge.” Therefore, if plaintiffs like Chiaverini can show that an illegitimate charge caused them to be seized without probable cause, their claims can proceed. Supreme Court, decision rendered June 20. 
  • Moore v. United States CAC WIN — In a 7-2 decision, the Supreme Court upheld Congress’s power to tax unrealized financial gains as income under the Sixteenth Amendment. In her concurrence, Justice Jackson cited CAC’s brief on behalf of law professors, noting that the artificial limit on Congress’s taxing power urged by the challengers in this case “appears nowhere in the text” of the Amendment.  Supreme Court, decision rendered June 20. 
  • Garland v. Cargill — In a 6-3 ideologically divided decision, the Supreme Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority by classifying bump stocks as machine guns. In her dissent, Justice Sotomayor echoed points made in CAC’s brief, highlighting that the majority opinion “flies in the face of this Court’s standard tools of interpretation…[b]y casting aside the statute’s ordinary meaning both at the time of enactment and today.” Supreme Court, decision rendered June 14. 
  • Starbucks v. McKinney — In a unanimous decision, the Supreme Court ruled in favor of Starbucks and held that courts must apply a traditional, more demanding four-factor test when adjudicating requests for temporary relief halting alleged unfair labor practices, instead of the less demanding two-factor test employed by the National Labor Relations Board. In her partial dissent, Justice Jackson noted that the ruling is “another installment in a series of labor cases in which this Court has failed ‘to heed Congress’s intent,’” and may allow a continuation of the “ignominious history” of judicial intervention in labor issues that the National Labor Relations Act was designed to rein in. Supreme Court, decision rendered June 13.

  • July 4: CAC President Elizabeth Wydra was quoted in an article in Bloomberg Law discussing Justice Amy Coney Barrett’s consistently conservative record at the Supreme Court, in spite of some occasional departures from the conservative majority. “Barrett Beginning to Chart Own Path on Divided Supreme Court.”
  • June 27: CAC Appellate Counsel Miriam Becker-Cohen was quoted in an article in Reuters discussing the potential consequences of the Supreme Court ruling in the abortion access cases Moyle v. United States and Idaho v. United States. “US Supreme Court allows emergency abortions in Idaho for now.”