The Supreme Court has a dozen or so cases left to decide from this term, and court watchers expect them all to be published this week – including a ruling on whether Donald Trump may have immunity from prosecution, which could strike down some of his federal criminal charges. Among the cases we’re waiting on is a ruling on the validity of many January 6, 2021, prosecutions, a decision on whether states may criminalize homelessness, and a potential major reset of how courts review laws and regulations.
Biden’s DOJ vs Donald Trump
Trump v. U.S. will decide: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The ruling could eviscerate Jack Smith’s prosecutions of Donald Trump, or it might leave the indictments untouched and in force. Even if the latter is the case, the trip up to the Supreme Court may still have helped Trump if it successfully forces a trial to start after the November election.
The Trump case before the Supreme Court is an appeal from his criminal prosecution in DC federal court, not the Mar-a-Lago documents case in Florida. However, suppose special counsel Jack Smith is ruled ineligible to bring charges against Trump in the DC case. The ruling will be immediately applicable and precedent-setting in the Florida case, as well. Judge Aileen Cannon would have to dismiss those charges, too. She is in the middle of a hearing to examine the legal issues regarding Smith’s prosecution because the Supreme Court may not address that claim directly.
Here are a few more significant issues now before the Court we should expect to be reported this week:
Court Deference to Agency Interpretation
A pair of cases (Relentless v. Dept of Commerce and Loper Bright Enterprises v. Raimondo) have the potential for extraordinary change. Currently, the Supreme Court gives deference to executive agencies when determining how to construe ambiguity in law or regulation. It’s called the Chevron deference, and it was put in place by the Supreme Court in 1984 in a case called Chevron v. Natural Resources Defense Council. Individual liberty activists have long criticized the precedent, which often accrues expansive views of government powers. The Court took these cases to review its previous ruling and possibly overturn the 1984 precedent.
In City of Grants Pass, Oregon v. Johnson, the case has been called a ruling on whether governments may criminalize homelessness. The Court will answer the question: “Whether the enforcement of generally applicable laws regulating camping on public property constitutes ‘cruel and unusual punishment’ prohibited by the Eighth Amendment.”
J6 at Supreme Court
In Fischer v. U.S., the Court will decide if one of the primary laws used to prosecute the J6 defendants (18 U.S.C. § 1512(c)), which prohibits obstruction of congressional inquiries and investigations, was lawfully used against them. Law & Crime reported that 290 people had been charged with violating the statute. A defeat here will be devastating for the Biden Department of Justice, which prosecuted defendants from the January 6, 2021 incident at the Capitol with a vigor – and, many say, a political bias – seldom seen in other cases.
A group of First Amendment cases also surround the content moderation policies the Biden administration pressed social media companies to adopt. That litigation will likely continue into the next term with future challenges to follow this term’s decisions. The Supreme Court schedule includes a summer recess after dispensing with all pending cases, and justices will reconvene in October. Pending here means cases that were argued before the court but not ruled on. The Constitution is silent on the Court’s calendar, which is set by the Chief Justice of the United States, John Roberts.
