The Supreme Court’s Seismic Shift

FOR BETTER OR WORSE, the current Supreme Court knows how to drop the curtain on its term with a flourish. Its groundbreaking July 1 decision in Trump v. United States to grant former presidents sweeping immunity for official acts has understandably drawn nationwide attention.

But it was far from the only landmark ruling last term. In fact, it wasn’t even the only dramatic opinion of that day. And these decisions come on the heels of the 2022 Dobbs ruling plus others that have veered away from longstanding precedents.

PAW interviewed five Princeton alumni who have close ties to the court to get differing perspectives on these rulings and other changes the justices have implemented.

Supreme Court experts, from left, Roy Englert Jr. ’78, Elizabeth Earle Beske ’89, Michael Kimberly ’03, Mark Sherman ’83, and John Elwood ’89.

Courtesy of the subjects

On Presidential Immunity

The court’s decision, by a 6-3 vote, held that former President Donald Trump is entitled to at least presumptive immunity from prosecution for official acts but noted there is no immunity for unofficial acts.

“Virtually every president is criticized for insufficiently enforcing some aspect of federal law,” wrote Chief Justice John Roberts. “Without immunity ... prosecutions of ex-presidents could quickly become routine.”

But in a blistering dissent, Justice Sonia Sotomayor ’76 said the ruling will have “disastrous consequences for the presidency and for our democracy.” She wrote that it made a mockery of the principle “that no man is above the law.”

Roy Englert Jr. ’78 has argued 21 cases before the court and chairs the Supreme Court and appellate litigation practice at Kramer Levin. Englert downplays the implications of the ruling.

“The hue and cry that the court did something radical is overstated. There is less there than meets the eye,” says Englert. “The court split the baby and left a path open for prosecution for unofficial acts.”

Elizabeth Earle Beske ’89 calls the decision “very messy.” Beske clerked for Justice Sandra Day O’Connor and teaches at American University’s Washington College of Law, where her scholarship focuses on the separation of powers.

Beske notes that it is “perfectly defensible” to say the president in performing presidential duties ought to be immune from prosecution. However, she expresses concern about the court’s pronouncement that whenever the president and vice president discuss their responsibilities, they engage in official conduct.

“The president goes out and kills a mailman, but then has a conversation with the vice president about it. You can’t use that evidence?” wonders Beske.

Supreme Court appellate advocate Michael Kimberly ’03 suggests there will still be lines even a president cannot cross. Kimberly co-directs the Yale Law School Supreme Court Advocacy Clinic and co-chairs the Supreme Court and appellate litigation practice group at McDermott Will & Emery.

“Ordering the political assassination of an opponent, I don’t think that’s an official act,” he says.

Kimberly acknowledges that the ruling does not clearly answer all questions, but he does not see the outcome as surprising. “I’m certain it was on the justices’ minds that green-lighting prosecutions without concern for traditional immunity would lead to political victors looking to prosecute political losers.”

Mark Sherman ’83 has seen his share of big cases from the press gallery as he has been covering the Supreme Court for The Associated Press since 2006.

“When you listen to Chief Justice Roberts, he seems more interested in decisions that protect the court’s reputation rather than detract from it,” Sherman says. “I don’t think this [ruling] will help the public’s perception of the court.”

Sherman explains the one aspect of the opinion that surprised him was that the chief justice did not look to “cross the divide.” The mystery to Sherman was why the court did not reach a result that looked like what Justice Amy Coney Barrett wrote in concurrence.

Barrett sided with her conservative brethren but struck a middle ground in writing that the Constitution does not insulate presidents from criminal liability for official acts. Barrett noted that a president facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged. But if that challenge fails, she concluded that the president must stand trial.

Shifting Power to the Courts

To some of the Princetonians, the presidential immunity ruling was not the most radical of the day, let alone the last term. Englert and Kimberly cited the Corner Post v. Board of Governors opinion, also by a 6-3 vote along partisan lines, as a remarkable shift of power from the executive branch to the judicial branch.

The justices ruled that the six-year statute of limitations to file lawsuits against the U.S. does not begin running until the plaintiff suffers an actual injury attributable to an agency regulation. That means an individual or company could file suit 10, 20, or 30 years after the government enacts a regulation.

“This could really open some floodgates,” says Englert. “This is a court that really wants to curb the power of the post-New Deal administrative state.”

Kimberly agrees. “There is a very strong skepticism and suspicion of the administrative state,” he says. “It’s remarkable how fast the changes are coming.” Kimberly also cites the court’s ruling in Securities and Exchange Commission v. Jarkesy as opening up longstanding government regulations to new lawsuits and calls rulemaking by the Environmental Protection Agency, SEC, and other government agencies “in jeopardy.”

The single common theme is that the Supreme Court is enhancing its own power, according to Beske. “The court feels unconstrained in certain key areas,” says Beske. “They believe if it’s wrong, we can upend it.”

She adds that her former boss, Justice O’Connor, would not have been at all pleased with the changes. “If there’s a flat tire, you fix the flat tire. You don’t take out the transmission,” says Beske in summing up O’Connor’s philosophy.

However, longtime Supreme Court advocate John Elwood ’89, a former law clerk for Justice Anthony Kennedy who heads the appellate and Supreme Court practice at Arnold & Porter, suggests that the Roberts Court is hardly a historical anomaly. “Statistically, they’re not overruling cases any faster than the Rehnquist or Burger courts,” says Elwood.

Nonetheless, he acknowledges that the justices’ decisions to strip power from administrative agencies and overturn Roe v. Wade qualifies as “pretty significant change” in a two-year span.

Speaking of Dobbs …

Englert says he’s “one of the least cynical people” when it comes to the future of the Supreme Court, but the 2022 Dobbs decision makes him feel less confident.

“An outcome like that invites further partisan challenges on all sorts of issues from litigants,” he says.

Regardless of what one thought of Roe v. Wade, Englert points out that the Supreme Court had previously rejected or turned aside challenge after challenge to the result.

“What that means is the change in personnel [on the court] is changing outcomes and that’s not good for the stability of the legal system or our country,” says Englert.

In his concurrence in the Dobbs judgment, Roberts wrote, “The court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”

Speaking generally at a Northwestern University law school event in 2022, Justice Elena Kagan ’81 said, “If there’s a new member of a court and all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown ... then people have a right to say: ‘What’s going on there? That doesn’t seem very law-like.’”

As for what’s next, multiple Princetonians pointed to same-sex marriage — which a markedly different court legalized with its 2015 Obergefell ruling — as very much at risk.

“If Dobbs doesn’t protect the right to an abortion, why should it protect gay marriage?” says Kimberly. “It’s hard not to acknowledge that possibility. We know that public interest groups pushing an anti-gay-rights agenda are bringing these cases.”

Beske adds, “If I were in a gay marriage, I would feel very stressed.”

Public Perception Ebbs

As Sherman reported last year, public confidence in the Supreme Court dropped to its lowest point in at least 50 years in the aftermath of Dobbs and state abortion bans. He notes that the chief justice is aware of how the court is perceived. “Roberts publicly wrote that the court was going too far,” says Sherman.

Roberts also surprised many when he provided the decisive fifth vote to uphold the Affordable Care Act in 2012. Elwood says, “From that opinion one might infer he cares about the court’s standing, but I can only infer that and there could have been other factors driving it.”

The chief justice famously bristled at President Trump’s statement that a ruling against his administration was made by “an Obama judge.”

In response to a question from Sherman in 2018, Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

While acknowledging that Roberts is concerned about the Supreme Court as an institution, Englert maintains that not a lot of votes change because of the justices’ perceptions about their place in history. “They’re too old, wise, and secure in their jobs to worry about short-term changes in public opinion,” he says.

“I used to have greater confidence that the justices were concerned about their perception,” says Kimberly, who has argued eight cases before the court. “What we’ve seen the last two terms suggests they’re not very concerned.”

The tempest over Justices Samuel Alito ’72 and Clarence Thomas refusing to recuse themselves from cases involving Trump because of their wives’ hyper-partisan activities may contribute further to the public’s perception. But Elwood says, “Most of the time, things with recusals are overstated. No one complained about Judge [Stephen] Reinhardt sitting on a California gay marriage case in the Ninth Circuit even though his wife was in the ACLU.”

Englert voiced a similar sentiment but adds, “There was some troubling stuff out there such as Ginni Thomas’ 2020 efforts to overturn the election.”

As for whether recent Supreme Court rulings will play a big role in the upcoming presidential election, the Princetonians were universally doubtful.

“I’m always skeptical about the court as an election issue,” says Sherman. “Obviously abortion is a big issue, but the future of the court hung in the balance in 2016. Everyone knew the winner of the election would swing the court.”

For people angered about developments involving reproductive rights, Beske says, the solution will be political. “What the Supreme Court is doing is causing existential angst, but I don’t know if it will resonate in the election,” she says.

Supreme Court Reform Proposal

Where the developments are certainly resonating is at the White House. On July 29, President Joe Biden proposed major changes to the Supreme Court including 18-year term limits for justices, a Constitutional amendment to overturn the recent presidential immunity decision, and an enforceable ethics code.

Under the term-limit proposal, the president would appoint a new justice every two years to spend 18 years in active service on the Supreme Court. No other major democracy provides life tenure for its high court judges.

“The term limits proposal is a great one, and it would go a long way to mitigating the raw and rank politics in the current nomination process,” says Kimberly. “One reason so many on the left view the current court as illegitimate is the denial of President Obama’s appointment of Merrick Garland by the Republican-controlled Senate.”

Englert views 18-year term limits as “probably unconstitutional,” and says he has long believed they are a bad idea. “Many — though of course not all — justices do bring benefits of long experience and added wisdom to the job after more than 18 years,” he says.

However, Englert adds that the recent manipulation of appointments has caused him to change his thinking. Voicing a similar sentiment as Kimberly, Engert says, “Appointments every two years might help public confidence that the court’s composition more closely reflects how the American people have voted over time” and prevent a scenario where a one-term president (Trump) could appoint three justices while a two-term president (Obama) could appoint only two.

Beske acknowledges that the constitutionality of term limits is not a clear-cut question, and says that the ultimate decision-maker on the issue would be the Supreme Court itself. “Of course, as a practical matter the proposal is more symbolic than anything else,” she says.

Regarding the proposed amendment to overturn the presidential immunity ruling, Beske noted that the Constitution is difficult to amend by design (with only one successful amendment in the past 53 years), and that’s especially true with today’s partisan divide. “I don’t believe this will stand a chance in this particular climate,” says Beske.

The ethics code Biden proposed would require justices to disclose gifts, refrain from political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. “Supreme Court justices should not be exempt from the enforceable code of conduct that applies to every other federal judge,” he wrote.

According to Beske, the Supreme Court needs an ethics code. “It’s incumbent to give [the ethics code] teeth, and Biden is smart to bring it up.” She suggests the best way to enforce the code is through a rotating set of federal judges. “My sense is Chief Justice Roberts doesn’t feel comfortable taking any of his colleagues out to the woodshed,” says Beske.

But Kimberly says he is skeptical of a Supreme Court ethics code. “I don’t see how it could be enforced meaningfully except through the impeachment process,” he says. “And normalizing impeachments is hardly something we should want to encourage.”

David Weisenfeld writes about the Supreme Court for Legal Dive and the ABA Supreme Court Preview. His work also has appeared in the ABA Journal and USA TODAY.