Resuscitating "Equal Justice under Law"
How 2024's Independence Week is a Sobering Reminder to Keep Fighting
I had a post scheduled for Wednesday that I changed the publishing schedule for, simply owing to the fact that last week was an incredible week in American politics. Half of the modus operandi of this newsletter is to provide a space for discussion of ways to heal divisiveness in the United States, and I cannot help but feel the need to comment on the events of last week.
Of note, this is not a commentary on the presidential debate. While that certainly seems to have gotten the most attention in the media; ultimately, it's unlikely that the debate itself swayed any significant number of minds in any particular direction. It did however serve to highlight two items in the aftermath: firstly, that the Democratic leadership is hesitant to field an imperfect candidate after 2016. Secondly, it shows the discrepancy (see the below image for some of what I am talking about) between political commentators tending to argue that President Biden should step down as the Democratic nominee instead of former President Trump stepping down as the Republican nominee (for example, to address one of his statements in the debate: no, “post-birth abortions” are still not happening).
Instead, this piece will be an unexpected follow-up to the previous post, and discuss more about the current Supreme Court, and outline why this upcoming election is so crucial. Briefly, together we will look at some of last week’s rulings and their practical effects.
Firstly, last Wednesday saw the ruling of Snyder v. United States being handed down. Essentially, the decision declares that state and local officials cannot be pursued for charges at the federal level for gratutities. That is, it draws a distinction between a bribery and a gratuity, where the former is a gift granted prior to work performed (and thus currently federally prosecutable as a corruption charge) and the latter is a gift granted after the work is already done without any sort of prior arrangement. The Supreme Court ruled on federalist grounds, stating that states and localities have gratuity laws and charges should therefore be pursued in their own jurisdictions. Justice Kavanaugh summarizes the Court’s opinion while evoking images of ‘mail carriers accepting a holiday tip.’ As Justice Brown notes in her dissent, the result of this is directly that federal prosectutors will have a much more difficult time pursuing charges at the federal level for gratuties (and that they never did pursue charges for a mail carrier accepting $5 and cookies).
Secondly, Loper Bright Enterprises v. Raimondo decided that courts should exercise independent authority to pass judgments on whether an agency was adhering to the letter of the law, overturning 1984’s landmark ruling in Chevron U.S.A. v. Natural Res. Def. Council. In that case, the Court decided to create a two-part test to determine the legality of the actions of government agencies, now referred to as Chevron deference. Essentially, it required courts to evaluate if Congress had legislated on that particular issue before, and if so, if the agency had adopted a “reasonable interpretation” of any laws. Overturning Chevron deference means that the courts have taken back the power to decide how to interpret laws from government agencies, who were previously assumed to be generally acting in good faith. Instead of policy changes happening internal to the executive branch during presidential transitions, going forward it seems as though this will be decided by the federal courts (a much longer cycle driven by executive appointments).
Thirdly, the City of Grants Pass v. Johnson ruling decided that for those camping on public lands, being charged with civil or criminal penalties does not constitute a “cruel and unusual punishment” as outlined by the Eighth Amendment. In his concurrence, Justice Thomas advocates for overturning a precedent case, Robinson v. California, allowing for a status like homelessness to be criminalized. Justice Sotomayor outlines a few additional legal routes in her dissent that individuals affected by anti-camping ordinances can pursue (that was beyond the purview of the Court to decide in this case), but it seems like an incredible burden to raise for those in such positions. In the meantime, local jurisdictions determined to punish homeless individuals will likely feel empowered to continue legislating againat them.
Fourthly and finally, on Monday, the landmark Trump v. United States was decided. The opinion of the Court boils down to this: a President has absolute immunity for actions taken as part of and under the purview of their Constitutional authority. This ruling has effectively stalled all court cases against former President Trump—even the sentencing from the New York hush money case, People of the State of New York v. Trump1—as judges determine if the immunity ruling applies to the cases that they are presiding over. At the moment, it seems unlikely that any save perhaps the New York criminal case will be decided before the election later this year in November.
Notably, all four of these cases above were divided by party-appointed lines in 6-3 judgments.
What does this mean?
So many unanswered questions arise from these rulings. If individual municipalities can outlaw homelessness, where do such people go? If the president is immune to certain activities, are they not in essence and practice above the law? How do we heal divisiveness when the Supreme Court has effectively ruled that there exist different classes of people? There are two somewhat separate issues that need tackled here.
The first being that rulings like Loper Bright Enterpries (and landmark decisions like Citizens United v. FEC and last week’s SEC v. Jarksey and Ohio v. EPA) imply that the Court thinks that executive branch agencies have too much power. In a sense, the Court has remedied this by taking away some of their power, and gifted it to corporations2 or the judicial branch. This potential overreach is threatening the balance of the separation of powers as Congress remains largely gridlocked on such matters.
The second being that especially with the Snyder, City of Grants Pass, and Trump rulings, there is a feeling that the current Court views different individuals differently. These rulings may excerbate existing class tensions and spur further divisiveness. If nothing else, promoting unequal treatment undermines the principle of “Equal Justice under Law.” To quote the late Justice Marshall in his concurrence from Pennzoil v. Texaco:
The principles which would have governed with $10,000 at stake should also govern when thousands have become billions. That is the essence of equal justice under law.
So how do we change this?
Most will disagree at least in part with the above rulings, as holding public officials to well-established standards and basic moral principles should be non-partisan. Even though it will take decades to change the Supreme Court, there are some things that people can do. Regarding Snyder, state prosecutors can pursue charges for gratuity cases (and the public should spur them to adopt these cases when they traditionally have not). As Justice Sotomayor has outlined, there are still legal arguments to be made for homeless people to fight fines and jail time doled out by the lower governments; donating to advocacy groups and local shelters can make a difference here. If he is guilty of crimes committed in office, we can vote to ensure that former President Trump does not enjoy continued immunity. Of course, pushing our Congresspeople to be exact in their wording with their bills given the current Court is important, too.
Nevertheless, a lot that happened last week seems to be a leap in the wrong direction. It can be frustrating to read about such cases and easy to wonder if the law does actually apply uniformly. However, losing faith in democracy and shedding it for a quick fix is not a good or sustainable solution. That is important, as the events of January 6th, 2021 are not a reasonable course of action for any side to take. Voting in favor of democracy is critical in this election, and will likely continue to be critical in the near future. We, the American people, have an opportunity not only to do Justice Marshall proud, but also do ourselves a favor by advocating and voting for equal justice under the law.
There is another entire argument to be made about the liability of individuals who contribute directly to a company’s role in crises like the opioid epidemic, as decided in last week’s Harrington v. Purdue Pharma L.P.. This note is already too long to dig into that, though.