Presidential immunity, abortion, guns: The impact of this year's Supreme Court’s decisions

In the coming days the Supreme Court is set to issue historic decisions on the power of federal agencies, January 6th prosecutions, and presidential immunity.

Today, On Point: What will the Supreme Court’s decisions mean for America?

Dahlia Lithwick, senior editor for Slate. Host of the “Amicus” podcast, a show about the law and the nine Supreme Court justices who interpret it.

Amy Howe, co-founder and reporter at SCOTUSblog, a blog devoted to coverage of the Supreme Court.

Part I

DEBORAH BECKER: The end of June means the end of the current U.S. Supreme Court session, and this year the justices are wrapping up one of the most consequential terms in recent memory. Court observers say this Supreme Court session has taken on major cases that have the potential to transform American society and several significant rulings from the court are still pending.

Those are expected to be issued in the next few days. One of the cases with wide ranging implications is Trump v. the United States. The court will decide whether and to what extent a former president enjoys presidential immunity from criminal prosecution.

BARBARA McQUAID: I think whichever way this case comes out, United States v. Trump is going to be one of those cases that ends up in all the constitutional law books in every law school in America.

BECKER: That's University of Michigan Law School Professor Barbara McQuaid, and I'm Deborah Becker. This is On Point. This hour, the Supreme Court's 2024 docket and what's at stake. I'm joined from Toronto by Dahlia Lithwick, senior editor for Slate and host of the Amicus podcast. She's also author of Lady Justice: Women, the Law, and the Battle to Save America.

Thanks for being with us.

DAHLIA LITHWICK: Thanks for having me.

BECKER: Also from Washington, D. C., joining us is Amy Howe. She's co-founder and reporter at SCOTUSblog, a blog devoted to coverage of the Supreme Court. Amy, great to have you back.

AMY HOWE: Hello. Thanks for having me on.

BECKER: So let's start with immunity. Since that seems to be the one that's generating a lot of attention, a lot of folks eager to see what the court is going to rule here.

And we mentioned it briefly, but what I'd like to start with is, Dahlia, is you explaining what's at stake with this particular ruling?

LITHWICK: Sure. This is, there's four different criminal trials, one that's been adjudicated in New York. This is the trial that was supposed to be happening in Judge Tanya Chutkan's courtroom in Washington, D.C. And this is the Jack Smith prosecution, essentially, for what happened on January 6th.

BECKER: Of the former president, we should say, for the four trials of the former president.

LITHWICK: Correct. And what happened was that former president Trump's attorneys made a claim in this litigation that presidents are essentially immune, something bordering on blanket immunity for criminal prosecution for actions that they took while in office.

That could have been disposed of pretty quickly. It was disposed of fairly quickly by Judge Chutkan in the trial court. Then we had a panel of three judges on the D.C. federal appeals court that took some time, but agreed across ideological lines that the kinds of blanket immunity that Trump lawyers were claiming famously that he could order SEAL Team Six to come in and murder someone and that would be okay.

That claim was appealed up to the U.S. Supreme Court. The Supreme Court agreed to hear it, took a very long time. Heard it the last day of the term, added an extra argument day, and we are still waiting now for the result of that. And the short answer to your question is, as a consequence, a trial that could have happened already, could be happening now, has been delayed, the effect of all this is not just the sort of constitutional question of whether presidents can claim blanket immunity while in office, but that it is in some sense run out the clock, on the litigation. So that it's almost impossible to imagine that this trial can happen before the election.

BECKER: Amy, I wonder what you think about that and think about blanket immunity. Is that really what we're talking about here? Defining exactly when immunity might be allowed for the president of the country?

HOWE: That's really the $64,000 question. Coming out of the oral argument, it seemed fairly unlikely that the Supreme Court was going to endorse the idea behind the lower court's decisions, which is that a president has no immunity. It also seemed pretty unlikely that they were going to say that the president has complete immunity.

And so the question may well be what kind of decision they're going to write. And there are several different possibilities. They could say that the president has immunity for his official acts, but then that leaves open the question, Jack Smith, in this case is alleging that many of the acts for which the president is being charged based on his private conduct.

There were a couple of other arguments made during the course of this case. With the idea that a president has immunity, unless the criminal statutes under which he is charged apply specifically to the president. And then the lawyer for Jack Smith also made an argument that maybe a president has immunity for actually relating to his core powers as president, things like granting pardons or recognizing ambassadors, but those are not at issue, in this case.

And so that really is what we're waiting to see. But then as Dahlia has suggested, that no matter what happens, even if the court were to hold by a majority, that Donald Trump is not immune in some form, Trump really has won with this delay. Back in December, Jack Smith came to the justices and asked them to go ahead and take up this question of immunity without waiting for the court of appeals to weigh in. He said, this is important.

We need to get it resolved so that we can know the answer before the end of the term. And the Supreme Court declined to take up the case then and waited for the D.C. circuit. And then moved faster than they would have with a normal case, but certainly not as quickly as they did, for example, with the case about whether or not Trump could be removed from the ballot because of his role in the January 6th case, the January 6th attacks.

BECKER: The Colorado case. And there's precedent here. Correct? There's precedent in terms of presidential immunity and other rulings, regarding presidents when they're in and out of office. And they've been decided much more quickly.

Isn't that right, Amy?

HOWE: The U.S. v. Nixon was the case that Jack Smith pointed to in his briefings. It was decided, I think the case was decided in something like two weeks. During the time that the justices were not normally hearing oral arguments.

BECKER: We should mention, too, that there is also the anticipated ruling from the court on the January 6th, 2021, insurrection at the Capitol.

This case about whether prosecutors can use a federal obstruction statute to charge the rioters involved. And this also could affect some of the litigation against the former president, Dahlia.

LITHWICK: Yeah, that's a case called Fischer, and it's, in some sense, flew under the radar, but as you say, this was the case that has been used already successfully by the Justice Department to charge many, hundreds of January 6th defendants. And as you note, it's also a component of the charges against Donald Trump, and it was a really interesting oral argument in Fischer. Because it was very clear, I think, that several of the justices in the majority were extremely dubious about the federal obstruction law that had been used and believed that it was massive overreach.

It couldn't possibly apply to the conduct of the January 6th defendants. And it was very similar in tone to the arguments we then heard in the Trump immunity cases, which was a tone, at least from some of the justice, of deep suspicion about what the justice department is doing. This language of weaponizing the justice system against innocent people and how really mistrustful some members of the court were of the justice department and its prosecutions.

So not only is Fischer kind of a standalone, really important case in terms of, as I said, disturbing all these prosecutions and the Trump prosecution, but I think it's a real marker of how some of the members of this 6 to 3, kind of conservative supermajority are very suspicious.

And don't offer the kind of solicitude to Justice Department prosecutions that we might have seen from prior courts. And that even, I would go so far as to say, start from the premise that maybe some of what the Justice Department is doing is weaponizing the legal system against people who are more or less innocent, and that's a huge shift in tone from anything I've ever seen at the court.

BECKER: Yeah, and could be a huge problem, I would think, right? That could pose a lot of issues for the branches of government and everything else.

LITHWICK: I think it's a problem and it's of a piece with, I know we're going to talk about some of these cases, but a theme that we're starting to see at the Supreme Court, which is again, some justices, not simply mistrusting the Justice Department itself, not simply intimating that the prosecution against Trump was partisan and political, but a larger theme that really is a through line in several of the cases this year, that is mistrust of government writ large.

Of federal agencies, of the EPA, of efforts by the government to do the kinds of things that the government does. And this is a kind of a long-standing theme in some corners, but to hear it in the mouths of some of the justices, the notion that what government does by and large is more harmful than good.

As I said, that's a kind of new key that we haven't heard that much, but is really blossoming now at this court.

BECKER: I wonder, we have about a minute or so until we have to take a break, but Amy, if you could say what does the maybe one or two other decisions, aside from presidential immunity, and then the sort of tangentially related January 6th case.

What are the ones that you're most eager to see what the court takes action on? Presumably this week.

HOWE: Yeah. Presumably, and it's a big if, entirely certain whether they're going to finish, which is unusual in and of itself, I think, to have this many cases left. And this many major cases this late in June, but there are a pair of cases, and it sounds relatively technical and boring, but challenging, asking the court to overrule a 1984 decision on how courts should defer to a federal agency's interpretation of federal statutes.

And this is something that conservative lawyers and conservative law professors have been asking the justices to do for some time. The justices this term took up a pair of cases, and it seems that the court is likely poised to certainly cut back on this deference, if not eliminate it altogether.

Part II

BECKER: Before the break, we were talking about some of the rulings that are expected from the court that could come this week, expected this week anyway. And one of them, Amy, you were talking about is the case involving Chevron v. the Natural Resources Defense Council. And that really is a case about the power of government agencies. And I wonder if you could just summarize what the argument is here and why you think this case is so significant.

HOWE: Sure. So the Chevron doctrine, it arises from a case, Deborah just mentioned it, Chevron v. Natural Resources Defense Council from 1984.

And the idea behind the Chevron doctrine is that courts should defer to a federal agency's interpretation of a federal law that it administers, as long as that interpretation is reasonable. So even if a court might look at the statute and come to a different conclusion, as long as the agency's interpretation is reasonable, courts should defer to it.

So there are two steps. First, the courts determine whether or not the statute is ambiguous. And if it is ambiguous, then the courts defer to the agency's interpretation. And the idea is that when Congress writes a law, it may not think of all of the details. It may not have the expertise that a federal agency has.

And so that the federal agency can fill in the gaps when it is interpreting the law. And the Chevron Doctrine has had a target on its back for some time now with conservative lawyers, conservative law professors, who believe that there shouldn't be a deference to an agency's interpretation of the law, that Congress's job is to write the laws and then it's the job of courts to say what they mean.

And so the Supreme Court has had several requests over the last few years to reconsider the Chevron doctrine. And it turned those down, until last year, when it agreed to take up a pair of cases challenging a regulation issued by the National Marine Fisheries Service that requires a fishing boat to pay for the costs of having an observer come on board and stay on board to monitor the boat's compliance with fishery regulations to make sure that they are not overfishing.

BECKER: So basically, and Dahlia, tell me if I'm right here, this would shift power, right? From agencies to basically, to Congress, right? And judges.

LITHWICK: Yeah, with the caveat that because Congress is having a hard time doing much of everything, what it really does is shift power directly to courts.

And as I said, I think it is of a piece with this broader theme that the court, this present court has come up with. We have things like the major questions doctrine, which is a doctrine that sort of doesn't have roots in the constitution. It doesn't even have a long history as an interpretive issue, but the court has been invoking it in recent years, again, to do the same thing, which is to say Congress has to be incredibly specific in laying out how a statute is going to do what it does.

And if it fails to be specific, then it's not a good statute, and we've seen a whole bunch of things. In the very recent past, we've seen the court hobble the EPA's ability to do what it wants to do, invoking the major questions doctrine. It's another version of the same thing Amy's describing, which is Chevron deference, which is a claim by the court that if Congress wants to do something, it has to do something.

So specifically, that there's no ambiguity. And as Chevron does, Chevron suggests that if there is ambiguity in a statute, then you go ahead and you defer to the agency itself, presumably with all its expertise and its scientists and its understanding of how we go about regulating. This is an effort to say, nope.

That's not good enough either. And so what it really effectively does, whether under the guise of Chevron deference or the major questions doctrine, is it spikes authority either back to Congress to fix regulations. Or, as we're seeing happen in real time, it simply spikes authority right back to the courts and it arrogates to the courts the power to decide all sorts of public health questions.

Last year, the court started to decide what swampland was under the Clean Water Act, what emissions are under the EPA regulations, what health protections are under COVID. And so it's really a massive arrogation to the court, to do a whole bunch of things that at least some critics say the court doesn't have the kind of technical expertise to do.

BECKER: Also, there's another abortion case here, and I wonder how much this is on your radar. This is the court taking up whether a federal law that requires emergency rooms to provide care to all patients would override a state law. And in Idaho, there was a near total ban on abortion. So what if abortion was needed in emergency care?

How would that be handled? And this is also before the court. And of course, it's been two years since the court overturned Roe v. Wade. Amy, is this also a major issue here? And what are we expecting from the court based on oral arguments here, or exactly how the court is, in terms of how the court is considering this case?

HOWE: This is very much on I think court watchers' radar, because this is something that applies beyond Idaho to the 22 states that have imposed restrictions on abortion. And in particular, this is something that would apply not just to Idaho, but to other states that lack exemptions to general bans on abortion.

And so the sort of the core of the question in this case is whether or not a federal law that requires hospitals that participate in Medicare, to provide necessary stabilizing treatment in an emergency overrides an Idaho law that bars most abortions except to save the life of the mother or in cases of rape or incest.

And so what the Biden administration, when it filed this lawsuit in the wake of the Dobbs decision two years ago, essentially, was arguing that the federal law, which is known as the Emergency Medical Treatment and Labor Act was intended to make sure that patients get stabilizing treatment that they need, including that an abortion, in a case in which a pregnant woman, for example, arrives at an emergency room and needs an abortion, not to save her life necessarily, but to prevent her health from deteriorating, to prevent her from going into sepsis.

She might, to save her fertility for future pregnancies and things like that. And certainly, the courts, three liberal justices were skeptical of Idaho's arguments in this case. I think that the courts, conservative justices, I think were skeptical of the Biden administration's argument about whether or not the federal law was really necessary and how it operates in practice.

Whether or not it's a little bit hard to explain, but whether or not there really is a problem. Whether or not Idaho has said that actually in the cases that the Biden administration has identified, the state says that Idaho law would allow an abortion. It was a very, in some scenario, some way, a very fact specific argument. The one indication of where the justices were certainly headed before the argument.

When the state came to the Supreme Court, asking the justices to put a decision by a lower court on hold, that would have barred Idaho from enforcing its law in this scenario, the Supreme Court agreed to put the law on hold and the order from the federal court on hold and hear oral arguments.

So certainly, they were sympathetic to Idaho's argument going into the oral argument.

BECKER: So these are just a few of the ones that we're waiting for to get a decision from the court. We've got immunity, we've got January 6th, we've got the power of federal agencies, we've got abortion care, but we've also had hugely consequential rulings leading up to this point. In this session, there was the ruling on guns, right?

We had the court saying that a federal law that makes it a crime for people subject to domestic violence, restraining orders to own guns, that doesn't violate the second amendment. Also, ruled that the Trump administration overstepped its bounds by enacting a ban on so called bump stocks, those gun attachments that increase the power of a weapon.

So we have the gun ruling. We had the abortion medication Mifepristone ruling where the high court upheld the FDA guidelines for that, and said the plaintiffs didn't have the right to sue. So there's a lot of mixed signals here from the court, at least from a surface perspective, from the public saying, there's mixed ruling on guns.

There's mixed ruling on abortion. Dahlia, how do you interpret it in a bigger picture of looking at the significance of this term?

LITHWICK: I think you've just pointed out the utter weirdness of this term.

BECKER: (LAUGHS) Utter weirdness.

LITHWICK: And I think utter weirdness, it is utterly weird. And as Amy said, we don't even know, that it ends on Friday, it should, if they go to schedule.

Because there's still so many big-ticket cases and it raises the question, I think, and you raised it in your introduction, of how it is possible that in any ordinary term that I've ever covered, that Amy's ever covered, there's two, three, four big ticket cases. This term has had, 15, 16, and it's doing that while it actually has the smallest number of cases.

So the docket in some sense is shrinking. They're taking fewer cases. But the enormity of the cases is staggering, and you could reach into the bucket and pick any three, four, five of the cases you've just mentioned. And there's so many more and it would be the thing we were talking about the last week of June.

So I think your question is, why are there so many monstrously consequential cases on the docket this term? And some of it is it just happens to be, there were two Trump cases. One was the Colorado ballot case. And one is the immunity case. Two abortion cases, Mifepristone and EMTALA, the case Amy just described. Two huge gun cases, bump stocks and Rahimi, the one about domestic violence, adjudicated domestic violence perpetrators not being allowed to have guns.

So this is just a very strange term. And I think one theory of why it has gone so off the rails is because there are a lot of cases coming from the Fifth Circuit Court of Appeals. And that is a lower appeals court that has been shoveling a whole bunch of the cases we're talking about up to the Supreme Court including Mifepristone, including some of the content moderation cases, including Rahimi, the guns case.

And that case has been blessing lower court decisions that go way further than the court would have been prepared to do. And so, for instance, that's the court that said, yeah, I think it's okay for a lower court to go ahead and take Mifepristone, one of the two abortion drugs off the market. That's fine.

Or, I think it's okay to go ahead and say that folks who lose their right to bear arms, because they're adjudicated domestic abusers, that that violates the Second Amendment. And that gets blessed by a lower court, at which point the Supreme Court has to deal with somebody essentially overturning Supreme Court precedent from below. And the court is doing an awful lot of, in addition to these big-ticket Trump cases, an awful lot of what I would call error correction, where they more or less want to say, Hey, we're the big boys here.

We're not going to let the fifth circuit get out ahead of us and overturn things. And so there's a whole mess of cases. And those are the ones that tend to then look like, Hey, maybe the court is really moderate, right? Maybe the court is rushing back that which seems really extreme, but those aren't in fact, right, centrist decisions. Those are the courts saying, we'll let you know when we're going to take Mifepristone off the market, we'll let you know what the second amendment means. And so I think one of the big themes we're seeing is very emboldened lower court judges who are like, swing for the fences.

Let's see what happens. And emboldened appeal court that says, that sounds good to us. And then the Supreme Court essentially saying no, too soon.

BECKER: But so let's talk about the root then. What's happening with the lower courts and the fifth circuit that's creating this and sending all these cases up to the justices, to the Supreme Court justices, where they feel like they have to say, hey, guess what?

We are the big boys here.

LITHWICK: I think that's the question. And I think part of the answer is that you have a lot of judges who are very young and very ideological who are, as I said, willing to take big swings because why not? And I think there's a deep sense that you strike while the iron is hot.

And, just because the court said two years ago in Dobbs, we're only going to go so far, courts that are willing to go farther and press their luck. And I think the last thing that's happening quite honestly, is that we're seeing an awful lot of lower court judges kind of audition to be on the Supreme Court someday.

And this is the way you audition. If you're a judge, you go big or you go home.

BECKER: Amy, you're going to weigh in there. Yeah, in some of these cases, like the Mifepristone case, it was not a coincidence that it was in the Fifth Circuit. It was a case that could have been theoretically filed anywhere, but was filed in Amarillo, Texas, precisely because the challengers knew that there's only one federal district judge in Amarillo, Texas, and they knew that it would be assigned to him.

He in fact would have taken Mifepristone off the market altogether. The Fifth Circuit, in fact and he had the condition, the expansion of access to the drug. And, but nonetheless, the case went to the Supreme Court, which then reversed the Fifth Circuit.

BECKER: And so is it territorial on everyone's side here saying, look, this is my territory. I'm going to make a marquee right here in the lower quarter, and the Supreme Court saying, no, you're not. They were the folks at the top. Would you agree with that, Amy?

HOWE: I would. I think that they, these are nine people there.

None of them are shrinking violets. And they want to be the ones who say what the law is, as Dahlia said, they do not want to let the lower courts get out ahead of them. And we talked a little bit briefly about United States v. Rahimi, but no, one of the things that was notable about the chief justice's opinion.

BECKER: And we should say that's the gun case.

HOWE: The gun case in which the Supreme Court upheld a federal law that makes it a crime for someone who is the subject of a domestic violence restraining order to have a gun. The Supreme Court in that decision has a paragraph in which it outlines what mistakes the Fifth Circuit made, it calls out the Fifth Circuit by name to describe what was wrong with its opinion.

Part III

BECKER: Dahlia, I also want to make sure that we bring up that there's a big backdrop here, the questions about the integrity and the impartiality of the justices.

There have been questions about Justice Thomas and Justice Alito and how that might affect their decision making as justices. And I wonder how you think those issues are affecting the court this term.

LITHWICK: It's a great question, and I'm glad you asked it, because I think some of those issues get covered as titillating side stories, right?

So we've got Martha and Alito hanging an upside-down flag, which seems to signal at least some sympathy for the notion that the United States is in distress. And then more news about flying this appeal to heaven flag, which is affiliated with a very fringe kind of religious view of Christian nationalism.

And then all the stories, as you note, that have come out in the last year or so about lavish trips and super yachts and salmon fishing trips that not only were conferred on some of the justices, but that they failed to disclose. And so I think I would just say three things, and one is the most obvious, and that is that this has contributed to really plummeting approval ratings for the court.

And that is something that is front and center for those of us who watch the court, and understand how fragile the court's legitimacy is, right? The court has neither the power of the purse nor the sword. It doesn't have an army. It doesn't have a treasury. It has public legitimacy, and those numbers are really shocking, and that's obviously worrying, going into an election year where the court may or may not decide, including the immunity case issues that will directly affect the election.

The other 2 things that I would just say very quickly are that this is, these are the kinds of issues that can be fixed, were the court to adopt binding ethical rules and disclosure rules that they have enforced against them. At present, they've just adopted some rules that they enforce themselves on an individual basis.

And so we're still not getting full disclosure. And yet, despite the plummeting legitimacy, the court just declines to accept that this is a problem or really to remediate it. And so I think this is a self-inflicted wound that the court has not taken seriously, and instead chosen to blame the press.

The very last thing I'll say quickly about all of these ethical rules and Justice Abe Fortas was forced off the court in the 1960s for far lesser misconduct, is that this is in some sense of a piece with the story Amy and I were telling up top. About what's on the docket. Because so many of these issues that we're now finding out about are because dark money groups and very wealthy, multimillionaires are pouring money into the court in order to get certain results, including the sort of deregulatory agenda we talked about.

And so this isn't separate and apart from the issues that are, in fact, on the docket in many ways, the kind of money that has gone into influencing the justices and getting the kinds of cases onto the docket that they want is the same story as what's on the docket. It's just that it's a different flavor.

BECKER: It seems almost as if we're saying that the Supreme Court is being looked at in a very different way, maybe than it had in the past, by not just the public, but by folks who look at the justices as a way to perhaps further an agenda. Amy, and Dahlia, is that what you're saying first?

And then, Amy, I'd like you to respond.

LITHWICK: Yeah, that's what I'm saying.

BECKER: And Amy?

HOWE: I think that's right. And I think, to pick up on what some of what Dahlia said, I think that there's a tendency by the justices and some of the community around the court to dismiss the criticism as to blame it on the press.

But it's also become a partisan issue, whether or not the justices should be accepting gifts and need to disclose their trips on super yachts and on private jets. Call me crazy, but I think that everyone should want to know whether or not Clarence Thomas's, whether Clarence Thomas himself actually paid for his RV, or whether or not it was essentially a $250,000 gift, whether or not he paid for his nephew's boarding school tuition or whether or not someone else did. But there's a literally half of the Senate that says, Oh, this is all just, you know, trying to stir up partisanship to try to get him off the court, because they don't like the way he rules.

And I think at the court, I think it's, as Dahlia said, that they don't want to impose their own, they don't want to police themselves. But it also just comes across as incredibly tone deaf. I live in Washington, D.C., I'm not living among congressmen and the justices as much as I am attorneys who work for the federal government who say to me, I can't accept any presents from anyone, and here they're going on super yachts and accepting these incredibly lavish gifts. How does this even work? And it all just, as Dahlia said, detracts from the public perception of the court, which, their legitimacy in the eyes of the people is all they've got.

BECKER: Is it though? Because if they aren't viewed favorably, they're not elected, right? Is it, how much does that really affect them? What would you say to that, Dahlia?

LITHWICK: I think it affects them immensely. And one of the very few things across ideological lines and across history you hear justice's fret about is that by design they are the very weakest branch and that what they have, and I think Amy and I have both really emphasized this, in fact, the only thing they have is the public's willingness to accede to their authority.

And it has not forever been thus, there have been lots of times in history where the court has said this is the law. This is the rule, and the public has shrugged and walked away. If you think about Bush v. Gore in 2000, the fact that the American public simply conceded that the court had made a decision about who won the election, that's hard-fought authority that is really centuries in the making for the court to get to the place where the American public sort of said, okay, we'll go home.

You've declared who won the election, but that's not immutable. And it is something that I think, and I'm hearing Amy say the same thing. In some sense, the court has squandered and what one really worries about, and this is certainly the thing that Chief Justice John Roberts, I think, has top of mind right now, is what happens when they really need us to decide something existential about the nature of democracy, checks and balances.

I would include Trump immunity in that. And we do. And then they just say, no, we don't like that decision.

So I think it is in some sense, the most important question for at least most justices through most of history. But what we're seeing right now is I think a wing of the court that is unfussed about those questions that simply says, as Amy notes, yeah, this is a witch hunt.

They just don't like my decisions. And so they don't care. And I think that what we're really seeing is that there are, six, seven justices who care a lot, but don't have the authority to hold that wing in check. And I think the only other thing that is really essential, and it brings us back to where we started in some sense, Deborah, is that one of the things that the court counts on for public legitimacy is stability and predictability and the notion that you wake up today and the law is the same as it was ten years ago.

Yesterday, and I think one of the things that's been so destabilizing to this particular court, in addition to the ethics claims and the claims that, it's off the rails in terms of personal conduct of some jurists is that when you are overturning precedent willy nilly, as they did in Dobbs, as they did in brew in the gun case, as they've been doing in case after case, the American public separate and apart from the idea that The justices, some of them are unethical, start to have real doubts about whether this court is just a political branch that changes its mind based on political composition.

And that's the worst possible outcome for the court. And yet I think that's separate and apart from judicial conduct. We are in a deep. Deep moment of doubt about the court is anything other than what looks like now to be a political branch that's just changing the law as it goes along.

And, you mentioned something really interesting at the start of the show about mistrust of government writ large that you've been hearing a lot about in, in some of these cases. It seems to be an underlying theme. Tell me how you think that plays into, to this. In some sense, I think it's the vibe of the moment, right?

There's, the famous, I'm here from the government and I'm here to help. And that's supposed to be the most chilling phrase in the American discourse. And I think that you do have a feeling coming again from some of the justices that school boards don't know what they're doing.

That entities that give out gun licenses don't know what they're doing. That the justice department is all in the tank for Joe Biden and against Donald Trump. So at every single level of government, you're hearing the court raising questions. Last two weeks ago, it was ATF and bump stocks, right?

Everything seems to be in doubt. And so what I think it foments, and this is what's scary for people who are institutionalists like Amy and I, is that the whole. The whole notion that government doesn't know what it's doing, can't get things right, isn't regulating correctly or fairly that every branch of the government, whether it's the CFPB or the SEC, all of that is on the docket this year.

And I think it really feeds into a national mistrust of government and governance and democracy. That could not be more frightening in a moment when all those things feel like they're on the hook. So I guess what I'm saying is one would hope that the court in a clarion voice at minimum stood up for ideas like voting and democracy and law and order and not.

Having riots at the Capitol and that fissure at the court where we're not hearing that language, I think at this moment is very destabilizing. And it doesn't look like it's going to change even in the next session. So even if we get some of the decisions, that we're expected to get this week.

We did find out just yesterday that the high court is going to review the Tennessee law that bans gender affirming health care for transgender minors. So it's taking up another controversial potentially significant case. Amy, I think, is this just the path that we're on here or how would you describe it?

I do think to a certain extent that it is just the path that we're on. Certainly, they had to choose to take up this case. Certainly, we also have waiting in the wings, the United States versus Rahimi question, the gun case, it was certainly a case that people, it was a, Victory for the Biden administration.

I think there's a mess to people who domestic violence prevention groups, it certainly was cheered lots of people, but it left a lot of questions open. So I think we are likely to see more gun cases in there. The court has right now considering whether or not, for example, to hear challenges to Illinois ban on assault rifles. So it is just there's a lot going on and we've also got the election looming, that always lends itself to some cases either on the emergency docket or perhaps, coming up to the Supreme Court on the merits.

And would you agree with Dahlia that there is this theme of mistrust throughout many of these rulings and that this actually can foster a really dangerous sort of situation in terms of people's perception of government? I think I'm even more of an institutionalist than Dahlia, so I think I might perhaps phrase it a little differently. But, I've been. She and I go out and talk about the Supreme Court and, one of the questions we often get, is the Supreme Court political?

And one of the things that I often try to do is distinguish between, the court being political in the sense that, as Dahlia and I have talked about, it is very concerned about its public perception. And so some of the decisions that it makes are often made with an eye toward the public perception, I think and being.

partisan. But sometimes it gets, it's harder to make the argument that the court is political rather than partisan. Another thing that I wanted to just flag, I know we're starting to run out of time, but, even as the court has all of these incredibly high-profile cases, one of the things that happens at the end of June is that the court is also issuing decisions that Don't necessarily get a lot of airtime.

They may not seem to be as high profile when the court issues them, but may ultimately look quite significant, either in the short term or in the long term. And Dahlia and her colleague, Mark Joseph Stern wrote a story for Slate. One of the cases that the court issued recently, a case called Department of State versus Munoz about immigration.

The case was about whether or not a U. S. citizen has the right to challenge the denial of a green card to her non-citizen spouse. But just as the majority, it was a six to three majority with the liberals dissenting, said no. Justice Sonia Sotomayor suggested that this case might be a, about a lot more than immigration, but also about the right to marriage.

So we've got a lot of ramifications, a lot of things to continue to talk about. We've got one minute left. I want a prediction from both of you. Is it going to, are we going to hear the final rulings this week? Amy, yes or no? Yes. Okay. Dahlia? I think, yes, I think they can do it in three days.