Chemerinsky: Supreme Court confirms conservative leanings in 2024, shows no signs of changing
Erwin Chemerinsky. (Photo by Jim Block)
The last year at the U.S. Supreme Court confirmed what has been clear since President-elect Donald Trump selected three justices between 2017 and 2020: It is a very conservative court. Those who are conservative celebrate this, and those who are liberal decry it. But no one disputes that when the court is ideologically divided, it is virtually always a 6-3 decision with a conservative result. This was certainly true in 2024, and it is likely to remain that way for many years to come.
What was most notable about 2024?
It is the John Roberts Court. Two years ago, when the Supreme Court overruled Roe v. Wade, Chief Justice Roberts concurred in the judgment but did not join Justice Samuel Alito’s majority opinion. Some speculated Roberts had lost his court; there were five other conservative justices, and they did not need Roberts vote to have a majority.
In 2024, it was clearly the Roberts Court. In October Term 2023, Roberts was in the majority more than any other justice, dissenting in only two cases. He wrote many of the most important decisions of the term, including Trump v. United States, two major cases concerning the administrative state, and a significant ruling about the Second Amendment.
The court sides with Donald Trump
Many thought that the court might play a key role after the November presidential election, but Donald Trump’s clear victory meant there was not post-election litigation. Earlier in the year, however, the court decided two cases involving Trump that were quite important. Trump prevailed in both.
Trump v. Anderson involved Section 3 of the 14th Amendment, which provides that a person who has taken an oath to uphold the Constitution and then participates in a rebellion or insurrection is disqualified from being a senator or representative in Congress, or an elector for president and vice president, or holding any office— civil or military—under the United States or under any state.
The Colorado Supreme Court ruled Trump was disqualified from running for president because of his involvement in the Jan. 6, 2021 insurrection at the U.S. Capitol. The U.S. Supreme Court unanimously reversed the Colorado Supreme Court and held that a state court cannot not enforce Section 3 of the 14th Amendment. It was a per curiam opinion—an opinion of the court. Justice Amy Coney Barrett concurred in part and concurred in the judgment in part. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson concurred in the judgment, but their tone was more like a dissent. The court concluded that “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the states.” The effect of the decision is to effectively nullify Section 3 of the 14th Amendment; it is hard to envision the suit under it that could succeed.
The other case was Trump v. United States. No case in the last year received more attention or was more divisive in the Supreme Court than this one. The issue was whether and to what extent Donald Trump had immunity from criminal prosecution for actions that, according to the indictment, were taken to undermine the outcome of the 2020 presidential election.
In a 6-3 decision, the court held that the president has broad immunity from criminal prosecution for official acts taken while in office. Roberts wrote for the court. Justices Clarence Thomas and Barrett wrote concurring opinions. And Justices Sotomayor and Jackson each wrote blistering dissenting opinions.
The majority and the dissents began from very different premises. Roberts’ majority opinion began with the premise of a need to protect the presidency from judicial scrutiny. The court expressed concern that allowing criminal prosecutions of actions taken while in office could chill necessary presidential conduct.
By contrast, the dissenting justices began with the premise that the framers of the Constitution above all rejected the idea of royal prerogatives. They stressed that the rule of law means that no one, not even a president or former president, is above the law.
Roberts’ majority opinion divided presidential acts into three categories. First, there are presidential acts carrying out official powers bestowed by the Constitution or federal statutes. For these, the president has absolute immunity from criminal prosecution. Second, there are actions that are at the “outer perimeter” of presidential powers. In this area, there is presumptive absolute immunity, but it can be overcome. Finally, there are acts of the president that do not fit into either of these categories. Such conduct is not protected by immunity.
Justice Sotomayor wrote a vehement dissent joined by Justices Kagan and Jackson. She argued that there is no authority for absolute presidential immunity in the text of the Constitution or its history. Justice Sotomayor saw great dangers in according a president absolute immunity for all official acts. She declared: “The President of the United States is the most powerful person in the country and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” She powerfully concluded, “With fear for our democracy, I dissent.” Justice Jackson wrote a similarly emphatic dissent.
The administrative state
When constitutional historians look back at this era of the Roberts Court, they will say that some of its most important changes concerned administrative law. In the prior two years, the court fashioned a new limit on administrative agencies: the major questions doctrine. It provides that an administrative agency cannot act on a major question of economic or political significance without clear guidance from Congress.
In the past year, several decisions further changed the administrative state. In Loper Bright Enterprises v. Raimondo, the court overruled Chevron deference—the principle that courts should defer to administrative agencies when they interpret ambiguous federal statutes so long as their interpretation is reasonable. In a 6-3 decision—with Roberts writing the majority opinion and Justice Kagan writing the dissent—the court said that the Administrative Procedure Act requires courts to exercise independent judgment in deciding whether an agency has acted within its statutory authority; they may not defer to an agency interpretation of the law when a statute is ambiguous.
In Securities and Exchange Commission v. Jarkesy, the court held that when an administrative agency imposes civil penalties for fraud, the defendant has a Seventh Amendment right to a jury trial. Again, it was a 6-3 decision, with Roberts again writing the majority opinion and Justice Sotomayor writing the dissent.
And in Corner Post Inc. v. Board of Governors of Federal Reserve System, the court ruled that the six-year statute of limitations for suits under the Administrative Procedure Act runs not from the time of the agency’s action, but from the time a person is injured by it. In other words, a person can challenge an agency action from decades ago so long as the federal court action is filed within six years of when the individual was injured. Once more, it was a 6-3 decision, here with Justice Barrett writing the majority opinion and Justice Jackson writing for the dissenters, lamenting a ruling that she said would have a “staggering” effect on administrative agencies.
All of these changes in the law involve a shift in power from federal agencies to federal courts. They also reflect a profound change in the court’s approach to the administrative state. Since at least the New Deal in the 1930s, the assumption has been that Congress needs to give broad delegation to federal agencies that use their expertise in rulemaking and adjudication, and that courts will defer to that expertise. The conservative majority accepts none of these premises.
Ethical issues
Again in 2024, the issues of ethics arose concerning justices. There were new revelations concerning benefits that Justice Thomas received that were not properly disclosed. And there were allegations that a flag was displayed at Justice Samuel Alito’s home in a manner that expressed the view that the 2020 election was stolen from Donald Trump and that another was flown at his vacation home that was seen as expressing support for Trump.
In November 2023, the court, for the first time, promulgated an ethics code for the justices. But it lacks any enforcement mechanism and left to each justice the decision as to whether to recuse in a particular case. This received significant criticism, and in July 2024, at the 9th U.S. Circuit Court of Appeals’ annual conference, Justice Kagan indicated she would favor an enforcement mechanism, such as a panel of retired court of appeals judges deciding recusal motions. In December 2024, the New York Times published a story describing the disagreement among the justices concerning the ethics code and its enforcement, including the sharp disagreement among the justices along ideological lines.
The future
Perhaps the most important event in 2024 for the Supreme Court’s future occurred Tuesday, Nov. 6, when Donald Trump won the presidency. Many speculate that Trump’s reelection, combined with a Republican Senate, will lead Justices Thomas and Alito to retire in the next two years. If so, and if they are replaced by much younger conservatives, that will secure a conservative majority on the court likely for decades to come. With Justices Neil Gorsuch, Brett Kavanaugh, and Barrett all in their 50s, that would mean five justices appointed by Donald Trump under age 60.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (November 2024).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
