The Supreme Court term that ended in June included some momentous decisions affecting how administrative agencies can interpret the law and whether former presidents have immunity for their official actions (a ruling applauded by former President Donald Trump). It also coincided with fresh criticism of the justices’ ethics, following revelations of gifts to Justice Clarence Thomas by a wealthy benefactor and of political messages allegedly made by Justice Samuel Alito. On Monday, President Joe Biden announced a proposal calling for term limits for Supreme Court justices. We spoke to Maya Sen, a professor of public policy at HKS and the co-founder of SCOTUSPoll, an ongoing national survey of American’s attitudes on major Supreme Court cases.
Q: What were the defining decisions in this term?
There are a number of important rulings this term. Probably the most significant one, which people might not have been fully aware of but which will likely have a major impact on people’s lives, is the ruling regarding Chevron—Loper Bright Enterprises v. Raimondo.
For most of modern U.S. history, federal courts have shown deference to administrative agencies when a statute is unclear, allowing these agencies to interpret the law on the basis of their own experts’ recommendations.
This deference gives agencies the flexibility to create policies and quickly adapt to unexpected challenges. This has been especially important in terms of the environment, where scientific developments often outpace legislative action.
However, with the court’s ruling in Loper Bright, this framework has been upended. That case essentially says that courts will no longer defer to agency interpretations when statutes are unclear. This means that agencies will now have less flexibility and that courts will exercise greater oversight over administrative actions. To put it plainly, this will likely shift some decision-making away from agency experts to courts. It raises a reasonable question: Who is better equipped to make important decisions regarding often technical interpretations of statutes—experts in the field or judges?
Another key case this term is the Trump immunity case, Trump v. United States, where the court ruled that former presidents are entitled to “presumptive immunity” for actions that are “official acts.” While there is a lot of ambiguity in this decision and in what is an “official act,” the ruling undeniably expands the scope of presidential immunity to an extent we haven't seen before.
Of the two cases, this one is the most politicized, though it’s not yet clear if it will be the more consequential in the long run. From a political perspective, I would predict that the Trump immunity case is probably the one that will drive discussions about the court’s term and, perhaps most importantly, animate talk of reforming the court.
Q: How do the major Supreme Court decisions from the term line up with how Americans view those issues?
The Trump immunity case is, perhaps unsurprisingly, quite unpopular. According to a survey my collaborators and I conducted in April, a majority of Americans believe that the president is not immune to criminal actions committed while in office: About 73% of respondents think the president should not have such immunity, with this number rising to 88% among Democrats. Even a majority of Republicans, 55%, share this view. It’s fair to say this ruling is highly unpopular.
On administrative deference, the public is much more divided. A slim majority, just 51%, believe that courts should defer to administrative agencies, with significantly more Democrats agreeing (65%). In contrast, only 35% of Republicans think courts should defer to administrative agencies. By saying that courts should no longer defer to administrative agencies, the court is essentially siding with the majority Republican view and, in this case, against the majority view.
In general, when the court issues unpopular rulings, we often see increased criticism of the court itself. So, it’s not surprising that this week, President Biden announced a series of court reform measures, including term limits for justices. This is a direct response to the decisions made this past term.
“In general, when the court issues unpopular rulings, we often see increased criticism of the court itself. So, it's not surprising that this week, President Biden announced a series of court reform measures, including term limits for justices.”
Q: What is the balance of the court? Are there new alignments, or any surprises in the way some justices have been ruling?
I think maybe the case that surprised me the most was the case in which the court allowed the government to prohibit people with domestic violence restraining orders from obtaining firearms (a case called United States v. Rahimi). By and large the court’s conservative majority strongly supports gun rights, so it was surprising to see an outcome that actually put the court on the side of upholding gun control. That said, allowing people with domestic violence restraining orders to obtain firearms is extremely unpopular among Republicans and Democrats alike (nearly 75% of Americans oppose), so maybe this case says more about how extreme the underlying claims are rather than anything about the court’s “moderation.”
But aside from that case, I don’t think there were major surprises. This is a very conservative court, with conservatives holding a six-person majority. With this kind of majority, they can afford to lose one vote and still control the outcome. This gives the conservatives justices a lot of flexibility in choosing which cases to hear, in bargaining over the outcomes, and in structuring opinions.
For example, the two rulings I discussed—Loper Bright and the Trump immunity case—are very conservative rulings, putting the court more in line with where it was two years ago when it handed down the Dobbs ruling overturning Roe v. Wade. In the past year or so, the rulings were somewhat more moderate than these.
Q: What has been the effect of the increasing spotlight on the justices themselves in the way Americans view the court?
Americans tend not to follow the Supreme Court very closely. However, the coverage of Clarence Thomas and Samuel Alito has put the court in the headlines in an unflattering and unsympathetic way. The main effect of this has been to highlight the importance of judicial ethics and bring this issue to the forefront for elected officials. That said, research consistently shows that people focus on the substance of the rulings themselves and whether they agree with them. What’s happening here is that a majority of people are dissatisfied with these highly unpopular, yet very important rulings, and this dissatisfaction, rather than lapses in judicial ethics, is driving popular interest in reform.
Q: What is your view on the argument that it is time to impose term limits for Supreme Court justices? Why might that be more appropriate now than in the past?
President Biden recently announced that he would pursue enacting term limits for the justices, and, based on my own research, I think such term limits are a smart and no-nonsense reform measure, and there are good reasons why they have bipartisan support.
First, under the current system, justices serve for life. This means they can choose when to step down, often timing their retirement to coincide with a president of the same party as the one who appointed them. A good example of this is former Justice Anthony Kennedy, who timed his retirement during Donald Trump’s presidency, ensuring that a like-minded person would replace him. In this case, Trump chose Brett Kavanaugh, Kennedy’s own former law clerk, to replace him. The problem with this is that if justices do this frequently and consistently enough, it essentially means they get to decide the president who will replace them. This means that one party will control a Supreme Court seat for many decades, and it completely breaks the connection between appointments and electoral forces.
Second, if justices keep retiring “strategically,” we frequently end up in a situation where each party controls a certain number of seats and this can lead to a very lopsided court that will be more ideologically extreme and out of touch with where the public is. This is the case right now, where Republican presidents have named 6 justices but Democratic presidents only 3. By contrast, with a system of 18-year term limits, each president would get to appoint two justices in a four-year term. As control of the White House toggles between Republicans and Democrats, the control of seats would shift as well, ensuring a rough balance between the parties. So not only do term limits prevent justices from timing their own retirement strategically, but they would likely lead to more balance between Democratic appointees and Republican appointees on the court.
It’s also important to point out that the United States is the only Western democracy without age or term limits for its high court, making it an outlier. Term limits are also extremely popular, with large bipartisan support among both Democrats and Republicans. Around 70% of Americans think that 18-year term limits for justices are a good idea.
I’m actually a very big fan of judicial term limits, and I am impressed that Biden has done a 180 in now supporting them.
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Banner image: The U.S. Supreme Court justices pose for their official photo at the Supreme Court in Washington, D.C. (Seated from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (Standing behind from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson. Photo by Oliver Doulliery/AFP