Supreme Court 'Wreaks Havoc' With Ruling, Ketanji Brown Jackson Warns

Published Jul 01, 2024 

By Anna Commander
Deputy News Editor

The U.S. Supreme Court's ruling on debit card fees Monday sparked Justice Ketanji Brown Jackson to push back, saying in her dissent that the decision "wreaks havoc" on businesses, the government and society.

In the 6-3 ruling written by Justice Amy Coney Barrett, the High Court notes that a North Dakota truck stop and convenience store, Corner Post, was challenging a previous regulation about debit card transaction fees. The store resisted the regulation, arguing "that it allows higher interchange fees than the statute permits," according to the ruling. An interchange fee, the court said, is required from debit card transactions and goes to the bank "that issued the card."

According to the Associated Press (AP), regulations can be challenged for up to six years. The debit card fee regulation that mapped out the amount businesses need to give banks was set in 2011, AP says. However, Corner Post "opened for business in 2018," the Supreme Court said. The court ultimately ruled in Corner Post's favor, saying the six-year limitations window did not start until Corner Post opened.

Newsweek has reached out to the Supreme Court via email for additional comment on Monday night.

Supreme Court Justice Ketanji Brown Jackson is pictured speaking in Birmingham, Alabama, on September 15, 2023. Jackson on Monday said that a new ruling could "wreak havoc" on small businesses.

In her dissent, Jackson argued: "The flawed reasoning and far-reaching results of the Court's ruling in this case are staggering."

She continued: "The majority refuses to accept the straightforward, common-sense, and singularly plausible reading of the limitations statute that Congress wrote. In doing so, the Court wreaks havoc on Government agencies, businesses, and society at large. I respectfully dissent."

Jackson also noted, "Thus, even before I analyze the statute of limitations arguments, one can see that this case is the poster child for the type of manipulation that the majority now invites—new groups being brought in (or created) just to do an end run around the statute of limitations. To repeat: The claims in Corner Post's lawsuit were not new or in any way distinct (even in wording) from the pre-existing and untimely claims of the trade organizations that had been around for decades."

On X, formerly Twitter, numerous users reacted to the ruling on Monday. Democratic Representative Jerry Nadler of New York said: "The decision in Corner Post is another power move by a corrupt majority on the Court to undermine Congress and give big corporations and individuals a way to avoid complying with rules that protect our air, water, land, food, medicines, and rights. Congress must act to reassert its authority under the Constitution to pass laws that protect all Americans and stop those who wish to break these laws for the sake of profit."

Supreme Court Impeachment Plan Released by Alexandria Ocasio-Cortez


Nadler also linked to a news release about the ruling, also written by Democratic Representative Lou Correa.




In an opinion piece by The Wall Street Journal's Editorial Board, the court's decision was praised: "The little guy has scored another big victory at the Supreme Court against the administrative state."

US Supreme Court Remands Cases; Sidesteps First Amendment Question in Texas and Florida Social Media Laws Case

By Charlotte McBirney     July 1, 2024

On July 1st, the Supreme Court vacated the lower court rulings in the cases of Moody v. Paxton and NetChoice v. Paxton over challenges brought by NetChoice to the Florida and Texas laws governing social media content moderation. In a 9-0 decision, the Court determined the Courts of Appeals for the Fifth and Eleventh Circuits did not properly evaluate the facial challenge brought by NetChoice, essentially sidestepping the question of whether either law violated the First Amendment.

The opinion, authored by Justice Kagan, stated that the lower courts did not consider the full set of applications of both laws and did not determine which applications are constitutional versus which ones are unconstitutional (and did not compare the two, as they should have). Justices Robert, Sotomayor, Kavanaugh and Barrett who joined the opinion in full, and Justice Jackson joined in part.

The opinion also stated that the Fifth Circuit had a “serious misunderstanding of the First Amendment” and was critical of the two laws, essentially outlining how they likely violate the First Amendment rights of the social media platforms. The opinion stated that the platforms’ “choices about which messages are appropriate give the feed a particular expressive quality and ‘constitute the exercise’ of protected ‘editorial control’’. In a concurrence, Justice Jackson suggested the Court should show restraint in deciding these questions.

Justice Alito authored a concurrence, joined by Justices Thomas and Gorsuch, that was skeptical that NetChoice stating had met its burden in proving that the laws are facially invalid. Justice Alito in his opinion made a distinction between “[n]ewspaper editors [that] are real human beings” compared to the “platforms, by contrast, [that] play no role in selecting the billions of texts and videos that users try to convey to each other.” He went on to state that “algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know.”

Both states’ laws will remain blocked while the challenge is relitigated in the lower courts and as such the Alliance will continue to monitor these cases.

Charlotte McBirney

Charlotte McBirney is Senior Counsel and Director, Public Policy for the News/Media Alliance.

Trump moves to overturn New York hush money verdict just hours after SCOTUS ruling granted him unprecedented immunityTrump's lawyers have asked a New York judge to delay his sentencing

They are attempting to use the Supreme Court decision handed down Monday

By STEPHEN M. LEPORE FOR DAILYMAIL.COM and ASSOCIATED PRESS

 1 July 2024

Donald Trump´s lawyers immediately attempted to seize upon the Supreme Court ruling granting him immunity by asking a New York judge to delay sentencing in his hush money trial.

His attorney on Monday sent a letter asking to set aside his conviction and delay his sentencing, scheduled for next week.

The letter to Judge Juan M. Merchan cited the U.S. Supreme Court´s ruling earlier Monday and asked the judge to delay Trump´s sentencing while he weighs the high court´s decision and how it could influence the New York case.

The lawyers argue that the Supreme Court´s decision confirmed a position the defense raised earlier in the case that prosecutors should have been precluded from introducing some evidence they said constituted official presidential acts, according to the letter.

In prior court filings, Trump contended he is immune from prosecution for conduct alleged to involve official acts during his tenure in office.

Donald Trump´s lawyers immediately attempted to seize upon the Supreme Court ruling granting him immunity by asking a New York judge to delay sentencing in his hush money trial

His attorney on Monday sent a letter asking to set aside his conviction and delay his sentencing, scheduled for next week

TRENDING

Biden tears into Court for 'emboldening' Trump with immunity decision

His lawyers did not raise that as a defense in the hush money case, but they argued that some evidence - including Trump´s social media posts about former lawyer Michael Cohen - comes from his time as president and should have been excluded from the trial because of immunity protections.

The Manhattan district attorney´s office declined comment Monday night.

The Supreme Court on Monday ruled for the first time that former presidents have broad immunity from prosecution.

This extended the delay in the Washington criminal case against Trump on charges he plotted to overturn his 2020 presidential election loss.

Trump was convicted in New York of 34 counts of falsifying business records, arising from what prosecutors said was an attempt to cover up a hush money payment just before the 2016 presidential election. He is scheduled to be sentenced in the hush money case on July 11.

Merchan instituted a policy in the run-up to the trial requiring both sides to send him a one-page letter summarizing their arguments before making longer court filings.

He said he did that to better manage the docket, so he was not inundated with voluminous paperwork.

In denying Trump´s bid to move the trial from New York state court to federal court last year, a federal judge found that the allegations at the center of the case pertained to Trump´s personal life.

READ MORE: Supreme Court rules Donald Trump has immunity in critical case

Trump was convicted in New York of 34 counts of falsifying business records, arising from what prosecutors said was an attempt to cover up a hush money payment just before the 2016 presidential election . He is scheduled to be sentenced in the hush money case on July 11

The judge claimed that they do not 'reflect in any way the color of the President´s official duties.'

'The evidence overwhelmingly suggests that the matter was a purely a personal item of the President - a cover-up of an embarrassing event,' U.S. District Judge Alvin K. Hellerstein wrote in the ruling.

Trump moves to postpone sentencing in hush money case

There are no kings in America': Biden speaks on Supreme Court's immunity decision

‘A king above the law’: Supreme Court gives Trump nearly unlimited power

By Sophie Boudreau
July 1, 2024

The massively consequential ruling from the Supreme Court grants Trump and any future leaders the right to claim immunity from criminal prosecution for “official” acts carried out in office.

In an unprecedented ruling Monday, the US Supreme Court granted former president Donald Trump immunity from prosecution for “official” acts taken during his presidency.

The 6-3 ruling, which saw the court’s six conservatives side with Trump and the three liberal justices dissent, has massive implications for the scope of a president’s power and will almost certainly delay Trump’s upcoming trial to determine his criminal culpability in the January 6, 2021 attack on the US Capitol.
Future leaders now free to ‘use official power for evil ends’

While the Court’s decision does not protect Trump against prosecution for “unofficial” acts taken outside the scope of his presidency, it also does not clarify what constitutes an “official” versus “unofficial” act and leaves that determination to lower courts. This open-ended ruling sparks questions about how far any future president might now be able to extend their power in the name of immunity—a reality that the court’s three liberal dissenting justices said will have staggering long-term consequences.

Justice Sonia Sotomayor’s dissent conveyed her fears about the implications of expanded presidential immunity and listed “nightmare scenarios” in which a future president might be able to “use his official power for evil ends.”

“When he uses his official powers in any way, under the majority’s reasoning, he will now be able to be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune, immune, immune,” Sotomayor wrote.

“The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
‘A sad day for our democracy’

Top Democrats also decried the Supreme Court’s landmark ruling, with Senate Majority Leader Chuck Schumer calling the decision “disgraceful.”

“This is a sad day for America and a sad day for our democracy,” Schumer said in a press statement. “The very basis of our judicial system is that no one is above the law.”

Meanwhile, President Joe Biden’s campaign said Monday’s decision effectively “handed Trump the keys to a dictatorship.”

Sotomayor expressed a similar concern in her dissent.

“The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding,” Sotomayor wrote. “This new official-acts immunity now ‘lies about like a loaded weapon’ for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.”

The Court’s ruling stokes concern about whether Trump will face criminal consequences for his actions on Jan. 6. The former president and recently convicted felon faces pending charges of federal election subversion for his role in encouraging far-right insurrectionists to storm the US Capitol.

A federal appeals court found in February that Trump would not be granted immunity for any of his acts surrounding the insurrection. Monday’s Supreme Court ruling rejects that finding, leaving Trump’s alleged crimes open to classification as “official”—and therefore immune—presidential acts.

Chief Justice John Roberts said the trial court will ultimately be responsible for determining how to classify Trump’s acts against the bounds of Monday’s Supreme Court ruling.

“We accordingly remand to the District Court to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial,” Roberts wrote.

This shift in course will almost certainly delay Trump’s Jan. 6 trial further, quelling hopes from Democrats that it might take place before the upcoming presidential election.

RELATED: The right-wing Supreme Court just made it easier to bribe government officials

Author

Sophie Boudreau is a writer and editor with nearly a decade of experience covering lifestyle, culture, and political topics. She previously served as senior editor at eHow and produced Michigan and Detroit content for Only In Your State.

Dems Rage at Supreme Court Immunity Ruling

By Fran Beyer    |   Monday, 01 July 2024   |  NEWSMAX

Capitol Hill Democrats railed at a Supreme Court decision Monday that presidents have broad immunity from prosecution when performing "official acts."

Democrats have long argued that under the Constitution, no one — not even the president — is above the law.

In its ruling, however, the high court found former President Donald Trump is exempt from prosecution for certain actions — possibly including those related to his effort to overturn his 2020 election defeat. 

"This decision by the Supreme Court today is a travesty and perhaps the most dangerous judicial opinion from our Supreme Court in generations," Rep. Bill Pascrell, D-N.J., told The Hill.

"By smooth and naive legalese, these partisan justices have created a framework for a president to commit any acts he or she chooses ... this opinion is nothing less than a blueprint for a lawless dictator to take root in the Oval Office of the White House.”

Other Democrats were also enraged — and issued dire warnings.

"Today is a dark day for American Democracy," Rep. Dan Goldman, D-N.Y., a former federal prosecutor, wrote in a post on X, formerly Twitter. 

"The Supreme Court's ruling gives expansive immunity to a corrupt president who purports to use acts within his official authority to conspire to overturn a lawful election."

Goldman characterized the ruling as highly partisan, accusing two of the conservative justices — Clarence Thomas and Samuel Alito — of defying legal obligations to recuse themselves from the immunity case because of their connections to Trump. 

Thomas' wife, Ginni Thomas, was a leading figure in the "Stop the Steal" movement, while Alito said his wife, Martha-Ann Alito, was responsible for flying flags related to that campaign outside two of their homes, The Hill reported.

"This ruling is perhaps the final nail in the coffin of this rogue Supreme Court's claim to institutional legitimacy," Goldman wrote.

In a press release, Rep. Nancy Pelosi, D-Calif., said the Supreme Court's credibility has been "further diminished in the eyes of all those who believe in the rule of law. "

"The Supreme Court has gone rogue" as the "claim of total presidential immunity is an insult to the vision of our founders, who declared independence from a King," she said in a statement.

The ruling from the high court — on its last day of the current term — marked a victory for Trump, who has requested total immunity in the federal case charging him with four separate felonies related to his efforts to overturn the 2020 election results, and his role in the riot at the U.S. Capitol on Jan. 6, 2021.

Rep. Eric Swalwell, D-Calif., advised on X: "Don't panic on Trump immunity case. Jack Smith will argue Trump's actions were not 'official acts.' There's precedent on this from a J6 civil case *that I know a thing or two about* that was unanimously upheld by the D.C. Circuit Court of Appeals. This is not a Trump victory."

House Minority Leader Hakeem Jeffries, D-N.Y., posted a statement on X, saying, "No one, including the twice-impeached former President, should be above the law."

He went on to say, "House Democrats will engage in aggressive oversight and legislative activity with respect to the Supreme Court to ensure that the extreme, far-right justices in the majority are brought into compliance with the Constitution."

Rep. Alexandria Ocasio-Corte, D-N.Y., vowed on X that she would file articles of impeachment when lawmakers returned to Washington.

'Dripping with disdain': Witness says Sotomayor didn't try to hide her contempt in court

Matthew Chapman

RAW STORY
July 1, 2024 

Supreme Court Justice Sonia Sotomayor speaking to attendees at the John P. Frank Memorial Lecture in 2017. (Gage Skidmore/Flickr)

Supreme Court Justice Sonia Sotomayor's voice was "dripping with disdain" Monday as she read her dissent against Chief Justice John Roberts' decision granting immunity to former President Donald Trump for "official acts," legal analyst Joan Biskupic told CNN's Kaitlan Collins on Monday.

Biskupic was in the Supreme Court when the justices issued the landmark decision making a federal trial for the former president all but impossible before the election and granting the executive unprecedented new powers, legal experts say.

Biskupic said Monday this is highly revealing because it's a sharp departure from how the court normally handles cases like this.

"Past chief justices had worked very hard our to get unanimity on these kinds of separation-of-powers cases," she said. "You know, in the Nixon case, in the Bill Clinton case, the Supreme Court had been able to do that."

The legal analyst noted this appeared not to be the case in the Trump uling.

"But here it was so painful about how splintered they are and how divided they are, not just down ideology, but on politics," Biskupic said. "So the chief tried to make the best case possible that this was the only way out ... he stressed that the separation of powers protects the office of the presidency in a way that would certainly prohibit any kind of prosecution for official acts, and he said there has to be that presumption for official acts and you know, he stressed that that fear and that that idea that presidents should not have to hedge in any way."

ALSO READ: ‘Creepy weirdos’: Senator fears Trump WH staff would destroy government from ‘inside’

Despite his best attempt to unite the court, Biskupic added, "boy was he met by dissenters" — chief among them the most senior liberal justice.

"When Justice Sotomayor began her dissent from the bench, her voice is really dripping with disdain, and she talked about how the majority was making a mockery of the notion that no man is above the law," said Biskupic. "And she, at several points, even addressed the audience and said, how hard could this be to resolve it with a way that really comports with history? Do you think it's hard?"

Sotomayor's tone stunned Biskupic, she said.

"She was just quite impassioned and, as I said, has this mocking tone in her voice in the end," Biskupic added. "She talked about what a law-free zone the majority had drawn around the president with this kind of a ruling. You know, as I said, just a very riveting set of back-and-forth between these two that pointed up what you see there on the printed page."


Watch the video below or at the link here.
Joan Biskupic on Sonia Sotomayor's immunity dissent

www.youtube.com

Sotomayor’s dissent: A president should not be a ‘king above the law’

BY LINDSAY WHITEHURST
 July 1, 2024

WASHINGTON (AP) — In an unsparing dissent, Justice Sonia Sotomayor said the Supreme Court allowed a president to become a “king above the law” in its ruling that limited the scope of criminal charges against former President Donald Trump for his role in the Jan. 6, 2021 riot at the U.S. Capitol and efforts to overturn the election.

She called the decision, which likely ended the prospect of a trial for Trump before the November election, “utterly indefensible.”

“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she wrote. She was joined by liberal justices Elena Kagan and Ketanji Brown Jackson, who wrote another dissent referring to the ruling’s consequences as a “five alarm fire.”

Sotomayor read her dissent aloud in the courtroom, with a weighty delivery that underscored her criticism of the majority. She strongly pronounced each word, pausing at certain moments and gritting her teeth at others.

“Ironic isn’t it? The man in charge of enforcing laws can now just break them,” Sotomayor said.Chief Justice John Roberts accused the liberal justices of fearmongering in the 6-3 majority opinion. It found that presidents aren’t above the law but must be entitled to presumptive immunity to allow them to forcefully exercise the office’s far-reaching powers and avoid a vicious cycle of politically motivated prosecutions.While the opinion allows for the possibility of prosecutions for private acts, Sotomayor said it “deprives these prosecutions of any teeth” by excluding any evidence that related to official acts where the president is immune.

“This majority’s project will have disastrous consequences for the presidency and for our democracy,” she said. She ended by saying, “With fear for our democracy, I dissent.”

Trump, for his part, has denied doing anything wrong and has said this prosecution and three others are politically motivated to try to keep him from returning to the White House.

The other justices looked on in silence and largely remained still as Sotomayor spoke, with Justice Samuel Alito shuffling through papers and appearing to study them.

Sotomayor pointed to historical evidence, from the founding fathers to Watergate, that presidents could potentially face prosecution. She took a jab at the conservative majority that has made the nation’s history a guiding principle on issues like guns and abortion. “Interesting, history matters, right?”

Then she looked at the courtroom audience and concluded, “Except here.”

The majority feared that the threat of potential prosecution could constrain a president or create a “cycle of factional strife,” that the founders intended to avoid.

Sotomayor, on the other handed, pointed out that presidents have access to extensive legal advice about their actions and that criminal cases typically face high bars in court to proceed.

“It is a far greater danger if the president feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity,” she said. “I am deeply troubled by the idea ... that our nation loses something valuable when the president is forced to operate within the confines of federal criminal law.








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“May have just legalized murder by one individual”: Experts alarmed at “stunning” SCOTUS ruling

The ruling even barred courts from trying to "inquire into the president's motives"

By TATYANA TANDANPOLIE

Staff Writer    SALON

JULY 1, 2024 

 

Donald Trump | US Supreme Court

 (Photo illustration by Salon/Getty Images)

Donald Trump is immune from criminal charges for official acts carried out within his "core constitutional powers" while in office but not from unofficial acts, the Supreme Court ruled Monday.

The highly anticipated decision comes nearly seven months after Trump first submitted the legal challenge in his federal election subversion case brought by special counsel Jack Smith, claiming he enjoyed absolute presidential immunity from prosecution of official acts connected to his alleged efforts to subvert the 2020 election results and remain in power.

The justices held that the former president is entitled to absolute immunity from criminal prosecution for actions taken "within his conclusive and preclusive constitutional authority" and receives "at least presumptive immunity from prosecution for all his official acts," ruling in a 6-3 determination split along ideological lines. Chief Justice John Roberts delivered the majority opinion.

"Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession," the decision reads, referencing the court's rejection of a claim that a president could not be subpoenaed in United States v. Burr in 1895. "The danger is greater than what led the Court to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the 'bold and unhesitating action' required of an independent Executive."
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"Treasonous acts": Liberal justices say SCOTUS Trump immunity ruling a "mockery" of the Constitution

"Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages," it continued.

The court sent the case back to U.S. District Court Judge Tanya Chutkan, who's overseeing the trial, to determine which of Trump's charged actions, including interactions with ex-Vice President Mike Pence, state officials, certain private parties and comments to the American public, constitute either official or unofficial acts.

The justices "gave Trump virtually everything he asked for," issuing a ruling that was "about as broad as it could be for presidential immunity" since it holds that "virtually everything a president does as president is 'presumptively' and 'official act'" that requires the prosecution to "rebut that presumption," argued Bennett Gershman, a law professor at Pace University and former New York prosecutor.

He pointed to the justices determining that courts may not "inquire into the president's motives" and the implication that proof of Trump's attempt to hold onto power through "fraudulent and corrupt actions" would not be allowed as another point of contention, calling the decision "a gift" to the former president "by delaying any trial until next year at the earliest, if at all."

"The court’s recital of the president’s authority was stunning in its breadth," Gershman told Salon. "It made me wonder whether a president could claim absolute immunity for the 'official act' of ordering a Navy Seal team to assassinate a political rival; organizing a military coup to hold onto power; accepting a bribe in exchange for a pardon."

David Schultz, a professor of legal studies and political science at Hamline University, told Salon that the high court's decision was "not a surprise" to him in terms of what it held. Instead, he said he was more struck by the clean ideological split in the decision.

"Roberts did not get, I think, what he wanted: a 9-0 opinion," Schultz said, adding: "Whatever the merits of his argument, the public reception of it is going to be that this was a win for Donald Trump, given to him by a Supreme Court that he significantly had a hand in crafting. That's not going to be good for the public perceptions of the court."

Trump sought to have the charges in his federal election interference case alleging he conspired to overturn the 2020 election and obstruct the peaceful transfer of power on Jan. 6, 2021, on the grounds of having absolute immunity from prosecution for acts conducted while in office.

Two lower courts roundly rejected the notion before the Supreme Court decided to take up the case, and the high court appeared skeptical of the Trump legal team's assertion during oral arguments in late April. On Monday, the justices described Trump's description of presidential immunity as far broader

Though the decision finally resolves an issue that put his Washington, D.C., trial on hold indefinitely — in theory, now allowing the case to move forward — legal experts have previously told Salon that the court's choice to delay the decision played right into the former president's hand: making it less likely for the case to go to trial before this year's election, which could result in the case being thrown out altogether should he win the presidency in November.

Schultz said that the justices left open two possibilities for the district court to address deciding which alleged misdeeds were official or unofficial — doing so before any trial takes place or making these distinctions as part of trial. The former, he said, appeared to be where the nation's highest court had landed.

"The implications of that are significant because if it basically says that the court has to figure it out first — the prosecution has to convince the court first that these are actions that are not immune — that could very well take place before a trial has to occur and affect the indictments," Schultz said, noting later that, given that the distinction between unofficial and office acts amounts to a "fact-based question," the judge could proceed to trial.

Arguing that there is "no excuse for the delay in reaching this decision," Norman Eisen, a CNN legal analyst and senior fellow at the Brookings Institute, called for Chutkan to "call the parties before her" and hold a "mini trial" — to be "scheduled imminently" — to categorize the remaining acts and "shed light" on the depth of Trump's misconduct for the American public to digest ahead of the election.

"The decision today does set up a test that now needs to be adjudicated in a mini trial," he said during a press call Monday afternoon, noting that the chief justice's opinion "actually calls for fact-finding by Judge Chutkan."

Eisen also emphasized the gravity of the dissenting opinion, proclaiming that the three dissenting justices — liberal Justices Sonia Sotomayor, Ketanji Brown-Jackson and Elena Kegan — will be "remembered as a clarion call that the Supreme Court took a terrible wrong turn."

"When dissenting justices warned that the majority may have just legalized murder by one individual in our country, that warning is to be taken very seriously," he said. "Nor are the consequences of the majority opinion able to be read in isolation. We can not ignore the trend towards authoritarianism."

Sotomayor, joined by Brown-Jackson and Kegan, authored a scathing dissenting opinion.

"Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity," Sotomayor wrote. "If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop."

"With fear for our democracy, I dissent," she concluded.

In posts to Truth Social Monday, Trump, however, celebrated the Supreme Court's decision — and took swings at President Joe Biden and the prosecutors heading his other legal battles, including his civil fraud trial and defamation case from writer E. Jean Carroll.

"Today’s Historic Decision by the Supreme Court should end all of Crooked Joe Biden’s Witch Hunts against me, including the New York Hoaxes - The Manhattan SCAM cooked up by Soros backed D.A., Alvin Bragg, Racist New York Attorney General Tish James’ shameless ATTACK on the amazing business that I have built, and the FAKE Bergdorf’s 'case,'" Trump wrote. "PROUD TO BE AN AMERICAN!"

Trump has repeatedly denied all wrongdoing and routinely characterized the cases against him as a political witch hunt.

The former president still faces federal charges in Florida brought by Smith alleging he illegally retained national security documents post-presidency and obstructed government efforts to retrieve them. He also faces charges in Georgia over an alleged conspiracy to subvert the election results in that state, though that trial has been postponed pending an appellate court decision on whether Fulton County prosecutor Fani Willis can remain on the case.

While Schultz said that Supreme Court's decision Monday is unlikely to impact the Florida case in any way due to the alleged misconduct being acts Trump undertook after leaving office, the ruling could impact the Georgia case by requiring the court to determine whether "the actions that he used to try to pressure state officials in Georgia" are official or unofficial acts.

Gershman, however, argued that both cases are "imperiled by this decision," asserting instead that Trump's conviction of 34 felony counts in New York late last month would not be impacted by the Monday ruling.

But looking just at the legal outcomes of the Supreme Court's decision is not enough, Eisen argued. He and Schultz agreed that the determination will have profound political consequences, with Schultz predicting it will be another hot-button issue of the 2024 presidential race.

"Much in the same way that the Dobbs opinion two years ago really affected the contour of the midterm elections, this opinion is — in addition to the fact that it affects Trump's trial and, I think, given the fact that it's going to be perceived as a highly partisan political opinion — also going to be now part of the talking points, at least for the Democrats, going into the 2024 election," Schultz said. "At a time when they need, especially after the debate last week, to shift something away from Biden's performance, it's something that they're going to hope that gives them momentum."

As for the decision's impact on the nation, Schultz said he finds what it suggests to be a lot more unclear.

"The court has really given a degree of immunity to core constitutional acts of the president. I think that does raise a lot of troubling questions," he said, citing specifically the question at oral arguments in April of whether the president ordering the assassination of a political rival amounts to an official or unofficial act. "I don't think the court addresses that question. It leaves open a lot of murky stuff that need not have been so unclear."

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

Supreme Court rules presidents have absolute immunity for official acts, but no immunity for unofficial acts

The 6-3 ruling ends prospects the former president could be tried before the November election

The Supreme Court is seen under stormy skies in Washington

 In the coming days, the Supreme Court will confront a perfect storm mostly of its own making, a trio of decisions stemming directly from the Jan. 6, 2021 attack on the U.S. Capitol. (AP Photo/J. Scott Applewhite, File)

By THE ASSOCIATED PRESS 
PUBLISHED: July 1, 2024 

WASHINGTON — The Supreme Court on Monday extended the delay in the Washington criminal case against Donald Trump on charges he plotted to overturn his 2020 presidential election loss, all but ending prospects the former president could be tried before the November election.

In a historic 6-3 ruling, the justices said for the first time that former presidents have absolute immunity from prosecution for their official acts and no immunity for unofficial acts. But rather than do it themselves, the justices ordered lower courts to figure out precisely how to apply the decision to Trump’s case.

The outcome means additional delay before Trump could face trial in the case brought by special counsel Jack Smith.

The court’s decision in a second major Trump case this term, along with its ruling rejecting efforts to bar him from the ballot because of his actions following the 2020 election, underscores the direct and possibly uncomfortable role the justices are playing in the November election.

“Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” Chief Justice John Roberts wrote for the court. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”

Roberts was joined by the other five conservative justices. The three liberal justices dissented.

“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law,” Justice Sonia Sotomayor wrote in a scathing dissent.

Sotomayor, who read a summary of her dissent aloud in the courtroom, said the protection afforded presidents by the court “is just as bad as it sounds, and it is baseless.”

The ruling was the last of the term and it came more than two months after the court heard arguments, far slower than in other epic high court cases involving the presidency, including the Watergate tapes case.

The Republican former president has denied doing anything wrong and has said this prosecution and three others are politically motivated to try to keep him from returning to the White House.

In May, Trump became the first former president to be convicted of a felony, in a New York court. He was found guilty of falsifying business records to cover up a hush money payment made during the 2016 presidential election to a porn actor who says she had sex with him, which he denies. He still faces three other indictments.

Smith is leading the two federal probes of the former president, both of which have led to criminal charges. The Washington case focuses on Trump’s alleged efforts to overturn the 2020 election after he lost to Democrat Joe Biden. The case in Florida revolves around the mishandling of classified documents. The other case, in Georgia, also turns on Trump’s actions after his defeat in 2020.

If Trump’s Washington trial does not take place before the 2024 election and he is not given another four years in the White House, he presumably would stand trial soon thereafter.

But if he wins, he could appoint an attorney general who would seek the dismissal of this case and the other federal prosecution he faces. He could also attempt to pardon himself if he reclaims the White House. He could not pardon himself for the conviction in state court in New York.

The Supreme Court that heard the case included three justices appointed by Trump — Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh — and two justices who opted not to step aside after questions were raised about their impartiality.

Justice Clarence Thomas’ wife, Ginni, attended the rally near the White House where Trump spoke on Jan. 6, 2021, though she did not go the Capitol when a mob of Trump supporters attacked it soon after. Following the 2020 election, she called it a “heist” and exchanged messages with then-White House chief of staff Mark Meadows, urging him to stand firm with Trump as he falsely claimed that there was widespread election fraud.

Justice Samuel Alito said there was no reason for him to step aside from the cases following reports by The New York Times that flags similar to those carried by the Jan. 6 rioters flew above his homes in Virginia and on the New Jersey shore. His wife, Martha-Ann Alito, was responsible for flying both the inverted American flag in January 2021 and the “Appeal to Heaven” banner in the summer of 2023, he said in letters to Democratic lawmakers responding to their recusal demands.

Trump’s trial had been scheduled to begin March 4, but that was before he sought court-sanctioned delays and a full review of the issue by the nation’s highest court.

Before the Supreme Court got involved, a trial judge and a three-judge appellate panel had ruled unanimously that Trump can be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the appeals court wrote in February. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

U.S. District Judge Tanya Chutkan, who would preside over the trial in Washington, ruled against Trump’s immunity claim in December. In her ruling, Chutkan said the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

“Former Presidents enjoy no special conditions on their federal criminal liability,” Chutkan wrote. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”

COMMENTARY
The Supreme Court just handed Trump a new shield: 'official-acts immunity'

July 01, 2024

Eileen McNamara

WBUR

People hold anti-Trump signs in front of the US Supreme Court on July 1, 2024, in Washington, DC. (DREW ANGERER/AFP via Getty Images)

A partisan Supreme Court on Monday gave a green light to presidents of the United States to engage in criminal conduct in office without fear of prosecution.

As long as his actions fall within his “official” duties, a president is immune from legal consequences that would befall any other American citizen. As a practical matter, the high court’s 6-to-3 ruling along ideological lines almost certainly ensures that Donald Trump will not stand trial before the November election on charges that he used his office to try to reverse the results of the 2020 presidential contest, which he lost to Joe Biden by more than seven million votes.

The case against the former president will go back to the lower court where U.S. District Court Judge Tanya Chutkan must determine whether the four counts against Trump alleged in the federal indictment were official or private acts. That delay likely ensures that any trial of the 45th president on conspiring to defraud the United States, to obstruct the formal certification of Biden’s victory and to violate the public’s right to vote will likely not take place before the election in November, when Trump is presumed to be the Republican nominee.

Mission accomplished

.

Trump speaks from a Jumbotron screen as crowds gather for the "Stop the Steal" rally on January 06, 2021 in Washington, DC. (Robert Nickelsberg/Getty Images)

It has been 10 months since Trump was indicted on criminal charges arising from Special Counsel Jack Smith’s investigation of the violent attack on the U.S. Capitol on Jan. 6, 2021. Trump has used every procedural delay available to ensure the case would not be brought to trial before this fall’s election, the presumption being that, if elected, he will order the Department of Justice to dismiss the charges against him.

From the first, the Supreme Court has been complicit in that transparent strategy. In upholding Judge Chutkan’s rejection of the former president’s claim of absolute immunity, the U.S. Court of Appeals for the District of Columbia rightly dismissed as absurd Trump’s claim that he cannot be tried on criminal charges because he was acquitted by a Republican-controlled Senate in his impeachment trial of similar allegations.

Noting that impeachment is a political proceeding, not a criminal prosecution, the court wrote that “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.

“Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress.”

The Supreme Court swept aside [the appeals court's] existential concerns, insisting that a president’s "need for boldness” takes precedence over the need for need for accountability and restraint.

It took the high court four months to review Trump’s immunity claim and until the final day of its session to issue today’s decision. The Warren Burger Court managed to issue a unanimous ruling ordering President Richard Nixon to turn over the Oval Office tapes to special prosecutors only 17 days after oral arguments about Nixon’s futile claim of executive privilege during the Watergate scandal.

“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” the appeals court wrote. “Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count. At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches.”

The Supreme Court swept aside those existential concerns, insisting that a president’s “need for boldness” takes precedence over the need for need for accountability and restraint.

The implications of this decision extend far beyond the role Donald Trump played in pressuring state officials to change vote totals and inciting an insurrection at the U.S. Capitol. In a stinging dissent, Justice Sonia Sotomayor excoriated the conservative majority for a decision that “makes a mockery of the principle, foundational to our Constitution and system of Government, that ‘no man is above the law.’ ”

The conservative majority that regularly crows about its fealty to the original intent of the drafters of the U.S. Constitution have ignored the explicit counsel of the Founders.

It is Sotomayor in her dissent, joined by Justices Elena Kagan and Katanji Brown Jackson, who relies on their guidance, citing Federalist Paper No. 69. “The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it,” she wrote. “For instance, Alexander Hamilton wrote that former Presidents would be ‘liable to prosecution and punishment in the ordinary course of law.’ For Hamilton, that was an important distinction between ‘the king of Great Britain,’ who was ‘sacred and inviolable,’ and the ‘President of the United States,’ who ‘would be amenable to personal punishment and disgrace.’ In contrast to the king, the President should be subject to ‘personal responsibility’ for his actions.”

In writing for the majority, Chief Justice John Roberts “effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding,” Sotomayor wrote. “This new official-acts immunity now lies about like a loaded weapon for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. 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.”

The high court has handed Trump the weapon he will wield to shield himself from accountability.

With no apparent irony, the former president — who repeatedly threatens on the campaign trail to jail his political opponents — argued that only absolute immunity would protect presidents from politically motivated prosecutions after they leave office.

He has promised to return to the White House “a dictator” on “Day One.” An historically ignorant, ethically bankrupt and politically motivated Supreme Court has ensured that a re-elected Donald Trump would be empowered, as he has always been emboldened, to exploit his office to enrich himself, to punish his opponents and to destroy what remains of American democracy.

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Trump Immunity Ruling Will Be John Roberts’ Legacy to American Democracy

BY RICHARD L. HASEN

JULY 01, 2024

Is the Supreme Court obtuse or disingenuous?

 Photo illustration by Slate. Photos by Shawn Thew/Pool/Getty Images and Saul Loeb/Getty Images.

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)

Is the Supreme Court obtuse or disingenuous? In its awful immunity ruling on Monday benefiting Donald Trump, the court seems so worried about future threats to democracy that could come from the possibility of bogus future criminal prosecutions of former presidents that it is willing to let a legitimate election subversion prosecution over a current threat against democracy go by the wayside.

As Mark Joseph Stern explained, the court’s ruling gives an exceedingly broad scope to the immunity afforded presidents from liability for official acts. It defined official acts so broadly as to include not only communications with officials at the Justice Department but even giving public speeches, as Trump did on Jan. 6, 2021, that encouraged political violence at the Capitol: “most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.” And even as to unofficial acts for which there is no immunity, a prosecutor could not rely on any official acts to prove that immunity. The bottom line is that trying to prosecute a former president for criminal activity during the president’s time in office will be all but impossible.

The writing was on the wall back in the April oral arguments in Trump v. United States when Justice Neil Gorsuch said the Supreme Court’s task was writing an opinion “for the ages” and when Justice Samuel Alito opined, from some bizarre alternative universe, that it is the threat of criminal liability after the end of the presidential term (as opposed to its absence) that could cause an incumbent president not to leave office peaceably. Indeed, the intentional delay the court took—to the benefit of Trump—was clear way before then, when the court refused to expedite this case as the special counsel requested back in December and when it slow-walked the case, setting it for the last day of arguments (and now releasing the opinion on the last day of the term).

These justices were always thinking about an abstract problem that could occur in 2072 or 2114 with presidential power and not about the problems the United States faces today with the attempt at election subversion undertaken by Donald Trump and his allies in 2020.

Months ago, many of us were wondering why the court was dragging its feet, and I even naïvely suggested the court could behind the scenes be crafting a “grand bargain” where it decided in favor of Trump when Colorado tried to remove him from the ballot, to be followed by a quick rejection of immunity, allowing his election subversion trial to move forward before the election. Reality was in fact the opposite. In Monday’s opinion, the court accused the lower courts of moving way too quickly and not engaging in thorough enough legal analysis and factual development. Their message was, Hey guys, take it slow, presidential immunity for criminal acts is really important.

The court was right about importance, but not in the way that it thought. We have an ongoing threat to American democracy going on today, right now, in this country. In 2020, the incumbent president tried to overturn the results of a fairly conducted election by trying to manipulate the rules for states to certify their presidential electors and Congress to count those Electoral College votes. He did that by making wholly unsubstantiated claims of fraud and irregularities and pressuring Justice Department officials, state election administrators, state legislators, and others to change fair results. When that failed, he aimed and fired his armed supporters at the U.S. Capitol to disrupt the proceedings for certifying the election and block the peaceful transfer of power.
Related From Slate

MARK JOSEPH STERN
Don’t Believe John Roberts. The Supreme Court Just Made the President a King.

Not only did this presidential candidate not face any legal consequences yet for these actions, but he is the front-runner to be president again, now armed with a new Supreme Court opinion that gives him vastly expanded powers that he would no doubt use if he is put back in office. Who knows what he will do in 2025 with a green light to engage in all kinds of criminal activity?

Tellingly, Chief Justice John Roberts’ majority opinion spends not a moment condemning the violence in the Capitol on Jan. 6 or saying how awful the allegations against Trump are if true, or even celebrating peaceful transitions of power and reaffirming American democracy. It fell to Justices Sonia Sotomayor and Ketanji Brown Jackson to do this in their dissenting opinions in this case, in the Fisher case, and in Trump v. Anderson, the case holding that Colorado could not remove Trump from the ballot on grounds that Trump engaged in insurrection in violation of Section 3 of the 14th Amendment.

It is not as though Roberts does not know how to celebrate democracy or call for its protection when he thinks it’s important. In a 2014 campaign finance case, for example, Roberts opened with the line:


There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

Near the end of his majority opinion in the immunity ruling, Roberts plays the role of the faux minimalist, as he often likes to do, pretending that when he is making major changes in the law he is really doing very little. He did this, for example, in the 2013 Shelby County v. Holder case killing off a key part of the Voting Rights Act. There he told us that Congress could tinker and fix the formula used to figure out which states need federal supervision of their voting rules, and that there were other voting rights protections under the law. He wrote that knowing Congress would not act. The Roberts Court would then whittle away those other protections in subsequent years.



Biden Has Landed on His Justification for Staying in the Race


In Monday’s opinion, Roberts pushes back against dissents that “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.” At best, the process that Roberts has set out will take months, and future appeals to the United States Supreme Court before any trial could even be possible, under rules that make Trump almost a prohibitive favorite to defeat the claims before there is even a trial. At worst, a reelected Trump will simply shut down the prosecution once he’s back in office.

Even putting aside the risks for future presidential authoritarianism, Roberts offers no acknowledgement that the court’s fact-intensive, slow-moving process has let Donald Trump run out the clock on claims of election subversion in 2020. Roberts surely was aware that this was an implication of the decision and surely the risks to democracy from this decision had to have crossed his mind.

Roberts’ failure to even acknowledge those risks, even if he thought the risks were worth taking because of larger principles at stake of protecting the presidency from bogus prosecutions in the future, is going to be Roberts’ legacy for American democracy. That is, if our democracy survives.

The Supreme Court also handed down a hugely important First Amendment case today

A few minutes before the Court held that Trump was allowed to do crimes, it did hand Republicans a meaningful loss.


by Ian Millhiser

VOX

Jul 1, 2024,

Among other things, the Court's Netchoice decision means that social media companies may ban Donald Trump. Anna Barclay/Getty Images


Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.


If you spent Monday morning following each of the cases handed down by the Supreme Court, you’re probably experiencing a bit of whiplash.


The biggest news out of the Court on Monday, of course, is a sweeping decision holding that former President Donald Trump was effectively allowed to do crimes while he was in office. Indeed, under the six Republican justices’ decision in Trump v. United States, it is very likely that a sitting president can order the military to assassinate his political rivals without facing any criminal consequences for doing so.


Just a few minutes before the Supreme Court handed down its Trump decision, however, it also handed down another case reaffirming that the First Amendment does not permit Republican-led legislatures to seize control of what content is published by media companies. That decision, in Moody v. Netchoice, was 6-3, with three Republican justices who also held that the leader of the Republican Party was allowed to commit many crimes while he was in office joining Justice Elena Kagan’s majority opinion.


So, on the same day that the Supreme Court appears to have established that a sitting president can commit the most horrible crimes imaginable against someone who dares to speak out against him, the same Court — with three justices joining both decisions — holds that the First Amendment still imposes some limits on the government’s ability to control what content appears online.


Chief Justice John Roberts and Justice Brett Kavanaugh joined both decisions in full. Justice Amy Coney Barrett joined the Netchoice opinion in full, plus nearly all of the Trump decision.


It’s impossible to comprehend the value system that would lead a justice to join both decisions, but nevertheless here we are. That said, the Court’s decision in Netchoice is a victory for free speech, even if it comes the same day as one of the most chilling decisions in the Court’s history.

What’s at stake in Netchoice?


Netchoice concerns two state laws, one from Florida and one from Texas, which seek to control what content must be published by major social media platforms such as Facebook, Twitter, or YouTube. Both laws were enacted by Republican legislatures, and signed by Republican governors, for the very purpose of forcing these platforms to publish right-leaning content that they would prefer not to publish.


As Texas Gov. Greg Abbott said before signing his state’s law, it was enacted to stop an allegedly “dangerous movement by social media companies to silence conservative viewpoints and ideas.”


The two laws, and especially the Texas law, are extraordinarily broad. Texas’s, for example, prohibits major social media companies from moderating content based on “the viewpoint of the user or another person” or on “the viewpoint represented in the user’s expression or another person’s expression.”


That’s such a sweeping restriction on content moderation that it would forbid companies like YouTube or Twitter from removing content that is abusive, that promotes violence, or that seeks to overthrow the United States government. Indeed, Kagan’s opinion includes a bullet-pointed list of eight subject matters that the Texas law would not permit the platforms to moderate, including posts that “support Nazi ideology” or that “encourage teenage suicide and self-injury.”


In any event, Kagan makes clear that this sort of government takeover of social media moderation is not allowed, and she repeatedly rebukes the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.


As Kagan writes, the First Amendment does not permit the government to force platforms “to carry and promote user speech that they would rather discard or downplay.” She also cites several previous Supreme Court decisions that support this proposition, including its “seminal” decision in Miami Herald Publishing Co. v. Tornillo (1974), which held that a newspaper has the right to final control over “the choice of material to go into” it.


Nothing in Kagan’s opinion breaks new legal ground — it is very well-established that the government cannot seize editorial control over the media, for reasons that should be obvious to anyone who cares the least bit about freedom of speech and of the press. But the Court’s reaffirmation of this ordinary and once uncontested legal principle is still jarring on the same day that the Court handed down a blueprint for a Trump dictatorship in its presidential immunity case.


It’s also worth noting that Kagan’s decision is technically a victory for Texas and Florida, although on such narrow grounds that this victory is unlikely to matter.

What Kagan’s Netchoice decision actually says


The specific holding of the Netchoice opinion turns on a distinction between a “facial” challenge to a state law, and a more limited “as-applied” challenge.


A facial challenge, which is what the social media platforms brought against Texas and Florida’s unconstitutional laws, alleges that the law is unconstitutional in all of its applications and must be effectively removed from the books in its entirety. That contrasts with an “as-applied” challenge, which merely alleges that a law is unconstitutional when it is enforced against a particular plaintiff in a particular context.


Facial challenges, however, are notoriously difficult to win. Ordinarily, as Kagan writes, a plaintiff must show that “no set of circumstances exists under which the [law] would be valid,” though it is somewhat easier to win such a case in the First Amendment context.


While Kagan’s Netchoice opinion lays out why the Texas and Florida laws are unconstitutional as applied to social media companies’ core product — a curated list of content authored by social media users — both laws are so broadly drafted that they also may apply to less core features at websites like Facebook or Twitter, such as “direct messaging or events management.”


Kagan faults the lower courts for failing to separately evaluate whether the laws can constitutionally be applied to these non-core features, and sends the case back down to those lower courts to do that work. That said, the bulk of her opinion is quite clear that the laws cannot constitutionally be applied to core features like Facebook’s Newsfeed or YouTube’s homepage.


So, on the same day that the Supreme Court holds presidents above the law, it also appears to rule that lesser public officials still must comply with the First Amendment.