Like most government agencies, the U.S. Supreme Court winds down its schedule as the Christmas and New Year’s season draws closer. The last day on which the justices heard arguments was Dec. 6.
Since then, they have agreed to hear three new cases in early 2024: two affect the federal suit against former President Donald Trump’s involvement in the Jan. 6 insurrection at the United States Capitol; the other is an appeal concerning the use of mifepristone that can end a pregnancy. Abortion rights advocates see it threatened by an anti-abortion lawsuit filed in Amarillo, Texas.
In the mifepristone case, a well-known abortion opponent, Judge Matthew Kacsmaryk, the sole federal judge in his district, in August halted distribution of the drug. He held that women could no longer use mifepristone because the 2000 approval by the Food and Drug Administration was faulty. He also eliminated a 2016 FDA updated regulation of the drug: ordering the drug with a prescription by mail instead of first seeing a physician; and allowing its use for 10 rather than seven weeks of a pregnancy. The Fifth Circuit Court of Appeals in August reversed Kacsmaryk’s barring of the drug. The appellate judges held that the FDA’s approval was appropriate some 23 years ago. But they agreed with Judge Kacsmaryk that the 2016 update eliminating the burdensome regulations could remain in place.
Abortion opponents and the Justice Department both appealed to the Supreme Court: opponents, for allowing the drug to remain in place; the Justice Department because the judge ended the 2016 FDA update.
The justices will rule on the case by June 2024. In the meantime, the drug’s availability by mail remains in place as the court has placed a stay on its elimination. Some 14 states have banned abortion since the court overruled Roe v. Wade last year. If abortion opponents have their way in the Supreme Court, it will effectively end most abortions nationwide.
This case does not raise a constitutional issue about a woman’s right to an abortion. It asks whether a federal agency, the FDA, followed its own procedures in approving the drug and then issuing orders later that made its access easier. Ruling against the FDA may have an impact on the authority of other federal agencies in the so-called administrative state.
The two cases involving former President Trump focus on four federal charges: “a conspiracy to violate civil rights, a conspiracy to defraud the government, the corrupt obstruction of an official proceeding and a conspiracy to carry out such obstruction.”
In one case, Trump argues that as president, he possessed absolute immunity against prosecution because he was acting in his official role as president. He demanded that special counsel Jack Smith drop all charges against him. After the trial judge, Tanya S. Chutkan, rejected Trump’s immunity claim, Trump appealed to the United States Court of Appeals for the District of Columbia.
In turn, special counsel Smith asked the Supreme Court to step in immediately. As he put it, “this case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.” (This action is known in the law as certiorari before judgment, though he asked the appeal’s court to hear arguments at the same time.)
The court accepted the case but Trump attorneys asked the court to delay hearing arguments in the case. If settled in January, the issue raises a constitutional question about decisions and actions by a president when in office but charged with crimes after his term is over.
The second Trump case involves one of the charges in the federal indictment noted above: obstruction of an official proceeding. This charge has to do with the attempt to stop the counting of electoral votes in Congress on Jan. 6 determining that Joe Biden won the election.
Trump did not bring the case to court. Another defendant by the name of Joseph Fischer did. He entered the Capitol during the insurrection on Jan. 6, 2020. A federal district court judge appointed by former President Trump ruled that the prohibition on obstruction as embodied in the 2002 Sarbanes-Oxley Act addressed destroying or tampering with evidence only in business-related cases. The act was a bipartisan response to the manifest accounting disasters in the 2002 Enron scandal. Hundreds of cases involving those storming the Capitol on Jan. 6 have been convicted under the law. The Court of Appeals for the District of Columbia reversed this decision and reinstated the obstruction charge. Fischer has appealed to the Supreme Court.
The relevant part of the law holds that “whoever corruptly…obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” The case requires the court to engage in statutory interpretation: to ferret out the meaning and application of a law. It does not raise a constitutional question.
The three Trump-nominated, very conservative justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — all claim that they follow the late Justice Antonin Scalia’s approach to statutory interpretation, namely textualism: They look only to the words of a law, not the intentions or arguments of those who made it. If they are consistent and follow the textualist line of thinking, the words are clear that the obstruction charge must be litigated in federal district court, for both Fischer and Trump. But we won’t know until the justices decide, also as early as January.
In any event, the justices have added to their work schedule three highly charged cases that an informed public must follow.
Additionally, the justices may well be called upon to issue an opinion on the Colorado supreme court’s ruling that, under the Fourteenth Amendment, Donald Trump is ineligible to run for president because of his participation in the Jan. 6, 2020, insurrection at the U.S. Capitol.
Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of his book, “The Supreme Court and Constitutional Law.”
