It is hard to know why the Trump and Biden campaigns decided upon June 27 as the date of the initial presidential debate. There is speculation that Trump wished to refocus attention on his campaign and away from recent legal proceedings in New York, and that the Democrats wished to get a look at Biden’s debate performance in advance of their convention in August, possibly with an eye to replacing him on the ticket if he performed badly. Both are plausible explanations.
Whatever the reasons, the two camps settled on a day and a week when the Supreme Court will be handing down a series of explosive decisions, several of them bearing upon the presidential campaign. Some of those decisions may be handed down on the morning of the debate and could upend settled strategies not only for Biden and Trump, but the debate moderators as well.
The Supreme Court is still sitting on a dozen pending cases that were argued during the course of the 2023–24 term, and it’s scheduled to issue opinions on all (or most) of them on Wednesday, Thursday, and Friday of this week—that is, over the three-day period sandwiching the presidential debate.
The granddaddy of them all is the Trump immunity case that may circumscribe Jack Smith’s prosecution of the former president over his alleged role in the January 6 riot at the Capitol. Trump claims that, as president at the time, he is immune from prosecution for any and all of these acts. The Supreme Court, in accepting the case on appeal, settled on a narrower set of questions, considering not whether a president or former president is immune from prosecution, but rather the extent to which presidential immunity may extend to the acts covered in the federal indictment. The justices could toss Mr. Smith’s indictment, narrow it substantially by throwing out some of the charges, or let it proceed along the lines of the original indictment. In the third case, Mr. Smith may still find an opportunity to commence this trial prior to the election.
A decision on this case released on Wednesday or Thursday will land with the force of dynamite in the middle of the presidential debate. The ruling, depending on how it goes, will be exploited in the debate by either Trump or Biden, one of whom will return to it on every possible occasion. The moderators will ask both to comment on the ruling. Trump, as a defendant in the charges, may be advised by counsel not to comment on the decision, lest he complicate his own situation or perhaps violate the limited gag order imposed by the federal judge in the case. If the decision goes for Trump, then Biden will be given still another opportunity to attack the Supreme Court.
No matter how it goes, the decision will divert attention from inflation, the border, crime, spending, Biden’s age, and other national issues. One suspects that the court, bearing this in mind, will hold its decision on the Trump case until Friday, the day after the debate—or perhaps even beyond this coming week.
The court is also due to rule on a parallel case involving other January 6 defendants who claim they are being charged improperly under an Enron-era statute that does not apply to their circumstances. The defendants in this case, Fischer v. United States, were convicted of obstructing a federal proceeding (the counting of electoral votes) under a provision of the Sarbanes–Oxley Act (2002) that dealt with the destruction of evidence during an official investigation. A lower court (agreeing with the defendants) tossed the charges on the grounds that the law targeted the destruction of evidence rather than the kinds of acts that took place on January 6. An appeals court overturned that ruling, thereby sending it up to the Supreme Court, which will decide the case this week.
In Mr. Smith’s four-count indictment against Trump, two of the counts were brought under this provision of the Sarbanes–Oxley Act. If the court rules for the defendants in Fischer, then two of Smith’s counts against Trump will likewise disappear—creating still more fodder for the presidential debate. The court may defer that decision, too, until Friday.
But this is not all. The court is due to issue rulings on several other potentially precedent-setting cases that should merit attention in the presidential debate.
In NetChoice, LLC v. Paxton, the court will rule on a Texas law designed to prohibit social-media platforms from censoring speech based upon the viewpoints of different speakers. Texas has claimed that media platforms like Google and Facebook have discriminated against conservatives by deleting their posts or banning them completely. Florida subsequently passed a similar law. The media companies (represented here by NetChoice) contend that, as private actors, they possess a degree of editorial discretion under the First Amendment that is circumscribed by the Texas law. A federal district court issued an injunction against enforcement of the law, but that ruling was overturned by the Fifth Circuit Court of Appeals. In oral arguments, several justices appeared to be skeptical of the reach and purposes of the Texas statute.
In Murthy v. Missouri, the court will rule on claims by multiple plaintiffs who contend that the federal government engaged in improper censorship by leaning on social-media companies to suppress conservative views in regard to the origins of COVID-19, the 2020 presidential election, the efficacy masks and vaccines, and other issues. They contend that the government threatened these companies with regulatory retaliation if they did not suppress these views, thereby violating their free-speech rights under the First Amendment. The government contends that the claims are exaggerated; that it made recommendations, not threats, to social-media companies; and that (besides) it was interested mainly in removing misinformation from media platforms, not in suppressing free speech. A lower court sided with the plaintiffs by issuing an injunction prohibiting federal officials from communicating with social-media companies. An appeals court lifted that injunction. The court will rule to what extent the First Amendment applies to these kinds of communications between governments and media outlets.
Relentless, Inc. v. Department of Commerce, also due for decision this week, is a challenge to the Chevron-deference doctrine according to which the Supreme Court defers to federal agencies in their interpretations of statutes Congress has delegated to them to administer. This is an important rule, in place since 1984, that gives federal agencies wide discretion in interpreting federal statutes, while denying parties access to the courts to challenge those interpretations. The facts here are narrow and arcane to most citizens, as they involve a regulation imposed on fishing vessels by the National Marine Fisheries service, which operates under the Department of Commerce on authority granted by Congress under the Fishery Conservation and Management Act. According to the Chevron-deference doctrine, the court would defer to the findings of the regulatory agency—but the court is now taking the opportunity to review the doctrine from scratch. A decision in favor of Relentless, Inc. would have far-reaching implications for the powers of federal regulatory agencies.
City of Grants Pass vs. Johnson is a case in which the court will decide whether a local statute banning camping on public streets and parks violates the Eighth Amendment protection against cruel and unusual punishment. The local government in this case approved the ordinance as a means of dealing with a growing homeless population in the town. The plaintiffs claim, somewhat oddly, that this ordinance imposes a cruel and unusual punishment on those people by forcing them off the streets and into other accommodations. Civic leaders across the country are watching for the decision in this case, as they would like to have the authority to approve similar laws in their jurisdictions.
Moyle v. United States is a federal challenge to an Idaho law restricting access to abortion except in a few narrow circumstances. The Biden Administration claims that the law violates the Emergency Medical Treatment and Labor Act, which requires hospitals receiving funding under Medicare to offer appropriate treatment to pregnant women. In Biden’s view, the federal act preempts the Idaho law. A district court issued an injunction barring Idaho from enforcing the law, with the state now appealing the decision to the Supreme Court. The court must now decide—in the aftermath of the Dobbs decision—how to reconcile new state laws regulating access to abortion with existing federal rules regarding funding for health-care services.
Securities and Exchange Commission v. Jarkesy is another case dealing with the authority of regulatory agencies, to some degree parallel to the above challenge to the Chevron-deference doctrine. In this case, Jarkesy ran a hedge fund accused of securities fraud by the SEC, with an enforcement action decided by administrative-law judges rather than by judges in a federal court. Jarkesy claimed that the proceeding violated his right to a jury trial as guaranteed by the Seventh Amendment to the U.S. Constitution. From his point of view, the statute conferring these powers to the SEC represented an unconstitutional delegation of powers, a claim commonly made in the 1930s in regard to newly created regulatory bodies, but rarely invoked since that time. Here the court has an opportunity to breathe new life into the non-delegation doctrine, which would in turn invite many new challenges to the authority of federal regulatory agencies.
These are unusually important cases with far-reaching implications for the powers of the federal government in relation to the states and the constitutional rights of citizens—and for the two candidates squaring off in a presidential election. It is rare for so many such cases to pile up for decision in the final week of the court’s term—and rarer still for so many of them to land in the middle of a contentious presidential debate.