Neal Katyal: I suspect, for example, that we will be hearing much more about these Supreme Court decisions in the context of this Presidential campaign more than we ever have in our lifetimes. I think the Court is going to be, because of the decisions it made, in the crosshairs of the American political debate. And that is not, I think, a great place for the Court to be.

 

Alex Lovit: Welcome to The Context, a podcast about the past, present, and future of democracy from the Charles F. Kettering Foundation. I’m your host, Alex Lovit. Today’s episode focuses on the Supreme Court, which recently released its final decisions for this term. Amidst all the drama of a Presidential election, we should remember that, as important as this election is for the next four years, the consequences of a Supreme Court decision will be felt much longer than that. And there’s really no one better qualified to comment on the Court than my guest, Neal Katyal.

 

Katyal is a former acting Solicitor General of the United States. He’s argued in front of the U.S. Supreme Court 51 times. And now he’s a professor of law at Georgetown University and a partner at the firm Hogan Lovells. He’s also a Kettering Foundation Senior Fellow. Joining me to help introduce this conversation with Katyal, and an accomplished legal scholar in her own right, is the President and Chief Executive Officer of the Kettering Foundation, Sharon Davies.

 

Sharon was a law professor at The Ohio State University for over two decades, where she also served as Vice Provost for Diversity and Inclusion, Chief Diversity Officer, and Director of the Kirwan Institute for the Study of Race and Ethnicity. She also spent five years as Provost and Senior Vice President for Academic Affairs at Spellman College. In 2022, she became President of the Kettering Foundation, and she’s helped lead us in a strategic shift towards a focus on inclusive democracy and more public-facing activities, like this podcast, for example. Sharon, thank you for joining me on The Context.

 

Sharon Davies: It’s my pleasure, Alex.

 

Alex Lovit: So listeners are about to hear a long [formative] view with Neal Katyal, who is, of course, an extremely accomplished attorney. Then I want to ask you what you took away from that conversation. But you’re no slouch as a legal scholar yourself, so I’d like to start with your own thoughts on this year’s Supreme Court rulings. You released a statement about the Supreme Court’s decision about Presidential immunity, which you called one of the court’s most poorly reasoned rulings and a threat to American democracy.

 

Can you elaborate on the flaws of the Court’s opinion and the threat that it poses to democracy?

 

Sharon Davies: Yes, I have a lot of concerns about the Court’s opinion. Some of those concerns are related to how it even arrived at the opinion that it did and in a very unusual way, a way that we wouldn’t expect from conservative justices of the Court. And I also have grave concerns about the suggestion by the United States Supreme Court that our President is somehow above the law, that somehow is immune from prosecution under laws that every single one of us would expect to apply to ourselves, and that there was something particular about the responsibilities of the President of the United States that entitles the executive to that kind of immunity.

 

I think I share a lot of the concerns that I heard Neal expressing in your interview with him.

 

Alex Lovit: And so you’re saying you agree with a lot of what Neal said about that case. Is there anything that we didn’t end up exploring in that conversation with Neal Katyal that you would like to say about this case, Trump v. the U.S.?

 

Sharon Davies: I just want to say very clearly, what was so surprising, I think, to the public by the United States Supreme Court’s decision was that it did not resonate with the very strong attachment that Americans have to the rule of law, this attachment to this notion that no man is above the law. And the Supreme Court’s decision violates that intuitive strong attachment that we all have. One thing that I don’t hear a lot of commentators talking about today is the violations that are at the heart of Trump against United States are criminal violations, violations of our criminal laws.

 

The criminal law has something that no other kind of law in our nation has, and that is the threat of the criminal sanction. If you think about Nixon and what caused him to resign from office after he was alleged to have engaged in criminal activity, it’s reasonable to think that it was two things: one, the threat that he might be impeached, and two, the threat that he might go to jail just like so many who were around him were going to jail. Going to jail, the loss of your liberty, the loss potentially of life for violating a criminal statute, is the most serious sanction that we have in law.

 

And we use it only in certain instances because we believe that certain kinds of conduct have to be deterred. So I think it’s relevant that the Supreme Court’s decision says an executive is immune from the prosecution of those types of laws, which normally we would think constitute the greatest deterrent of the conduct by the executive that we wouldn’t want to see.

 

Alex Lovit: This focus on rule of law is one of the concepts that you’ve brought to the Foundation’s mission to advance inclusive democracy. Rule of law is easy to support when you agree with the Court’s decisions, maybe a little harder when you disagree with their decisions, as you do in this case. Can you talk about the importance of the rule of law to democracy?

 

Sharon Davies: Yeah, sure. Let me start with the importance of the rule of law to just society in general, right? So we all understand that the reason that we need to have laws in the first place is because men are not angels, as Neal mentioned, and that men and women are capable of engaging in wrongful conduct that harms other people. We know that we have to have laws that bind us all in order to give us remedies, but also in order to deter that kind of wrongful conduct by others.

 

And then we also have the rule of law relative to our government because we also recognize that people whom we give power to can also engage in wrongful conduct. And we have, until the Court’s recent decision, believed that those governmental actors were also expected to abide by the law. That is what explains the statement, “No man is above the law,” or explains the statement, “We are a nation of laws, not men.” Those statements are really about this intuitive attachment that we have to the rule of law because we understand that, without it, there would be anarchy, and there would also be the danger of tyranny.

 

Alex Lovit: A lot of the conversation that listeners are about to hear focuses on the checks and balances between the branches of government. And Katyal argues that the Court is expanding its powers, especially at the expense of Congress. What do you think of this topic? How is the Court shifting the balance of powers between the three branches of the federal government?

 

Sharon Davies: Yeah, as I heard, he was saying that Congress or a legislative branch is the branch of our government that has the authority to pass laws. The executive is the branch of our government that has the responsibility of enforcing our laws. And the judiciary is the branch of our government that has the responsibility of interpreting the laws that have been passed and settling disputes based on those interpretations. We need all of these branches to confine themselves to their area of responsibility and also to respect that they have an obligation, a Constitutional obligation, to perform those duties in order to check abuses that could happen in the other branches.

 

That’s a cornerstone of our Constitutional democracy. So I understand Neal to be saying that the Court is actually impeding maybe on the purview of the legislative branch. And the end result of that is to make the executive, any future President, not have an obligation to abide by the laws that the legislative branch has passed. That’s a really serious suggestion, unprecedented, and dangerous to democracy.

 

Alex Lovit: Well, these are dangerous times for democracy. Was there anything that jumped out at you from this episode, that surprised you, that you thought was particularly interesting, or that you think people should be taking away from this conversation with Neal Katyal?

 

Sharon Davies: I think that we all have to be concerned about what the United States Supreme Court did in its recent decision in setting this notion that Presidents enjoy this almost unlimited power within the scope of their Constitutional responsibilities, and that makes them above the law. This is what I hear Neal worrying about.

 

I also heard Neal talking about the danger that the Court is in fact damaging its own integrity, and that has happened not just because of the decision in Trump against the United States but a number of other decisions by the Roberts Court over the last few years where the Court has shown very little respect for precedents that have been around for decades, a willingness to set aside decades of established law because this court disagrees with the decisions of courts before them.

 

I agree with Neal that that kind of decision-making by the Roberts Court does strike the public as a sign that the Court is more ideological than it is attached to the principle that the Court calls balls and strikes, if you will, based on established ways of interpreting law, including Constitutional law.

 

Alex Lovit: So Neal Katyal is a Senior Fellow at the Kettering Foundation. This is a program the Foundation has developed under your leadership and partnership with a number of prominent pro-democracy figures. This has been personally great for me because it’s allowed me to talk to a lot of really smart and interesting people on this podcast. But while I have you here, let me ask, how do you see the Senior Fellows helping the Foundation address current threats to democracy while also helping us advance a more inclusive democracy?

 

Sharon Davies: So our Senior Fellows are, I would say, an unmatched group of everyday and elites, experts on democracy who work day in and day out in helping to advance democracy and to protect democracy against its greatest threats. So we have former governors who have political experience from both sides of the aisle who are serving as Senior Fellows. We have others who are connected to the Academy who are experts on democracy and threats to democracy. We have others who are engaged with grassroots activity so central to a democracy in the ability of citizens to hold onto their sovereignty relative to their government.

 

So we looked really broadly and well, I think, when we selected the Senior Fellows that we did. Neal Katyal, for example, is one of the nation’s most respected Constitutional law scholars. He has a very longstanding practice and stature before the United States Supreme Court in bringing arguments before the Court. He is an expert on the history of the Court. And so with respect to the Supreme Court’s decision, Neal is the perfect person to help the nation understand the significance of that decision.

 

Alex Lovit: Well, thank you, Sharon Davies, for helping us understand the consequences and potential risks [to] democracy from this current Supreme Court, and thanks for helping to introduce this conversation with Neal Katyal.

 

Sharon Davies: Thank you, Alex. My pleasure.

 

Alex Lovit: Neal Katyal, welcome to The Context.

 

Neal Katyal: Thank you. I’m really excited to be here with you.

 

Alex Lovit: So you’re a Constitutional scholar, and it strikes me that several of the biggest Supreme Court cases this term concern the relationships between branches of government. And we’ll get into the specifics of Presidential immunity and Chevron deference and all of that in a minute, but I thought maybe a good place to start would just be with some Con Law 101. So in talking with you, I’d like to ask you to just kind of run through the first three Articles of the Constitution.

 

So the first Article is about the legislative branch, the second Article is about the executive branch, and the third Article is about the judicial branch. Basically, what does the Constitution say about what each of those three branches does?

 

Neal Katyal: The essence of the founders’ philosophy was that, as Madison said in Federalists 51, men aren’t angels. And because people aren’t angels and because they seek to aggrandize their own power, it’s important to divide power. So they divided it both horizontally and vertically. They divided it so that there are three branches of government, as enumerated in those three Articles of the Constitution that you’re asking about. And they also divided it between the federal government and the states.

 

And the idea was—let’s use Madison’s phrase—this would create a double security that would eliminate or reduce threats to any one branch or any one type of government having all of the power for itself. So that’s the system of checks and balances that we have that we all learned in seventh-grade civics or hopefully learned in seventh-grade civics. And then when you get to the text of the Constitution, that implements that vision. So Article I sets out the powers of Congress.

 

And the founders were very worried about a strong legislature and a strong national legislation in particular. So they enumerated certain powers in Article I, Section 8, for that Congress. And they include things like the taxation power but also, most importantly, the power to regulate interstate commerce, which at the founding was not as great of a power as it has become after the New Deal, really allowing for the modern regulatory state to emerge because what happens in one state economically impacts what happens in another state. And that’s been the basis for much civil rights legislation and for much of consumer protection legislation, all sorts of things.

 

So that’s basically that idea behind Article I. It also has some stuff about impeachment and things like that and other [check and balance] that the founders thought would be used against an erring executive or possibly Supreme Court Justice. Article II by contrast is a lot shorter. It begins with the words, “The executive power shall be vested in a President of the United States.” And that President has a suite of powers available to him, including the Command in Chief power over our military forces, the power to go and give State of the Union addresses, to get advice from his cabinet, and the like.

 

And then you have Article III, which sets out the powers of the Supreme Court and any lower courts that Congress may choose to establish. It’s up to Congress. The only thing provided in the Constitution is for a Supreme Court. And the Constitution doesn’t even tell us how many justices would serve on that Supreme Court. It could be changed by statute. We started with five. We had six for a while. At one point we had ten. But since 1868, we’ve had nine. It’s been stable under the last statute that Congress passed in the 1860s about this.

 

The Supreme Court isn’t directly given the power in the text—not explicitly—the power to review legislation for its unconstitutionality, so called the power of judicial review. But people, including Chief Justice Marshall in 1803, have derived it from the structure of Article III. And that is, of course, the most important power that the Supreme Court has—the power to nullify a law and say it is in unconstitutional, like in Roe v. Wade, nullifying state law saying they infringed with people’s personal privacy rights.

 

So that’s the architecture of the government in Articles I, II, and III. And one way I like to think about it is to say that the founders set up a system of red lights and green lights in which, in order to change the status quo, you need the concurrence of all three branches. You need Congress to pass a bill in each house. And of course, Congress itself is subdivided in Article I between the House and Senate, but both houses need to concur and pass a bill to change the status quo in some way.

 

Then the President has to enforce that bill and also not veto it. Or possibly if he vetoes it, it can be overridden by a supermajority. But you generally need the concurrence of the President in order to change the status quo because of the veto power or, if that not that, then the enforcement power. And then you need the courts to sign off on it. That is, they must surmount any threat posed by judicial review.

 

And this all reflects, I think, a founder’s kind of Burkean idea that you shouldn’t change the status quo lightly, and there’s wisdom in the way that the past has done things. But of course, there’s a need for action at times. And so the founders set up the system for these three branches of government in conjunction with the states to divide power but sometimes to change things.

 

Alex Lovit: So as you said, Article II is pretty short. So it’s got a long first section that’s really about how the President is elected and all the procedures for that. And then it’s got three additional sections that total about 350 words that explain everything the executive branch does. Today the executive branch oversees a workforce of about four million people, including both military and civilian departments. And so many of those federal employees working under the executive branch, they’re nonpolitical appointees. They work through changes in administration. They have some civil service protections. They’re subject to the Administrative Procedure Act.

 

Is there a distinction worth thinking about here? Is there a difference between the executive branch as considered in the Presidency and the executive branch as considered in this administrative bureaucracy? Is there kind of an unofficial fourth branch of government here?

 

Neal Katyal: I don’t think there’s an unofficial fourth branch of government, no. I think since the Pendleton Act, we have built up a modern bureaucratic state with expert agencies that understand the nuances of complex policymaking. And this is, I think, such a benefit to America. So what you have is you have political appointees at each cabinet agency that run it. And then you have a system of career people under that to advise the political people. There are very few political people in the agencies, and most people are career staff.

 

And that is such a benefit. I can tell you when I came into the Solicitor General’s office on January 20th, 2009, I was the number two person in the office, a political appointee, the principal Deputy Solicitor General. And the Solicitor General is also a political appointee; then it was Elena Kagan. We were the only two political appointees in the entire office. The office has about 50 people, and they control [all] Supreme Court and lower court appellate litigations. So it’s a huge job.

 

And the benefit of having career people who understand the long-term interests of the United States cannot be overstated. I mean, it was the biggest gift to me when I came into the office to have people who were giving me unvarnished advice about exactly what the federal government’s interest were with no kind of dogmatic interest in a particular position one way or the other. They were just trying to make the best decisions that they could in super high-stakes stuff.

 

And that’s generally the way I think about the federal government now. There are times when, just as the founders thought, the old way of doing stuff doesn’t work, and you need a fresh perspective. And so sometimes those political actors at the top can really help guide better decision-making. But I always felt it was really important to fully understand the career staff’s view before making any sort of changes whatsoever. And I think government works best when that’s how it works.

 

So it’s not to say you can’t ever overrule the career staff. You can, and sometimes you need to because they’re stuck in an old way of doing things. But you do so really cautiously. And that is, I think, the genius of our system and something that is really under threat right now. There is a project that the Trump campaign has, which they’re calling Project 2025, which is about eliminating this entire career bureaucracy and replacing it with political appointees. And I know bureaucracy is a dirty word in many circles, but I can tell you from firsthand experience that career staff is so important.

 

And one of the great things you get to do as Solicitor General is work with all the different career staff in the agencies because, in order to take a position on saying something is patentable, or on a major piece of economic legislation and you’re defending it, you’ve got to understand what Treasury and Commerce and maybe EPA and others think about it. And so you go to the career staff through the political appointee and you get their views. And boy it was just the biggest benefit to me in decision-making.

 

And I think this has been true for republican and democrat Solicitors General alike. Either way, they got so much out of it, and I’m very, very worried, as I think my colleagues are, about this move to try to eliminate a lot of this career staff and replace it with politicized people.

 

Alex Lovit: As you’ve said, the actual Article III in the Constitution does not spell out in great detail the role of the Supreme Court. I mean, that’s something that’s developed over time. And the Supreme Court is the least politically accountable branch of government. It has no army. It has no real power to enforce its rulings on the legislature or the executive branch or anyone else. We’re about to talk in this conversation about some Supreme Court rulings that I think you disagree with.

 

Why is it important to abide by these rulings? Why is the concept of rule of law important to American democracy, even if we don’t like how the recent legal rulings are trending?

 

Neal Katyal: I think of the Supreme Court historically as the crown jewel on our democracy, an institution that sits above politics, or is supposed to sit above politics, to decide the major issues of the day, but to do so in a slow, careful, responsible fashion. I’m very influenced by Alexander Bickel’s great book, “The Least Dangerous Branch,” which he wrote in 1962. I think of it as the most important work in Constitutional law in the last hundred years.

 

And what Bickel says is he sketches out this important rule for the Court in settling major disputes. But he says it’s precisely because the Court doesn’t have armies or things of its own to enforce its judgments, its legitimacy depends on its own actions and nothing else. And Bickel says the way in which the Court protects its legitimacy often is by not doing too much, but not interjecting themselves into every social controversy, by having narrow opinions instead of broad opinions that try to resolve every issue under the sun. And Bickel said, when that’s done, the Court can conserve its resources and institutional legitimacy for the times that matter.

 

So that is, I think, the right way of thinking about the Supreme Court. When the Court works that way, it can help bring Americans together. You think about, for example, a major decision like the Obergefell case in 2015, granting marriage equality. That’s a big social change. But I think the Court had enough credibility at the time to make such a pronouncement. We didn’t see massive backlash or things like that against the Supreme Court for that decision. Certainly, some people were upset by it; some people were ecstatic about it. But the result was to change the law in the direction of equality and in a way that didn’t fundamentally damage the standing of the Court in modern society.

 

I think, unfortunately, the Court’s recent rush to decide so many cases and to overrule so many foundational precedents is doing massive damage to its legitimacy. And I’m sorry to say that because I’ve grown up respecting and revering the Court. And I know that we have a Chief Justice who really cares about these things and about the institutional legitimacy of the Court. But you cannot look at decisions like Dobbs two years ago overturning Roe v. Wade, or the Harvard decision last year overturning the Bakke decision.

 

Or this year the Loper Bright decision overturning Chevron may be one of the most important and most cited cases the Supreme Court’s ever issued in its history. You can’t look at these without thinking, boy, they’re really, really changing a lot and changing a lot really, really fast and changing a lot really fast in a really broad way, not in a narrow way.

 

Alex Lovit: Well, can you help us understand the importance of precedent? So there’s this concept in legal studies, stare decisis. I’m not a lawyer, so I don’t fully understand it. But I think the basic concept is that you should respect previous decisions by the Court and should reluctantly and rarely redecide things that have already been determined. Is the argument against that just one about retaining public legitimacy? Are there other arguments for the importance of stare decisis?

 

Neal Katyal: Oh yes, tremendous arguments. So as I said before, the American Constitution, [as it’s] been] our system of government, is really founded on a Burkean idea that you don’t want to have too much change, if there is respect for decisions of the past, that those tend to have wisdom in them. And sometimes wisdom, that might be a little elusive for you to get at first glance. And so the entire legal system is based on this idea of stare decisis, that we generally don’t reconsider what has come before.

 

And again, it’s not an inexorable command, to use the language the Supreme Court has used. Sometimes you break from precedent. Brown v. Board of Education, the Court’s finest moment in 1954, was itself basically overruling Plessy v. Ferguson, the 1896 case, that said separate could be equal. Sometimes you do it. But the question is how do you do it? Do you do it cavalierly? Do you do it rapidly in conjunction with other cases? Or do you do it the way Bickel thought, which was every blue moon, not every day?

 

Unfortunately, this Supreme Court has taken the opposite approach. And so I think that there’re wisdom concerns that are at play. But also, as you say in your question, there’re also institutional legitimacy concerns. If you go back to 1992, that was the year that people thought that Roe v. Wade might be overruled. The first President Bush had put two new people on the Supreme Court, David Souter and Clarence Thomas. And there was a thought that in this case called Planned Parenthood v. Casey, Roe would be overturned.

 

And what happened instead was that Justice Souter, joined by Justice Kennedy and Justice O’Connor, who were President Reagan’s appointees to the Supreme Court, forged an opinion that said stare decisis is so important here that this is one of the precedents that Americans know by name, regardless of whether you think Roe is right or wrong. But they said to overturn it would damage the institutional legitimacy of the Court, that it would make the Court look like a bunch of politicians that change their view of the Constitution, not because the Constitution had changed to be a Constitutional amendment, but rather because the composition of the Court had changed through politics.

 

And they said that was tremendously dangerous. And yet, the Supreme Court, two years ago in the Dobbs case, overturned that same precedent that they were writing about, Roe v. Wade. And I think we’ve seen the institutional legitimacy of the Court suffer tremendously as a result. And unfortunately, as I was saying, this isn’t the only case in which the Court has acted that way. Melissa Murray, who teaches at NYU, calls this the YOLO Court, the You Only Live Once Court, in which they are trying to overturn as much as they can as fast as they can while they have a super majority of the Supreme Court slots to do that.

 

People could have different views on how accurate that description is, but there is certainly a kernel of truth to it, and it’s something that is unfortunately hurting the Court and, by definition, hurting the American public.

 

Alex Lovit: So as you’re saying, there’s a risk of overturning precedents and through other decisions harming public opinion of the Court. And as you’re pointing out, the public opinion of the Court right now is at historic lows. Of course, Supreme Court Justices are not elected. So they have a little less reason to care about their approval rating than elected politicians. And they like to define themselves as separate from the political branches, but a lot of Americans aren’t seeing that distinction anymore.

 

In a poll last month from AP and NORC, 28 percent of Americans said that the Court is fair and impartial, and 70 percent said that the Justices shape the law to fit their own ideologies. How does this public opinion put pressure on the Court, if at all?

 

Neal Katyal: I don’t want to say that public opinion itself directly pressures the Court. There is some social science work done that says that courts generally don’t last long in being out of step with popular opinion. And this Court is certainly out of step with mainstream American society. But whatever the mechanism is, I do suspect that the Court can’t stay in this posture for very long, that Americans do really demand an impartial Court that has judicial restraint as part of its daily operation.

 

And this Court, by doing so much overruling, to doing it so fast and interjecting itself in so many social controversies, I don’t know that it’s sustainable under this path. And so I suspect, for example, that we will be hearing much more about these Supreme Court decisions in the context of this Presidential campaign, more than we ever have in our lifetimes. I think the Court is going to be, because of the decisions it made, in the crosshairs of the American political debate. And that is not, I think, a great place for the Court to be.

 

I mean, this is what Bickel said: The Court does best by staying out of a lot of this stuff. And unfortunately, now they’re in everything. I mean, they’ve already taken a transgender rights case for the next term. Who knows what else they’re going to take? I mean, and so unfortunately, the Court is itself, by rushing to do so much, putting itself in the center of the national conversation in a way that could do the Court lasting damage.

 

Alex Lovit: Well, so I want to ask a question here about originalism. The basic idea here is, if I understand it correctly, that, for example, when the Second Amendment was ratified in 1791, its meaning was shaped by the prevailing language and existing laws at that time. And then since we never repealed it, it still means whatever it meant in 1791. And that logic makes some sense, but I think there’s a case this year, U.S. v. Rahimi, that demonstrates some of the difficulties of applying the originalist doctrine.

 

So that’s a case about whether the government can restrict gun access for domestic violence abusers. That’s not a law that existed in 1791. So then the question becomes, is there something from the historical record that is close enough that it allows that domestic violence protection law to go forward? And in that case, there are five separate concurrences and one dissent. So obviously, the justices are having a hard time signing onto a single explanation of how to apply their own doctrine to this case.

 

Can you help us understand this concept of originalism and how it applies in Rahimi?

 

Neal Katyal: So I don’t think at all that the criticism of this Court is that they’re being originalist. If anything, I think the criticism is they’re making it up as they go along, taking originalism when they want or any other methodology when they want to suit a predetermined end. So originalism is the philosophy that you should look back to the original understanding of a particular Constitutional provision in order to understand its interpretation. And I think that has a lot to commend it because, after all, that is the text that the ratifying conventions accepted.

 

The question is, at what level of generality do you read the original understanding? And the Rahimi case that you’re asking about is a really good illustration of that because, in Rahimi, the question, as you say, is whether someone convicted of domestic violence has a right—Second Amendment right to bear a firearm. And a couple of years ago in the Bruen case, New York Rifle v. Bruen, the Supreme Court said, well, you’ve got to have some sort of historical analog that shows that in 1791, or perhaps in 1868 at that time of America’s second founding, that there were similar laws in place.

 

That was a very narrow way to do originalism, not a particularly compelling one. And the Supreme Court in the Rahimi case backed off of it in favor of something that allows for a broader set of analogous laws to be adduced as evidence for historical precedent for a particular regulation that comports with the Second Amendment right to keep and bear arms. That I think is originalism getting back to its right tradition.

 

But if anything, my criticism of the Supreme Court is they only selectively follow originalism. Take, for example, the decision to give President Trump absolute immunity over criminal accusations against him. One can say many things about that decision, but I don’t think one can say it follows from the original text or understanding of the Constitution. Indeed, the original understanding of the Constitution is it’s all about divided power and it’s about fearing someone who had so much power for himself.

 

And yet, the Supreme Court doesn’t even rule out the possibility, and indeed seems to embrace it, that a President could order the assassination of his political rival using Navy SEAL Team Six and just call it an official act to protect the country or something like that. Whatever one can say about that, its wisdom and so on, it is certainly not the original understanding of the Constitution of the United States. And so I think we’ve had an unfortunate departure from this Supreme Court from the original understanding.

 

Alex Lovit: Well, let’s talk about that immunity case. So that’s one of the big cases this term and a pretty controversial decision for the reasons you’re pointing out. I’m hoping you can help me understand the Court’s decision here. So they’re saying the President, both Trump the individual in this case and then the President as the office going forward, has absolute immunity for core Constitutional powers, a presumption of immunity for all official acts, and then doesn’t have immunity for nonofficial acts.

 

Can you help me understand what distinction the Court is drawing between core powers and other official acts? And what’s the difference between absolute immunity and the presumption of immunity?

 

Neal Katyal: Basically, the Court has two kind of broad dividing lines—official acts and unofficial acts. Official acts are acts that are part of the President’s, as you say, core duties. So things like related to his Commander in Chief power, or firing or hiring cabinet agency heads, things like that. And unofficial acts are things that just don’t have to do with the Presidency at all, that have to do with him in his personal capacity.

 

And maybe the best way of understanding this—and look, I think the distinction’s going to be elusive and is going to have to be litigated out in practice, but just to describe the Court’s holding and to use the examples they use, I think, can help our listeners understand what the Court was trying to say. The first thing they say is, well, official act. The allegations against Donald Trump for pressuring the Justice Department to call into question the November 2020 election and to issue such statements, they call that official acts because the Justice Department is part of the executive branch.

 

Now I would have thought that that’s not part of the job description of the President to go pressure your Justice Department to impugn the integrity of an election that you happen to lose. But that’s what they called an official act. Then there’s a second category of action, which is in the middle. So pressuring Vice President Pence to throw out the official certification on January 6th of the votes. They call that—well, maybe they say it’s official, or maybe it’s just the President acting in his personal campaign capacity, as to which there would be no immunity.

 

They don’t answer that question. They send it back to the trial judge, Judge Chutkan, to decide. And then there’s a bucket of allegations against Trump that are things like pressuring other people to impugn the election results, pushing state legislators to throw out the election and to have fake slates of electors and the like. Again, they say maybe that’s official; maybe it’s unofficial. That’s up to the trial court.

 

But I do think that there’s a thumb on the scale, the Courts—because of an opinion—a concurring opinion by Justice Barrett that says Trump pressuring state legislators and having the fake slate of electors, that cannot possibly be an official act because the President has no role when it comes to state legislatures or to Presidential elections. So as we think about going forward, what that means is Jack Smith, the Special Counsel, the prosecutor, is going to focus on that and the state legislators in the fake elector scheme because that is one where I do think the Court has tipped its hand in saying that isn’t something that Trump will get immunity for.

 

But nonetheless, you have a really dramatic holding that says that any President will now have official act immunity for whatever he wants, and you can’t inquire into his motives. So that’s why that Navy SEAL Team Six hypothetical is so scary because the President could be doing that just to win an election, not because someone’s a genuine threat to the national security of the country, but now the criminal laws can’t touch him.

 

That is the Constitution upside down. It is not the Constitution of the United States as anyone knows it. It may be the Constitution of Russia, for all I know, but it ain’t the United States. But nonetheless, that is what a six-to-three majority of the Supreme Court now says the Constitution means.

 

Alex Lovit: You’ve called attention to Justice Sotomayor’s dissent in that case in which she uses very strong language, kind of unprecedentedly strong language, for a Supreme Court dissent. She 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.” And instead of ending here—normally dissents end with, “Respectfully I dissent,” she signed off with, “With fear for our democracy, I dissent.” Do you think that level of concern is warranted here? And what’s the risk to American democracy?

 

Neal Katyal: I do. In general, I’m a fan of dissents that are very respectful, that don’t make any ad hominem attacks or things like that. Here, I do think that the majority opinion is so dangerous that it is worth reflecting on the threat to our democracy. And I want to talk here about Justice Jackson, and not Justice Ketanji Brown Jackson, our newest Justice, who has done a phenomenal job, but Justice Robert Jackson, who served after serving as Attorney General in the early 1940s, joined the Supreme Court.

 

A case came before the Supreme Court, Korematsu v. United States, which was about the internment of the Japanese Americans, and the Supreme Court upheld that internment over Justice Jackson’s dissent. And what Justice Jackson said is, “Look, the Japanese American internment is horrific enough. But the real damage isn’t just this case at hand. It’s what it does to our Constitution because this decision is now going to lie around like a loaded weapon for some future President to pick up and use.”

 

And Jackson here is channeling exactly that view of the founders that we began this podcast hour with, this idea that men aren’t angels, that Presidents can’t be trusted. That’s the whole point of the Constitution. That’s why it divides its power the way it does. And yet, Jackson said Supreme Court’s short-circuiting all that by giving the President in the Japanese American internment cases such a dramatic set of powers. I feel like this decision does the same thing.

 

Maybe you think it’s outlandish that a President will use the assassination power the way that the dissent says that he now can. By the way, that President’s own lawyer said that was our argument, that a President could do that if it were part of his official acts. But even if you think so, there’s any number of acts short of that that this decision empowers a President to do, and it raises the stakes for the American people because it means that they really do have to elect Presidents with the character and disposition to resist using those powers.

 

There’re always going to be aides whispering in their ears, “Use this power, use that power,” and the like, and you can now get away with it because the criminal law can’t touch you. We’re going to now have to elect leaders who don’t care about those advisors whispering in their ears, who have a moral core, who know that the Constitution and our laws come first in our country.

 

Alex Lovit: Well, I think that’s an important reminder that the core protection of democracy has to come from the people. I do want to save some time here to talk about Chevron. So as always, Trump soaked up the headlines. But there’s another case this term, and actually another series of cases this term, where the Court has made significant shifts to administrative law. And I know most people, when they hear the phrase administrative law, you don’t break out the popcorn. But this is really going to have broad implications for consequential government functions. So let’s talk about it.

 

This is the case of Loper Bright v. Raimondo, in which the Court just overruled the Chevron deference. So Chevron deference is dead now, but until last week, it was a cornerstone of administrative law. What was Chevron deference?

 

Neal Katyal: Yeah. So if you think back to what we talked about about the founders. They had this vision that Congress makes the law, the President enforces the law, the Courts review the law. And since 1935, that picture’s been complicated a little bit because of the rise of the administrative agencies. And Congress hasn’t been able to do all the legislating itself, like what are pollutants, what level of pollutants should be emitted, what labor rules are, and so on.

 

All of that is really set by administrative agencies, even like what your phone bill is and what they can charge for and what they can’t. That’s regulated by the Federal Communications Commission. Or the nitty gritty about insider trading and the like. That’s all specified by the Securities and Exchange Commission. So you have agencies that are on a daily basis making decisions through rules and decisions that they make that impact the American people massively.

 

Now in 1984 in a case called Chevron, the Supreme Court said agencies, when they make those rules, we should basically defer to them, that unelected courts and nonexpert courts aren’t the best at deciding these massive societal questions. So Chevron basically laid the foundation for much of the modern administrative state and its power to regulate. Now the Supreme Court has overruled Chevron. This is a massive change to the way government regulation works.

 

Indeed, Chevron has been cited by the Supreme Court 70 times and by lower courts 18,000 times. And yet, the Court felt free to overrule it. So what does that mean practically? It means that as agency decisions get challenged, the normal blueprint for defending that that the Solicitor General and others at the Justice Department would use isn’t going to quite work. That normal blueprint was—the Chevron case court says that agencies get primacy over these decisions, that they’re the experts. They are the ones who are politically accountable in ways that the federal judiciary is not.

 

And so you defer to those judgments. It doesn’t mean that the agency is always right by any stretch, but it does mean that there is deference to the agency’s decision. Now that it’s been overruled, you will see, I think, a massive reduction in the number of government regulations because they will be called into question, and those challenges will be more successful. And so whether it’s greenhouse gas and carbon emissions or other pollutants, or whether it’s labor rules or immigration rules or you name it, this is going to be a massive change in the way government operates with no deference being given to administrative agencies.

 

Alex Lovit: And so there are a couple of other cases along similar lines, a little less consequential but also consequential in their own right. I want to get those on the table here. SEC v. Jarkesy was about limiting the ability of agencies to enforce regulations through administrative hearings, so saying instead that has to go to full-on jury trials. And then Corner Post v. Federal Reserve. So in the past, there had been statutes of limitations on regulations.

 

So a new regulation is introduced. Companies in that field have six years to challenge that regulation. And at the end of six years, if it hasn’t been successfully legally challenged, then it can no longer be challenged. And then Corner Post says, well, you’ve got to start that clock over every time a new company enters the field. So that effectively ends that idea of statutes of limitations for regulations—administrative regulations.

 

So one way to think about all this is that this takes a lot of power out of the executive branch, out of these administrative agencies, and concentrates it in the judicial branch. So everything has to go to a trial now. There’re no statutes of limitations. The trials can happen forever, and the courts don’t have to defer to the administrative interpretations. What do you think about this?

 

Neal Katyal: The result of all of these decisions that you mentioned is to give more power to the federal courts over agencies and to say we the courts get to decide this stuff. By the way, that’s not just true even in just the agency context. It’s also true when it comes to Presidential immunity. We the courts will decide whether something’s an official act or an unofficial act, and we’re not going to tell you yet whether pressuring Vice President Pence is one or the other.

 

This is all a way of the Court having more and more power, which I think then sets up the problem that Alex Bickel so presciently warned against back in 1962, a Court that is doing so much and reserving so much power for itself that it gets into the danger zone.

 

Alex Lovit: So a lot of commentary on the immunity decision has seen it as an expansion of executive branch power. But you’re saying that in some ways it’s an expansion of judicial branch power because they get to decide. Is that correct?

 

Neal Katyal: That’s correct. I think it’s both. And the loser here is, of course, Congress because you have these statutes that Congress has passed that forbid people acting in certain ways and say, if you do it, you’re going to be in jail. And yet, the Court says, nope, we’re going to nullify effectively those statutes. They don’t apply to the President. Nobody is above the law, asterisk, except the President.

 

Alex Lovit: And so often a response to Supreme Court decisions is that, well, if the legislature doesn’t like it, they should just write new laws. And a lot of these cases are things that Congress could address through new statutes. And if there’re questions about ambiguities in the law, well, Congress could clarify those ambiguities. One problem of that theory is that Congress is not functioning very well lately. The current 118th Congress has passed only 65 bills so far in this term, which is really a small fraction of any Congress in the last 50 years.

 

I know the legislature isn’t your bailiwick, but do you have any comments on this, thoughts on how well Congress is functioning and how that interacts with the power play between the branches?

 

Neal Katyal: Well, two things: One is there have been the Supreme Court decisions that Congress can’t fix, like Trump’s absolute immunity. Congress can pass all the statutes it wants criminalizing behavior, but the Court has said, as a Constitutional principle, a President is absolutely immune. So there really is a removal of Congress’s power, even if they could act. Now second, I think you’re right to say the modern Congress can’t agree on very much, and as a result, it leaves more up for the courts to act.

 

But I think the basis of Chevron is not just about the reality of how often Congress can act, particularly with modern partisan gridlock, but also just the fact that a lot of this decision-making is so expert or [co-intensive] and so granular it can’t be done at the level of Congress. The particular amount of emission of a pollutant in a particular set of factories in a particular place downwind or upwind or you name it, these are very granular decisions that Congress has never made before, and you wouldn’t want them to make that.

 

And so there’s just a kind of practical concern here that I think the Court has [alighted] in overruling Chevron.

 

Alex Lovit: Well, and so finally, I just want to ask, you know, I think one challenge for citizens hearing about decisions from the Court, they don’t get to elect Supreme Court Justices. So it can be a little frustrating if you’re a citizen and the Supreme Court is making decisions that you find dangerous. Do you have thoughts on what citizens can do or what is the appropriate response from citizens about decisions coming from the Court that they might find distasteful?

 

Neal Katyal: Well, oftentimes, the only thing you can do with a Supreme Court decision is have a Constitutional amendment. Here I do think that political scientists have shown that the Court doesn’t operate [long] out of step with mainstream American public opinion. Here the Court is well out of step with mainstream American opinion. And Americans need to make their voices heard. And I suspect that they will in the context of this coming election, which will I suspect be about this Supreme Court and the decisions that they’re making and the ways in which they are making them.

 

And I think there’re a lot of solutions that have been bandied about like pack the court and things like that. I think most of that’s very unrealistic, but focusing attention on why these decisions are so problematic is, I think, important. This is the American people’s Court, and these are decisions that impact them every day, and increasingly so. And so I think it’s very important that they speak up and feel compelled to express their views about these decisions and to vote accordingly.

 

Alex Lovit: Well, thank you, Neal Katyal, for joining me on The Context.

 

Neal Katyal: Thank you so much for having me.

 

Alex Lovit: The Context is a production of the Charles F. Kettering Foundation. Thanks to Sharon Davies, President and CEO of the Kettering Foundation, for joining me at the start of this episode. It’s been a pleasure and a privilege to work under Sharon’s leadership, and I’m glad she was willing to lend her voice to the show. If you enjoy The Context, please leave us a rating or a review at Apple Podcasts or wherever you listen or tell a friend about us.

 

I’m Alex Lovit. I’m a Senior Program Officer and Historian with the Foundation. Isabel Pergande is our Research Assistant. George Drake, Jr., is our Episode Producer. Melinda Gilmore is our Director of Communications. Visiting Kettering.org to learn more about the Foundation or to subscribe to our newsletter. If you have questions or comments about the show, drop us a note. Our email is TheContext@Kettering.org. We’ll be back in this feed in two weeks with another conversation about democracy.

 

The views expressed during this program are critical to us having a productive dialogue, but they do not reflect the views or opinions of the Kettering Foundation. The Foundation’s broadcast and related promotional activities should not be construed as an endorsement of its content. The Foundation hereby disclaims liability to any party for direct, indirect, implied, punitive, special, incidental, or other consequential damages that may arise in connection with this broadcast, which is provided as is and without warranties.

 

Transcripts are created on a rush deadline by a Kettering Foundation contractor and may contain small errors. The authoritative record is the audio recording.