Trending Now
We have updated our Privacy Policy and Terms of Use for Eurasia Group and its affiliates, including GZERO Media, to clarify the types of data we collect, how we collect it, how we use data and with whom we share data. By using our website you consent to our Terms and Conditions and Privacy Policy, including the transfer of your personal data to the United States from your country of residence, and our use of cookies described in our Cookie Policy.
{{ subpage.title }}
Activists carry caricatures of Supreme Court justices Rep. Marjorie Taylor-Greene peaks with people outside of the Supreme Court on Tuesday, December 1st, as the justices began hearing oral arguments in a case that challenges abortion rights in the United States.
Tipping the scales: How the 2024 presidential election could define the future of the Supreme Court
Everyone knows a lot is at stake in next week’s election, with voters deciding between two candidates with vastly different visions for the United States. But the stakes may be highest at the Supreme Court, where the next president could determine whether the court swings back toward an ideological equilibrium or if the Republican-appointed majority gets even stronger, potentially ensuring conservative dominance for decades to come.
The Supreme Court increasingly acts like a legislative body. And with Congress riddled with partisan gridlock, it is also increasingly the most politically influential branch of the federal government, requiring only a five-person majority to make groundbreaking decisions on rights, regulations, and the rule of law.
When Donald Trump was last in office, he appointed JusticesNeil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, giving the Supreme Court its current 6-3 conservative majority. This has allowed for the overturning of Roe v. Wade, the expansion of 2nd Amendment gun rights, and the limitation of federal agencies’ power to regulate the environment, public health, workplace hazards, and many other issues pertaining to their offices. It was also responsible for the landmark ruling in Trump v. United States, which gave presidents immunity from criminal prosecution.
Since then, President Joe Biden replaced Democratic-appointed Justice Stephen Breyer with Justice Ketanji Brown Jackson, keeping the ideological balance of the court the same.
How will the next president affect the makeup of the Supreme Court?
“I would expect at least one vacancy depending on whoever wins on either side,” predicts Emily Bazelon, a senior fellow at Yale Law School, “but possibly more because sometimes life events or health intervene.”
If Kamala Harris wins the presidency, the oldest Democratic-appointed justice, Sonia Sotomayor, would likely step down, giving the Democrats the power to replace her with someone younger. Supreme Court justices serve for life, so appointing a younger judge is a way of projecting political power, sometimes decades into the future. If a Republican-appointed judge steps down under Harris, the court would swing back towards a more even 5-4 majority.
On the other side, if Trump wins the presidency, 74-year-old Conservative Justice Clarence Thomas would be highly likely to step down, giving the conservative side of the bench four judges under the age of 60 (two of which are already 55 or younger). The second oldest justice, 72-year-old Samuel Alito, could also potentially retire.
If one of the Democratic-appointed justices were to step down under a Trump administration, that would create a rock-solid 7-2 Conservative majority, which is likely to have real policy implications. “The more people you can choose from to make a majority, the less you have to worry about internal differences,” says Bazelon. “Getting a majority vote of five just gets easier.”
She expects that a 7-2 majority may further limit states’ and cities’ abilities to restrict firearms or to provide emergency abortion services when women experience complications late in pregnancy.
“The more robustly conservative the court is, the more ambitious the right-wing agenda becomes,” Bazelon added.
The U.S. Supreme Court is seen in Washington, U.S., June 27, 2024.
Please approach the bench! What’s on the Supreme Court's docket this season?
On Monday, the US Supreme Court took the bench again for a session where it will hear 40 cases, including some potentially landmark rulings on a Tennessee law outlawing hormone treatments for transgender minors; the Biden administration’s effort to ban “ghost guns,” which are assembled from kits purchased untraceably over the internet; and an Oklahoma capital punishment case where the state attorneys general have concluded the prosecutors hid evidence that could have led to an acquittal. All of these speak to culture war issues over which Americans are deeply divided – and at a time when faith in the Supreme Court is at its lowest.
What’s not on the docket? A case that could provide an answer on whether state abortion bans may conflict with federal law. The court decided not to rule on a case in Texas where the Biden administration invoked the Emergency Medical Treatment and Labor Act, which requires federally funded hospitals to provide stabilizing care to emergency room patients regardless of their ability to pay. The administration argues this act preempts more restrictive state regulations on providing emergency abortion services.
The decision not to take up the case leaves the Texas court’s decision stopping the federal government from enforcing its mandate on emergency abortions in the state in place. It has been criticized by abortion-rights activists and physicians but also by Justices Samuel Alito and Ketanji Brown Jackson, two judges on opposite ends of the political spectrum.
And the election looms. Although the court’s caseload features fewer blockbuster cases than last year, when it ruled on presidential immunity, it does have one potentially huge looming responsibility: to potentially shape the outcome of the US election. Before the vote, SCOTUS could be asked to resolve last-minute disputes over ballot access or vote-counting rules. And after Nov. 5, it could be called upon to decide a winner if there is a serious dispute over the results.
U.S. President Joe Biden delivers remarks to commemorate the 60th anniversary of the signing of the Civil Rights Act at the LBJ Presidential Library in Austin, Texas, U.S., July 29, 2024.
Biden seeks Supreme Court reform
On Monday, President Joe Biden proposed reforms to the US Supreme Court for the first time since Franklin Delano Roosevelt tried and failed to expand the number of justices in 1937. In his address from the LBJ Presidential Library in Austin, TX, Biden proposed term limits, a constitutional amendment to counteract the recent presidential immunity decision, and a binding code of conduct.
“I have great respect for our institutions and the separations of powers,” Biden said. “But extremism is undermining public confidence in the court’s decisions.”
The nitty-gritty: Biden proposed 18-year term limits, enabling a president to appoint a new justice every two years. He also wants an enforcement mechanism added to the voluntary ethics code the court adopted in November, echoing Justice Elena Kagan’s support for an enforcement mechanism. Biden also called for a constitutional amendment to make clear that former presidents are not immune to federal criminal indictments.
“I thank President Biden for highlighting the Supreme Court’s ethical crisis,” said Dick Durbin, the Senate's second-ranking Democrat and chair of the Senate Judiciary Committee. But any legislation would need the support of a majority in the Republican-led house where Speaker Mike Johnson has called the proposal a “dangerous gambit” that would be “dead on arrival,” and accused the Democrats of delegitimizing the courts “simply because they disagree with some of its recent decisions.”
Biden has expressed disagreement with many of SCOTUS’s recent decisions, but this address marked a shift toward the progressive flank in his party, which has called for reforms even amid fears it would politicize the court. The proposals also come as Biden’s time in office draws to a close, and he made the announcement without reaching out to the Senate judiciary committee, signaling that is likely pre-election messaging, not a legislative priority.
However, presumptive Democratic nominee Kamala Harris notably said she supports the reforms, which, if the Democrats manage to win the House in November, could potentially lead to some portion of them being implemented.
How the Supreme Court immunity ruling changes presidential power
Ian Bremmer shares his insights on global politics this week on World In :60.
What does the Supreme Court's immunity decision mean for Trump and the future of presidential power?
Well, for Trump, the first thing it means is that you're not going to be hearing about on the case of his involvement in January 6th. All of that gets punted until after the election earliest, assuming Biden wins and more likely these days, Trump. The case is kind of a dead letter. More broadly for presidential power. We're talking about immunity for all official acts that are engaged in during the course of a person's presidency. Now, in dissent, Justice Sotomayor, who's pretty far left on the court, has said that this doesn't prevent a president from engaging in treasonous acts and makes the president a king. Most jurists don't accept that, but it certainly does lead to huge questions about what is and what is not an official act. And of course, presidents would be inclined to argue that very broadly to be able to avoid the potential at any cases against them. So this is a pretty significant, not necessary momentous, but certainly very significant decision by the court.
With the far-right surging in the French elections, what would a caretaker government in France mean for Europe?
Well, it is more likely that we see a caretaker government than we see a far-right majority. And the efforts by President Macron and the left to ensure that they are not running against each other in the second round, triangular three-person elections make it more likely that you have a hung parliament. Then you have the far right in a cohabitation of this very unusual situation where the prime minister is opposition to the president. But what's going to happen is that you have a very, very weak French government and that almost nothing can pass in the next 12 months until another election would occur. It certainly makes Le Pen stronger. It makes it more likely that the far right is eventually able to defeat a Macron successor from the center in 2027.
And it also makes it more likely that the French budget is out of whack with the EU. They're not able to pass anything that looks like a balanced budget, that more parliamentary approvals for things like, additional support for Ukraine or training troops on the ground, would have a hard time getting through the French parliament if it requires such a vote. So it's a real challenge for the EU. It's a challenge for France.
Does the West have any concerns with Modi's upcoming visit to Russia?
Not really. The West relationship with Prime Minister Modi is very strong. Modi is increasingly decoupling the defense relationship between India and Russia. They buy a lot from Russia. No Indian technology goes to Russia the way that it does from China, for example. So you don't have that dual use problem. And India buys an awful lot of oil from Russia, at a discount. But that is in line with American and the West's policies, because they don't want a global recession. Modi and Putin, in principle, are supposed to visit each other every year. That hasn't happened. And so this is sort of getting that relationship in that regard on track. But I think there's not a lot strategically that the West is worried about near term here.
A view of the U.S. Supreme Court in Washington, U.S. June 29, 2024.
SCOTUS muddies the AI regulation waters with Chevron decision
On Friday, the US Supreme Court struck down a landmark ruling on federal agencies’ power, known as “Chevron deference,” that required courts to defer to the agencies’ “reasonable” interpretations of “ambiguous” federal legislation.
This means federal regulations – from telecom and environmental rules to work safety and AI regulation – could now face increased legal challenges, which is a big win for conservatives looking to rein in the executive.
The case: While it sounds like an obscure chess gambit, “Chevron deference” was a pretty straightforward legal doctrine. It held that federal agencies could make their own rules when Congress left aspects of law ambiguous – which they often do – and that courts should defer to the expertise of each agency. But Friday’s ruling held that the executive branch was essentially carrying out lawmaking responsibilities that should be left to Congress.
The AI upshot? The immediate impacts on AI regulation will be limited because there isn’t much on the books yet. To get future regulations to stick under the new ruling, however, Congress will likely have to lay out regulations in minute detail or write laws specifically empowering agencies to cover certain aspects of regulation. Given how slowly Congress moves, the extra legwork could put regulation perpetually behind the pace of innovation. And Congress isn’t known for its tech expertise. Remember when Mark Zuckerberg had to remind one member how social media companies make money: “Senator, we run ads”? Or when another senator asked if the company would “end finsta”?
The danger here is that, depending on how the ruling is interpreted, Congress may have to be overly prescriptive about AI – “if itcan get a law passed at all,” says Eurasia Group’s Scott Bade. “Given how slowly Congress acts, the question then is whether laws can be written in a way that keeps up with the rapid evolution of AI technology.”Supreme Court: Trump gets substantial immunity
The Supreme Court handed Donald Trump a big win on Monday. In a 6-3 decision along ideological lines, the conservative justices ruled that presidents have absolute immunity for actions related to their core responsibilities while in office. The decision will almost certainly delay the charges brought against the former president in Washington, DC, for allegedly plotting to overthrow the 2020 election.
Trump contends that he is entitled to absolute immunity from the three conspiracy charges and one count of obstructing an official proceeding brought by special counsel Jack Smith. Lower courts rejected the claim, but SCOTUS has ordered them to reassess whether Trump’s alleged action on Jan. 6 “qualifies as official or unofficial,” with the understanding that he would be immune from prosecution for official actions carried out as president.
The rationale: The court’s basic argument was that without these protections, a president would be unable to do his or her unique job independently and effectively, for fear of being prosecuted by political opponents or successors.
In dissent, Justice Sonia Sotomayor wrote that Monday's immunity decision, "effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding."
Joe Biden spoke out against the ruling on Monday night, echoing Sotomayor's sentiment that “there are no kings in America,” and said that the ruling means there are “virtually no limits” on presidential power. The president also said that voters deserved to have an answer through the courts before Election Day about what took place on Jan. 6. The court's ruling called for prosecutors to detail their evidence against Trump in front of a federal judge — and the public — at a fact-finding hearing, though it is unclear whether that will take place before Nov. 5.
Trump has prevailed in the court this session. Even before the rulings, the high court’s decision to take up the immunity case worked in Trump’s favor to delay his prosecution until after the November election.
The court also heard two other Trump-related cases this term concerning Jan. 6. The first, an attempt to bar Trump from the ballot in Colorado under Section 3 of the 14th Amendment, was unanimously rejected in March. The second ruling limited the use of a federal obstruction law to prosecute rioters who allegedly stormed the Capitol, and it will also affect Trump’s DC indictment because two of the four charges against him are based on that law.
Monday's immunity decision followed a wave of consequential rulings on Friday. Potentially the most impactful, but least flashy, was the Chevron decision, which limits the power of federal agencies and undermines the basis for upholding thousands of regulations by dozens of federal agencies.
In its final decision of the session, the court on Monday also ruled to keep in place a hold on any efforts by Texas and Florida state governments to limit how social media platforms regulate content, ordering the lower courts to review the case again. The court will reconvene in October.
US Supreme Court
SCOTUS throws a bone to Jan. 6 rioters
On Friday, the US Supreme Court issued a ruling that hampers the Justice Department's ability to charge rioters for taking part in Jan. 6 riot on the grounds that they obstructed an official proceeding (the counting of the electoral college votes). The prosecutors were charging the rioters using a statute that forbids tampering with evidence and was enacted in 2002 in regard to the Enron accounting scandal.
In a 6-3 decision along nonideological lines, the court said that prosecutors must prove that defendants attempted to tamper with or destroy documents or “other things used in the proceeding” for the charge to apply.
Federal prosecutors have charged hundreds of Jan. 6 defendants with obstructing an official proceeding, as the Capitol attack aimed to upend Congress’s certification of President Joe Biden’s 2020 election victory. Former President Donald Trump also faces the charge in his federal Jan. 6 case.
Is this a win for Trump?"It's still unclear how this ruling impacts Trump specifically, but it could overturn many of the prosecutions against Jan. 6 defendants who are not Trump,” says Eurasia Group analyst Noah Daponte-Smith. “Even if the ruling does vacate some of the charges against Trump, it doesn't threaten the main thrust of his trial — he still faces two other charges."
U.S. Supreme Court nominee Judge Sonia Sotomayor makes a point as she answers questions during the third day of her U.S. Senate Judiciary Committee confirmation hearings on Capitol Hill in Washington July 15, 2009.
Sotomayor accuses conservative justices of ‘power grab’
Liberal Supreme Court Justice Sonia Sotomayor on Thursday did not mince words in a dissenting opinion over the Supreme Court’s ruling that limits the authority of the Securities and Exchange Commission, accusing the conservative majority of making a “power grab” by undermining the enforcement power of federal agencies.
In a 6-3 ruling, the court said the SEC’s in-house tribunals that are overseen by administrative law judges who report to federal agencies — as opposed to federal courts — violated the right to a trial by jury.
What’s the big deal? The decision hampers the SEC’s ability to penalize people it thinks have committed fraud. It could also have major implications for the enforcement powers of other regulatory agencies.
“Litigants seeking further dismantling of the ‘administrative state’ have reason to rejoice in their win today, but those of us who cherish the rule of law have nothing to celebrate,” Sotomayor wrote.
SCOTUS ain’t done. The court has not yet issued rulings in the Trump immunity case or the case pertaining to Jan. 6 rioters, both of which touch on hot-button issues as the country barrels toward a presidential election that many voters are not especially enthused about.