Angst at the Supreme Court before a rush of decisions

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Late spring means the Supreme Court is preparing to unleash decisions. Justices have already had a remarkable term. They invalidated much of President Donald Trump’s tariff policy, but also gutted the Voting Rights Act and gave Republicans an advantage in the redistricting war Trump started.

I talked to CNN Supreme Court reporter John Fritze about the coming cases as well as agita on the bench and how the court is increasingly perceived as a political organ rather than the last word of American justice.

Our conversation, edited for length and flow, is below.

Some early moves in Trump 2.0 are just now before the Supreme Court

WOLF: This is the quickening for Supreme Court reporters. We expect multiple major decisions in the coming month. What are the big things you’re looking for?

FRITZE: It’s the best time of year to be a Supreme Court reporter, when all the big cases come down.

One of the big themes this year, like everything else in Washington, is Donald Trump.

We think about Trump having come into office again last year, but because of the court’s calendar … this is when we’re seeing a lot of the action from the first few months of his term — things like the birthright citizenship case and the firings of independent officials.

Some of those controversies and litigation that happened throughout last year have now finally made the Supreme Court merits docket. There are also some really interesting immigration cases outside of birthright citizenship, and there’s some really interesting election cases, and then separate from Trump is this big transgender sports case.

The court has given Trump victories (redistricting) and setbacks (tariffs)

WOLF: In two of the major cases that have already been decided, Trump got a win — though he wasn’t named in the case — when the court threw out much of the Voting Rights Act. But on tariffs he got a big loss. How do you think he’s viewing this court?

FRITZE: Trump’s presence rides over this docket in so many ways, in part because of his highly unusual reaction to the tariffs case. He almost immediately said the justices who ruled against him were an embarrassment to their families. We hear presidents grousing about Supreme Court opinions often, but never in those terms.

If you talk to the justices, they would say they don’t care about that, and their role is to not care about the political branches. But it has to weigh on them that you have a president using the bully pulpit to tear down the court when it’s a decision that he doesn’t like.

There is angst among the justices

WOLF: But Trump certainly liked the redistricting decision, which let Republicans take a leg up in the redistricting war he started.

FRITZE: The most interesting part of that was the timing of the case, because the redistricting case (that limited the scope of the Voting Rights Act) was held over from the last term. It’s a very important case, hard for the public to understand. But, particularly given the timing of the decision, it opened the court up to a lot of criticism that it was viewing cases through a political lens.

There’s a good deal of angst, even among the justices, about this question of politics. It always comes up in election cases. We’ve seen Justice Ketanji Brown Jackson, a liberal and the junior-most justice, publicly airing these concerns that the timing and the way they’ve handled the decision may look political. She hasn’t said that she thinks they are political, but she’s been concerned about the perception of politics. And then you’ve seen Justice Samuel Alito firing back at that criticism, and Chief Justice John Roberts speaking to it publicly.

The court would say the tariffs case was an example of how they are not being political — that they’re siding with Trump and against him, depending on the case.

A series of decisions combined to help the GOP

WOLF: They also intervened in a way that arguably will help Republicans in Alabama. They declined to intervene in a way that would help Democrats in Virginia. So the cumulative effect has been to help Republicans.

FRITZE: The argument that it’s not political is that the cases are different. The Virginia case was not a particularly strong case, and I think even liberal commentators would acknowledge that.

California, of course, won a case, so there’s a case that helped Democrats. But you’re right that overall they’ve looked at this half a dozen times now, and most of the decisions have benefited Republicans.

Justices are also looking at the counting of mail-in ballots

WOLF: And then we have another bite at the apple on decisions that could affect this coming election with how and when mail-in ballots are counted. We’re seeing that play out in California right now. Is the expectation that the court’s decision will affect the coming election?

FRITZE: The expectation is that it would affect the general election. How big of an impact is open to debate. Fourteen states have these laws that allow ballots to be postmarked by Election Day, but to come in and be counted after — and how long depends on the state. It is a relatively small number of ballots where that happens, and the states where those ballots are coming in are not states that have major elections in play this year, at least for control of Congress. Whatever the Supreme Court decides, of course, will impact future elections.

The other one involves campaign finance. There’s a case involving the coordinated expenditures between party committees and candidates. It’s pretty limited on how much they can spend in coordination and that’s given a rise to super PACs, because super PACs don’t coordinate with candidates, but they can take an unlimited amount of money. The court also signaled in oral arguments there that it would side with the Republican position. So you’ve got two big election cases coming up — in a big election year — where the court may side with the Republican position.

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Trump’s birthright citizenship argument got a more open hearing than many expected

WOLF: Let’s go back to birthright citizenship. The oral arguments suggested the justices were skeptical of the administration position, which would limit birthright citizenship. Will they find some middle ground or will they simply reject what the White House wants them to do?

FRITZE: I don’t think it’s going to be a middle ground. What was interesting about the case was that even Republican commentators thought it was a very challenging case for the president, but that wasn’t really reflected in the argument. They gave that case a very thorough and fair hearing, and I think that was a surprise to some, because it is definitely way out pushing the boundaries of the law.

The fact that it wasn’t as clear as it might have been from oral arguments that Trump will likely lose was interesting. It still seems like Trump’s going to lose. There’s a couple of different ways that could happen. The court could go big and decide it on constitutional grounds. That would resolve the issue for all time, more or less. Or the court could go smaller and resolve it on statutory grounds, on the law. That would be a less permanent solution, because Congress at some point could change the law. The Supreme Court tends to like to solve it on statutory grounds if it has a choice between those two, so I wouldn’t necessarily read the narrower decision as a big win for Trump.

Two cases test Trump’s ability to fire people in positions protected by Congress

WOLF: You have a tracker for CNN subscribers that goes through all these cases, and you separate them into different buckets, one of which is presidential power. Those cases have to do with a president’s power to fire people from the Federal Reserve and the Federal Trade Commission. Is the expectation that the court will allow him to fire people that were theoretically protected by law, or that they will restrict his ability to do that?

FRITZE: I think they’re going to do both. There’s two cases there. One is involving a commissioner on the FTC (Rebecca Kelly Slaughter), and that case deals with whether the president can fire these officials and independent agencies just because he wants to, because he disagrees with the policy. There is both law and a Supreme Court precedent from the 1930s that ostensibly protects those agencies from presidential involvement. Based on oral arguments, an imperfect predictor, it seemed that the Supreme Court would side with Trump and give him more power to fire and remove these leaders and independent agencies.

The exception may be (Lisa) Cook, and that involves the Federal Reserve. In that case, Trump has argued that he has cause, which is this allegation of impropriety with mortgage papers. Cook has denied any wrongdoing, but the issue there is more about what sort of process Trump has to provide if he suspects he has cause to fire somebody.

The big picture there is that the Supreme Court, in a number of opinions, has signaled that it views the Fed differently based on history, based on its role in managing the economy through the interest rates. And so that is a case where I think Trump is going to have a much harder time.

These justices like to defer to states on LGBTQ issues

WOLF: What is expected on the social issues cases — on transgender people’s participation in youth sports and guns?

FRITZE: The transgender sports bans is a really interesting case. The Trump administration took a stake in that case, siding with the states that have these bans, Idaho and West Virginia. But roughly half of states have these bans that bar transgender girls from competing on girls’ sports teams. Not just at argument, which is often our main way of predicting a case, but also its prior case load suggests that the court is very skeptical of efforts to overturn these state laws.

The LGBTQ community has suffered pretty significant losses at the court on the emergency docket over the past couple of years. Last term there was a big case involving Tennessee’s law and transgender care — Tennessee had a ban on that, and the Supreme Court upheld it, arguing that states can make these decisions. Just looking at past decisions and the arguments, I think the LGBTQ folks have a very difficult hill to climb on that case.

A case where the Trump administration opposes the NRA

FRITZE: The guns case. There are a couple, but the one that I think has gotten the most attention involves a gentleman who is a regular user of marijuana, and the federal statute says that people who are regular users of drugs can be disarmed. That’s a real issue, given how state laws around marijuana have changed in this country over the last 10 years.

The justices were concerned about the reach of this law, and it’s also a court that has been pretty pro-Second Amendment the last couple of terms. So you could easily see the court limiting the scope of that law in some way. It’s another case where the Trump administration probably has an uphill climb. Interesting that it is defending this federal law, and on the opposite side of the NRA.

There’s no sign of anyone stepping down

WOLF: What is the chatter about whether we’ll have a justice step down? Because this is pretty much the last moment to guarantee they would be replaced by a conservative. If Democrats took control of the Senate in the midterms, they would be unlikely to approve any Republican nominee at this point. Is this conservatives’ Ruth Bader Ginsberg moment?

FRITZE: We’re watching Samuel Alito, of course, and Clarence Thomas, two conservatives who are both in their late 70s. Alito is 76. Thomas turns 78 later this month. Relatively young by Supreme Court standards, both in great health, both super engaged on the bench, super engaged in writing opinions. There have been reports that they are not planning to retire, but as you know, the politics align only every so often. Certainly all of us will be listening very closely to the announcements from the court after the opinions come out in the final days.

How much do they game their retirements?

WOLF: Thomas is kind of interesting because he did not replace a fellow conservative, but rather Thurgood Marshall, who retired when he was in poor health, maybe not thinking Bill Clinton was going to win the next election. Will Thomas, in his mind, try to keep the seat for a conservative, or does that even factor in for him?

FRITZE: I think they all retire with the president’s party that nominated them in mind. Thomas just this year became the second-longest-serving justice of all time. In two years he would be the longest-serving justice of all time. A lot of folks think that Thomas will stick around for that record.

(Justice William Douglas, who was confirmed in 1939 and retired in 1975 after a stroke, currently holds the record.)

Justices are out and about more often, selling books and getting grief from all sides

WOLF: What has changed covering the court in the last couple of years?

FRITZE: We do see the justices out and about more, and that’s because a lot of them are writing books. In the last couple of years, several have been out speaking about books, and some of those events are opportunities for them to talk about what’s happening behind the curtain, which we don’t get a real glimpse of, but there are little clues that sometimes pop up in those remarks.

Justice Jackson’s remarks recently in Washington were unusual, because we don’t normally see them talking about cases specifically and explaining their opinions. They usually will say the opinion stands for itself, and whatever they wrote stands for itself. Her remarks continuing to make the case for why she felt the court made the wrong decision in one of these redistricting cases were quite striking, frankly. And I think it spoke to this tension that is a little unusual. You have John Roberts going out and in Hershey, Pennsylvania, a few weeks ago, saying, well, I think people sort of misunderstand that we’re not political actors, and going off on that for quite a long time. I’m not saying that was a response to Jackson; I don’t know if it was. But there does seem to be a lot of tension.

The left is really worked up about the redistricting cases, and you’ve got Trump ready to pounce, which was clear based on his reaction to the tariffs case. They’re hearing it from all sides.

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