Who won Bigger than Trump? His Supreme Court

Losers include Biden, the administrative state and the Sackler family. [Bloomberg]( This is Bloomberg Opinion Today, a Dutch herring festival of Bloomberg Opinion’s opinions. On Sundays, we look at the major themes of the week past and how they will define the week ahead. Sign up for the daily newsletter [here](. [Know Your Rights]( From my perspective, President Joe Biden didn’t do that badly against Donald Trump in Thursday night’s debate. Then again, my perspective included seven days of nitrogen saturation, 8,000 miles in an airplane middle seat, 27 hours trying to sleep in LAX and the aftereffects of three separate [Fijian kava ceremonies](. (I was on [vacation](, remember?!) If you are looking for more sentient takes, Timothy L. O’Brien thinks Biden should consider [releasing his delegates]( to the likes of [Gavin Newsom](, Gretchen Whitmer, [Mayor Pete]( or even, be still Republican hearts, [AOC](. Nia-Malika Henderson says the [big winner]( was … Vice President Kamala Harris. What I did have a clearer head for (thanks to an unexpectedly consistent South Pacific internet connection) was what nine other influential Washingtonians were up to the last week; so let’s take a better look at some explosive SCOTUS decisions now overshadowed by POTUS self-implosion. The biggest bombshells gave Trump fans even more to feel giddy about. “The conservative majority of the US Supreme Court has held that a law that bars obstructing or impeding a federal proceeding doesn’t apply to the Jan. 6 attack on the Capitol — despite the rioters’ effort to obstruct the counting of the 2020 electoral votes. The decision is an outrageous betrayal of the conservatives’ own supposed principle of interpreting statutes according to the words of the text rather than according to Congress’s intent,” Noah R. Feldman [writes](. The ruling was perhaps no surprise to court watchers, but the division among the justices may have been: Conservative Amy Coney Barrett wrote the dissent —  “Because she decided to follow the core principle of textualism, namely that Congress must be held to what it has said, not what judges think Congress intended,” says Noah — while Ketanji Brown Jackson jumped to the conservative side of the ideological line. The decision doesn’t mean [QAnon Shaman’s]( co-conspirators are off the hook. “There are other statutes under which the Jan. 6 rioters, and Trump, can still be prosecuted,” writes Noah. Still, it’s “an object lesson in how textualism has failed at its stated objective, namely forcing judges to be nonpolitical. When, at some future time, courts have officially repudiated textualism, this case will be a great example of why the approach was bad in theory and ineffectual in practice.” The other huge case was, I am not making this up, the overturning of a four-decade-old ruling involving herring fishermen. Specifically, a few who didn’t want pay for Environmental Protection Agency observers who board their boats and monitor the catch. Admittedly, the issue is of great importance to us longtime fans of Hollandse Nieuwe Herring Festivals, like the old legendary one at Grand Central Oyster Bar: One gulp is the only way. Source: Grand Central Oyster Bar But why should the rest of you care about the so-called [Chevron case](? the 40-year-old Chevron precedent was mostly unknown to [non-lawyers]( until recently, overturning it will have profound consequences for the legal system and the whole apparatus of government through regulation,” Noah writes. Thus it sets the table for Trump to roll back the “administrative state” (a.k.a. the “deep state”). “This marks a watershed moment of change in the basic ideology of the contemporary conservative legal movement,” Noah [writes](. “Environmentalists and other safety advocates are now very much on notice that, even under a Democratic president, conservative courts will find it easier than ever to overturn agency action they don’t like.” Joining the EPA in the SCOTUS doghouse: the SEC. The court ruled that in certain cases, the Securities and Exchange Commission won’t be able to dish out its own civil penalties for fraud, but will have to get approval from — you guessed it! — the federal courts. “The result, although entirely predictable and probably correct, might play havoc with much more than this tiny corner of the regulatory state,” Stephen L. Carter [writes](. What other tiny corners are about to get the big heat? One will be the use of administrative law judges to adjudicate agency complaints. “They’re not appointed for life nor confirmed by the Senate, yet they have sweeping powers and significant protection against removal,” writes Stephen. “And federal courts ... have increasingly come to question whether the Constitution allows the same agency to serve as ‘both prosecutor and judge.’ In short, as the constitutional assault on the administrative state intensifies, it’s unlikely this relatively minor provision of Dodd-Frank will be the last domino to fall.” As for that next domino: Kudos to the team at Bloomberg Law! Kimberly Strawbridge Robinson, Lydia Wheeler and the amazing Greg Stohr caught a prematurely posted (and hastily removed) [notice on the court’s website]( tipping it would reinstate a lower-court ruling holding that, as Noah [explains](, “Idaho emergency rooms should be able to perform abortions in cases where they are necessary not only to protect the mother’s life, but also, in some cases, the mother’s health.” Also protected: padding the pockets of elected officials. “Suppose your city awards a lucrative contract for the purchase of new garbage trucks. Afterward, the company that won the bidding offers your mayor a gift of $13,000. The mayor never asked for a penny; but he’s offered the money and he takes it. Has the mayor committed a crime?” [asks]( Stephen. The answer, bizarrely, is no, according the US Supreme Court. Former Portage, Indiana, mayor James Snyder — the individual in question — challenged his conviction and the high court ruled he was not in violation of federal law. “What Snyder did was terrible,” Stephen concludes. “But a court is not free to deem an act criminal simply because the act is egregious. Rather, it is up to the legislature to ban the conduct, using clear and precise language. Your move, Congress.” Congress can try to move, but the whole thing is becoming a game of SCOTUS Says. Bonus Justice Tonight]( Reading: - Why an Immigration Case Has Sotomayor [Writing About Abortion]( — Noah R. Felman - Only Clarence Thomas [Is Willing]( to Give a Gun to a Domestic Abuser — Noah R. Feldman - Is a Wealth Tax an Income Tax? [Here's Why That Matters]( — Stephen L. Carter - When [Is Sleeping a Crime](? If You’re Homeless, Says the Supreme Court — Noah R. Feldman [What’s the World Got in Store](? - 137th Wimbledon tennis tourney, July 1: Paris Olympics’ Gender Equality Boast [Has an Asterisk]( — Adam Minter - Hungary takes EU presidency, July 1: NATO's Force [Can’t Overcome]( Enemies Within — Mark Champion - US unemployment, July 5: America [Isn’t Sacrificing]( Its Future for ‘Cheap Labor’ — Tyler Cowen [Neon Pill]( In addition to the cancelled flights, nausea-inducing sea conditions and hawkers of fake-pearl jewelry, my recent South Seas trip tipped me off to a couple of unexpected blights on paradise. One, which I should have anticipated as the author of [several articles]( of the [depredations]( of China’s fishing fleets, was the new craze of killing manta rays — perhaps [150,000 a year]( — for the supposed health benefits of dried gill plates, the cartilage used to filter their zooplankton diet out of the water column. Honestly, even if you can somehow look past Beijing’s repression of Uyghurs, trampling of dissent and surveillance-state society, how can you not be appalled by a nation that indulges in the slaughter of these freakishly beautiful creatures?[1](#footnote-1) Boy meets, um, whatever. Photographer: Ryan Hoffman The other surprise is that Fiji has a serious [drug problem]( — both domestic use and as a distribution center. Methamphetamine-related arrests [increased]( by roughly 550% between 2009 and 2019, the most recent reliable data, and a shipment of 3.5 tons of crystal meth was [seized]( earlier this year. This is not just a problem for Fijian society — the so-called Pacific Drug Highway threatens security across the world’s largest ocean, and if the West doesn’t help these poverty-stricken nations fight crime, China will. That would be a disaster for American geopolitical interests, not to mention the mantas. Of course, the US can’t take the high road on the high seas if it can’t make progress against its own drug crises. The high court seems to have given law enforcement a leg up, albeit a very, very questionable one. “Can the prosecution call a cop as an expert witness to testify in a drug-trafficking case that most drug couriers — not necessarily the one on trial — know they are carrying drugs?” [asks]( Noah. “The Supreme Court has said yes, despite a clear federal rule that says an expert can’t testify as to the defendant’s state of mind. The decision is wrong, because it invites the jury to conflate abstract statistical probabilities with the specific circumstances of the individual case.” So much for the drug trade’s little fish, let’s move on to the manta-sized villains: the Sackler family of Purdue Pharmaceutical opioid fame. “In a surprising twist to America’s ongoing opioid crisis, the Supreme Court has thrown out a legal settlement that would have paid billions of dollars to victims of over-prescription as well as all 50 state governments,” [explains]( Noah. “Along the way, the court made it much harder than it has ever been before to settle large, complex mass tort cases with a bankruptcy agreement … The best explanation for the vote breakdown is that the four justices in dissent are all pragmatists. Without releases for parties like the Sackler family, the bankruptcy system can’t resolve major mass tort cases. The five justices in the majority are all more formalistic or, in Jackson’s case, idealistic.” But is “idealistic” the same thing as fair? Matt Levine (hey — someone other than Noah and Stephen!) has thoughts. “The Sacklers, loosely speaking, extracted $11 billion for themselves by running a company with a net social value of perhaps negative trillions of dollars,” he [writes](. And now they have agreed to give back roughly half of it, leaving them still billionaires. Arguably you should become a billionaire by doing stuff with positive value and keeping some of it for yourself; doing stuff with enormous negative value and getting billions for yourself seems bad. As a matter of fairness, the Sacklers should perhaps have to give back, you know, all of it, or almost all of it, or perhaps more than all of it.” More than all of it? That could give us yet another school of legal thought: Pragmatists, formalists, idealists, textualists … and fantasists. Notes: Please send a bowl of kava and feedback to Tobin Harshaw at tharshaw@bloomberg.net. [1] For a sense of scale, the diver bottom left is my (very brave) 6'2'' son. Follow Us Like getting this newsletter? [Subscribe to Bloomberg.com]( for unlimited access to trusted, data-driven journalism and subscriber-only insights. Before it’s here, it’s on the Bloomberg Terminal. Find out more about how the Terminal delivers information and analysis that financial professionals can’t find anywhere else. [Learn more](. Want to sponsor this newsletter? [Get in touch here](. You received this message because you are subscribed to Bloomberg's Opinion Today newsletter. If a friend forwarded you this message, [sign up here]( to get it in your inbox. [Unsubscribe]( [Bloomberg.com]( [Contact Us]( Bloomberg L.P. 731 Lexington Avenue, New York, NY 10022 [Ads Powered By Liveintent]( [Ad Choices](