A New Term With A Little Something For Everyone | Guns And Religion And Presidential Power And Pirates, Oh My!
October 7, 2019
IT'S A NEW DAWN, IT'S A NEW DAY
|Today the Supreme Court kicked off a new October Term — one that Adam Liptak with The New York Times says is “studded with major cases on gay and transgender rights, immigration, abortion, guns and religion.” He says the spotlight will shine brightest on three justices: CHIEF JUSTICE ROBERTS, JUSTICE GINSBURG, and JUSTICE KAVANAUGH.
PRAY FOR RBG
|Robert Barnes with The Washington Post reports that not everything is in the Supreme Court’s control, including the health of the most senior justice, RUTH BADER GINSBURG. Her most recent cancer ordeal has made some wonder whether another vacancy is imminent. Barnes writes, “If her health forced her from her seat, the Republican Senate has made clear it would move quickly to ensure Trump would name her replacement and solidify conservative control of the court.”
THE ELEPHANT IN ALL THE ROOMS
|And as justices return to work, in the background lurks one massive impeachment fight that could soon find its way to the Supreme Court itself. Bloomberg’s Greg Stohr writes in his preview of the new term, “It will also be a challenging one for CHIEF JUSTICE JOHN ROBERTS and his efforts to keep the court as removed as possible from the partisan fray. With Roberts at the helm, the court in its last term managed to sidestep several highly divisive issues — or at least defer them until now…The challenge could grow exponentially depending on the direction the House impeachment investigation takes. The Supreme Court could be called upon to resolve clashes over congressional subpoenas or presidential claims of executive privilege. And if the House impeaches Trump, the Constitution requires that Roberts preside over the Senate trial, a duty that would make him the arbiter of any disputes over the governing rules.”
ORDER UP
|“Sex. Immigration. Guns. Abortion. Religion. Executive power. Pirates, even.” Richard Wolf with USA Today calls this the Supreme Court’s “menu” thus far. And though that list is anything but low-key, legal challenges aimed at the Trump administration could make this Supreme Court term even more explosive. Wolf reports, “Democrats’ demands for documents and testimony pertaining to the president’s personal and business finances already were working their way through lower courts when Trump’s dealings with Ukraine turned the buzz in the nation’s capital to impeachment. All of those skirmishes will produce battles over congressional subpoenas and administration claims of executive privilege that could reach the high court.”
KNOCK KNOCK KNOCKING ON THE SUPREME COURT'S DOOR
|“The upcoming term will almost surely be a march to the right on almost every issue that is a flashpoint in American society.” Nina Totenberg with NPR says just about every major issue under the sun will have its chance before the Supreme Court this year, including major tests to executive power. She writes, “Clearly, President Trump had something like that in mind when he said of the current impeachment inquiry, ‘It shouldn’t be allowed. There should be a way of stopping it, maybe legally through the courts.’ And if that isn’t enough, pending before the court is a sleeper case testing the very structure of our presidential election system.”
YOU SAY YOU WANT A REVOLUTION
|Is the Supreme Court headed for a conservative revolution? Maybe, maybe not. Amelia Thomson-DeVeaux writes, “According to a FiveThirtyEight analysis of Supreme Court decisions dating back to 1953, his court so far actually hasn’t been any more likely than previous courts to alter precedents. But there’s a key distinction: When the Roberts court does break with past rulings, it tends to do so by the slimmest of margins. Under CHIEF JUSTICE JOHN ROBERTS, the vast majority of precedent-altering cases have been decided by a narrow one-vote majority — and most of those cases have split along ideological lines. That’s a departure from previous courts, where there was typically greater consensus when overturning precedent. And it might also signal that Roberts — who has said that ideologically divided, 5-4 decisions undermine the court’s reputation — is actually more comfortable with divisive rulings than he lets on.”
YOU WANT IT? THEY GOT IT
|“Pick a hot-button issue and it’s on the docket—or could be soon. Gay rights? Oral arguments are set for Tuesday. Mr. Trump’s cancellation of the immigration program known as DACA? It’s slated for November. Gun rights? That’s on tap for December, the first major Second Amendment case the court has taken in a decade. And on Friday the court agreed to rule on abortion restrictions in Louisiana, a case that could send early signals about whether a more conservative court will begin narrowing abortion rights.” That’s Brent Kendall and Jess Bravin with The Wall Street Journal previewing the new term, which wastes no time getting to the tough stuff with a major transgender rights case slated to be argued tomorrow.
SCHOOLHOUSE ROCK
|David Savage with The Los Angeles Times looks at everything slated for SCOTUS this term, and says among the hot ticket items we can expect rulings on several claims of religious liberty. “In a Montana case, the justices will decide whether states must give grants to students attending church schools if they give grants to other private schools (Espinoza vs. Montana). Two years ago, Roberts called it discrimination that is ‘odious to our Constitution’ when Missouri refused to give the Trinity Lutheran Church a grant to repair its school playground. Now that precedent is cited as the basis for giving public funds to church schools.”
FIRST THING'S FIRST I'M THE REALEST
|Mark Sherman with The Associated Press reports that the justices must first tackle a death penalty case from Kansas about whether states can abolish an insanity defense for criminal defendants. Also before justices today is a challenge to a murder conviction by a non-unanimous jury in Louisiana.
JUST GO WITH IT
|The justices today kept a case about a New York City gun control regulation on its 2019 docket despite action by the city and state to erase the regulation from the books. Richard Wolf with USA Today notes that this move could give gun rights advocates some hope, as it may signal that the Supreme Court will go beyond the letter of the law and expand Second Amendment protections from the home to public places.
POD DU JOUR
|On a new episode of Amicus with Dahlia Lithwick, Dean Erwin Chemerinsky of the Berkeley School of Law explains the biggest cases facing the Supreme Court this term. Nancy Northup, president and CEO of the Center for Reproductive Rights, also joins the pod to discuss why the justices have decided to take up June Medical Services v. Gee, the first big abortion case of the Brett Kavanaugh era.
SCOTUS VIEWS
I’m A Transgender Attorney Fighting For My Community. Will That Make A Difference To The Supreme Court?
The Washington Post“Transgender people can live only if we can be who we are — that is, our existence depends on our ability to live consistent with the sex with which we identify. Our physical presence in court is a testament to that truth. When the justices see us sitting before them, they will have to contend with the reality that we have declared our truth and are not going back.”
SCOTUS 2020 Forecast: A Category 5 Political Hurricane
The Hill“Can the court weather a storm of this magnitude? That is largely up to Chief Justice John Roberts, who has made it clear he wants his court to fly above the political thunder. But how? Can Roberts hew closely to the Constitution’s text, history and values, each of the many times they lead to progressive outcomes? Can he uphold precedent he might abhor, because that precedent comports with the Constitution? Can he separate the court from even the appearance of favoritism, especially when it comes to conservative legal activists, business interests, or President Trump?”
Insanity And The Supreme Court
The Wall Street Journal“Some form of an insanity defense has been part of English law since the late Middle Ages. It was recognized in every jurisdiction in the U.S. until the last decades of the 20th century, when Kansas and three other states (Idaho, Montana and Utah) abolished it. In Kahler v. Kansas, the justices should hold that defendants have a constitutional right to claim insanity.”
OTHER NEWS
U.S. Supreme Court Tosses Challenge To Republican-Drawn Ohio Congressional Maps
Reuters“The U.S. Supreme Court on Monday threw out a challenge to Republican-drawn congressional districts in Ohio that Democrats said were drawn to unlawfully diminish their political clout, a move that follows a major ruling by the justices in June that foreclosed such lawsuits. The court’s action in the case involving a practice known as partisan gerrymandering means that 16 U.S. House of Representatives districts will no longer be reconfigured, as a three-judge panel had ordered in May.”
U.S. Supreme Court Snubs University Of Wisconsin Appeal In Patent Fight With Apple
Reuters“The U.S. Supreme Court on Monday refused to hear a bid by the University of Wisconsin’s patent licensing arm to reinstate its legal victory against Apple Inc (AAPL.O) in a fight over computer processor technology that the school claimed the company used without permission in certain iPhones and iPads. The justices, on the first day of their new term, declined to review a lower court’s 2018 decision to throw out the $506 million in damages that Apple was ordered to pay after a jury in 2015 decided the company infringed the university’s patent.”
U.S. Supreme Court Turns Away Puerto Rico Pension Fund Dispute
Reuters“The U.S. Supreme Court on Monday declined to take up a dispute over the assets of Puerto Rico’s largest public sector pension fund even as the U.S. Caribbean island territory’s bankruptcy enters a major new phase. The justices left in place a January 2019 lower court ruling that found that bondholders who own nearly $3 billion of debt issued by Puerto Rico’s Employees Retirement System have a legitimate claim on the pension fund’s assets. The justices refused to hear an appeal by Puerto Rico’s federally created financial oversight board of that ruling.”