Expert Insights on Recent SCOTUS Teleconference Arguments

Allowing the public to listen in in real time for the first time in history—the Supreme Court heard remote arguments via teleconference in the first two weeks of May. The Court heard some of the most anticipated cases of the term—exploring issues related to the Electoral College, abortion, First Amendment rights, and more. The National Constitution Center collaborated with C-SPAN to offer live recaps of the arguments, convening experts on both sides of each case. Here are the highlights and expert insights from the analysis of three key cases, which we also shared on our We the People podcast.

Recap of Colorado Dept. of State v. Baca and Chiafalo v. Washington

In 2016, six presidential electors—members of the Electoral College—voted for candidates who did not win their states’ popular vote, despite having pledged to do so. In Washington, some of those electors were fined $1,000 and in Colorado one was removed. Those “faithless electors” then filed suit against the states, arguing that the Constitution allowed them to exercise choice in who was elected president, rather than automatically voting for the candidate picked by the public. Washington and Colorado responded by asserting their power to control their electors—setting off a debate heard by the Supreme Court last week.

The recap of that argument, featuring David Kopel of the Independence Institute—who filed a brief in support of the presidential electors, and Paul Smith of the Campaign Legal Center—who filed a brief in support of the states, focused on interpreting the meaning of the constitutional provisions invoked by both sides. Much of the discussion focused on Article II, Section 1—the clause that originally laid out the Electoral College. Read more on that provision on the Interactive Constitution.

Kopel said that the justices need to consider the true meaning of the terms used in Article II, Section 1, as he argued in his brief.

“Their key words are ‘elector,’ ‘vote,’ and ‘ballot,’ all of which are the process [electors] go through, which does seem to imply discretion and free choice,” Kopel said. He added that “all the dictionaries show from the time” that the word “elector” implied choice, including Webster's dictionary of the American English language which defined the word “elector” as someone who can make an election and have a choice. That dictionary “actually pointed specifically to the American presidential system . . .  as an example,” Kopel said.

Kopel asserted that that understanding remained through the passage of the 12th Amendment, which revised Electoral College procedure by requiring separate votes for presidential and vice presidential candidates.

According to Kopel, the 12th Amendment essentially reiterated the Constitution’s existing provisions while acknowledging the rise of political parties. The 12th Amendment was based on an agreement that “electors did have and would continue to have discretion,” Kopel said, adding that its ratifiers “made their pro-con arguments for the new system with that in mind.”

Smith, however, disagreed. He wrote in his brief that the 12th Amendment shifted the original understanding of electors as exercising independent judgment, presuming instead that they would serve as faithful representatives of their party:

“The argument that the states make here is that in passing that amendment, they essentially ratified a meaning of the word ‘elector’ that said they can be pledged, they can be bound to support a particular outcome—the outcome of the vote in their state— and that states choosing to do that are just exercising the power they had from the beginning under the power to choose the matter of appointment. … By the time we got to 1804, the parties existed, they were putting up their electors, exacting pledges from them to be loyal to the party, and everybody knew and understood that that's who these people were... We don't think of them as exercising discretion. We haven’t thought of doing that for 200 years.”

Smith added that “there is no provision that the electors point to that says anything about confining the power of the state” over their electors.

If states’ powers over their electors was revoked, some justices worried during the argument that that would create chaos in presidential elections. Smith and Kopel both agreed on that point.

Smith said that the justices were rightfully concerned about the practical consequences of “having the Supreme Court itself announce that electors are free agents.”

One such consequence could be that a candidate could win the electoral vote by a narrow margin, and then have two or three electors switch their votes. With that, the entire outcome of the election could change, Smith said, “creating a crisis of monumental proportions. You'd have a president who will actually be lawfully elected that nobody would think was legitimate. That's the big fear hanging over this case…”

Kopel echoed that fear and actually said he thinks the Court will rule against his side.

“I think the States will most likely win the case,” he said, adding that the Supreme Court will be unlikely to want to enact such a large change in the electoral system. However, he reiterated his belief that siding with the electors would restore the system as he believes it was meant to function:

“While I think it’s unlikely the Court will want to spend enough of its political capital to reeducate the public back to what the text really does, literally say, and was the original public meaning as the public in general understood those very ordinary, non-specialized words—that is what the Constitution says.”

Recap of Our Lady of Guadalupe School v. Morrissey-Berru

This case, filed by two teachers in southern California who worked at Catholic schools, asks whether those teachers can sue for employment discrimination. The teachers sued the schools after their contracts were not renewed with one alleging disability discrimination and the other claiming age discrimination. The schools in response claimed that the teachers’ lawsuits should be barred under the “ministerial exception.” That doctrine prohibits lawsuits against religious institutions by employees who perform a religious function, in furtherance of the institutions’ First Amendment rights to free exercise of religion and the prohibition on establishment of religion. Although the Court established the “ministerial exception” in Hosanna-Tabor Evangelical Lutheran Church and School v. Employment Opportunity Division (2012), it has not delineated which teachers count as ministers. That question is at the heart of the Morrissey-Berru case and was explored in our recap by UCLA Law Professor Eugene Volokh and Sunu P. Chandy, Legal Director of the National Women’s Law Center.

Chandy wrote a brief in support of the teachers arguing that they should not fall under the ministerial exception.

“When you have that kind of blanket immunity, you have to really carefully cabin who gets to be included in that,” Chandy said. “So that is really the question here.”

Volokh, however, who joined a brief of legal scholars filed in support of the schools, argued that teachers with religious responsibilities should fall under the exception.

“I think we saw a lot of justices thinking, look, if somebody really is a teacher of religion, then they’re not just personifying the church—they speak for the church in conveying its religious doctrine,” and thus fall under the exception. He continued:

“I do think though that there are good functional reasons for saying that when religious institutions hire people to teach religion, it's important that the government stay out of the decision about who will be hired for that. And it's true that that means that certain employees will not be covered by employment law … [but] that’s the nature of the protection we offer to religious institutions to get to decide who it is, who helps spread the faith... Part of the free exercise of religion is the freedom to choose who's spreading your message to future generations, including the freedom to choose without having your reasoning second guessed.”

While Volokh emphasized the potential First Amendment implications of this case, Chandy emphasized the consequences for employees. Chandy said she fears that if the ministerial exception is expanded, “a whole host of employees” including nurses at religiously affiliated hospitals and others could lose their civil rights protections. She said Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer were also attuned to “the staggering breadth of what’s at stake here,” and connected that concern to the ongoing coronavirus pandemic. 

“We've talked about what’s really at stake here for the millions of healthcare workers who have been so instrumental in the middle of this global pandemic,” she said. “I think the last thing we should be saying is because you might say a prayer or because you work for a religiously affiliated institution, you will now lose all of your civil rights.”

Recap of United States Patent and Trademark Office v. Booking.com

Although this case centers around a seemingly narrow question—whether Booking.com’s name can be registered as a trademark—it also raises another question explored in our argument recap by Corynne McSherry of the Electronic Frontier Foundation and law professors Rebecca Tushnet of Harvard Law School and Margaret Duncan of Loyola University. That question is whether the justices should look to the Lanham Act, a relevant statute passed in the 1940s and amended as recently as the 1980s, or to the 1888 Supreme Court decision Goodyear’s India Rubber Glove v. Goodyear Rubber Co. in deciding the case.

Goodyear held that tacking a term like “company” onto a generic term does not make it trademarkable. The Lanham Act later established the “primary significance test,” which states that if a term has a “primary significance” to the relevant public for particular goods and services, it can be registered as a trademark protectable by law. If not, the word is just a generic term that should not be registered as a trademark.

During the argument, some of the justices wondered why the Court would apply a centuries-old case like Goodyear rather than looking to the Lanham Act, and Duncan, who filed a brief on behalf of the Intellectual Property Law Association of Chicago in support of respondent Booking.com, echoed those comments. She argued that the sort of “flexible” test provided for by the Lanham Act “is the one that we should always lean towards when we’re looking at statutory interpretation—and not, probably, a 130-year-old case that came before the statute.”

That comment was in line with the arguments made by Booking.com, whose arguing counsel asserted that because the public identified its name as a brand name, it should be trademarkable. The company pointed to a survey showing that 74.8% of respondents identified Booking.com as a brand name (although that survey was the source of many questions from the justices).

In contrast, the U.S. Patent and Trademark Office pointed to Goodyear in arguing that “booking" is a generic term that, when combined with “.com” does not become trademarkable. McSherry, whose organization filed a brief in support of petitioners, the U.S. P.T.O., expanded upon that argument:

“I think that the key to the petitioner’s argument is this: It says, look, under Goodyear... it's pretty straightforward that if something is generic, that's it. Full stop. We're done. We don't have to get into the primary significance test necessarily. That is something you think about when you're talking about whether something's descriptive or not, but that's not what we have here. We have . . . two generic terms: ‘dot com’ [is] purely generic. ‘Booking’ [is] purely generic. This is a purely generic term. Full stop. We don't have to get into survey evidence. We don't have to get into all of this stuff. The PTO can make a decision that this is a purely generic term and we're done with the argument. And that's essentially what happened here.”

McSherry added that she believes that registering Booking.com would be anti-competitive—disadvantaging competitors by preventing them to use a generic name for their goods and services. According to McSherry, that would be counter to the norms of trademark policy, which she said “has always, always” tried to mitigate “the risk of shutting down competition unfairly.”

The panelists did note, however, that Booking.com does not intend to sue competitors using similar names should it win its trademark.

Tushnet, meanwhile, raised additional considerations as voiced in her brief in support of neither party:

“I think the core question is: At what point does the fact that consumers are likely to recognize something that is a generic term for a group of goods or services—but it has a prominent provider and so people are likely to associate the provider with the generic term—at what point should that convert into some sort of enforceable trademark? We don’t want people to get a monopoly on a term just because they're the most well-known provider of it, but there is a countervailing concern that, at a certain point, if somebody really is associated with the term, then there's a potential for confusion.”

Tushnet noted that Booking.com is a good example of this because it has developed a significant reputation as a distinct brand, but it does allow users to make bookings for hotels and more online, which numerous other online reservation services do as well. So Booking.com having control over that term may prevent others from using it in a reasonable way.

The Court will have to reconcile those competing concerns in a decision likely issued sometime this summer.