Although Congress and the president have been the focal point of the government’s response to coronavirus, the Supreme Court has continued its work, as well—issuing a number of recent opinions and transitioning to remote arguments that the public can listen to live for the first time in the Court’s history. Leading court watchers offered insight into how these new oral arguments will work and recapped the Court’s recent decisions in conversation with host Jeffrey Rosen on last week’s episode of We the People.
SCOTUS goes remote
“The Supreme Court has been conducting business as unusual, if not usual,” according to Marcia Coyle, who joined Jeff for the first segment of last week’s show.
Coyle is the Chief Washington Correspondent for the National Law Journal and the new Supreme Court correspondent for this blog. She explained that the Court “is doing what so many of us are doing right now—working remotely and trying to stay safe.”
The Court recently announced that it will continue its remote work in the first few weeks of May, hearing 10 oral arguments for 13 cases that had been scheduled to be heard in person. These arguments will be heard via teleconference, with lawyers connecting to the justices over the phone, and, most interestingly, the public will be allowed to listen live. The Court has never previously allowed the sharing of video or audio of arguments in real time.
Coyle said the Court is still working out some of the technical details, including how justices will interject with questions and how lawyers will know when their argument time is up, but, overall, she said it’s a welcome adjustment.
“This is historic,” Coyle said. “It’s really pathbreaking for a Supreme Court that has been loath to adopt modern technology in terms of allowing cameras in the courtroom, or even having same day, live audio of oral arguments.”
In the meantime, Coyle explained that the justices will continue to meet via teleconference, and issue decisions in cases argued earlier this term. Because they cannot read synopses of those opinions from the bench as they normally do, opinions are just being published online at supremecourt.gov.
Recent decisions
Those recent decisions have included some of the highest-profile cases of the term, and appellate lawyer Jaime Santos and Case Western Reserve University School of Law professor Jonathan Adler joined Jeff in the next segment of the show to recap them.
Republican National Committee v. Democratic National Committee
Earlier this month, in the leadup to the Wisconsin primary election, the Court weighed in as to whether the deadline for voters to mail in their absentee ballots could be extended to keep voters from going to the polls in the midst of coronavirus. The Court overturned the lower court’s ruling which had extended the deadline to April 13, reinstating the April 7 deadline as per the request of the Republican National Committee and the Republican Party of Wisconsin.
In an unsigned opinion, the majority emphasized that it was deciding a “narrow, technical question about the absentee ballot process” rather than weighing in on the “wisdom” of holding the election given the public health concerns. It added that it decided against extending the deadline to April 13 would have “fundamentally” altered “the nature of the election.”
Adler explained that one reason for that comment is that voters may have seen exit polling that could have swayed their votes before they cast their ballots.
The Court also asserted that by "changing the election rules so close to the election date,” the district court had violated the principle that “lower federal courts should ordinarily not alter the election rules on the eve of an election.”
Santos and Adler referred to that principle as the “Purcell principle” referring to the case Purcell v. Gonzalez (2006). Both said it was an important factor in the majority’s reasoning.
“The Court said the Purcell principle means that lower courts shouldn't alter election rules on the eve of an election because otherwise it will result in judicially created confusion and intervening now could really affect the integrity of the election process,” Santos said.
Santos also reflected on the potential broader impact of the decision.
“Unfortunately at this point, I think what the Purcell principle stands for is that the Supreme Court will not allow lower courts to intervene as long as disenfranchisement happens close to an election, irrespective of the kind of exigencies of the situation,” she said. Santos said that that strays from what Purcell actually intended and is “a pretty frightening principle.”
Adler also reflected on another interesting issue raised by this case —the role of the federal courts to decide electoral issues when political actors have the chance to first do so themselves. He continued, “It's a very unfortunate decision, and I think what it highlights is that state legislatures really need to be thinking now about how they're going to make sure that elections can proceed if we're still in a situation where people congregating and polling places is something that's not advisable when we have our fall elections.”
Santos also noted the dissent in the case, written by Justice Ruth Bader Ginsburg and joined by Justices Breyer, Sotomayor, and Kagan. First, Santos noted that in a normal election year, there might be 100,000 or 200,000 absentee ballot requests. This year, there were 1.1 million ballot requests in Wisconsin when the lower court granted the deadline extension, in the hopes that county clerk’s offices could catch up with the requests and get ballots to voters on time. Without the extension, Santos said there were likely “tens of thousands of people who wouldn’t even receive their absentee ballot ballots by the time of the election day.” She recapped Justice Ginsburg’s response to that likelihood:
“We’re in the middle of a massive pandemic and the majority’s decision is going to result in massive disenfranchisement. And that massive disenfranchisement greatly outweighs any of the concerns that the majority had about kind of judicial overreach. This is an unprecedented situation and any concerns the majority had pale in comparison to the right to vote.” Santos added that Justice Ginsburg closed her opinion “ by focusing on really the dire consequences of the majority’s decision,” and that “tens of thousands of Wisconsin citizens will have to risk their lives or give up their right to vote. That’s a pretty weighty way to close an opinion.”
Comcast Corp. v. National Association of African American-Owned Media, Babb v. Wilkie, and Kahler v. Kansas
Santos and Adler noticed a common theme in these three different cases: textualism—in which the interpretation of the law is primarily based on its written text.
In the Comcast case, the Court remanded an African American entrepreneur’s claim of racial discrimination against the company. When the case is reconsidered, the Court said the plaintiff must show “but for” causation—that Comcast would have made a different decision regarding whether or not to carry several television channels but for the race of their owner, the plaintiff.
Babb v. Wilkie also involved a discrimination claim but had a different outcome. The Court held that Noris Babb could establish that her employer, the U.S. Department of Veterans Affairs, violated the Age Discrimination in Employment Act by showing that age tainted their personnel decisions. She wasn’t required to meet the standard of “but-for cause.”
Adler noted that both cases involved discrimination, but the Court ruled 9–0 against the plaintiff in Comcast and 8–1 largely in favor of the plaintiff in Wilkie.
“Some slight differences in text produced different results in cases that we might otherwise think raise similar issues, right?” he said. “The reason is because the relevant textual provisions that define what it is that's prohibited are different.”
Santos underscored this point.
“These were very narrow decisions that were based very specifically on the text of those particular statutes, but I think what those opinions underscored for me is the Court’s continued focus on text; as I think Justice Kagan is pretty famous for saying, ‘We are all textualists now.’”
Santos added that Kahler v. Kansas also demonstrates this pattern. In that case, the Court upheld Kansas’ decision to abolish the “insanity defense” which had allowed defendants to argue that because they did not understand that their actions were wrong, they could not be held criminally responsible for those actions.
“Both the majority and the dissent based their opinion on following historical tradition. They just disagree about what historical tradition means. And you have Justice Breyer saying, ‘Justice Kagan, you say you're following the historical tradition about the insanity defense. You just completely misunderstood all of those old cases. So I think it makes it really interesting for those interested in any type of textual analysis, whether it's analysis of prior cases or analysis of statutes to see, where does textualism lead you? And it's not always in the same place.”
Upcoming arguments
Santos and Adler also weighed in on the potential outcomes and impacts of those cases that will be argued remotely in May.
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania
This case, which will be argued on May 6, asks whether the expansion of religious exemptions from the Affordable Care Act’s mandate to provide birth-control coverage to employees violated the Affordable Care Act and other laws.
“Underlying these cases are really important principles about religious freedom and religious liberties in the workplace and what happens when those religious freedoms bump up against requirements that apply to everyone when religious employers are part of the general marketplace,” Santos said. “I think it indicates the court’s deep, deep interest in taking on more of these religious freedom cases and it could have enormous implications for many cases to come.”
Adler tied the Little Sisters of the Poor case to Our Lady of Guadalupe v. Morrissey-Berru and St. James School v. Biel. Those cases ask whether courts can hear employment discrimination claims brought by teachers at Catholic schools.
“We definitely see a court that is more interested in fleshing out and perhaps reconsidering aspects of religious liberty jurisprudence than we have in some time,” he said.
Adler did qualify that there are technical issues in these cases that may prevent the justices from getting to those big questions. He did flag, however, that the Little Sisters of the Poor case may allow the justices to rule on another big question: nationwide injunctions.
Trump v. Vance, Trump v. Mazars, and Trump v. Deutsche Bank
These lawsuits all involve access to the financial records for the president and his businesses. In Trump v. Vance, the Manhattan district attorney is seeking access to those records as part of a state grand-jury investigation. In the other two cases, congressional committees have requested records from the president’s account and creditors.
Santos noted that although these cases sound similar, there are important distinctions. She said that there are very different implications of a state grand jury asking for information about the president’s finances as a method of investigating potential criminal violations of law, as opposed to the house of representatives asking for the president’s financial information purportedly in its law-making function—which could potentially lead to different outcomes in the cases.
She also flagged that the House of Representatives’ rationale for requesting the president's financial information has kind of shifted a bit from the beginning through the end of this litigation.
“You know, you should really have your ducks in a row and have a consistent rationale the whole time,” she said. “Otherwise, courts might look at certain requests or certain government action with a little more skepticism. That said, Congress’s authority is really vast... so it may not matter.”
Adler also added that these cases are time sensitive in that they may be important to voters in the November election, so these cases may be one reason why the Court decided to have a telephonic arguments “rather than just rescheduling everything for next term.”
He then posed the question as to whether the Court should even be involved at all—to enforce the House subpoena again the president or, conversely, to allow the president to quash a state grand jury subpoena against a private party.
“Some of the justices feel that the court should as much as possible step back and for the political branches to fight it out,” he said.
Those cases will be argued May 12.
Jackie McDermott is Podcast Producer and Constitutional Content Specialist at the National Constitution Center.
