SCOTUS, Trump & the US courts May 2020 –

Written by  //  July 17, 2020  //  Justice & Law, U.S.  //  No comments

See also: SCOTUS and the US courts 2017-18
SCOTUS, Trump & the US courts July 2018 – April 2020

17 July
John Roberts’s Supreme Court power hinges on Trump’s reelection. But not in the way you might think.
By Robert Barnes
(WaPo) Roberts is a savvy operator on the court no matter its makeup. Still, he remains in the central position so long as the justices a reelected Trump would replace are conservatives or the ones a President Biden would replace are liberals.
If Biden gets to replace either [Ginsburg or Breyer], he would be maintaining the status quo, albeit with a new generation. Roberts’s place would seem to be secure.But if Trump chooses a replacement for one of the liberals, it would shift the court’s center of gravity considerably, and it would diminish Roberts’s influence. As the most influential of five conservatives, the court moves to the right only as far and as quickly as the chief justice wants. The scenario changes if he were one of six.

9-10 July
Supreme Court Rules Trump Cannot Block Release of Financial Records
Two rulings clear the way for prosecutors in New York to see President Trump’s financial records, but the justices stopped Congress for now.
(NYT) The Supreme Court on Thursday cleared the way for prosecutors in New York to see President Trump’s financial records, a stunning defeat for Mr. Trump but a decision that probably means the records will be shielded from public scrutiny under grand jury secrecy rules until after the election, and perhaps indefinitely.
In a separate decision, the court ruled that Congress could not, at least for now, see many of the same records. The vote in both cases was 7 to 2. Chief Justice John G. Roberts Jr. wrote both majority opinions. [Trump nominees Neil M. Gorsuch and Brett M. Kavanaugh joined the majorities.]
The court’s decision in favor of the New York prosecutors was a major statement on the scope and limits of presidential power, one that will take its place with landmark rulings that required President Richard M. Nixon to turn over tapes of Oval Office conversations and forced President Bill Clinton to provide evidence in a sexual harassment suit.
Supreme Court says Manhattan prosecutor may see Trump’s financial records, denies Congress access for now
(WaPo) The Supreme Court on Thursday rejected President Trump’s assertion that he enjoys absolute immunity while in office, allowing a New York prosecutor to pursue a subpoena of the president’s private and business financial records.
[Lawfare: The Supreme Court Rules in Trump v. Vance
In a separate case, the court sent a fight over congressional subpoenas for the material back to lower courts because of “significant separation of powers concerns.”
[Lawfare: The Supreme Court Rules in Trump v. Mazars
While the court said [Manhattan District Attorney Cyrus R.] Vance had the authority to subpoena the records from Trump’s private accounting firm, it also sent the case back to a district court for more work.
The information is part of a grand jury investigation, so the joint decisions probably dash the hopes of Trump opponents that the information will be available to the public before November’s election.
The Supreme Court Lets Trump Run Out the Clock
The justices reiterated that no president is above the law, but voters still won’t see his taxes before November.
In two major cases on Thursday, the Supreme Court rejected President Trump’s attempt to avoid all legal scrutiny of his financial records and reaffirmed the principle that undergirds any democratic society: No one, not even the president, is above the law.
That’s the good news. It’s also the bare minimum Americans should expect. The bad news is that Mr. Trump has again figured out how to game the legal system to his advantage, to dance along the edges of the law that the rest of us are expected to abide by.
Trump says he’s victim of ‘political prosecution’ after Supreme Court rulings
President Trump on Thursday decried what he called a “political prosecution” and claimed he was being treated differently than other presidents after the Supreme Court ruled that a New York prosecutor is entitled to see his private and business financial records but sent the case back to a lower court for more consideration.
Trump’s comments followed that decision and another that blocked House Democrats from accessing his financial records for now — both moves that mean the public is unlikely to see his tax returns and other records before the November election.

Supreme Court says much of eastern Oklahoma remains Indian land
(WaPo) The Supreme Court said Thursday that a large part of eastern Oklahoma remains an American Indian reservation, a decision with implications for nearly 2 million residents.
The land at issue contains much of Tulsa, the state’s second-largest city. The question for the court was whether Congress officially eliminated the Creek Nation reservation when Oklahoma became a state in 1907.
In a 5-to-4 decision, the court said that Congress “has not said otherwise” and that the land promised to the Creek Nation is still a reservation.
“If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” wrote Justice Neil M. Gorsuch, who was joined by the court’s liberal justices.

8 July
Why conservative justices are more likely to defect
By Adrian Vermeule, the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.
(WaPo) The justices are indeed acting faithfully to law, but not by enforcing the written Constitution and laws. Rather what they enforce is our real, unwritten constitution, a set of understandings that underlies and shapes our interpretation of the law. Justices interpret open-ended provisions (“due process of law”) in light of this unwritten constitution. And because the background small-c constitution embodies a liberal order, it is unsurprising that their decisions do as well. … These unwritten norms allow the expression of dissenting views, but only as dissenting views. They thus exert the most force on justices who are otherwise least convinced of the conservative position in a given case. Hence the most conservative justices rarely defect. But in critical cases, involving central commitments of the unwritten constitution, it is highly likely that one or more of the middling conservative justices will do so.
Liberal justices, by contrast, are more likely to agree with the concrete order’s commitments in any event. Hence they end up forming a solid bloc. The resulting asymmetry in defections between liberal and conservative justices arises not from bad-faith, results-oriented liberal judging, but because the underlying norms and principles of the sociopolitical order of which they are a part skew systematically in a liberal direction.

Supreme Court says employers may opt out of Affordable Care Act’s birth control mandate over religious, moral objections
Wednesday’s decision greatly expands the ability of employers to claim the exemption, and the government estimates that it could mean that 70,000 to 126,000 women could lose access to cost-free birth control.
The decision sent the case back to a lower court and instructed it to dissolve a nationwide injunction that had kept the exception from being implemented.
Liberal Justices Elena Kagan and Stephen G. Breyer agreed with the court’s conservatives that the administration had the right to create an exemption, but they said lower courts should examine whether the decision to create this one was arbitrary and capricious.
Supreme Court ruling on Trump’s tax returns, financial records to come Thursday
The court’s decisions will carry major implications for the limits of presidential power and accountability, and could affect the fall election.

6 July
Supreme Court Won’t Block Ruling to Halt Work on Keystone XL Pipeline
But the justices stayed the rest of a federal trial judge’s ruling striking down a permit program, allowing construction of other pipelines around the nation.
(NYT) The Supreme Court on Monday rejected a request from the Trump administration to allow construction of parts of the Keystone XL oil pipeline that had been blocked by a federal judge in Montana. But the court temporarily revived a permit program that would let other oil and gas pipelines cross waterways after only modest scrutiny from regulators.
The court’s brief, unsigned order gave no reasons, which is typical when the justices rule on emergency applications, and it said it would last while appeals moved forward. There were no noted dissents.

Supreme Court says states may require presidential electors to support popular-vote winner
Colorado and Washington state officials had asked the court to settle the matter in case the November election is so close that a small number of what are sometimes called “faithless electors” could determine the result.
The Supreme Court ruled unanimously Monday that a state may require presidential electors to support the winner of its popular vote and punish or replace those who don’t, settling a disputed issue in advance of this fall’s election.
It is one of the rare political cases at the court that seems not to favor one party over another, which might explain the unanimity. (Justice Clarence Thomas disagreed with the majority’s reasoning, but not the outcome).
Both red and blue states urged the justices to settle the matter in advance of the “white hot” glare of the 2020 election. They said they feared a handful of independent-minded members of the electoral college deciding the next president
See He tried to stop Trump in the electoral college. A court says his ‘faithless’ ballot was legal (August 2019).

30 June
John Roberts Distances Himself from the Trump-McConnell Legal Project
By Jeffrey Toobin
(The New Yorker) …three times in recent weeks, the Justices have issued concrete directives that have changed the world—and for the better. They held that it was unlawful to fire people simply because they are L.G.B.T.Q.; they prevented the Trump Administration from deporting seven hundred thousand young people, known as the Dreamers, who have lived virtually their entire lives as Americans; and they guaranteed that women in Louisiana will continue to have at least some access to abortion. And the Chief Justice, John G. Roberts, Jr., a conservative who was appointed to the Court fifteen years ago, by George W. Bush, voted in the majority in all three cases.
I don’t pretend to know what’s in Roberts’s heart, but I can see what’s clear: that he is dissociating himself from key parts of the conservative legal project that Trump and McConnell have done so much to foster.

29 June
Supreme Court Lifts Limits on Trump’s Power to Fire Consumer Watchdog
The case concerning the Consumer Financial Protection Bureau was part of a politically charged battle over presidential authority.
The Supreme Court ruled Monday that the president is free to fire the director of the Consumer Financial Protection Bureau without cause. The decision, rejecting a federal law that sought to place limits on presidential oversight of independent agencies, was a victory for the conservative movement to curb the administrative state.
The vote was 5 to 4, with the court’s five more conservative justices in the majority.
The bureau, the brainchild of Elizabeth Warren, was created as part of the Dodd-Frank Act, which was passed in 2010 after the financial crisis. In an effort to protect the bureau’s independence, the statute said the president could remove its director only for cause, defined as “inefficiency, neglect of duty or malfeasance.”
President Trump targeted the agency, appointing Mick Mulvaney, the former South Carolina congressman, as interim director after the agency’s original director, Richard Cordray resigned in late 2017. Mr. Mulvaney, who was also the budget director, saw it as a an opportunity to dismantle an agency vilified by Republicans since its inception as an example of government overreach.
Supreme Court strikes down a Louisiana law requiring abortion clinics to have admitting privileges at nearby hospitals
The US Supreme Court has truck down a Louisiana law requiring clinics that perform abortions to obtain admitting privileges at a local hospital within 30 miles away.
In the case, June Medical Services v. Russo, the court ruled 4-4-1, with Chief Justice John Roberts concurring with the majority.
In 2016, the Court struck down an almost identical law in Texas in the case Whole Women’s Health vs. Hellerstedt, ruling that such restrictions pose an “undue burden” on a patients’ ability to access abortion.

15 – 20 June
The Tempting of Neil Gorsuch
Another conservative justice’s arc bends toward juristocracy.
By Ross Douthat
It might surprise contemporary Americans that for most of our history, what we call “culture war” debates — arguments about rights, social justice, the moral organization of society — were often settled through democratic deliberation, rather than the kind of ruling the Supreme Court just delivered on gay and transgender civil rights. Congress debated and passed laws. State legislatures did the same. Constitutional amendments were proposed, passed, ratified — and when necessary, repealed.
We may officially have three branches of government, but Americans seem to accept that it’s more like 2.25: A presidency that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget.
Today constitutional amendments have become unimaginable, Congress barely legislates, and the Supreme Court manages our social and cultural debates. Our affirmative action system was designed by Lewis Powell and amended by Sandra Day O’Connor. The boundaries of voting rights and free expression are policed by John Roberts. Our abortion laws reflect the preferences of Anthony Kennedy. And now anti-discrimination law and religious liberty protections will reflect what Neil Gorsuch, author of the new decision, thinks is right and good.
Roberts to Trump: Don’t Take the Supreme Court for Granted
A week of decisions contained hidden and not-so-hidden messages from the court.
By Linda Greenhouse
Monday’s ruling on the right of gay and transgender people to be free of discrimination in the workplace showed a court that by a refreshing vote of 6 to 3 decided not to stand in the path of a tide of social change. The DACA decision contained a message threaded through its dry language of administrative procedure — a warning to the Trump administration not to assume that it gets a free pass, not to take the Supreme Court for granted.

Roberts Wanted Minimal Competence, but Trump Couldn’t Deliver
(The Atlantic) The chief justice expects the federal government to adhere to basic standards of honesty and fidelity to the public interest.
These cases have revealed Roberts as a bulwark against Trumpism on the Court, not because he is ideologically hostile to it, but because Roberts expects the federal government to adhere to minimum standards of honesty and fidelity to the public interest. These qualities are compatible with conservative governance but are anathema to Trumpism, an ideology wherein the whims of the executive take precedence over the rule of law. What is painfully clear is that the Trump administration could have prevailed in each of these cases, with Roberts’s express approval, had it comported itself with a minimum of good faith.
The conservative movement has come to view Republican-appointed justices as wholly owned subsidiaries of their party, and by extension the administration. That assumption has lulled it into the mistaken belief that the shoddiest legal reasoning can pass muster at the high court, simply because of the ideological predilections of the Republican appointees. This belief is not entirely without merit—although one Trump appointee, Neil Gorsuch, has an independent streak, in all of the previous cases mentioned here, four Republican appointees were willing to go along with whatever flimsy or dishonest pretext the Trump administration could cobble together. But John Roberts remains hostile to being made to look a fool.
Trump calls for ‘new justices’ on Supreme Court after unfavorable rulings
President Trump on Thursday escalated his criticism of the Supreme Court after a pair of rulings this week against his administration, calling for new justices to be appointed and pledging to release a new list of potential nominees ahead of November’s presidential election.
Supreme Court rejects Trump administration’s move to end DACA protections for nearly 700,000 young immigrants
(AP) — The Supreme Court on Thursday rejected President Donald Trump’s effort to end legal protections for 650,000 young immigrants, a stunning rebuke to the president in the midst of his reelection campaign.
For now, those immigrants retain their protection from deportation and their authorization to work in the United States.
The outcome seems certain to elevate the issue in Trump’s campaign, given the anti-immigrant rhetoric of his first presidential run in 2016 and immigration restrictions his administration has imposed since then. It was the second big liberal victory at the court this week, following Monday’s ruling that it’s illegal to fire people because they’re gay or transgender.
The justices rejected administration arguments that the 8-year-old Deferred Action for Childhood Arrivals Program is illegal and that courts have no role to play in reviewing the decision to end DACA.
Chief Justice John Roberts, joined by his four liberal colleagues, wrote for the court that the administration did not pursue the end of the program properly.
“We do not decide whether DACA or its rescission are sound policies,“ Roberts wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.”

John Roberts May Not Be the Ally Gun-Rights Advocates Hoped For
The Court’s decision not to hear several Second Amendment cases may be a sign that the chief justice is not a solid vote against gun control.
Adam Winkler
(The Atlantic) Easily overlooked in all the attention paid (rightly) to the historic Supreme Court decision extending antidiscrimination protections to LGBTQ people was a quiet announcement by the justices that they would not hear any of the 10 Second Amendment cases they had been considering. By agreeing not to decide these cases, the justices sent a clear signal to the gun-rights movement: Stop looking to the Supreme Court to strike down gun-control laws.
The 10 cases raised fundamentally important and largely unanswered questions about the scope of the Second Amendment. In 2008’s District of Columbia v. Heller, the Supreme Court held that the Second Amendment guaranteed an individual right to have handguns in the home for personal protection. But the decision did not clarify whether a person has a right to carry a firearm on the streets, what kind of permitting cities and states can require for public carry, or whether assault rifles are protected arms.
The Court’s conservatives, along with gun-rights advocates, have complained about the Second Amendment being treated as a “second-class right.” They are the ones looking to change the law. The Supreme Court’s refusal to take any of these major Second Amendment cases is a strong signal that the Supreme Court—and Chief Justice Roberts in particular—isn’t about to do that anytime soon.

With LGBT ruling, Supreme Court hands liberals a surprise victory
LGBT rights advocates triumphed at the Supreme Court Monday, winning a sweeping decision from the justices that protects gay, lesbian and transgender employees from being disciplined, fired or turned down for a job based on their sexual orientation.
Two of the court’s Republican appointees, Neil Gorsuch and John Roberts, joined the court’s Democratic appointees to deliver the surprising 6-3 victory to those arguing for anti-discrimination protections
Writing for the court’s majority, the conservative Gorsuch embraced arguments that seemed radical to many liberals just a few years ago: that the 1964 Civil Rights Act’s prohibition on sex discrimination in employment also effectively banned bias based on sexual orientation or gender identity, even though few if any members of Congress thought they were doing that at the time.
The decision was a rout for social conservatives and a defeat for President Donald Trump’s administration, which had urged the justices to take a narrow view of the half-century-old law.
Backers of the new decision said it could spell doom for some Trump administration policies, particularly an effort to roll back protections for transgender individuals seeking health care.
The gay and transgender rights cases decided Monday have been lingering on the court’s docket for more than seven months. They were argued last October, on the second day of the court’s current term.
The Supreme Court’s Unlikely Intersectionality
(New York) By formally recognizing LGBT individuals into federal anti-discrimination law, the Court was effectively rejecting the siloing of rights, the pitting of historically marginalized groups against each other — including the claim, most prominently aired by J.K. Rowling, that trans rights come at the expense of cisgender women. That’s true even if you’ll never get Roberts or Gorsuch to say as much (though they did sign their names to an opinion that deferred to the plaintiff’s preferred gender pronouns).

4 June
The Supreme Court, Too, Is on the Brink
The polarization roiling the country has the Supreme Court in its grip.
(NYT Opinion) The Supreme Court made the indisputably right call last week when it refused to block California from limiting attendance at religious services in an effort to control the spread of Covid-19.
So why did the court’s order, issued as midnight approached on Friday night, fill me with dread rather than relief?
It was because in a ruling that should have been unanimous, the vote was 5 to 4. And it was because of who the four dissenters were: the four most conservative justices, two of them appointed by the president who a couple of months ago was demanding that churches be allowed to open by Easter and who, even before the murder of George Floyd in Minneapolis, was openly encouraging protests in the capitals of states not reopening as quickly as he would like.
As an astonished country witnessed on Monday night, as he held a Bible in front of a church near the White House after demonstrators were violently cleared from his path, Donald Trump is using religion as a cultural wedge to deflect attention from the consequences of his own ineptitude.
So what was the dissenters’ problem? Justice Kavanaugh’s opinion offers a clue. The Christian observance of Pentecost was last Sunday, and the clock was ticking as the justices considered the South Bay United Pentecostal Church’s request. “The church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities,” Justice Kavanaugh wrote. What does that sentence even mean? What’s the secular comparator when it comes to observing Pentecost? A Sunday afternoon softball game?
I’m baffled by why a particular liturgical observance should have even a walk-on role in this opinion. Last weekend was also Shavuot, a major Jewish holiday. But it’s the Christian calendar about which recently appointed federal judges seem exclusively concerned.

20 May
Democrats can’t keep ignoring this vital campaign issue
(CNN) Senate Republicans should be careful what they wish for — and that includes South Carolina Sen. Lindsey Graham, who this weekend said out loud what many of his fellow Republicans are thinking. “I don’t want to speculate, but I think appointing judges is a high priority for me in 2020,” he told Greta Van Susteren, host of “Full Court Press.”
Should a Supreme Court seat open up, President Donald Trump and Senate Republicans have five months to jam through another conservative. If the next available seat is vacated by one of the liberal justices, then their new appointee could cement the nine-member court’s conservative tilt for decades to come.

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