Sit down and strap in, because we have had a crazy busy week from the SCOTUS, and there is a LOT more on the way for next week.
First, props to the great SCOTUS reporter Lyle Denniston (@lylden) and Laurie Sobel (@laurie_sobel) (who, while on the other side, shot me the link).
It started this week on June 29 with several decisions:
Seila Law LLC v. Consumer Financial Protection Bureau – where certain parts of the structure of the CFPB were deemed unconstitutional. Chief Justice Roberts wrote the 5-4 opinion, with a mixed bag of justices joining, concurring in the judgment, etc: “ROBERTS, C. J., delivered the opinion of the Court with respect to PartsI, II, and III, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined, and an opinion with respect to Part IV, in which ALITO and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. “
June Medical Services L. L. C. v. Russo – where a Louisiana law requiring abortionists to have admitting privileges was struck down. 5-4 with Justice Breyer writing a judgment concurrence (and Roberts joining with the left side), and separate dissents written by each conservative judge.
Agency for Int’l Development v. Alliance for Open Society where the requirement of a statement in opposition to sex trafficking and prostitution for participation to receive Leadership Act funds by a foreign organization – even one closely affiliated with a domestic organization – is not a violation of Freedom of Speech. Upheld 5-3 by conservatives with Justice Kagan not participating.
And then on June 30th:
Espinoza v. Montana Dept. of Revenue – where the SCOTUS reversed and remanded a Montana decision that allowed the state to prevent monies for tax credit donations for scholarships to be used at religious schools. Roberts wrote the 5-4 opinion, joined by conservatives, where religious schools should receive government aid where applicable.
Patent and Trademark Office v. Booking.com B. V. – 8-1 (Breyer dissenting) where the PTO’s claim that “booking.com” was too generic was overturned.
I was under the initial impression that there were only a few cases left. There are, but more than you think. Starting 10 AM Monday next week – if not the next two – we will likely see the following cases decided (links are all SCOTUSblog.com). I am also providing educated and uneducated guesses as to the outcomes:
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania – probably the most high-profile case – regarding religious nonprofits requesting ACA exemptions to provide certain forms of contraception to their employees. The court has ruled favorably in the past on the side of religious exemptions, so may expect a 5-4 here on the side of the Little Sisters.
Barr v. American Association of Political Consultants Inc. – on whether a ban on robocalls to cell phones to collect government-backed debts is a violation of freedom of speech. What we may see here is a 8-1 or 7-2 decision where the justices grit their teeth and determine that ALL robocalls wind up as protected speech, but I suspect the justices are REALLY going to try and put their heads together to at least find a severability argument for this category – and if they do, it will be 9-0 where they hold that the ban in this particular instance is unconstitutional, but not the whole robocall ban. Because no one wants to support robocalls.
McGirt v. Oklahoma – whether federal or states/localities have jurisdictions in eastern Oklahoma, which has LARGE portions as Reservations. There are a lot of issues here if the court finds that the feds have more jurisdiction, and even the left side is questioning some of the implications. 9-0 to 7-2 for Oklahoma, but I wonder if there is some narrow tailoring that will be done here.
Our Lady of Guadalupe School v. Morrissey-Berru – whether or not ministerial exceptions to employment law apply to non-ministers. The case almost comes down to who gets to define minister – the organization or the state. In light of Espinoza, I suspect we may see a 5-4 decision for religious liberty here.
Trump v. Mazars USA, LLP and Trump v. Vance – Trump Tax return cases. What we may see is some sort of 5-4 – or even 6-3 – ruling that narrowly tailors some cases as to the release of Presidential records under subpoena.
Chiafalo v. Washington and Colorado State V Baca – faithless elector cases. Tough one to call, but I wonder if this is not going to come down to a states’ rights perspective. Probably 5-4 with states holding onto the power to determine their electors, probably with some tailoring.
BUT THAT”S NOT ALL. THERE’S MORE
On July 2, the court issued orders, with several things of note:
Merrill V People First of Alabama – froze an order making it easier for Alabamanians/Alabamites/Alabamaranians/Alabamaniacs to vote via absentee. 5-4 conservatives vote to freeze.
Department of Justice v. House Committee on the Judiciary – the court will weigh in on whether or not the Judiciary Committee is allowed to see the redacted portions of the Mueller report submitted by Attorney General William Barr.
Also, 5 cases were added to the docket for the fall. We will look at them when the time comes.