Friday, July 10, 2020
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court News and Opinions:
This week in Supreme Court history: On July 8, 1991, President George H.W. Bush submitted Clarence Thomas's nomination to the Court. Justice Thomas is now the longest-serving member currently on the Court.
The Washington Post [https://www.washingtonpost.com/politics/courts_law/john-roberts-hospitalized-supreme-court/2020/07/07/6bc230ae-c0a0-11ea-b4f6-cb39cd8940fb_story.html] and the New York Times [https://www.nytimes.com/2020/07/07/us/john-roberts-supreme-court-hospitalized.html] reported this week that Chief Justice Roberts was hospitalized
for a night in late June after he fell and hit his head, requiring sutures. Although the Chief has on at least two past occasions suffered seizures, reports are that this incident did not involve a seizure. More from Bloomberg [https://www.bloomberg.com/news/articles/2020-07-08/chief-justice-roberts-hospitalized-after-head-injury-in-june].
This year continues to be historic, as the Supreme Court has gotten into July without all of its opinions for this term yet released. SCOTUSblog had a post [https://www.scotusblog.com/2020/07/scotus-for-law-students-still-deciding-in-july/] this week about other recent times when the Court has taken the unusual step of working into July.
On Monday the Court released two important late-term opinions:
- First, in Chiafalo v. Washington [https://casetext.com/case/chiafalo-v-washington] and Colorado Department of State v. Baca [https://casetext.com/case/colorado-dept-of-state-v-baca], the Court rejected constitutional challenges to state "faithless electors" laws, affirming that states can penalize or remove electoral college electors who fail to vote for the candidate they have pledged to support. The Brennan Center provided a thorough discussion [https://www.brennancenter.org/our-work/analysis-opinion/supreme-court-allows-states-punish-faithless-electoral-college-voters?utm_source=twitter&utm_medium=socialmedia] of the decision and why it is "strongly pro-voter."
- Second, in Barr v. American Association of Political Consultants [https://casetext.com/case/barr-v-american-assn-of-political-consultants-inc], the Court struck an exception for robocalls to collect government-backed debts in the federal ban on robocalls. The Court concluded that the exception violates the First Amendment's free speech clause and invalidated it, but left the robocall ban in place.
On Wednesday the Court released two more important late-term opinions:
- First, in Little Sisters of the Poor v. Pennsylvania [https://www.supremecourt.gov/opinions/19pdf/19-431_5i36.pdf], the Court held that the federal government has the authority to provide exemptions from the Affordable Care Act’s mandated contraceptive coverage requirements for employers who express religious and conscientious decisions. Bloomberg discussed the impact of the opinion here [https://www.bloomberglaw.com/document/XC85MV14000000?bna_news_filter=us-law-week&jcsearch=BNA%2520000001732ec6d229a177bffffa260000#jcite].
- Second, in Our Lady of Guadalupe v. Morrissey-Berru [https://www.supremecourt.gov/opinions/19pdf/19-267_1an2.pdf], the Court held that federal employment discrimination protection is not available to people employed in religious schools who play a minister-like role and teach some religion, even if they do not hold the title of minister. Bloomberg discussed the impact of the opinion here [https://www.bloomberglaw.com/document/X9BNCSCS000000?bna_news_filter=us-law-week&jcsearch=BNA%25200000017204c4d816aff27fce6ab00000#jcite].
On Thursday the Court released the final major opinions for this term:
- First, in Trump v. Mazars [https://www.supremecourt.gov/opinions/19pdf/19-715_febh.pdf], the Court held that congressional subpoenas involving the President are subject to a tougher standard than the lower courts had applied and sent back to the lower courts two cases challenging congressional subpoenas to obtain financial records belonging to President Trump. In Trump v. Vance [https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf], the Court held rejected President Trump’s claim that he is immune from all state grand jury proceedings while he is in office in a case where he challenged a subpoena by a Manhattan district court for financial records; the Court sent that case back to the lower court, while agreeing that the President could still argue in the lower court that complying with the subpoena would interfere with his ability to do his job. Although the cases represent “losses” to President Trump and rejection of the claims that he has advanced to assert that he is not required to comply with such subpoenas, both cases were sent back for additional proceedings and it appears highly likely that the dispute over production of financial records will not be fully resolved anytime soon. More from the New York Times.
- In addition, in McGirt v. Oklahoma, Justice Gorsuch authored an opinion for a 5-4 majority affirming the 19th-century reservation status of the Muscogee (Creek) Nation for purposes of the federal Major Crimes Act. The opinion concludes that for purposes of federal law, a significant portion of land in eastern Oklahoma remains a Native American territory pursuant to a treaty between Congress and the Creek Nation; the opinion concluded that the designation was not overturned when Oklahoma became a state, because there has been no act by Congress to change the designation. More from Bloomberg and the Washington Post .
Federal Appellate Court Opinions and News:
This week, the Ninth Circuit Court of Appeals in East Bay Santuary Covenant v. Trump upheld an injunction blocking President Trump's ban on asylum claims for migrants who have not first sought protection in Mexico or another third country. The Circuit Court's ruling follows a similar ruling from a Washington DC court. The Ninth Circuit ruled that the administration's ban violated immigration laws, was imposed without following proper procedures for public comment, and was arbitrary and capricious.