Chemerinsky: It's going to be an unusual May in the Supreme Court
Erwin Chemerinsky. Photo by Jim Block.
For the first time in recent memory, the Supreme Court will be holding oral arguments in May, and for the first time ever, they will be by telephone. Because of the COVID-19 pandemic, oral arguments were canceled in the Supreme Court in March and April.
There is precedent for this: During the Spanish flu epidemic in October 1918 the court canceled arguments for a month, and before that, shortened argument calendars for yellow fever outbreaks in 1793 and 1798.
Interestingly, the court did not reschedule oral arguments for May for all of the cases that were scheduled to be heard in March or April. About half of the cases were held over for argument next term. These include Google v. Oracle America, a very important intellectual property case concerning whether copyright protection extends to a software interface and whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
Also moved to next October are two significant cases concerning personal jurisdiction—Ford Motor Co. v. Bandemer and Ford Motor Co. v. Montana Eighth Judicial District Court—which concern the ability to sue Ford Motor Co. in a state where its car caused an injury even though the car was purchased in another state.
Of the 20 oral arguments that had been scheduled to be heard in March and April, 10 have been rescheduled for the weeks of May 4 and May 11.
Some of the most important matters include whether President Donald Trump and those with whom he does business are immune from subpoenas; issues of religious freedom; whether a state can prosecute an enrolled member of a Native American Tribe for crimes committed within the historical tribal boundaries that are subject to exclusive federal jurisdiction; and whether a state can demand how an elector in the Electoral College votes.
Presidential immunity from subpoenas
The most high-profile cases will be argued on May 12 and concern the scope of presidential immunity from subpoenas. The issue in Trump v. Vance is a state court grand jury subpoena for eight years of Trump’s business and personal records in connection with an investigation of hush money that was paid during the 2016 campaign to Stormy Daniels and Karen McDougal.
Trump sued in federal court to keep his accounting firm, Mazars USA, from turning over the financial records. The federal district court ruled against him and the United States Court of Appeals for the Second Circuit affirmed.
The other two cases have been consolidated for oral argument and involve the ability of congressional committees to subpoena records from financial institutions who handled the President’s personal finances. Trump v. Mazars USA, involves a subpoena by the House Oversight and Reform Committee, which is investigating the hush money payments, Trump’s financial involvement with Russian companies, and the accuracy of financial statements he made to obtain loans and reduce taxes.
The subpoena was directed at a firm that did accounting for Trump. The federal district court ruled against Trump and the United States Court of Appeals for the District of Columbia Circuit affirmed. The appellate court concluded that the “subpoena issued by the committee to Mazars is valid and enforceable.”
Trump v. Deutsche Bank AG involves subpoenas from the House Financial Services and Intelligence Committees that were directed at two financial institutions that did business with Trump, Deutsche Bank and Capital One. Once more, Trump went to court to block the subpoenas, but lost in both the district court and the Second Circuit.
Ultimately, President Trump is claiming that he, and all with whom he does business, are immune from all subpoenas. The case involves important issues of presidential accountability, as well as the scope of investigatory power by state grand juries and congressional committees.
It is interesting that the high court chose two matters concerning religious freedom to hear in May even though unlike some of the other matters there is no apparent urgency for resolving the issues presented.
Two of the cases, which have been consolidated for oral argument—Our Lady of Guadalupe School v. Morrissey Beru and St. James School v. Biel—involve the extent to which religious institutions are immune from employment discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the Supreme Court held that a religious school could not be held liable under employment discrimination laws for the choices it makes as to its ministers, including when it ordains its elementary school teachers as ministers.
But what if the teachers are not ministers, but the religious school claims that the teachers carry out important religious functions? The issue before the court is whether the First Amendment’s religion clauses provide an exemption from employment discrimination in this circumstance as well.
Also consolidated for oral argument are two cases that involve the contraceptive mandate, which requires that employer provided health insurance include contraceptive coverage for women, under the Women’s Health Amendment to the Patient Protection and Affordable Care Act. In Burwell v. Hobby Lobby (2014), the Supreme Court held that it violated the Religious Freedom Restoration Act to apply the contraceptive mandate to close corporations whose owners had religious objections to providing contraceptive coverage.
The Trump administration significantly expanded the scope of this exemption for entities affiliated with religions and extended the exemption to organizations with moral objections to contraceptives. In Little Sisters of the Poor Saint Peters and Paul Home v. Pennsylvania and Trump v. Pennsylvania, the court will consider whether the Trump administration followed proper procedures and whether these regulations are in accord with federal law.
State court jurisdiction over historically tribal lands
Last year, in Carpenter v. Murphy, the justices split 4-4 over the question of whether the state, or only the federal government, could prosecute crimes by Native Americans in Oklahoma in areas that were historically tribal land. Justice Neil M. Gorsuch was recused from participating.
The case has enormous implications in terms of whether the state has jurisdiction to prosecute major crimes allegedly committed by Indians in territory covering about half of the state of Oklahoma. The court set the case for argument this term, but everyone wondered how the court would avert another 4-4 split.
The court seems to have solved that problem by granting review in another case, McGirt v. Oklahoma. The issue is whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
Electors in the Electoral College
The court will complete oral arguments on May 13 with two cases that pose the question of whether a state can mandate how its electors will vote in the Electoral College. The issue in Chiafalo v. Washington is whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs violates the First Amendment.
In Colorado Department of State v. Baca, the question is whether Article II or the 12th Amendment forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral-college ballots.
Simply put, does an elector who participates in the Electoral College have the constitutional right to decide how to vote, or is this something that can be prescribed by law?
For the first time in history, this May, we can listen to real-time audio of Supreme Court arguments. It will be fascinating to hear how the justices navigate conducting an oral argument by telephone. I wish that the court had used a video platform, like Zoom, which seems so much more conducive to oral arguments.
If the court decides all of the cases argued, there will be 54 decisions on the merits, which will be the smallest number since the Civil War. Yet it is hard to imagine a term with more blockbuster cases. In addition to the ones being argued in May, there already have been arguments this term in cases involving abortion rights, gay and lesbian rights, President Trump’s rescission of DACA, and the Second Amendment.
Usually, the court hands down all of its decisions by the end of June. It seems unlikely the court could do that this year with oral arguments continuing until May 13. I would expect decisions to continue into July and maybe later.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.