Annual Supreme Court Term in Review June 26, 2020 Annual Supreme Court Term in Review June 26, 2020 Our Panel
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Annual Supreme Court Term in Review June 26, 2020 Annual Supreme Court Term in Review June 26, 2020 Our Panel Ian Heath Gershengorn Lindsay C. Harrison Former Acting Solicitor General Partner Chair of the Appellate and Supreme Washington, DC | 202 639-6865 Court Practice Washington, DC | 202 639-6869 Jessica Ring Amunson Matthew S. Hellman Partner, Co-Chair of the Appellate and Partner, Co-Chair of the Appellate and Supreme Court Practice Supreme Court Practice Washington, DC | 202 639-6023 Washington, DC | 202 639-6861 Ishan K. Bhabha Adam G. Unikowsky Partner Partner Washington, DC | 202 637-6327 Washington, DC | 202 639-6041 Our Appellate and Supreme Court Practice . 20 oral arguments in the past five US Supreme Court Terms . Argued three cases this Term (including one telephonically) . Routinely appear in Federal and State appellate and trial courts and provide counseling on commercial and regulatory issues . More than a dozen members of the firm have argued before the US Supreme Court 4 Court During the Pandemic Pandemic . “In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session. The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.” Polling Question #1 . Do you think the Supreme Court should allow cameras in the courtroom? 1) Yes 2) No Polling Question #2 . Did you listen to any of the Supreme Court’s telephonic arguments? 1) Yes 2) No Polling Question #3 . Do you think Justice Thomas will retire at the end of this Term? 1) Yes 2) No Pandemic Decisions . Republican National Committee v. Democratic National Committee . Ballots must be received by election officials by Monday April 13. Question presented is whether absentee ballots must be mailed and postmarked by election day, Tuesday, April 7, as state law would ordinarily require, or whether instead they may be mailed and postmarked after election day, so long as they are received by Monday, April 13, as the district court ordered to accommodate the coronavirus . Court holds 5-4 that district court order was unlawful Polling Question #4 . Do you think the Court will have to decide a case arising out of the presidential election this fall? 1) Yes 2) No Pandemic Decisions . South Bay United Pentecostal Church v. Newsom . California shutdown order that limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower . Court holds 5-4 order is constitutional Backdrop to the 2019 Term Justice Kennedy Retires – What’s at Stake? . Past four terms, Justice Kennedy joined Justices Ginsberg, Breyer, Sotomayor, and Kagan in 14 cases . Not business cases . Social issues . Abortion (Whole Women’s Health) . Affirmative Action (Fisher) . Racial Discrimination (Inclusive Communities, Peña-Rodriguez) . Capital Cases (Moore, Williams, McWilliams, Brumfield) . Same-sex Marriage (Obergefell) . Voting (Arizona Legislatures, Alabama Black Caucus) 14 An Independent Supreme Court . Confirmation votes have become increasingly partisan: – Justice Scalia: 98-0 – Chief Justice Roberts: 78-22 – Justice Kennedy: 97-0 – Justice Alito: 58-42 – Justice Souter: 90-9 – Justice Sotomayor: 68-31 – Justice Thomas: 52-48 – Justice Kagan: 63-37 – Justice Ginsburg: 96-3 – Justice Gorsuch: 54-45 – Justice Breyer: 87-9 – Justice Kavanaugh: 50-48 “My hope is that one fine day, Congress will return to the bipartisan spirit that prevailed for my nomination.” – Justice Ginsburg 15 An Independent Supreme Court Core to the Court and the Justices’ identity is the belief that they are non-partisan and independent of the President or party that appointed and confirmed them “It’s my job to call balls and strikes and not to pitch or bat.” – Chief Justice Roberts “There’s no such thing as a Republican judge or a Democratic judge. We just have judges.” – Justice Gorsuch 16 An Independent Supreme Court . “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,….revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups” . Senate Testimony (9-26-2018) . “A good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy….Judges make decisions because the law and the Constitution compel the result….I do not decide cases based on personal or policy preferences” . Wall Street Journal Op-Ed (10-4-2018) 17 An Independent Supreme Court “It’s been extremely important for the court that in the last 40 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center, where people couldn’t predict in that sort of way. That’s enabled the Court to look as though it was not owned by one side or another and so it was indeed impartial and neutral and fair. And it’s not so clear that I think going forward that sort of middle position — it's not so clear whether we’ll have it.” – Justice Kagan “All of us need to realize how precious the Court’s legitimacy is. It's an incredibly important thing for the Court to guard this reputation of being impartial.” – Justice Kagan 18 An Independent Supreme Court “This was an Obama judge and I'll tell you what, it's not going to happen like this anymore.” – President Trump “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” – Chief Justice Roberts “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country…” – President Trump 19 An Independent Supreme Court . Things are getting more heated, rather than less “[In the last 13 years,] this Court issued 78 5-4 (or 5-3) opinions in which justices appointed by Republican presidents provided all five votes in the majority. In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party. And in each of these 73 cases, those partisan interests prevailed.” “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics. Particularly on the urgent issue of gun control, a nation desperately needs it to heal.” – Brief of Sen. Sheldon Whitehouse (Democrat) in Supreme Court 20 An Independent Supreme Court . Things are getting more heated, rather than less “Judicial independence is under assault. Democrats in Congress, and on the presidential campaign trail, have peddled plans to pack this Court with more justices in order to further their radical legislative agenda…These plans are a direct, immediate threat to the independence of the judiciary and the rights of all Americans.” “For our part, we promise this: While we remain Members of this body, the Democrats’ threat to restructure the Court is an empty one. We share Justice Ginsburg’s view that “nine seems to be a good number.” And it will remain that way as long as we are here.” – Letter of Senator Mitch McConnell (Republican) in Response 21 An Independent Supreme Court . Court dismisses New York Gun case as moot . Justice Alito, dissenting (along with Justices Thomas and Gorsuch) . Five United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is “motivated mainly by politics, rather than by adherence to the law,” and the Court would face the possibility of legislative reprisal. “…motivated mainly by politics, rather than by adherence to the law,” – Justice Alito, dissenting (along with Justices Thomas and Gorsuch) 22 An Independent Supreme Court . The Court has been all too quick to grant the Government’s “reflexiv[e]” requests. Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions…to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances…I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect. (Justice Sotomayor) “Sotomayor accuses GOP appointed Justices of being biased in favor of Trump. This is a terrible thing to say. Trying to ‘shame’ some into voting her way? She never criticized Justice Ginsberg when she called me a ‘faker’. Both should recuse themselves on all Trump, or Trump related, matters!” – President Trump 23 The Post-Kennedy Court – Year 1 . 21 5-4 decisions (30% of the docket) . Only 7 were the “traditional” 5-4 . 10 involved the “more liberal bloc” plus one more conservative Justice . Justice Gorsuch – 4 cases . Chief Justice Roberts – 3 cases . Justices Thomas/Alito/Kavanaugh – 1 case each 24 The Post-Kennedy Court – Year 1 . Major decisions . “Liberal” wins . Census . Apple . Separation of Powers . Death Penalty . Ad Law .