WASHINGTON ― For the first time in history, millions of Americans will be able to listen live as the U.S. Supreme Court hears oral arguments this week. In a few months, the coronavirus pandemic has brought about what open-government advocates have wanted for decades: more transparency from the highest court in the land.
Starting on Monday at 10 a.m., the Supreme Court justices will listen, separately and remotely, as lawyers argue their cases by phone conference. Audio of these arguments will be livestreamed on C-SPAN.
The court will hear a total of 10 cases on six days, spread out over the course of the next two weeks.
A phone conference is a major break from the typical pomp and circumstance of this traditional institution, which has long resisted making any concessions to 21st-century technology (or, in the case of the telephone, 19th-century technology).
C-SPAN made its first formal request for camera access to the Supreme Court 32 years ago, in 1988. While lower federal appeals courts allowed for camera access, the Supreme Court never budged. In recent years, the court released same-day audio in certain high-profile cases but still resisted livestreaming its proceedings.
This month’s break with centuries-old practice will require some changes. Justices typically can ask questions of the lawyers whenever they want. But remote conferences, as anyone who has ever tried to Zoom with more than a dozen people can attest, need some order. So the justices will ask their questions in order of seniority.
Most of the lawyers will argue from their home or office, while government attorneys will argue from the solicitor general’s conference room at Justice Department headquarters. The court has reportedly urged lawyers to use landlines to avoid connectivity problems.
Transparency advocates who have pushed the justices to give the public greater access to their proceedings say it’s about time the Supreme Court let a little light in, even if it came about in a way they never imagined.
“It’s exciting, albeit overdue, that the Supreme Court give the public real-time access to its hearings ― and not just to the 50 or so members of the public who wait between five hours and five days in line to get in during a normal argument day,” Gabe Roth of the group Fix the Court told HuffPost.
Roth said he’s anticipating the court will run into technical issues and is pleased that a high-profile dispute involving President Donald Trump’s financial records isn’t up until next week. But he said he thinks the public will be “heartened to hear that at least some of their public servants have a serious, intellectually rigorous approach” to their jobs.
“The court will come out looking good, and the public will come out smarter about the third branch,” Roth said. “A win-win.”
Here’s a look at the cases that the Supreme Court will hear remotely in this unprecedented time:
United States Patent and Trademark Office v. Booking.com B.V.
Booking.com is challenging the U.S. Patent and Trademark Office’s decision not to issue the travel website a corporate trademark for its name. The agency rejected the company’s request because its name simply combines a generic word ― in this case, “booking,” as in reserving a hotel room ― with the top-level domain, “.com.” The denial of trademark rights for generic words goes back to an 1888 Supreme Court ruling that allowing generic word trademarks would enable firms to monopolize a market through ownership of the rights to the word describing the goods sold by other firms. The ruling could impact other companies with similar names like Cars.com, Dictionary.com, Wine.com and Newspapers.com.
United States Agency for International Development v. Alliance for Open Society International Inc.
In 2013, the Supreme Court ruled that a requirement that non-governmental organizations receiving federal funds to help fight HIV/AIDS “have a policy explicitly opposing prostitution and sex trafficking” infringed on the First Amendment rights of those organizations. Despite this decision, the federal government continues to insist that foreign affiliates of U.S.-based organizations that receive HIV/AIDS funds maintain a policy against prostitution and sex trafficking. The Alliance for Open Society International brought the lawsuit that led to the 2013 ruling and is challenging the government again here. The government argues that since foreign affiliates are separate entities incorporated in foreign nations, they do not receive protection under the U.S. Constitution. The alliance argues that it and its foreign subsidiaries “share a common mission and speak with a single voice.” Forcing them to take divergent public policy positions would undermine their work and infringe on the U.S. parent organization’s First Amendment rights.
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania
The consolidated cases brought by the Little Sisters of the Poor, an order of Catholic nuns, and the Trump administration seek to uphold new rules greatly expanding religious exemptions from covering birth control and other women’s health care under the Affordable Care Act. This is a follow-up to the 2014 Hobby Lobby case where five conservative justices created a religious liberty exemption for closely held corporations from providing birth control coverage under the ACA.
After the passage of that law, the Obama administration had issued a rule requiring employer-provided health plans to cover birth control at no cost for women. The Supreme Court created a limited religious liberty exemption in Burwell v. Hobby Lobby. Petitioners sought to expand that exemption in the 2016 case of Zubik v. Burwell, but Justice Antonin Scalia’s death left a 4-4 tie.
In 2017, the Trump administration issued new rules expanding the religious liberty exemption by amending the Obama administration regulations. The questions now before the Supreme Court focus on the Trump administration regulations.
Pennsylvania argues that the promulgation of those rules violated the Administrative Procedure Act by not following laws requiring a notice of rulemaking and an open comment period. The order of nuns and the Trump administration want the court to expand on its Hobby Lobby ruling as the Zubik petitioners sought in 2016.
Barr v. American Association of Political Consultants Inc.
An association of political consultants who would like to make robocalls soliciting campaign donations is challenging a 1991 law banning robocalls to cellphones and a 2015 amendment to that law allowing an exception for robocalls to collect debts owed to the federal government. The consultants argue that the law and the government debt collection exception infringe on First Amendment speech rights. If the court rules in favor of the consultants, its decision may come down to whether it must strike the entire law or can merely sever the government debt collection exception.
McGirt v. Oklahoma
This case asks the court to deal with questions stemming from one of the most shameful acts of the U.S. government, the ethnic cleansing of Native American tribes in the 19th century. At issue is whether Jimcy McGirt, a Seminole man convicted of sexual assault under Oklahoma state law, was within the boundaries of the Creek Nation reservation in eastern Oklahoma when he committed his crime. Major crimes, like murder or sexual assault, committed by Native Americans on reservation land are supposed to be prosecuted by the federal government, not the states.
In this case, McGirt’s lawyers argue that the legal boundaries of the Creek reservation should be based on the lines drawn in 1866. The reservation was created several decades after the Creeks’ forcible removal from Southeastern states, along with the four other Civilized Tribes, as part of the ethnic cleansing effort known as the Trail of Tears. That reservation was then eviscerated by the government-backed theft of land by white settlers in the late 19th century before Oklahoma was admitted as a state in 1906.
In prior cases, the court has been deferential to claims of Indian reservation boundaries. What the justices may find problematic in this case is that the 1866 Creek reservation boundaries were vast and would now include the entire city of Tulsa. Recognizing them in McGirt’s case would have sweeping ramifications for numerous major crime cases in Oklahoma.
The court heard a similar case in 2019, Sharp v. Murphy, but never issued a ruling before replacing it with the McGirt case on the spring docket. One potential reason for this switch is that Justice Neil Gorsuch recused himself from Sharp v. Murphy, which may have left a 4-4 tie. He did not recuse himself from the McGirt case.
Our Lady of Guadalupe School v. Morrissey-Berru
St. James School v. Biel
When is an employee of a religious organization considered a minister of that religion under the law? That’s the question before the Supreme Court in these consolidated cases.
In 2015, Agnes Morrissey-Berru was fired from her position as a teacher at Our Lady of Guadalupe School, a Catholic parish school. She filed a claim in court charging age discrimination. In 2014, Kristen Biel, a teacher at St. James School, also a Catholic school, was fired after announcing she had breast cancer. She filed a complaint charging discrimination based on her illness. Biel died in 2019.
The schools argue that the teachers were covered by the “ministerial exception” to employment discrimination laws created by the Supreme Court in 2012, which lets religious organizations decide who can or cannot be ministers. They state that even though Morrissey-Berru and Biel were teachers, their work was essential in promoting the Catholic religion and its values. The Trump administration filed a friend-of-the-court brief backing the two schools.
The most closely watched cases of the Supreme Court’s spring docket are the three brought by President Trump to stop Congress and Manhattan District Attorney Cyrus Vance Jr. from obtaining his personal financial records.
Trump v. Mazars USA, LLP
Trump v. Deutsche Bank
In the consolidated Mazars and Deutsche Bank cases, Trump is challenging the power of the House committees on Oversight and Reform, Financial Services and Intelligence to subpoena his accounting firm, Mazars, and his lenders, Deutsche Bank and Capital One, to obtain his personal financial records. The committees subpoenaed the records both as part of their oversight of the executive branch and the ethics laws governing it and as part of their effort to craft legislation amending those ethics laws.
Trump argues that Congress has no legitimate purpose in pursuing his financial records. In doing so, he makes sweeping claims that would eviscerate Congress’ oversight function and subpoena power. He also argues that the ethics laws that Congress seeks to amend are unconstitutional and therefore any attempt to perform oversight or legislate in that area is preemptively forbidden. Congress disputes Trump’s arguments. The district court and appeals court judges who heard these cases sided with Congress.
On April 27, the Supreme Court asked the parties to submit supplemental briefings by May 8 on whether the court should refuse to hear both cases on the grounds that they are political disputes between branches of the federal government. This would give the justices a chance to effectively punt on the cases. Whether the congressional subpoenas would be honored would then be left up to the companies on the receiving end.
Trump v. Vance
The third case comes out of a grand jury investigation into potential lawbreaking by Trump and the Trump Organization that was launched by DA Vance based on information provided by Trump’s former fixer Michael Cohen. Vance’s grand jury subpoena seeks the financial records and tax returns of the president.
Trump argues that so long as he occupies the Office of the President of the United States, he is immune from criminal investigation and prosecution according to the Constitution. The principle of presidential immunity is based on opinions issued by the Justice Department’s Office of Legal Counsel in 1973 and 2000.
Vance argues that OLC opinions are not binding law and that the alleged crimes he seeks to investigate both predate and do not relate to Trump’s presidency.
A district court dismissed Trump’s challenge to the subpoena. An appeals court ruled that the doctrine of presidential immunity would not cover private actions taken by the president prior to assuming the office.
Chiafalo v. Washington
Colorado Department of State v. Baca
These two cases ― which are being argued separately ― both ask the court to determine whether state laws requiring Electoral College members to cast their votes for the winner of the popular vote for president in their state are unconstitutional. In 2016, seven electors violated state laws by voting for someone other than the popular-vote winner of their states. It was the highest number of “faithless electors” in any presidential election.
The first case was brought by three Washington state electors ― Peter Chiafalo, Levi Guerra and Esther John ― who were fined $1,000 each for casting their Electoral College votes for former Secretary of State Colin Powell. The second case was brought by Colorado elector Michael Baca, who was replaced by the Colorado secretary of state as an elector after he attempted to cast a ballot for then-Ohio Gov. John Kasich.
Baca, Chiafalo, Guerra and John were among the first faithless electors to be penalized for casting an Electoral College vote for someone other than the popular-vote winner. (Washington state elector Robert Satiacum Jr. was also fined for casting his ballot for Native American activist Faith Spotted Eagle, but is not part of the Washington case.) The four who brought the dispute to the Supreme Court were part of the failed “Hamilton electors” effort to deny Trump an Electoral College majority and throw the election to the House of Representatives.
The court is asked to decide whether the state laws mandating that electors vote for their states’ popular-vote winner are unconstitutional under the First, 12th and 14th amendments. Harvard professor Lawrence Lessig, the lawyer for the plaintiffs in both cases, wants the Supreme Court to rule on the constitutionality of faithless electors at a moment when it will not determine the outcome of a presidential election, rather than amid the uproar of a future election decided by one or two faithless votes.
The two cases were initially consolidated before Justice Sonia Sotomayor announced that she would recuse from the Colorado case because of an existing relationship with one of the original plaintiffs.
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