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We're hosting a symposium on the court's decisions in Trump v. Mazars and Trump v. Vance. Click to follow along with the submissions.

A Supreme Court term unlike any other has finally come to an end. In March, some observers thought the term would end early after the court shut its doors and postponed oral arguments — the first time since the 1919 Spanish Flu outbreak that the court closed due to a pandemic. Instead, the term lasted longer than usual, extending well into July for the first time in decades. And in May, the court heard remote arguments over the telephone with a public live audio feed for the first time ever. Those 10 arguments in May were the first time since 1997 that the court heard May arguments — and they represent the largest number of May arguments the court has heard since 1961. Continue reading »

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Toby J. Heytens is solicitor general and Martine Cicconi is deputy solicitor general of the Commonwealth of Virginia, which filed an amicus brief on behalf of 15 states and the District of Columbia in support of the respondent in Trump v. Vance.

Writing for the Supreme Court in Trump v. Vance, Chief Justice John Roberts began with a history lesson. “In the summer of 1807,” he narrated, “all eyes were on Richmond, Virginia,” where “Aaron Burr, the former Vice President, was on trial for treason.” What followed was a courtroom clash notable for its salacious plot of duels, spies and intrigue as much as for its cast of luminary characters: Burr, represented by Edmund Randolph and Luther Martin, both delegates to the Constitutional Convention; President Thomas Jefferson, “orchestrat[ing] the prosecution from afar”; and Chief Justice John Marshall, presiding as circuit justice for Virginia.

The relevance of the Burr trial for Roberts was not its historical color or even the unmistakable message that political scandals are not an innovation of the modern era. It was the result of a peripheral clash between Burr and Jefferson over a subpoena for presidential records. Rejecting the prosecution’s argument that the president’s papers could not be subpoenaed by the defendant, Marshall explained that the president does not “stand exempt from the general provisions of the constitution.” Unlike a king who “is born to power” and can “do no wrong,” the president is “of the people” and “subject to the law.” Continue reading »

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, and the co-author of “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.”

Two centuries after his death, Chief Justice John Marshall still presides over the Supreme Court. His larger-than-life statue greets visitors. During investiture ceremonies, new members sit in his chair. And the justices cite him whenever possible. This term was no exception: Marshall authorized the Manhattan district attorney to subpoena President Donald Trump’s financial records. Or so Trump v. Vance would suggest. Chief Justice John Roberts’ majority opinion referred over and over again to Marshall’s seminal rulings from Aaron Burr’s treason trials. In United States v. Burr (1807), we learn, Burr, Marshall and President Thomas Jefferson scrimmaged over the production of documents: Marshall issued a ruling, Jefferson acquiesced and Burr got what he wanted.

Alas, Roberts recounted a sanitized version of this seminal dispute. The history, which I discuss in a new essay, is far more complicated. Jefferson repeatedly ignored Marshall’s decisions. Instead, he voluntarily provided redacted copies of the documents. Burr demanded Marshall take further action, but the chief justice did nothing. None of this history proves that Vance was wrongly decided. Rather, Vance followed an all-too-common practice on the court: cramming novel, expansive constitutional theories into Marshall’s capacious rhetoric. This symposium post will carefully parse what Marshall and Jefferson actually said and did during the Burr episode. My research should cast some doubt on the court’s unyielding obeisance to the great chief justice and his one-sided accounts of constitutional law. Continue reading »

Jamila Benkato and Ben Berwick are counsels, and Justin Florence is legal director, at Protect Democracy. They filed an amicus brief on behalf of former Republican members of Congress, former executive branch members under Republican administrations, and legal experts in support of the respondent in Trump v. Vance.

There has been much focus in the immediate commentary on whether the decisions in Trump v. Vance and Trump v. Mazars are a “win” or “loss” for President Donald Trump. Experts are already gaming out when various documents might be turned over on remand, who might get to see them, and what the decisions mean about a possible criminal indictment sometime during Trump’s presidency. But the decisions should also be assessed in the context of Trump’s overarching approach to his office. And taking that view, Thursday’s rulings mark a full repudiation of Trump’s monarchic view of the presidency.

The fundamental principle underlying our Constitution is that elected representatives hold office to serve the public. This applies particularly to the president, as reflected in Article II’s take care clause and oath of office, which insist on the president’s duty to uphold the law in good faith. (Justice Elena Kagan’s opinion in Seila Law v. Consumer Financial Protection Bureau last week built out this point, drawing on recent historical scholarship). Continue reading »

Peter Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University Moritz College of Law.

The 2016 victory of Donald Trump after his malignant campaign posed a question for lawyers, judges and government officials that has never really gone away: To what extent should the law treat now-President Trump as a normal president? Both constitutional and administrative law are shot through with doctrines in which challengers to executive branch action are met with “deference” to the president, “presumptions of regularity” and other judicial mood-setting devices that tip the scales in favor of the chief executive. The dilemma is whether Trump should receive the benefit of such doctrines without any post-inauguration pivot toward less mendacity and ridicule, more ethical sensitivity, or apparent respect for norms of democratic governance.

In one of the final decisions of the Supreme Court’s October 2017 term, Trump v. Hawaii, the Roberts court’s five-conservative majority decided in favor of normalcy in upholding Trump’s revised travel ban proclamation. While acknowledging the bigotry of Trump’s statements indirectly, the majority insisted that, “in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility,” the court was bound to “consider not only the statements of a particular President, but also the authority of the Presidency itself.” The majority’s approach drew two written dissents, including an impassioned and closely reasoned statement by Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg. The upshot, however, was unambiguous victory, legal and political, for Trump. Continue reading »

Friday round-up

By on Jul 10, 2020 at 7:11 am

The Supreme Court on Thursday issued its final opinions of the 2019-20 term, deciding blockbuster cases on President Donald Trump’s financial documents and the status of Native American land in Oklahoma.

Amy Howe explains the pair of rulings on Trump’s financial records in an analysis for SCOTUSblog that first appeared at Howe on the Court. Adam Liptak of the New York Times writes that the decision in Trump v. Vance — involving a Manhattan grand jury’s access to Trumps’s records — is “a stunning defeat for Mr. Trump and a major statement on the scope and limits of presidential power.” NPR’s Nina Totenberg calls the Vance decision “a clean win for the New York district attorney” that “will likely guarantee access to a broad range of documents that had been subpoenaed from Trump’s accountants and from banks that have loaned the Trump business empire billions of dollars.” David Savage of the Los Angeles Times, however, notes that “because the grand jury operates in secret, it is unlikely the general public will see Trump’s financial records before the November election, if ever.” In the Wall Street Journal, Brent Kendall and Jess Bravin write that the court’s ruling in the companion case of Trump v. Mazars USA — which involved congressional subpoenas — is a “mixed decision.” Steven Mazie of the Economist says Chief Justice John Roberts employed a “pox-on-both-your-houses analysis” before kicking the Mazars subpoenas back to the lower courts. Continue reading »

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The first thing we learned this morning with the announcement of the decision in McGirt v. Oklahoma was that Chief Justice John Roberts didn’t manage to be in the majority in every single 5-4 decision this term. Today, Justice Neil Gorsuch wrote for a majority of five (joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), with Roberts writing for the four dissenters and Justice Clarence Thomas appending a brief solo dissent to assert that the court lacked jurisdiction to hear this case at all.

The court held today that land in northeastern Oklahoma reserved for the Creek Nation since the 19th century remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to try certain major crimes committed by “[a]ny Indian” in “the Indian country.” The court’s holding means that state courts in Oklahoma had no jurisdiction to convict petitioner Jimcy McGirt, who is an enrolled member of the Seminole Nation of Oklahoma, of three serious sexual offenses that took place on the reservation. Continue reading »

Hail and farewell

By on Jul 9, 2020 at 5:00 pm

This is a very important day for SCOTUSblog, less because it is the last day of the term and more because it is the last day for our outgoing editor, Edith Roberts.

Edith’s retirement is a huge loss; we will miss her terribly. For four years, she has been an extraordinary editor. That job involves not just the technical review of every single piece we publish but also the organization and management of the publication schedule and thousands of critical details related to the blog’s operation.

Edith replaced Amy Howe, who transitioned to serving as the blog’s reporter when the great Lyle Denniston retired. Together, they have been a fantastic team, responsible for the majority of the blog’s content. Continue reading »

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This afternoon the Supreme Court issued a final set of orders – often called the “clean-up” orders – before its summer recess. The justices sent several cases back to the lower courts for another look in light of the court’s recent decisions holding that, for purposes of the federal Major Crimes Act, much of eastern Oklahoma remains a Native American reservation and that the Trump administration did not violate the Affordable Care Act or the notice provisions of federal laws governing administrative agencies when it expanded the exemptions from the birth-control mandate created under the ACA. The justices also added six new cases to their docket, for a total of four hours of additional argument time when the new term begins in the fall. Continue reading »

Ilya Somin is a law professor at George Mason University, and author of “Free to Move: Foot Voting, Migration, and Political Freedom.” Some parts of this post have been adapted from a previous piece on the Volokh Conspiracy blog, hosted by Reason.

Today’s Supreme Court decision in Trump v. Mazars establishes a vague and unwieldy four-part test for determining when congressional committees can subpoena documents from the president. The court understandably and rightly rejected both the president’s extreme view that such subpoenas are almost never enforceable and the House of Representatives’ position that the subpoena power is virtually unlimited. To avoid these extremes, the court created a complex four-part balancing test. But it would have done better to adopt a much clearer and simpler rule: that Congress can only subpoena information related to issues over which it has legislative authority. In that event, the Supreme Court’s own decisions limiting the scope of congressional power would also limit the scope of Congress’ power to subpoena information. Continue reading »

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