Monday round-up

This morning the justices will begin the last week of oral arguments for October Term 2019 with telephonic arguments in two cases. The first is McGirt v. Oklahoma, which asks whether Oklahoma had jurisdiction to prosecute a crime committed by a member of the Seminole Tribe within the historical boundaries of the Creek Indian reservation in eastern Oklahoma. Ronald Mann previewed the case for this blog. Philip Duggan and Robert Reese Oñate have a preview at Cornell Law School’s Legal Information Institute. At Bloomberg Law, Jordan Rubin reports that Justice Neil Gorsuch, “who has sided with tribal interests in a string of decisions since joining the court, likely holds the deciding vote in a criminal case with roots in the infamous Trail of Tears of the 1830s, one with vast implications for criminal, tax, and regulatory power.”

The other case on today’s agenda is Our Lady of Guadalupe School v. Morrissey-Berru, which involves the scope of the “ministerial exception” to federal employment discrimination laws. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Kathryn Adamson, Jingyi Alice Yao and David Relihan provice Cornell’s preview. David Savage reports for the Los Angeles Times that “[a]t issue is whether those teachers and other employees at religious institutions should be viewed as ‘ministers,’ allowing religious schools to hire and fire them at will, bypassing anti-discrimination laws that prevent basing such decisions on race, gender, age, disability, sexual orientation or other impermissible factors.” At Education Week’s School Law Blog, Mark Walsh reports that “[a]dvocates and allies for two Roman Catholic schools in the Los Angeles area say it is a matter of religious freedom that such laws not interfere with the right of churches and religious schools to choose their ministers, which includes not just those who preach from the pulpit but also those who teach the faith.” In a video posted on his eponymous blog, Ross Runkel predicts “a clear-cut victory for the schools.”

Richard Wolf reports for USA Today that “President Donald Trump’s effort to keep his personal and corporate financial records away from congressional and law enforcement investigators comes before the Supreme Court Tuesday amid indications some justices may be reluctant to weigh in.” At Bloomberg, Greg Stohr reports that Trump v. Mazars and Trump v. Vance “could become the biggest cases involving Donald Trump as president, a pair of constitutional clashes that could insulate chief executives from investigations while in office and add an explosive new element to the 2020 election campaign.”

Court-watchers continue to react to last week’s unusual telephonic arguments. For The Wall Street Journal (subscription required), Brent Kendall and Jess Bravin report that Justice Clarence Thomas’ “emergence during the court’s telephonic hearings served notice that he remains an active, if idiosyncratic, participant in the court’s deliberations.” Joan Biskupic writes at CNN that “the public attention to [Thomas’] baritone-voice presence comes as the 71-year-old justice has been — more significantly — building influence for his brand of conservatism.” In an op-ed at The Hill, Ryan Black and others write that the results of their recent survey “suggest the court made the right move in deciding to provide a livestream teleconference of its oral argument proceedings.” Commentary on the new format comes from Ian Millhiser at Slate, who worries that glitches like last week’s notorious flushing sound will discourage the court from “retain[ing] livestreamed audio when the justices finally return to the courtroom.” At PrawfsBlawg, Gerard Magliocca offers a historical analogue for the flushing episode. At Slate, Ashley Feinberg traces the sound to its likeliest source.

A Reuters investigative report by Andrew Chung, Lawrence Hurley and others present research suggesting that “the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police”; Hurley and Chung report here that “[t]he diverse opponents of qualified immunity have thrown their weight behind at least five appeals now awaiting the Supreme Court’s attention, each considered a potential means of removing or softening the doctrine.” At PrawfsBlawg, Howard Wasserman notes that “Justice Thomas called for reconsidering qualified immunity in his concurring opinion in Ziglar v. Abbasi; this will be a chance to see if anyone else wants to follow him down that path.”

Briefly:

• In an episode of Slate’s Amicus podcast (via How Appealing), Dahlia Lithwick “is joined by veteran Supreme Court watcher Linda Greenhouse to unpack the new format for Supreme Court arguments, a teleconference carried live on C-SPAN, with a close look at the birth control case you might have missed.”
• In an op-ed for The Washington Post, Leah Litman writes that Kelly v. United States, in which the court reversed federal fraud convictions stemming from the “Bridgegate” controversy in New Jersey because the scheme did not aim to obtain money or property, shows that “by accepting the inevitability of corruption in politics — including at the scale of Bridgegate — we have shielded officials from accountability and made public corruption inevitable.”

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