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Wednesday round-up

Today the Supreme Court will wrap up its oral arguments for October Term 2019 by hearing another set of high-profile cases that could have implications for the upcoming presidential election: Chiafalo v. Washington and Colorado Department of State v. Baca, which ask whether the Constitution forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral college ballots. Amy Howe previewed the cases for this blog, in a post that first appeared at Howe on the Court. Gabrielle Kanter and Joseph Grosser preview Chiafalo at Cornell Law School’s Legal Information Institute; Cornell’s preview of Baca comes from Kathryn Adamson and Yuexin Angela Zhu.

For USA Today, Richard Wolf reports that “[t]he justices, customarily allergic to politics, appear on track to decide a threshold question that haunts the way presidents and vice presidents are chosen: Must the men and women chosen on Election Day to cast ballots for the winner of their state’s popular vote keep their pledge? Or can they go rogue?” Nina Totenberg reports at NPR that “[t]he question before the Supreme Court on Wednesday is whether the states have the power to remove or fine … so-called faithless electors.” At Education Week’s School Law Blog, Mark Walsh talks to high-school government teacher Micheal Baca, whose “own drama-filled experience as an elector goes before the U.S. Supreme Court [today], along with cases involving other electors in Colorado and Washington state who were removed as electors or punished for not casting their ballots in keeping with the popular vote in their states.” At Quartz, Ephrat Livni calls it “a miracle that any electoral college voter does as told, frankly, and that elections haven’t been more chaotic.” In an op-ed for The Washington Post (subscription required), Bret Chiafalo and others argue that presidential electors “should be allowed the ‘vote’ the Framers of our Constitution gave us, one based on our honor and discretion.”

Ronn Blitzer and Bill Mears report at Fox News that “[t]he Supreme Court waded uneasily Tuesday into politically-charged fights over executive accountability as justices held oral arguments in cases dealing with subpoenas of President Trump’s personal tax and financial records.” Amy Howe analyzes yesterday’s arguments in Trump v. Mazars and Trump v. Vance, which involve the president’s efforts to shield his financial records from subpoenas issued to his accountant and lenders by three congressional committees and a New York grand jury, for this blog, in a post that first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that “[a] majority of the justices appeared skeptical of Mr. Trump’s argument, in response to a subpoena from the Manhattan district attorney, [Cyrus Vance,] that he was absolutely immune from criminal investigation while he remained in office[, b]ut the court seemed more receptive to Mr. Trump’s argument that the three House committees had asked for too much information for reasons unrelated to their legislative responsibilities.” At The Washington Free Beacon, Kevin Daley reports that “Chief Justice John Roberts appeared to hold the deciding vote in the House case and seemed dubious of arguments from both sides[;] The justices seemed less troubled by the Vance subpoena but pressed attorneys about what threshold the DA should clear to obtain Trump’s records.” At Bloomberg, Greg Stohr and David McLaughlin report that “[k]ey justices explored possible middle ground” during the arguments. According to Jess Bravin and Brent Kendall at The Wall Street Journal (subscription required), “[t]he justices expressed concerns reaching beyond the Trump era, asking how their decision might shape presidential, legislative and law-enforcement powers far into the future.” Additional coverage of the argument comes from Ephrat Livni at Quartz, Nina Totenberg at NPR and Robert Barnes and Ann Marimow for The Washington Post.

In an op-ed at the National Catholic Register, Helen Alvare worries that although “the two Catholic schools” in Our Lady of Guadalupe School v. Morrissey-Berru, a case argued on Monday that involves the scope of the “ministerial exception” to federal employment discrimination laws, “merit and will likely obtain a (possibly narrow) victory, the written decision … might not bode well for future cases involving religious institutions’ employees other than religion teachers.” At Slate, Mark Joseph Stern writes that “[b]y the end of Monday’s arguments, it seems likely that the five conservatives will expand the ministerial exception, possibly to anyone labeled a ‘minister’ by their boss”; “[t]he liberals, meanwhile, seemed to regret unleashing this doctrine in 2012 with no power to rein it in.” At Reason’s Volokh Conspiracy blog, James Phillips suggests that “the back-and-forth between the Justices and the attorneys exposed three interconnected fallacies that appears to be driving much of the conversation in the cases.”

Ronald Mann analyzes Monday’s argument in McGirt v. Oklahoma, which asks whether Oklahoma had jurisdiction to prosecute crimes committed by an Indian within the historical boundaries of the Creek reservation in eastern Oklahoma, for this blog. For The Oklahoman (via How Appealing), Chris Casteel reports that the justices “looked for clear answers — and maybe even a compromise — on whether Congress officially terminated the Muscogee (Creek) Nation’s reservation at Oklahoma statehood.” At The New Republic, Nick Martin maintains that “the public nature of the questioning … expose[d] how unfamiliar the majority of the justices are with Indian law and basic history.” 


  • For The Detroit News, Melissa Nann Burke reports that “[t]he Michigan woman at the center of a high-profile transgender rights case pending before the U.S. Supreme Court has died, her family said.”
  • In an op-ed for The Washington Times, Jeanne Mancini weighs in on USAID v. Alliance for Open Society, a First Amendment challenge to the enforcement against overseas groups of a requirement that recipients of federal funds to fight HIV/AIDS abroad have a policy opposing prostitution and sex trafficking, arguing that a ruling “that First Amendment free speech rights do extend to overseas NGOs” “would result in making it impossible to deny pro-abortion NGOs foreign assistance without violating their free speech ‘rights.’”
  • Charles Lane, in an op-ed for The Washington Post (subscription required), writes that “[p]ublic confidence in the Supreme Court hinges on judicial nonpartisanship, actual and perceived,” giving us “a reason to applaud the opinions Justices Ruth Bader Ginsburg and Elena Kagan, liberal Democratic appointees both, wrote for the court last week,” which delivered “rulings uncongenial to what many Democrats and progressives might have preferred.”
  • At Vox, Ian Millhiser observes that in a concurrence last week in United States v. Sineneng-Smith, “Justice Clarence Thomas suggested that a major First Amendment doctrine should be abandoned, and that the right to free speech be significantly shrunk in the process.”
  • At The Atlantic, Garrett Epps asks Lyle Denniston, a storied Supreme Court reporter, why Denniston “despises” the Supreme Court’s new telephonic-argument format.
  • At Quartz, Ephrat Livni offers almost 13 ways of looking at Justice Ruth Bader Ginsburg, illustrated by court artist Art Lien.

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (May. 13, 2020, 6:46 AM),