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Tuesday round-up

Yesterday the Supreme Court released decisions in three cases, including one of the highest-profile cases of the term. In June Medical Services v. Russo, the court, by a vote of 5-4, struck down a Louisiana law requiring physicians who perform abortions to have admitting privileges at a local hospital. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. Mariam Marshedi provides an analysis at Subscript Law. Ronn Blitzer and others report at Fox News that “[t]he opinion, written by Justice Stephen Breyer, noted that the Louisiana law is ‘almost word-for-word identical’ to a Texas law the court ruled was unconstitutional in 2016’s Whole Woman’s Health v. Hellerstedt.” For the Los Angeles Times (subscription required), David Savage reports that “[i]t came as no surprise that the four liberal justices opposed the law since they struck down a similar Texas law four years ago[, b]ut the chief justice, a conservative who has consistently opposed abortion rights in the past and had voted to uphold the Texas law, cast the fifth vote with them, citing precedent as his reason.” At CNN, Caroline Kelly and Ariane de Vogue report that in his concurring opinion, “the chief justice left open the possibility that other states might be able to pursue similar restrictions.” Nina Totenberg and Brian Naylor report at NPR that “Roberts’ opinion is likely to stall attempts at overruling the Supreme Court’s landmark 1973 abortion decision, Roe v. Wade, and subsequent rulings that have reaffirmed that decision.”

Joan Biskupic writes at CNN that “[a]lthough he did not join the four liberals’ legal reasoning, likely stirring more anti-abortion litigation in the states, Roberts’ move marked the first time he had ever voted to strike down an abortion regulation.” Jess Bravin reports for The Wall Street Journal (subscription required) that “[t]he decision marked the third time this month Chief Justice Roberts has frustrated conservatives who expected him to fall in line with the court’s right wing.” At Reuters, Lawrence Hurley and Jan Wolfe report that “Roberts, a traditional conservative protective of the Supreme Court as an institution, is the justice closest to being a swing vote following the 2018 retirement of fellow conservative Anthony Kennedy.” Robert Barnes reports for The Washington Post (subscription required) that “[e]very Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows.”

The editorial board of The New York Times cautions that Roberts “appears to have decided that the circumstances of this case were not ideal for crippling reproductive rights — but he left the door open to doing so in the future.” At the Reproductive Rights Prof Blog, Cynthia Soohoo explains that Roberts’ “vote preserves abortion access in Louisiana and the undue burden standard, but it does so in a manner that casts substantial doubt on the balancing test the Court adopted just 4 years ago, which may it more difficult to challenge other types of abortion restrictions in the future.” Leah Litman explains at Take Care that “[t]he Chief Justice’s reasoning … makes clear that the victory is not only narrow, but likely pyrrhic as well.” The editorial board of The Wall Street Journal laments that “Russo continues a dismaying string of rulings by the Chief Justice—less due to their result than their reasoning.”  At National Review, Dan McLaughlin writes that “Roberts refused to join Justice Breyer’s opinion, but by joining its outcome he prevented the Court’s conservatives from doing anything to keep the Court from constantly rewriting its own rules.” Additional commentary comes from Ruthann Robson at the Constitutional Law Prof Blog, Michael Bobelian at Forbes, the editorial board of the Houston Chronicle, Margaret Drew at the Human Rights at Home Blog, Michael Dorf at Dorf on Law, and Melissa Murray in an op-ed for The Washington Post.

In Seila Law v. Consumer Financial Protection Bureau, the court ruled 5-4 that the structure of the CFPB, which is run by a single director who can only be removed for cause, is unconstitutional, but left in place the rest of the statute creating the agency. This blog’s argument analysis, which was first published at Howe on the Court, comes from Amy Howe. Michael Hollingsworth has an analysis at Subscript Law. At NPR, Nina Totenberg and Brian Naylor report that although “[t]he decision was a victory for President Trump and for forces in the business community that have long sought to trim the sails of independent regulatory agencies,” “the court did not go as far as the challengers had wanted, limiting the decision to the single-director structure of the CFPB.” For The New York Times, Adam Liptak and Alan Rappeport report that “[w]hile the narrow decision validates the agency’s existence, it could also open it to greater politicization, effectively turning its director into something akin to a cabinet member who serves at the pleasure of a president.” The editorial board of The Wall Street Journal complains that “[b]y ratifying most of the bureau’s unconstitutional design, the ruling will encourage Congress to create more agencies that violate the separation of powers[:] The majority essentially says the Court will preserve an agency’s structure as long as the law includes a severability provision.” In an op-ed for The Washington Post, Richard Cordray explains why, “[a]t least for the foreseeable future, this ‘losing’ verdict represents a big victory for consumers.”

The third opinion yesterday was in USAID v. Alliance for Open Society, in which the court held 5-3, with Justice Elena Kagan recused, that 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 does not violate the First Amendment. Amy Howe has this blog’s argument analysis, which was first published at Howe on the Court. Additional coverage comes from Tyler Olson at Fox News. At the Constitutional Law Prof Blog, Ruthann Robson worries that “[t]he Court’s opinion could seriously impair overseas work by US aid organizations.”

The justices also released orders from last week’s conference; they did not add any cases to their merits docket for next term, they asked for the views of the solicitor general in two cases and they declined to review a challenge to the federal government’s lethal injection protocol. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Fox News, Tyler Olson reports that “[t]hree executions scheduled days apart, beginning on July 13, would mark the first time the federal government has executed prisoners since 2003[; a] fourth inmate is scheduled to be executed in August.” Laurel Wamsley reports at NPR that “[a]ttorneys for the four inmates have argued that the use of a single drug, rather than the three-drug cocktail required in many states, is a violation of a mandate that federal executions be carried out ‘in the manner prescribed by the law of the State in which the sentence is imposed.'” For The Wall Street Journal, Jess Bravin reports that “[t]he inmates’ attorneys have raised additional legal issues they hope could put off the executions.”

At Bloomberg Law, Ellen Gilmer reports that the court also “won’t review an environmental case that could have had big implications for both the U.S.-Mexico border wall and a major legal doctrine affecting federal agencies.” Also at Bloomberg Law, Gilmer reports on other environmental law cases on yesterday’s order list here and here (subscription required). Heather Cameron notes at CPR Speaks that the court “declined to grant certiorari on a petition requesting clarification of the Federal Arbitration Act’s ‘evident partiality’ standard.”


  • At Reason, Damon Root writes that “[a]s the growing divide among ‘conservative’ judges in criminal justice cases” illustrated in several recent Supreme Court rulings “makes clear, such labels frequently obscure more than they reveal.”
  • In an op-ed for the Chicago Daily Law Bulletin, Daniel Cotter suggests that, despite the chief justices’ votes in some recent cases, “mighty Roberts has not struck out on the conservative movement.”

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Jun. 30, 2020, 6:49 AM),