Monday round-up
With the Supreme Court now in summer recess, court watchers and commentators continue to analyze the major decisions the court handed down last week — as well as review the extraordinary 2019-20 term as a whole. At SCOTUSblog, legal experts of various ideological persuasions delve into the two rulings on President Trump’s financial records in our symposium on Trump v. Vance and Trump v. Mazars USA. And in our Final Stat Pack, Adam Feldman breaks down the 2019-20 term using statistical analysis. Among many other revelations, Feldman finds that Chief Justice John Roberts voted with the majority in 97% of cases this term. The last chief justice to sit in the majority at that frequency was Fred Vinson in the 1949-50 term.
In the Wall Street Journal, Jess Bravin and Brent Kendall rely on some of Feldman’s data in a story assessing the “unmistakable imprint” that Roberts left on the term. In the New York Times, Adam Liptak also uses statistics to analyze the term and concludes that Roberts “steered the Supreme Court toward the middle, doling out victories to both left and right in the most consequential term in recent memory.” Other term wrap-up stories by national news organizations — including the Associated Press, CNBC, the Los Angeles Times, NPR, Reuters, USA Today and the Washington Post — likewise focus heavily on Roberts’ role.
The court’s decision in McGirt v. Oklahoma, which held that much of Oklahoma is a Native American reservation for the purposes of criminal-law jurisdiction, continues to generate strong opinions on both sides. In the Atlantic, Julian Brave NoiseCat calls the ruling “a historic win for tribes” and writes that, “in the long Indigenous struggle for justice, McGirt v. Oklahoma might be one of the most important Supreme Court cases of all time.” The Wall Street Journal editorial board takes a different view, arguing that the case “shows how Justice Neil Gorsuch’s textualist jurisprudence is careening in some odd directions.”
Briefly:
- In a New York Times op-ed, Jonathan Adler begins by asking “What is up with Chief Justice John Roberts?” and concludes that, despite a seemingly unpredictable voting pattern, the chief’s hallmark is an “anti-disruption jurisprudence” that “has become more pronounced the longer he has been on the court.”
- At Jost on Justice, Kenneth Jost adds to the Roberts-centric commentary with a discussion of the chief’s approach in Vance and Mazars. “Roberts,” Jost writes, “made the mistake of observing Marquess of Queensberry rules in a knife fight with a notorious thug, Donald Trump, who has played dirty ever since he came of age in the anarchic jungles of New York real estate.”
- Additional commentary on the Trump financial cases comes from various other experts. At PrawfsBlawg, Howard Wasserman ponders some process-oriented questions raised by Vance and Mazars and discusses potential implications for future cases. At the White Collar Crime Prof Blog, Ellen Podgor distills both decisions into a few key points and concludes that the court has “given an opportunity to the President to comply with what every President has done in the past — provide the materials.” At Subscript Law, Marian Morshedi analyzes the Vance decision and Sean Kealy analyzes the Mazars decision.
- At Stanford Law School’s faculty blog, David Sklansky explains Vance and Mazars in a Q&A with Sharon Driscoll, and Gregory Ablavsky rebuts some of the conventional wisdom about the McGirt decision.
- In its annual Supreme Court Business Briefing, MoloLamken analyzes the court’s rulings this term on topics such as employment discrimination, arbitration, environmental law and the Employee Retirement Income Security Act. The briefing “succinctly explains the impact of those decisions on the litigation landscape and business environment.”
- At Notice & Comment, a blog from the Yale Journal on Regulation, James Phillips pinpoints a key passage from Justice Clarence Thomas’ majority opinion in Little Sisters of the Poor v. Pennsylvania and suggests that it could pave the way for a non-delegation challenge to a provision of the Affordable Care Act that grants broad authority to the Health Resources and Services Administration.
- In the Mississippi Business Journal, Ben Williams critiques the court’s expansion of Title VII in Bostock v. Clayton County. Congress’ failure to amend Title VII, while regrettable, “doesn’t trigger some recondite constitutional provision authorizing the Court to add a codicil,” Williams writes. “Instead, when Congress fails to carry out the will of the people, the concerned citizenry should assemble, speak freely, protest, petition, donate and vote.”
- At Power Line, Paul Mirengoff weighs in on the court’s final decisions of the term, arguing that the result in McGirt was not “required by a proper application of textualism” and that, in Vance and Mazars, the court “upheld the rule of law, but denied Trump’s enemies the political victory they craved.” Mirengoff also considers “why Republican presidents have far less success nominating reliably conservative Supreme Court Justices than their Democratic counterparts have in nominating liberal ones.”
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