SCOTUStoday for Friday, September 26
Today marks five years since President Donald Trump formally nominated Justice Amy Coney Barrett to the Supreme Court. We’re celebrating by telling you about her appearance at the inaugural SCOTUSblog Summit.
Morning Reads
- The Trump administration is pushing courts to make more ‘new law’ (Kyle Cheney, Politico) — Cases on presidential authority and the Trump administration’s policy moves are forcing federal courts to wrestle with difficult questions on the separation of powers, according to Politico. “The results of these cases could empower Trump to assert his will more aggressively than any president in history, but just as significantly, they are guaranteed to leave a legal legacy that will shape the way future presidents can wield the power of their office. And Trump still has three years to poke, prod and stress test the system of government in ways that have thrilled his supporters and stoked existential dread about the unraveling of the republic from his critics.”
- Greenspan, Bernanke and Yellen urge Supreme Court to let Lisa Cook keep her job as a Fed governor (Mark Sherman, Associated Press) — Former top economic officials who served presidents of both parties filed an amicus, or friend-of-the-court, brief with the Supreme Court on Thursday to urge the justices to prevent Trump from firing Federal Reserve Governor Lisa Cook for now, according to the Associated Press. “In their filing, lawyers for the former economic officials wrote that immediately ousting Cook ‘would expose the Federal Reserve to political influences, thereby eroding public confidence in the Fed’s independence and jeopardizing the credibility and efficacy of U.S. monetary policy.'”
- Google just asked the Supreme Court to save it from Epic (Sean Hollister, The Verge) — Google is seeking Supreme Court review of a ruling from the U.S. Court of Appeals for the 9th Circuit that would require the company “to stop forcing app developers to use its Google Play Billing for payments, allow them to link to other ways to pay and other places to download apps, set their own prices, and more,” according to The Verge. Along with a cert petition, Google will also file an emergency application asking the court to pause “the permanent injunction that would start taking away its control.”
- The Supreme Court and Trump’s Firing Power (Wall Street Journal Editorial Board) — The Supreme Court on Monday announced that it will hear arguments in December on whether to overturn Humphrey’s Executor v. United States, which held that the president can only remove FTC commissioners for cause. The justices’ eventual decision in the case “could open a new era of executive governance” and Congress needs to prepare for it, according to the Wall Street Journal’s editorial board. “[I]f independent agencies are a historical error that the Court is ready to correct, the right response for lawmakers in Congress is to reconsider the authorities they’ve granted these bodies—and to ask which of those powers they want to leave on the President’s desk.”
SCOTUS Quick Hits
- In a Thursday filing, lawyers for Federal Reserve Governor Lisa Cook urged the Supreme Court to prevent Trump from removing her.
- Amicus briefs in support of the voters challenging the creation of a second majority-Black congressional district in Louisiana were filed Thursday in Louisiana v. Callais, a case in which the court could strike down a key provision of the Voting Rights Act.
- A response brief to the Trump administration’s emergency application asking the justices to allow Trump to end protected status for hundreds of thousands of Venezuelan citizens living in the United States is due on Monday.
- Also on Monday, the justices will gather for their “long conference” to address cert petitions that piled up during their summer recess. They are expected to grant between five and 15 of these cases.
A Closer Look: SCOTUSblog Summit
Justice Barrett was not the only distinguished speaker at Thursday’s inaugural SCOTUSblog Summit. Top scholars, attorneys, and judges took part in the gathering’s other panels.
The day began with a discussion on the court’s upcoming term moderated by Jodi Kantor of The New York Times and featuring Justin Driver of Yale Law School, Daniel Epps of Washington University School of Law, Daniel Harawa of New York University School of Law, and Carolyn Shapiro of the Chicago-Kent College of Law. The panelists reflected on the broader themes shared between the court’s recent emergency docket decisions and upcoming cases, in particular highlighting race and executive power.
After Barrett’s panel and lunch, David Lat of Original Jurisdiction moderated a panel on commercial litigation featuring Rachel Brand, the CLO of Walmart; Brent McIntosh, the CLO of Citi; and Jennifer Newstead, the CLO of Meta. The panelists described the processes their companies go through when considering appealing a case to the Supreme Court. They said it can be important for the court to get involved when a circuit split is complicating the work of national brands or when technological advancements raise new legal questions.
The final panel of the day offered a view from the lower courts. Steve Inskeep of NPR moderated a discussion between Judge Charles Eskridge of the District Court for the Southern District of Texas, Judge Neomi Rao of the U.S. Court of Appeals for the District of Columbia Circuit, and Judge Gabriel Sanchez of the U.S. Court of Appeals for the 9th Circuit. The three judges reflected on how their work has changed in recent months as cases involving the Trump administration have dominated the headlines and threats of violence against judges have become more common. They spoke about wanting to increase public understanding of the judiciary and the importance of promoting respect for the rule of law.
On Site
From Amy Howe
Lawyers for Federal Reserve Governor Lisa Cook urged the Supreme Court on Thursday afternoon to allow Cook to remain in office while her challenge to President Donald Trump’s attempt to fire her continues. In a 40-page filing, they told the justices that allowing Trump to remove Cook from office now would “dramatically alter the status quo, ignore centuries of history, and transform the Federal Reserve into a body subservient to the President’s will.” For more on the filing, check out Amy’s analysis.
From Kelsey Dallas
Justice Barrett at the SCOTUSblog Summit
Justice Amy Coney Barrett joined Thursday’s inaugural SCOTUSblog Summit, where she was interviewed on stage by Judge Patrick Bumatay of the U.S. Court of Appeals for the 9th Circuit. She discussed her path to the Supreme Court, her view on recusals, and whether she views herself as a swing justice, among other topics. Read Kelsey’s story on the panel to learn more.
Contributor Corner
It’s not every day that a single sentence inspires a SCOTUSblog post. But Jeffrey Kahn and Stephen Wermiel had a lot to say about one line from the court’s recent decision denying South Carolina’s request to prevent a transgender teen from using the boys’ bathroom at school: “The denial of the application is not a ruling on the merits of the legal issues presented in the litigation.”
Nobody needs this instruction. Certainly not the lawyers and court-watchers who peruse these unsigned “miscellaneous orders” on the court’s emergency docket. Everybody involved knows full well that such an order, in a pending case, is not the final word. Not even close, given that no briefing or oral argument has occurred. Tracking the Trump administration’s extraordinarily proliferating requests for such preliminary action, we can recall no sentence exactly like this in any other emergency order. So why say what doesn’t need saying? Who is the audience? And why now?
You can read the full piece here.
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