On Wednesday, Dec. 3, the Supreme Court heard argument in Olivier v. City of Brandon, Mississippi, and considered the tension between the broad language and potentially narrower purpose of a ruling from three decades ago on whether an individual convicted of violating a law can later challenge the law as unconstitutional and seek to protect him or herself from its future enforcement.

The Supreme Court’s relist rolls served up the term’s first two summary reversals last week. As we have observed, the more times a case has been relisted, the likelier it is to be resolved by some kind of summary order. We saw that in five-time relist Pitts v. Mississippi, where the court unanimously reversed a Mississippi Supreme Court decision upholding the child-abuse conviction of Jeffery Pitts. The court held that a state statute authorizing a child witness to be shielded by a screen (so that the child cannot see the defendant) does not by itself satisfy the Sixth Amendment right of face-to-face confrontation: Before allowing such screening, the trial court must make a “case-specific” finding that screening is necessary to protect the child from trauma.

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Rarely has a solo dissent in a Supreme Court case eventually triumphed, but that is likely to happen as a majority of the justices appear poised to accept the “unitary executive theory” of presidential power. This is the view that the president has authority over the entire executive branch of government, including the ability to fire heads of agencies and any such government employees. 

But it should be remembered that when the court considered the unitary executive theory in the 1988 case of Morrison v. Olson, the justices, by a vote of 7-1, emphatically rejected it. Only Justice Antonin Scalia dissented and embraced it. His view is now likely that of the six conservative justices on the Supreme Court and may be adopted when the court considers two cases this term concerning presidential removal power: Trump v. Slaughter and Trump v. Cook.

On Monday, Dec. 8, the Supreme Court will hear oral arguments in Trump v. Slaughter, a battle that has been brewing, on one hand, since soon after President Donald Trump took office in January and, on the other hand, for years. At the center of the battle are laws that limit the president’s ability to fire the heads of independent, multi-member federal agencies like the Federal Trade Commission. The president and his supporters are proponents of a doctrine known as the “unitary executive” theory – the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one at the center of this case – that restrict his ability to do so violate the constitutional separation of powers between the three branches of government. 

The Supreme Court on Tuesday was sympathetic to a group of faith-based pregnancy centers in their quest to challenge New Jersey’s demand for information about the group’s fundraising practices in federal court. The state contends that the group, First Choice Women’s Resource Centers, must litigate its claims in state court, but after Tuesday morning’s oral argument, a majority of the justices appeared ready to side with First Choice in its bid to litigate its First Amendment claim in federal court.

The oral argument was the latest skirmish in the two-year-old legal battle that began when New Jersey’s attorney general, Matthew Platkin, issued subpoenas to First Choice seeking (among other things) information about the group’s donors. Platkin and his office said they were investigating whether First Choice may have misled women about whether it provides certain reproductive-health services, such as abortions.