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We hosted a symposium previewing Monday's argument in Trump v. New York. Click here to read all of the entries.

The Supreme Court, faithless electors, and Trump’s final, futile fight

in Chiafalo v. Washington, Featured, Election litigation on Nov 28, 2020 at 6:13 pm

Much has been written about how there is essentially no chance that the Supreme Court will intervene in any of the existing litigation in a way that will call into question Joe Biden’s victory. Once the court makes clear it is going to stay out, supporters of President Donald Trump (and pro-Trump media and commentary) are likely to turn their attention to one last hope: the Electoral College. But that is no real hope at all.

Start with a brief civics reminder. The Constitution provides that voters for president in this country actually vote for “electors,” who in turn vote for president in the Electoral College. All but two states assign all of the state’s electors to the winner of the state’s popular vote. (The two remaining states, Maine and Nebraska, allocate some of their electoral votes based on the popular-vote winner in each of the states’ congressional districts.) (more…)


Symposium: A not-at-all disguised attempt to shift power away from Latino voters

in Trump v. New York, Featured, Symposium before oral argument in Trump v. New York on Nov 28, 2020 at 1:53 pm

This article is the final entry in a symposium previewing Trump v. New York.

Nina Perales is vice president of litigation for the Mexican American Legal Defense and Educational Fund and counsel in La Union del Pueblo Entero v. Trump, a related case currently pending in the U.S. District Court for the District of Maryland.

President Donald Trump’s July 2020 memorandum, “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census,” followed his unsuccessful attempt to add a citizenship question to the decennial census questionnaire. After the Supreme Court blocked the census citizenship question in June 2019, Trump asked the Census Bureau to create a citizenship dataset using other government records. When it became clear the Census Bureau would not produce that dataset before the end of his first term in office, Trump shifted to a third plan — the apportionment memorandum.

The apportionment memorandum allows Trump to shift political power across the country while he is still in office – by re-allocating U.S. House seats in a process that begins in December 2020. (more…)


Justices lift New York’s COVID-related attendance limits on worship services

in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, Agudath Israel of America v. Cuomo, Featured, Emergency appeals and applications on Nov 26, 2020 at 2:18 am

The Supreme Court late Wednesday night granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block enforcement of a New York executive order restricting attendance at houses of worship. Both the diocese and the synagogues claimed that the executive order violated the right to the free exercise of religion guaranteed by the First Amendment, particularly when secular businesses in the area are allowed to remain open. Wednesday’s orders by a closely divided Supreme Court, which had turned down two similar requests over the summer by churches in California and Nevada, represented a clear rightward shift on the court since Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, who died in September.

Five conservative justices – Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Barrett – sided with the religious groups and blocked the attendance limits. Chief Justice John Roberts, along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented. (more…)


Ask the author: Hamilton and the Law (and the court)

in Featured, Book reviews/Ask the author on Nov 25, 2020 at 4:05 pm

Hamilton content? Hamilton content! Hardly any topic is more ubiquitous these days than Lin-Manuel Miranda’s smash musical. Fans, academics, artists and writers of all stripes – even Supreme Court justices – have found cause to analyze or drop references to it. Seemingly the only platform it hasn’t graced is SCOTUSblog.

That is, until now. With Hamilton and the Law, released in October from Cornell University Press, editor Lisa Tucker has invited 32 luminaries from across the legal profession to “read[] today’s most contentious legal issues through the hit musical.” And how to discuss “contentious legal issues” without turning to the Supreme Court? While the book deals with a wide range of topics, Tucker and her compatriots – many of them respected Supreme Court advocates and scholars – spend a good deal of time gleaning lessons from the musical regarding the justices and their role in our constitutional republic.

Lisa A. Tucker is an associate professor of law at Drexel University’s Thomas R. Kline School of Law, where she specializes in legal research and writing as well as the Supreme Court. A former contributor to SCOTUSblog, Tucker is also the author of the novel Called On.

Thank you, Lisa, for participating in this Q&A for our readers, and congratulations on the publication of your latest book. (more…)


Symposium: Trump’s census policy is both fundamentally fair and legally sound

in Trump v. New York, Featured, Symposium before oral argument in Trump v. New York on Nov 25, 2020 at 12:45 pm

This article is part of a symposium previewing Trump v. New York.

Hans von Spakovsky is a senior legal fellow at the Institute for Constitutional Government of the Heritage Foundation and the manager of Heritage’s Election Law Reform Initiative.

In Trump v. New York, the Supreme Court should be looking only at the constitutional and statutory issues: whether President Donald Trump was within his legal authority to direct that noncitizens in the country illegally be excluded from the population used for congressional apportionment. The policy issue is very important, of course. What the president did was fundamentally fair. And, under the Supreme Court’s precedent in Franklin v. Massachusetts, Trump was also within his legal authority to do so. (more…)


Court releases January calendar (updated)

in AMG Capital Management, LLC v. Federal Trade Commission, Pham v. Guzman Chavez, Uzuegbunam v. Preczewski, BP P.L.C. v. Mayor and City Council of Baltimore, Federal Communications Commission v. Prometheus Radio Project, National Association of Broadcasters v. Prometheus Radio Project, Featured, Merits Cases on Nov 25, 2020 at 11:11 am

The Supreme Court on Wednesday issued the calendar for its January argument session. The session will be a relatively quiet one, with only five hours of argument over four days. The justices will not hear argument on two days: Jan. 18, which is a federal holiday observing Martin Luther King Jr. Day, and Jan. 20, when much of the District of Columbia will shut down for the presidential inauguration – and Chief Justice John Roberts will administer the oath of office across the street from the court. (more…)


Wednesday round-up

in Round-up on Nov 25, 2020 at 8:00 am

Here’s a round-up of Supreme Court-related news and commentary from around the web:

Happy Thanksgiving!

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion, please send it to roundup@scotusblog.com. Thank you!


Symposium: Depoliticizing the census through administrative process

in Trump v. New York, Featured, Symposium before oral argument in Trump v. New York on Nov 24, 2020 at 4:47 pm

This article is part of a symposium previewing Trump v. New York.

Jennifer Nou is a professor of law at the University of Chicago Law School.

The census saga continues. This time, however, the Trump administration is more truthful about its motivations. It wants to count immigrants who are in the country without authorization, not — it turns out — to enforce the Voting Rights Act, but rather to influence the reapportionment of legislative seats. Specifically, the government has issued a presidential memorandum to exclude these immigrants from the apportionment base, the state population counts used for reallocation. The case now before the Supreme Court raises important jurisdictional, statutory and constitutional arguments against the memorandum. By focusing only on the statutory claims, I will argue for an interpretation that subjects census-related policy decisions to more robust administrative process. Doing so, I hope, will help mitigate the extent to which the census is a means of political entrenchment. (more…)


Reminder — SCOTUSblog and Goldstein & Russell are hiring

in Featured on Nov 24, 2020 at 3:21 pm

SCOTUSblog and Goldstein & Russell, P.C. are seeking to hire a full-time employee to serve as firm manager for Goldstein & Russell, P.C., and deputy manager of SCOTUSblog. The position is based in Bethesda, Maryland, and requires occasional in-person work during the COVID-19 pandemic. (more…)


Symposium: All foreign nationals should be excluded from apportionment. That’s what the Constitution requires.

in Trump v. New York, Featured, Symposium before oral argument in Trump v. New York on Nov 24, 2020 at 1:00 pm

This article is part of a symposium previewing Trump v. New York.

John S. Baker Jr. is professor emeritus at the Louisiana State University Law Center. He filed an amicus brief in support of the federal government.

At next week’s oral argument in Trump v. New York, the justices should ask the government why it hasn’t excluded all foreign nationals from the congressional apportionment calculation, whether they are in the country legally or illegally.

The Trump administration is right to exclude people in the country illegally from apportionment. But it should also exclude all other foreign nationals, such as foreign students studying on student visas. No foreign national qualifies as “an inhabitant,” as that term was understood at the Founding. The Supreme Court in Franklin v. Massachusetts (1992) agreed that only “inhabitants” count for apportionment. (more…)

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