The Supreme Court has a new mixed drink: it’s five parts formalism to four parts functionalism, with a splash of Humphrey’s Executor. This new drink was on full display in Seila Law LLC v. CFPB, in which five Justices concluded that Congress violated the separation of powers when it placed limits on the President’s power to fire the CFPB’s director. Those five Justices used what’s called the “formalist” approach, prevailing over the competing “functionalist” approach adopted by the four dissenting Justices. Throughout history, the Court has oscillated between formalism and functionalism, especially in cases involving the President’s power to remove public officials. For the latter half of the 20th century, functionalism appeared to be the dominant approach to removal-power cases—until two recent decisions from the Roberts court. Might formalism now be seeing a resurgence?
In an historic decision yesterday, Chief Justice Roberts held for a 7:2 majority that a sitting president isn’t absolutely immune from a state grand jury subpoena seeking the president’s private documents, and that a state prosecutor need not show a “heightened need” for such documents. It is a resounding legal defeat for President Trump, who had challenged the authority of a state district attorney to subpoena Trump’s personal and corporate financial records. But the decision may be a political win; more likely than not, Trump will be able to stave off the release of his tax records until after the November election. Here is a recap of the Court’s decision in Trump v. Vance.
Fides et ratio, or “faith and reason,” was the penultimate encyclical of Pope John Paul II. He argued that faith and reason do—and must—go hand in hand. Doubtless, among those who would agree with this principle are the Montana parents who sued in Espinoza v. Montana Dept. of Revenue to send their children to parochial schools after winning tax-credit-funded scholarships. At first, the parents lost; the Montana Supreme Court invalidated the entire scholarship program. Last week, however, the U.S. Supreme Court reversed that decision by a 5:4 vote, concluding that it violates the Free Exercise Clause of the First Amendment to strike down the program under a version of the Blaine Amendment in the Montana state constitution. Here’s my analysis.
Last Monday, the Supreme Court in June Medical Services, L.L.C. v. Russo struck down a Louisiana abortion law as unconstitutional. Abortion always makes for a blockbuster topic at the high court, but this decision was about as narrow as it could have been. The case hinged entirely on the vote of Chief Justice Roberts, whose opinion rested on an extraordinary application of stare decisis. What does this mean for Louisiana and, more importantly, future abortion cases at the Court? Read more to find out:
Last week, Justice Gorsuch held that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation or gender identity. To some it was gold leaf, a vindication of the decades-long fight for gay and transgender rights. To others it was blasphemy, an abdication of the constitutional duty of a judge. But leaving politics aside, it highlights a debate over one of the central theories of statutory interpretation: textualism. Both Gorsuch in the majority and Alito in dissent claim textualism is on their side. The fact that they come to dueling interpretations of a one-sentence statute suggests that textualism will yield unpredictable outcomes in statutory interpretation cases for years to come, irrespective of the typical “conservative” and “liberal” labels given to each of the Justices. Here is my analysis of Bostock v. Clayton County.
Yesterday, Chief Justice Roberts concluded that the Trump administration violated the Administrative Procedure Act when it attempted to rescind Deferred Action for Childhood Arrivals, or DACA. Roberts’ opinion is momentous—both in what it says and in what it does not say. For example, Roberts is coy on whether DACA itself is legal. He concludes only that the manner in which the Trump administration sought to cancel it did not follow the proper administrative procedure. On the other hand, three Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—were not shy in saying the opposite, bluntly declaring that DACA is illegal and that there’s no other justification required to terminate it. For now, Roberts’ opinion keeps DACA on the books and its recipients in the country. Their dream remains alive, albeit temporarily. Read more for an in-depth analysis of the Court’s decision in Department of Homeland Security v. Regents of the University of California.
On April 27, the Supreme Court issued its long-awaited decision in its only Second Amendment case of the term. But what some thought would be a blockbuster decision instead landed with a dull thud; six Justices voted to dismiss the case as “moot” (i.e., no longer presenting a live controversy). Why? Well, after the Court agreed to decide the case, the gun law at issue was repealed. Since the Court cannot adjudge the constitutionality of a law that is no longer on the books, the case was dead. Justice Kavanaugh penned a short concurrence, and Justice Alito authored a long, curious, and (at times) odd dissent. Here’s an in-depth analysis of the Court’s decision and the doctrine of “mootness.”
In Ramos v. Louisiana, the Supreme Court held that the Sixth Amendment requires a jury that convicts a defendant to do so unanimously—and that this requirement applies to the states. In the process, the Court struck down non-unanimous jury statutes in Louisiana and Oregon, and overruled Apodaca v. Oregon (1972). But Ramos was not your typical incorporation-doctrine case. References to Jim Crow and racial segregation were sprinkled throughout the case’s opinions; Justice Clarence Thomas wrote extensively on his incorporation philosophy; and, most interestingly, Justice Brett Kavanaugh penned a long, solo concurrence in which he laid out his opinion on stare decisis and when to overrule precedent. Here’s my analysis of Ramos v. Louisiana.
This past Monday, the Supreme Court in Allen v. Cooper struck down a 1990 Congressional statute that had allowed citizens to sue a state in federal court for copyright infringement. The case arose after a marine salvage company discovered the wreck of the Queen Anne’s Revenge, Blackbeard’s famous pirate ship, off the coast of North Carolina and recorded documentary footage of the discovery. When North Carolina published some of the footage in various media, the company sued the state for copyright infringement. The question before the Court was whether the Constitution gives Congress the power to rescind the states’ sovereign immunity from copyright infringement claims. Justice Kagan answered “no” with a 7:2 majority, leaving the company marooned. (For lovers of wordplay and maritime puns, this piece is for you.)
In March of 2018, Secretary of Commerce Wilbur Ross announced his intention to add a citizenship question to the 2020 census. A collective group of eighteen states, the District of Columbia, cities and local governments, and several non-governmental organizations filed suit, claiming that the Secretary’s decision violated the Enumeration Clause and the Equal Protection Clause of the Constitution, and certain provisions of the Census Act and the Administrative Procedure Act. On Thursday, June 27, on the final day of its October Term of 2018, the Supreme Court issued its long-awaited decision in the case. Here is my discussion of Chief Justice John Roberts’ opinion for the Court in Department of Commerce v. New York.