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?
The Supreme Court’s term has now come to a close. The Court decided its last seven cases this week, capturing headlines and filling margins across the country. It handed President Trump an 0-1-1 record on his tax returns, ruling against him on the New York subpoena and sending the Congressional subpoena back to the lower court. It ruled that, for the purposes of the Major Crimes Act, the vast majority of eastern Oklahoma is Creek “Indian country” (yes, you read that right). It ruled against “faithless electors.” It rejected a procedural challenge to the Trump administration’s new religious exemptions to Obamacare’s contraceptive mandate. And it struck down an exception to the federal ban on robocalls. At the center of it all was Chief Justice John Roberts, now the Court’s anchor and swing Justice, who voted with the majority in 58 of the term’s 60 cases (a 97% clip). Here is your final weekly brief for O.T. 2019.
For the first time since 1996, the Supreme Court’s term has officially extended into the month of July. The Court decided five cases this week, touching on abortion, free speech, religious liberty, administrative agencies, and copyright law. It also added four cases to next term’s docket, one of which concerns the release of grand jury materials from Special Counsel Mueller’s investigation into Russian meddling in the 2016 election. Here’s a recap of the Court’s busy week.
This week, the Justices heard oral argument in what is likely the most explosive case of the term: June Medical Services LLC v. Russo, a challenge to a Louisiana law that requires physicians who perform abortions to have “admitting privileges” at area hospitals. Another high-profile case that was argued this week is Seila Law, LLC v. Consumer Financial Protection Bureau, the constitutional challenge to the structure of the CFPB. Next, the Court decided Kansas v. Garcia, a case that asked whether the Immigration Reform and Control Act of 1986 preempts certain Kansas identity-theft statutes (the answer is no). More nuggets came in the Court’s cert grant in California v. Texas, the latest lawsuit against the Affordable Care Act’s “individual mandate”; and from a statement by Justice Gorsuch following Monday’s orders list. Here’s another packed summary of the Supreme Court’s proceedings for the week of March 2.