Thursday round-up

Amy Howe analyzes yesterday’s arguments in Chiafalo v. Washington and Colorado Department of State v. Baca, which ask whether the Constitution forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral college ballots, for this blog, in post that first appeared at Howe on the Court. Ariane de Vogue reports at CNN that “[b]y the end of arguments, some justices seemed prepared to reject arguments from lawyers for so-called faithless electors and hold that states can bind their vote.” At NPR, Nina Totenberg and Krishnadev Calamur report that the court “seemed pulled in two directions Wednesday—between the original meaning of the Constitution, on the one hand, and chaos in the 2020 election on the other.” Pete Williams reports for NBC News that “several members of the court seemed concerned that if electors are free agents, they could end up deciding who wins when the popular vote for president is very close.” At the ABA Journal, Mark Walsh reports that “[s]ome justices seemed to express support for the originalist arguments of the faithless electors, or doubted that striking down the sanctions would have major effects.” Additional coverage of the argument comes from Ronn Blitzer and Bill Mears at Fox News.

At Excess of Democracy, Derek Muller offers “highlights from oral argument,” noting that “[i]t’s hard to overstate how many times the justices asked either side about limiting principles—do electors have unfettered discretion? Can states condition electoral appointments however they want?” At Vox, Ian Millhiser observes that “[t]hese cases do not present a particularly partisan conflict, and the judges appeared to divide along different lines.” At The Atlantic, Garrett Epps talks to Jesse Wegman, the author of a recent book portraying the Electoral College system as “a bad idea gone wrong”; Wegman predicts that “the Baca case will not affect anything, because regardless of the election results in 2020 or any other year, it is inconceivable that enough electors will vote against the party they are pledged to, or … succumb to bribery.”

At CNN, Joan Biskupic reports that Chief Justice John Roberts “is likely to control decisions in the separation-of-powers disputes that recall landmark cases dating to the Watergate era and that raise new political challenges in today’s polarized Washington,” Trump v. Mazars and Trump v. Vance, which involve the president’s efforts to shield his financial records from subpoenas issued to his accountant and lenders by three congressional committees and a New York grand jury, and that if Roberts “hews to his recent pattern, he will rule as narrowly as possible and try to avoid a decision from the five Republican-appointed conservatives and four Democratic-appointed liberals that appears blatantly political in the American mind.” In the New York Times The Daily podcast, Adam Liptak breaks down Tuesday’s arguments in the cases.

At Justia’s Verdict blog, Leslie Griffin weighs in on Our Lady of Guadalupe School v. Morrissey-Berru, which involves the scope of the “ministerial exception” to federal employment discrimination laws, arguing that “[r]eligious freedom is better protected by requiring religious organizations to protect the civil rights of everyone, especially their employees, and not to practice disability or age discrimination, which the churches do not endorse for religious reasons.” In a guest post at Reason’s Volokh Conspiracy blog, Michael McConnell writes that after Monday’s argument, “there seems to be broad agreement that religious schools have a First Amendment right to choose who will teach the faith to the next generation[, b]ut neither side put forward an analytical framework for future cases that gained much traction.” Additional commentary comes from R. Shawn Gunnarson at the Federalist Society Blog, who describes some “unexpected moments” in the argument.

At Bloomberg Law, Kimberly Robinson and Jordan Rubin recap “some of the top moments” from the unusual May argument session. At The National Law Journal, Marcia Coyle asks veteran Supreme Court advocates” for their assessment of the arguments—the pros and cons, and everything in between.”

At Reason, Jacob Sullum notes that the justices will consider at their conference tomorrow whether to review several cases involving the doctrine of qualified immunity, which “is supposed to protect government officials from the chilling effect of frivolous lawsuits under a federal statute that allows people to seek damages for violations of their constitutional rights,”  “[b]ut in practice, … often means that victims … cannot pursue their claims unless they can locate a precedent that closely matches the facts of their case.” In an op-ed for The Washington Post (subscription required), George Will urges the court to “serve civil rights and law enforcement by deciding to rethink the mistakes it made regarding qualified immunity.”

At this blog, in a post first published at Howe on the Court, Amy Howe caps off a term-long research project with a set of recommendations about how to increase public access to oral arguments – starting with the suggestion that the court continue to provide live audio of arguments after the COVID-19 crisis is over. At Reason’s Volokh Conspiracy blog (via How Appealing), Josh Blackman “hope[s] the Supreme Court takes these recommendations seriously.”

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