Tuesday round-up

This morning the court will hear argument in two of its highest-profile cases this term: Trump v. Mazars and Trump v. Vance, President Donald Trump’s efforts to shield his financial records, including his tax returns, from subpoenas issued to his accountant and lenders by a New York grand jury and three congressional committees. Amy Howe previewed the cases for this blog, in a post that first appeared at Howe on the Court. Philip Duggan and Robert Reese Oñate preview Mazars at Cornell Law School’s Legal Information Institute, and Sean Kealy has a preview at Subscript Law. Zora Franicevic and Connor Grant-Knight provide Cornell’s preview of Vance, and Jim Wheaton previews the case for Subscript Law.

Nina Totenberg reports for NPR that “[h]ow the court decides these cases could dramatically change the balance of power among the three branches of government, thus shifting the American system of checks and balances.” For The Wall Street Journal (subscription required), Jess Bravin reports that, “[w]hile contending that Congress can’t seek information regarding potential crimes under the guise of legislative oversight, in the companion case Mr. Trump’s lawyers say that states are powerless to investigate him for possible violations of their own laws.” At The Economist’s Espresso blog, Steven Mazie notes that “[p]recedent is not friendly to Mr Trump’s plea[:] When Richard Nixon and Bill Clinton faced other predicaments involving the separation of powers, the Supreme Court decided against both, unanimously.” Joan Biskupic, at CNN, highlights “six things to watch for” in today’s arguments.

At Justia’s Verdict blog, Rodger Citron suggests that the critical question is “which Chief Justice John Roberts will show up.” Commentary on Vance comes from David Boyle at Boyle’s Laws. At The Atlantic (via How Appealing), Quinta Jurecic argues that, ”[a]s it was during the Russia investigation, and during the impeachment proceedings, the core of Trump’s claim is: Everything I do is beyond questioning; everything you do deserves the closest scrutiny.” The editorial board of The Wall Street Journal writes that “Mr. Trump won’t be President forever, and the Court will have to reflect on how its decisions will affect America’s political institutions amid hyper-partisanship that won’t end when a Democrat takes the White House.”

This blog’s analysis of yesterday’s oral argument in Our Lady of Guadalupe School v. Morrissey-Berru, in which the considered the scope of the “ministerial exception” to federal employment discrimination laws, come from Amy Howe, in a post that first appeared at Howe on the Court. Mark Walsh reports for Education Week’s School Law Blog that the justices “spent more than 90 minutes of oral arguments over the telephone Monday wrestling with where to draw the line between employees of religious schools who will remain protected by civil rights law and those who will not because they are considered ministers of the faith.” Nina Totenberg and Krishnadev Calamur report at NPR that “[t]he Supreme Court’s conservative majority signaled Wednesday that it is on the verge of carving out a giant exception to the nation’s fair employment laws.” At Fox News, Ron Blitzer and Bill Mears report that “[c]onservative justices appeared to believe the issue is too murky for the court to decide how religious organizations should define religious roles.” David Savage reports for the Los Angeles Times that “[t]he argument featured a new twist on an old doctrine[:] In recent decades, conservatives have shunned the phrase ‘separation of church and state’ because they associated it with the liberal era when the justices struck down prayers in public schools and barred state aid for children in parochial schools[, b]ut a lawyer representing the Catholic schools in Los Angeles led off Monday’s argument by citing that principle.” At the Constitutional Law Prof Blog, Ruthann Robson writes that, although “the ministerial exemption as rooted in the free exercise and establishment clauses of the First Amendment originally excepted only ‘ministers,’ there is a chance that it will be broadened to include all – – – or almost all – – – employees at religious organizations.”

At Bloomberg Law, Jordan Rubin reports that “[q]uestions asked by Justice Neil Gorsuch” during yesterday’s argument in McGirt v. Oklahoma, which asks whether Oklahoma had jurisdiction to prosecute crimes committed by an Indian within the historical boundaries of the Creek reservation in eastern Oklahoma, “suggest he’s skeptical of the Oklahoma government’s stance against tribes and a criminal defendant in a hugely consequential case over the status of American Indian lands.” At Reuters, Lawrence Hurley reports that “[s]ome justices including conservative Justice Samuel Alito appeared concerned about the potentially broad ramifications of a ruling backing tribal authority.” Jess Bravin reports for The Wall Street Journal that “[a] ruling could potentially put into question hundreds of criminal convictions from Oklahoma state courts,” and that “the case could have even broader implications, depending on whether the court recognizes tribal sovereignty over land that Washington once promised to Native Americans[:] The legal framework in Tulsa, Okla., and the rest of the region could be affected, including taxing powers and contracts involving tribe members.”

Briefly:

• At The Detroit News (via How Appealing), Melissa Nann Burke reports that “Aimee Stephens, the Michigan woman who last year became the first transgender person to have a civil rights complaint heard by the U.S. Supreme Court, might not live to hear whether she won,” because she “is now in stage four renal failure and under hospice care.”
• In an op-ed for The Philadelphia Inquirer (via How Appealing), U.S. Court of Appeals Judge Marjorie Rendell offers a judge’s guide to the Supreme Court’s live-streamed arguments, noting that “[w]e are privileged, at least for the time being, to be flies on the wall while the sausage gets made.”
• In an op-ed at the Chicago Daily Law Bulletin, Daniel Cotter discusses the latest Supreme Court news.
• At Dorf on Law, Michael Dorf pushes back against Justice Clarence Thomas’ originalist critique of the First Amendment overbreadth doctrine in a concurrence last week in United States v. Sineneng-Smith, arguing that “[u]nless and until Justice Thomas abandons the modern First Amendment entirely, one should regard with extreme skepticism his call for the re-examination of specific doctrines–like overbreadth and the rule of NY Times v. Sullivan that he criticized last year.”
• At The World and Everything in It (podcast), Mary Reichard discusses the arguments in U.S.. Patent and Trademark Office v. Booking.com, which asks whether the addition of “.com” to a generic term creates a protectable trademark, and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, a challenge to the federal government’s expansion of the “conscience exemption” to the Affordable Care Act’s birth-control mandate.

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