Them end o’ the term blues
The U.S. Supreme Court wrapped up its 9-month long work “year” this week, issuing its final decisions on July 9. While it once was common for the court to release decisions in early July (back when it decided 150 cases each term), this year the court barely managed to break 60 decisions, while still dragging things out into the second week of July. This was the first time in 24 years, and only the second time since 1988, that the court went past June 30 to issue decisions.
And even the 62 decisions the court issued this year wasn’t exactly back-breaking work. Two of the cases among the final nine were simply one-sentence orders sending back cases that were effectively resolved by another decision, ordering the lower courts to give further consideration to those cases based on other decisions it actually issued.
Still, despite the court’s relatively low workload, it was a groundbreaking year both in the results of some of the cases and in how the court changed its, um, business model over the COVID-19 crisis. Some highlights:
• Possibly the most significant action the court took was to hold oral arguments by telephone instead of in-person, and to live-stream those oral arguments in real time — both steps that the court had never taken before. (In 2000, in Bush v. Gore, the case that effectively decided the presidential election in favor of George W. Bush, the court had allowed live audio of its oral arguments.)
But it still absolutely refuses to allow live video, or even still photography of the courtroom during oral argument. This is known as the “Courtroom Sketch Artists’ Full Employment Act.”
• This was quite a year for Neil Gorsuch, President Trump’s first appointment to the court. Gorsuch, although as deeply conservative as the other Republican appointees on the court, has something of a maverick streak, especially in criminal cases. Although most of the justices normally write an average of one opinion each month the court is in session, Gorsuch ended up the year writing three in one month, including the decision that applied federal anti-discrimination law to LGBTQ Americans and, on the last day of the term, joined the four liberal justices in his opinion holding that, for purposes of criminal law, all of eastern Oklahoma is essentially an Indian reservation, so that crimes committed there by tribal members must be tried in federal court.
• In line with what I wrote about her last week, Elena Kagan finished off the year, not exactly with an opinion making pop culture references, but still writing as if she were aiming for an audience that didn’t just include lawyers. Writing that the States have the power to punish “faithless electors” (people who pledge to cast electoral votes for president in line with how most of the voters in a given state voted) she first quoted Article II, §1, cl. 2 of the Constitution, and then said, “The next clause (but don’t get attached: it will soon be superseded) set out the procedures the electors were to follow in casting their votes.”
So, yes — don’t get too attached to this Constitution. Any part of it may get superseded when you’re not looking.
• Chief Justice John Roberts had another good year, voting just often enough with the liberals to remind people of retired Justice “Swing Vote Tony” Kennedy — even joining Gorsuch to make the vote in the LGBTQ case 6-3. He also wrote the decision protecting the “Dreamers” — immigrants brought to the U.S. as children who’ve never known any other country, despite being neither citizens nor legal immigrants. But Roberts’ opinion decided the case on procedural grounds, leaving open some options for the losing side, i.e., the Trump Administration.
And the Chief Justice made this the third consecutive year to end the term with a decision about important issues affecting either the president himself or his administration. In 2018, Roberts wrote the opinion upholding the “Muslim ban” that Trump put in place (after Trump had to re-work it several times). In 2019, Roberts wrote the opinion effectively ending the Trump administration’s effort to put a citizenship question on the Census. And he closed the current term with a pair of opinions that, while providing the president a temporary respite from having to comply with broad subpoenas of his financial affairs from the Manhattan District Attorney and the House of Representatives, make it likely that, sooner or later, Trump will have to provide those records.
The center still holds.