Federal Courts and Nominations

SCOTUS goes into the new year with a loaded plate as impeachment trial looms

The U.S. Supreme Court has multiple high-profile cases on its docket this term, including cases to be argued in early 2020 on state aid to religion, abortion and President Donald Trump’s desire to shield his personal finances from government subpoenas.

“They have a lot on their plate,” says Paul M. Smith, a professor from practice at Georgetown University Law Center and a frequent advocate before the justices.

Yet it is the impeachment debate in Congress that has dominated the news in Washington for months and will likely continue to do so into the new year. The justices are handling their duties meticulously but inconspicuously.

However, Chief Justice John G. Roberts Jr. will become much more visible when Trump faces trial in the Senate. Roberts will preside over the impeachment trial, perhaps even on some of the same days that the court hold arguments.

But unless the impeachment matter over Trump’s dealings with Ukraine drags on beyond January or February, the Supreme Court will elbow its way back into the headlines as it issues decisions in the biggest cases of the term.

Those include at least one potential blockbuster from each oral-arguments “sitting”—which are two-week blocks each month from October through April. The big cases from the fall—all pending decisions—involve sexual orientation and transgender status in the workplace, the future of immigration relief for undocumented immigrants brought to the United States as children, and the scope of gun rights under the Second Amendment.

There are several potential blockbusters to be argued in the second half of the term.

“The court already had a number of big cases and now that it is filling out its docket, the second half of the term is going to tell us a lot about how the court and the individual justices treat their own precedents,” says Brianne J. Gorod, the chief counsel of the Constitutional Accountability Center, a progressive legal organization in Washington, D.C.

LOOKING AT ‘BLAINE AMENDMENTS’

In January, the highlight is Espinoza v. Montana Department of Revenue, about a state tax credit for contributions to scholarship organizations that may use the money to provide tuition aid at private religious schools.

Montana’s legislature in 2015 adopted the program, which provides a modest $150 tax credit for such contributions. The state revenue department issued a regulation that barred the use of scholarship funds at religious schools, citing a state constitutional provision barring direct or indirect aid to churches and religious schools.

That decision was challenged by several families using the scholarship aid at religious schools, based primarily on the U.S. Constitution’s guarantee of free exercise of religion. The Montana Supreme Court threw out the entire program based on the state constitutional prohibition, which was first adopted in Montana’s original state constitution of 1889.

Such provisions are known as “Blaine amendments,” after James G. Blaine, a 19th-century U.S. representative and senator from Maine who in 1875 introduced a federal constitutional amendment to bar public school funding from being used for the schools of any “religious sect or denomination.” The federal amendment failed, but more than 30 states have similar language in their state constitutions.

“The historical record shows that this [Montana] provision was originally adopted—along with dozens of other so-called ‘Blaine Amendments’ in the 19th century—to preserve funding for the Protestant-oriented public schools and to suppress Catholicism and Catholic schooling,” says a brief for the religious-school families.

Montana argues that its constitutional language, which was re-adopted in a 1972 rewrite of its constitution, was not motivated by bias.

“This case lies at the intersection of two traditions that have coexisted since the early Republic,” the state says, citing “staunch protection of religious freedom” and “principled opposition to government aid to religious institutions.”

That case is scheduled for argument Jan. 22.

ABORTION AND HOSPITAL-ADMITTING PRIVILEGES

In February, the abortion debate returns to the court in June Medical Services LLC v. Gee.

The 5th U.S. Circuit Court of Appeals upheld a Louisiana law that requires doctors who perform abortions in the state to have patient-admitting privileges at a nearby hospital. The Supreme Court struck down a virtually identical provision of Texas law in a 2016 decision, Whole Woman’s Health v. Hellerstedt.

The 5-3 majority in Whole Woman’s Health held that Texas had not shown evidence that its admitting-privileges requirement for abortion providers served the interest of protecting the health of pregnant women, and instead made it more difficult for them to obtain abortions.

In the Louisiana case, a panel of the 5th Circuit ruled 2-1 to allow the law to take effect, with the majority purporting to follow Whole Woman’s Health and saying that the facts in Louisiana were different than in the Texas case because it was easier for doctors to get hospital-admitting privileges and women had shorter distances to drive to reach an abortion provider than in Texas.

Roberts, who had joined the dissent in Whole Woman’s Health, drew attention in February when he provided the fifth vote to the court’s liberal bloc to stay the 5th Circuit’s decision. The court’s newest members, Justices Neil M. Gorsuch and Brett M. Kavanaugh, joined fellow conservatives Clarence Thomas and Samuel A. Alito Jr. in saying they would have denied a stay and allowed the Louisiana law to take effect.

Kavanaugh wrote an opinion dissenting from the stay denial saying he would have allowed the law to go into effect and that doctors may have been able to obtain admitting privileges, which would mean the law would not impose an undue burden on women seeking abortions.

When the court granted full review of the decision, it not only agreed to hear the petition filed by the abortion provider in the case; it also took up a cross-petition by the state raising the question of whether such providers have “third-party standing” to challenge state regulations enacted to protect pregnant women.

“It will be interesting watching the chief justice in this case, and whether he will have concerns about the reputation of the court based on a change in precedent so soon after a change in composition of the court,” says Gorod, who co-wrote an amicus brief for Constitutional Accountability Center in support of the abortion providers.

ALL THE PRESIDENT’S RECORDS

On Dec. 13, the court announced that it would hear appeals from Trump in three cases involving his financial records.

In Trump v. Mazars USA, the court will review a case involving a subpoena from the U.S. House Committee on Oversight and Reform to Trump’s accounting firm seeking financial records. In Trump v. Deutsche Bank, the subpoenas at issue to Deutsche Bank and Capital One Financial Corp. came from the House Committees on Financial Services and Intelligence. The House panel investigations are separate from the impeachment proceedings.

In Trump v. Vance, at issue are subpoenas to Mazars from Cyrus Vance Jr., the district attorney of New York County (Manhattan). The subpoenas seek several years of Trump’s tax returns.

Trump’s personal lawyers have argued repeatedly that a sitting president may not be subject to criminal proceedings. “That the Constitution would empower thousands of state and local prosecutors to embroil the president in criminal proceedings is unimaginable,” they wrote in a brief in the Vance case.

The 2nd Circuit court disagreed in that case, ruling that Vance’s request was not out of the ordinary.

“The only question before us is whether a state may lawfully demand production by a third party of the president’s personal financial records for use in a grand jury investigation while the president is in office,” Chief Judge Robert A. Katzmann wrote for unanimous three-judge panel.

“We note that the past six presidents, dating back to President Carter, all voluntarily released their tax returns to the public,” Katzmann added in a footnote. While we do not place dispositive weight on this fact, it reinforces our conclusion that the disclosure of personal financial information, standing alone, is unlikely to impair the president in performing the duties of his office.”

A separate 2nd Circuit panel upheld the subpoenas to Deutsche Bank and Capital One for 10 years of financial records for Trump, his businesses and his three oldest children—Donald Trump Jr., Eric Trump and Ivanka Trump.

Meanwhile, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 to uphold a subpoena to Mazars.

In papers filed with the Supreme Court, Trump’s lawyers say the decisions involving the House committee investigations mark the first time a subpoena for Trump’s personal papers has been upheld.

“After the decision below, … any committee of Congress can subpoena any personal information from the president,” says a filing by William S. Consovoy, one of Trump’s private lawyers. “All the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information. Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of presidents will become our new normal in times of divided government—no matter which party is in power.”

Trump’s financial cases are important tests for the separation of powers and for how his own appointees, Gorsuch and Kavanaugh, will approach cases that cut so close to Trump personally. Observers are quick to note that appointees of President Richard M. Nixon ruled against him in the case involving the Watergate tapes (then-Associate Justice William H. Rehnquist had worked in the Nixon Justice Department and recused himself). President Bill Clinton’s own appointees voted against him in Clinton v. Jones, which allowed the deposition in a civil case to proceed.

“These cases will be big tests for Justices Gorsuch and Kavanaugh,” Gorod says.

Smith says that even if, as many expect, Trump is impeached but acquitted in a Senate trial, “these financial records cases could end up playing a big part in the election.”

And the court still has room to add more cases for its last sitting, in late April. The court has tried in recent years, with mixed success, to keep the April sitting relatively light or boring.

All cases heard in the term that started Oct. 7 are expected to be decided by late June. That means there could be rulings on gay rights, immigration, gun rights, religion, abortion, and the separation of powers by then, plunging the Supreme Court into the forefront during the thick of the 2020 presidential campaign.

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