Virtual SCOTUS: Pre-Holiday Orders List

A normal term starts in October but the Supremes are basically off for the summer except for scheduling three "summer order" days and deciding any miscellaneous action that comes up such as some death penalty case.  There are some high profile cases handed down near the end of June and then a sort of clean-up order day around now -- if more like the final days of June. 

This being a different sort of year, the special conference (Wednesday) and orders release (collected in an "orders list") today was somewhat different.  After all, it was announced -- you can find it on the calendar on the website if you know where to look -- that more opinions will be released on Monday.  Well, one or more.  There are eight left, two related to each other (the two faithless electors and Trump financials).  So, we did have some typical things, including sending back some cases held to see how opinions on related matters were handled.  But, it was not the end of the term.  We will likely get another one later on. 

Various pending abortion cases were addressed in a fairly busy three page order list.  Thomas alone [without comment] wanted to take a case changing a "bubble zone" to protect a clinic.  Rehnquist Court decisions up to a point upheld that sort of law though a Roberts Courts ruling said one went too far.  Roberts Court precedent also expanded concern about allegedly non-neutral regulations of speech.  So, the argument had some bite.  A few other cases were just denied, including concerned with the standing of the clinics. 

(Relatedly, they did send a case back to apply the religious funding opinion. Looking at the docket page, the facts don't seem on point.  But, one shouldn't bet on that being the determination. This overall shows the importance of the membership of lower courts -- a range of discretion is still in place.)

Indiana -- who we already saw earlier when Thomas made out if protecting abortion was akin to eugenics -- did get the chance of two of its cases (wins for the clinics) to be re-examined per June Medical.  One case involves a particularly burdensome parental notification law and the other a waiting period tied to an ultrasound requirement (a sort of ultrasound with further insult).  The lower court basically will be left to try to determine how much Roberts concurrence watered down abortion rights.  These are the type of laws that very well might be upheld under his rule.  A harder case would be a blanket ban, even of a second trimester procedure.  To be cont.

There were various reactions to the abortion ruling, including people who warned that it was a sort of "Pyrrhic victory."  This is apparent to some degree but like Linda Greenhouse noted, "for now," the opinion was still a victory for abortion rights.  The lawyer for the clinic said as much at Rewire.  But, yes, a "chill wind blows" (to quote Justice Blackmun) long term here.  So, it is important to have state and if possible congressional means put in place to protect abortion rights as well as new federal judges appointed by Democrats that will apply substantial burden rules with a good eye. Or as best it can with Roberts.

The Supreme Court also took some additional cases, including related to the responsibility of businesses in foreign countries to guard against violations of international law.  And, we have an update of the case involving the House Judiciary Committee attempting to obtain some unredacted portions of the Mueller Report.  As part of the continual running out the clock process, the case was taken for argument, so the House Dems will not get a chance to get it until next year.  And, after rejecting an emergency petition, an additional attempt to expedite the process in the Texas mail-in voting case was rejected. 

Unless an additional miscellaneous order is dropped, more action on Monday. Top link has more details on the orders today.

ETA: Yes, there is more.  Following a theme, though only at times split 5-4, the Supreme Court held another special response to deal with the Big V by the lower courts is inappropriate.  Not quite as bad as with Wisconsin, if this time with no comment by either wing, this blocked efforts to ease voting barriers in Alabama.  To remind, there is actually a Senate run-off coming off where Jeff Sessions is the "moderate" choice.  Also, this is the 11CA, not exactly a liberal leaning circuit.

Respondents filed suit to challenge Alabama election provisions that, because of state social distancing orders and the pandemic, pose severe obstacles to voting: (1) the requirement that voters have their absentee ballot envelope either notarized or signed by two adult witnesses (“witness requirement”); (2) the requirement that a voter mail-in a copy of their photo ID with the absentee ballot application or absentee ballot and (3) the Secretary’s de facto ban on curbside voting (“curbside voting ban”) (collectively, the “challenged provisions”).

This is a summary of the issues at hand from one of the briefs that you can find on the docket page.  Rick Hasen of Election Law Blog recently wrote a NYT op-ed supporting a voting rights amendment, one that would also clearly give the federal government power to protect voting rights.  The result here helps the cause.  One can imagine a Court led by someone with a conservative view on voting rights since the Reagan Administration might still manage to screw things up.  But, it would be harder.

There is a good argument to be made there -- can we somehow find a way to allow territorial residents to have the right to vote for President too? -- though there are already constitutional protections. These have been interpreted in a too limited way (see, e.g., Shelby v. Holder), but the opening is there. New York was allowed to vote for president in the primary because of a First Amendment argument regarding political parties.  Outside of specific amendments, voting is a general "liberty" that cannot be denied without due process and equal protection.  The Guarantee Clause has some importance here too -- a republican form of government includes the people's right to vote.  "Poll taxes" should be interpreted broadly.  The 14A penalty clause regarding even abridging the right to vote was never used.  And, its reference to not applying to criminals should be narrowly applied. 

(This article spells out near the end the proposed Voting Rights Amendment. As an aside, I find the reference to the lack of an apparent reason for the Wisconsin governor to -- fruitlessly given the legislature and state supreme court [as seen by its decision when he tried] -- to wait to the last minute about postponing the election asinine. In fact, it pissed me off.  The cost/benefit analysis might be tough at the end of the day -- maybe, a failed attempt still would have been a bargaining chip -- but damn it Ricky, there was a clear reason why he thought trying would be futile in the end.  Yes, the governor's overall moderate nature factored in.  Cf. a Republican governor in Ohio successfully playing hardball ... late in the day at that.

For instance: "it should protect the right of all U.S. adult citizens to cast a ballot that will be fairly  and  accurately  counted  in  federal,  state,  and  local  elections,  including  the  right to vote directly for President."  This underlines its breadth.  It is unclear that it would go as far as suggesting, including a national federal election commissioner chosen by a supermajority of the House of Representatives. Somewhat relatedly, a new vice president needs to be confirmed by a majority of both houses.  Note too this is a way to partially address the problem of the Senate by giving it less power.  Finally, though it only happened once, the time bomb of a state voting as state in the House in a disputed presidential election is one of those stupidities that need to be addressed.)

Okay.  Well, until Monday?