Instructor:
Leora Harpaz
Email: lharpaz@lharpaz.com
Course
Name: Major Supreme Court Cases in 2020
List
of Cases on 2020 Supreme Court Docket
Audio Recording: For students who want to listen
to a description of the process the Supreme Court uses
to choose cases to review as well as what happens
between the time the Court grants review and the time it
issues a decision, I’ve made a 16 minute audio recording
of the process which is available at:
http://www.lharpaz.com/ContinuingEd/JASA/online/supreme_court_process.html (Supreme Court Process: From
Choosing Cases to Review to Deciding Cases)
Class on Aug 17: The last class of this series will
preview the cases on the Supreme Court’s docket for the 2020
Term that begins on October 5th. The Court has already
agreed to hear a case that may strike down all of the
provisions of the Affordable Care Act, a case in which a
religious social services agency is relying on the Free
Exercise Clause to argue the government should not be able
to refuse to refer foster children to the agency because it
will not certify same-sex couples as foster parents based on
its religious beliefs, and a case considering whether the
House Judiciary Committee can gain access to secret
materials from Special Counsel Mueller’s investigation.
Fall Semester Course: Current Legal Issues
It seems as though high profile legal controversies are
almost a daily occurrence these days. Most of these issues
are created by actions taken by the government, either
federal, state, or local. Whether it’s a decision by a state
to limit voting rights, a city’s effort to interfere with
the free speech rights of protestors, the Trump
administration’s decision to fire a high level government
official, a new decision by the U.S. Supreme Court, or many
other legal disputes, what they have in common is that they
are lead stories in the news. This course will examine some
of these current controversies. Students in the course will
have an opportunity to make suggestions for topics that they
would like to have discussed in upcoming classes.
First Class
Cases to be discussed:
1. Ramos v. Louisiana (Decision on April 20 by a vote of
6-3).
Decision: The Sixth Amendment right to a jury trial, as
incorporated against the states, requires a unanimous
verdict to convict a defendant of a serious offense.
2. Kahler v. Kansas (Decision on March 23 by a vote of 6-3).
Decision: Due process does not require Kansas to adopt an
insanity test that turns on a defendant’s ability to
recognize that his crime was morally wrong.
3. June Medical Services LLC v. Russo and Russo v. June
Medical Services LLC.
This litigation is a challenge to a Louisiana law that
requires doctors who perform abortions in the state to have
admitting privileges at a nearby hospital. Among the issues
raised by the case are whether the Court should continue to
allow abortion providers to represent the interests of their
patients and whether the case can be distinguished from a
case decided in 2016 which struck down an almost identical
Texas law. The case also raises the prospect of the Court
overruling Roe v. Wade. Oral argument was held on March
4.
Sixth
Amendment
Due
Process Clauses
Quotations
Second Class
Cases to be discussed:
1. Maine Community Health Options v. United States
consolidated with Moda Health Plan Inc. v. United States
and Land of Lincoln Mutual Health Insurance Co. v.
United States (Decision on April 27 by a vote of 8-1).
2. Little Sisters of the Poor Saints Peter and Paul Home
v. Pennsylvania and Trump v. Pennsylvania.
3. California v. Texas
Burwell v. Hobby Lobby Stores (2014):
“We must decide in these cases whether the
Religious Freedom Restoration Act of 1993 (RFRA) permits
the United States Department of Health and Human
Services (HHS) to demand that three closely held
corporations provide health-insurance coverage for
methods of contraception that violate the sincerely held
religious beliefs of the companies' owners. We hold that
the regulations that impose this obligation violate
RFRA, which prohibits the Federal Government from taking
any action that substantially burdens the exercise of
religion unless that action constitutes the least
restrictive means of serving a compelling government
interest.”
Religious Freedom Restoration Act of
1993 (RFRA)
Third Class
Ending Qualified
Immunity Act - https://pressley.house.gov/sites/pressley.house.gov/files/Ending%20Qualified%20Immunity%20Act_0.pdf
Key Provision of Ending Qualified Immunity Act:
Section 1979 of the Revised Statutes (42 U.S.C. § 1983) is
amended by adding at the end the following: ‘‘It shall not
be a defense or immunity to any action brought under this
section that the defendant was acting in good faith, or that
the defendant believed, reasonably or other wise, that his
or her conduct was lawful at the time when it was committed.
Nor shall it be a defense or immunity that the rights,
privileges, or immunities secured by the Constitution or
laws were not clearly established at the time of their
deprivation by the defendant, or that the state of the law
was otherwise such that the defendant could not reasonably
have been expected to know whether his or her conduct was
lawful.’’
42 U.S.C. § 1983
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer’s judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of
the District of Columbia.
Cases to be discussed:
1. Barr v. American Association of Political Consultants
Inc.
Issues: This case raises a First Amendment challenge to the
Telephone Consumer Protection Act of 1991 which prohibits
robocalls to cell phones. The challenge is based on
exemptions to the law that allow calls with particular
content, particularly a 2015 exemption to allow calls to “to
collect a debt owed to or guaranteed by the United States.”
There is also a dispute over whether the remedy for a
constitutional violation is to strike down the entire law or
to sever the exemption from the rest of the statute. Oral
argument was on May 6.
Telephone Consumer Protection Act - 47 U.S.C. § 227 - https://www.law.cornell.edu/uscode/text/47/227
Other issues to be addressed:
Executive Order on Preventing Online Censorship - https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/
47 U.S.C. § 230
After Class
Zoom Tips
a la JASA by Judy Bozarth
Zoom Limerick by Leora
Harpaz
On the Mend - song written and sung by Tira Harpaz - http://www.lharpaz.com/ContinuingEd/JASA/tiraonthemendsong.mp4
or
https://www.youtube.com/watch?v=mc9yhPk9GDY&feature=youtu.be
Zoom, Golly Golly! by Andy Curry and BelleAnne Curry -
https://www.youtube.com/watch?v=W4W99t-K5sM
Fourth Class
Between
2006 and 2011, plaintiffs in § 1983 police
misconduct cases in NYC were paid $348,275,000,
and of that amount $114,000 was contributed by
individual officers and all the rest,
$348,161,000, was paid by the city.
Title VII - Bostock v. Clayton County Georgia
consolidated with Altitude Express v. Zarda
(discrimination based on sexual orientation), and
R.G. & G.R. Harris Funeral Homes v. EEOC
(discrimination based on transgender status).
Title
VII
Oral
Argument
Quotations
Fifth
Class
DACA -
Department of Homeland Security v.
Regents of the University of
California (consolidated with
McAleenan v. Vidal and Trump v.
NAACP).
Administrative
Procedure Act (APA)
Quotations
Sixth Class
June Medical Services L.L.C. v.
Russo
Quotations
Seventh
Class
Seila
Law v. Consumer Financial Protection
Bureau (CFPB)
Article II, Section 1:
The executive power shall be vested in
a President of the United States of
America.
Article II, Section 2, Clause 2:
[H]e shall nominate, and by and with
the advice and consent of the Senate,
shall appoint ambassadors, other
public ministers and consuls, judges
of the Supreme Court, and all other
officers of the United States, whose
appointments are not herein otherwise
provided for, and which shall be
established by law: but the Congress
may by law vest the appointment of
such inferior officers, as they think
proper, in the President alone, in the
courts of law, or in the heads of
departments.
Article II, Section 3:
He shall from time to time give to the
Congress information of the state of
the union, and recommend to their
consideration such measures as he
shall judge necessary and expedient;
he may, on extraordinary occasions,
convene both Houses, or either of
them, and in case of disagreement
between them, with respect to the time
of adjournment, he may adjourn them to
such time as he shall think proper; he
shall receive ambassadors and other
public ministers; he shall take
care that the laws be faithfully
executed, and shall commission
all the officers of the United States.
Chief Justice Roberts Opinion:
We are now asked to extend these
precedents to a new configuration: an
independent agency that wields
significant executive power and is run
by a single individual who cannot be
removed by the President unless
certain statutory criteria are met. We
decline to take that step. While we
need not and do not revisit our prior
decisions allowing certain limitations
on the President’s removal power,
there are compelling reasons not to
extend those precedents to the novel
context of an independent agency led
by a single Director. Such an agency
lacks a foundation in historical
practice and clashes with
constitutional structure by
concentrating power in a unilateral
actor insulated from Presidential
control.
Barr v. American Association of
Political Consultants Inc.
Telephone Consumer Protection Act:
(1) It shall be unlawful for
any person within the United States,
or any person outside the United
States if the recipient is within the
United States—
(A) to make any call (other
than a call made for emergency
purposes or made with the prior
express consent of the called party) using
any automatic telephone dialing
system or an artificial or
prerecorded voice—
(iii) to any telephone number
assigned to a paging service, cellular
telephone service, specialized
mobile radio service, or other radio
common carrier service, or any service
for which the called party is charged
for the call, unless such call is
made solely to collect a debt owed
to or guaranteed by the United
States;
Justice Kavanaugh's Opinion:
Applying the presumption, the Court
invalidates and severs
unconstitutional provisions from the
remainder of the law rather than
razing whole statutes or Acts of
Congress. Put in common parlance, the
tail (one unconstitutional provision)
does not wag the dog (the rest of the
codified statute or the Act as passed
by Congress). Constitutional
litigation is not a game of gotcha
against Congress, where litigants can
ride a discrete constitutional flaw in
a statute to take down the whole,
otherwise constitutional statute. If
the rule were otherwise, the entire
Judiciary Act of 1789 would be invalid
as a consequence of Marbury v.
Madison.
Eighth
Class
Trump v.
Mazars
Majority
Opinion by
Chief Justice
Roberts:
1. This
dispute
therefore
represents a
significant
departure from
historical
practice.
Although the
parties agree
that this
particular
controversy is
justiciable,
we recognize
that it is the
first of its
kind to reach
this Court;
that disputes
of this sort
can raise
important
issues
concerning
relations
between the
branches; that
related
disputes
involving
congressional
efforts to
seek official
Executive
Branch
information
recur on a
regular basis,
including in
the context of
deeply
partisan
controversy;
and that
Congress and
the Executive
have
nonetheless
managed for
over two
centuries to
resolve such
disputes among
themselves
without the
benefit of
guidance from
us. Such
longstanding
practice "'is
a
consideration
of great
weight'" in
cases
concerning
"the
allocation of
power between
[the] two
elected
branches of
Government,"
and it imposes
on us a duty
of care to
ensure that we
not needlessly
disturb "the
compromises
and working
arrangements
that [those]
branches . . .
themselves
have reached."
2. Congress
has no
enumerated
constitutional
power to
conduct
investigations
or issue
subpoenas, but
we have held
that each
House has
power “to
secure needed
information”
in order to
legislate. This “power of inquiry—with process to enforce it—is
an essential
and
appropriate
auxiliary to
the
legislative
function.”
Without
information,
Congress would
be shooting in
the dark,
unable to
legislate
“wisely or
effectively.”
The
congressional
power to
obtain
information is
“broad” and
“indispensable.”
It encompasses
inquiries into
the
administration
of existing
laws, studies
of proposed
laws, and
“surveys of
defects in our
social,
economic or
political
system for the
purpose of
enabling the
Congress to
remedy them.”
Because this
power is
"justified
solely as an
adjunct to the
legislative
process," it
is subject to
several
limitations.
3. The
interbranch
conflict here
does not
vanish simply
because the
subpoenas seek
personal
papers or
because the
President sued
in his
personal
capacity. The
President is
the only
person who
alone composes
a branch of
government. As
a result,
there is not
always a clear
line between
his personal
and official
affairs. "The
interest of
the man" is
often
"connected
with the
constitutional
rights of the
place." The
Federalist No.
51, at 349.
Given the
close
connection
between the
Office of the
President and
its occupant,
congressional
demands for
the
President's
papers can
implicate the
relationship
between the
branches
regardless
whether those
papers are
personal or
official.
4. First,
courts
should
carefully
assess whether
the asserted
legislative
purpose
warrants the
significant
step of
involving the
President and
his papers.
. . . Congress
may not rely
on the
President's
information if
other sources
could
reasonably
provide
Congress the
information it
needs in
light of its
particular
legislative
objective. The
President's
unique
constitutional
position means
that Congress
may not look
to him as a
"case study"
for general
legislation.
. . .
Second, to
narrow the
scope of
possible
conflict
between the
branches, courts
should insist
on a subpoena
no broader
than
reasonably
necessary to
support
Congress's
legislative
objective. The
specificity of
the subpoena's
request
"serves as an
important
safeguard
against
unnecessary
intrusion into
the operation
of the Office
of the
President."
Cheney, 542 U.
S., at 387.
Third,
courts should
be attentive
to the nature
of the
evidence
offered by
Congress to
establish that
a subpoena
advances a
valid
legislative
purpose. The
more detailed
and
substantial
the evidence
of Congress's
legislative
purpose, the
better. .
. . That is
particularly
true when
Congress
contemplates
legislation
that raises
sensitive
constitutional
issues, such
as legislation
concerning the
Presidency. .
. .
Fourth,
courts should
be careful to
assess the
burdens
imposed on the
President by a
subpoena.
. . .
But burdens
imposed by a
congressional
subpoena
should be
carefully
scrutinized,
for they stem
from a rival
political
branch that
has an ongoing
relationship
with the
President and
incentives to
use subpoenas
for
institutional
advantage.
Other
considerations
may be
pertinent as
well; one case
every two
centuries does
not afford
enough
experience for
an exhaustive
list.
Justice
Thomas,
dissenting:
Congress'
legislative
powers do not
authorize it
to engage in a
nationwide
inquisition
with whatever
resources it
chooses to
appropriate
for itself.
The majority's
solution—a
nonexhaustive
four-factor
test of
uncertain
origin—is
better than
nothing. But
the power that
Congress seeks
to exercise
here has even
less basis in
the
Constitution
than the
majority
supposes. I
would reverse
in full
because the
power to
subpoena
private,
nonofficial
documents is
not a
necessary
implication of
Congress'
legislative
powers. If
Congress
wishes to
obtain these
documents, it
should proceed
through the
impeachment
power.
Accordingly, I
respectfully
dissent.
Justice Alito,
dissenting:
Specifically,
the House
should provide
a description
of the type of
legislation
being
considered,
and while
great
specificity is
not necessary,
the
description
should be
sufficient to
permit a court
to assess
whether the
particular
records sought
are of any
special
importance.
The House
should also
spell out its
constitutional
authority to
enact the type
of legislation
that it is
contemplating,
and it
should justify
the scope of
the subpoenas
in relation to
the
articulated
legislative
needs. In
addition, it
should explain
why the
subpoenaed
information,
as opposed to
information
available from
other sources,
is needed. Unless
the House is
required to
make a showing
along these
lines, I would
hold that
enforcement of
the subpoenas
cannot be
ordered.
Because I find
the terms of
the Court’s
remand
inadequate, I
must
respectfully
dissent.
Ninth
Class
Trump v. Vance
Majority
Opinion by Chief
Justice Roberts:
In our
judicial system, “the
public has a right to
every man’s evidence.”
Since the earliest
days of the Republic,
“every man” has
included the President
of the United States.
Beginning with
Jefferson and carrying
on through Clinton,
Presidents have
uniformly testified or
produced documents in
criminal proceedings
when called upon by
federal courts. This
case involves—so far
as we and the parties
can tell—the first
state criminal
subpoena directed to a
President.
Justice Alito,
dissenting:
The subpoena at issue
here is unprecedented.
Never before has a
local prosecutor
subpoenaed the records
of a sitting
President. The Court’s
decision threatens to
impair the functioning
of the Presidency and
provides no real
protection against the
use of the subpoena
power by the Nation’s
2,300+ local
prosecutors. Respect
for the structure of
Government created by
the Constitution
demands greater
protection for an
institution that is
vital to the Nation’s
safety and well-being.
I therefore
respectfully dissent.
Chiafalo v.
Washington
The Electoral
College
U.S. Constitution
Article II:
Each
State shall
appoint, in such
Manner as the
Legislature
thereof may
direct, a Number
of Electors, equal to
the whole Number of
Senators and
Representatives to
which the State may
be entitled in the
Congress: but no
Senator or
Representative, or
Person holding an
Office of Trust or
Profit under the
United States, shall
be appointed an
Elector.
The Electors
shall meet in their
respective States, and
vote by Ballot for two
Persons, of whom one
at least shall not be
an Inhabitant of the
same State with
themselves. And they
shall make a List of
all the Persons voted
for, and of the Number
of Votes for each;
which List they shall
sign and certify, and
transmit sealed to the
Seat of the Government
of the United States,
directed to the
President of the
Senate. The President
of the Senate shall,
in the Presence of the
Senate and House of
Representatives, open
all the Certificates,
and the Votes shall
then be counted. The
Person having the
greatest Number of
Votes shall be the
President, if such
Number be a Majority
of the whole Number of
Electors appointed;
and if there be more
than one who have such
Majority, and have an
equal Number of Votes,
then the House of
Representatives shall
immediately chuse by
Ballot one of them for
President; and if no
Person have a
Majority, then from
the five highest on
the List the said
House shall in like
Manner chuse the
President. But in
chusing the President,
the Votes shall be
taken by States, the
Representation from
each State having one
Vote; A quorum for
this Purpose shall
consist of a Member or
Members from two
thirds of the States,
and a Majority of all
the States shall be
necessary to a Choice.
In every Case, after
the Choice of the
President, the Person
having the greatest
Number of Votes of the
Electors shall be the
Vice President. But if
there should remain
two or more who have
equal Votes, the
Senate shall chuse
from them by Ballot
the Vice President.
The Congress may
determine the Time
of chusing the
Electors, and the
Day on which they
shall give their
Votes; which Day
shall be the same
throughout the
United States.
Twelfth
Amendment:
The electors
shall meet in
their respective
states and vote by
ballot for
President and
Vice-President,
one of whom, at
least, shall not be
an inhabitant of the
same state with
themselves; they
shall name in their
ballots the person
voted for as
President, and in
distinct ballots the
person voted for as
Vice-President, and
they shall make
distinct lists of
all persons voted
for as President,
and of all persons
voted for as
Vice-President,
and of the number
of votes for each,
which lists they
shall sign and
certify, and
transmit sealed to
the seat of the
government of the
United States,
directed to the
President of the
Senate;--The
President of the
Senate shall, in
the presence of
the Senate and
House of
Representatives,
open all the
certificates and
the votes shall
then be counted;--the
person having the
greatest number of
votes for President,
shall be the
President, if such
number be a majority
of the whole number
of electors
appointed; and if no
person have such
majority, then from
the persons having
the highest numbers
not exceeding three
on the list of those
voted for as
President, the House
of Representatives
shall choose
immediately, by
ballot, the
President. But in
choosing the
President, the votes
shall be taken by
states, the
representation from
each state having
one vote; a quorum
for this purpose
shall consist of a
member or members
from two-thirds of
the states, and a
majority of all the
states shall be
necessary to a
choice. And if the
House of
Representatives
shall not choose a
President whenever
the right of choice
shall devolve upon
them, before the
fourth day of March
next following, then
the Vice-President
shall act as
President, as in the
case of the death or
other constitutional
disability of the
President. The
person having the
greatest number of
votes as
Vice-President,
shall be the
Vice-President, if
such number be a
majority of the
whole number of
electors appointed,
and if no person
have a majority,
then from the two
highest numbers on
the list, the Senate
shall choose the
Vice-President; a
quorum for the
purpose shall
consist of
two-thirds of the
whole number of
Senators, and a
majority of the
whole number shall
be necessary to a
choice. But no
person
constitutionally
ineligible to the
office of President
shall be eligible to
that of
Vice-President of
the United States.
Tenth Class
1. Little Sisters of the Poor v. Pennsylvania
Religious
Freedom
Restoration
Act of 1993
(RFRA)
2. Our Lady of
Guadalupe
School v. v.
Morrissey-Berru
Hosanna-Tabor
Evangelical
Lutheran
Church and
School v. EEOC
We agree that
there is such
a ministerial
exception. The
members of a
religious
group put
their faith in
the hands of
their
ministers.
Requiring a
church to
accept or
retain an
unwanted
minister, or
punishing a
church for
failing to do
so, intrudes
upon more than
a mere
employment
decision. Such
action
interferes
with the
internal
governance of
the church,
depriving the
church of
control over
the selection
of those who
will personify
its beliefs.
By imposing an
unwanted
minister, the
state
infringes the
Free Exercise
Clause, which
protects a
religious
group’s right
to shape its
own faith and
mission
through its
appointments.
According the
state the
power to
determine
which
individuals
will minister
to the
faithful also
violates the
Establishment
Clause, which
prohibits
government
involvement in
such
ecclesiastical
decisions.
Our Lady of
Guadalupe
School v.
Morrissey-Berru
Justice
Alito's
Majority
Opinion:
The religious
education and
formation of
students is
the very
reason for the
existence of
most private
religious
schools, and
therefore the
selection and
supervision of
the teachers
upon whom the
schools rely
to do this
work lie at
the core of
their mission.
Judicial
review of the
way in which
religious
schools
discharge
those
responsibilities
would
undermine the
independence
of religious
institutions
in a way that
the First
Amendment does
not tolerate.
Justice
Sotomayor,
dissenting:
1. Two
employers
fired their
employees
allegedly
because one
had breast
cancer and the
other was
elderly.
Purporting to
rely on this
Court’s
decision in
Hosanna-Tabor
Evangelical
Lutheran
Church and
School v.
EEOC, the
majority
shields those
employers from
disability and
age-discrimination
claims. In the
Court’s view,
because the
employees
taught short
religion
modules at
Catholic
elementary
schools, they
were
“ministers” of
the Catholic
faith and thus
could be fired
for any
reason,
whether
religious or
nonreligious,
benign or
bigoted,
without legal
recourse. The
Court reaches
this result
even though
the teachers
taught
primarily
secular
subjects,
lacked
substantial
religious
titles and
training, and
were not even
required to be
Catholic. In
foreclosing
the teachers’
claims, the
Court skews
the facts,
ignores the
applicable
standard of
review, and
collapses
Hosanna-Tabor’s
careful
analysis into
a single
consideration:
whether a
church thinks
its employees
play an
important
religious
role. Because
that
simplistic
approach has
no basis in
law and strips
thousands of
schoolteachers
of their legal
protections, I
respectfully
dissent.
2. In
expanding the
ministerial
exception far
beyond its
historic
narrowness,
the Court
overrides
Congress’
carefully
tailored
exceptions for
religious
employers.
Little if
nothing
appears left
of the
statutory
exemptions
after today’s
constitutional
broadside. So
long as the
employer
determines
that an
employee’s
“duties” are
“vital” to
“carrying out
the mission of
the church,”
then today’s
laissez-faire
analysis
appears to
allow that
employer to
make
employment
decisions
because of a
person’s skin
color, age,
disability,
sex, or any
other
protected
trait for
reasons having
nothing to do
with religion.
This sweeping
result is
profoundly
unfair. The
Court is not
only wrong on
the facts, but
its error also
risks upending
antidiscrimination
protections
for many
employees of
religious
entities.
Recently, this
Court has
lamented a
perceived
“discrimination
against
religion.” Yet
here it swings
the pendulum
in the extreme
opposite
direction,
permitting
religious
entities to
discriminate
widely and
with impunity
for reasons
wholly
divorced from
religious
beliefs. The
inherent
injustice in
the Court’s
conclusion
will be
impossible to
ignore for
long,
particularly
in a
pluralistic
society like
ours. One must
hope that a
decision deft
enough to
remold
Hosanna-Tabor
to fit the
result reached
today reflects
the Court’s
capacity to
cabin the
consequences
tomorrow.
Class 11
3. Espinoza v.
Montana
Department of
Revenue
Trinity
Lutheran
Church v.
Comer
Justice
Sotomayor,
dissenting:
To hear the
Court tell it,
this is a
simple case
about
recycling
tires to
resurface
a playground.
The stakes are
higher. This
case is about
nothing less
than the
relationship
between
religious
institutions
and the civil
government —
that is,
between church
and state. The
Court today
profoundly
changes that
relationship
by holding,
for the first
time, that the
Constitution
requires the
government to
provide public
funds directly
to a church.
Its decision
slights both
our precedents
and our
history, and
its reasoning
weakens this
country's
longstanding
commitment to
a separation
of church and
state
beneficial to
both.
Espinoza v.
Montana
Department of
Revenue
Chief Justice
Robert's
Majority
Opinion:
The Supremacy
Clause
provides that
"the Judges in
every State
shall be
bound" by the
Federal
Constitution,
"any Thing in
the
Constitution
or Laws of any
State to the
Contrary
notwithstanding."
Art. VI, cl.
2. "[T]his
Clause creates
a rule of
decision"
directing
state courts
that they
"must not give
effect to
state laws
that conflict
with federal
law[]." Given
the conflict
between the
Free Exercise
Clause and the
application of
the no-aid
provision
here, the
Montana
Supreme Court
should have
"disregard[ed]"
the no-aid
provision and
decided this
case
"conformably
to the
[C]onstitution"
of the United
States.
Marbury v.
Madison, 1
Cranch 137,
178 (1803).
That "supreme
law of the
land" condemns
discrimination
against
religious
schools and
the families
whose children
attend them.
Id., at 180.
They are
"member[s] of
the community
too," and
their
exclusion from
the
scholarship
program here
is "odious to
our
Constitution"
and "cannot
stand."
Trinity
Lutheran, 582
U. S., at ___,
___ (slip op.,
at 11, 15).
Class 12
(Preview of
the 2020-21
Supreme Court
Term)
1. Fulton v.
City of
Philadelphia
(First
Amendment Free
Exercise and
Free Speech
Clauses)
2. California
v. Texas
(Commerce
Clause
challenge to
the individual
mandate
provision in
the Affordable
Care Act)
Barr v. American Association of Political
Consultants Inc.
Justice Kavanaugh's Opinion:
Applying the presumption, the Court invalidates and severs
unconstitutional provisions from the remainder of the law rather
than razing whole statutes or Acts of Congress. Put in common
parlance, the tail (one unconstitutional provision) does not wag
the dog (the rest of the codified statute or the Act as passed by
Congress). Constitutional litigation is not a game of gotcha
against Congress, where litigants can ride a discrete
constitutional flaw in a statute to take down the whole, otherwise
constitutional statute. If the rule were otherwise, the entire
Judiciary Act of 1789 would be invalid as a consequence of Marbury
v. Madison.
3. Department of Justice v. House Committee on the Judiciary
(access by the House Judiciary Committee as part of its
impeachment inquiry to parts of Special Counsel Mueller's Report
kept secret)
4. Mnuchin v. Collins (challenge to the structure of the Federal
Financing Housing Agency as a violation of separation of powers
and consideration of the appropriate remedy if the Agency is
unconstitutionally structured)
5. Edwards v. Vannoy (in light of the Court's decision this Term
in Ramos v. Louisiana, whether the Sixth Amendment requirement of
a unanimous jury should be applied retroactively to defendants
seeking collateral review of their convictions)
Electionland 2020 from ProPublica - https://www.propublica.org/article/electionland-2020-usps-chaos-election-cybersecurity-august-voting-and-more
and https://www.propublica.org/electionland
Sonia and Ruth
by Leora Harpaz
Sonia and Ruth
No longer youth
Presenting a liberal bouquet.
They muscle their might
They continue to fight
Lamenting the rightward sway.
Their quest is just
Pen words they must
Fomenting the Chief’s dismay.
Sonia and Ruth
Together in truth
Dissenting the night away.