Course Name: Major Recent Supreme Court
Decisions
Instructor: Leora Harpaz
Email: lharpaz@lharpaz.com
Class 1 (July 9)
Title
VII - Bostock v. Clayton
County 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
Quotations
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
Class 2 (July 16)
June Medical Services v. Russo
Quotations:
Planned Parenthood of Pennsylvania v.
Casey (1992):
1. A finding of an undue burden is a
shorthand for the conclusion that a state
regulation has the purpose or effect of
placing a substantial obstacle in the path
of a woman seeking an abortion of a
nonviable fetus.
June Medical Services v. Russo
Justice Breyer, plurality opinion:
We conclude, in light of the record, that
the District Court’s significant factual
findings—both as to burdens and as to
benefits—have ample evidentiary support.
None is “clearly erroneous.” Given the facts
found, we must also uphold the District
Court’s related factual and legal
determinations. These include its
determination that Louisiana’s law poses a
“substantial obstacle” to women seeking an
abortion; its determination that the law
offers no significant health-related
benefits; and its determination that the law
consequently imposes an “undue burden” on a
woman’s constitutional right to choose to
have an abortion. We also agree with its
ultimate legal conclusion that, in light of
these findings and our precedents, Act 620
violates the Constitution.
Chief Justice Roberts, concurring opinion:
Stare decisis instructs us to treat like
cases alike. The result in this case is
controlled by our decision four years ago
invalidating a nearly identical Texas law.
The Louisiana law burdens women seeking
previability abortions to the same extent as
the Texas law, according to factual findings
that are not clearly erroneous. For that
reason, I concur in the judgment of the
Court that the Louisiana law is
unconstitutional.
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.
Class 3 (July 23)
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. 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.
3. 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."
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 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.
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. The
President
contends that
the subpoena
is
unenforceable.
We granted
certiorari to
decide whether
Article II and
the Supremacy
Clause
categorically
preclude, or
require a
heightened
standard for,
the issuance
of a state
criminal
subpoena to a
sitting
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
(and Colorado
Dept. of State
v. Baca)
Electoral
College
Constitutional
Provisions
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.
Class 4 (July
30)
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
Until today,
we have not
had occasion
to consider
whether this
freedom of a
religious
organization
to select its
ministers is
implicated by
a suit
alleging
discrimination
in employment.
The Courts of
Appeals, in
contrast, have
had extensive
experience
with this
issue. Since
the passage of
Title VII of
the Civil
Rights Act of
1964 and other
employment
discrimination
laws, the
Courts of
Appeals have
uniformly
recognized the
existence of a
“ministerial
exception,”
grounded in
the First
Amendment,
that precludes
application of
such
legislation to
claims
concerning the
employment
relationship
between a
religious
institution
and its
ministers.
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
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.
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.