In this video, Nate Mowry interviews attorney Richard Bernstein. Bernstein filed “friend of the court” briefs on the behalf of current and former government officials in Fischer v. United States
and Trump v. United States
. He speaks on the impact of the Jan. 6, 2021, attacks on the U.S. Capitol on the legal system and the country at large.
The post Richard Bernstein on the impact of Jan. 6 at the court appeared first on SCOTUSblog .
The Supreme Court on Wednesday was divided over whether a federal law requiring hospitals that participate in Medicare to provide “necessary stabilizing treatment” in an emergency overrides an Idaho law that bars most abortions.
The court’s ruling could affect health care in emergency rooms in the 22 states that have imposed restrictions on abortions, particularly in the six states that – like Idaho – lack exemptions to the general ban to protect the health of the mother.
The federal law at the center of the case is known as the Emergency Medical Treatment and Labor Act. Passed in 1986, the law was intended to ensure that all patients have access to emergency services without regard to their ability to pay for those services. And in particular, EMTALA provides that when someone with an “emergency medical condition” comes to a hospital that participates in Medicare, the hospital must offer the treatment necessary to stabilize that condition.
Shortly after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization , overturning the constitutional right to an abortion, the Biden administration went to federal court in Idaho. It argued that EMTALA trumps an Idaho law that generally makes it a crime to provide an abortion except in a handful of circumstances, such as to save the life of the mother or in cases of rape or incest.
A federal judge agreed with the Biden administration and barred the state from enforcing its abortion ban to the extent that it conflicted with EMTALA. After a divided U.S. Court of Appeals for the 9th Circuit declined to put that order on hold, the state and its Republican-controlled legislature came to the Supreme Court, which agreed earlier this year to allow Idaho to enforce the law and to weigh in on the merits of the dispute.
Representing the state, Idaho Solicitor General Joshua Turner told the justices that nothing in EMTALA requires doctors to provide treatments that violate state law. Turner urged the court to reject the federal government’s “unlimited” reading of EMTALA – which, he contended, would apply not only to abortion but also to laws regulating opioid treatments and to informed consent laws, among others.
U.S. Solicitor General Elizabeth Prelogar offered a very different view of EMTALA, characterizing it as a law whose “promise is simple but profound.” The law was intended to ensure that hospitals do not deny treatment to any patients who arrive at the emergency room. In cases in which there is no other way to stabilize a pregnant woman and prevent her health from deteriorating, Prelogar said, abortion is the appropriate care that hospitals must provide – even if Idaho can enforce its ban in virtually every other circumstance.
The court’s three liberal justices repeatedly pressed Turner on the state’s interpretation of EMTALA, emphasizing a variety of scenarios in which Idaho would not allow a pregnant woman to obtain an abortion. Justice Ketanji Brown Jackson described what she saw as a direct conflict between EMTALA and Idaho’s abortion ban. EMTALA, she said, provides that hospitals must provide treatment to stabilize a patient’s health, but – if abortion is involved – Idaho prohibits such treatment unless it is necessary to prevent death.
Justice Elena Kagan echoed Jackson’s concerns, asking Turner about a scenario in which a pregnant woman arrives at the emergency room with a serious health condition that will not lead to her death, but – without an abortion – will result in her being unable to have more children. A variety of scenarios exist, Kagan and her liberal colleagues repeatedly stressed, in which a pregnant patient, though not at risk of dying, could be in a state of medical distress that, without receiving an abortion, might lead to loss of organs, loss of fertility, or a need for lifelong treatments like dialysis. EMTALA, Kagan stressed, would require the hospital to perform an abortion, but Idaho would not permit it.
Turner conceded that such a situation would be “very difficult” and raise “tough medical questions.” But Kagan was not mollified by that response, countering that federal law already addresses the question, providing that doctors don’t have to wait until the pregnant woman is ready to die.
Justice Sonia Sotomayor asked Turner to address a series of rapid-fire hypotheticals involving pregnant women, including a patient whose problems began during her 14th week of pregnancy but were not sufficiently serious to warrant an abortion, leading to her delivery of the baby at 27 weeks and a hysterectomy, so that she could not have any more children.
Turner posited that doctors in Idaho could perform abortions in some of the circumstances that Sotomayor outlined, telling the court that physicians would not need “medical certainty” that a patient would die to perform an abortion.
Turner’s assurances led to a series of questions from the court’s conservative justices. Some of them, like Justice Amy Coney Barrett and Chief Justice John Roberts, focused on how the law would actually operate in practice under Turner’s description. Would doctors who make the decision to perform an abortion, Barrett asked, be prosecuted under Idaho law? And has Idaho issued any kind of guidance to assist doctors in making these kinds of decisions?
Roberts shared Barrett’s concerns, asking Turner who makes decisions about whether an abortion would be covered under Idaho law under this standard.
Turner explained that the state’s Board of Medicine oversees the licensing of Idaho physicians, and that the board looks at whether a doctor made the decision in good faith.
Other justices looked at a broader issue: whether there is in practice any real conflict between EMTALA and the Idaho ban in light of a ruling by the Idaho Supreme Court that narrowed the scope of the law, so that EMTALA would not override it. Justice Brett Kavanaugh asked Turner to focus on “the actual dispute as it exists now.” For each of the conditions that the federal government identifies as requiring abortion as a stabilizing treatment, Kavanaugh observed, the state now contends that Idaho law actually would permit an abortion. Is there any condition, Kavanaugh queried, where Idaho law would not allow an abortion? And if not, Kavanaugh continued, what would that mean for this case?
Turner responded that although the federal government maintains that abortion is not the only stabilizing care for mental health conditions, the American Psychiatric Association indicates that abortions are “imperative for mental health conditions.”
U.S. Solicitor General Elizabeth Prelogar argues for the government. (William Hennessy)
Prelogar pushed back against any suggestion that there is no gap between the care that EMTALA requires and what Idaho law allows. She told the justices that “the situation on the ground in Idaho is showing the devastating consequences of that gap,” as emergency rooms in Idaho are faced with the unpalatable choice of waiting for a pregnant woman’s condition to deteriorate enough so that they can provide abortions or transferring her to another state entirely – which, she said, hospitals in the state are currently doing once every other week.
Addressing Turner’s contention that mental health conditions would not be covered by Idaho law, Prelogar insisted that in grave mental health emergencies providing an abortion would not be the proper medical practice and further would not do anything to address the underlying mental health condition, which would be treated with psychiatric medication. A patient in a mental health emergency may not be able to provide informed consent to an abortion. So although an “emergency medical condition” can include mental health problems, she said, it would not be the government’s practice to include abortion as care that would be required in such a situation.
Prelogar faced a barrage of questions from the court’s conservative justices about whether the government can supersede Idaho’s general abortion ban by imposing conditions on the recipients of federal funds – here, the hospitals that entered into Medicare contracts. Both Justice Clarence Thomas and Alito raised this question, with Thomas asking Prelogar to identify other legislation under the Constitution’s spending clause that preempts criminal law. Thomas and Alito also questioned whether the federal government can supersede a state’s laws when the state did not enter into the contract with the federal government (and therefore did not agree to the conditions imposed by the government).
Justice Neil Gorsuch expressed concern about the scope of the government’s power to place conditions on federal spending. Could the federal government, Gorsuch asked, condition the receipt of funds by hospitals on their compliance with federal medical malpractice and licensing requirements?
Barrett suggested that it was “odd” that a private entity could circumvent state law though a side agreement with the federal government. Could Congress use its authority under the spending clause to regulate or prohibit other kinds of medical care, she asked, such as gender reassignment surgery, or to ban abortion across the country?
Prelogar acknowledged that Congress has “broad authority through the spending clause.”
Gorsuch then appeared doubtful about the federal government’s need to seek an injunction barring Idaho from enforcing its ban at all. He told Prelogar that EMTALA is a “reticulated statute” that allows the government to seek remedies such as fines for noncomplicance. “Congress has given you lots of tools,” he told Prelogar.
Alito complained, with about 30 minutes left in the nearly two-hour argument, that the attorneys and the justices had “hardly” mentioned EMTALA’s reference to the “unborn child,” suggesting that it was an odd phrase to put in a statute that, on the government’s reading, is supposed to require abortions? In Alito’s view, the inclusion of the phrase indicated that the statute imposes a duty not only to the pregnant woman, but also to the unborn child. But the government, he said, was asking the justices to interpret “a statute signed by Ronald Reagan” as imposing a duty to perform an abortion even when doing so would be contrary to state law.
Barrett and Roberts both asked about the interaction between EMTALA and “conscience objections” – whether either doctors or hospitals could decline to perform abortions based on their religious or moral beliefs.
Prelogar told the court that both hospitals and physicians could assert a conscience objection, and that “EMTALA does not override either set of conscience protections.” In response to a follow-up question from Roberts, she explained that hospitals make their staffing decisions to ensure that someone who is able to provide care is on call. “[I]f the question is could you force an individual doctor to step in then over a conscience objection, the answer is no.” However, she acknowledged, if a hospital repeatedly did not have someone available to run its emergency room, including providing abortions in an emergency, it was possible that the federal government could eventually “terminate the Medicare funding agreement.”
A decision in the case is expected by summer.
This article was originally published at Howe on the Court .
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Today is the last day of scheduled oral arguments for the 2023-24 term. At 10 a.m. EDT, the justices will hear oral argument in Trump v. United States . Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:
The post The morning read for Thursday, April 25 appeared first on SCOTUSblog .
The oral argument Tuesday in Starbucks Corp. v. McKinney was surprisingly one-sided, as the justices seem to have come to the bench settled on the view that the lower court’s ruling could not stand. The basic issue in the case is what the National Labor Relations Board has to prove to get a preliminary injunction against an employer (in this case, Starbucks) while it conducts administrative proceedings to determine if the employer committed an unfair labor practice.
It became pretty clear early in the argument that the justices were not satisfied with the NLRB-preferred standard, applied by the lower courts. Under that standard, all that the NLRB has to prove about the merits of its case is that it has a legal theory that is “not frivolous” and “some evidence to support it.” That is much more lenient than the four-factor standard courts use for non-labor injunctions, which would require the NLRB to establish a “likelihood of success” on the merits (in addition to consideration of irreparable injury, the balance of equities, and the public interest). Early in Lisa Blatt’s argument for Starbucks, Justice Sonia Sotomayor commented, “I do understand why that needs to be corrected because you’re right, it’s the court that has to decide the likelihood of [success] on the merits.” Nor was she alone; with the lone exception of Justice Ketanji Brown Jackson, not a justice said a word to support the NLRB’s standard on that part of the case.
Indeed, under intense questioning Austin Raynor (counsel for the NLRB) declined to defend the standard accepted by the lower courts. By the end of the argument, the only difference between his position and Blatt’s was the extent to which courts should weigh the NLRB’s decision to press the matter as evidence that the NLRB ultimately would rule against Starbucks. And even on that much narrower ground he made scant headway, as the justices seemed to think it clear that a court, when asked to issue an injunction, would (and should) follow its own views as to the correct legal standard. As Justice Elena Kagan put it, “It’s got to be the court’s view of the law, right?”
In the same vein, when Raynor continued to push for judicial deference to the NLRB’s views, Justice Neil Gorsuch quipped: “What’s wrong with the best judgment a neutral magistrate can issue?”
Much of the argument was devoted, it seemed, to crafting the exact language of an opinion that would correct the decision to issue an injunction. Most pointedly, at the end of the argument, when Raynor had conceded that so much of the lower court’s decision was indefensible, Kagan pressed him to define precisely what remained in dispute. At that point, referring to the second, third, and fourth factors of Blatt’s proposed test (in addition to the likelihood of success on the merits), she commented that “I don’t think that Ms. Blatt retreated at all from [the position in her] brief today. So I take it that that’s pretty much not at issue now.” Pressed, Raynor agreed with Kagan that he would accept Blatt’s position on the latter three factors. So by the end of the argument, he had conceded to Blatt’s view on three of the four factors and conceded that the lower-court standard on the fourth factor was unjustifiably lax.
This was a surprising argument. Not just because it looks like Starbucks will win. But because it was so clear from so early in the argument that the NLRB had vanishingly thin support. It is rare indeed to see the government decide to defend a decision in the briefing but essentially give up and concede defeat in the face of questioning at the oral argument.
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Monday’s argument in Smith v. Spizziri was this month’s case under the Federal Arbitration Act. This one explores what a trial court can do when it refers a pending suit to arbitration. Section 3 of the FAA says that if the court refers the case to arbitration, it “shall on application of one of the parties stay the trial of the action until such arbitration has been had.” The question is whether the trial court, instead of staying the action, can go ahead and dismiss it entirely.
The argument included a fair amount of questioning about the text. For example, early in Daniel Geyser’s argument (arguing for a stay rather than dismissal), Justice Ketanji Brown Jackson pointed out that the statute says “stay the ‘trial,’” and commented that “you would have an easier case if it said stay the ‘proceeding’ or stay the ‘action.’ … You want us to interpret it to be ‘proceeding’ or ‘action,’ but that’s not exactly what it says.”
On the other hand, Justice Sonia Sotomayor pressed Joshua Rosenkranz (arguing for dismissal as an alternative to a stay) forcefully on her reading of the text.
Sotomayor told Rosenkranz that she couldn’t “put aside the language, which says ‘stay until such arbitration has been had in accordance with the terms of the agreement,’ so it’s putting a limit,” she noted. “And it also says ‘providing that the applicant for the stay is not in default in proceeding’ … When the application is made the district court can’t tell how long it’s going to be.”
Sotomayor was emphatic: “I can’t read dismissal into those two conditions. If they were going to permit dismissal, they would have put ‘stay the action,’ period.”
The other justices were listening. Late in the argument, Jackson brought Rosenkranz back to the same point, asking how Rosenkranz’s argument was “consistent with the language that Justice Sotomayor put forward. I mean, … the statute says ‘stay until,’ so at least Congress thought that it could come back …?” Justice Brett Kavanaugh followed up on the same point, suggesting that the three of them all see a strong textual argument against dismissal.
A much greater share of the argument, though, was devoted to discussing the practical consequences of dismissal as compared to a stay. On that point, the justices who addressed the point seemed united in the view that it is strange to force a plaintiff to pay two filing fees for one dispute. Chief Justice John Roberts, for example, noted to Rosenkranz that “it’s a much greater burden if the case isn’t there and something arises where you need to go to court. You’re going to have to start all over.”
Along similar lines, Jackson said, “The plaintiff says ‘I paid on day one because I brought this in court and it was whatever the filing fee is. My case got shunted to arbitration. I win. And now you’re saying I have to pay another $500?’”
And Justice Elena Kagan noted that, on the other hand, the burden of leaving a case on the docket is trivial: “But, presumably … a district court will just keep a list of cases now in arbitration, and that list will exist in some file someplace, and nobody will do anything with it, except if there’s a problem.”
As the argument closed, sentiment seemed to coalesce on the relative balance of burdens from leaving the case on the docket or refiling. Jackson summarized her sense: “[I]f the case is dismissed, they would have to actually file a new action with the fee and everything else to open up that case … Why isn’t that more burdensome for the overall system than to just allow the district court to put this on a list somewhere?”
In the same vein, Roberts opined, “You’re saying that it’s more trouble to let the thing sit there than to file a new action, right? … It seems to me that the alternative would be a lot more burdensome than just sitting there.”
If you’re an arbitration proponent and you don’t have the chief justice solidly in your camp, it is hard to expect to find five justices to support you. In the same vein, there are not a lot of cases where he agrees with Jackson and that is not the winning side of the case.
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Less than a month after the justices heard oral arguments in a case seeking to roll back access to one of the drugs used in medication abortions, the Supreme Court will hear oral arguments on Wednesday in another case involving abortion. At issue in Moyle v. United States and Idaho v. United States is whether emergency rooms in Idaho can provide abortions to pregnant women in an emergency. The Biden administration contends that a federal law known as the Emergency Medical Treatment and Labor Act can in some narrow circumstances trump a state law that criminalizes most abortions in the state. The state rejects the government’s interpretation of EMTALA as “an exercise of raw executive power,” while its Republican legislature condemns it as “an intolerable federal power grab.” They counter that the law does not require physicians to provide specific medical treatments, much less requires hospitals to perform abortions.
The case before the court on Wednesday began nearly two years ago in a federal court in Idaho. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization , overturning the constitutional right to an abortion, the Biden administration argued that EMTALA – which requires emergency rooms that participate in Medicare to provide “necessary stabilizing treatment” – supersedes an Idaho law that makes it a crime to provide an abortion except in a handful of narrow circumstances, including to save the life of the mother or in cases of rape or incest.
U.S. District Judge B. Lynn Winmill agreed with the Biden administration. One day before the ldaho law was scheduled to take effect in late August 2022, he issued an order that prohibited Idaho from enforcing the ban to the extent that it conflicted with EMTALA. Over a dissent by four judges, the full U.S. Court of Appeals for the 9th Circuit rejected the state’s request to put Winmill’s ruling on hold while its appeal proceeded.
The state and its Republican-controlled legislature, which had joined the case to defend the law, then came to the Supreme Court, which in early January agreed to both put Winmill’s order on hold temporarily and to take up the case on the merits and hear oral argument.
In its brief in the Supreme Court, the legislature calls the suit “unprecedented,” arguing that the government’s interpretation rests on a “novel” theory that “denies States and the American people the freedom to chart their own course.” For its part, the state stresses that the “whole point of Dobbs was to restore to the states their authority to regulate abortion.”
Both the state and the legislature emphasize that EMTALA itself expressly provides that it does not trump any requirement imposed by state or local law “except to the extent that the requirement directly conflicts with a requirement” imposed by EMTALA. There is no such direct conflict here, they maintain, because EMTALA simply bars emergency rooms in hospitals that participate in Medicare from turning away lower-income patients. Instead, ERs must screen patients and stabilize them before transferring or discharging them. The law, the state argues, requires hospitals to provide this same emergency care to all patients, not only to pregnant patients but also to a patient’s “unborn child.”
The federal law does not, however, say anything about abortion or even require emergency rooms to provide any specific medical treatments. To the contrary, the legislature observes, the Medicare Act provides that federal officials will not “exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.”
EMTALA addresses a patient’s treatment, the state maintains, only in the sense that it seeks to ensure that all patients are treated the same, regardless of their insurance coverage or socioeconomic status. Otherwise, the state tells the justices, “EMTALA operates within the menu of lawful treatments in a particular state and available at a particular hospital, requiring hospitals to offer stabilizing care from that menu. It neither authorizes nor requires hospitals to violate state law.”
But even if EMTALA did require ERs to provide specific medical treatments, the legislature continues, there would still not be a direct conflict between EMTALA and Idaho law. Testimony in the lower court indicated (but the district court ignored), the legislators say, that emergency room physicians would be able to provide care for virtually all of the emergency conditions that the government hypothesized, because the procedures that the patients would need would either be necessary to save their lives or would not be abortions at all.
The government’s interpretation of EMTALA as requiring ERs to provide abortions would both explicitly conflict with the Idaho statute’s goal of protecting the “unborn child,” and with federal laws that generally bar the use of federal funds for abortions unless the mother’s life is endangered or in cases of rape or incest. “It is nonsensical,” the state writes, “to assume that Congress required the very thing it prohibits using federal dollars to fund.”
Interpreting EMTALA to require hospitals to provide emergency care that sometimes includes abortions is also inconsistent, the state and the legislature argue, with the “major questions” doctrine – the idea that if Congress intends to give a federal agency the power to make decisions with vast economic or political significance, it must say so clearly. EMTALA, the legislators say, does not say anything about abortion, much less serve as “HHS’s Trojan horse” allowing the Biden administration to have “the final word on the availability of abortion in most hospitals nationwide.” Instead, the legislators say, Congress and the states should be able to make those kinds of decisions. This is particularly true given the stakes of the Biden administration’s interpretation: Medicare spending in Idaho, where one in five residents is enrolled in the program, was $3.4 billion in the two-year period between 2018 and 2020, while annual Medicare spending in 2022 was nearly a trillion dollars.
And although the Constitution does allow the government to impose conditions on the recipients of federal funds, those conditions only apply when the recipients voluntarily agree to them – which the hospitals may have done in this case, by entering into Medicare contracts, but Idaho did not. Moreover, the legislators add, the penalty that the government has threatened for hospitals that do not provide abortions would be an “outsized penalty” that would “create a financial and public-health crisis in Idaho and the many other States that have returned to regulating abortion since Dobbs.”
The Biden administration emphasizes that the question before the court is a “narrow” one that “does not involve whether States can prohibit abortion generally” but instead focuses on whether states “can deny pregnant women essential medical care to prevent grave harm to their health notwithstanding EMTALA’s stabilization mandate.” Although that question is “profoundly important for pregnant women and the providers who treat them in emergencies,” U.S. Solicitor General Elizabeth Prelogar acknowledges, “it is a discrete question of statutory interpretation that arises only in rare circumstances and does not broadly implicate the national debate on abortion policy.’
The government depicts EMTALA as serving a very different purpose than the state and the legislature suggest. Rather than merely preventing patient dumping, it contends, the law “promises essential emergency care to all Americans.” This means, the government writes, that when a pregnant woman “experiences an emergency medical condition that makes continuing the pregnancy a grave threat to her life or health, pregnancy termination is essential medical care.”
The federal government, it notes, has long interpreted EMTALA to require hospitals to offer abortions as stabilizing treatment, dating back to the George W. Bush administration. But until the court’s decision in Dobbs, there was no conflict between that interpretation and state law, the government explains, because states could generally not bar abortions. And even now, most other state laws restricting abortion contain exceptions allowing health-care providers to end a pregnancy when necessary to avoid serious harm to the health of the pregnant women.
The text of EMTALA makes clear that it trumps state law only when the state law “directly conflicts” with EMTALA, the government reasons. So although Idaho can enforce almost all of its law restricting abortion, the government asserts, the state “cannot prohibit the emergency care that federal law requires in the narrow circumstances covered by EMTALA.” Specifically, the government continues, Idaho’s law bars the termination of a pregnancy unless it is “necessary to prevent the death of a pregnant woman.” But, as the district court concluded, the government explains, EMTALA could require the termination of a pregnancy as stabilizing treatment to prevent serious harm to the woman’s health (but not her death) in several scenarios in which providing an abortion would be a felony under Idaho law – for example, the rupture of the amniotic sac or the placenta, an uncontrollable uterine hemorrhage, or preeclampsia.
The government pushes back against the suggestion by the state and the legislature that EMTALA merely bars emergency rooms from turning away patients and does not require specific kinds of treatments. That argument, the government insists, is inconsistent with the text of EMTALA, which expressly requires participating hospitals to provide “any individual” with an emergency medical condition “such treatment as may be required to stabilize the medical condition.”
Similarly, the government continues, there is no merit to the state’s contention that EMTALA cannot require states to provide stabilizing treatment that is barred by state law because such care would not be “within the staff and facilities available at the hospital,” as federal law requires. The text of EMTALA, the government argues, “refers to physical and personnel constraints. It cannot plausibly be read as a cryptic incorporation of state law.”
Under any of the interpretations offered by the state and the legislature, the government posits, EMTALA could never preempt state laws regulating abortion, no matter how restrictive they were. “That means a pregnant women could arrive at a hospital urgently needing essential care and, instead of offering ‘such treatment as may be required to stabilize the medical condition,’ the hospital would have to let her die. EMTALA’s stabilization mandate cannot be such an empty promise,” the government cautions.
The government also emphasizes that Congress has broad power to decide what conditions it will place on the receipt of federal funds. Hospitals that want to participate in Medicare and Medicaid have traditionally been required to “satisfy a host of conditions that address the safe and effective provision of healthcare,” it contends. The government thus rejects the legislature’s argument that Congress cannot rely on its spending power to force states to disregard their laws when the states have not voluntarily agreed to do so. Congress, the government insists, “is not commanding Idaho to do anything; the funding recipients are the hospitals, not the State.”
The government also pushes back against the challengers’ suggestion that the government’s interpretation violates the major questions doctrine. This case, the government emphasizes, is not about the authority that Congress gave to the Department of Health and Human Services, but instead the decisions made by Congress itself in EMTALA to require hospitals to provide stabilizing treatment in an emergency. “The mere fact that a question of statutory interpretation is consequential or controversial has never been a reason to put a thumb on one side of the interpretive scale,” the government concludes, particularly when the executive branch, Congress, and the courts have all shared this understanding of EMTALA “for nearly four decades.”
This article was originally published at Howe on the Court .
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At 10 a.m. EDT, the justices will hear oral argument in Moyle v. U.S. Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:
The post The morning read for Wednesday, April 24 appeared first on SCOTUSblog .
The justices will hear oral argument in Department of State v. Muñoz and Starbucks Corp. v. McKinney today. Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Tuesday morning read:
The post The morning read for Tuesday, April 23 appeared first on SCOTUSblog .
Today is the last day of argument for the 2023-24 term, and – as everyone in the courtroom knows – we are here to see what is probably the biggest case of the term: Trump v. United States.
Yesterday, after an intense argument over abortion and emergency care in Moyle v. United States, Chief Justice John Roberts popped over to Georgetown University Law Center’s annual end-of-arguments reception, which revolves around the law school’s Supreme Court Institute and all those who participate in its moot courts preparing advocates who will argue their cases before the justices.
Roberts gave a tribute to the Supreme Court Institute itself, which is celebrating its 25th anniversary, and which he had participated in years ago as both an advocate preparing for argument and as a moot jurist helping others prepare.
“For a quarter of a century, the institute has brought together the very best of the appellate bar to prepare lawyers for appearances before our court,” said Roberts, who was joined at the event by Justices Elena Kagan and Brett Kavanaugh.
The chief justice also discussed how oral argument has changed recently, especially after the post-pandemic return to the bench and the addition of a “seriatum” round of questioning in seniority order, after the traditional “free for all” round. Roberts recalled with fondness one of his arguments as an advocate, in 1999’s Rice v. Cayetano.
“To give you an idea of how precisely the [then-Chief Justice William Rehnquist] ran things,” Roberts said, the audio recording for that argument “lasts exactly one hour, one minute and 11 seconds, time that included calling the case, three advocates making their way to the lectern, and adjourning the court for the day.”
Roberts was implicitly recognizing that the recent changes have led to some pretty lengthy argument sessions. The justices have made some progress this term keeping things in check. One case last week clocked in at 44 minutes (including calling the case, etc.). But the biggest cases can run for two hours or more.
Today, it will be “or more.”
The courtroom is filling up, though we know that the petitioner, former President Donald Trump, is otherwise occupied in a Manhattan courtroom, where the judge denied his request to be allowed to attend the Supreme Court argument in his federal case. (It’s debatable whether Trump was actually going to attend, or as with his Colorado ballot argument in February, his lawyers might have talked him out of showing up.)
For the record, the temperature in the courtroom is quite comfortable and not at all too cold, as the former president complained about his Manhattan courtroom last week.
In the bar section, Neal Katyal, a former acting U.S. solicitor general under President Barack Obama is here, as is Seth Waxman, a former solicitor general under President Bill Clinton. (Ted Olson, a solicitor general under President George W. Bush, was here Monday for the big argument in City of Grants Pass v. Johnson. Olson happened to win over Roberts in Rice v. Cayetano.)
In the public gallery, there are some spectators with no apparent connection to the case, but they seem to be happy to be here for this big argument. Former U.S. Sen. Doug Jones of Alabama, who was Justice Ketanji Brown Jackson’s “sherpa” during her confirmation, is seated in the back of the public gallery. In the front row, Judge Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit, is here. Hardiman was twice a finalist for Supreme Court openings under Trump, and he famously set off speculation when he was spotted gassing up his car in Pennsylvania for a presumptive trip to Washington in 2017.
In the justices’ guest box, Jane Roberts and Ashley Kavanaugh, who both tend to come for some of the court’s biggest arguments, are here today.
At 9:45 a.m., Special Counsel Jack Smith, who brought the indictment against Trump over the former president’s alleged role in conspiring to overturn the results of the 2020 election, enters the courtroom and joins his team.
Smith is leaving the argument to his “counselor to the special counsel,” Michael Dreeben, a veteran of the solicitor general’s office who has argued more than 100 cases in the high court. Dreeben is wearing an ordinary business suit, and not the morning coat usually worn by male lawyers for the federal government, though later, in questioning, he will tell the justices, “I am speaking on behalf of the Justice Department. We’re representing the United States.”
At the petitioner’s counsel’s table is John Sauer of the James Otis Law Group of St. Louis, who will argue on behalf of the former president. Sauer was a law clerk to Justice Antonin Scalia and served as solicitor general of Missouri.
When the justices take the bench at 10 a.m., Roberts immediately calls the case. There are no opinions or bar admissions as preliminaries. What follows is a 2-hour, 40-minute high-minded civics lesson. It’s a bit of a shame that there do not appear to be any classes of high school students in the courtroom today, as there were earlier this week.
There are references to Supreme Court foundational classics such as Marbury v. Madison and McCullough v. Maryland, as well as to United States v. Nixon (the Watergate tapes case), Nixon v. Fitzgerald (which held that the former president had absolute immunity from civil liability for his official acts in office), and Morrison v. Olson, about the then-in-force independent counsel law. Sauer refers to Founding Fathers including James Madison and Gouverneur Morris. (I need to dig up the 8th-grade civics paper I did on the Pennsylvania delegate to the Constitutional Convention, and see whether I covered Morris’s point about “co-agitators.”)
There are questions about other U.S. presidents who might have been prosecuted for official acts. Justice Clarence Thomas refers to Operation Mongoose, involving CIA and other U.S.-led efforts under President John F. Kennedy to interfere in Cuba. Justice Samuel Alito asks about President Franklin D. Roosevelt’s internment of Japanese and Japanese-American citizens during World War II. Kavanaugh raises President Lyndon B. Johnson’s false statements regarding the Vietnam War.
Kavanaugh asks about President Gerald Ford’s pardon of President Richard Nixon soon after Nixon resigned in 1974.
“Very controversial in the moment,” Kavanaugh says. “Now looked upon as one of the better decisions in presidential history, I think, by most people. If he’s thinking about, well, if I grant this pardon to Richard Nixon, could I be investigated myself for obstruction of justice on the theory that I’m interfering with the investigation of Richard Nixon?”
Some justices have no hesitancy to delve into the details of the allegations against Trump. Kagan presses Sauer with one of her lightning rounds of questions, about whether particular allegations involving the then-president’s communications with officials in Georgia and Arizona to change vote totals or investigate election fraud, and whether those acts were official or unofficial.
Justice Sonia Sotomayor later leads Dreeben down a philosophical path, telling him, “A stable democratic society needs the good faith of its public officials, correct? … And that good faith assumes that they will follow the law?”
But other justices repeatedly seek to keep the discussion away from the allegations in Trump’s case and focus on the implications of any ruling for future presidents.
“We’re writing a rule for the ages,” Justice Neil Gorsuch says.
The justices spend more time questioning Dreeben than Sauer, with Dreeben’s seriatum round alone running about an hour (the longest such round I can recall).
When that round finally ends, Roberts calls Sauer back for his rebuttal. The Trump lawyer, in a show of confidence that may either be savvy or a miscalculation, says, “I have nothing further, Your Honor.”
And with that, the civics lesson is over for today, with the updated curriculum expected by late June.
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The Supreme Court on Thursday appeared skeptical of a ruling by a federal appeals court that rejected former President Donald Trump’s claim that he has absolute immunity from criminal charges based on his official acts as president. During more than two-and-a-half hours of oral argument, some of the court’s conservative justices expressed concern about the prospect that, if former presidents do not have immunity, federal criminal laws could be used to target political opponents. However, the justices left open the prospect that Trump’s trial in Washington, D.C., could still go forward because the charges against him rest on his private, rather than his official, conduct. However, the timing of the court’s eventual opinion and the resulting trial remains unclear, leaving open the possibility that the court’s decision could push Trump’s trial past the November election.
Trump was indicted in August 2023 on four counts, arising from Special Counsel Jack Smith’s investigation into the Jan. 6, 2021, attacks on the U.S. Capitol, alleging that he conspired to overturn the results of the 2020 election. Trump asked U.S. District Judge Tanya Chutkan to throw out the charges against him, arguing that he could not be held criminally liable for his official acts even after leaving office.
Chutkan denied Trump’s request, and in February the U.S. Court of Appeals for the District of Columbia Circuit upheld that ruling. Trump went to the Supreme Court, which agreed in late February to weigh in. Trump’s trial, which was originally scheduled for March 4, is now on hold waiting for the Supreme Court’s decision.
Representing Trump, John Sauer told the justices that without presidential immunity from criminal charges, the “presidency as we know it” will be changed. The “looming threat,” he contended, will “destroy presidential decisionmaking precisely when” the president needs to be bold. And the impact of the court’s decision, he suggested, will have an impact far beyond Trump’s case. He pointed to the prospect, for example, that President Joe Biden could be charged with unlawfully inducing immigrants to enter the United States illegally through his border control policies.
Michael Dreeben, a lawyer from Smith’s office, represented the United States. He emphasized that the Supreme Court has never recognized absolute criminal immunity for any public official. Trump, he contended, seeks permanent criminal immunity for a president’s official acts unless he has first been impeached and convicted by the Senate.
Several justices pressed Sauer on how to distinguish official acts, for which a former president would enjoy immunity under his theory, from private acts, for which he could still face criminal charges. Chief Justice John Roberts asked Sauer about a scenario involving a president’s official act – appointing an ambassador – that he does in exchange for a bribe. When Sauer conceded that accepting the bribe is private conduct, Roberts urged Sauer to explain how the boundary between an official act and a private one would “come into play.” Prosecutors could bring charges against the former president for accepting a million dollars, Roberts queried, but they can’t say what it’s for?
Justice Elena Kagan lobbed a series of examples, some taken from the indictment, at Sauer and asked him to identify them as involving private or official conduct. Sauer agreed that some, like signing a form affirming false election allegations, would be private, but he asserted that others – like calling the chair of the Republican Party – would be official. When asked whether ordering the military to stage a coup so that the president could remain in office was private or official, Sauer suggested that it would depend on the circumstances, prompting Kagan to say, “that sure sounds bad, doesn’t it?”
Justice Neil Gorsuch observed that, with the concession that a former president could be prosecuted for his private conduct, the two sides had found “some common ground.” He noted that the D.C. Circuit had “expressed some views about how to” separate private and official conduct, including the possibility of further proceedings to do so.
But when Roberts asked Sauer about the effect of that confession, and Sauer suggested that the Supreme Court should send the case back to the lower court to determine what conduct is official and what conduct is private, Roberts retorted that, without the official conduct, it would be like a “one-legged stool.”
Michael Dreeben argues for the United States. (William Hennessy)
Dreeben contended that, even if presidents have immunity for their official acts, in this case the federal government could still introduce evidence of Trump’s interactions with the Department of Justice. But he maintained that there was enough private conduct to allow the charges against Trump to go forward even under that standard.
Justice Ketanji Brown Jackson acknowledged that distinguishing between official and private conduct might sometimes pose a “difficult line-drawing problem.” But if a president’s official acts are not entitled to absolute immunity, she suggested, the problem is eliminated. Why, she asked, would the president not be required to follow the law when performing his official acts?
Justice Brett Kavanaugh appeared sympathetic to the former president’s argument that criminal statutes do not apply to the president unless they say so specifically. He told Dreeben that it’s a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”
Justice Amy Coney Barrett was less persuaded by this argument. She observed that if a president who orders a coup is impeached and convicted by the Senate, but ordering the coup is determined to be part of his official conduct, he could not be prosecuted after leaving office under Trump’s theory if there were not a statute that explicitly applied to the president.
Dreeben sought to assuage some of the justices’ concerns by suggesting that, although former presidents should not have absolute immunity from criminal charges relating to their official acts, there are some core constitutional powers of the presidency – such as the powers to pardon, veto, make appointments, and recognize foreign governments – that are entitled to special protection.
Justice Samuel Alito, however, was skeptical, noting that – in contrast with immunity – the issue of special protection would have to be litigated at a trial and “may involve great expense,” as well as the possibility that the former president (who is currently both running for office and on trial in a Manhattan courtroom) “might not be able to engage in other activities.”
And more broadly, both Gorsuch and Kavanaugh worried aloud about the wider impact of the court’s decision. Telling Dreeben that the justices were “writing a rule for the ages,” and that he was “not concerned about this case as much as future ones,” Gorsuch, who, like Kavanaugh, was nominated to the court by Trump, expressed concern about the use of the law to target political opponents. Emphasizing that virtually all first-term presidents will be concerned about being reelected, he pressed Dreeben on whether his theory would include consideration of a president’s motives.
Dreeben assured Gorsuch that his theory would not sweep in ordinary presidential conduct. “Wanting to get reelected is not an illegal motive,” Dreeben said.
But Kavanaugh was not reassured. Echoing Gorsuch, he told Dreeben that this case has “huge implications for the” presidency, and that he was “very concerned about the future.” Kavanaugh – who served as a deputy to Ken Starr during his investigation of then-President Bill Clinton – cited the Supreme Court’s 1988 decision in Morrison v. Olson , upholding the constitutionality of the independent counsel statute, as “one of the Court’s biggest mistakes” because it “hampered” presidential administrations. When former presidents are subjected to prosecution, Kavanaugh said, “history tells us it’s not going to stop.”
Jackson had a different view. Without the threat of criminal liability, she told Sauer, “future presidents will be emboldened to commit crimes.”
With four of the court’s conservative justices – Thomas, Alito, Gorsuch, and Kavanaugh – appearing to lean toward some form of immunity for Trump, the ruling may hinge on Roberts, who although relatively quiet seemed dubious about the reasoning of the D.C. Circuit’s opinion, which he summarized as saying that “a former president can be prosecuted because he is being prosecuted.” And although Dreeben stressed the “layers of protection” available to shield a former president from unwarranted prosecutions, such as the assumption that prosecutors will act in good faith and the need for a grand jury to return an indictment, Roberts asked Dreeben why the court shouldn’t send the case “back or issue an opinion saying that’s not the law?”
The court is expected to issue all of its decisions for the current term by the end of June or early July. Even if the justices leave open the possibility that Trump can still face criminal charges in some form or another, the timing of the court’s ruling and whether its decision requires additional proceedings in the lower courts – for example, to determine which of the acts alleged in Smith’s complaint involve official or private conduct – could complicate Smith’s efforts to move the D.C. trial forward before the 2024 election.
This article was originally published at Howe on the Court .
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