October Term 2019 in Review: Blue June

Josh Blackman1Professor of Law, South Texas College of Law Houston. This Essay is inspired by Dave Barry’s satirical year-in-review columns. I hope to make it an annual tradition.

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A part of the Seila Law and the Roberts Court series.

Over the past 225 years, the Supreme Court witnessed two presidential impeachment trials and two pathogenic shutdowns. This past winter, Chief Justice John Roberts presided over both in the span of two months—and those weren’t even the biggest headlines of the year! This term had it all: guns, abortion, DACA, Little Sisters, LGBT discrimination, Trump’s tax returns, and more. Plus, don’t forget Court packing, Chief Justice Kagan, and Blue Monday. Welcome to the October Term 2019. The saga began on the first Monday in…

October

…when Justice Brett Kavanaugh took the bench for his first full term. Last year he joined the Court about a week late. Then-Judge Kavanaugh had circled the start date on his calendar, but he must have left his planner behind in the Senate.

Soon, the other Trump appointee would lose his way in the halls of Congress. Bostock v. Clayton County considered whether Title VII of the Civil Rights Act of 1964 prohibited discrimination on the basis of sexual orientation and gender identity. For five decades, virtually everyone answered these questions no and no. Yet, Justice Neil Gorsuch, the proud textualist, struggled—especially after Dean Kagan’s Socratic method showed that it is impossible to discriminate against gay people without discriminating on the basis of their sex. This “case is really close, really close, on the textual evidence,” Gorsuch mused.2Oral Argument Transcript at 25. But it didn’t matter what Congress intended, Gorsuch maintained. All that mattered were the words selected by hundreds of white, male, heterosexual, misogynistic, homophobic members of Congress.

Later in…

November

…the Supreme Court turned into a sieve.3Joan Biskupic, Anger, leaks and tensions at the Supreme Court during the LGBTQ rights case, CNN (July 28, 2020) (“But in this high-stakes case, word that Gorsuch and Roberts had voted with the four justices on the left began leaking out in November, a rare breach of confidentiality during the drafting process at the secrecy-obsessed institution.”). In a short period of time, prominent conservatives prayed that Justice Gorsuch would not be led astray by the dark arts of Justice Kagan. This armchair quarterbacking reminded me of conservatives’ attempts to sway Chief Justice Roberts in the Obamacare case through editorials in the National Review and the Washington Post.4Josh Blackman, Unprecedented 227–32 (2012) (noting editorials in National Review and the Washington Post were designed to sway Chief Justice Roberts back). Those efforts didn’t work in 2012, and they would backfire again.

In November, the biggest case on the docket concerned DACA. President Obama, who also had trouble finding his way around Congress, used his pen and phone to protect young immigrants from deportation. President Trump tried to cancel DACA with a tweet. #Sad. After the arguments, which I attended, it looked like there were five votes to allow President Trump to wind down the immigration policy. But once again, Chief Justice Roberts would surprise even his colleagues.

Soon the Court would wrap up 2019 in…

December

…with a far less-controversial topic: guns. The Supreme Court went more than two centuries without deciding the scope of the Second Amendment. Then, in the span of two years, the justices decided two landmark cases.5District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010). Yet, in the past decade, the Court has decided zero gun cases. Crickets. The justices have made clear that the people have an absolute right to keep a gun at home subject to the state’s absolute power to enact gun control laws outside the home. Or something like that.

Finally, in 2019, the Supreme Court agreed to hear a Second Amendment case.6New York State Rifle & Pistol Ass’n, Inc. v. City of New York, New York, 140 S. Ct. 1525 (2020). New York had a crazy law that only allowed people to transport their guns from one place to another in an armored truck with a police escort. The government was all-too-happy to defend its regime in the lower courts. But once the Supreme Court granted certiorari, New York panicked. The legislature repealed the statute, burned it in acid, and sent it into orbit aboard the SpaceX Falcon 9. Five Democratic senators filed a helpful amicus brief that offered the chief justice some new colleagues if he couldn’t see the case was moot.7Brief of Senators Sheldon Whitehouse, et al, as Amici Curiae in Support of Respondents at 18, New York State Rifle & Pistol Ass’n, Inc. v. City of New York, New York, 140 S. Ct. 1525 (“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”). After oral arguments, the Second Amendment looked like it would take its own SpaceX trip to space.

Soon enough, Roberts would make some new friends in Congress. In…

January

…the House of Representatives finally impeached President Donald J. Trump. He had run up a huge long-distance bill from an “absolutely perfect” call to the Ukrainian president. Now, the chief justice would have to pull double duty: he presided over oral arguments at the Supreme Court in the morning and presided over the Senate impeachment trial into the wee hours of the night. One day, the Notorious RBG tagged along, and made a motion to subpoena President Trump’s tax returns.8See Joan Biskupic, Justice Ruth Bader Ginsburg calls Trump a ‘faker,’ he says she should resign, CNN (July 13, 2016) (“How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”). Majority Leader Mitch McConnell deemed her persona non Garland, and denied her a hearing.

Roberts, who strives to remove any appearance of partisanship from the Supreme Court, tried to remove appearances of “pettifogging” partisanship from the partisan Senate. He rebuked both Republicans and Democrats who stepped out of line. And the chief justice refused to break any tie votes. In short order, Roberts frustrated senators on both sides of the aisle the same way he frustrates his fellow justices. Soon enough, the trial wound to a close in…

February

…with a final vote of 52–48. If you squint, it looks like 5–4 split. Justice Ginsburg tried to sneak in and cast a vote to convict, but McConnell placed her in a hermetically sealed bubble, which the sergeant at arms rolled across First Street. Justice Gorsuch tried to intervene. He insisted that the Senate in fact unanimously voted to convict Trump: it is impossible to cast a “not guilty” vote without also casting a vote that uses the word “guilty.”9See Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1741 (2020) (“it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”). The expectations of the senators are irrelevant; all that matters are the words they chose.10See Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 1754 (2020) (“Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”). Therefore, they all voted “guilty.” Senator Mitt Romney concurred. Justice Clarence Thomas dissented.

With the impeachment trial already a distant memory, the chief justice was free to return to his full-time job as America’s moral compass. But there was a different threat looming on the horizon. The COVID-19 pandemic had begun. Justice Ginsburg proposed a nationwide injunction to stop the spread of the virus.11See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2412 (2020) (Ginsburg, J., dissenting) (“Although the Court does not reach the issue, the District Court did not abuse its discretion in issuing a nationwide injunction.”). Justice Thomas dissented.12See Trump v. Hawaii, 138 S. Ct. 2392, 2429 (2018) (“No persuasive defense has yet been offered for the practice” of nationwide injunctions).

Soon, everyone on the Court began taking safety precautions. While not on the bench, Justice Ginsburg entered a state of suspended animation in her bubble, which now was filled with Purell. The Court would manage to hear a few more cases in…

March

…before the novel coronavirus exploded in the United States. Nothing big. On March 3, the justices weighed the constitutionality of the decade-old Consumer Finance Protection Bureau.13Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020). And on March 4, the justices took up a controversial abortion law from Louisiana.14June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103 (2020). After oral arguments, Senate Majority Leader Chuck Schumer warned Justices Gorsuch and Kavanaugh that there was a “whirlwind” in their forecast.15Amy Howe, Roberts condemns Schumer rally remarks, SCOTUSBlog (March 4, 2020) (“I want to tell you, Gorsuch; I want to tell you, Kavanaugh. You have released the whirlwind. And you will pay the price. You won’t know what hit you if you go forward with these awful decisions” upholding the Louisiana law.”). Justice Ginsburg mounted an umbrella on top of her bubble.16See Shelby Cty., Ala. v. Holder, 570 U.S. 529, 590 (2013) (“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”). Chief Justice Roberts responded that Schumer’s “threatening statements” were dangerous, and the justices would “continue to do their job . . . from whatever quarter.” Specifically, their home quarters.

Eight days later, the Supreme Court would shut down. The chief justice ordered a mass evacuation and personally rolled RBG’s bubble down First Street. Soon, the Court cancelled all remaining March oral arguments. Justice Thomas concurred. Chief Justice Roberts reminded us that arguments were also postponed in response to the Spanish Flu epidemic of 1918, and in 1798 for a yellow fever outbreak. Social distancing, it seems, is subject to stare decisis. The Court maintained that the safety of the justices in…

April

…was of the utmost concern. The safety of Wisconsin voters, however, was not so important. By a 5–4 vote, the Court required Joe Biden to personally lick every absentee ballot envelope to make sure they were postmarked by election day.17See Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1208 (2020) (“in order to be counted in this election a voter’s absentee ballot must be . . . postmarked by election day, April 7, 2020. . . .”). Justice Ginsburg dissented from inside her bubble, but the opinion was not delivered in time.18See Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1209 (2020) (Ginsburg, J., dissenting) (“A voter cannot deliver for postmarking a ballot she has not received.”).

Later that month, the justices finally decided the Second Amendment case. The majority held that the dispute over New York’s law, which was rocketing through the asteroid belt, was moot.19See New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1527 (2020) (“Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.”).  Justices Alito, Thomas, and Gorsuch, seated six feet apart on the bench, delivered fiery dissents to the empty chamber.20See New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1527 (2020) (Alito, J., dissenting) (“By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.”). The members of the majority, practicing social distancing, stayed home. The Court would stay at nine members, for now.21Cf. supra note 7 (discussing Senator Whitehouse’s amicus brief that threatened Court packing). The justices would not assemble until…

May

…, well, virtually, at least. No, not through Zoom, or some other modern technology. RBG could not get solid Wi-Fi through her bubble. Instead, the justices connected through old-fashioned pneumatic tubes.222014 Year-End Report on the Federal Judiciary (Dec. 31, 2014) (“The Court’s pneumatic age ended in 1971, when Chief Justice Burger authorized the removal of the pneumatic tube system at the same time that he introduced the Court’s familiar curved bench.”). Justice Breyer had a special line installed in his bathroom.23Ashley Feinberg, Investigation: I Think I Know Which Justice Flushed, Slate (May 8, 2020) (“If the flush belonged to Breyer, a bowel movement would have come roughly 43 minutes after the justice’s meal.”). The justices would ask questions in order of seniority. The chief justice—the only vote that actually mattered this Term—got the most important questions out of the way first. For once, Justice Thomas did not dissent. Instead, he got fired up!24Devin Dwyer, Clarence Thomas Captivates with 63 Questions on Supreme Court Livestreams, ABCNews (May 15, 2020) (noting that Justice Thomas asked seventeen questions during the Tax Return Cases, “nearly six times as many as the famously silent justice asked in public arguments over all the last 14 years.”). Justice Kavanaugh, the junior justice, had to reserve some time on his calendar for the final round of questions.

During this special session, the Court heard the latest appeal from the Little Sisters of the Poor. This order of nuns was back at the Supreme Court, fighting for the right to require their employees to take vows of celibacy.25See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2403 (2020) (Ginsburg, J., dissenting) (the “Little Sisters of the Poor . . . nonetheless urge that the self-certification accommodation renders them ‘complicit in providing [contraceptive] coverage to which they sincerely object.’”). President Trump also asked the Court to help keep his tax returns secret, in order to more effectively enforce the Voting Rights Act.26See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2562 (2019) (“The Secretary stated that he was acting at the request of the Department of Justice (DOJ), which sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act (or VRA). . . .”). Finally, the justices heard the case of the so-called faithless electors, who insisted that Colin Powell should be president.27See Chiafalo v. Washington, 140 S. Ct. 2316, 2322 (2020) (“So the three Electors voted for Colin Powell for President. But their effort failed.”); Colorado Dep’t of State v. Baca, 140 S. Ct. 2316 (2020).

On the penultimate day of May, the Supreme Court split 5–4 on its second coronavirus-related case. Chief Justice Roberts cast the deciding vote against the South Bay United Pentecostal Church. He held that parishioners could only pray in Las Vegas casinos, where mass congregations were permissible. Justice Gorsuch offered a reading from the Holy Gospel according to John Roberts: Render unto Caesars Palace the things that are God’s.28See Calvary Chapel Dayton Valley v. Sisolak, 2020 WL 4251360 at *6 (U.S. July 24, 2020) (Gorsuch, J., dissenting) (“But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”). See Rendering Unto Caesar’s Palace, Wall St. J. (July 26, 2020)  (“The [Supreme Court’s] latest abdication came Friday as a 5–4 majority refused to offer relief against a Nevada order that restricts attendance at churches more than at casinos or movie houses.”).

Soon, the Court would enter the home stretch. Usually, the Court wraps up its term by the end of…

June

…but this term would drag on further. The first two weeks of June were uneventful. In the biggest case, Justice Sotomayor suggested that Puerto Rico was an independent nation.29See Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1677 (2020) (Sotomayor, J., concurring) (“At a minimum, the post-compact developments, including this Court’s precedents, indicate that Congress placed in the hands of the Puerto Rican people the authority to establish their own government, replete with officers of their own choosing, and that this grant of self-government was not an empty promise.”).

But on Monday, June 15, the Court took a sharp turn to the left. In the span of thirty-minutes, the justices handed three defeats to conservatives. First, the Court denied review in ten gun cases, exiling the Second Amendment past Pluto. Second, the Court denied review in President Trump’s challenge to California’s sanctuary laws, allowing the Golden State to also declare its independence. Third, Justice Gorsuch failed to escape Dean Kagan’s office hours, and ruled that the Civil Rights Act of 1964 has always prohibited LGBT discrimination. The Wall Street Journal praised the rise of Chief Justice Kagan. I memed it:

Blue Monday, as I dubbed it, was only the beginning. On Thursday, June 18, the Court decided the DACA case. Chief Justice Roberts joined the Kagan Four. They held that President Trump’s tweet winding down DACA failed to comply with the Administrative Procedure Act. The Court gave Trump’s hashtags a hard look, and deemed them arbitrary and capricious.30Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1913 (2020)  (quoting Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983) (“But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke ‘entirely failed to consider [that] important aspect of the problem.’”). On remand, Trump could consider other possible tweets that only tagged the Dreamers’ benefits.31Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1916 (2020) (“That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”).

Blue Monday had turned into Blue Week. And soon, the month would become Blue June. Chief Justice Roberts cast the deciding vote to strike down Louisiana’s abortion law. He relied on a precedent that he thought was “wrongly decided.” Stare decisis requires Roberts “to treat like cases alike,” unless it is a case he really dislikes.32June Med. Servs. LLC v. Russo, 140 S. Ct. 2103, 2151–52 (2020) (Thomas, J., dissenting) (“Even under the Chief Justice’s approach to stare decisis, continued adherence to these precedents cannot be justified . . . . [T]his Court has recently overruled a number of poorly reasoned precedents that have proved themselves to be unworkable.” (citing several precedents Chief Justice Roberts voted to overrule)).

The next case began a slight trend away from Blue June. Really, it was more of a purple blip. The Supreme Court declared the structure of the CFPB unconstitutional,33Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020). and gave President Biden the green light to fire Trump’s holdover director. He earned that perk after licking all of those envelopes!

In the final case of June, Chief Justice Roberts finally threw a bone to conservatives. The Court held that Montana could not exclude religious schools from a state-sponsored scholarship program,34Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020) (“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”). even though the scholarship program no longer existed.35Espinoza, 140 S. Ct. at 2292 (Sotomayor, J., dissenting) (“The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by excluding them from a tax benefit. The threshold problem, however, is that such tax benefits no longer exist for anyone in the State.”). Chief Justice Roberts later acknowledged that the scholarships could be used for religious studies at Caesars Palace. Justice Alito assured everyone that the nation was safe from crocodile-priests.36Espinoza, 140 S. Ct. at 2269–70 (“The feelings of the day are perhaps best encapsulated by this famous cartoon, published in Harper’s Weekly in 1871, which depicts Catholic priests as crocodiles slithering hungrily toward American children as a public school crumbles in the background.”).

The American River Ganges, Harper’s Weekly (1871)

At last, Blue June drew to a close. But the Court was not done. For the first time in three decades, the term would extend beyond…

July

the fourth. Justice Kavanaugh needed a new calendar. RBG’s bubble was beginning to fog up in the summer heat.

There were five major cases left for Overtime July. First, the Court unanimously ruled against the faithless electors; Colin Powell would never become president.

Second, the Court remanded the Little Sisters of the Poor to the tenth circle of APA Hell,37See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020) (“We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects. Therefore, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion.”). where they will have to suffer through “arbitrary and capricious” review.38Little Sisters of the Poor, 140 S. Ct. at 2398 (Kagan, J., concurring) (“The States challenged the exemptions not only as outside HRSA’s statutory authority, but also as ‘arbitrary [and] capricious.’ 5 U.S.C. § 706(2)(A). Because the courts below found for the States on the first question, they declined to reach the second. That issue is now ready for resolution, unaffected by today’s decision.”). Justice Ginsburg dissented, and wrote that bubbles are effective methods of contraception in the COVID-19 era.39See Little Sisters of the Poor, 140 S. Ct. at 2400 (Ginsburg, J., dissenting) (“Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.”).

Third, the Supreme Court decided McGirt v. Oklahoma.40McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). Justice Gorsuch wrote the majority opinion, and found that eastern Oklahoma in fact belonged to five Indian tribes.41McGirt, 140 S. Ct. at 2459 (“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”). Here, Gorsuch misread the judgment of King Solomon.421 Kings 3:25 (“Cut the baby in half! That way each of you can have part of him.”). He actually cut the state in half.

Finally, the Court ruled that President Trump’s tax returns could not be released until after November 3, 2020.43Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020); Trump v. Vance, 140 S. Ct. 2412 (2020). See also Prosecutors may not get Trump tax records until after election, experts say, Reuters (July 10, 2020).

With these blockbuster decisions in the can, the Supreme Court’s term finally came to an end.

Just kidding. By the end of the month, the Court greenlit federal executions, blocked former felons from voting in Florida, limited how many churchgoers could worship in Nevada, made it tougher for Idaho residents to collect signatures for a ballot initiative, and allowed President Trump to finally build the wall. Plus, leaks from the Supreme Court got so bad that Chief Justice Roberts considered resigning. And that was all before…

August

…had begun. Only three months remained till the first Monday in October. Justice Kavanaugh has the date circled on his calendar. Justice Ginsburg is ready to roll in her bubble.

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Josh Blackman is Professor of Law at South Texas College of Law Houston.

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