Show Notes
Greetings, and welcome back to the Highest Court Report podcast, presented by Portland State University’s Vanguard, as always, I am your host Conor, and thank you for joining me. This is episode 3, The Docket and the Donald.
We are going to take a look at what the upcoming SCOTUS docket is looking like, but first, let’s take a look at what the highest court in the land had to say about the former president, DJT.
Former President Donald Trump has been a private citizen for a little more than a month, but the Supreme Court just officially denied his final effort to overturn the 2020 election — although it did so over the protests of three justices.
Additionally, the Court announced that it will not prevent Manhattan District Attorney Cyrus Vance Jr. from obtaining Trump’s tax records, as part of a longstanding criminal investigation into Trump’s businesses.
The Court’s decision not to intervene in this case about Trump’s financial records, Trump v. Vance, is not surprising. In that case, Trump’s lawyers argued that the former president was entitled to absolutely sweeping immunity from criminal investigation while in office — at one point claiming that a sitting president cannot be the subject of a criminal probe if he shoots someone on a public street. But the Supreme Court already rejected this sweeping immunity argument once, in a decision handed down last July. And Trump is no longer the sitting president, so his already weak arguments are now even weaker.
The Court also announced that it will not hear two consolidated election cases on Monday, and its decision not to hear those cases, Republican Party of Pennsylvania v. Degraffenreid and Corman v. Pennsylvania Democratic Party, is also not surprising. The cases ask whether a small number of Pennsylvania absentee ballots that arrived after Election Day should be counted. But, because these ballots will not change the result of any federal election even if they are tossed out, the two Pennsylvania cases are moot.
What is surprising is that three justices — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — all voted to hear these two Pennsylvania cases. These three justices’ votes show that the Court’s right flank is champing at the bit to dismantle one of the foundational premises of American election law.
The immediate impact of the Court’s decision not to hear the two Pennsylvania cases is that Trump and the Republican Party’s efforts to overturn the results of the 2020 election will not receive a hearing in the Supreme Court — and they appear to be dead. But the three dissenting votes in these Pennsylvania cases suggest that a larger battle over who gets to set the rules for American elections is very much alive.
The Pennsylvania cases both involve something known as the “independent state legislature” doctrine, a doctrine that the Supreme Court has repeatedly rejected at multiple points throughout its history, but that is now embraced by at least four members of the Court’s Republican majority.
The Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A separate constitutional provision provides that “each State shall appoint” members of the Electoral College “in such Manner as the Legislature thereof may direct.”
Proponents of the independent state legislature doctrine claim that the word “legislature,” when used in this context, must refer to the legislative branch of government within a state — and thus the state’s judiciary and the state’s executive branch are both forbidden to shape the rules governing federal elections within a state. As Justice Neil Gorsuch wrote in an opinion last fall, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
There are many problems with this interpretation of the Constitution, however. One of them is that the Court has repeatedly rejected the independent state legislature doctrine. For more than a century, the Supreme Court understood the word “legislature,” as it is used in the relevant constitutional provisions, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word “legislature” should be read “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”
Should the new doctrine advanced by the Court’s right flank take hold, the implications are potentially breathtaking. It could mean, for example, that Democratic governors in states like Wisconsin or Pennsylvania are forbidden from vetoing congressional redistricting bills, thus giving the Republican state legislature control over gerrymandering. It could mean that states are forbidden from drawing congressional districts using a nonpartisan commission, on the theory that a commission is not part of the “legislature.” And it could forbid state courts from enforcing the state’s constitutional safeguards against gerrymandering and outright disenfranchisement, because courts are not part of the “legislature.”
At least four justices support the independent state legislature doctrine
Indeed, the Pennsylvania cases involved just such a dispute between a Republican legislature and a state court. In the lead-up to Pennsylvania’s 2020 election, the state’s supreme court held that mailed-in ballots that arrive up to three days after the election will be counted. Republicans sued, claiming that the state courts do not have the power to set the state’s election rules — only the legislature can.
As it turns out, the results of Pennsylvania’s federal elections would not change if these late-arriving ballots are tossed out, so the case is moot. And, while the majority did not explain why it decided not to hear these cases, it is likely that this mootness problem was at the front of their minds.
Yet Justices Thomas, Gorsuch, and Alito all voted to hear the two Pennsylvania cases, despite the fact that there is no longer a live controversy among the parties in those cases.
Thomas’s dissenting opinion argues that the Court needs to “provide clear rules for future elections,” but the Court’s decision in the Arizona State Legislature case already set a clear rule rejecting the independent state legislature doctrine. The real dispute in these cases was whether to change the longstanding rule that was applied in that Arizona case.
A fourth justice, Brett Kavanaugh, endorsed the independent state legislature doctrine in an opinion last October, although he did not vote to hear the Pennsylvania cases now that the election is over, most likely because those cases are moot. The Court’s three liberal justices, plus Chief Justice John Roberts, have all signaled that they will not vote to impose the independent state legislature doctrine.
So that leaves Justice Amy Coney Barrett, a Trump appointee, as the one uncertain vote on the Supreme Court in the likely event that the independent state legislature doctrine comes back to the Court in the future. The bottom line, in other words, is that, while the Supreme Court just handed Trump a final round of defeats, a radical argument that could potentially have seismic consequences for US democracy may still be in play.
To finish up today, just want to give everyone a bit of an upcoming docket preview, much of which will assuredly be quite interesting, so let’s look at a few petitions of cert coming up for SCOTUS:
This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether a Black man’s exposure to a racist epithet at work is “sufficiently severe” to constitute a hostile work environment in violation of the Civil Rights Act, whether a court can order a defendant to pay criminal restitution from facts not found by the jury, and whether the Clean Air Act preempts two counties’ attempt to challenge Volkswagen’s emissions software under local anti-tampering laws.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race with respect to “terms, conditions, or privileges of employment.” Under Supreme Court precedent, an employee challenging a hostile work environment must show that an employer’s conduct was “sufficiently severe or pervasive.” One “extremely serious” incident could qualify, but not a “mere offensive utterance.”
Collier v. Dallas County Hospital District involves the N-word etched into the side of an elevator that Robert Collier, a Black man who worked as an operating room aide, used to access the hospital cafeteria. Collier reported the graffiti, but the word remained for six months. Collier also complained about two swastikas painted on the wall in a storage room and being called “boy” by a white nurse. The U.S. Court of Appeals for the 5th Circuit ruled that the conduct did not establish a hostile work environment because the conduct was “not physically threatening,” was “not directed” at Collier other than the nurse’s comment, and did “not unreasonably interfere” with his work performance. However, the 5th Circuit recognized that other courts of appeals have allowed a jury to find a hostile work environment on the basis of one use of the N-word. Collier’s petition asks the justices to review and to reverse the 5th Circuit’s decision.
In
Gilbertson v. United States, a jury found Ryan Gilbertson guilty of manipulating the stock price of a company he co-founded. The government argued that Gilbertson’s motive involved a compensation package that gave him a bonus based on the stock’s prices. The district court ordered Gilbertson to pay the $15 million he received in bonuses as restitution. In its findings of facts, however, the jury had not specifically considered the bonus beyond a reasonable doubt because the government never challenged the bonus itself as unlawful. In his petition, Gilbertson asks the justices whether a court’s imposition of criminal restitution for an amount not found by the jury violates the Sixth Amendment jury right.
In 2015, the Environmental Protection Agency released a “
Notice of Violation” against Volkswagen for its software “defeat devices,” which allowed its new diesel cars to emit higher levels of nitrogen oxides than allowed under EPA regulations. In the aftermath, two counties challenged the defeat devices under local anti-tampering laws. The
Clean Air Act, which gives the EPA authority to set and enforce emissions standards for vehicles, also prohibits states and local governments from seeking to control emissions “from new motor vehicles.” Because of this language, the U.S. Court of Appeals for the 9th Circuit ruled that the Clean Air Act preempted the counties’ challenge as to pre-sale software updates to the defeat devices, but not to as any post-sale updates. Among other arguments in its petition, Volkswagen maintains that the EPA standards govern the post-sale updates, which relate back to the vehicles’ original designs, and that local anti-tampering laws are about mechanics or consumers interfering with emissions designs. The case is
Volkswagen Group of America Inc. v. Environmental Protection Commission of Hillsborough County, Florida.
Gilbertson v. United States 20-860
Issue: Whether the Sixth Amendment prohibits a court from imposing criminal restitution on a defendant based on facts not found by the jury beyond a reasonable doubt.
Kong v. City of Burnsville, Minnesota 20-875
Issue: Whether, on interlocutory review of a denial of qualified immunity, an appellate court may reject a district court’s determination of a genuine issue of material fact even if the record does not blatantly contradict that determination.
Collier v. Dallas County Hospital District 20-1004
Issues: (1) Whether an employee’s exposure to the N-word in the workplace is severe enough to send his
Title VII hostile-work-environment claim to a trier of fact; and (2) whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.”
Golan v. Saada 20-1034
Issue: Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.