On Monday, the Supreme Court went into what is essentially overtime. We are now the latest for issuing opinions since 1974 (the year of Watergate) when the last opinion from the regular term was issued the day after the Supreme Court heard the Watergate arguments. It is unlikely that we will reach that July 25 date this year, but anything is possible. (Given that the Watergate opinion is a key precedent on the still pending Trump Organization subpoena cases, the poetic irony has to be appreciated.) We do have a second opinion day this week scheduled for Wednesday; so potentially Wednesday could be the last day or there could still be additional opinion days to come. (With five cases still outstanding, getting all five on Wednesday would be somewhat surprising given the pace of opinions so far this term, but anything is possible, but there already has been one five-opinion day this term.)
Monday’s two opinions both concerned the process of elections. On the one hand, the Barr case was brought by the lobbying group for political consultants challenging the barriers that the federal robocall statute places to even more repetitive phone calls from campaigns. On the other hand, the Chiafalo case (and the companion case from Colorado) involves the very rules governing the conduct of the electors chosen by the various states to actually cast the “real” votes in the presidential election.
In the long run, Barr may be the more important of the two. The federal robocall statute dates back to the early 90s (and, yes, it has been close to an utter failure). In 2015, Congress amended the statute to pass an exception allowing the federal government to have people make robocalls seeking to collect debt owed to the government. Some political consultants and other groups saw this amendment as an opening to raise a First Amendment complaint against the robocall statute. The bottom line of this decision is they won the battle, but lost the war.
The majority of the Supreme Court (by a 5-1-3 vote) agreed with the consultants that the exception for debt collection was a content-based exception and that such restrictions automatically trigger strict scrutiny. As the government conceded that the exception could not survive the strict scrutiny analysis, this determination meant that the lower court’s ruling finding that the exception was unconstitutional was correct, (The one vote would have applied a lower standard of review but still have found the exception unconstitutional.) That left the question of what the invalidity of the 2015 amendment meant for the original statute. And here is where the analysis may prove crucial in a certain case due to be argued in the upcoming term.
As with last week’s decision on the Consumer Finance Protection Bureau, the question of whether the offending provision invalidated the entire statute splintered the majority that found the offending provision unconstitutional with a different majorities on the issue of constitutionality and severence. (Essentially, we have a 3-1-2-3 split with a 6-3 on constitutionality and a 7-2 on severance. Because of this split, Justice Kavanaugh’s opinion merely announced the judgment of the Supreme Court.) The plurality (Justice Kavanaugh, Justice Alito, and the Chief Justice) relied on three reasons for finding severability. First, the statute includes a severability clause (like many statutes), and such clauses are normally given effect. Second, even without such a clause, courts presume that severability is the proper remedy. Third, the offending clause in this case is an amendment to the original statute.
While the discussion on severability in this case does not necessarily tell how these justices will vote in the next case, the conservative members of the Supreme Court (other than Justice Thomas and Justice Gorsuch) have put themselves in a nice box for the upcoming case on the Affordable Care Act . One cautionary note is in order. Technically, as there is no opinion of the Court on severability in either this case or the Consumer Finance Bureau case, neither are technically binding precedent, but the other three justices in both cases have signed onto opinions presenting a form of severability analysis that would require some creative reasoning to explain why the Affordable Care Act is different.
In 2012, the Supreme Court found that the provisions on Medicare expansion were severable from the rest of the Act, and that the individual mandate was valid because it was supported by the tax penalty. Congress has now amended the Affordable Care Act to eliminate that tax but left the rest of the Affordable Care Act intact. Under the reasoning in Justice Kavanaugh’s opinion, it can be inferred that Congress made the decision to effectively repeal the individual mandate (since it is now an unenforced suggestion rather than a real mandate) but leave the rest of the Act intact.
While getting most of the attention, the faithless elector case will probably have limited impact. At the present time, the states are roughly divided into three groups: 1) states with an implied pledge (electors run on a ticket with a presidential candidate but are not required to vote for that candidate; 2) states with an express pledge but no enforcement provision (electors required to vote for that candidate but there Is no penalty if they break the pledge); and 3) states with enforcement provisions (some fines, some removal, some both). While the actual intent of the Framers can be endlessly debated, the reality is that faithless electors have always been the exception. The last election saw the most faithless electors in recent history. In theory, if you had another election like 2000, faithless electors might make a difference, but there have only been two elections under the Twelfth Amendment in which the winning candidate had fewer than ten electoral votes to spare (1876 and 2000). So it would take a massive and unprecedented defection for the lack of any enforcement provision to have any impact. (The only election to arguably have more than ten faithless electors was the one election in which the losing candidate died before the electors voted. Whether that counts as a faithless elector is debatable.)
Given this history, the case was really about what the court wanted to say about the nature of out democracy and the rules governing electors. And the Supreme Court opted to confirm that what most people perceive to be true is also legally true. States can take steps to assure that electors vote in accordance with the wishes of the people of that state (or the nation) as expressed at the ballot box. Of course, none of the opinions requires any state to use any particular method of choosing electors, and a state need not take steps to require electors to follow the state-wide result.
With five cases left, it is still difficult to project who will have these cases. Five justices (Chief Justice Roberts, Justice Thomas, Justice Breyer, Justice Alito, and Justice Sotomayor) still do not have any opinions from May. Except for Justice Thomas (who only has four opinions for the year), the other four justices have five opinions for the year. Justice Thomas could have two opinions with one of the other four being done for the year, or all five could have one opinion (assuming separate opinions in the Trump subpoena arguments — one for the congressional subpoenas and one for the state grand jury subpoena), My hunch says that the two religious liberty cases are likely to be opinions by Justice Alito and Justice Thomas, but that is only a hunch.
In any case, we are probably into the last week to ten days of the term, and we will have answers to how far right this Court is tilting. Of the ten cases with a liberal-conservative 5-4 (or 5-3 split), the conservatives have won eight of the ten. In the two that liberals won (with the Chief Justice’s support), the Chief Justice wrote an opinion that minimized the significance of the decision. On the other hand, there were four cases in which two conservative justices voted with the four liberal justices and only one case in which the deviation from the typical 5-4 split was a liberal justice voting with the conservative justices. Given how hard it is to get a 5-4 or 6-3 win for progressive legal theories, it is absolutely essential that Republicans do not get a chance to replace a liberal justice with a conservative justice. In the last 50 years, the norm has been that each new justice is more conservative than their replacement. On maybe two occasions has the replacement been clearly more liberal than the previous justice. The result is that legal theories which were considered fringe in the 80s are now being seriously discussed in Supreme Court opinions and those theories mean less rights for the ordinary person and more rights for powerful groups. Over the past three years, the Supreme Court has been a weak check on Trump’s attempts to change the nature of this country. If Trump gets to replace Justice Ginsburg or Justice Breyer, that minimal check may disappear entirely.
UPDATE: After announcing opinions today in the two religion cases — opinions by Justice Alito and Justice Thomas — the Supreme Court announced that the remainder of the opinions for the term will be released on 7/9 starting at 10 AM EDT, The pattern has been that the Supreme Court posts one opinion every ten minutes until all opinions for the day have been posted since they are not holding court sessions due to the COVID-19 pandemic.
