The big news out of the Supreme Court today is that Thursday is the last opinion day of the court. Under normal practice, the justices would hold a public session in their courtroom to announce the opinions. Opinions would be announced in reverse order of seniority (with some exceptions for companion cases) with the justice who wrote the opinion reading a brief summary of the opinion and (sometimes) a dissenting justice reading a statement as well (but such a statement is a rare event). With the Supreme Court not being open to the public (and no public information office handing out copies to reporters), the opinions are merely being posted on-line but at roughly the same pace (one every ten minutes) as would be true if the Supreme Court was actually proceeding as normal with the opinions being released in the courtroom. As we have already seen this term, sometimes the Supreme Court’s website is not quite up to the traffic associated with a major opinion. But, if you wish to go to www.supremecourt.gov at 10am EDT and repeatedly refresh, you can see the opinions as they are being released. As discussed further below, my expectation is that the Chief Justice will have one of the two (or maybe both) of the Trump tax cases. If that is the case, I would expect the Oklahoma opinion to be released at 10 (regardless of who has the opinion) followed by two Trump tax cases at 10:10 and 10:20., but there is a chance of one of the two Trump tax cases at 10:00 followed by the Oklahoma case at 10:10 and the Chief Justices opinion at 10:20. It all depends on how closely connected the holding in the two Trump tax cases are.
Today, the Supreme Court released the two remaining “religion” cases. The first case, written by Justice Alito, concerned the “ministerial exception” as it applies to school teachers. The ministerial exception has its roots in the Free Exercise Clause. Basically, under the Free Exercise Clause, the government has no power over the religious leaders of a religious organization. Courts only play a limited role in deciding intra-faith disputes and only when the issue to be resolved is a secular matter like which group of opposing claimants to leadership actually has title to the assets of a religious organization (including the right to use the name). Today’s case, however, takes the exception to (and arguably past) the breaking point. The issue is whether teachers at a parochial school are covered by the ministerial exception. On the one hand, teachers at a parochial school — especially an elementary school where one teacher handles all subject matters — do teach some religious materials and are expected to comply with a code of conduct. On the other hand, many parochial schools — while having a preference that teachers belong to the same sect that runs the school — do not expressly mandate that teachers are members of the religious group running the school. The majority — in a 7-2 decision — essentially held that all teachers in religious schools are minister based solely on the school’s assertion that it views them as ministers and that the decision to fire was based on non-religious grounds. As the purpose of the ministerial exception is to avoid courts from having to decide whether a particular minister is sufficiently “orthodox,” this broadening of the exception is significantly divorced from the purpose behind the exception. In this consolidated case, the two teachers claimed that they were fired based on age (violating the law against discriminating based on age) and medical condition (breast cancer, violating the laws governing medical leave). The schools — while asserting an absolute bar to proceeding on the merits due to the ministerial exception — asserted that they were fired because they were not good teachers. In short, religious issues had nothing to do with the case, and a court could have decided which secular reason was the main motivating factor in the decision to fire these two teachers.
The other case involved the contraception mandate. Amazingly, the majority opinion by Justice Thomas only made a passing reference to the Religious Freedom Restoration Act. Instead, the gist of the opinion was whether the Affordable Care Act gave the government discretion to create a religious exemption to the contraception mandate. Technically, the majority opinion does not resolve the final issue of whether the current regulation is valid. Instead, it merely held that the Affordable Care Act granted the government the discretion to create an exception for religious groups (and private companies) with moral objections to the mandates and that the government complied with the procedural requirements of the Administrative Procedure Act. The case is sent back to the lower court to decide if the regulation was adequately supported by the administrative record. (Which means that the future of the contraceptive mandate and this religious exemption depends on the results of the election.)
In both cases, the grant of the religious rights of one group allows them to deny the rights of others. Unfortunately, the current majority seems to think that this is not a problem.
Tomorrow, we will see two or three opinions. In something of a surprise, one of the last opinions to be issued will come in a sleeper of a criminal law case. For the past several years, the Supreme Court has been struggling with the issue of when a reservation is disestablished. Back in the nineteenth century, the United States, in a series of treaties with Native American tribes compelled the tribes to surrender much of their existing land but recognized certain lands as being reserved to the tribes. As a result of these treaties (and the constitutional provisions granting the federal government authority over relations with Native Americans), many federal statutes grant the federal government exclusive jurisdiction over crimes committed by Native Americans on reservations. As part of the Trail of Tears expulsion of several tribes from the southeastern U.S., the government established reservations in what was then called “Indian Territory” and is now much of eastern Oklahoma. The question in the current case (which is a successor to last year’s case currently on hold) is whether these reservations have ever been disestablished. (The mere fact that the land was taken and sold does not mean it is not still part of the reservation.) If not, Native Americans in most of eastern Oklahoma might be immune from state prosecution for many violent crimes. Given the patchwork of treaties with Native American tribes and the somewhat cavalier way in which some of those treaties have been disregarded over time, it is unknown what the effects of a ruling for the Native American defendants might mean for other states. Clearly, at the very least, there would be a need to amend the governing statutes to account for the possibility that a significant portion of several states might technically still be part of a reservation even if no Native American has lived on that land for decades. If there is going to be a case in which an unexpected justice gets the opinion, this could be the one. Justice Gorsuch has written six opinions for the term, and thus should be done. On the other hand, Justice Gorsuch has not written any opinion for May. More importantly, most observers believe that last year’s case was a 4-4 split, and Justice Gorsuch was recused from that case because it came before the Tenth Circuit while Justice Gorsuch was still on the Tenth Circuit. Thus, as the tie-breaking vote, there is a logical reason for Justice Gorsuch to get the opinion.
And, of course, there are the two cases dealing with Trump’s financial records (technically three, but two of them involve congressional subpoenas and were consolidated for argument). There are three justices who have written no opinion for May and only have five opinions for the term — Chief Justice Roberts, Justice Breyer, and Justice Sotomayor. One of them may have the Oklahoma case. I would be shocked — pleasantly but still shocked — if the two Trump tax opinions are written by Justice Breyer and Justice Sotomayor. There is also the possibility that Justice Thomas could be in the mix — despite having issued one May opinion today — because he still only has five opinions for the term. I just have trouble seeing Justice Thomas getting either opinion. If Justice Thomas were to get a second May opinion, it would have been more likely for him to get both religion opinions. My hunch is that the Chief Justice has one of the two Trump tax cases and Justice Breyer has the other, but that hunch is very, very weak. (My fallback position is one opinion covering all three subpoenas written by the Chief Justice.) Justice Thomas or Justice Sotomayor are more likely to get the Oklahoma case (which one gets it will depend on which way Justice Gorsuch goes).
