In late March, when the U.S. Supreme Court postponed oral arguments, we wrote about the “oyez” cry at the beginning of each court session, which provides, “All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court!” The last two weeks, if you listened to the livestreams, you might have noticed the elimination of the words “draw near,” perhaps the court’s version of social distancing.
And then there were none
On Thursday, the court issued a unanimous decision in a trademark dispute involving Lucky Brands. Last week, the court concluded its audio hearings schedule, including cases involving President Donald J. Trump’s personal records and tax returns and faithless electors.
With that, the hearings for the term are done. Now the nation watches as we will eventually get notified of electronic distribution of decisions.
The court heard two cases about faithless electors, Chiafalo v. Washington and Colorado Dept. of State v. Baca. The first explored the question of whether an elector can be penalized for voting as he decides, the second explored questions of electors being required to follow the state’s popular vote. In the last column, we recommended a timely book that was connected to a case heard by the court. This week, we again highly recommend a recent book on the issue of the Electoral College. In “Let the People Pick the President: The Case for Abolishing the Electoral College, ” author Jesse Wegman opens with the November 2016 action of both Chiafalo and Baca. Wegman then explores the history of the Electoral College and strikes down myths about it and the concerns about voting for the president by popular vote. One of the featured players in the debate of popular vote versus electoral college is Founding Father James Wilson. (I wrote about Wilson in Cotter’s Corner on Aug. 15, 2016, making the case for Wilson as a “favorite uncle” of the constitution.) Wilson was one of only six men to have signed both the declaration and constitution (the other five being Benjamin Franklin, Roger Sherman, Robert Morris, George Read and George Clymer). Wilson became an associate justice of the Supreme Court and wanted very much to be chief justice, but invested in land speculation and would become “the first and only sitting Supreme Court justice to be incarcerated.”
Wegman reminds us that an opinion from 1892, McPherson v. Blacker, “still stands today for the proposition that ‘the appointment and mode of appointment of electors belongs exclusively to the states.’” Wegman argues for the National Popular Vote Interstate Compact, which would not require a constitutional amendment. Wegman notes of the Electoral College:
“The Electoral College is like a core sample drawn from the trunk of the tree of American history. You can trace its rings back through nearly all of the key periods in which the maintenance of racial subjugation was central to the nation’s growth and development….”
Wilson the visionary had advocated for a popular election, and his “vision has been vindicated:”
“In the expansion of the franchise to include black former slaves, all women, and virtually all adults over 18; in the elimination of property qualifications for voting and holding office; in the right of people to elect their senators directly; in the Supreme Court’s adoption of the principle of one person, one vote.”
The court will give some insights into whether Wilson’s 1787 vision will continue. In the meantime, Wegman has produced an excellent book tracing the history of the Electoral College and the various challenges to it over the last 225 years.
In addition to the questions about faithless electors, the court last week heard arguments in three cases that concerned whether Trump must release his various records to the House and/or the New York Attorney General: Trump v. Mazars, Trump v. Deutsche Bank AG and Trump v. Vance. The documents in the three cases involve purely personal records of the president, all predating his becoming president. His lawyer, Jay Sekulow, argued, "We’re asking for temporary presidential immunity." Sekulow effectively is arguing a president “above the law,” that a president could not be investigated or prosecuted while holding the office. The House oversight function, the ability to issue subpoenas or conduct testimony, the ability to sue in civil or otherwise, would not be permissible. Justice Elena Kagan was not having it, reminding Sekulow that the “president isn’t above the law.” Some on the court seemed more skeptical of allowing such powers. We will learn in the next month or so what the court decides on this. Existing law suggests Trump will lose; legal pundits have expressed doubt about how the Roberts court decides, and in any event, we are unlikely to see unanimous decisions.
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission
One of the first cases heard by the court this term was R.G., a case addressing the questions of whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins. Aimee Stephens, who was the employee terminated by her employer when identified as transgender, died last week, before the court decided her potentially landmark case. We will report later in the term when the court decides this important civil rights case.
The next six weeks will be impactful ones, with the Supreme Court expected to rule in a variety of important matters. The current Supreme Court calendar shows no future opinion dates, but that will change in short order and we will continue to address decisions as the court produces them.