The substance, background and long-term impact of decisions handed down by the highest court in the land were the crux of Professor Martin Flaherty’s annual Scarsdale Adult School course, “Supreme Court Roundup,” presented via Zoom July 14.
Flaherty is the Leitner Family Professor of Law, founding co-director of the Leitner Center for International Law, Justice at Fordham Law School, and the author of “Restoring the Global Judiciary: Why the Supreme Court Should Rule in Foreign Affairs.”
Flaherty focused on conservative, moderate and surprisingly liberal opinions contributed by Republican appointees in landmark decisions that concluded the 2019-20 Supreme Court term. In some cases, liberals banded together while conservative opinions diverged.
Flaherty highlighted cases where, he said, “the court has drifted to the middle, right and the left.”
Separation of Powers: Trump v. Vance
In a 7-2 decision written by Chief Justice John Roberts, the court ruled that the president is not above the law, allowing for New York County District Attorney Cyrus Vance to subpoena President Trump’s tax and financial records in investigations including allegations of hush money payments made to Stormy Daniels, a porn star linked to Trump.
The president must respond “the same as you or I would,” said Flaherty.
However, there will be considerable delays in the acquisition of those records, said Flaherty. The litigation could take months, and although “the president technically lost, whether he is going to feel the effects of that before the election is an entirely different matter.”
Contrasting the case to the Supreme Court’s subpoena of the Nixon tapes during the Watergate investigation, Flaherty said with that decision, “the presidency won, but Nixon lost,” whereas with Trump v. Vance, “it may well be that the presidency lost, but because these records won’t get out in time, maybe Trump will win.”
Aaron Burr, vice president to Thomas Jefferson and the man who shot and killed Alexander Hamilton in a duel depicted in Lin-Manuel Miranda’s “Hamilton,” was the first to subpoena documents of a sitting president (Jefferson). Other sitting presidents, including James Monroe and Bill Clinton, also cooperated in providing documents to the court.
Religion: Little Sisters of the Poor v. The Commonwealth of
Flaherty pointed out that all the justices, except for Elana Kagan, Ruth Ginsberg and Neil Gorsuch, are “very conservative Roman Catholics.”
“They’re not Pope Francis kind of guys,” and are likely to uphold cases of “religious exceptionalism,” he said.
One such case this year was Little Sisters of the Poor v. Pennsylvania. In a 6-3 decision written by Justice Clarence Thomas, medical providers at clinics and hospitals run by that religious order are exempt from providing birth control health care that patients are entitled to under the Affordable Care Act, on grounds of religion.
“This is where the court really is twisting to the right,” said Flaherty. “Where the court is pushing the jurisprudence significantly in a way that makes religion special and less susceptible to laws of applicability, and that is, in part, due to recent Supreme Court appointees,” said Flaherty.
Rights: Bostock v. Clayton County
Flaherty cited the court’s decision in Bostock v. Clayton County as a moderately surprising one that “pushed to the left,” and “an enormously consequential decision,” for the LGBTQ community. The case, he said, “interprets the most important statute, I would argue, of the 20th century, the Civil Rights Act of 1964.” Also known as Title VII, it stipulates that no one shall be refused a job or fired on the basis of race, color, religion, sex or national origin.
But Bostock v. Clayton County questioned the lawfulness of hiring or firing an individual based on sexual orientation. The Supreme Court held, in a 6-3 decision, that doing so is the same as discrimination based on sex. Surprisingly, Neil Gorsuch, a Trump appointee, wrote the decision. Bret Cavanaugh, another Trump appointee, and a staunch conservative, wrote the dissenting opinion, but Flaherty points out that “both of them approached the text of the statute the same way.” For Gorsuch, a mainline Protestant who was a judge on the 10th Circuit in the liberal-leaning and progressive district of Boulder, Colorado, being discriminated against, on the basis of sex, includes sexual orientation. For Cavanaugh, it does not.
In a narrow but important victory for the “dreamers” — children born in the U.S. to undocumented residents — the court ruled 5-4 that Department of Homeland Security’s decision to rescind Deferred Action for Childhood Arrivals, which is the protection established during the Obama administration, was arbitrary and capricious and that the agency abused its discretion.
“The Trump administration regulations wanted to reverse the Obama regulations,” said Flaherty, “but didn’t deal with any of the pros and cons of the idea of forbearance when it came to kicking out these kids.”
Clearly, the court offered more surprises and stood more to the center than one would have thought in its 2019-20 term, and it’s anyone’s guess where the rulings will trend when court resumes in the fall.