Author: Edith Roberts

At the Washington Legal Foundation’s Legal Pulse blog, Lawrence Ebner wonders, “given the unusual alignment of Justices” in Ramos v. Louisiana, in which a fractured court ruled on Monday that the Constitution requires a unanimous jury verdict in state criminal trials, “whether the Court’s application of stare decisis is truly principled, or whether it is just a case-by-case, result-driven expedient for saving or ditching a controversial, and even wrongly decided, precedent.” At the Clause 40 Foundation’s Ad Justitiam blog, Jonathan Blanks unpacks Monday’s opinions in Ramos, concluding that “[t]he tone and substance of the Ramos opinions show how race continues to inflect arguments about American law, and how far we still have to go to be a more perfect Union.” In an op-ed for The New York Times, Linda Greenhouse explains that “[b]elow the surface of [the] 6-to-3 outcome lies a maelstrom of clashing agendas having little to do with the question ostensibly at hand and a great deal to do with the court’s future: Peek under the hood and see a Supreme Court in crisis.”

At The Washington Free Beacon, Kevin Daley reports that Monday’s decision in Ramos v. Louisiana, in which a fractured court ruled that the Constitution requires a unanimous jury verdict in state criminal trials, “featured a continuing debate over the force of precedent” that “was something of a proxy for disputes over basic principles.” The editorial board of The Wall Street Journal (subscription required) observes that the ruling “offers an illuminating look at the diversity of conservative thought.” Matt Ford writes for The New Republic (via How Appealing) that “[t]he justices have deliberated about the scope and limits of stare decisis at length in recent years, and for good reason: Anthony Kennedy’s retirement in 2018 produced a reliably conservative majority on the court that is poised to shape—and perhaps reshape—how the Constitution affects Americans for at least a generation.” At Reason’s Volokh Conspiracy blog (via How Appealing), Josh Blackman lays out “five unanswered questions from Ramos.” At Second Thoughts, Jake Charles highlights “some interesting parts of Ramos that both draw from and can inform Second Amendment jurisprudence.”

Yesterday the Supreme Court released decisions in three cases. In Ramos v. Louisiana, the court ruled 6-3 that the Constitution requires a unanimous jury verdict in state criminal trials. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. At Subscript Law, Mariam Morshedi provides a graphic explainer for the decision. For The Wall Street Journal (subscription required), Jess Bravin and Brent Kendall report that “the court’s fractured ruling has little significance for cases outside Louisiana and Oregon, the only states where a 10-2 or 11-1 jury can convict[; i]nstead, the justices’ remarks about precedent—an issue of increasing importance, as the abortion-rights decision Roe v. Wade and other liberal landmarks face challenges—may be the decision’s most significant legacy.” Nina Totenberg reports at NPR that the ruling “overturned a longstanding prior ruling from 1972, which had upheld such non-unanimous verdicts in state courts,” “[a]nd these days, any decision to overturn a longstanding precedent rings the alarm bells in the Supreme Court.” For the Los Angeles Times, David Savage reports that “[t]he court’s opinion by Justice Neil M. Gorsuch provides a striking example of how ‘originalism’ — a doctrine favored by conservatives — can sometimes yield rulings that produce liberal results.”

Briefly: At The Hollywood Reporter (via How Appealing), Eriq Gardner reports that “[t]he Federal Communications Commission, backed by Donald Trump appointees at the Department of Justice, is asking the Supreme Court to weigh in on what's become a rather lengthy fight over media ownership rules,”...

At CNBC, Tucker Higgins reports that “[t[he Supreme Court’s announcement this week that it will hold oral arguments via teleconference for the first time in its history has a small group of America’s top attorneys prepping for the most important phone calls of their careers.” In commentary at The National Law Journal, Joe Palmore draws on recent experience arguing a state supreme court appeal by telephone to offer some “thoughts on how the Supreme Court can make the best of this format." For this blog, in a post that first appeared at Howe on the Court, Amy Howe covers the implications of the court’s decision to provide live audio of the arguments, noting that “once the COVID-19 crisis is over and in-person arguments resume, it may be hard to put the genie back in the bottle, and go back to the old system in which audio is not available until later in the week.” At The Atlantic, Melissa Murray argues that “we shouldn’t go back[:] The Court’s switch … is an important and welcome concession to the current climate, but it is a move that should have happened well before a global pandemic demanded it.”

Public health concerns related to COVID-19 continue to alter the Supreme Court’s practices. At Bloomberg Law, Kimberly Robinson reports that yesterday “[t]he U.S. Supreme Court joined the chorus of federal courts across the country trying to reduce paper filings amid the coronavirus outbreak,” suspending some of its filing requirements for cert-stage briefs and stating that some routine motions should be filed electronically. At Reason’s Volokh Conspiracy blog (via How Appealing), Josh Blackman argues that “[t]this policy should be the new normal.” At Dorf on Law, Michael Dorf predicts that “[o]ne technology the justices are unlikely to embrace is live or even recorded video,” because of their “camera-phobia.”

At Bloomberg Law, Kimberly Robinson and Jordan Rubin report that the Supreme Court’s announcement Monday of a “plan to hold its first-ever arguments by phone next month introduces special challenges for those presenting their cases, including gauging the full reactions of the justices, high court advocates said.” According to Joan Biskupic at CNN, court-watchers suggested that “the value of Monday's development would rest in livestreaming becoming the rule rather than the exception and in eventual televising.” The editorial board of The Wall Street Journal (subscription required) calls the live audio feet the court will provide a “modest step, speeding by a few hours or days the delivery of an audio file that the Court was already providing[; p]eople who want to barge into the courtroom with TV cameras will argue it’s a precedent, but there’s no comparison, and plenty of reason still to be wary of television’s intrusion.”

The Supreme Court announced yesterday that it will hear 10 hours of oral argument via teleconference in previously postponed cases between May 4 and May 13, with specific dates to be announced. At this blog, in a post that was first published at Howe on the Court, Amy Howe reports that “the court will provide live-audio access to the media – and that media access will be pooled – for both reporting and live-streaming purposes,” meaning that “live audio of the arguments will be available to the public, an unprecedented move.” Greg Stohr reports at Bloomberg that “[i]t’s an extraordinary step for the tradition-bound court, whose arguments are normally steeped in ritual and devoid of all but the most basic technology.” For The Wall Street Journal (subscription required), Jess Bravin and Brent Kendall report that although “[t]he move stops short of steps taken by many lower courts, including the state supreme courts of California, Kansas and Texas, to conduct arguments by publicly accessible videoconference,” it “is a sign of just how much the coronavirus has changed public life”: “The high court is famously resistant to change, and has summarily rejected requests from lawmakers, the news media and academics for live transmission of its arguments.” At NPR, Nina Totenberg notes that “[w]ith the justices unable to see each other and the lawyers also unable to see the justices, oral argument may be more stilted than usual, with fewer follow-up questions and answers.”

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that on Saturday, “Planned Parenthood asked the justices to vacate a ruling by a federal appeals court and to allow ‘medication abortions’ – that is, abortions induced by taking two pills by mouth – to go forward while it challenges a near-total ban on abortions in Texas” imposed as a result of the coronavirus pandemic. At The Hill, John Kruzel and Marty Johnson report that “[a]t the moment, Texas women are prohibited from having medication abortions and surgical abortions are only available to Texas women about to reach their 22nd week of pregnancy.” Greg Stohr reports at Bloomberg that “[t]he clinics are seeking to let pill-induced abortions resume, saying they don’t require protective equipment.” Additional coverage comes from Adam Liptak for The New York Times and Robert Barnes for The Washington Post (subscription required). At The Economist,  Steven Mazie writes that “[e]ven with their sharpening divisions on other matters, the justices may agree that the pandemic should not provide cover for arbitrarily shelving constitutional rights.”