What’s Happening Now

This afternoon the Supreme Court issued orders from the justices’ private conference earlier today. The justices granted six new cases – three pairs of consolidated cases – for a total of three additional hours of argument. With the announcement that they have agreed to review Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania, the justices will return to the battle over the Affordable Care Act’s birth-control mandate, which generally requires employers to provide their female employees with health insurance that includes access to certain forms of birth control. In 2013, the federal government exempted churches and other religious institutions from having to comply with the rule, and it provided an “opt-out” process to accommodate religious nonprofits that objected to having to comply with the mandate. In 2016, the Supreme Court heard oral argument in a challenge by religious nonprofits to the mandate and the accommodation process, but after the death of Justice Antonin Scalia the court sent the cases back to the lower courts with instructions for the federal government and the challengers to try to work out a solution that would allow female employees to receive full contraceptive coverage while still respecting the employers’ religious beliefs.

This afternoon at 2 p.m., Chief Justice John Roberts will travel by car from the Supreme Court to the Senate to assume his role as presiding officer over the impeachment trial of President Donald Trump. The court’s Public Information Office today answered some questions about Roberts’ role in the trial and how it will affect his work at the court. Roberts received a formal invitation to attend from Secretary of the Senate Julie Adams this morning. Upon arriving at the Senate this afternoon, Roberts will be sworn in by Sen. Charles Grassley (R-Iowa), acting as president pro tempore of the Senate, and then will administer the oath to the Senate. Procedural issues should predominate this week. The meat of the trial will likely begin after the long weekend.

Sometime on Thursday, Chief Justice John Roberts will cross the street from the Supreme Court building to the Capitol to begin presiding over the Senate impeachment trial of President Donald Trump. This week’s activities will be somewhat ceremonial—the chief justice taking an oath himself, then swearing in senators for their special role as jurors (or as a “court,” as Chief Justice William Rehnquist ruled in President Bill Clinton’s 1999 impeachment trial). The real action is set to start next week, after the Martin Luther King Jr. Day holiday. Throughout the court’s current term, the chief justice has received daily reminders of his potential role as the impeachment process inched along. Perhaps he was warming up for the role when, back on November 13 (the day impeachment hearings began before a House committee), Roberts was officiating the court’s annual charity dodgeball game. [caption id="attachment_291308" align="aligncenter" width="500"] Chief Justice Roberts in Babb v. Wiklie (Art Lien)[/caption]

Politics is in the air at the Supreme Court today. Not the looming impeachment trial of President Donald Trump, which will be drawing Chief Justice John Roberts across the street to the Senate in a matter of days, but the “Bridgegate” affair out of New Jersey. In 2013, three New Jersey officials schemed to close two of three access lanes normally dedicated to rush hour traffic from Fort Lee, N.J., onto the George Washington Bridge to New York City. (The other two lanes were shifted to join the eight used by interstate traffic approaching the toll plaza, a not insignificant fact when it comes to the legal theories in the case.) The plan was payback against the Democratic mayor of Fort Lee for refusing to endorse New Jersey Gov. Chris Christie for reelection that year. The plan caused massive traffic headaches in Fort Lee for several days as well as longer-term political and legal fallout for all involved. [caption id="attachment_291273" align="aligncenter" width="500"] Chris Christie and his wife, seated in front of Bridget Kelly and her lawyer, Michael Critchley Sr. (Art Lien)[/caption]

This morning the Supreme Court issued additional orders from the justices’ private conference last Friday. After granting three new petitions for review last week, the justices did not add any new cases to their merits docket for the fall. They called for the views of the federal government in three cases, but they did not act on a wide variety of high-profile petitions, scheduling most (but not all) of them for reconsideration at their next conference. The justices asked the U.S. solicitor general for the views of the federal government in two cases, Nestle v. Doe I and Cargill v. Doe I, involving the scope of the Alien Tort Statute, an 18th-century federal law that gives federal courts jurisdiction over “any civil action filed by an alien, for a tort only, committed in violation of the law of nations or a treaty of the United States.” The two companies were sued for buying cocoa from, and providing assistance to, farmers in the Ivory Coast, who used child labor trafficked from Mali. In a third case, N.B.D. v. Kentucky Cabinet for Health and Family, the government will weigh in on whether federal law requires state courts, when asked, to make the findings required for young people to apply for a special immigration visa that allows abused or neglected children to remain in the United States. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in N.B.D.] There is no deadline for the solicitor general to submit the government’s briefs.

This afternoon the Supreme Court issued orders from the justices’ private conference earlier in the day. The justices had considered a wide variety of hot-button issues – ranging from challenges to two states’ “faithless elector” laws to a clash between California and the federal government over enforcement of federal immigration laws and a challenge to the government’s expansion of the “conscience exemption” to the Affordable Care Act’s birth-control mandate – that would have further increased the profile of an already packed term, but instead the justices granted only three new petitions for review, in important but lower-profile cases.

Sometime in the next week or two, the impeachment trial of President Donald Trump will convene in the Senate. When it does, Chief Justice John Roberts will preside. There has been a good deal written about Roberts’ role, some of it intimating – or at least hoping – that Roberts could wrench control from the politicians who make up the Senate and transform the proceeding into a trial of the conventional judicial sort, with both sides able to compel the appearance of live witnesses and the production of documents and to inquire into any matter logically relevant to the charges against the president. For better or worse, neither the Constitution, the rules of the Senate, historical precedent nor the personal predilections of Roberts himself make this the least bit likely. Instead, Roberts is most likely to serve as a dignified figurehead in an affair entirely dominated by the Republican senatorial caucus. Here’s why.