Round-up

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.”

In an op-ed for The Washington Post (subscription required), Laurene Powell Jobs worries that “if the Supreme Court allows the Trump administration to terminate DACA” in Department of Homeland Security v. Regents of the University of California, “roughly 29,000 … DACA recipients who are health-care practitioners face the risk of termination and deportation just as a shortage of medical personnel is stretching hospital systems already overburdened by coronavirus.” Other looks at DACA recipients on the front lines of the pandemic come from Zoeanne Murphy, also at The Post (video) and Nicole Narea at Vox. Briefly:

• For The New York Times, Adam Liptak reports that “the court led by Chief Justice John G. Roberts Jr. has in important ways receded from view[:] Very little is known about how the justices are conducting their work in the midst of the pandemic or how they plan to proceed.”
• Linda Greenhouse writes in an op-ed for The Times that “[t]he court’s behavior this week” in Republican National Committee v. Democratic National Committee, which blocked a lower court order extending the deadline for mailing absentee ballots in Wisconsin’s election because of the coronavirus pandemic, “raises the question whether the empowered conservative majority has the situational awareness to navigate the dire situation that faces the country, and whether it can avoid further displays of raw partisanship that threaten to inflict lasting institutional damage on the court itself.”

Alex Swoyer reports for The Washington Times (via How Appealing) that “[a]ccording to a new poll, Americans want to see the court, which has been shuttered by the COVID-19 pandemic, back at work — remotely if need be — hearing oral arguments, including for highly watched cases concerning President Trump’s financial records.” At Reuters’ On the Case blog (via How Appealing), Alison Frankel talks to an advocate in one of the cases on the Supreme Court’s recently postponed April argument calendar, who is still “hoping arguments will take place” because they “are a critical part of the justices’ process of deciding cases.”At The Atlantic, Garrett Epps maintains that “[t]wo months is plenty of time for even those as busy as the justices to devise a way to hold oral arguments remotely—to show the nation that the courts remain stalwart in the face of terror” – “[a]nd if they can’t do their job, then by God, they should at least have the grace to explain to us why not.”

Joan Biskupic writes at CNN that the court’s ruling Monday in Republican National Committee v. Democratic National Committee, which blocked a lower court order extending the deadline for mailing absentee ballots in Wisconsin’s election because of the coronavirus pandemic, “reflects Chief Justice John Roberts' cramped view of voting rights in America, a long-held position that has often favored Republican interests.” At Vox, Ian Millhiser argues that “the Court’s decision in Republican suggests that the Supreme Court will give the GOP broad leeway in how US elections should be conducted.” At Slate, Mark Joseph Stern asserts that although “[t]he conservative majority claimed that its decision would help protect “the integrity of the election process,” “[i]n reality, it calls into question the legitimacy of the election itself.” The editorial board of The Wall Street Journal (subscription required) calls the ruling “a reminder that, even in a pandemic, steps as grave as rewriting voting rules should be up to elected representatives and not freelanced by judges.” Additional commentary comes from Elie Mystal at The Nation and Leah Litman at The Atlantic.