Dana Lake ‘23
Guest Writer
Of the sixty-three cases decided by the Supreme Court so far this term, this summer’s decisions have contained some of the heaviest hitters. The major cases were broken down in the Federalist Society’s Supreme Court Summer Round-Up, which turned out to be one of the most thought-provoking events thus far this semester. Expertly hosted by Vice President for Speakers Chloe Knox ’22 and delivered by Professor Julia Mahoney, Professor Dan Ortiz, and Supreme Court litigator Jeffrey Harris, the Zoom recording proceeded with only one freeze frame and less than ten seconds of someone speaking without unmuting themselves. The recorded session is available through the Federalist Society and this editor encourages you to watch it for yourself. If you are short on time, check out the highlights:
Pictured: Decisions by the Supreme Court this term are likely to cast shadows over major areas of policy for the federal government. Photo Courtesy of Getty Images/Stockphoto.
Most Underrated Decision: Maine Community Health Options v. United States
Professor Mahoney foresees major ramifications stemming from this decision in the coming years. The Affordable Care Act created risk corridors for insurers, limiting both the losses and gains an insurance company could expect from a particular healthcare plan. The House of Representatives turned over in 2014 and Republicans refused to appropriate money for the deal, resulting in several insurers going bankrupt. The Supreme Court ruled that the United States has an obligation to pay its commitments, and the insurers have a right to seek damages. With the national debt exceeding the US GDP for the first time since World War II, chances are high we will see similar debates over government obligations to pay in the near future.
Most Surprising Decision: McGirt v. Oklahoma
Professor Ortiz highlighted this case for the insight it provides into the mind of Justice Neil Gorsuch. Joined by a liberal majority, Justice Gorsuch explained in his opinion that because Congress never formally disestablished the Native American reservation that covers much of Oklahoma, crimes committed by Native American tribal citizens on those lands must be brought in federal court rather than state court. Justice Gorsuch’s advocacy for Native American rights in the face of the major impact this ruling has on thousands of already tried cases (and the disapproval of his fellow conservatives) was surprising for most people who forgot Justice Gorsuch is the only true Westerner on the court.
Most Recommended Opinion: Chiafalo v. Washington
Professor Ortiz assured us that if you are going to read an opinion, it might as well be written by Justice Elena Kagan. Her inimitable writing style and penchant for throwing in pop culture references make her opinions an engaging read even when addressing mundane topics. With this opinion, Justice Kagan dove straight into the hot topic of faithless electors. Just in time for this November, the majority found states do indeed have the right to punish members of the Electoral College who do not vote for the candidate that won their state’s popular vote. Though faithless electors have yet to sway an election, increased scrutiny of the Electoral College in recent cycles has created a real demand for accountability.
The Court’s summer decisions were historic not only for their content, but also for their delivery. With COVID-19 forcing the Court to jump head-first into the 21st century, the public was able to enjoy live-streamed audio arguments for the first time. That brought the joys of unmuted toilet flushes (slate.com points the finger toward Justice Breyer, but listen to the audio of Barr v. American Association of Political Consultants for yourself) and unprecedented involvement from Justice Clarence Thomas.
Greater public access to this year’s decisions has led to greater interest in the tantalizingly named “shadow docket.” Rarely making the front page, the shadow docket refers only to cases the Court submits orders on without taking oral arguments and usually without submitting opinions. In keeping to time, Supreme Court litigator Harris had only a moment to touch on some of these cases. Shadow docket decisions from this summer included: clearing the way for the resumption of federal executions, allowing military construction funds to be diverted to construction of the border wall, and preventing thousands of felons in Florida from voting in their state primary for failure to pay fines and fees.
The session included a deeper discussion of other noteworthy cases from the summer. Professor Mahoney started off by providing her insights into cases involving the Affordable Care Act, President Trump’s personal finances, and continued efforts by conservative state leadership to limit access to abortion. Professor Ortiz followed up with cases on contraceptives, faithless electors, and Native American rights; Mr. Harris closed out the evening with employment discrimination, DACA, and conflicts at the Office of Information and Regulatory Affairs.
Capped off with an insightful Q&A session that saw the speakers jumping straight in to asking each other questions, the Supreme Court Summer Round-Up was overall a very good use of a precious seventy-five minutes this fall semester.
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dl9uh@virginia.edu