The Supreme Court on Monday morning released orders from the justices’ private conference on Friday, Jan. 22. The justices once again did not act on several high-profile petitions for review, including the challenge to Nevada’s limits on religious gatherings, the challenge to the constitutionality of a Mississippi law that bans most abortions after the 15th week of pregnancy, and the dispute over whether former President Donald Trump violated the First Amendment when he blocked people from his now-terminated Twitter account.
But the justices did act on two other petitions filed by the former president, both involving lawsuits alleging that he unconstitutionally took payments from foreign and domestic officials through his businesses. Monday’s order list also included procedural orders on two cases out of Texas: one involving spiritual advisers during executions and the other involving now-defunct executive orders that restricted abortions during the COVID-19 pandemic.
The Supreme Court vacated the lower courts’ decisions in a pair of cases involving allegations that, as president, Trump received benefits from the hotels and restaurants that he owns, in violation of two anti-corruption provisions of the Constitution known as the emoluments clauses. In one case, Trump v. Citizens for Responsibility and Ethics in Washington, the U.S. Court of Appeals for the 2nd Circuit allowed a lawsuit by competitors in the hospitality industry to go forward, rejecting Trump’s arguments that the competitors’ alleged injuries did not give them a legal right to sue. Represented by the Department of Justice, Trump filed a petition for review in September, asking the justices to hear oral argument and weigh in on whether the lawsuit could go forward. But by late December, when the petition was first distributed for the justices’ conference in early January, Trump had less than a month remaining in his term as president. In his reply brief, then-Acting Solicitor General Jeffrey Wall argued that the justices should wait to act on Trump’s petition until after the inauguration and then vacate the 2nd Circuit’s ruling with instructions to dismiss the case as moot so that it would not serve as precedent for future cases – a move known as Munsingwear vacatur.
Wall made a similar argument in Trump v. District of Columbia, in which the District and Maryland also alleged violations of the emoluments clauses. After a federal district court in Maryland allowed the case to go forward, Trump asked the U.S. Court of Appeals for the 4th Circuit for an order that would require the district court either to allow an immediate appeal or to dismiss the case, but the full 4th Circuit rejected that request. Trump then went to the Supreme Court in early September, but in his reply brief, filed in late December, Wall again recommended that the justices “hold the petition until it becomes moot after the inauguration, and then grant certiorari and vacate under” Munsingwear. The justices agreed to both of Wall’s recommendations on Monday morning, wiping away the appellate courts’ rulings in both cases and instructing the lower courts to dismiss the lawsuits as moot.
Spiritual advisers at Texas executions
Last summer the Supreme Court postponed the execution of Texas inmate Ruben Gutierrez, who was convicted of the stabbing death of 85-year-old Escolastica Harrison, to give the court time to consider his petition for review. On Monday the justices sent Gutierrez’s case, which challenges the state’s policy of excluding all chaplains and spiritual advisers from the execution chambers, back to the lower courts for another look in light of a district court’s finding that having a spiritual adviser in the execution chamber would not lead to any security concerns.
The issue is one with which the justices are familiar. Until recently, Texas allowed inmates who were Christian or Muslim to have a spiritual adviser with them in the execution chamber. But after the Supreme Court blocked the execution of a Buddhist inmate because the state would not allow a spiritual adviser to be present in the execution chamber with him, the state adopted a new policy that barred all chaplains and spiritual advisers from the execution chamber. That shift prompted Gutierrez, who is Catholic, to go to federal court, where he argued that the new policy violates both the Constitution and the Religious Land Use and Institutionalized Persons Act, a federal law that protects the religious rights of inmates.
The Supreme Court put Gutierrez’s execution on hold last June – a move that required support from at least five justices. Although Gutierrez’s petition for review was fully briefed by the time the justices stayed his execution, the justices did not consider the petition for several months, taking it up for the first time in early January. Meanwhile, in response to instructions from the Supreme Court, the district court concluded that allowing an inmate to have a spiritual adviser with him during his execution would not create any serious security problems.
The justices on Monday sent the case back to the lower courts for “further and prompt consideration of the merits” of Gutierrez’s challenge in light of the district court’s conclusion. The justices indicated that Monday’s order lifted the existing stay of execution, but they also made clear that he could return to the court to seek a new one if his execution were rescheduled before his claims regarding a spiritual adviser are resolved.
Texas abortion policies
The Munsingwear doctrine came into play again on Monday in a petition filed by Planned Parenthood, seeking to lift decisions by the U.S. Court of Appeals for the 5th Circuit that permitted Texas Gov. Greg Abbott (R) to carry out executive orders barring most abortions at the beginning of the COVID-19 pandemic. Planned Parenthood argued that because Abbott has now replaced the orders with a different policy allowing abortions to resume, the 5th Circuit’s rulings should be vacated and the case should be dismissed as moot. The justices agreed.
Interstate tax dispute
The justices asked the acting solicitor general for the federal government’s views in New Hampshire v. Massachusetts, a dispute over a tax imposed by Massachusetts on non-residents who normally work in Massachusetts but are working from home because of the pandemic. New Hampshire came straight to the Supreme Court to file its challenge, a procedure known as an original action, arguing that the tax violates the Constitution. Four other states, led by New Jersey, urged the justices to weigh in on the case, arguing that such tax systems cost them billions of dollars in revenue each year. There is no deadline for the acting solicitor general to file her brief.
New York politician’s corruption case
The justices declined to review the conviction of Sheldon Silver, who served as the speaker of the New York State Assembly for 20 years. Silver, who represented lower Manhattan, was indicted on charges that he had accepted illegal bribes, in the form of $3.5 million in referral fees from other law firms during his work as a lawyer. In exchange for the referral fees, the government said, Silver influenced legislation that passed in the assembly and served on a board that approved bond financing.
The U.S. Court of Appeals for the 2nd Circuit upheld Silver’s conviction. It ruled that Silver’s bribery conviction did not require the government to show that he and the real estate developers responsible for the referral fees had the same intent. It was enough, the court of appeals concluded, for the government to show that Silver had understood the payment as money that he was receiving in exchange for the performance of some official action in the future.
Silver came to the Supreme Court in July, shortly before he reported to federal prison to begin serving his six-and-a-half-year sentence. He asked the justices to weigh in, but after considering the case at five consecutive conferences (and, perhaps, waiting to see whether Silver would obtain a pardon from Trump), the justices denied review.
Justice Neil Gorsuch dissented from the denial of review, penning a brief opinion that was joined by Justice Clarence Thomas. He noted that in its 1992 decision in Evans v. United States, the Supreme Court had “conflated” extortion and bribery in cases in which the defendant is a public official. Noting that four justices — the late Chief Justice William Rehnquist and the late Justice Antonin Scalia, as well as Thomas and Justice Stephen Breyer — had “all questioned that judgment,” Gorsuch indicated that he would have “granted this case to reconsider Evans in light of these thoughtful criticisms.”
COVID-19 restrictions on religious gatherings
Finally, the Supreme Court rejected a request from a Nevada church to hear oral argument in a challenge to the constitutionality of state COVID-19 restrictions. Houses of worship have repeatedly contended that such restrictions violate their right to exercise their religion. In July, the Supreme Court rejected an emergency request by the same church for permission to hold services on the same terms that other facilities in the state, including casinos, are allowed to remain open during the pandemic. Chief Justice John Roberts joined the late Justice Ruth Bader Ginsburg and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan in turning down the application from Calvary Chapel Dayton Valley, located just outside the state’s capital of Carson City. Although Ginsburg has since been replaced by the more conservative Justice Amy Coney Barrett, the court announced on Monday that it would not review the merits of the church’s challenge to the executive orders that Nevada Gov. Steve Sisolak (D) issued in response to the pandemic.
The state had urged the justices to stay out of the dispute, telling them that the case is moot because the U.S. Court of Appeals for the 9th Circuit ruled in the church’s favor and blocked the state from restricting in-person attendance below 25% of the fire-code capacity. Any issues beyond that, the state asserted, would require more evidence, which is why the 9th Circuit sent the case back to the district court for it to develop the record.
The church countered that the case was not moot because the justices could still grant the relief that it had asked for in its petition for review: making clear that “the First Amendment does not allow government officials to use COVID-19 as an excuse to treat churches and their worshippers worse than secular establishments and their patrons.” In particular, the church noted, the 9th Circuit should have followed the Supreme Court’s opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, in which the justices lifted New York’s COVID-related attendance limits on worship services, and ordered the state to treat churches like “essential” businesses, which do not have any limits on capacity beyond the need to observe social distancing guidelines. The justices turned down the church’s request without comment.
The justices now begin their traditional winter recess. Their next regularly scheduled conference is Friday, Feb. 19, with orders from that conference expected on Monday, Feb. 22. Any cases that are granted from that conference will almost certainly be argued in the fall.
This post is also published on SCOTUSblog.