The Supreme Court is not conducting business as usual, but it is conducting business. One unusual development has been Court hearings by telephone. Previously, you had to wait a few days before you could listen to recorded oral arguments but in May, for the first time, the public could hear the lawyers and Justices’ words as they were spoken. This month’s listeners have been treated to a rare phenomenon, Justice Thomas asking a question for the first time in years—not just at the first telephonic hearing but during subsequent hearings as well.
Not quite as rare, but still unusual, is that the Court decided the “Bridgegate Case,” Kelly v. United States, by unanimous vote. When the Mayor of Fort Lee, New Jersey, refused to endorse Governor Chris Christie’s reelection campaign, members of his administration came up with a scheme to create a traffic jam headache by realigning the toll lanes leading from Fort Lee to the George Washington Bridge. They were convicted of violating the federal wire fraud statute, which punishes schemes to deprive the victim of money or property.
The Court reversed the conviction, Justice Kagan reminding us that “not every corrupt act by state or local officials is a federal crime.” She explained that the statute requires proof of property fraud, which the Government failed to do. The decision breaks no new constitutional ground and will upset no one on either side of today’s culture wars. It is undoubtedly correct.
The Court also made the right decision in Ramos v. Louisiana, which holds that the Sixth Amendment right to “trial by an impartial jury” requires a unanimous jury in state criminal trials. Unanimity has long been the rule in federal courts under a 1972 case called Apodaca v. Oregon, but that case limited the unanimity requirement to federal cases. Six Justices now say Apodaca’s failure to extend Sixth Amendment unanimity to state criminal trials was a mistake.
The decision will directly affect only two states, Louisiana and Oregon, but it raises more complicated issues than the Bridgegate case. The real issue was not simply whether the Constitution requires unanimity in state criminal trials, but also the circumstances in which precedent, the doctrine of “stare decisis,” should be followed.
The Court’s willingness to overturn a 1972 decision is unremarkable, given other instances where the Court has corrected what it perceives to be an earlier mistake. But we now wait for the other shoe to drop, which may help explain why Justice Kagan joined Justice Alito’s dissent in the Ramos case: She may be looking down the road.
This year’s docket does not include a direct attack on Roe v. Wade, decided nearly fifty years ago, but it does include a challenge to a law requiring Louisiana abortion providers to be affiliated with a nearby hospital. The outcome in that case may signal the Court’s respect for prior decisions when, sooner or later, it faces the right to abortion head-on.
Justice Kagan—the most conservative of the Court’s four liberals—has taken on a pivotal role, in some ways taking over where Justice Kennedy left off. Chief Justice Roberts and the other four conservative Justices joined her opinion in Kahler v. Kansas, which holds that due process of law does not require a state to recognize the insanity defense. States have broad discretion over their own criminal laws, she wrote, and it suffices that Kansas still allows the accused to show that he was incapable of intending to commit the crime, and that sanity remains a factor at the sentencing stage.
Justice Breyer’s dissent, joined by Justices Ginsburg and Sotomayor, poses a hypothetical comparison where two defendants, both insane, commit a murder. One believes he is killing a dog; the other believes a dog told him to kill the victim. According to Breyer, the second defendant is out of luck under Kansas law.
The dog analogy is a head-scratcher, something a law professor would think up. As it happens, Justice Breyer, my law school classmate, used to be a law professor at Harvard, as was Justice Kagan. I can’t quite decide which of these erudite scholars has the better of this argument.
Two more cases. Clearly correct in my view was the decision not to decide a gun case from New York where the prohibition against transporting firearms had become moot due to an intervening change in New York law. Gun rights activists had hoped for a ruling that would further solidify the Heller case of a decade ago, which upheld the right of individuals to own handguns. The Court wisely left well enough alone.
The Court should have done the same thing in the Wisconsin election case, inauspiciously named Republican National Committee v. Democratic National Committee, but instead it let democracy down and forced voters to choose between waiting in line for hours to vote or staying safe by staying home. Even though thousands of requested absentee ballots hadn’t been received by election day, and even though the state had decided not to release results until the following Monday, the Court decided, in a short unsigned opinion, that ballots had to be mailed and postmarked by election day. The Court’s five conservatives saw the issue as “a narrow, technical question” of election law, pandemic or no pandemic. Justice Ginsburg, dissenting, wryly observed that the Court was requiring absentee voters to postmark their ballots before they received them.
Let’s hope the Court does better with the “faithless elector” case, argued last Wednesday, which will decide whether Electoral College Electors are bound by the popular vote in their states or can go their own way, as several did in 2016. Based on comments made at the hearing, the Justices seem disposed to go with the popular vote, and that is the right choice.