The Taxes Are Back in Town: Weekly Brief for May 11

President Trump’s tax returns? Check. “Faithless” members of the Electoral College? Yep. Whether half of Oklahoma is actually Native American land? Check that one too. And the Establishment Clause’s “ministerial” exception? You got it. The Supreme Court heard oral arguments this week on all of these issues, rounding out what was perhaps the biggest argument week of the term (and also the Court’s last). Given the stature of these cases, you’d be forgiven if you didn’t notice the Court also released one decision this week (it was pretty innocuous). Here’s a recap of the action at our nation’s highest court this past week.


This Week:
Decisions: 1
Cases Argued: 6
Cert Grants: 0
Opinions Relating to Orders: 1

O.T. 2019:
Cases Decided: 35
Cases Remaining: 36*
Weeks Left in Term: 6**

This number includes cases that were granted and had been set for oral argument in March or April, but were postponed due to COVID-19 and were not rescheduled for the May virtual argument sitting.

** This number reflects the date at which the Supreme Court’s term usually ends (the last week of June). However, O.T. 2019’s end date may be later due to measures taken in response to COVID-19.


The Court kicked off its final week of telephonic oral arguments with two cases on Monday. First on the docket was McGirt v. Oklahoma, a pro se criminal appeal. Under the 1885 Major Crimes Act (18 U.S.C. §1153 et seq.), crimes committed by Native Americans on a federal Indian reservation or Indian territory must be prosecuted under federal law—not under the laws of the state within which the Indian territory is located. To determine whether a tract of land is in fact part of Indian territory, the Supreme Court has applied a two-part test: first, whether the land at issue was ever Indian territory, and if so, whether a federal statute ever transferred ownership of that land to the relevant state government.

At issue here is a large swath of eastern Oklahoma (including all of Tulsa). In the 1830s, this tract of land was set aside as an Indian reservation for the Cherokee Indians who were forcibly and brutally removed from their native land in Georgia. But in 1906, Oklahoma became a state. Since then, state and federal officials have operated under the assumption that Oklahoma’s statehood dissolved the Cherokee reservation and formally transferred the land’s ownership to the State of Oklahoma. Thus, every Native American who has committed a crime on that land since 1906 has been tried under Oklahoma state law.

Well, there might be a problem (at least, a few currently imprisoned Native Americans seem to think so). Are there any federal statutes that dissolved the Cherokee reservation’s borders in 1906? Did the Oklahoma statehood declaration even do so? Last term, the Court heard arguments in Carpenter v. Murphy, an identical case to this one. The Justices seemed a bit taken aback by the possibility that no statute ever dissolved the reservation. But then they ordered further briefing on the following question: whether it’s in any way possible for Oklahoma to retain criminal jurisdiction on that part of land, even if it remains Indian territory. Not the best sign for Oklahoma, it seems. The Court opted not to decide Carpenter v. Murphy last term and then switched it out for this case (probably because Justice Gorsuch would have had to recuse himself in Carpenter since he participated in a lower court decision).

The question before the Court is, effectively, whether much of eastern Oklahoma remains an Indian reservation. If yes, then the Court will validate the largest current Indian reservation in the United States (with 1.8 million inhabitants) and invalidate every Native American’s criminal conviction on that land since 1906. If no, then, quite simply, everything will remain as it is now. The argument in McGirt is available via audio and transcript.

The other case argued on Monday was Our Lady of Guadalupe School v. Morrissey-BerruMorrissey-Berru concerns the “ministerial” exception to federal court jurisdiction under the First Amendment. The exception stems from Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012). There the Court held that, under the Establishment Clause, civil courts cannot hear employment-related lawsuits brought by “ministerial” employees against their religious employers.

To determine whether an employee is “ministerial,” the Hosanna-Tabor Court laid out four independent considerations. At issue here is the last one: that an employee “perform[s]” “important religious functions.” Since Hosanna-Tabor, most lower courts have principally looked to this consideration and have held that it alone is sufficient to revoke jurisdiction. But the Ninth Circuit has not. It has held that, for an employee to qualify as “ministerial,” the employee must do more than simply perform important religious functions. The Court will now decide which approach is right. The argument in Morrissey-Berru is available via audio and transcript.


If there was one day all term where seemingly every American’s eyes were pointed toward the Supreme Court, it was Tuesday. The Justices heard arguments in two related cases, both involving subpoenas for President Trump’s personal and corporate tax records. First on the docket was Trump v. Mazars USA, LLP, in which the House of Representatives’ subpoena is at issue. The House Oversight and Reform Committee subpoenaed Mazars USA, a Manhattan-based accounting firm, for all documents relating to Trump’s private and corporate tax returns. Trump challenged the subpoena, arguing that the House has neither the constitutional nor the statutory authority to issue such a demand. The argument in Mazars is available via audio and transcript.

In its wake was Trump v. Vance, which concerns a subpoena from Manhattan District Attorney Cyrus Vance. His subpoena—stemming from a sealed grand jury investigation—was similarly served on Mazars and requests virtually the same information. Trump challenged the validity of this subpoena too, this time on the ground that it violates Article II and the Supremacy Clause of the Constitution. Featuring prominently in both arguments was the question of presidential immunity, or whether a sitting president is immune to the ordinary criminal process while in office. The argument in Vance is available via audio and transcript.

For a deep dive into the history of these cases and some of the legal matters the Court may be considering, see my post Federalism and Federal Friction: President Trump’s Tax Returns Cases, published last November.


The Court on Wednesday rounded out its oral arguments for the term with two identical cases. In Chiafalo v. Washington and Colorado Department of State v. Baca, the question the Justices must decide is whether the Constitution prohibits states from requiring their presidential electors to follow a state’s popular vote when casting their Electoral College ballots. Here, Electors in Washington and Colorado (states that voted Democratic in 2016) sought to cast their Electoral College ballots for Democratic presidential candidates who weren’t the party’s nominee. When the states fined the Electors, the Electors sued, arguing that the Constitution did not bind them to vote for their party’s nominee, Hillary Clinton. The Court will decide whether this assertion holds up. The argument in Chiafalo is available via audio and transcript; and via audio and transcript in Baca. (Justice Sotomayor recused herself in Baca since she knows the parties involved. So the cases will be decided separately, with eight Justices participating in Baca and all nine in Chiafalo.)



Lost amid the torrent of oral argument media coverage, the Court issued one decision on Thursday. It’s a ridiculously arcane civil procedure case:

Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.
This case smacks of the doctrine of res judicata (sometimes called “claim preclusion”). When two parties engage in a second round of litigation, neither party can raise a claim that was already adjudicated in the first round of litigation. In other words, if Party A sues Party B for reason Z and A loses, then A cannot turn around and try its luck again by suing B for Z a second time. Res judicata is related to “collateral estoppel,” which prohibits the same parties from re-litigating issues that were raised in earlier rounds of litigation (sometimes called “issue preclusion”).

At issue here was the question whether res judicata extends to certain defenses (coined “defense preclusion”). In other words, if, in a second round of litigation, Party A sues Party B and B then invokes a defense that it did not invoke in the first round of litigation but could have, does res judicata preclude B from raising that defense in the second round of litigation? Justice Sotomayor, writing for a unanimous Court, answers “no”—as long as the second round of litigation involves new claims that were not adjudicated in the first round of litigation. So, to use our example: If A sues B for reason Z, and A later sues B for a different reason Y, then B can raise a defense to reason Y that it did not invoke against reason Z even though it could have.

Assuming you’ve managed to wrap your head around these basics, Sotomayor proceeds with her explanation. The Court has never recognized “defense preclusion” as a “standalone category of res judicata,” she says. “Instead, our case law indicates that any such preclusion of defenses must, at a minimum, satisfy the strictures” of res judicata or its sister doctrine, issue preclusion. Since issue preclusion is inapplicable here, Party B would be barred from invoking the relevant defense only if principles of res judicata are satisfied—that is, only if the two suits present the same causes of action or share a “common nucleus of operative fact[s].”

Here, Sotomayor says, they don’t. “The two suits . . . were grounded on different conduct, involving different [trade]marks” and “occurring at different times.” So, Party B can raise the relevant defense even though it opted not to in the first round of litigation. Put differently, because the first and second rounds of litigation involve different claims, res judicata does not apply, and thus the idea of “defense preclusion” does not apply either. Sotomayor then dismisses arguments that early legal treatises recognized a form of “defense preclusion,” before restating her conclusion that when two parties engaged in successive litigation raise substantially different claims than were raised previously, one party cannot bar the other from invoking a defense that it could have raised earlier but elected not to.

Opinion Relating to Order:

Thursday afternoon, the Court declined to intervene in Valentine v. Collier. Two Texas geriatric-prison inmates have challenged the health measures that Texas prison officials put in place in response to COVID-19. The inmates won in the federal district court. But Texas appealed, and the Fifth Circuit Court of Appeals put the decision on a temporary hold. The inmates appealed the Fifth Circuit’s stay to the Supreme Court, but the Court declined to step in. No Justices dissented.

Justice Sotomayor (joined by Justice Ginsburg) authored an opinion respecting the denial of the application. She first notes that there is a “high bar” where the Court is asked to overturn a lower court’s stay. “Among other things, applicants must show that the lower court was ‘demonstrably wrong in its application of accepted standards in deciding to issue the stay,'” she says (quoting Western Airlines, Inc. v. Teamsters (1987) (O’Connor, J., in chambers)). Here, she admits, “it is hard to conclude that the Fifth Circuit was demonstrably wrong on this preliminary procedural holding.” That said, Sotomayor writes separately to “highlight” the inmates’ “disturbing allegations,” and she stresses that the Court’s decision in no way undermines the merits of the inmates’ claims. She concludes, touchingly:

It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales.”


The Court conducted its weekly, private (tele-)conference on Friday. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution, only Chief Justice Roberts was actually present in the Supreme Court building; the other eight Justices took part in the conference over the phone. We can expect news from this conference in the Court’s next orders list on Monday. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law—and others like it in cities and states around the country—under the Supremacy Clause of the Constitution.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Ohio v. Ford. This is a capital case that asks what the proper standard is for determining whether a criminal defendant is “intellectually disabled” under the Eighth Amendment’s Cruel and Unusual Punishment Clause.
  • McKesson v. Doe. This is a First Amendment case stemming from a Louisiana protest in which some protesters resorted to violence. The question presented is whether the First Amendment permits a state to sue the leader of a protest for criminal negligence, even where the leader does not necessarily instigate the violence.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

With oral arguments seemingly done for the term, the Court will now transition into its orders- and opinions-only phase. On Monday the Court will release orders at 9:30am EDT, and there is a possibility of opinions at 10:00am. On Friday the Court will meet for its next weekly teleconference.

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