PRI Fellow Erik Jaffe on Recent and Upcoming SCOTUS Decisions

Last week’s podcast featured PRI fellow and attorney Erik Jaffe, an expert in constitutional law. We asked Erik to give us his perspective on the U.S. Supreme Court’s major cases this session — LGBTQ rights, DACA, abortion regulation, and Trump’s financial records, as well as predict the high court’s decisions. So far (as of Monday before today’s rulings were handed down), he’s batting 500.

LGBTQ Rights

As Erik anticipated, the Court ruled last week that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex. The 6-3 ruling, with Justice Neil Gorsuch writing the opinion, included Chief Justice John Roberts and the Court’s four liberal justices. Erik believed that if one read the text “on the basis of sex,” the meaning is clear.  He conceded that Congress may have never imagined this when it adopted this particular statute  “If you’re a dyed in the wool textualist, psychoanalyzing Congress or worrying about what was in their heads at the time is the wrong inquiry.  Their subjective purpose is not the question.  The objective statement of the law is actually what we enforce.” He believed that Justice Gorsuch would “stick to his textualist guns.” Erik was right.

DACA and the “Dreamers”

“I think it is going to be close, but I lean in the direction of the Court allowing the administration to end DACA,” said Erik.  This wasn’t the case.  A slim majority, led by Chief Justice Roberts, concluded that the Trump administration failed to give adequate reasons for its decision to wind down DACA.  Erik believed that at the end of the day, the adoption of DACA was an exercise in prosecutorial discretion.  “It was a choice of the executive branch to not enforce a particular law to its fullest extent. This happens all the time. We don’t arrest people for every small violation of the law.  We don’t even arrest people for every big violation of the law if we think there is a debatable reason or if we just don’t have the resources to litigate it and we don’t have a great chance of winning.” Given the administration’s justification that it didn’t have the resources to fully enforce the immigration laws, Erik thought that it could be repealed as an exercise in discretion. The Trump administration still plans to seek legislation to change the law.

Abortion Regulation

The Justices are also ruling on a challenge to a Louisiana law requiring that abortion-performing doctors have admitting privileges at a local hospital.  The state’s statute aims to protect patient health and safety against doctors who may be less qualified or able to care for patients in case there are complications. It’s unusual for doctors to go against standards or safety procedures as it would make it more difficult for patients to see them.  “I find much of this to be very interesting on the questions of deference and burdens of proof,” said Erik, who is involved in the case.  “To what burden of proof do we put to the state about what their need is?; to what burden of proof do we put to the plaintiffs as to what the level of imposition will be and how much more difficult it will be to get an abortion?; on what level of proof do we put doctors to say that they can or can’t comply?”  While these questions came up in an abortion case, they also come up in other cases: “Second amendment advocates say that California is just making this stuff up [regulations] in order to burden the second amendment; abortion advocates say that the state is making this stuff up in order to burden abortion. . . . They’re very different standards applied in these two contexts depending on where someone lives.”  The Court’s decision will bring some uniformity to how we address claims of constitutional rights and claims of public health and safety needs weighed against those constitutional rights.

President’s Financial Records

Another heavily anticipated decision concerns access to President Trump’s personal financial records. Trump has asked the court to let him keep a variety of tax records, including his tax returns, shielded from Congress and an investigation by a Manhattan district attorney. While the cases aren’t about whether those records should be publicly available, they could shed light on whether voters will ever see the documents.  Erik says that Congress has arguably a harder row to hoe than the DA.  While everyone agrees that Congress should have some subpoena power, there’s a serious concern about weaponizing it: “I would be skeptical of the Court giving Congress carte blanche.” He believed that Congress would likely adopt rules when asking for records that don’t directly relate to existing legislation or the president’s performance of his duties in office.  However, he thinks the state authorities clearly have authority to subpoena records from private parties.  These subpoenas were issued against accountants and banks not against the president himself, so Erik believes that it would be odd that the president’s immunity would extend to these private parties. “Absent some clearly serious evidence that this is a frivolous investigation with no purpose other than to harass the President, I am guessing that the Manhattan DA would get more leeway on getting a hold of these records. “

Finally, we asked Erik if he thought the make-up of the U.S. Supreme Court would be as big a factor in the upcoming presidential election cycle as it was in the last.  He didn’t think so since conservatives now have the majority.  But given that the first two cases haven’t exactly gone conservatives’ way, it might be too early to tell.

Rowena Itchon is senior vice president of the Pacific Research Institute.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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