WASHINGTON (CN) — With the coronavirus pandemic pushing the whirlwind conclusion of the Supreme Court’s term into July for the first time since 1996, the justices still must decide a handful of highly anticipated cases, including over Obamacare, religious exceptions to employment laws and access to President Donald Trump’s tax returns.
The court will next release opinions on Wednesday and still has five undecided cases. All of those cases were argued in May, when the court held its first-ever remote arguments due to concerns about Covid-19.
As is common with the end of the court’s term, the remaining decisions are among the biggest the court heard over the last nine months and figure to have weighty legal and political consequences ahead of the 2020 presidential election.
Chief among the unresolved cases is a pair of legal battles in which Trump is seeking to keep his financial records from Congress and his tax returns from a New York City prosecutor.
Probing the limits of presidential privilege, federalism and the relationship between the White House and Congress, the May oral arguments in the cases did not provide a clear indication of how the court might resolve the hotly contested issue.
However, Chief Justice John Roberts, in his usual position as the anticipated swing vote in the case, appeared skeptical of House Democrats’ argument that Congress can justify any subpoena so long as it might lead to future, undefined legislation.
“That’s what I’m suggesting, that your test is really not much of a test, it’s not a limitation,” Roberts said at arguments. “And it doesn’t seem in any way to take account of the fact that we’re talking about a coordinate branch of government — the executive branch.”
The dispute over Congress’ ability to access the president’s personal and corporate financial records dates to subpoenas issued in 2019 by the new Democratic majorities on the House Oversight, Financial Services and Intelligence Committees that seek broad swaths of financial information from Trump and his businesses.
The committees, who say the subpoenas are part of investigations into foreign interference, money laundering and the president’s personal conduct, won at both the D.C. Circuit and Second Circuit, with the appeals courts holding they had valid reasons for pursuing he documents.
The Trump administration has meanwhile said the committee subpoenas are invalid because they do not serve a valid legislative purpose.
With election day just four months away, the decision figures to have major political implications. If the court comes down in favor of the committees, House Democrats will have their hands on a trove of investigatory materials at a critical time in the campaign.
A ruling in the other direction, however, would restrict Congress’ ability to investigate Trump and future presidents.
Erwin Chemerinsky, the dean of Berkeley Law School, said the looming election will clearly be on the minds of the justices as they decide the case, but some of the more fundamental and enduring questions are more likely to occupy their time.
“They live in the society, they know there’s a November election, they know that the financial information, especially the tax records, could be very important,” Chemerinsky said in an interview. “On the other hand, I don’t think that’s what they’re going to be focused on. I think they’re going to be focused on the separation of powers questions.”
The second battle over Trump’s finances concerns the efforts of Manhattan District Attorney Cyrus Vance, who issued a grand jury subpoena nearly identical to the House Oversight Committee’s but with the added ask of Trump’s tax returns.
Also victorious in the lower courts, Vance issued the subpoena to Trump’s longtime accounting firm Mazars as part his office’s investigation into alleged hush-money payments to adult film actress Stormy Daniels.
While arguing the case, Vance has said it is key to receive the documents at this stage in the investigation while memories are still fresh and records easy to find. He also assured the justices it would not necessarily spark a wave of politically motived investigations launched by state and local prosecutors.
But Trump has taken a broad view of presidential power in seeking to dodge the Vance subpoena, saying the president is immune from all forms of criminal process while in office.
Aside from the financial records subpoenas, the court will again weigh in on the Patient Protection and Affordable Care Act’s so-called contraceptive mandate. That provision of the federal health care law better known as Obamacare requires employers with more than 50 employees to include free contraception as part of their health insurance packages.
The mandate was narrowed in rounds of litigation during the Obama administration and then even more with a Trump executive action in 2017 that allowed employers to opt out if they morally object to providing contraception to their workers.
Pennsylvania and New Jersey challenged the Trump order, winning an injunction that the Third Circuit upheld.
The Trump administration is joined in challenging the mandate by the Little Sisters of the Poor, a Catholic religious order that was involved in an earlier challenge to the mandate called Zubik v. Burwell. In that case, the Little Sisters said the form they were required to sign in order to opt out of providing the coverage made them complicit in sin.
With the issue back at the high court, Justice Ruth Bader Ginsburg was clearly skeptical of the Trump administration’s action at oral arguments, which she joined by phone from the hospital.
In another challenge that raises questions of how generally applicable laws apply to religious organizations, the court will also decide whether to broaden a general exception to employment discrimination law to cover teachers at religious schools.
Known as the ministerial exception, the doctrine dates back to 1985 and generally exempts religious groups from federal anti-discrimination laws when making decisions about hiring. The Supreme Court first endorsed the doctrine in 2012, though it left vague which employees the exception covers.
The court must now fill in some of those gaps and decide whether the ministerial exception applies to two Los Angeles-area Catholic schools that fired teachers.
It was difficult after oral arguments to forecast how the court might come down in the case, as the justices struggled to find a line that would make the exception generally applicable across a variety of religions with different hierarchies and titles.
Facing a steady barrage of hypothetical questions from the justices, an attorney for the Catholic schools said his version of the ministerial exception would apply to a nurse at a religious hospital who tends to the religious needs of sick patients, but likely would not to a math teacher who only leads a short prayer at the beginning of class.
Chemerinsky said previous actions on religion cases from the court’s conservative majority, including its decision last week in a case out of Montana over state tax credits for private schools, are good signs for both the Little Sisters and the Catholic schools.
“My sense is that the conservatives on the current court want to greatly decrease the role of the establishment clause and greatly increase protection of free exercise of religion,” the Berkeley Law School dean said.
The final case the court has yet to decide does not come with the same significant political implications of the other disputes but raises intriguing questions of criminal jurisdiction and the historical legacy of the U.S. government’s mistreatment of Native Americans.
In the case, Jimcy McGirt seeks to dodge his 1997 rape convictions on the grounds that a broad swath of eastern Oklahoma is tribal land, for legal purposes. McGirt, who is a member of the Seminole Nation of Oklahoma, says because Congress never did away with the boundaries of a tribal reservation when it granted Oklahoma statehood, his case should have been tried in federal, rather than state court.
In a 2017 decision in a separate case concerning the conviction of Patrick Murphy, the 10th Circuit ruled the land is indeed a tribal reservation. The Supreme Court initially heard that case in 2018, but announced at the end of the term that it would need to rehear the dispute.
But instead of setting Murphy’s case for argument this year, the court took on McGirt’s, possibly because Justice Neil Gorsuch was recused from Murphy’s case, which came up through his old court.
At arguments in both the 2018 case and in McGirt’s challenge, the justices appeared hesitant to deem a significant segment of Oklahoma, including the city of Tulsa, a reservation, which could have cascading effects on already resolved criminal cases and the area’s current legal and regulatory regime.