SCOTUS Update with Susanna Rychlak Allen (State Bar of Texas Annual Meeting 2022)

Episode Notes

Transcript

Laurence Colletti: This episode is brought to you by the generous support of LawPay, a Texas member benefit provider. Getting paid just got a whole lot easier. So check them out at LawPay.com. That’s LawPay.com for more details, and now on to the show.

All right, welcome back everybody, we’re still at the State Bar of Texas Annual Meeting here in Houston and we’re recording live obviously. And I’m not your regular host, of course, I’m not Rocky Dhir. But I’m a good substitute. I hope, I hope you like so what I’m doing here, right Paige?

Paige: Yes.

Laurence Colletti: All right, perfect. So anyway, we have a wonderful guest joining us, she is very nice. Susanna Allen, she just gave the SCOTUS update and now we’re going to catch up with her, learn a little bit what happened in this Supreme Court session? So welcome to the show Susanna.

Susanna Rychlak Allen: Thank you so much Laurence, it’s my pleasure to be here.

Laurence Colletti: I know, obviously, you’re a lawyer, but where do you practice? What you do?

Susanna Rychlak Allen: Certainly. So I’m an associate with Yetter Coleman, which is here in Houston, Texas and we’re a boutique litigation firm that does trials and appeals and I do all types of litigation with them and I’ve been there for about 18 months and before that, I practiced in Washington, DC.

Laurence Colletti: Excellent. Excellent. Well, so I guess welcome to the Lone Star State.

Susanna Rychlak Allen: Thank you. I’m very glad to be here.

Laurence Colletti: Awesome. Awesome. All right. Well this was obviously, I think it was a pretty interesting Supreme Court session. So let’s just kind of hit general matters here. So it started I think in October maybe can you give us the dates, how long this particular session was, maybe hit a couple of the highlights and we’ll get into the specifics as we go.

Susanna Rychlak Allen: Certainly, so, you’re right. This is the October Term 2021 and it’s called the October Term because the justices begin hearing oral argument on the first Monday in October. And for this term, that was October the 4^th, 2021 and the justices actually had their last oral arguments sitting on April, the 27^th of this year. So what that means is we’ve entered the part of the Supreme Court Term where the justices are no longer hearing oral argument but instead they and their clerks are really focused on drafting opinions, getting opinions out the door.

And historically, the Supreme Court and particularly the Roberts Court have issued most of their, if not all, of the opinions in argued cases by the end of June, though it seems like they may be a little bit behind pace to meet that end of June deadline this year.

Laurence Colletti: So little bit unusual then.

Susanna Rychlak Allen: Yes. I think it’s the backlog at this point is fair to say it’s unusual and it started to garner even some mainstream media attention. The justices have issued about 36 opinions, kind of depending on how you count them, some of them were decided on the papers. But the more notable number is that as of today, June the 10^th, there are still 29 decisions that the justices need to issue before the term closes and if you kind of look back as to other terms numerically, they are behind pace. And I think that that’s significant particularly given the number of outstanding opinions on really important and notable issues.

Laurence Colletti: Okay and we obviously I think and unless you were in a newshole, we know that we got a brand new Supreme Court Justice. One retired and one is made it through the nomination process. So tell us a little bit about that.

Susanna Rychlak Allen: Yes, certainly. So Justice Breyer announced his retirement in January of this year 2022. And interestingly, he actually conditioned his retirement on his replacement being nominated and confirmed, and that has now happened and Justice Ketanji Brown Jackson will assume her role on the Supreme Court at the end of this term. She has a number of stellar credentials, including being a former clerk to Justice Breyer and will be the first African-American woman on the Supreme Court.

Laurence Colletti: Now this was not part of my constitutional law class in law school. But now, as far as her role until she officially gets in, when did she get to take on some cases, make a decision?

Susanna Rychlak Allen: So she will not be involved until Justice Breyer’s retirement formally takes effect, which is at the end of this term when the justices take their summer recess. So it’s up to whenever the justices finished their opinions, he will step down and she will assume her role as Justice and at that point begin participating in deciding whether to take up cases on cert and certainly will be one of the sitting justices, hearing oral argument when they begin October Term 2022.

Laurence Colletti: Okay, I’ve noticed, this is my personal observation, it seems like year after year the Supreme Court gets more and more attention in the news. I think with very rare exception, I think there was maybe a quiet year a couple of years ago but it sounds like this is another big year. So maybe we can talk about some of those big monarch cases that have already been decided.

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Susanna Rychlak Allen: Certainly. And I definitely think it’s fair to say that this is a blockbuster term with a lot of important issues before the Court. And there are a number that have already been decided though the balance of the most blockbuster cases are probably those that are still outstanding and I’m sure that we will touch on those.

But as of opinions, we’ve gotten already, we certainly have some important issues that the Court has decided. We got a pair of decisions in cases addressing COVID-19 vaccination requirements. Earlier this year, the Court took those up on an emergency application basis and they were argued in January and then shortly thereafter, the justices came down with opinions. One opinion upholding and allowing the rule to go into effect that requires healthcare workers at facilities that are involved in Medicare and Medicaid to be vaccinated; and at the same time, blocking enforcement of a vaccine mandate that would have applied to any employer of 100 or more employees, which would have affected roughly two-thirds of the private sector.

So those COVID cases are important both in the impact that they had on those rules and some of the reasoning on administrative law and agency authority.

Another area of cases or at least a case where we already have a significant decision was the Court’s decision in Whole Woman’s Health v. Jackson where it determined that a pre-enforcement challenge to the Texas Heartbeat Act SB 8 could go forward against certain State Licensing officials.

The Court did not take up the underlying SB 8 legitimacy itself. It just addressed whether the pre-enforcement challenge could go forward and found that for a narrow group of defendants, it could though subsequent developments including a certified question to the Texas Supreme Court make it seem like that case will probably not move forward.

The last area of existing decisions that we have that I think is worth spotlighting are some of the First Amendment cases that we’ve gotten. I called it signs and flags in my presentation. There was a case that found that an Austin City Code Regulation that distinguished between on premises signs and off premises was content-neutral and thus strict scrutiny was not applied, which is an important development in the First Amendment Speech Jurisprudence.

In another case, the justices found that there was a First Amendment violation when Boston had three flagpoles in front of its City Hall that it allowed one of the flagpoles private groups were allowed to have flag-raising ceremonies and fly their private flags and the city denied that request of group to fly a Christian flag and the Court struck that down as a violation of the Free Speech Clause.

So I think those are some of the big ones we’ve gotten so far. I could keep going. There are some on arbitration that are also pretty interesting but I think that that’s a good group.

Laurence Colletti: No, that’s a great grouping. And so I guess I know there are some outstanding ones that still need to be decided. So how about just a couple of those coming up that we can get excited about. There’s going to be a lot of fervor, there is going to be a lot of arguing on TV, at least we’ll know about it in advance.

Susanna Rychlak Allen: Certainly. So I would say there’s about seven outstanding cases that have the potentials to be quite notable and high-profile. I think the top of everybody’s list is Dobbs v. Jackson Women’s Health Organization, which is the case that’s expected to address whether there is still a constitutionally protected right to abortion and that was, of course, the leaked draft opinion.

Another case that is worth watching for is New York State Rifle Association v. Bruen, which puts at issue a New York Regulation, a New York Licensing program related to whether an individual can get a license to carry a concealed firearm outside the home and this is the first opportunity for the Court to really substantively address the Second Amendment and it’s reach since its 2008 decision in Heller.

There’s also a pair of cases about the religion clauses that should be pretty interesting. One is Carson v. Makin and it involves program for students in rural Maine and then about whether they can get tuition assistance for religious schools. The Maine program would not approve these funds for schools that provided religious instruction and this is going to give the Court the opportunity to address this evolving area.

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And they’re evolving jurisprudence potentially addressing some questions that have been left open from cases from prior terms.

And there is another Free Exercise and Establishment Clause case that should be pretty interesting that involves a praying football coach in Kennedy v. Bremerton School District. It’s about a football coach who would go to the 50-yard line kneel and say a prayer after high school football games and he was at a public school.

There are some factual disputes in that case that make it a little bit extra interesting and so it might give the Court the opportunity to sort of address where the Establishment Clause ends and how this might impact the Free Exercise clause, which has been a little bit of a tightrope for things like cities and schools.

Laurence Colletti: I love it. That’s a great run down and no, I think that’s going to be a lot of stuff to, I look forward to in the news, there can be a lot of talking heads going back and forth on that. You know one thing is I really appreciated about some of your presentation was and this something if you just watched the news about the Supreme Court, you watch Congress argue about stuff and everybody getting their feathers up in a whatever, wouldn’t know that the Supreme Court agrees most of the time and usually, in a pretty big way.

So I definitely want to share some of those stats. I think it’s really good for just civic education. It seems like the ones that we fight over a relatively few so maybe get a little break down there.

Susanna Rychlak Allen: Absolutely. So it’s correct that historically, the Roberts Court has been unanimous in a pretty decent chunk of the cases before it. And the Court has been pretty proud of that. This term so far again, we have 29 opinions outstanding but for right now, as of June 10, the proportion of 9-0 or 8-0 cases is 35%, this is actually a little bit lower than it has been in past years.

At the end of last term, OT 2020, the Court ended up being 43% unanimous. But when you look at the fact that they have actually been a disproportionate number of 8-2 decisions this term and you look at the 9-0 and 8-1 decisions together, this starts to look a little bit more like a typical Roberts Court term because that bumps up the 8-1 plus 9-0 to I think 57%.

But again, we have 29 opinions outstanding. We’re late into June. It’s not the time in the term where you typically would expect to see a waterfall of unanimous decisions, otherwise it’s likely they would have come out by now. So it wouldn’t surprise me if we start to see some of those statistics shift and at the end of the term, this might look like maybe a little bit more of a fracture Court than it has in the past. But again, this is all reading tea leaves.

Laurence Colletti: Okay, well, let’s go sit out with a fun question and so I asked you about this in the pregame because this story made the news, it was a big headline and all of a sudden it has disappeared. And that is the Supreme Court leak of the draft opinion. And so maybe walk us through that a little bit, maybe tell the story just again for people that were living in newshole somewhere, tell the story and then let’s get an update on where things stand today.

Susanna Rychlak Allen: Certainly happy to. So on May the 2^nd, Politico published a draft of the Dobbs opinion, which as we discussed addresses the constitutionally protected right to an abortion and this draft opinion which was apparently authored by Justice Alito would overrule Roe v. Wade and Planned Parenthood v. Casey and ruled that there is no constitutionally protected right to an abortion.

Laurence Colletti: Well, let’s stop right there, just real quick. So this draft, this is not the final decision yet. This is just a suggestion. So in the part of this process that document gets kicked to the other justices, right and then may weigh in and then eventually get to a final draft. Is that right?

Susanna Rychlak Allen: That’s absolutely correct. At the time of the leak, Politico did report that there were five justices in support of the position of overruling Roe v. Wade, but it is important to emphasize that this is just a draft. The draft on its face was dated and in February, we have no way to know what the status of the draft was really at that time and how it might change into a final opinion. So it is important to emphasize this is just a draft.

Laurence Colletti: And so now, there’s an investigation right, so what’s going on there?

Susanna Rychlak Allen: That’s right. So the day following the draft, Chief Justice Roberts actually confirmed the authenticity of the draft that it was a paper from the Court and ordered an investigation to be led by the Marshal of the Supreme Court. So the leak is obviously a huge deal for the Court.

There’s not been a leak of a draft opinion in modern times in a pending case and we don’t know a whole lot about the investigation. The investigation seems to be ongoing. On May the 31^st, CNN reported that law clerks were being asked for their phone records and to sign affidavits about their knowledge and that the clerks are wondering whether they should retain independent legal counsel.

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But beyond that, we don’t really know a lot of details and we don’t know assuming there are findings from this investigation if they’ll ever be made public.

Laurence Colletti: Well, this is one thing I just have no idea about let’s say they do find that somebody leaked it and obviously a fireable offense. But beyond that what penalty would any one of these clerks or whoever it was that possibly did face?

Susanna Rychlak Allen: Goodness, I really have no idea. The Court is an institution that relies on trust and secrecy and confidentiality and the work that it does understandably. Their decisions have a widespread impact and the confidentiality is very important to the Court so it could certainly have significant consequences if the investigation involves affidavits or other sworn statements, there could be issues if there is a dishonesty in the investigation but I just — there’s really no way to know what the consequences might be except that it would certainly be pretty consequential.

Laurence Colletti: My imaginations take me to some bar associations out there are looking at who might be a member of their serving in this Court right now. And that is really disruptive. I mean that really breaks down the trust of a very important institution. And as lawyers, we swear an oath to our state bars to be upstanding in this regard and to try to not behave in a way that causes the public to distrust the institution of law.

So I think, whoever it was, if it’s a group of people, they may want to be thinking about that, that’s a pretty serious activity. I mean, I don’t know how you feel about it, but I certainly as I’ve read a little bit, a lot of people are breaking down that institutional trust right now and they’re just looking at us like what’s going on.

Susanna Rychlak Allen: Yeah, I mean, we have no way to know if the person that leaked this was in fact an attorney, justice or clerk.

Laurence Colletti: That’s true, right.

Susanna Rychlak Allen: But I think we can all agree that trust and the clients that you represent, trust in our profession is extremely important. And certainly we want to give the public the confidence and us as attorneys and in the rule of law.

Laurence Colletti: Excellent. Well Susanna, thank you so much for joining us today. I really appreciate you stopping by.

Susanna Rychlak Allen: Thank you, it’s been my pleasure.

Laurence Colletti: Well let’s leave some contact information. People want to follow up a little bit more, maybe they want to figure out what’s going on with this leak or maybe you’ve got some insights coming up later. Maybe it’s a good blog post. How can they find you?

Susanna Rychlak Allen: So you can find me just, I don’t have any social media except LinkedIn, but you can find me on LinkedIn or send me an email, you can find my email address on the Yetter Coleman website and I think that certainly if there ends up being more news on this leak, on this issue, you will not have to come to me. You will see it on the front page of the New York Times.

Laurence Colletti: Okay fair enough, fair enough. Well that’s all the time we have for this episode of the State Bar of Texas podcast, brought to you by LawPay. Thank you so much LawPay.

Also, also, also thank you to our listeners for tuning in. If you like what you heard, please rate and review us in Apple podcast, Google podcast, Spotify, and now Amazon Music. Thank you Paige, or best yet or better yet, your favorite podcasting app. I’m Laurence Colletti. Until next time, thank you for listening.

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