On Monday, the Supreme Court went into what is essentially overtime.  We are now the latest for issuing opinions since 1974 (the year of Watergate) when the last opinion from the regular term was issued the day after the Supreme Court heard the Watergate arguments.  It is unlikely that we will reach that July 25 date this year, but anything is possible.  (Given that the Watergate opinion is a key precedent on the still pending Trump Organization subpoena cases, the poetic irony has to be appreciated.)  We do have a second opinion day this week scheduled for Wednesday; so potentially Wednesday could be the last day or there could still be additional opinion days to come.  (With five cases still outstanding, getting all five on Wednesday would be somewhat surprising given the pace of opinions so far this term, but anything is possible, but there already has been one five-opinion day this term.)

Monday’s two opinions both concerned the process of elections.  On the one hand, the Barr case was brought by the lobbying group for political consultants challenging the barriers that the federal robocall statute places to even more repetitive phone calls from campaigns.  On the other hand, the Chiafalo case (and the companion case from Colorado) involves the very rules governing the conduct of the electors chosen by the various states to actually cast the “real” votes in the presidential election.

In the long run, Barr may be the more important of the two.  The federal robocall statute dates back to the early 90s (and, yes, it has been close to an utter failure).  In 2015, Congress amended the statute to pass an exception allowing the federal government to have people make robocalls seeking to collect debt owed to the government.  Some political consultants and other groups saw this amendment as an opening to raise a First Amendment complaint against the robocall statute.  The bottom line of this decision is they won the battle, but lost the war. Continue Reading...