Supreme Court Roundup at First Things

Kevin Walsh and I have the annual Supreme Court Roundup at First Things, A Less Corrupt Term. In it we look back at some of the cases from last term and forward too. The range of cases looking back span the Obergefell-inflected genre, free speech (Packingham and Matal), law and religion (the church plan case and Trinity Lutheran), and Trump v. IRAP. We also discuss the political gerrymandering case on the upcoming docket (Gill v. Whitford) as well as Masterpiece Cakeshop. Here is a bit from the beginning:

In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.

Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by a season of episodes with fewer sex scenes and less louche intrigue than usual.

But the scriptwriters did not disappoint entirely. In the season finale, the justices delivered split opinions in two cases that had not even been fully briefed and argued on the merits—one about President Trump’s limits on immigration from six majority-Muslim nations, the other about the right of a female same-sex spouse to be listed as a parent on a birth certificate alongside the birth mother. These opinions hint at some of the stories that will shape next year’s plotline—the first full term for the new character, Justice Neil Gorsuch.

And the producers promise a thrilling new season. For readers of this journal, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is likely to be the most prominent case, one about the freedom of a Christian baker to decline to design a custom cake for a same-sex wedding celebration. Other potential showstoppers include a case about partisan gerrymandering and another round on President Trump’s executive order on immigration. We may also see more shake-ups in the cast. Before peering ahead to what may be coming, though, we look back at some of the signal events of the past term.

My Take on Gorsuch: A Solid Conservative

At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:

He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.

His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.

You can read the whole post here.

 

No Protestants on the Court

At the Liberty Law site this morning, I have a post on the absence of Protestant Christians on the Supreme Court. In historical terms, the lack of Protestants is a striking anomaly–the large majority of the 112 men and women who have sat as Justices over time has been Protestant. What explains the current situation, and might it have an effect on American law?

With regard to the first question, I argue that the absence of Protestants as to to with larger social and cultural questions. With respect to the second question, I argue, it depends on what sort of Protestant, and what sort of legal issues, one has in mind:

If Reno is right about the transformation of Mainline Protestantism into a post-Protestant WASP ethos, then it shouldn’t matter whether actual Mainline Protestants are on the Court. Given the composition of the legal profession, most people likely to be appointed to the Court will have post-Protestant WASP values, whatever their particular faith tradition. Recall my example of the Catholic or Orthodox 1L at Harvard. Post-Protestant WASP values, in other words, will be represented even without actual Mainline Protestants.

On the other hand, the absence of Evangelicals might make a difference to the Court’s decisions, at least with regard to some issues—for example, questions regarding religious liberty. Notwithstanding the Supreme Court’s 1990 decision in Employment Division v. Smith, which abandoned the test for constitutional purposes, most hot-button religious liberty cases nowadays turn on some version of the “compelling interest” test. This test holds that the government cannot substantially burden a person’s exercise of religion unless it has a compelling interest for doing so and has chosen the least restrictive means. This is the test contained in the Religious Freedom Restoration Act (RFRA), for example—the statute at issue in the Court’s recent decisions regarding the contraception mandate in Obamacare.

The compelling interest test requires many judgment calls: What is a “substantial burden” on religious exercise? What is a “compelling interest”? Is there a “less restrictive means” available? (In fact, it was the necessity of such intuitive judgments that led the Smith Court to abandon the compelling interest test in the constitutional context). And judgment calls depend on the intuitions of the people doing the judging. An Evangelical Christian likely would have different intuitions about these matters than a post-Protestant WASP who views religions as more or less interchangeable, and anyway not all that important. Someone who views religion as a vital guide to behavior might be more skeptical of claims that a rule does not “substantially burden” religious exercise, or that the government has offered a “compelling” interest to justify the intrusion.

In short, on at least some questions, the religious background of the justices could well make a difference, and the absence of Evangelicals on the Court affect the course of the law. You can read the whole post here.

More on Yesterday’s Decision in Zubik

Marc has posted a rundown of yesterday’s decision in Zubik v. Burwellthe ACA case. I’d like to add just a few quick observations.

Some commentators, including the New York Times, have decried the result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in fixes like this. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not see a decision as particularly significant or controversial.

Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But, in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that was entirely necessary; the Court itself expressly said it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.

So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and reached for a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity. The Court determined that the whole dispute may well be unnecessary.

After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive coverage for contraceptives without requiring employers to file the so-called “opt out form” — the form to which the petitioners had objected on religious grounds. As the Court explained:

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

In other words, the parties might be able to reach a settlement that would satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint). In that event, the dispute would be moot–and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”

Although the Court did not rule on the merits, it’s hard not to see this as a loss for the Obama Administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the Administration’s strategy in these cases. The Administration has taken a very hard line on the Contraception Mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the Administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested the Administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the Administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate–an extremely small group, it must be conceded–especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the Administration had goals other than women’s health in mind.

Zubik v. Burwell Remanded

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts’ respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the “substantial clarification and refinement” in the claimants’ and the government’s respective positions that the Court claims was generated by the supplemental briefing. To wit:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company….The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

Disagreements as to implementation to be worked out below.No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court’s order essentially to make crystal clear to the government that she was sympathetic to its views.

Survey Finds a Majority Agree with the Little Sisters of the Poor’s Fight Against the HHS Mandate

On April 19, 2016, the Catholic News Agency reported on the results of a new Marist Poll survey relating to the Little Sisters of the Poor’s pending litigation before the U.S. Supreme Court. The article begins as follows:

A new survey says most Americans think the Obama administration’s federal contraception mandate is unfair to the Little Sisters of the Poor and other religious groups defending themselves before the U.S. Supreme Court.

little sisters

About 53 percent of Americans said the process required by the government is “unfair,” while only 32 percent did not, according to a new Marist Poll commissioned by the Knights of Columbus.

The federal government has exempted many other organizations’ employee health care plans from a requirement to provide contraception and drugs that can produce abortions. But it has no exemption for the Little Sisters of the Poor, who help run houses to care for the elderly poor.

The full text of the article appears here.

Justice Scalia and Conservatism

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This posting was originally a short speech given to students at the University of St. Thomas Law School on February 29.

We will all miss the unique and iconic personality of the late Justice Antonin Scalia. Few if any Supreme Court Justices have been gifted with such charm, humor, charisma and pizzazz. He was a man of great faith; a brilliant and memorable writer; a witty raconteur; a powerful and bracing intellect. He argued law, as he lived life, with passion and gusto. In his impact on the American public, he was in a class of his own: among the Justices of the past, perhaps only Oliver Wendell Holmes, Jr., Robert Jackson, and Thurgood Marshall can be compared to him. One might even say, with all due deference to Senator Cruz, that Justice Scalia was the living epitome of New York values.

But we are here to discuss his influence on the law, especially on constitutional law. And for all his great and varied gifts, his long tenure on the supreme bench, and the vigor and clarity of his opinions, his influence on constitutional law, at least judged from our current perspective, was very limited.

The two doctrines one associates most closely with Scalia’s jurisprudence are, of course, originalism and textualism. Others on this panel will no doubt discuss them, and I will say something about them a bit later. But what I want to consider briefly here is another important but neglected strand in his jurisprudence: his use of custom or tradition in constitutional adjudication. This aspect of his jurisprudence is, in my view, the most distinctively conservative element of it. There is no inherent connection between textualism or originalism and conservatism, but there is such a connection between custom and conservatism.

Nineteenth century legal conservatives such as James Coolidge Carter went so far as to identify law with custom. Or more accurately, they identified the common law with custom. One could say, in that spirit, that the common law identifies, articulates, stabilizes, and occasionally revises and improves, custom. And much of American Continue reading

Grume & Caher, “The Curious Case of Kiryas Joel: The Rise of a Village Theocracy and the Battle to Defend the Separation of Church and State”

In April, Chicago Review Press will release “The Curious Case of Kiryas Joel: The Rise of a Village Theocracy and the Battle to Defend the Separation of Church and State” by Louis Grume (former executive director of the New York State School Boards Association) and John M. Caher (Senior Advisor for Strategic Communications with the New York State Unified Court System). The publisher’s description follows:

Twenty years ago, in the middle of the night and on the last day of the legislative session, the New York State Legislature created a publicly funded school district to cater to the interests of a religious sect called the Satmar, an insular group of Hasidic Jews that objects to, among other things, female school bus drivers. The rapidly growing sect had bought land in rural Upstate New York, populated it solely with members of its faction, and created a village called Kiryas Joel that exerted extraordinary political pressure over both political parties. Marking the first time in American history that a governmental unit was established for a religious group, the legislature’s action prompted years of litigation that eventually went to the US Supreme Court. As today’s Supreme Court signals its willingness to view a religious viewpoint like any other speech and accord it equal protection, the 1994 case, Board of Education of Kiryas Joel Village School District v. Grumet, stands as the most important legal precedent in the fight to uphold the separation of church and state. In The Curious Case of Kiryas Joel, plaintiff Louis Grumet opens a window onto the Satmar Hasidic community, where language, customs, and dress have led to estrangement from and clashes with neighboring communities, and details the inside story of his fight for the First Amendment and against New York’s most powerful politicians. Informed by numerous interviews with key figures such as Governor George Pataki, media accounts, court transcripts, and more, The Curious Case of Kiryas Joel not only tantalizes with a peek at cynical power politics driven by votes and Supreme Court justice squabbling and negotiation; it also provides an important demonstration of how a small, insular, and politically savvy religious group can grasp legal and political power. This story—a blend of politics, religion, cultural clashes, and constitutional tension—is an object lesson in the ongoing debate over freedom of versus freedom from religion.

“The Rise of Corporate Religious Liberty” (eds. Schwartzman, Flanders, & Robinson)

In December, the Oxford University Press will release “The Rise of Corporate Religious Liberty,” edited by Micah Schwartzman (University of Virginia School of Law), Chad Flanders (St. Louis University School of Law), and Zoë Robinson (DePaul University College of Law).  The publisher’s description follows:

What are the rights of religious institutions? Should those rights extend to for-profit corporations? Houses of worship have claimed they should be free from anti-discrimination laws in hiring and firing ministers and other employees. Faith-based institutions, including hospitals and universities, have sought exemptions from requirements to provide contraception. Now, in a surprising development, large for-profit corporations have succeeded in asserting rights to religious free exercise. The Rise of Corporate Religious Liberty explores this “corporate” turn in law and religion. Drawing on a broad range perspectives, this book examines the idea of “freedom of the church,” the rights of for-profit corporations, and the implications of the Supreme Court’s landmark decision in Burwell v. Hobby Lobby for debates on anti-discrimination law, same-sex marriage, health care, and religious freedom.

Writeup of This Week’s Event on Religious Liberty

From the St. John’s Law School webpage, here’s a nice writeup of Tuesday’s event on religious liberty in Supreme Court jurisprudence. Thanks to Board member Richard Sullivan for participating and Board member Mary Kay Vyskocil for hosting. And to everyone who attended!

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