SCOTUS 2021: Major Decisions and Developments of the US Supreme Court 3030886409, 9783030886400

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SCOTUS

2021 MAJOR DECISIONS AND DEVELOPMENTS OF THE US SUPREME COURT

Edited by MORGAN MARIETTA

SCOTUS 2021

Morgan Marietta Editor

SCOTUS 2021 Major Decisions and Developments of the US Supreme Court

Editor Morgan Marietta Department of Political Science University of Massachusetts Lowell Lowell, MA, USA

ISBN 978-3-030-88640-0 ISBN 978-3-030-88641-7 https://doi.org/10.1007/978-3-030-88641-7

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: eStudio Calamar Cover design by Oscar Spigolon This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

1

2

3

4

5

Introduction: The 2020–2021 Term at the Supreme Court Morgan Marietta

1

BP v. City of Baltimore on the Fight for Jurisdiction Over Climate Litigation David Dana

25

Brnovich v. Democratic National Committee on Voting Rights Cornell W. Clayton and Michael J. Ritter

33

California v. Texas on the Final Installment of the Obamacare Trilogy Josh Blackman

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Cedar Point Nursery v. Hassid on Union Organizing and Property Rights Under the Fifth Amendment Ronald Kahn and Gerard D’Emilio

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v

vi

6

7

8

9

Contents

Collins v. Yellen and US v. Arthrex on the Separation of Powers Andrea Scoseria Katz

63

Fulton v. City of Philadelphia on Religious Liberty and LGBT Equality Meg Penrose

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Jones v. Mississippi on Life Without Parole for Youth Offenders Jennifer Bowie and Alexis Cobbs

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Mahanoy v. B.L. on Off Campus Student Speech Katy Harriger

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10

NCAA v. Alston on College Sports Morgan Marietta

11

Pereida v. Wilkinson on the Immigration Consequences of Ambiguous Convictions Brett Curry and Maureen Stobb

12

13

14

15

Tandon v. Newsom, South Bay Pentecostal , Diocese of Brooklyn, and Calvary Chapel on Religious Liberty and the Pandemic Richard W. Garnett and Mitchell Koppinger

101

111

119

Tanzin v. Tanvir on RFRA and Damages Against Federal Officials for Violations of Religious Liberty Paul Baumgardner

129

Torres v. Madrid on Use of Force Under the Fourth Amendment Stephen Simon

137

Uzuegbunam v. Preczewski on Nominal Damages and the Right to Assert Rights Howard Schweber

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Contents

16

Justice Ruth Bader Ginsburg’s Supreme Court Legacy Julie Novkov and Carol Nackenoff

Index

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153

165

Notes on Contributors

Paul Baumgardner is Assistant Professor in the Legal Studies Program and the Honors Program at Belmont University. He completed a joint Ph.D. in the Department of Politics and the Humanities Council at Princeton University. His research focuses on the interplay among ideology, law, and state development. His work has appeared in outlets such as Law & Social Inquiry, Annual Review of Law and Social Science, Presidential Studies Quarterly, and Law and History Review. He is the author of Critical Legal Studies and the Campaign for American Law Schools: A Revolution to Break the Liberal Consensus (Palgrave Macmillan, 2022) and a coauthor of Keywords; For Further Consideration and Particularly Relevant to Academic Life (Princeton University Press, 2018). Josh Blackman is Professor of Law at the South Texas College of Law Houston and an adjunct Scholar at the Cato Institute. He has authored three books, including An Introduction to Constitutional Law, and has written more than five dozen law review articles. His commentary has appeared in The New York Times, The Washington Post, Wall Street Journal , and was quoted during two presidential impeachment trials. He

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regularly appears on television and radio, including NBC, CBS, ABC, Fox, the BBC, and NPR. Josh was selected by Forbes Magazine for the “30 Under 30” in Law and Policy, is the President of the Harlan Institute, founded Fantasy SCOTUS (the Internet’s Premier Supreme Court Fantasy League), blogs at the Volokh Conspiracy, and tweets @JoshMBlackman. Jennifer Bowie is Associate Professor of Political Science at the University of Richmond. Her research and teaching focuses on judicial decisionmaking and behavior in the U.S. federal courts. She is a coauthor of The View from the Bench and Chambers: Examining Judicial Process and Decision Making on the U.S. Courts of Appeals (University of Virginia Press, 2014). Her research has been funded by the National Science Foundation and has appeared in a number of journals and edited volumes including the Journal of Politics, Political Research Quarterly, and Journal of Law and Courts. Cornell W. Clayton is Director of the Thomas S. Foley Institute for Public Policy and Public Service at Washington State University, where he is also the C.O. Johnson Distinguished Professor in Political Science. He has published widely on American government, politics, and law, and is the author or editor of right books and more than 60 scholarly journal articles and book chapters. His research twice received the American Judicature Award from the American Political Science Association and he previously served as editor of Political Research Quarterly. Alexis Cobbs from Olive Branch, Mississippi is currently an undergraduate student at the University of Richmond where she majors in Political Science, English, and Leadership Studies. She has served as the Editorial Assistant of the Law and Politics Book Review, a Richmond Scholar Ambassador, Assistant High School Debate Coach, and as a Congressional Black Caucus Foundation intern for U.S. Representative Bennie G. Thompson. She is also a Research Assistant for a project titled “CrossNational Analysis of Judicial Decision Making in Canada, the United States, and the United Kingdom.” Alexis spends her free time working on various local and national political campaigns.

Notes on Contributors

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Brett Curry is Professor of Political Science at Georgia Southern University. His research centers on aspects of judicial politics and decisionmaking. His scholarship has been published in a number of journals, including the Journal of Politics, Law & Society Review, Law & Social Inquiry, American Politics Research, Journal of Law and Courts, and Justice System Journal . His coauthored book, Decision Making by the Modern Supreme Court, was published by Cambridge University Press in 2011. A second book, U.S. Attorneys, Political Control, and Career Ambition, was published by Oxford University Press in 2019. David Dana is the Kirkland & Ellis Professor of Law and Director of the Program on Sustainability at Northwestern Pritzker School of Law. He previously was a member of the faculty at Boston University, and has taught at the University of Virginia and Harvard. He has published widely on climate law and policy. Gerard D’Emilio is an Attorney in Oklahoma City, Oklahoma. He received his J.D. with highest honors from the University of Oklahoma College of Law; his M.M. in Vocal Performance from Westminster Choir College; and his B.M in Voice and B.A. with highest honors in Politics from Oberlin College and Conservatory of Music. Before law, Mr. D’Emilio was a professional opera singer, performing with regional companies throughout the United States. He is a former student of his coauthor, Ronald Kahn, with whom he has collaborated on numerous projects. Recently, he served as a Judicial Law Clerk with the U.S. Court of Appeals for the Tenth Circuit and the U.S. District Court for the Western District of Oklahoma. Richard W. Garnett teaches and writes about the freedoms of speech, association, and religion and constitutional law more generally. He is the founding director of Notre Dame Law School’s Program on Church, State, and Society and a Fellow of the University’s Institute for Educational Initiatives. Garnett clerked for the late Chief Justice William H. Rehnquist and also for the late Chief Judge Richard S. Arnold. He earned his J.D. from Yale Law School and his B.A. from Duke University. He joined the Notre Dame Law School faculty in 1999 after practicing law in Washington, DC, with Miller, Cassidy, Larroca & Lewin.

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Katy Harriger is a Professor in the Department of Politics and International Affairs at Wake Forest University, where she holds the F. Michael Crowley Distinguished Faculty Fellowship. She is the author of The Special Prosecutor in American Politics (2d ed, revised), and publishes generally in the area of American constitutional law. She is coauthor with Louis Fisher of American Constitutional Law. She has an additional research interest in the civic engagement of young people. At Wake Forest, she has been the recipient of the Reid Doyle Prize for Excellence in Teaching, and the John Reinhart Award for Distinguished Teaching. Ronald Kahn is Erwin N. Griswold Professor of Politics Emeritus, Oberlin College. He is a specialist on constitutional law, legal theory, and American political development, and the author of The Supreme Court and Constitutional Theory, 1953–1993 (1994) and The Supreme Court and American Political Development (with Ken I. Kersch, 2006), both published by University Press of Kansas. His most recent book is Constructing Individual Rights in a Conservative Age: The Supreme Court and Social Change in the Rehnquist and Roberts Court Eras (with Gerard D’Emilio, forthcoming, Kansas, 2022). Recent publications: “The Jurisprudence of Justice Scalia: Common Law Judging Behind an Originalist Facade,” in The Conservative Revolution of Antonin Scalia. Ed. David A. Schultz and Howard Schweber, (Lexington Books, 2018) (with Gerard D’Emilio) and “Supreme Court Decision-making and the Social Construction Process: Continuity in a Polarized Age,” 4 Constitutional Studies (2019), part of a Festschrift in his honor. Andrea Scoseria Katz is Associate Professor of Law at Washington University School of Law in St. Louis. Her research and teaching focus on constitutional law, particularly in connection with presidential power, American legal history, and Latin American politics. Professor Katz received her Ph.D. in Political Science from Yale University and her J.D. from Yale Law School. Her recent piece, “The Lost Promise of Progressive Formalism,” explores past American attitudes toward the Constitution and constitutional amendment. Andrea has also published work on constitutionalism in Brazil, Colombia, and Uruguay.

Notes on Contributors

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Mitchell Koppinger is a 2023 J.D. Candidate at the University of Notre Dame. He has served as Staff Editor of the Notre Dame Law Review, as President of the Notre Dame Business Law Forum, and as Class Representative in the Student Bar Association. He graduated from the University of Notre Dame in 2020, earning a BBA in Finance with a minor in Theology. He has served as Research Assistant to Professor Richard W. Garnett, with research focused primarily on the freedoms of speech, association, and religion. Morgan Marietta is Associate Professor of Political Science at the University of Massachusetts Lowell. He is the author of four books, including A Citizen’s Guide to the Constitution and the Supreme Court (Routledge), and most recently, One Nation, Two Realities: Dueling Facts in American Democracy (Oxford University Press). His research has appeared in journals including the American Political Science Review, Journal of Politics, British Journal of Political Science, and Journal of Law and Courts. He is the editor of the annual SCOTUS series at Palgrave Macmillan. Carol Nackenoff is Richter Professor Emeritus of Political Science at Swarthmore College. She received her Ph.D. from the University of Chicago. She is the author of The Fictional Republic (1994), coauthor (with Julie Novkov) of American by Birth: Wong Kim Ark and the Battle for Citizenship (2021), and she composed the entry on the U.S. Supreme Court for Oxford Bibliographies Online. She coedited, with Julie Novkov, Statebuilding from the Margins (2014) and Stating the Family (2020), and coedited Jane Addams and the Practice of Democracy (2009) with Marilyn Fischer and Wendy Chmielewski. Her current research examines conflicts over the extent and terms of incorporation of women, African Americans, Native Americans, workers, and immigrants into the polity between 1875 and 1925, and the role organized women played in shaping new definitions of public work in American politics. Julie Novkov is the Interim Dean of the Rockefeller College of Public Affairs and Policy, a Collins Fellow, and Professor of Political Science and Women’s, Gender, and Sexuality Studies, at the University at Albany, SUNY. Her research and teaching address law, history, U.S. political

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development, and subordinated identity. She is the author of several books and coedited volumes, including the award-winning Racial Union and most recently, with Carol Nackenoff, American by Birth: Wong Kim Ark and the Battle for Citizenship. She chaired the Political Science Department from 2011 to 2017 and was President of the Western Political Science Association from 2016 to 2017. She is a member of the path-breaking twelve-woman team responsible for editing the American Political Science Review from 2020 through 2024. Meg Penrose teaches constitutional law courses at Texas A&M University School of Law. She also practices law as a civil rights and criminal defense attorney, primarily through federal court appointments. Meg’s scholarship focuses on the Supreme Court, its Justices, social media, and civil liberties. Michael J. Ritter is an Assistant Professor of Political Science at Washington State University. His teaching and research centers on American politics, elections, and election administration. His coauthored book, Accessible Elections: How the States Can Help Americans Vote, was published in 2020 by Oxford University Press. His research has also appeared in Social Science Quarterly and the Sociology Compass. Howard Schweber is Professor of Political Science and an affiliate faculty member of the Law School at University of Wisconsin-Madison. Prof. Schweber received his Ph.D. from Cornell and his J.D. from the University of Washington. He is the author of four books and coeditor of two others, as well as having written numerous articles on topics relating to constitutional law, democratic theory, and American political development. Prof. Schweber is the editor of Constitutional Studies. Stephen Simon is Associate Professor in the Department of Political Science and the program in Philosophy, Politics, Economics, and Law (PPEL) at the University of Richmond. Having received a J.D. from the New York University School of Law and a Ph.D. in Government and Politics from the University of Maryland, he teaches courses in constitutional law, jurisprudence, and political theory. In addition to a number of articles on civil liberties, foreign law, and the Supreme Court, he is the author of Universal Rights and the Constitution (SUNY Press, 2014) and

Notes on Contributors

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The U.S. Supreme Court and the Domestic Force of International Human Rights Law (Lexington Books, 2016). Maureen Stobb received her Ph.D. in Political Science from the University of Texas at Dallas, a J.D. from the University of Notre Dame, and a B.A. in Political Science from the College of New Jersey. Prior to obtaining her Ph.D., she practiced immigration and asylum law for seven years. She teaches and researches in the area of public law. Her research addresses questions of the judicialization of politics, or the expansion of judicial power relative to the legislature and the executive. Her research agenda focuses on examining the ways in which the law and courts patrol the boundaries of citizenship.

1 Introduction: The 2020–2021 Term at the Supreme Court Morgan Marietta

The First Amendment was the prime concern of the Court this year, with five major controversies over the free exercise of religion or freedom of speech. In each case, the Court expanded the reach of the First Amendment’s protections. Perhaps the single most divisive and influential ruling this year was on voting rights, announced on the last day of the term. The Court also rejected a challenge to Obamacare (the Affordable Care Act from 2010), ending the third attempt to overturn the signature legislation of the Obama administration. The Justices made several rulings on defendants’ rights as well as “crimmigration,” or the conjunction of criminal justice and immigration policy. The Court also announced a new rule about how property rights can limit government regulation under M. Marietta (B) Department of Political Science, University of Massachusetts Lowell, Lowell, MA, USA

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Marietta (ed.), SCOTUS 2021, https://doi.org/10.1007/978-3-030-88641-7_1

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M. Marietta

the Takings Clause of the Fifth Amendment. Other major rulings this year addressed climate change lawsuits, the separation of powers within our constitutional system, and the future of college sports. The following chapters address each of these cases and their meaning for constitutional, legal, and partisan controversy. The last, and saddest, chapter of the book this year addresses the loss of Justice Ruth Bader Ginsburg. Few of us are as tough as RBG and almost none leave as formidable a legacy.

Summaries and Table To summarize the year’s major rulings, they 1. Allow the court of appeals to review BP’s request to remove the Baltimore climate change lawsuit from state court to federal court, 2. Uphold two election regulations—which mandate in-precinct voting and outlaw third-party ballot collection—as violating neither the Fifteenth Amendment of the U.S. Constitution nor the federal Voting Rights Act, which prohibits election processes that are “not equally open” to all or provide minority voters “less opportunity than other members of the electorate to participate,” 3. Reject the third challenge to the Affordable Care Act (Obamacare) after the removal of the individual insurance mandate, due to a lack of standing of the litigants to bring suit in federal court, 4. Hold that a California regulation granting union organizers a right of access on private property violates the Fifth Amendment’s guarantee that private property shall not “be taken for public use, without just compensation,” 5. Uphold a strict interpretation of the constitutional principle of separation of powers, striking down limits on the President’s ability to remove the leaders of executive agencies, and disallowing the independent authority of Administrative Patent Judges appointed by a

1 Introduction: The 2020–2021 Term at the Supreme Court

6.

7.

8. 9. 10.

11.

12. 13.

14.

3

cabinet Secretary (without presidential appointment and congressional approval), Side with a religious foster care agency that refused to certify samesex couples as foster parents, finding that Philadelphia’s refusal to renew the agency’s contract infringed on the religious liberty protected by the First Amendment, Allow life sentences without the possibility of parole for youth offenders, without a finding of “permanent incorrigibility,” provided the sentencing judge considers the age of the offender, Limit the authority of public schools to regulate off campus student speech on social media (aside from cyberbullying or threats), Strike down the NCAA’s limitations on education-related payments to student athletes as a violation of federal antitrust laws, Require applicants for cancellation of deportation to demonstrate that they have not been convicted of a disqualifying criminal offense, resolving ambiguity against the applicant, Overturn state limitations on religious services during the pandemic as non-neutral or disfavored treatment compared to similarly situated secular organizations, in violation of the First Amendment’s protection of free exercise of religion, Allow damage claims for violations of religious liberty under the Religious Freedom Restoration Act (RFRA), Hold that any physical contact by a police officer intending to restrain someone—including the shooting of a fleeing suspect who escapes—is a seizure under the limits set by the Fourth Amendment, Allow claims for First Amendment violations to proceed when the plaintiff is asking only for nominal damages, expanding the reach of constitutional claims.

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Table 1.1 2020–2021 major casesa Ch.

Case

Issue

Vote

Majority (Author)

2

BP v. Baltimore

removal to federal court; climate change lawsuits

7-1

all except Sotomayor (Gorsuch) Alito recused

3

Brnovich v. DNC

voting rights under the VRA

6-3

6 conservatives (Alito)

4

California v. Texas

Obamacare

7-2

all except Alito and Thomas (Breyer)

5

Cedar Point

5th Amendment takings of private property

6-3

6 conservatives (Roberts)

6

Collins v. Yellen

separation of powers

7-2

6 conservatives + Kagan (Alito)

5-4

conservatives minus Thomas (Roberts)

US v. Arthrex

7

Fulton v. Philadelphia

religious liberty and LGBT rights

9-0

unanimous, with Alito, Gorsuch, Thomas concurring to the right (Roberts)

8

Jones v. Mississippi

life sentences for juvenile offenders

6-3

6 conservatives (Kavanaugh)

9

Mahanoy School

school speech and the Internet

8-1

all except Thomas (Breyer)

1 Introduction: The 2020–2021 Term at the Supreme Court

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Table 1.1 Ch.

Case

Issue

Vote

Majority (Author)

10

NCAA v. Alston

amateurism rules in college sports under antitrust law

9-0

unanimous (Gorsuch)

11

Pereida

effect of ambiguous criminal conviction on deportation

5-3

5 conservatives (Gorsuch) Barrett not participating

12

Tandon v. Newsom

restrictions of religious services during the pandemic

5-4

conservatives minus Roberts (per curiam)

13

Tanzin v. Tanvir

restitution for violations of religious rights

8-0

unanimous (Thomas) Barrett not participating

14

Torres v. Madrid

4th Amendment seizures by police

5-3

3 liberals + Roberts, Kavanaugh (Roberts) Barrett not participating

15

Uzuegbunam

campus speech and nominal damage claims

8-1

all except Roberts (Thomas)

a Issue

describes the broad topic at hand. Vote describes the majority and dissenting positions among the nine Justices. Majority (Author) notes the general ideological grouping among the Justices (with the author of the majority opinion in parentheses). In general, the six conservative Justices are considered to be Chief Justice Roberts (appointed by George W. Bush), Samuel Alito (George W. Bush), Amy Coney Barrett (Trump), Neil Gorsuch (Trump), Brett Kavanaugh (Trump), and Clarence Thomas (George H.W. Bush); the liberal Justices are Stephen Breyer (Clinton), Elena Kagan (Obama), and Sonia Sotomayor (Obama).

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The First Amendment (Fulton, Tandon, Tanzin, Mahanoy, and Uzuegbunam) The first directive of the Bill of Rights is that American government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” Five major controversies this year focused on the applied meaning of these protections. For years a constitutional controversy has been brewing: Which right—religious liberty or LGBT equality—takes precedence when they conflict? The liberal answer is that there is no right to discriminate, so religious liberties must yield to LGBT rights. The conservative answer is that religious liberties are explicit in the Constitution and are not extinguished when citizens engage in commerce or work within government programs that hold a monopoly on specific activities. Fulton v. Philadelphia addresses the City’s refusal to allow Catholic Social Services to participate in adoption and foster programs because the religious charity will not serve same-sex couples. As in Masterpiece Cakeshop from 2018 (which ruled that the First Amendment right of free exercise of religion bans disrespectful treatment by state officials), the Court avoided the core controversy.1 The ruling struck down the City’s exclusion of the Catholic agency on the limited grounds that Philadelphia did not apply a “generally applicable” rule, instead allowing exceptions at the discretion of city officials; if government allows exceptions for any reason, then the First Amendment demands that they also be allowed for religious reasons. The unanimous ruling promotes pluralism: The Christian agency gets to participate in the adoption programs while adhering to its religious beliefs, and LGBT couples will continue to have access to other adoption agencies within the Philadelphia system. Neither group has the power to employ the mechanisms of government to exclude the other group. At the very end of this year’s term, the Court declined to hear another case, Arlene’s Flowers, which raises the core controversy that the Court 1

See SCOTUS 2018 Chapter 6, “Masterpiece Cakeshop on Gay Rights Versus Religious Liberty,” by Stephen Engel.

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avoided in Fulton. Washington State fined a florist for refusing to provide the arrangements for a same-sex wedding, and the case would have presented the clear question of whether a private business can discriminate against LGBT citizens on religious grounds. Fulton suggests that the florist’s position may prevail eventually, because three of the Justices— Alito, Gorsuch, and Thomas—expressed their view in a concurring opinion in Fulton that the First Amendment demands additional protections for religious liberty. The Roberts Court continues to move incrementally, but as Justice Gorsuch concludes in his concurring opinion, “dodging the question today guarantees it will recur tomorrow.”2 All the major tests in recent years of religious rights versus other considerations (Hobby Lobby in 2014; Trinity Lutheran in 2017; Masterpiece Cakeshop in 2018; American Legion in 2019; Espinoza, Lady of Guadalupe, and Little Sisters of the Poor in 2020; and now Fulton in 2021) have expanded religious rights or protected religious plaintiffs to one degree or another.3 The trajectory of the Court seems to be toward greater deference to the free exercise of religion. This trend was reinforced by another set of cases on state regulations during the COVID-19 pandemic. From May 2020 to April 2021, the Court addressed the claims that various state regulations improperly restricted religious services while allowing similarly situated secular institutions to operate. In the three final cases—Diocese of Brooklyn v. Cuomo, South Bay Pentecostal v. Newsom, and Tandon v. Newsom—the Court agreed in each case, to varying degrees, that California and New York had violated the First Amendment’s protections of religious exercise.

2 Fulton Gorsuch concurrence at 10. A brief note on citations in the volume: recent decisions have not yet been printed in the U.S. Reports that collect all Supreme Court decisions at the Library of Congress (so the page number in the volume is still blank, as in 593 U.S. ___). To identify quotes from the recent decisions, we will use page numbers from the slip opinions issued immediately by the Court, which are readily available online at the U.S. Supreme Court website (www.supremecourt.gov/opinions). Links to opinions, oral arguments, briefs by each party, and many other details are also available at SCOTUSblog.com. 3 See SCOTUS 2019 Chapter 2, “American Legion v. American Humanist on Religious Monuments Under the First Amendment,” by Ronald Kahn and Gerard D’Emilio, and SCOTUS 2020 chapter 5, “Espinoza, Lady of Guadalupe, and Little Sisters of the Poor on Religious Liberty” by Kevin Pybas.

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Tanzin v. Tanvir was a religion case focusing on statutory interpretation rather than constitutional rights.4 Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 (almost unanimously) in response to Supreme Court rulings that limited protections for religious exercise (especially Employment Division v. Smith in 1990). The question in Tanzin was whether RFRA authorized lawsuits for damages when religious rights had been violated (in this case, a claim by Muslim men who had been banned from air travel in violation of the First Amendment’s protections). The Court’s answer was a unanimous Yes. Mahanoy School v. B.L. shifted focus from the freedom to be pious to the freedom to be vulgar. In the first major school speech ruling since the “Bong Hits 4 Jesus” case in 2007 (Morse v. Frederick), the Court began to address the new challenges that the Internet and social media pose for public schools. Was the crude speech of a cheerleader who was physically off campus—but whose speech reached campus via social media—within the bounds of public school regulation? Although the 8-1 ruling in favor of the cheerleader does not offer a clear standard for determining when schools may regulate off campus expression, it does offer a broad endorsement of free speech, even when vulgar. Justice Breyer wrote that “America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas’… That protection must include the protection of unpopular ideas, for popular ideas have less need for protection. Thus, schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’”5 4 Statutory interpretation focuses on the disputed meaning of federal or state laws, rather than the meaning of the Constitution itself (see the discussion in the Introduction to SCOTUS 2020 ). This year several major cases dealt with disputed interpretations of federal law, including Brnovich on the Voting Rights Act (VRA), BP on the federal removal statutes of the U.S. Code (§1442 and 1443), and Pereida on the meaning of the Immigration and Nationality Act (INA). 5 Mahanoy decision, pages 7–8. The phrase “market place of ideas” (originally two words, later shortened to one in common usage) was a creation of the Supreme Court in an opinion by Justice William O. Douglas, one of the Court’s great civil libertarians (see US v. Rumely 1953). A separate First Amendment case this year—Americans for Prosperity Foundation v. Bonta, which didn’t make the cut for a full chapter due to space limitations—reinforced protections for political speech. The Court ruled (6-3) that state government attempts to force charities to

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Uzuegbunam v. Preczewski moves from public high schools to public universities, challenging a surprisingly common policy of enforcing “free speech zones” at colleges, limiting student expression to small geographic areas while banning it from the rest of campus. Students at Georgia Gwinnett College, led by Chike Uzuegbunam, objected to these restrictions. The question was whether the plaintiffs still had standing to sue after the school removed its objectionable policy. The only claim that Uzuegbunam had left was for nominal damages, or a nearly symbolic $1 of recompense along with a principled ruling in his favor. Should the Court allow claims for constitutional rights violations with only nominal damages, and expect to hear many more such claims in the future, or should the Court only hear cases with clear damages, and expect fewer claims? The Court ruled 8-1 that nominal damages were sufficient to maintain a constitutional claim. The ruling in Uzuegbunam may be highly influential for the future of the Court and constitutional law, expanding “the right to assert rights” (as Howard Schweber phrases it in Chapter 16). In sum, this collection of First Amendment cases offered a meaningful expansion of both religious liberty and free speech rights.

Elections (Brnovich) Whether a new wave of state-level voting regulation violates the right to vote is one of the most divisive controversies the Court addressed this year. Brnovich v. DNC challenged two Arizona regulations: an old one limiting voters to casting ballots only in their assigned precinct (banning out-of-precinct voting) and a new one passed in 2016 banning thirdparty ballot collection (called “ballot harvesting” by its critics). The challengers to the regulations argued that they discriminate against minority voters, in violation of the Voting Rights Act of 1965 (VRA). That landmark legislation attempted to implement the failed reveal their major donors violated the First Amendment, chilling free speech and the freedom of association.

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promise of the Fifteenth Amendment from 1870 that the right to vote would not be denied on account of race. The deeply disputed political question of the current day is how much the participation of minority voters is still blocked, by a combination of long-standing economic conditions and increasingly by the design of new regulations. The 9th Circuit Court of Appeals initially agreed with Arizona, but sided with the plaintiffs when the entire (en banc) court reviewed the case. The Supreme Court, in a 6-3 ruling, decided that the Arizona laws do not violate the VRA, allowing these regulations and opening the door for future ones. The Court’s ruling opens with a factual claim: “Arizona law generally makes it very easy to vote.”6 This seems to contradict the argument that voting is increasingly difficult, especially for minority citizens in states like Arizona which have added new regulations. One of these factual conditions seems to be true, the other false. “That is what Brnovich is about—whether or not there is sufficient proof of a discriminatory impact against minority voters,” is how a leading constitutional law scholar described the heart of the case.7 Some believe the evidence is manifest, while others argue it is lacking. Much of this depends on the standard of evidence established in the VRA, especially in the 1982 amendment meant to clarify this question. The additional text speaks of elections being “equally open” and minorities having no “less opportunity than other members of the electorate to participate in the political process” grounded in “the totality of the circumstances.” One of the core disputes between the majority and the dissenters was whether the VRA focuses on impact or intent (requiring only a disparate impact of an election law on minority turnout, or instead also requiring discriminatory intent by the lawmakers, which is far more difficult to demonstrate). Another aspect of the dispute is over the distinction between opportunity to vote versus actual voting participation. The majority of Justices see distinctions in wealth or education as

6

Brnovich decision, page 1. Erwin Chemerinsky (Dean of the School of Law at University of California), talk at the National Constitution Center on 8 July 2021. 7

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influencing opportunity or participation, but believe those social conditions are outside the scope of the VRA. The dissenters believe the VRA was indeed meant to outlaw any regulations that interact with social conditions of wealth or education tied to race in a way that lowers voting rates. The new laws represent either the “usual burdens of voting” which are “unremarkable,” or they are laws “that discriminate against minority voters” while “efforts to suppress the minority vote continue.”8 These deeply divergent perceptions of election laws will influence a broad range of future voting regulations as the Court continues to consider the constitutional law of elections, especially as it interacts with the contemporary facts of race.

Obamacare (California v. Texas) The third legal challenge to the Affordable Care Act is no usual piece of business for the Court. As a major electoral conflict over the signature legislative achievement of the Obama presidency, it is fraught with partisan as well as legal views. While Justice Breyer’s opinion for seven Justices takes a more dispassionate tone, Justice Alito’s dissent makes the frustrations more clear, writing that the “decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the ACA facing a serious threat, the Court has pulled off an improbable rescue.”9 The first challenge to the ACA (NFIB v. Sebelius in 2012) argued that a core facet of Obamacare—the individual mandate to buy health insurance—was unconstitutional, exceeding the powers of Congress under the Commerce Clause. The Court ruled that this argument was correct, but also that the federal law could be considered a tax and hence was constitutional under congressional taxation powers. However, the Court also

8 9

Brnovich decision at 26, Kagan dissent at 3 and 7. California v. Texas Alito dissent, page 1.

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struck down the Medicaid expansion administered through state governments as an unconstitutional exercise of power. Most, but not all, of the Obamacare legislation remained. The second case (King v. Burwell in 2015) was a statutory challenge, arguing that the specific words of the ACA authorized only insurance exchanges established by a “State,” and hence the federal exchanges must be struck down. The Court ruled—this time 6-3—that the law intended to authorize both state and federal exchanges, and hence could be preserved. This year’s case argues that after Congress removed the individual mandate in 2017, the funding mechanism the law relies upon (and which was at issue in the 2012 dispute) was now gone, and the rest of the law must fall with it. In legal terms, the funding and the regulations were not severable, which seemed to be the core question in front of the Court in California v. Texas. The majority of the Court—this time 7-2, including Justice Thomas on the far right of the bench—concluded that the plaintiffs did not have standing to pursue the case in federal court. Because “the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants’ conduct,” the Court did not consider the matter further (and did not decide on the severability dispute).10 Thomas concurs that the litigants “have not identified any unlawful action that has injured them.” So “although this Court has erred twice before in cases involving the ACA, it does not err today.”11 The highly unusual trio of challenges to Obamacare ends with some parts of the program removed, but the core of the law still in place.

Climate, Criminal Defense, Property Rights, and the Separation of Powers The Court addressed several other major controversies this year, including a first cut at the emerging climate change lawsuits. The 10 11

California v. Texas decision, page 16. Thomas concurrence, pages 1, 6.

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specific question is whether legal actions against corporations such as BP are a federal matter (grounded in the national ramifications of large economic actors) or whether local governments can maintain jurisdiction in multiple lawsuits throughout the country. In BP v. Baltimore, the Court upheld review of a possible avenue for moving the Baltimore lawsuit into federal court, which would likely shift the outcome in BP’s favor. In criminal justice and immigration, the Justices sometimes expanded the protections of criminal defendants (Torres), but sometimes increased the range of judicial authority (Jones and Pereida). The Court also settled a long-brewing dispute over the property rights of land-holders versus the prerogatives of labor unions, creating a new rule in Cedar Point Nursery that any occupation of private land by government authorization creates an assumed “taking” of property under the Fifth Amendment, demanding “just compensation.” The separation of powers under the Constitution is a perennial topic, which may seem technical but is at the heart of the way our constitutional system limits the expansion of government power beyond its bounds. The limits on congressional action or presidential power have come up many times in recent years.12 This year, the Court addressed who can remove the heads of federal agencies (Collins v. Yellen), and who controls the appointments and powers of certain kinds of judges (U.S. v. Arthrex ), in both cases reinforcing a strict interpretation of the separation of powers between the branches of the federal government. Two broad concepts reverberated across the Court’s rulings this year: legal standing and social facts. The Court continued to grapple with the divided perceptions of reality which frame constitutional and legal rights, especially regarding race and racism in the voting rights case. An often neglected legal concept—standing, or the ability to bring a claim the Court will hear—also played an outsized role this year. The Court refused to hear several controversial cases by declaring a lack of

12

See SCOTUS 2020 Chapter 13 “Seila Law v. CFPB on Separation of Powers” by Howard Schweber; Chapter 14 “Trump v. Mazars and Trump v. Vance on Presidential Subpoenas” by Cornell Clayton and Joseph Bolton; and SCOTUS 2019 Chapter 6 “Gundy v. US on Delegation of Power” by Gary Lawson.

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standing, a reflection of the battle over the limits of the Court’s power to make influential decisions in American politics (or to avoid doing so).

Facts (Brnovich, Alston, Jones, and the Pandemic Cases) Increasingly, the facts of American society—and especially how we know such things (or who we rely on to inform us)—are in deep dispute among the Justices just as they are within the public.13 The most significant case that illustrates how the Court grappled with divided perceptions of reality is Brnovich on voting rights. In 2013, the Court struck down part of the Voting Rights Act of 1965 on the grounds that “nearly 50 years later, things have changed dramatically” in terms of minority participation in elections. Justice Ginsburg replied in dissent that “although circumstances in Alabama have changed, serious concerns remain.”14 Whether racism still deters voting—in blatant or subtle ways—is the influential factual question on which the Justices disagree. Brnovich reprised that continuing debate. Erwin Chemerinsky, at the National Constitution Center, phrased the distinctions in perception this way: “In our country today, there are two very different narratives about voting. The Republican narrative is that voting fraud is a significant problem, and the government has to deal with it… The Democratic narrative is that voter suppression is a major problem, and fraud is nonexistent or rare. Six Justices were appointed by Republican presidents and they accepted that Republican narrative. The dissenting Justices, appointed by Democratic presidents, took the Democratic narrative.” Another phrase for “narrative” is “perceived facts of society.” The Court—like the rest of America—is embroiled in a broad debate about

13

See Jennifer Hochschild and Katherine Einstein’s 2015 Do Facts Matter? Information and Misinformation in American Politics, followed by several other recent works including Marietta and Barker One Nation, Two Realities (2019). 14 Shelby County v. Holder decision at 13; Ginsburg dissent at 24.

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the nature and influence of racism. If racism is systemic in nature (structural rather than individual), then differences in outcomes by race are almost definitionally due to racism. However, in Alito’s view, differences in voting rates may be due to average differences in “employment, wealth, and education” between races.15 One view asserts that those differences in status are concepts distinct from racism, while the other view asserts that they are just different aspects of racism. Kagan accuses the majority of inhabiting an “alternate world,” and indeed the heart of the dispute is which world we inhabit.16 In NCAA v. Alston, a case also deeply connected to the facts of race and exploitation in America, the legal question revolved around a factual one: What are college sports—an aspect of education or a business?17 The plaintiffs argued that the NCAA’s ban on direct payments to students—no “pay-for-play”—is a violation of federal law under the Sherman Antitrust Act. This is only the case if college sports are a business enterprise. In the oral arguments, Justice Breyer described college sports as “an effort to bring into the world something that’s brought joy and all kinds of things to millions and millions of people, and it’s only partly economic.”18 But in the end, a unanimous Court agreed to what the plaintiffs argued was an undeniable reality: The NCAA is now a business, like many others, and hence must follow the same regulations. As

15

Brnovich decision at 18. Kagan dissent at 39. In a speech at the National Constitution Center in Philadelphia, President Biden discussed the Brnovich ruling, describing it as “a decision that weakened the landmark Voting Rights Act,” during a “concerted effort to undermine our elections and the sacred right to vote.” Biden described “the onslaught of state laws undermining voting rights in old and new ways,” which means that “the twenty-first century Jim Crow assault is real.” Many Americans agree that these things are real; many Americans do not. Biden underlined the divided perceptions by concluding, “We have to ask: Are you on the side of truth or lies; fact or fiction?” (President Biden Remarks 13 July 2021, available at www.whitehouse.gov). 17 On the racial dimensions of the controversy, see Taylor Branch “The Shame of College Sports” The Atlantic October 2011, in which the civil rights historian describes “the plantation mentality resurrected and blessed by today’s campus executives.” In the Court’s discussion, only Justice Kavanaugh mentions this aspect of the dispute, noting that the “student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing” (Kavanaugh concurrence at 4). 18 NCAA v. Alston oral arguments transcript, 31 March 2021, page 48. 16

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Justice Gorsuch phrased it in the decision, “At the center of this thicket of associations and rules sits a massive business.”19 In Jones v. Mississippi on the constitutionality of life sentences without parole for juveniles convicted of murder, the Court grappled with the reality of the concept of “permanent incorrigibility.” Is that a real thing— that a person can be known to be incapable of rehabilitation, when they are still young—or is it a judicial fiction divorced from empirical evidence, of which the Court should be skeptical? During oral argument, Justice Alito objected to taking “the courts of this country into very deep theological and psychological waters… What if a judge says, you know, wow, the Supreme Court says I have to determine whether this person is capable of redemption. I believe that every human being is capable of redemption. What do you do with that?”20 In the end, the Court ruled that such a finding is not constitutionally mandated to justify a life sentence without parole for a juvenile offender, saving lower courts from attempting to assert knowledge of the unknowable. In the pandemic and religious liberty cases, the Court faced one of the core problems in dealing with disputed realities: to whom should the Justices listen when determining the true facts? Justice Kagan adamantly asserts that the Court should defer to other authorities regarding public health because the “Justices of this Court are not scientists.”21 Of course neither is the Governor of California, to whom Kagan argues the Court should defer. Kagan’s point is not that Governors know more than Justices, but that she believes that the current Governor is following the science (as she understands it). But what should the Justices do if a Governor were enacting policy that a majority of the Justices believed was at odds with scientific knowledge? It is unclear if Kagan is saying that as a matter of principle the Court should defer to elected authorities on factual questions, or only when their answers agree with the Justices’ own perceptions. When the relevant social facts are in dispute, the

19

NCAA v. Alston decision at 7. Jones v. Mississippi oral arguments transcript, 3 November 2020, pages 15–16. 21 South Bay Pentecostal v. Newsom, Kagan dissent, page 1. 20

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question of whom the Court should trust—specific experts, federal agencies, state legislatures, state executives, Congress, or their own informed perceptions—will continue to frame many outcomes.

Standing (Obamacare, Uzuegbunam) The Court spent an unusual amount of time this year on the question of who can—and who cannot—bring a claim the Court will hear.22 “No concrete harm, no standing” was the rule the Justices invoked to limit claims in several prominent cases.23 However, in one major case, the Court also expanded the possibility of lawsuits regarding a large class of rights violations, with only the Chief Justice in dissent. Why can’t the Court settle any controversy brought to it? The broadest answer is the separation of powers, or the core constitutional principle that each branch of the national government must not exert the powers assigned to the other branches.24 The judicial branch must not make laws as legislatures do, but only decide legal disputes that have arrived on legitimate appeal. As the Court phrased it in 1992, a plaintiff has standing to sue only if they have, “suffered, or will imminently suffer, an injury in fact”; if “this injury is at least partly traceable to the actions of the defendant”; and if “a judgment from the court will redress the injury.”25 This means that mere taxpayer standing or abstract injury does not suffice. And in many cases of a clear constitutional violation, there may be no party with standing to bring a case. The standing rules as

22

For a discussion of earlier trends in this direction, see Case Western Reserve Law Review volume 59:4 (2009) Symposium on “Access to the Courts in the Roberts Era.” 23 TransUnion v. Ramirez decision by Justice Kavanaugh, page 1. This was a closely decided (5-4) case throwing out large portions of a class-action lawsuit against a credit bureau. Justice Kagan argued in dissent that the majority “transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement” (page 1). The dispute illustrates the ease with which standing can be seen differently: Kagan observes that “Congress, the President, the jury, the District Court, the Ninth Circuit, and four Members of this Court” believe “that a person is harmed” (19); a slim majority of the Court, however, thought they were not. 24 “Standing is built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U.S. 737 (1984) at 752. 25 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) at 560.

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they are applied leave much room for interpretation, and possibly for manipulation.26 Whether the Court sees standing as broad or limited reflects another big question: how much power and reach should the Supreme Court have? How easy or difficult, how common or rare, should it be for the Court to employ the power of judicial review to overturn the actions of democratically elected representatives? The questions surrounding standing—both technical and principled—were illustrated last year in the prominent gun case. Several Senators openly criticized the Justices for engaging in a controversy they could avoid. In response, Chief Justice Roberts issued a rare public rebuke of the Legislative Branch. And in the end, the Court dismissed the Second Amendment challenge as moot due to New York City having rescinded the law at issue during the litigation.27 A dissent by Justice Alito (joined by Gorsuch and Thomas) argued that dismissing the case at that stage will encourage governments to manufacture mootness in order to evade review. After all the litigation and public discussion, the dissenters believed the controversy should have been decided. The Obamacare case was perhaps the most significant controversy this year with standing at the heart of the ruling. In the two previous cases in 2012 and 2015, the Court recognized the plaintiffs’ standing to challenge the law, but in this third case, the Court did not. In the first two claims, the plaintiffs could show financial injuries. In this year’s case, the Court ruled that the individual citizen plaintiffs have no direct injury because the IRS is no longer enforcing the individual insurance mandate. The State plaintiffs (Texas, etc.) cannot demonstrate a clear injury either, because they cannot prove that their costs have risen. However, the District Court, Circuit Court, and two Justices disagreed with the Court’s majority. Alito argues in dissent that the federal law “imposes many burdensome obligations on States,” which means that 26

For critiques of the standing doctrine as practiced, see Mark Tushnet, “The New Law of Standing: A Plea for Abandonment” 62 Cornell Law Review 663 (1977) and Heather Elliott, “Does the Supreme Court Ignore Standing Problems to Reach the Merits?” 23 William & Mary Bill of Rights Journal 189 (2014). 27 See SCOTUS 2020 Chapter 11, “New York State Rifle & Pistol v. City of New York on Gun Regulation” by Austin Sarat.

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the denial of their ability to bring suit is “a fundamental distortion of our standing jurisprudence.”28 Alito points out that in recent years, the Court has allowed New York to sue over the inclusion of a citizenship question on the 2020 census on the grounds that the state might lose representation in the Congress, and Pennsylvania was allowed to sue over the Obamacare contraception rules, given that private employees who were denied coverage might instead use state-funded sources.29 The question is about the line drawing inherent in excluding some of these plaintiffs from access to federal courts while allowing others to be heard, with different courts at different levels of review coming to different conclusions because of the lack of clarity. The dispute over standing came up again when the Court addressed cross-border litigation and human rights violations that occurred outside U.S. territory. In Germany v. Philipp, the Court ruled unanimously that the U.S. citizen plaintiffs did not have standing to sue a foreign government, even though the District Court and the D.C. Circuit Court of Appeals had recognized their standing under federal law. This dispute was about an infamous theft of art from Jewish owners by the Nazi regime, in litigation for many years by the owners’ heirs against the current German government. The Court’s rejection of the heirs’ claim may be part of a larger trend to deny standing regarding claims stemming from events that occur outside of U.S. territory.30 Standing played a prominent role in several election controversies. Carney v. Adams—a highly anticipated case on whether a state can mandate a partisan balance among elected judges, and hence possibly exclude independent candidates—was dismissed on the grounds that the plaintiff lacked standing. The Court ruled that James Adams (a Delaware

28

California v. Texas Alito dissent, pages 3, 8. See SCOTUS 2019 Chapter 3, “Department of Commerce v. NY on the Census Citizenship Question” by Brett Curry; SCOTUS 2020 Chapter 5, “Espinoza, Lady of Guadalupe, and Little Sisters of the Poor on Religious Liberty” by Kevin Pybas. 30 See also Nestlé v. Doe rejecting the standing of citizens of the Ivory Coast to bring a claim against U.S. companies in federal court for purchasing cocoa produced with slave labor. And see SCOTUS 2020 Chapter 6, “Hernández v. Mesa on Rights and Restitution for Victims of Excessive Force at the Border” by Paul Collins and Rebecca Hamlin. 29

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attorney) was only “affected in the abstract by the legal provision he attacks.”31 Disputes over standing also influenced the controversies surrounding the 2020 presidential election, as well as the 2020 census count meant to establish the geographic boundaries of representation in many elections during the next decade. Trump v. New York challenged the administration’s announced policy of excluding unauthorized immigrants from the census enumeration. The Court dismissed the suit for lack of standing after the November election, given that the Trump administration likely did not have time remaining to carry out the policy to the extent that any harm would result. In the view of six Justices, “this case is riddled with contingencies and speculation that impede judicial review.”32 However, three Justices—Breyer, Kagan, and Sotomayor—strongly disagreed: “The Government has announced a policy,” and “the Government does not deny that, if carried out, the policy will harm plaintiffs.” This means that “under a straightforward application of our precedents, the plaintiffs have standing to sue.”33 A clearer dispute on the standing rules is hard to find: either the policy announcement is sufficient, or a fully realized harm is necessary for courts to act. This case also illustrates the frustration of those who see standing as a barrier to justice. Breyer wrote that “the plaintiffs should also prevail on the merits… The Government’s efforts to remove them from the apportionment base is unlawful, and I believe this Court should say so.”34 Another deeply partisan controversy dismissed through lack of standing was the challenge to the 2020 presidential election certification in Texas v. Pennsylvania. Several states, led by the Texas Attorney General, objected to the election procedures of other states, especially the swing states of Michigan, Pennsylvania, and Wisconsin, grounded in allegations of unconstitutional changes in election laws during the campaign. The plaintiffs asked the Court to invalidate those other states’ 31

Carney v. Adams decision, page 10. Trump v. New York per curiam opinion, page 4. 33 Trump v. New York Breyer dissent (joined by Kagan and Sotomayor), page 1. 34 Ibid. 32

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electoral votes, an unprecedented legal action at the end of a dramatic election season.35 The Court ruled that the State of Texas lacked standing to dispute the manner in which another State conducts its elections, allowing the Justices to avoid a problematic and polarizing conflict. Uzuegbunam was the only case this year to go the opposite direction, expanding a specific and influential form of standing. The underlying dispute involved free speech on campus, but the question before the Court was whether the lawsuit could go forward after the university had reversed its restrictive policies, perhaps making the claim moot. Thomas begins the 8-1 ruling by discussing the Court’s approach to standing: “At all stages of litigation, a plaintiff must maintain a personal interest in the dispute.”36 The question is how much of an interest? Does a claim for nominal damages—not real money, but only $1— establish standing, or can the Court only hear cases that deal with substantial harms? This is no small question for many violations of constitutional rights that do not cause damages that can be monetized. Denials of free speech or freedom of religion do not cost a citizen money as much as they do expression or social standing. Chike Uzuegbunam only suffered nominal monetary damages, but he lost the opportunity to express himself and communicate with others during his college years, an irreplaceable experience. The Court ruled that nominal damages are enough to sustain a lawsuit, a standard that will likely enable many future constitutional claims to go forward. Chief Justice Roberts issued a strong dissent opposing the expansion of the Court’s jurisdiction. This was a rare case in which Roberts dissented alone, underlining his strong views about the 35

Aside from the partisan electoral motivations, the constitutional grounds were allegations of violations of the Elections Clause of Article II, which allocates the power to set election laws to state legislatures rather than executive branch officials. The states’ rejoinder was that the emergency circumstances of the pandemic provided sufficient justification, along with state provisions such as the “free and equal” elections clause of the Pennsylvania Constitution. In terms of standing, one state with control over its own electoral laws does not seem to have say over another state’s laws, even if they can claim “vote dilution” of their state’s influence over the outcome due to the allegedly illegitimate laws of another state. 36 Uzuegbunam decision at 1. Thomas clarifies the distinction between standing and mootness, each a part of the broader question of whether a suit can be maintained: “The doctrine of standing generally assesses whether that interest exists at the outset, while the doctrine of mootness considers whether it exists throughout the proceedings” (page 1).

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enforcement of standing as an important limit on judicial authority. In Roberts’ view, this change in the law of standing is “turning judges into advice columnists” and creating “a radical expansion of judicial power.”37 The Court’s view of standing—and by implication its own power and reach—seems to be in flux. Regarding electoral claims by citizens or states, or extraterritorial claims by citizens or noncitizens, or budgetary claims by state governments, the availability of standing seems to be contracting. On the other hand, claims of rights violations involving only nominal damages have been green-lighted on a broader basis.38 Exactly when the Court will make a ruling or refuse to do so is increasingly unclear (to citizens, litigants, and lower courts alike).

The Direction of the Court With the new 6-3 majority of Justices appointed by Republican Presidents, the Court has begun to move in a more conservative direction. Among the rulings that can be categorized clearly along ideological lines, I count 6:3 conservative to liberal outcomes this year.39 In the cases with the largest partisan meaning—healthcare, LGBT versus religious rights, and voting rights—the rulings went 2:1 conservative (Fulton on religious rights and Brnovich on voting rights in the conservative direction, with the Obamacare ruling on the liberal side). Four of the six conservative rulings were achieved with pure ideological splits (all of the Republican 37

Roberts dissent, pages 3 and 8. Though not in the Second Amendment claim last year; reconciling the ruling in Uzuegbunam in 2021 with NY State Rifle & Pistol from 2020 is difficult to do. (See SCOTUS 2020.) In last year’s case, Justices Breyer, Kagan, Sotomayor, and Kavanaugh agreed the shooting club did not have standing with only nominal damages for a Second Amendment violation, but this year the same Justices ruled that the student with only nominal damages for a First Amendment violation did have standing. In this sense, the underlying argument about rights may influence the Justices’ views of standing (if certain rights claims are preferred or the reverse, then standing decisions on those cases may be lenient or the reverse). 39 Clearly conservative rulings: Brnovich, Cedar Point, Fulton, Jones, Pereida, and the pandemic cases (counted together) (6); Clearly liberal rulings: California v. Texas, Mahanoy, and Torres (3). The separation of powers cases (Collins and Arthrex ) could also be considered conservative outcomes, and the policy implications of BP v. Baltimore favor the right, so the conservative advantage is at least 2:1. 38

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appointees on one side and all of the Democratic appointees on the other). This summary is quite different from last year when the outcomes were more evenly divided, and each ideological side could claim major rulings in their preferred direction.40 Next year, the Court is poised to address several long-term constitutional controversies, most notably abortion rights and gun rights, with other possible major rulings on religious rights under the First Amendment. With the current trajectory and composition of the Court, we can expect those rulings to go in a more conservative direction. We conclude this year by marking the passing of one of the greats of the Court. After her service to the country and the Court, Ruth Bader Ginsburg became the first woman and first Jewish person to lie in state at the U.S. Capitol. “Pathmarking” was her term for a life that left “footprints on the sands of time,” as Longfellow phrased it. Her most influential ruling, in US v. Virginia, allowed women into the tradition-bound Virginia Military Institute (VMI). More importantly, it strengthened the principle that gender cannot serve as a basis for restrictive distinctions under the law. Notoriously tough, RBG maintained a forceful presence on the Court for twenty-seven years, twenty of which followed her first bout of cancer in 1999 and then several other rounds that would have sidelined other mortals. One of my favorite things about RBG was her fabled friendship with rival Justice Antonin Scalia.41 Serving as the leader of the liberal wing of the Court did not foreclose a deep connection with another strong intellect in open disagreement about the meaning of the Constitution. Justice Ginsburg’s life is an argument for intellectual and personal tenacity tempered with humanity, a true lesson for our time.

40

See SCOTUS 2020 Chapter 15 “Ideology and the Court’s Work” by Larry Baum. There is an iconic photo of her and Scalia traveling together in India, sharing a ride on a tame elephant, perhaps more of a symbol than intended. See ABCNews.com “Ginsburg modeled civility in friendships with conservatives” 19 September 2020. 41

2 BP v. City of Baltimore on the Fight for Jurisdiction Over Climate Litigation David Dana

Dozens of state and local governments have sued large energy companies and other major sources of greenhouse gas emissions, arguing that the companies deceived the public and regulators about the risks of climate change. If those claims are proven, the companies are liable for the costs that governments will incur in climate adaptation.1 The goal of these suits is not simply to secure money for the state and local governments, but also to make public what companies knew, when they knew it, and what they did to hamper efforts to grapple with climate change. Advocates of the lawsuits thought that, possibly, disclosures in such suits could intensify political support for legislative restrictions on greenhouse gas 1 As

of this writing, at least thirty such suits have been filed. See the Columbia Sabin Center database, available at climatecasechart.com.

D. Dana (B) Northwestern University Pritzker School of Law, Chicago, IL, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Marietta (ed.), SCOTUS 2021, https://doi.org/10.1007/978-3-030-88641-7_2

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emissions, just as disclosures in tobacco litigation in the 1990s boosted support for stricter regulation.2 Because national politics in the United States are now so polarized and legislation so difficult to pass, climate change litigation has become a major focal point for climate change activism. These lawsuits are based on state law, specifically the arcane tort (a claim for damages in civil court) of public nuisance.3 Either federal or state courts would seem reasonable and lawful forums for these suits, but the plaintiffs strongly favor the state courts, and for very good reasons. Without exception, the federal courts have dismissed climate suits (or affirmed their dismissal in lower courts), relying on a range of jurisdictional theories.4 Many of these theories supporting dismissal, however, would be inapplicable in the state courts. The plaintiffs in these suits thus have brought all recent suits in state courts. At the same time, the corporate defendants, seeing federal courts as a friendlier forum, have sought to “remove” climate suits from state court to federal court. Whether climate suits proceed in state court (as the state and local governments want) or are successfully removed to federal court (as the corporations want) is, in a sense, a dry procedural question. But the answer to this dry procedural question may determine whether or not all the climate suits are summarily dismissed before they can have any real impact on ongoing debates about climate change, what should be done to mitigate it, and how to pay for adaptation. Removal is the only topic addressed in the Supreme Court’s Baltimore decision. The City of Baltimore filed suit in state court against a group of major energy companies. The defendants then brought a removal action in federal district court, seeking the removal of the entire suit from state to federal court. Under federal law, a suit can be removed from state to federal court only if it meets one of the specific criteria set forth in one of 2 See Doug Kysar, “Fossil Fuel’s Tobacco Moment Has Arrived,” 28 July 2017, available at https://law.yale.edu/fossil-fuel-industrys-tobacco-moment-has-arrived. 3 See generally David A. Dana, “Public Nuisance Law When Politics Fails,” available at papers. ssrn.com. 4 For example, the “political question” ground for dismissal is solely part of federal law. See James R. May, “Climate Change, Constitutional Consignment, and the Political Question Doctrine,” 85 Denver University Law Review 919 (2008).

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the federal removal statutes. Two statutes are particularly relevant to the Baltimore decision. Section 1441 allows defendants to remove for several reasons, the most relevant being “federal question” removal, based on the civil action including a claim arising under the Constitution, laws, or treaties of the United States. Section 1442—the federal officer removal provision—allows a defendant to remove an action against an “officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.” (Also relevant, though less centrally, is §1443, which allows for removal of civil rights cases.)5 The defendants in the Baltimore litigation sought removal under both the federal question statute (Section 1441) and the federal officer statute (Section 1442). The corporate defendants had a number of theories as to how Baltimore’s suit should be understood as implicating specific federal laws and federal law writ large, making the legal action essentially a federal question. The defendants argued that federal officer removal applied as well because some of their energy exploration and extraction work allegedly was undertaken at the direction of federal agencies. The federal district court found no merit in either ground for removing the action to federal court. The question then became, can a federal district court’s order denying removal be reviewed by the court of appeals? And if it can, what is the permissible scope of that appellate review? Congress has spoken directly to those issues in a statutory provision— Section 1447(d)—but the parties disagreed about its proper interpretation. Section 1447(d) provides that an “order remanding a case to the State court... is not reviewable on appeal … except that an order remanding a case to the State court... pursuant to [the Section 1442 federal officer removal provision or the Section 1443 civil rights removal provision] shall be reviewable by appeal….” This language makes clear that, if the sole claimed basis for removal is the federal question provision, then the district court’s denial of removal cannot be reviewed by the court of appeals. But here, the district court’s order rejected removal based on a federal question and based on federal officer removal. 5

28 U.S. Code § 1441, 1442, 1443.

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Section 1447 explicitly authorizes the court of appeals to review the federal officer portion of the remand order. But does it also allow the court of appeals to consider other theories of removal considered and rejected by the district court? The Fourth Circuit thought not, construing Section 1447 as authorizing appellate review solely of the denial of federal officer removal.6 The U.S. Supreme Court in Baltimore granted certiorari to decide: when a federal district court denies removal that was sought based on a theory of federal officer removal and other theories, is the court of appeal limited to reviewing the district court’s denial of removal based on the federal officer removal theory alone, or can and should the court of appeals review all the bases for removal that the district court found insufficient? If the answer is the latter, then the corporate defendants in practice will have two opportunities to argue that a range of federal removal theories are correct—once before the district court, and then, if the district court disagrees, before the court of appeals. This two-bitesat-the-apple increases the likelihood that the litigation ultimately will be heard in federal rather than state court, which (as discussed above) is thought to greatly advantage the defendants.

The Majority Relies on the Word “Order” Justice Gorsuch, writing for a majority of seven Justices (only Justice Sotomayor dissented), made clear that the Court’s decision was not about the merits of the climate change litigation.7 Instead, the majority concluded that as a matter of straightforward statutory interpretation, a court of appeals could review all the asserted bases for federal removal. Gorsuch’s argument relied on the statutory language and, in particular, one word—“order.”8 According to Gorsuch, because the relevant 6

952 F. 3d 452 (4th Cir. 2020). Justice Alito recused himself from the proceedings because of a personal financial interest in oil and gas companies, resulting in the 7-1 ruling. 8 Justice Gorsuch is well-known as a textualist, committed to the ostensible view that statutory interpretation should be based on the explicit written words of a law rather than the legislature’s possible purposes or policy outcomes. See the discussion of Gorsuch’ textualism in SCOTUS 7

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statute refers to an “order remanding a case to the State court,” then the plain linguistic logic of the federal statute supports the view that the Fourth Circuit could and should have reviewed all the bases for removal regarding that order in full, even though the appeal of the remand order was only possible because the plaintiffs sought the more narrow ground of federal officer removal. The majority explicitly conceded that “Of course, §1447(d) extends appellate review only to some orders—those remanding a ‘case … removed pursuant to Section 1442 or 1443.’”9 But, for the majority at least, “it’s hard to see how that qualification changes the calculation.”10 The majority also contended that Supreme Court precedent, to the extent it was relevant at all, supported its interpretation of federal law. The majority also addressed—and rejected—the City’s “policy consequences” argument. First, the majority explained that policy considerations cannot trump the plain meaning of a statute. Further, and contrary to what the City argued, the majority contended that allowing a court of appeals to consider all bases for removal would enhance, rather than reduce, the efficient resolution of the litigation. As the majority explained: if a court of appeals finds that the federal officer removal issue is a “difficult and close one,” but believes there is an easier and clearer basis for removal, then “Allowing the court to address that easier question and avoid harder ones may facilitate a prompter resolution of the proceeding for all involved.”11 The majority did not explain why one would think that federal officer removal issues generally would be difficult ones, or why allowing all-removal-bases review by the court of appeals would not generally slow down litigation. The last three paragraphs of the majority’s opinion address the dissent’s argument that the majority’s holding will encourage defendants to manufacture trivial federal officer removal arguments, so that they can get their more substantive removal arguments reviewed by the court of appeals. The majority explained that the district court could award plaintiffs fees 2020 Chapter 2 “Bostock v. Clayton County on LGBT Employment Discrimination” by Julie Novkov. 9 BP v. Baltimore decision at 5. 10 Ibid. at 8–9. 11 Ibid. at 13.

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or impose Rule 11 sanctions if the defendants make a frivolous argument. But the majority did not address the threshold for awarding fees or imposing sanctions. Nor did the majority address the fact that the corporate defendants in these sorts of climate suits have the resources to strenuously oppose a fee award or imposition of sanctions and, if need be, to pay fees or monetary sanctions as part of the price of fighting for a federal forum.

The Dissent Highlights Defendants’ Real Aim—Federal Question Removal The sole dissenter, Justice Sotomayor strenuously argued that defendants will use a federal officer removal argument as a pretext to obtain appellate review of removal on other grounds. Indeed, she pointed out that this is exactly what appears to have happened in this case, in which the defendants already have abandoned the federal officer theory and instead are seeking appellate review of removal based on federal questions raised by the plaintiffs’ claims. As Justice Sotomayor explained: to see how “today’s decision will reward defendants for raising strained theories of removal under §1442 or 1443” so that they can “circumvent the bar on appellate review entirely,” one need “look no further than this case.”12 The dissent also took issue with the majority’s claim that the threat of fee awards and sanctions would deter gamesmanship on the part of defendants seeking removal. Again, Justice Sotomayor pointed to this very case as proof of her point: A federal-officer claim can be so weak it is not worth pursuing on appeal, but not so meritless as to warrant sanctions. Again, look at this case. Petitioners no longer advance their argument under §1442, calling it only substantial. Yet, that argument somehow opens a back door to appellate review that would otherwise be closed to them.13

12 13

Sotomayor dissent at 7. BP v. Baltimore Sotomayor dissent at 8.

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The large issue hinted at by the dissent and ignored by the majority is whether climate change is inherently a federal question that can justify removal even in a suit alleging only state law violations. Corporate defendants argue that all suits about climate change, even when they are based on state law claims, implicate questions of federal law because climate change is an inherently national problem involving every section of the country and every aspect of the federal government and law, including federal law regarding international relations. There is some precedent for this view, notably a much-debated recent Second Circuit decision, City of New York v. Chevron, although that decision was not rendered in the context of a removal dispute.14 At the same time, the defendants’ expansive interpretation of federal question jurisdiction and removal in the climate context seems in tension with the storied tradition of federalism in American law. The defendants’ theory, one could argue, implicitly devalues state law and localized claims for damages related to climate change.

Going Forward Litigation is a dynamic system. As Justice Sotomayor suggested, corporate defendants may well double down on federal officer removal theories, now that it is clear that such theories can facilitate appellate review of other bases for removal. But the plaintiffs—state and local governments—also can adapt. We might see such litigants amending their complaints to specifically exclude emissions related to war-time energy exploration or any other activity taken at the direction of federal agencies or officers. With these amendments, defendants will be harder pressed to argue that they have a non-frivolous basis for federal officer removal. And these amendments would not undermine the plaintiffs’ most pressing goal—to survive motions to dismiss and obtain discovery about what the energy companies knew about climate change, and what they did to sow doubts as to the reality and dimensions of the climate change 14

993 F.3d 81 (2d Cir. 2021) (holding that even though posed as state law claims, claims regarding greenhouse gas emissions inherently are federal in nature).

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problem. Thus, whether the Baltimore decision will alter the course of climate change litigation is, at this juncture, impossible to say.

3 Brnovich v. Democratic National Committee on Voting Rights Cornell W. Clayton and Michael J. Ritter

On the final day of the 2020 term, the Supreme Court issued the most significant voting rights decision in nearly a decade. In Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee (collectively, “Brnovich”) the political parties squared off over two Arizona voting policies: one requiring an entire ballot be discarded if cast in the wrong precinct, the other banning third-party collection of ballots. The Democratic National Committee (DNC), supported by Arizona’s Democratic Secretary of State, sued to block the provisions as violating Section 2 of the federal Voting Rights Act (VRA)1 and the 15th Amendment to the U.S. Constitution, both of which prohibit racial 1 52

U.S.C. § 10,301.

C. W. Clayton (B) · M. J. Ritter Department of Politics, Washington State University, Pullman, WA, USA e-mail: [email protected]

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discrimination in voting. Arizona, represented by Attorney General Mark Brnovich and supported by the state’s Republican Party, argued the provisions were race-neutral election integrity measures. Narrowly, the case addressed whether these policies violated the VRA’s so-called “results test,” a judicial test that asks whether a policy disproportionately affects minority voters. But the dispute set the stage for the Supreme Court to weigh in on the larger showdown between federal civil rights era legislation and state control over elections at a time when the parties are deeply divided over these issues.

Political Context The Court heard arguments in Brnovich just two months after President Trump’s claims of voter fraud led his supporters to storm the U.S. Capital to prevent Congress from certifying the 2020 election results. Following the election, the parties remained deeply divided over election administration and vote fraud. Proven cases of vote fraud are rare in the United States, and none of the election audits, recounts, or lawsuits during 2020 election uncovered any evidence of widespread irregularity.2 Nevertheless, many Republicans believed substantial fraud took place in 2020 and were especially troubled by mail-in balloting procedures adopted by states during the pandemic. By March of 2021, Republican lawmakers in 47 states introduced hundreds of bills with new restrictive voting provisions, many of which passed.3 Democrats claimed these measures were thinly veiled efforts to suppress voting in nonaffluent and minority communities which typically support Democratic candidates. They proposed new federal legislation to rollback state voting restrictions and overhaul campaign finance.4

2 www.brennancenter.org/issues/ensure-every-american-can-vote/vote-suppression/myth-voterfraud. 3 www.brennancenter.org/our-work/research-reports/voting-laws-roundup-march-2021. 4 H.B. 1, “The for the People Act,” www.congress.gov/bill/117th-congress/house-bill/1/text.

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Republicans objected to this legislation as a federal takeover of state control of elections.5 The political stakes of the Brnovich case became clear during the oral arguments when a lawyer representing the Republican Party responded to a question about the Party’s interest in maintaining the bans on outof-precinct voting. Removing those rules, he said bluntly, “puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50-to49 and losing.”6

Case Background Like many states, Arizona assigns voters to specific precincts based on where they live. If they go to the wrong precinct, they can cast a provisional ballot. But, if it is later determined they voted in the wrong precinct, the entire ballot is rejected. That was the fate of 3,704 Arizona ballots during the 2016 general election. Twenty-five other states nationwide have out-of-precinct policies, and thousands of ballots are discarded each election cycle based on these laws.7 Fourteen states, including Arizona, also restrict third-party ballot collection, sometimes called “ballot harvesting” by its critics.8 Arizona’s law makes it a felony to collect and deliver another person’s ballot (unless you are a caregiver, family or household member, postal worker, or election official). While nearly 80% of Arizonans vote by mail, postal service is unreliable in rural areas where many Hispanic and Native American voters live. Only 18% of Native Americans in the state, for example, have access to 5 Alexandra Hutzler, “As GOP Opposes H.R. 1, Poll Finds Majority of Republicans Support Election Reform Bill,” Newsweek Magazine, 25 February 2021. 6 Brnovich oral argument transcript, pages 37–38. 7 See www.ballotpedia.org/State_by_State_Provisional_Ballot_Laws and www.pewresearch.org/ fact-tank/2020/11/10/most-mail-and-provisional-ballots-got-counted-in-past-u-s-elections-butmany-did-not. 8 www.ballotpedia.org/Ballot_harvesting_laws_by_state.

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regular home delivery. The Tohono O’odham reservation, with an area larger than Delaware, has no home mail delivery and only one post office. These rural voters are more likely to rely upon friends, tribal members, or get-out-the-vote workers to collect and deliver ballots to polling stations. In 2016, the DNC sued to block both laws, arguing they disproportionately affected minority voters in violation of Section 2 of the federal VRA, which prohibits laws that “result in a denial or abridgement of the right to vote … on account of race or color” (emphasis added).9 They also argued the ballot collection ban purposely inhibited voting by minority communities in violation of the 15th Amendment to the U.S. Constitution, which prohibits intentionally abridging the right to vote on account of race. Arizona’s attorney general defended the provisions as race-neutral restrictions within the state’s authority to administer the time, place, and manner of elections. The State argued that it had denied no one an “equal opportunity” to vote and provided a “plethora of options” to participate, including Election Day voting, in-person early voting, and vote by mail. In addition, the out-of-precinct policy did not “substantively impact” minority voting because it affected less than one percent of ballots. Both provisions, the state argued, were aimed at election integrity. The district court and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held in favor of Arizona. The DNC appealed, and the full Ninth Circuit in 2020 granted an en banc rehearing of the case (in which all judges on the circuit sit), ultimately reversing in favor of the DNC.10 Regarding the out-of-precinct policy, the Ninth Circuit Court found that Arizona officials frequently changed polling places in urban counties with large minority populations, leading those voters to easily make mistakes about precinct locations. In the 2016 election, minority

9

52 U.S. Code Section 10301. Feldman v. Arizona Secretary of State’s Office, 208 F.Supp.3d 1074 (D.A.Z. 2016); Feldman v. Arizona Secretary of State’s Office, 840 F.3d 1057 (9th Cir. 2016); Feldman v. Arizona Secretary of State’s Office, 843 F.3d 366 (9th Cir. 2016) (en banc); Democratic National Committee v. Reagan, 329 F.Supp.3d 824 (D.A.Z. 2018); Democratic National Committee v. Reagan, 904 F.3d 686 (9th Cir. 2018); Democratic National Committee v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (en banc).

10

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voters were twice as likely as others to have their ballots discarded as out-of-precinct. That disproportionate result violated Section 2. Arizona’s ballot collection measure also ran afoul of Section 2, according to the appeals court. Evidence showed that poor and minority voters more often relied on third parties to return their ballots, so the law placed a disparate burden on them. In addition, the law violated the 15th Amendment. Arizona had a history of racial discrimination in voting and there was no evidence that third-party ballot collection in Arizona led to widespread voting irregularities. The state also already had laws prohibiting fraudulent behavior. Consequently, the law could not be credibly defended as an election integrity measure.

Oral Argument and the Standard of Review During oral argument at the Supreme Court, several Justices seemed sympathetic to Arizona’s election integrity concerns. Chief Justice Roberts pointed out that bipartisan groups had found that absentee balloting processes posed a substantial threat of fraud. Arizona’s Democratic Secretary of State responded that the state already prohibited vote fraud. But the conservative Justices seemed dubious. The central dispute, however, focused on the legal standard courts use to evaluate violations of Section 2 of the VRA. In deciding against Arizona, the Ninth Circuit Court applied the so-called “results test” developed by the Supreme Court in a 1986 case entitled Thornburg v. Gingles.11 Under that test, a voting rule need not intentionally discriminate to be struck down; it only needed to have a disparate effect on minority voting. Claims of Section 2 violations have taken on new importance since the Court’s 2013 decision in Shelby County v. Holder.12 Previously, Section 5 of the VRA required states with a history of racial discrimination in voting to obtain prior approval from the federal government before 11 12

478 US 30 (1986). 570 US 529 (2013).

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altering election laws. Arizona was a preclearance state and was previously blocked from enacting laws like its ballot collection measure. But, in Shelby County, the Supreme Court rendered Section 5’s preclearance regime inoperable until Congress clarified which states today should be subject to its requirements. Partisan disagreement in Congress has prevented the law from being amended. In contrast to Section 5, Section 2 violations historically focused on “vote dilution” claims, or cases involving how district lines are drawn and the proportion of minority voters in each district. But, after Shelby County, voting rights advocates have resorted to using Section 2 to challenge vote denial practices too. Whether the results test should apply to these vote denial cases under Section 2 was the question dividing the Justices. In oral arguments, Justice Alito suggested abandoning the results test to focus only on whether a policy denies voters an “equal opportunity” to participate. Disparate impact analysis, he said, would make every voting law vulnerable to challenge because poor or less-educated voters “find it more difficult to comply with just about every voting rule.”13 Justice Breyer suggested a different test, one that considered disparate impact on minority voting, but would allow states to show that the rule was enacted for reasons other than race. Justice Kavanaugh proposed a middle ground, a test that examined not only whether minorities had the same “opportunities” to vote as others, but also considered factors such as whether the rule is used in other states or whether there were race-neutral justifications for the law.

The Court’s Decision The Court upheld both Arizona laws. The 6-to-3 vote split along ideological lines, with Justice Alito writing for the Court’s six conservatives and Justice Kagan writing for the three liberals. Justice Gorsuch, joined by Thomas, also filed a concurring opinion.

13

Brnovich oral argument transcript, page 79.

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Arizona “generally makes it quite easy for residents to vote,” Justice Alito began. Every voting rule, he explained, places some burden on voters, so “mere inconvenience” is not enough to jeopardize a state’s voting laws. He concludes that an “open” process that imposes the “usual burdens of voting” does not violate Section 2.14 Rather, Section 2 is violated only when, given the “totality of circumstances,” minority voters are offered “less opportunity” than others to participate in the political process. The results test, designed for vote dilution cases in Gingles, was inapplicable in cases involving facially neutral rules about the time, place, or manner of voting. Such a requirement, Alito reiterated, would have “the potential to invalidate just about any voting rule a State adopts.” Section 2, additionally, “does not transfer the States’ authority to set non-discriminatory voting rules to the federal courts.”15 Under a totality of circumstances standard, Alito said courts could consider a variety of factors in evaluating whether a state rule deprives the equal opportunity to vote. Five were important in this case: (1) the size of the burden imposed by the voting rule and whether it exceeded the “usual burdens of voting”; (2) the degree to which the rule departs from standard practice in other states; (3) the size of the rule’s impact on minority voters (the mere fact of some small disparity was not itself enough); (4) the variety of opportunities provided by the state’s entire voting system; and (5) the strength of the state interests at stake. Alito emphasized that rules supported by important interests—such as the “strong and entirely legitimate state interest” in “the prevention of fraud”—are less likely to violate Section 2.16 Examining these factors, the Court found that neither Arizona rule violated Section 2. The in-precinct voting rule neither constituted an “unusual burden” on voting, nor was the racial disparity of the burden large in absolute terms—more minority voters than non-minority voters were affected by the rule, but 99 percent of both groups were unaffected. Finally, Alito argued, precinct-based voting systems had a long 14

Brnovich decision, pages 8, 16, 26. Ibid. at 24–25. 16 Ibid. at 19. 15

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pedigree in the United States, they are used in many states, and they further the important state interest in distributing voters “more evenly among polling places.”17 The Court similarly dismissed concerns about Arizona’s ballot collection measure. Arizonans can submit early ballots by going to a mailbox, a post office, a ballot drop box, or an election official’s office. The plaintiffs provided no statistical evidence on the extent to which the rule disproportionately burdened minority voters. But, even if they had, given the variety of methods available to vote, it would not outweigh the State’s “compelling interest in preserving the integrity of its election procedures.” Finally, the law did not violate the 15th Amendment. The Court found plausible evidence that it had been passed after a “serious legislative debate on the wisdom of early mail-in voting” and the potential for fraud, not out of racial animus.18

The Dissent The dissent found both Arizona laws violated Section 2. After discussing the nation’s history of voting disenfranchisement and the struggle for voting rights, Kagan wrote that the VRA “represents the best” but also “the worst of America” because “it was—and remains—so necessary.” Section 2, she said, is “as expansive as ever—demanding that every citizen of this country possess a right at once grand and obvious: the right to an equal opportunity to vote.” The law’s success “lay in its capacity to meet ever-new forms of discrimination.” But the majority’s decision “undermines Section 2 and the right it provides.”19 Kagan took issue with the majority’s treatment of the burdens placed on minority voters. While the majority characterized the out-of-precinct impact as “unremarkable,” Kagan wrote that the state was in fact a “national aberration” in discarding out-of-precinct ballots. Of the 35,000 ballots across the country thrown out in 2012 because they were cast in 17

Ibid. at 29. Ibid. at 32 and 35. 19 Brnovich Kagan dissent at 1, 2, and 8. 18

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the wrong precinct, nearly a third were from Arizona, a rate 11 times that of any other state.20 The Court may have gutted the preclearance protections of Section 5 of the VRA in Shelby County, but Section 2’s guarantee of an “equally open” electoral system should still block discriminatory voting laws, Kagan argued. Even “facially neutral laws” violate Section 2 if they leave a state’s electoral system less open to minority voters. Arguing in favor of the Gingles results test, Kagan said the congressional debates over the VRA’s language and the plain text of Section 2 barred laws that “result in” unequal opportunities to participate in elections. What is tragic, she concluded, is the “Court has (yet again) rewritten—in order to weaken— a statute that stands as a monument to America’s greatness, and protects against its basest impulses.”21

Conclusion Brnovich marks a victory for states wishing to change their election laws, whether restricting or expanding ballot access. It is the latest in a string of decisions limiting federal oversight over how states run and administer elections. In rejecting the results test, the Court makes it more difficult to challenge state laws that have a disproportionate impact on minority voting. However, the opinions in this case showcase the continued, spirited debate over the proper balance between federal protection of voting rights and the authority of states to run elections. In combination with the Shelby decision, Brnovich shifts that balance in favor of state authority. But the dissent, as well as new laws being considered in Congress, represent the possibility that the balance may shift back in the future.

20 21

Ibid. at 30. Ibid. at 3.

4 California v. Texas on the Final Installment of the Obamacare Trilogy Josh Blackman

Since its inception, the Affordable Care Act has faced three foundational legal challenges. And in each “installment of our epic Affordable Care Act trilogy,” the Supreme Court rebuffed those attacks.1 First, NFIB v. Sebelius upheld the ACA’s individual mandate as an exercise of Congress’

I filed an amicus brief in support of the individual plaintiffs in California v. Texas. Portions of this chapter appeared in Cato Supreme Court Review 2021. 1 California

v. Texas Alito dissent, page 1.

J. Blackman (B) South Texas College of Law Houston, Houston, TX, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Marietta (ed.), SCOTUS 2021, https://doi.org/10.1007/978-3-030-88641-7_4

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taxing power.2 Second, King v. Burwell held that the ACA, which subsidizes health care exchanges “established by the State,” also subsidizes the federal exchange.3 And this past term, the Supreme Court decided California v. Texas, the final installment in the trilogy.4 In many ways, Texas was a redux of NFIB. In 2012, the Court ruled that Congress could not require people to purchase health insurance. However, because the ACA’s penalty raised revenue, the law could be construed as a valid exercise of the taxing power. Under the so-called “saving construction,” there was no unconstitutional individual mandate. Rather, the ACA merely imposed a tax on the uninsured. Fast-forward to 2017. Through the Tax Cuts and Jobs Act, Congress reduced the penalty to $0. However, Congress did not repeal the individual mandate. In February 2018, Texas and seventeen other states challenged the constitutionality of the ACA. Soon, two private plaintiffs also joined the case. All plaintiffs contended that the saving construction could no longer hold because the ACA no longer raised revenue. And, they argued, the unconstitutional mandate could not be severed from the remainder of the law. Therefore, the entire law was unconstitutional. The Department of Justice declined to defend the constitutionality of the mandate. In response, California and other states intervened to defend the law. The District Court agreed with the plaintiffs, and ruled that the ACA as a whole could not stand.5 The Fifth Circuit Court of Appeals found that the plaintiffs had standing and the individual mandate was unconstitutional. But the divided panel remanded the case to consider “enjoining the enforcement only of those provisions that injure the plaintiffs.”6 On appeal, the Supreme Court reversed the Fifth Circuit. The Supreme Court split 7-2. Justice Breyer wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Thomas, Kagan, 2 567 U.S. 519 (2012). See Josh Blackman, Unprecedented: The Constitutional Challenge to Obamacare (Public Affairs, 2013). 3 576 U.S. 473 (2015). See Josh Blackman, Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016). 4 See Josh Blackman, Undefeated: Trump, Obamacare, and the Roberts Court (forthcoming 2022). 5 Texas v. United States, 340 F. Supp. 3d 579 (N.D. Tex. 2018). 6 Texas v. United States, 945 F.3d 355 (5th Cir. 2019) at 393 (emphasis added).

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Sotomayor, Kavanaugh, and Barrett. The majority concluded that “Texas and the other plaintiffs in this suit lack the standing necessary to raise” their claims.7 Justice Alito dissented, joined by Justice Gorsuch. They found that the state plaintiffs had standing, the individual mandate was unconstitutional, and the portions of the ACA that injure the plaintiffs should be enjoined. Justice Thomas wrote a concurring opinion that responded to Justice Alito’s dissent. This chapter will consider the three opinions in that order and describes the competing arguments over standing as well as the constitutionality of the amended ACA.

Justice Breyer’s Majority Opinion To establish standing in federal court, “a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.”8 In California v. Texas, Justice Breyer’s majority opinion declined to consider the first factor. Even if the Court “assume[d] that [the plaintiffs’] pocketbook injury satisfies the injury element of Article III standing,” the plaintiffs still failed to show “that the injury they will suffer or have suffered is ‘fairly traceable’ to the ‘allegedly unlawful conduct’ of which they complain.”9 Thus, the Court found that the second factor was not satisfied. Justice Breyer rejected four different theories of standing. First, the Court considered the individual plaintiffs’ arguments. Breyer observed that the minimum essential coverage requirement “has no means of enforcement,” because “with the penalty zeroed out, the IRS can no longer seek a penalty from those who fail to comply.” The plaintiffs “have not pointed to any way in which the defendants, the Commissioner of Internal Revenue and the Secretary of Health and Human Services, will

7

California v. Texas decision at 2. Transunion LLC v. Ramirez (2021) majority opinion at 7. 9 California v. Texas decision at 5. 8

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act to enforce” the requirement.10 Thus, the private plaintiffs could not trace their injuries to any governmental action. Second, the Court considered the state plaintiffs’ primary argument for standing. The states operate several insurance programs, including Medicaid. The states also provide health insurance to state employees. The states argued that zeroing out the penalty would lead to more people enrolling in these programs, thus increasing the state’s costs. The Court found that this argument suffered from a “fatal weakness.” Specifically, the states “failed to show that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs.” With a $0 penalty, “what incentive could the [minimum essential coverage] provision provide?”11 The state plaintiffs, therefore, could not trace these speculative injuries to any actions by the federal government. Third, the Court considered the state plaintiffs’ alternate argument for standing. The states provide beneficiaries with information about state-operated insurance plans. And the state also submits the same information to the IRS. However, the Court found that these burdens are not caused by the minimum essential coverage provision. Even in the absence of the individual mandate, the states would still have to supply this information. Therefore, the “Government’s conduct in question is therefore not ‘fairly traceable’ to enforcement of the ‘allegedly unlawful’ provision of which the plaintiffs complain.”12 Finally, the Court turned to “a novel alternative theory of standing” raised by the Solicitor General.13 The Department of Justice contended that “[t]he individual plaintiffs have shown that the ACA’s insurancereform provisions injure them by limiting their options with regard to insurance coverage and by raising their costs.”14 Stated differently, the individual mandate—working in conjunction with the ACA’s insurance reform provisions—force the plaintiffs to buy an unwanted, overpriced product. The plaintiffs claim that those regulations that injure them 10

Ibid. Ibid. at 11, 12. 12 Ibid. at 15 (quoting Allen v. Wright, 468 U.S. 737 [1984] at 751). 13 Ibid. at 10. 14 Federal Respondent Brief at 11–12. 11

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are inseverable from the individual mandate. And, the Solicitor General argued, the plaintiffs established “a cognizable injury traceable to the insurance-reform provisions” and hence “have standing to challenge the enforcement of those [other] provisions.”15 This theory can be described as standing-through-inseverability. Consider a simple example to illustrate this principle. Congress enacts a statute with two sections that are inseverable: Section A and Section B. The plaintiffs are injured by Section B, which is constitutional. The plaintiffs challenge the constitutionality of Section A. Given these facts, the plaintiffs could establish standing to challenge Section A based on the injuries imposed by Section B. The amicus brief I filed on behalf of the Cato Institute raised similar arguments.16 However, the majority declined to consider the Solicitor General’s “alternative theory.” Justice Breyer wrote that this position was “raised for the first time” before the Supreme Court, “was not directly argued by the plaintiffs in the courts below,” and “was nowhere presented at the certiorari stage.”17 Ultimately, the Court concluded that “the plaintiffs in this suit failed to show a concrete, particularized injury fairly traceable to the defendants’ conduct in enforcing the specific statutory provision they attack as unconstitutional.”18 As a result, the Court did not “reach” any “questions of the Act’s validity.”19

Justice Alito’s Dissent Justice Alito’s dissent, joined by Justice Gorsuch, was twice as long as the majority opinion. Alito lamented that this case “follows the same pattern as installments one and two” of the “epic Affordable Care Act trilogy”: “in all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.”20 The dissent 15

Ibid. See Brief of Cato Institute as Amicus Curiae, https://bit.ly/3eduwTZ. 17 California v. Texas decision at 10. 18 Ibid. at 16. 19 Ibid. at 2. 20 Alito dissent at 1. 16

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argued that the state plaintiffs have standing, the mandate is unconstitutional, and the Court should enjoin those provisions that injure the plaintiffs. The state plaintiffs have standing . Justice Alito declined to consider the “novel question” raised by the individual plaintiffs’ claim to standing. Nor did the dissent consider the theory of standing raised by the Solicitor General. Instead, the dissent found that “the States have standing for reasons that are straightforward and meritorious.” The dissent explained that the state plaintiffs easily satisfied the first and third elements of the standing inquiry. Alito observed that “the States have offered plenty of evidence that they incur substantial expenses in order to comply with obligations imposed by the ACA,” so “there is no question that the States have demonstrated an injury in fact.” And “[t]here is likewise no material dispute that these financial injuries could be redressed by a favorable judgment.”21 Thus the case boils down to the second element: traceability. And the dissenters found this element was satisfied in several ways. For example, the ACA imposes reporting requirements on the states. And the failure to comply with these requirements “may result in heavy penalties.”22 These penalties inflict an injury that can be traced to the federal government’s actions. Thus, factors (i) injury in fact and (ii) traceability are satisfied. Finally, these injuries can be (iii) redressed by enjoining the reporting requirements. Hence there are “concrete, traceable, and redressable injuries demonstrated by the state plaintiffs.” In Alito’s view, “the Court simply ducks the issue” “based on a fundamental distortion of our standing jurisprudence.”23 The dissent disagreed with the majority about the correct legal standard for traceability. Justice Alito wrote that plaintiffs do not need to establish that their injury is traceable to “an unconstitutional provision,” such as the individual mandate. Rather, “the plaintiff ’s ‘injury’ must be traceable to the defendant’s conduct, and that conduct must be ‘allegedly

21

Ibid. at 8. Ibid. at 11. 23 Ibid. at 2. 22

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unlawful’.”24 There was a critical distinction between the majority and the dissent. For Alito, the government’s course of “conduct” must be unconstitutional; for Breyer, the particular challenged “provision” must be unconstitutional. The latter approach is far more constricting than the former approach. Justice Alito charged that the “Court’s primary argument rests on a patent distortion of the traceability prong of our established test for standing.”25 Finally, the dissent rejected the argument that the state plaintiffs forfeited the standing-through-inseverability argument. Justice Alito wrote that the states raised these arguments “in their complaint,” “expressly advanced that argument in the Court of Appeals,” and “the Court of Appeals accepted it for standing purposes.”26 The issue was also extensively briefed before the Supreme Court. There was no forfeiture. In conclusion, the dissenters “would hold that the States have demonstrated standing to seek relief from the ACA provisions that burden them and that they claim are inseparable from the individual mandate.”27 The individual mandate is unconstitutional . Next, the dissent turned to the merits. NFIB v. Sebelius held that the individual mandate was not “a valid exercise of Congress’s power to regulate interstate commerce.” Yet, “a majority held that the mandate represented a lawful exercise of Congress’s taxing power,” in part, because the penalty raised revenue.28 But in 2017, the penalty was reduced to zero. It no longer raises revenue. Alito notes that “the Court is presented with the daunting problem of a ‘tax’ that does not tax,” and asked rhetorically, “[c]an the taxing power, which saved the day in the first episode, sustain such a curious creature?” No, he answered. “[T]he slender reed that supported the decision in NFIB was seemingly cut down” by Congress.29 The penalty “cannot raise a cent” and the saving construction no longer holds.

24

Ibid. Ibid. 26 Ibid. 27 Ibid. 28 Ibid. 29 Ibid. 25

at at at at at at

14 (emphasis added). 13. 21. 22. 23. 2.

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The taxing power argument that garnered five votes in 2012 “is no longer defensible.”30 The Court should enjoin the ACA provisions that burden the state plaintiffs. Finally, the dissenters turned to the remedy. Justice Alito concludes that “those provisions are inextricably linked to the individual mandate” and “the States are entitled to a judgment providing that they are not obligated to comply with the ACA provisions that burden them.”31 This position represented something of a retreat for Justice Alito. In NFIB, his joint dissent with Justices Kennedy, Scalia, and Thomas would have declared the entire ACA unconstitutional.32 But in Texas, the remedy was limited to the provisions that injured the plaintiffs. Alito did not explain, with any precision, what those injurious provisions were.

Justice Thomas’ Concurrence Justice Thomas, usually regarded as the Court’s most conservative Justice, joined Justice Breyer’s majority opinion. But, his join seemed somewhat begrudging. He regretted that in the past, the Court “has gone to great lengths to rescue the Act from its own text.” But in this case, the plaintiffs “have not identified any unlawful action that has injured them.” Here, the Court was not “once again rescuing the Act,” but instead was simply “adjudicating the particular claims the plaintiffs chose to bring.”33 Justice Thomas found that none of the parties had standing. The private plaintiffs “allege only harm caused by the bare existence of an unlawful statute that does not impose any obligations or consequences.” And the state plaintiffs “claim harms flowing from enforcement of certain parts of the Act, [but] they attack only the lawfulness of a different provision.” In other words, the states are not injured by the individual

30

Ibid. at 25. Ibid. at 27. 32 NFIB v. Sebelius, 567 U.S. 519 (2012) joint dissent at 696. 33 California v. Texas Thomas concurrence at 1. 31

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mandate. Thomas wrote that “[n]one of these theories trace a clear connection between an injury and unlawful conduct.”34 Justice Thomas also addressed standing-through-inseverability. He acknowledged that “[t]his theory offers a connection between harm and unlawful conduct.” And this theory “might well support standing in some circumstances.”35 But Thomas would not address standingthrough-inseverability in this case. First, he agreed that the issue was forfeited. Most damning, Thomas cast doubt on the validity of the theory. He wrote that “standing-through-inseverability—assuming it is a legitimate theory of standing—is fundamentally a merits-like exercise.”36 In the end, Justice Thomas cast the seventh vote against the plaintiffs.

Conclusion Justice Alito seemed embittered by the majority opinion. He lamented that “once again the Court has found a way to protect the ACA.”37 This third challenge to the ACA is over, but a fresh round of litigation is inevitable. As Alito observed, “many other parties will have standing to bring such a claim based on a variety of the ACA’s substantive provisions that are arguably inseverable from the mandate.” He predicted that “[o]ur Affordable Care Act epic may go on.”38 Soon enough, the trilogy will become a quadrilogy. You can check out of the Hotel California v. Texas any time you like. But I can never leave.

34

Ibid. Ibid. 36 Ibid. 37 Alito 38 Ibid.

at 4.

35

note 2. dissent at 2. at 22 note 9.

5 Cedar Point Nursery v. Hassid on Union Organizing and Property Rights Under the Fifth Amendment Ronald Kahn and Gerard D’Emilio

The Fifth Amendment’s Takings Clause jurisprudence rarely garners front-page headlines. But this term, plugged-in Court watchers had one such case on their radar: Cedar Point Nursery v. Hassid . Originating in California, the case posed a seemingly simple question: if the state forces you to accommodate unwanted third parties on your private property, even for a short time, are you entitled to compensation? For the six Justices forming the Court’s majority, the answer was as simple as the question: Yes, you are entitled to compensation for the accommodation, even if temporary and even if limited in scope. But for the three Justices in dissent, along with numerous commentators, the majority’s straightforward conclusion not only marked a shift from decades of prior precedent, but also threatened an untold number of health and safety regulations. The majority insisted this was not true, that most regulations R. Kahn (B) · G. D’Emilio Department of Politics, Oberlin College, Oberlin, OH, USA e-mail: [email protected]

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would remain viable, and that the California regulation at issue presented a clear-cut case of uncompensated appropriation by the government. Whether Cedar Point jeopardizes our modern landscape of regulatory and administrative oversight remains to be seen. But for now, the case offers a relatively succinct principle: if the government requires you to open your doors to private parties you would otherwise exclude, you can likely recover some money, even if only a small amount.

Chief Justice Roberts’ Majority Opinion Cedar Point involved the decades-old California Agriculture Labor Relations Act of 1975—a landmark legislative achievement spearheaded by the activism of Cesar Chavez and the United Farm Workers. The law granted the state’s agricultural workers a right to self-organize, while at the same time, barring employers from interfering with that right. To effectuate this right, California’s Agricultural Labor Relations Board promulgated the regulation at issue, specifying that workers’ rights included “the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.”1 The regulation allowed unions to “take access” of an employer’s property for up to four different, thirtyday periods in a calendar year. During these periods, a small number of organizers, after giving prior notice to the employer, could enter the premises for fixed periods before, during, and after work. If an employer interfered with the organizers, it could face sanctions for “unfair labor practices.” After tangling with United Farm Workers organizers, two agricultural employers—Cedar Point Nursery and Fowler Packing Company— filed suit in federal court, alleging that the regulation’s right of access, for which the employers received no compensation, amounted to an unconstitutional, per se taking of their property rights under the Fifth Amendment. After the district court dismissed their case, finding they 1 Cedar Point decision, pages 1–2 (quoting California Code of Regulations, Title 8, § 20,900[e]).

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had no Fifth Amendment claim, and the Ninth Circuit affirmed, the employers asked the Supreme Court to weigh in with the final word. And weigh in the Court did. In a six-member majority opinion authored by Chief Justice Roberts, the Court found that the right of access does, indeed, constitute a per se taking for which the employers are entitled to compensation. Under the Fifth Amendment’s Takings Clause, private property shall not be taken for public use without just compensation. Noting the preeminent role private property rights played in the Founders’ conceptualization of individual freedom and autonomy, the majority highlights the Takings Clause’s “clear and categorical obligation”: if the government is going to seize or condemn or otherwise appropriate a private person’s property, it must provide just compensation. In other words, “[t]he government must pay for what it takes.”2 Crucially, the Takings Clause’s obligation is not limited to situations where private property is physically appropriated; rather, the obligation extends to scenarios where the government regulates, and thereby restricts, a private party’s use of her own property. But in such userestriction scenarios, the takings analysis shifts: instead of a “simple, per se, rule,” the court applies a “flexible test” to determine if the regulation is so burdensome as to effectuate a taking.3 This test, developed in the Court’s 1978 Penn Central Transportation Co. v. New York City decision, balances a regulation’s character, economic impact, and interference with reasonable expectations to determine if it goes so far as to constitute a regulatory taking. However, the Court in Cedar Point emphasizes that the character of the government’s action—i.e., whether it is regulatory in nature—is not the critical consideration in deciding which analytical framework to employ. Rather, the central question “is whether the government has physically taken property for itself or someone else—by whatever means—or has instead restricted a property owner’s ability to

2 3

Ibid. at 5. Ibid. at 6.

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use his own property.” If the latter, Penn Central’s factor-balancing framework guides the Court—but if the former, “a per se taking has occurred, and Penn Central has no place.”4 Acknowledging this distinction, the majority swiftly concludes that California’s regulation appropriates a right to invade the employers’ land and, therefore, is a per se taking requiring just compensation. Unlike a restriction on the employers’ use of their property, the regulation “appropriates for the enjoyment of third parties the owners’ right to exclude”—an integral part of property ownership—by empowering union organizers to occupy the premises for nearly a third of each year, up to three hours each day.5 To bolster this conclusion, the majority points to several cases in which the Court found governmentapproved physical invasions of private property to be takings requiring just compensation. For instance, the Court held in United States v. Causby (1946) that farmers were entitled to compensation for the government’s frequent use of their airspace for flyovers. Likewise, in Loretto v. Teleprompter Manhattan CATV Corp. (1982), the Court found a taking where New York permitted cable companies to install equipment on private property, as such installations constitute a permanent physical occupation, irrespective of their public benefit or minimal economic burden on landlords. And in Horne v. Department of Agriculture (2013), the Court observed that a regulation requiring raisin growers to set aside a percentage of their crop was a physical, per se taking, as owners do not expect the government to simply seize or occupy their property. These cases, in the majority’s eyes, clearly establish that California’s regulation, which appropriates an access right to the employers’ premises in favor of union organizers, constitutes a per se taking for which the employers are entitled to compensation. The majority disagrees with its dissenting colleagues’ position that the access right cannot constitute a per se taking merely because it does not last year-round. The appropriation’s duration, just like its scope, bears not on whether it is an appropriation in the first place, but on the amount of compensation owed for it. Furthermore, precedent establishes 4 5

Ibid. at 7. Ibid.

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that intermittent physical occupations qualify as takings just the same as continuous occupations; what ultimately matters is whether the government has taken an interest in property, not whether the right is exercised only occasionally. The majority also distinguishes caselaw that, according to the dissenters, recognizes that access regulations do not qualify as per se takings—cases like PruneYard Shopping Center v. Robins (1980), where the Court held that a privately owned shopping center had suffered no compensable taking under a state law protecting the right to engage in leafletting on the premises. The critical difference, noted by the majority, was that the shopping center in Pruneyard was held open to the public, whereas the employers in Cedar Point did not operate businesses akin to public accommodations. More broadly, the majority rejects what it views as the dissent’s treatment of the right to exclude as an “empty formality, subject to modification at the government’s pleasure”; as well, the majority is not convinced that the “complexities of modern society” warrant application of a balancing approach in lieu of a per se rule. Quite the contrary, says the majority—now, more than ever, it is important to safeguard “the basic property rights that help preserve individual liberty, as the Founders explained.”6 Finally, and importantly, the majority dismisses the dissent’s “unfounded” fear that “treating the access regulation as a per se physical taking will endanger a host of state and federal government activities involving entry onto private property.”7 The majority insists that the government may still enter private property without effecting a compensable taking if it does so pursuant to long-standing background restrictions on ownership (like the requirement that property owners abate nuisances) or common law privileges (like public or private necessity). The majority stresses that the government may still require landowners to allow occasional physical access in exchange for a benefit, and, therefore, “government health and safety inspection regimes will generally not constitute takings.”8

6

Ibid. at 16. Ibid. at 17. 8 Ibid. at 19 (emphasis added). 7

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Justice Kavanaugh’s Concurrence In a brief concurrence, Justice Kavanaugh highlights another way in which the controversy could be framed: through the Court’s 1956 decision in NLRB v. Babcock & Wilcox Co. This case involved a challenge brought by employers to the National Labor Relations Board’s position that union organizers could enter private property to communicate with employees. The Court observed that the Constitution affords property owners the right to exclude, and, thus, union organizers could access property only under limited circumstances. In Justice Kavanaugh’s eyes, the case affirmed property owners’ right to exclude under the Fifth Amendment, subject to necessity exceptions like those the majority outlines. Justice Kavanaugh also notes that the California Supreme Court found the regulation to be constitutional in 1976 by only a 4-to-3 vote. But Justice Kavanaugh thinks the three California dissenters were the ones who got it right—i.e., that the California access right violated Babcock’s rule and, therefore, violated the owners’ property rights.

Justice Breyer’s Dissent Justice Breyer authors the dissent, joined by Justices Kagan and Sotomayor. Front and center is the concern that the majority’s logic “threatens to make many ordinary forms of regulation unusually complex or impractical.”9 The dissent proposes that, because the California regulation merely allows union organizers to temporarily invade a portion of the owners’ property, it does no more than limit, rather than appropriate, the owners’ exclusionary rights. And as the dissenters see it, the Court’s precedents distinguish between regulations that provide permanent access rights and regulations that provide temporary access rights. Crucially, this second type of regulation only constitutes a taking if it goes too far, as determined by Penn Central’s factor-balancing framework. Indeed, Justice Breyer highlights a passage from PruneYard in which the

9

Cedar Point Breyer dissent at 2.

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Court described access right virtually identical to the regulation in Cedar Point —yet concluded it did not constitute a per se taking.10 After surveying precedent, the dissent turns to policy—and to the prospective impact of the majority’s holding. The dissent notes that the “persistence of the permanent/temporary distinction” in takings jurisprudence—where permanent invasions are typically treated as per se takings, while temporary invasions are examined under Penn Central —makes sense in light of our ever-evolving society.11 Modern community life requires various regulations, and various reasons for temporary entry onto property, says Justice Breyer, and transforming all such temporary access rights into per se takings would be inefficient and frustrating. The dissent is particularly concerned that the majority’s broad holding could jeopardize a host of food and safety regulations we often take for granted. Nor is the dissent impressed with the majority’s closing effort to cabin its holding by describing circumstances where government regulations will not constitute per se takings. Not only does the dissent find many of these limitations too vague to matter in specific cases; more significantly, the dissent chides the majority for discounting the value of “[l]abor peace (brought about through union organizing)” as a benefit the government can pursue through a limited regulatory scheme like California’s.12 That is, California clearly believed unionization among agricultural workers brings benefits that reach beyond the workplace, like “community health,” “educational benefits,” and “higher standards of living,” in addition to labor peace.13 Why the landowners’ rights outweigh such benefits in the union context versus, say, the environmental or food safety context is unanswered by the majority, according to the dissenters. Lastly, the dissent addresses remedies, a topic left unaddressed by the majority. As Justice Breyer points out, finding a taking is one thing— but the real question, after such a finding, is the amount of “just compensation.” The dissent notes that the owners in Cedar Point do 10

Ibid. at 7. Ibid. at 11. 12 Ibid. at 15. 13 Ibid. 11

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not seek monetary compensation, but rather injunctive and declaratory relief. Justice Breyer suggests that the district court, on remand, should be permitted to foreclose such remedies by calculating and awarding monetary compensation.

So What? The downstream effects of this ruling are, at best, unclear. As Justice Breyer highlights in concluding his dissent, the district court might resolve the landowners’ concerns by simply setting an amount of “just compensation” and ordering the state to pay. After all, the majority merely stated that the owners had a Fifth Amendment claim—one that could, likely, be satisfied through some amount of monetary relief (and perhaps a quite small amount at that). That said, the majority does not comment on remedies, and the dissent notes that the owners sought not money, but an injunction—a bar on union organizing on their premises. It remains to be seen whether a court, or the Court, believes the owners’ claim is remedied only through such extraordinary relief. More broadly, the ruling’s impact on other laws is the biggest outstanding question. Some commentators, in the wake of the decision, argued that Cedar Point marked a jurisprudential shift by the majority of Justices, whereas others viewed the case as another in a series they characterize as anti-union.14 If the case’s holding remains confined to the unionization context, then it might not constitute a substantial shift. But if the Court follows Cedar Point in assessing regulations in the future, then the financial burden on states pursuing run-of-the-mill “general welfare” regimes could escalate quickly, with governmental actors consequently pursuing a far less robust regulatory agenda. As both the majority and dissent observe, this area of the law is not always clean or clear. But Cedar Point appears to recognize a rather broad, bright-line rule 14 Compare, e.g., Josh Blackman, “Cedar Point Nursery v. Hassid Quietly Rewrote Four Decades of Takings Clause Doctrine,” The Volokh Conspiracy, Reason 25 June 2021, with, e.g., Ian Millhiser, “The Supreme Court Just Handed Down Disastrous News for Unions,” Vox 23 June 2021, and Mark Joseph Stern, “The Supreme Court’s Lasting Union-Busting Decision Goes Far Beyond California Farmworkers,” Slate 23 June 2021.

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in an area the dissent insists is more amenable to a flexible framework of interest balancing—both as a matter of precedent and as a matter of prudence. Time will tell if the case is confined to its specific facts or marks a new turn in the Court’s property law jurisprudence.

6 Collins v. Yellen and US v. Arthrex on the Separation of Powers Andrea Scoseria Katz

The hiring and firing of patent judges and directors of federal agencies: it’s somewhat less than gripping stuff. But this year, these two seemingly mundane controversies provided a chance for the Roberts Court to build on a theory of a core concept of the U.S. Constitution—the separation of powers—gradually being unveiled by the Court over the last few years. In June 2021, the Supreme Court issued a pair of decisions in Collins v. Yellen, concerning the removal of the heads of federal agencies, and U.S. v. Arthrex, on the appointment of administrative patent judges, or APJs. Coming down within a day of each other, the two cases collectively reinforced a strict interpretation of the separation of powers between the branches of the federal government.

A. S. Katz (B) School of Law, Washington University, St. Louis, MO, USA e-mail: [email protected]

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Collins and Arthrex also display two other strands of contemporary American conservative thought: a distrust of independent public administration and solicitude for presidential leadership. In a string of recent decisions, the Roberts Court has hammered out a vision of American bureaucracy under the Constitution which mandates strict responsibility of federal officials, as “executive” agents, to one actor: the President. Known as the theory of the unitary executive, the theory mandates a vision of the separation of powers in which federal agencies are executive in nature, and in which the values of unity, hierarchy, and responsiveness take precedence over bureaucratic expertise or congressional oversight.1 In essence, the unitary executive theory argues that all political actors within the Executive Branch—the Departments of Defense or Commerce, the FBI, maybe even the Department of Justice—work for the President and must be accountable to him or her; control or oversight of their actions by the people is accomplished through presidential elections, but is not one of the powers of the Congress. Critics of this theory of the separation of powers charge that it is an oversimplification nowhere mandated by the Constitution, and which ignores America’s past successes with an independent civil service, not to mention Congress’ power to structure the executive branch as it sees fit.2 Yet under the leadership of Chief Justice Roberts, it is fast becoming conventional dogma.

1 Major expositors of unitary executive theory are Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (New Haven: Yale University Press, 2008), and Steven G. Calabresi and Saikrishna Prakash, “The President’s Power to Execute the Laws,” The Yale Law Journal 104 (1994): 541–665. 2 See, for instance, Vicki Divoll, “Eight Things I Hate About Unitary Executive Theory,” Vermont Law Review 38 (2013): 147–154, and Seila Law v. CFPB, 591 U.S. __ (2020) Kagan dissent at 4, 23: “The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase. … [But no] mathematical formula governs institutional design; trade-offs are endemic to the enterprise. But that is precisely why the issue is one for the political branches to debate—and then debate again as times change. And it’s why courts should stay (mostly) out of the way. Rather than impose rigid rules like the majority’s, they should let Congress and the President figure out what blend of independence and political control will best enable an agency to perform its intended functions.” See the discussion in SCOTUS 2020 Ch 13 “Seila Law v. Consumer Finance Protection Bureau on Separation of Powers” by Howard Schweber.

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U.S. v. Arthrex This case arose out of a patent dispute between Arthrex, Inc., a Floridabased orthopedic device company, and two other companies that challenged Arthrex’s patent. Three administrative patent judges (APJs) on the Patent Trial and Appeal Board (PTAB) had ruled against Arthrex, determining that its claims were unpatentable. In response, Arthrex filed a federal lawsuit alleging that the PTAB’s structure violated the “Appointments Clause” of the Constitution. That clause provides that what we now call “principal officers” of the United States must be appointed by the President with the Senate’s approval, but that “inferior officers” may be appointed by agency heads, if Congress so decides.3 Arthrex argued that APJs, then and still appointed by the Secretary of Commerce, were principal officers because they exercised unreviewable authority, since PTAB decisions could not be overturned by the U.S. Patent and Trademark Office (PTO), and because they could not be fired without cause. The U.S. government argued on the other side that APJs were inferior officers because they were appointed for a fixed term and exercised a limited power to adjudicate individual claims in a fashion no different from countless other administrative judges in policy realms like immigration or Social Security. By a 5-4 majority, the Supreme Court found the PTAB’s structure unconstitutional. For APJs to wield the power to issue unreviewable final decisions in patent hearings, the Court reasoned, was incompatible with their appointment by the Secretary of Commerce to an “inferior” office. By a 7-2 majority, the Court held that the remedy was to make APJs’ decisions reviewable, by severing the part of the patent reform law that barred the director of the PTO from reviewing APJ decisions.4 The 3

The clause reads, in relevant part: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.” U.S. Const. Art. II, § 2, Cl. 2. 4 The Court of Appeals for the Federal Circuit had arrived at the conclusion that APJs were principal officers but had held that the remedy was to make APJs fireable, as opposed to making their decisions reviewable. U.S. v. Arthrex, Inc., 941 F. 3d 1320 (2019) at 1335.

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Court remanded the case for further proceedings to determine whether the acting PTO director felt it necessary to overturn the Board’s decision in Arthrex’s particular case.5 Writing for a divided Court, Chief Justice Roberts held that the patent adjudication scheme conflicted with the design of the Appointments Clause because to allow an officer of the United States to wield executive power without effective oversight from the President would undermine the principle of political accountability. For Roberts, the fact that APJs could not be fired by the Secretary of Commerce and exercised unreviewable decision-making power made the scheme unconstitutional, a conclusion he defended as supported by historical practice. Constitutional structure required a different rule: “Only an officer properly appointed to a principal office may issue a final decision binding the Executive Branch.”6 In other words, an inferior officer exercising executive power must either be fireable by a principal officer, or their judgment must be capable of being overridden. When it came to the remedy for the perceived constitutional violation, the conservative majority splintered.7 At the same time, although the three liberal Justices disagreed that APJs were principal officers, they did agree to go along with the result, thereby providing the Chief Justice with seven votes for severing the part of the law that forbade the PTO director from reviewing APJ decisions.8 Breaking from the majority, Justice Gorsuch disagreed that the Constitution gave the Court such power to sever a portion of the statute in order to creatively fashion a 5

The statute that established this system of patent adjudication was the Leahy-Smith America Invents Act of 2011. For more on the law, see the Patent and Trademark Office website’s discussion of the statute and its implementation, available at www.uspto.gov/patents/laws/leahysmith-america-invents-act-implementation. 6 U.S. v. Arthrex decision, page 19. 7 Part III of Roberts’ opinion was joined by Justices Alito, Kavanaugh, and Coney Barrett, but not Justice Gorsuch. 8 Arthrex Breyer opinion at 7: “I do not agree with the Court’s basic constitutional determination. For purposes of determining a remedy, however, I recognize that a majority of the Court has reached a contrary conclusion. … Under the Court’s new test, the current statutory scheme is defective only because the APJ’s decisions are not reviewable by the Director alone. The Court’s remedy addresses that specific problem, and for that reason I agree with its remedial holding.” It is possible to speculate that the liberal Justices agreed to Chief Justice Roberts’ preferred remedy because it avoided the more drastic solutions of making APJs removable or requiring that the President, with the Senate’s approval, appoint them all.

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remedy. Instead, he argued in a concurring opinion, the Court should content itself with simply refusing to enforce the unconstitutional law in the particular case before it.9 Justice Breyer’s concurring opinion for a three-Justice liberal bloc with Justice Sotomayor and Justice Kagan argued that APJs were inferior officers by virtue of their position in the PTO structure (with two levels of supervisors above them) and in light of the fact that the director of the PTO already exercised considerable control over their work. More generally, Breyer argued that when it came to separation of powers cases, instead of applying a rigid “formalist, judicial-rules-based approach,” the court should take a functional, case-by-case approach, looking at why Congress made the policy choices it did and granting significant deference to Congress’ judgment.10 Meanwhile, Justice Clarence Thomas, often isolated at the Court’s farright wing, wrote a dissenting opinion disagreeing with nearly all parts of the majority opinion and joined, interestingly, by the three liberal Justices. Thomas agreed with the liberals that APJs were inferior officers because they were outranked, and adequately supervised by, the director of the PTO and the Secretary of Commerce. For Thomas, both the majority’s holding and remedy (changing the review powers of the director of the PTO) smacked of judicial activism. “[F]or the very first time,” Thomas wrote, the Court had decided that “Congress violated the Constitution by vesting the appointment of a federal officer in the head of a department.”11 In Thomas’ view, neither constitutional text, nor history, nor judicial precedent, required this result—nor permitted the Court such power to rewrite the law.

9

Arthrex Gorsuch opinion at 4-6. Gorsuch also wrote to make the separate point that to allow an administrative agency the power “to withdraw a vested property right” of an individual—as in patent hearings—was unconstitutional. Only a court could do that (Ibid. at 1). Although no other Justice subscribed to this argument, its implications on the administrative state would be far-reaching. 10 Arthrex Breyer opinion at 3. 11 Arthrex Thomas dissent at 1.

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Collins v. Yellen Slightly different questions were at issue—albeit with similar stakes, judicial reasoning, and result—in Collins v. Yellen, a case involving another independent federal agency.12 In 2008, at the height of the financial crisis, with government-sponsored mortgage loan companies Fannie Mae and Freddie Mac struggling to stay afloat, Congress passed the Home and Economic Recovery Act (HERA), creating a new independent agency to take over Freddie Mac and Fannie Mae’s troubled assets.13 Under the law, the Federal Housing Finance Agency (FHFA) would have a single director, appointed by the President for a five-year term and protected from firing except for cause. In 2012, the U.S. Treasury agreed to a deal with the FHFA (a “dividend agreement”) whose effect was to change how Fannie Mae and Freddie Mac shareholders would be compensated when the companies became profitable.14 The shareholders sued, arguing that the agreement was beyond the FHFA’s powers and that, in any case, the structure of the agency itself unconstitutionally diluted the President’s supervisory authority insofar as the FHFA director exercised significant authority while being protected from firing by the President. Specifically, they argued, the scheme violated Article II of the U.S. Constitution, which, in specifying that the President “shall take care that the laws are faithfully executed,” ostensibly requires that any officers holding significant policymaking authority be directly responsible to—that is, fireable by—the President.15 Did FHFA’s structure violate the separation of powers? And if so, was the Court required to set aside the 2012 dividend agreement? The Court, 7-2, answered “Yes” to the first question, but a unanimous “No” to the 12 The original case was called Collins v. Mnuchin and became Collins v. Yellen when Janet Yellen became Secretary of the Treasury under the administration of President Joe Biden. Collins was consolidated with a separate case, Yellen v. Collins, and argued on December 9, 2020. 13 Public Law 110-289 (30 July 2008). “Fannie Mae” is the nickname for the Federal National Mortgage Association (FNMA), which was founded in 1938. Similarly, the official name of Freddie Mac is the Federal Home Loan Mortgage Corporation (FHLMC), created in 1970 to expand the market for mortgage loans. 14 The 2012 agreement provided that shareholders’ economic interests in the mortgage companies would be transferred to the federal government. 15 U.S. Const. Art. II, §3.

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second, dismissing the shareholders’ challenge to the dividend agreement in light of the broad grant of authority the law had given the FHFA to act in Fannie Mae and Freddie Mac’s “best interests” or in its own.16 The Court did , however, find that the FHFA structure impermissibly intruded on the Executive removal power, a conclusion with even more profound significance. Leaving no doubts as to the vitality of unitary executive theory on the bench, Justice Alito’s opinion described this outcome as “straightforward,” stating, “[T]he Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.”17 Headed by a single director unremovable by the President, the FHFA fell afoul of the separation of powers. Only two Justices dissented from this holding, Justice Breyer and Justice Sotomayor, who warned, “The Court has proved far too eager in recent years to insert itself into questions of agency structure best left to Congress.”18

Implications The significance of these two cases is manifold. In each, the Court found a statutory scheme mandated by Congress for structuring federal agencies—APJ decisional independence in Arthrex; protection from firing for the FHFA director in Collins—unconstitutional. It is worth noting how rare this judicial move was before the Roberts era. In 1926, the Supreme Court issued Myers, an opinion striking down a legislative scheme by Congress preventing the President from unilaterally firing federal postmasters.19 Myers was an unusual case, both because it was the first time the Court declared a statute unconstitutional on the grounds that it 16 The Court left open the possibility that the FHFA’s unconstitutional structure had nevertheless inflicted harm on the shareholders in this particular case, which would give the shareholders a right to challenge the dividend agreement in future court proceedings. It remanded the case for further proceedings to determine whether this had in fact occurred. 17 Collins v. Yellen decision at 26 and 31. 18 Collins Sotomayor dissent at 13. 19 Myers v. United States, 272 U.S. 52 (1926).

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violated some undefined principle of “structure,” and also because it was an opinion written almost singlehandedly by the only Supreme Court Justice ever to have been President himself, William Howard Taft. For years, Myers was mostly an afterthought, with decision after decision upholding congressional arrangements that protected administrative independence.20 That changed in or around 2010, when a new Chief Justice helped usher the unitary executive theory into the mainstream, cultivating majorities ready to strike down statutes that insulated bureaucrats from presidential control: Free Enterprise Fund v. PCAOB, Lucia v. SEC , Seila Law v. CFPB, and now, Arthrex and Collins.21 One interesting thing about all of these cases is that they are the result of creative litigation by private parties seeking to undo unwanted financial regulation of which they were targets. This trend is likely to continue in the future. As Myers shows, the main argument these plaintiffs made—that Article II mandates hierarchical control by the President, even to the exclusion of Congress’ power to make arrangements “necessary and proper” for carrying out the law—is not new. But it has been given new life by the Roberts Court. Americans have long harbored complicated (and not always reconcilable) attitudes toward public administration, ranging from distrust of “unelected bureaucrats” to pride in technical competence, whether displayed by the global reach of America’s military, the steady guidance of the Federal Reserve System, or epidemiologists’ handling of the COVID-19 crisis. These attitudes reflect the enduring tension between the values of responsiveness—bureaucracy as the faithful instrument of elected politicians, who are in turn the faithful instrument of democracy—and depth—bureaucracy as a layer of experts durably building 20

See Seila Law (2020) Kagan dissent at 17: “[W]ithin a decade the Court abandoned [the] view [adopted in Myers]” of an exclusive executive removal power. And see, upholding such statutory arrangements, Humphrey’s Executor v. U.S., 295 U.S. 602 (1935), Wiener v. United States, 357 U.S. 349 (1958), Morrison v. Olson, 487 U.S. 654 (1988), Mistretta v. United States, 488 U.S. 361 (1989), and Edmond v. United States, 520 U.S. 651 (1997). 21 See, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010), Arlington v. FCC , 569 U.S. 290 (2013), Lucia v. SEC , 585 U.S. ___ (2018), Seila Law (2020). In his dissent in Arthrex, Justice Breyer describes the decision as “one part of a larger shift in our separation-of-powers jurisprudence” (Breyer opinion at 5).

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skills over years.22 The Supreme Court kept a careful distance from this question for years, allowing the struggle to play out in the political arena. No longer. The Court has placed a heavy hand on the scale: judicial review over deference to Congress, presidentialism over congressional control, and responsiveness over expertise. Perhaps no episode better demonstrates the limits and pitfalls of responsiveness than the moment when Donald Trump famously overrode federal meteorologists’ predictions of the path of Hurricane Dorian in 2019 by taking an official map showing the hurricane’s path and drawing over it in crude black Sharpie marker. The Trump administration itself may have exemplified a President exacting loyalty over competence, but it was hardly unique in that regard. Critics of the unitary executive theory fear it allows this outcome, while its supporters in the Court’s majority believe it is demanded by a strict interpretation of the core constitutional principle of separation of powers.

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On the tension between these two ideals cutting through public administration, see Stephen Skowronek, John Dearborn, and Desmond King, Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive (New York: OUP, 2021).

7 Fulton v. City of Philadelphia on Religious Liberty and LGBT Equality Meg Penrose

Should businesses be able to rely on religious liberty to avoid antidiscrimination laws? Certain faith traditions do not recognize, or support, same-sex marriage. Individuals and business owners within these faiths often struggle when faced with state laws and city ordinances that prohibit discrimination based on sexual orientation. Do you follow the law or your faith? Or does the Constitution protect you from making this choice? The Supreme Court’s highly anticipated decision in Fulton v. City of Philadelphia had a feeling of déjà vu all over again. Fulton provided the Court with another opportunity to resolve the delicate balance between religious liberty rights and non-discrimination laws that require businesses to provide services to same-sex couples. As in previous cases, the M. Penrose (B) Texas A&M University School of Law, Fort Worth, TX, USA e-mail: [email protected]

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Court did not resolve the core dispute, while siding with the religious plaintiffs on more specific grounds. Fulton involved First Amendment challenges to Philadelphia’s decision to freeze foster care referrals to Catholic Social Services (CSS), a religious charity that has provided adoption and foster care to youth for many decades. The City, upon learning from a newspaper reporter that CSS would not certify same-sex couples as foster parents, provided CSS a choice: follow the City’s non-discrimination policies or lose your foster care contract. It did not matter that CSS had not turned away any same-sex married couple. To prevent a violation of its non-discrimination policy, the City preemptively froze referrals to CSS and, ultimately, refused to renew CSS’s contract. CSS and three foster mothers sued Philadelphia to prevent the City from removing the organization from its foster care services.

The Parties and Their Claims Sharonell Fulton, the lead plaintiff, had served as a Philadelphia foster parent to more than 40 children over 25 years. She states that her faith led her to serve as a foster parent. A single mother and racial minority, Fulton claimed the City discriminated against her due to her religious beliefs. While Ms. Fulton was the lead plaintiff, the Supreme Court’s opinion focuses almost exclusively on the rights and actions of CSS. Both Fulton and CSS raised First Amendment challenges to the City’s cancellation of CSS’s foster care contract. CSS believes marriage is a sacred bond between a man and a woman. Due to this belief, CSS informed the City it will not certify same-sex married couples as foster parents. Despite same-sex marriage being legal in the United States and Pennsylvania, CSS does not recognize these marriages. CSS also refuses to certify unmarried couples, gay or straight. CSS will, however, certify gay and lesbian individuals as foster parents. But its religious beliefs will not allow CSS to recognize same-sex marriage partners as foster parents because, in doing so, CSS believes it would be endorsing the relationships. CSS claims it should be exempt from the

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City’s non-discrimination law based on its rights to religious liberty and free speech. The City, in response, contends it is bound to follow nondiscrimination laws. These laws mandate the City ensure services are not withheld from minority groups, including gays and lesbians. The City believes it can refuse to do business with any entity that will not honor the non-discrimination laws. The City believes that enforcing its nondiscrimination policies treats CSS with neutrality and is simply imposing a generally applicable law. It further argues that its foster care program is required to follow the state’s public accommodations law—a law that seeks to protect the access of all individuals to receive goods and services. To fully understand Fulton, you must go back to 2015 when the Supreme Court held that same-sex couples had a legal right to marry. That case, Obergefell v. Hodges, set the stage for what has become a constant struggle—what rights do business owners have to avoid antidiscrimination laws when their religious beliefs come into collision with serving same-sex couples?1 Same-sex couples have a legal right to marry. Once married, these individuals receive all the rights and benefits of marriage. They can file joint taxes, be on each other’s insurance policies, and have the statutory right to inherit property. The law provides marital protection to these individuals just like it provides marital protection to opposite-sex couples. Despite its legal status, not all individuals recognize same-sex marriages. The law is trying to balance these sincere religious objections with the rights of same-sex couples. Some individuals claiming faith-based protections do not want to provide any service suggesting acceptance or approval of same-sex marriage. Yet states and cities increasingly provide non-discrimination protection to gays and lesbians. When these two rights conflict, which right prevails? The question comes down to a difficult legal choice between liberty and equality.

1

576 U.S. 644 (2015).

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Generally Applicable and Neutral Laws Do Not Violate Religious Liberty So how do courts go about making such difficult choices? For many years, the Supreme Court has followed an approach that upholds neutral and generally applicable laws that incidentally burden religion. As long as a law does not target religious groups, and treats religious and secular citizens in the same fashion, it does not violate the First Amendment. In an influential case involving unemployment benefits and the religious consumption of peyote—Employment Division v. Smith—the Supreme Court established the “neutral and generally applicable” test for religious liberty cases.2 If a law is neutral in its words and application, there is no concern that the target of that law is religion. If a law applies to everyone, it is unlikely that religious beliefs or religious groups were chosen for discrimination. Generally applicable rules are required to protect health, distribute social benefits, curtail illegal drug use, and maintain order in society. The First Amendment states that “Congress shall make no law... prohibiting the free exercise” of religion. Even though the words speak only to Congress, the Fourteenth Amendment changed the way most of the Bill of Rights—the first 10 Amendments to the Constitution— apply. Rights that were initially meant to limit the reach of the federal government now also apply to state governments. The First Amendment protects religious liberty from both state and federal governments. No state, city, or governmental entity can violate a person’s First Amendment rights without consequence. In Fulton, the Supreme Court noted its task was “to decide whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible.”3 The Smith test guided whether the City’s contract, and the choice it imposed on CSS, was neutral and generally applicable. A neutral law is one that does not take a position about religion—either supporting or opposing it. A neutral law governs a nonreligious issue, like whether people qualify for unemployment benefits or 2 3

494 U.S. 872 (1990). Fulton decision page 5.

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whether people can congregate during a pandemic.4 A generally applicable law is one that applies to everyone, without exception. If the law permits certain people or places to be excluded, the law is not generally applicable. The pandemic model is again useful, as certain pandemic regulations permitted individuals to congregate in some locations but not others. A law that allows exceptions for any group is no longer generally applicable. Using the Smith criteria—neutrality and general applicability—courts analyze laws to determine whether incidental burdens placed on religion are constitutional. However, Fulton raised another important interpretive question: should Smith be overruled, expanding religious liberty further? Many legal observers expected the Court to directly answer this question.

The Supreme Court’s Recent Religious Liberty Cases The Supreme Court had its first opportunity to resolve the collision between religious liberty and non-discrimination laws in 2017. A Christian baker living in Colorado refused to bake a wedding cake for a same-sex wedding. Colorado, however, protected same-sex couples against discrimination in receiving goods and services. Public accommodation laws have long ensured racial minorities could receive goods and services, including hotel rooms and restaurant access, without facing discrimination based on race. These laws were not always well received. They resulted in challenges to the U.S. Supreme Court. However, unlike sexual orientation, the public accommodations laws protecting against race discrimination did not implicate legitimate religious liberty questions like those involving same-sex marriage. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court addressed whether a baker’s religious objections to creating a cake for a same-sex wedding exempted him from complying

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See the discussion of the pandemic cases in Chapter 12.

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with non-discrimination laws protecting same-sex couples.5 The Court noted the competing issues involved: (1) protection for the rights and dignity of gays and lesbians facing discrimination in seeking goods and services, and (2) the right of individuals to exercise their fundamental First Amendment freedoms. The Court expressed a balanced view on whose rights should prevail when religious liberty and non-discrimination are in conflict. The Court explained that “society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.... At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”6 The collision between these rights was presented in Masterpiece Cakeshop. It was not resolved. Rather than decide the broader liberty versus equality issue, the Court resolved the case on narrow, fact-specific grounds focused on the state’s appellate process. The Court found the Colorado Commission had displayed hostility toward the baker’s religious beliefs. One Commissioner stated on the record that religion had been used to hurt others, including to justify slavery and the Holocaust. The Court found these comments evidenced hostility toward religion. Further, the Court found disparate treatment toward other bakers who were exempted from providing goods and services to those seeking derogatory messages against same-sex marriage on cakes using religious text. These bakers were relieved from providing cakes due to messages the State deemed hateful and discriminatory. In short, the Court found the Colorado baker had not been treated with neutrality. It found Colorado showed hostility toward the baker’s religious viewpoint while permitting other objectors to receive exemptions. The State did not treat all bakers the same under the nondiscrimination law. The Supreme Court ruled in the baker’s favor. 5 See SCOTUS 2018 Chapter 6, “Masterpiece Cakeshop on Gay Rights Versus Religious Liberty,” by Stephen Engel. 6 Masterpiece decision page 9.

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Religious Liberty Requires a Generally Applicable and Neutral Rule Because the Court left the larger question unanswered in Masterpiece Cakeshop, many people thought, or perhaps even hoped, that Fulton would provide a direct answer to which right is paramount between religious liberty and same-sex marriage equality. The case was billed as one that could fortify or break down religious liberty. The case likewise had the potential to diminish or solidify the rights of same-sex couples exercising their constitutional right to marry. In the battle of rights, many people had expected one side to come out ahead. However, much like the decision in Masterpiece Cakeshop, the Court chose a narrow path. Rather than pronounce one right superior to the other, the Court crafted a solution that protected the rights of both groups. In Fulton, the Court ruled that the City did not follow the standard of only imposing a neutral and generally applicable obligation. Instead, Philadelphia’s contracts permitted exceptions to its nondiscrimination requirement. Those exceptions were to be granted at the sole discretion of the Commissioner. The City protested that while the contractual language permitted exceptions, no exception had ever been granted. Thus, just like CSS had never actually refused to certify a samesex couple, the City had never actually granted an exception. In both instances, the actual behavior did not matter. Both CSS and the City had the power to do what they had not yet done. CSS vowed not to certify a same-sex couple. And Philadelphia granted itself the power to provide exceptions to its non-discrimination policy. The difference is that the City’s behavior ran afoul of the First Amendment. The lower trial and appellate courts ruled in favor of the City. Those courts found that CSS received significant public funds to serve as one of the City’s 30 foster care agencies. Dismissing comments made by the mayoral candidate and the City’s Commissioner that potentially displayed hostility toward CSS’s beliefs, the lower courts found that the requirement in the contract to follow non-discrimination laws was both neutral and generally applicable. The appellate court found the City’s desire to eradicate discrimination was a compelling interest. It further found that CSS could not rely on its sincerely held religious

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beliefs when it voluntarily chose to partner with the City to provide government-funded secular services. “The City stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services.”7 The Supreme Court reversed. In a technically unanimous opinion, the Supreme Court issued a narrow decision that sidestepped the religious liberty question. Chief Justice Roberts wrote the majority opinion. The opinion was remarkable more for what it avoided than what it decided. The Court resolved the controversy by focusing on the contractual language rather than deciding the broader constitutional question presented. Roberts’ majority opinion focused on the case-specific facts in finding the City’s approach was not “generally applicable.” The City’s contract gave the City, at its complete discretion, the authority to grant exceptions to its non-discrimination requirement. In other words, the City could treat some foster care agencies different from other foster care agencies by granting them exceptions. Much like the exemptions granted in Masterpiece Cakeshop, the potential exemptions proved the City’s requirement to abide by the non-discrimination policy was not uniform, or generally applicable. Roberts’ opinion also found that foster care agencies are not public accommodations under non-discrimination laws. Unlike bakeries or florists, foster care certifications are not readily accessible to the public. These certifications are customized and selective in ways that swimming pools, shopping malls, and other places of public accommodation are not. The Court explained that “the one-size-fits-all public accommodations model is a poor match for the foster care system.”8 In other words, the City could not fall back on its non-discrimination law to avoid its contractual shortcomings. Justice Alito drafted a lengthy concurring opinion, joined by Justices Gorsuch and Thomas. While the majority opinion was unwilling to decide more than necessary to resolve the case, Alito’s opinion provided a template for future conflicts that are already in the pipeline. Alito would have reached the constitutional question and overturned Smith. I expect 7 8

Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019) at 165. Fulton decision at 12.

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this concurring opinion will cast a shadow over future conflicts. Until the Supreme Court decides the liberty versus equality issue head-on, we should expect more collisions in the lower courts.

Will Religious Liberty Exempt Businesses from Non-Discrimination Laws? The Supreme Court will have more opportunities to decide Fulton’s unresolved question: when religious liberty rights conflict with nondiscrimination laws, which right prevails? This collision will, at some point, demand a legal answer. Up to now, each case has been resolved on the narrow, case-specific facts presented. The Supreme Court has given mixed signals on how the broader question might be resolved. The Fulton ruling stated clearly that gay and lesbian individuals deserve dignity and recognition of their relationships. The ruling also repeated that neutrality toward religion remains a constitutional requirement. And Alito’s opinion signaled that some Justices are willing to overturn Smith’s formula for resolving religious liberty cases. But striking down the status quo will require some substitute. Will that substitute continue to strike a balance between religious liberty and personal dignity? Only time will tell.

8 Jones v. Mississippi on Life Without Parole for Youth Offenders Jennifer Bowie and Alexis Cobbs

Brett Jones is currently thirty-two years old and has spent more of his life in prison than out. In 2004, 15-year-old Jones stabbed his grandfather eight times during an argument. He was convicted of murder and sentenced to life without parole (LWOP), a mandatory sentence for anyone convicted of murder under Mississippi law. Jones appealed and the Mississippi courts upheld his conviction and sentence, effectively condemning Jones to die in prison. However, while the appeal was working through the Mississippi state courts, the U.S. Supreme Court held in Miller v. Alabama (2012) that for individuals under the age of eighteen, a mandatory LWOP sentence where the sentencer does not take the offender’s age into account violates the Eighth Amendment. The Miller ruling set off a new round of hearings and appeals for the Jones case, eventually reaching the Supreme Court. J. Bowie (B) · A. Cobbs University of Richmond, Richmond, VA, USA e-mail: [email protected]

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Youth, Punishment, and the Eighth Amendment The Court has grappled with the question of sentencing minors, especially those who have committed serious felony offenses. In a series of cases beginning with Roper v. Simmons (2005) and Graham v. Florida (2010), the Court has recognized that children are constitutionally different from adults for sentencing purposes. Both cases underscored that “because juveniles have diminished culpability and greater prospects for reform… they are less deserving of the most severe punishment.”1 Because of this distinction, the Court in Roper ruled that the Eighth Amendment forbids sentencing minors to death. Not long after, the Graham Court prohibited sentencing youth offenders who did not commit a homicide to LWOP. Extending this reasoning in Miller v. Alabama (2012), the Court limited the circumstances under which juveniles can be sentenced to LWOP for homicide offenses and applied this ruling retroactively in Montgomery v. Louisiana (2016). While Miller did not provide a blanket prohibition against LWOP sentencing for minors, the Court required the sentencing judge to separate “between the juvenile offender whose crime reflects unfortunate and transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”2 In other words, the Miller decision requires sentencing judges to consider the juvenile’s age in light of their potential for reform, reserving LWOP sentences for the exceptional situation where the minor is found unreformable. Roper, Graham, Miller, and Montgomery offer three main justifications—centered around developmental and neurological differences— for treating minors differently from adults when sentencing. One, they are less mature than adults. Two, youth are vulnerable to nefarious pressures and are prone to reckless behaviors. Three, the recklessness and immaturity they exhibit subsides as they become adults. For these reasons, the Court held that youth offenders are less culpable and possess greater chances for reform than adults who commit similar offenses. 1 2

Miller v. Alabama 567 U.S. 460 (2012) at 471. Ibid. at 479–480.

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The majority in Miller noted that under mandatory sentencing schemes, a sentencing judge “misses too much” by treating every minor as an adult.3 As the Court explains in Miller, automatically sentencing a youth offender to LWOP: Precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.4

Both Miller and Montgomery suggest the sentencing judge must decide whether the child’s crime, taking into account the youth of the offender, reflects transient immaturity or is a rare instance where the crime reflects irreparable corruption (known as permanent incorrigibility). Only when a judge determines that a youth offender is permanently incorrigible—where reform is impossible—can they sentence a juvenile to a LWOP. Otherwise, mandatory LWOP for youth offenders violates the Eighth Amendment.5

The Jones Case For most of his life, Brett Jones suffered from various mental health issues including depression and psychosis. As a child, he also endured traumatic violence and neglect, along with physical and mental abuse from his parents. Jones was beaten with belts, switches, and a paddle with the word “punisher” carved into it.6 Jones also witnessed physical and mental abuse directed at his mother, including his stepfather knocking her out 3

Ibid. at 477. Ibid. 5 Miller v. Alabama 567 U.S. 460 (2012). 6 Jones v. Mississippi Petitioner Brief. 4

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and breaking her nose. Jones’ stepfather refused to call him by his name, instead calling him various epithets.7 Just a few months before the murder, Jones’ stepfather “grabbed Jones by the neck preparing to beat him with a belt” but Jones fought back, punching his stepfather and splitting his ear.8 Because of this altercation, Jones was kicked out of his home in Florida and moved to Mississippi to live with his grandparents. As a result of the move, Jones abruptly lost access to his antidepressant medications. Approximately three weeks after moving in with his grandparents, Jones and his grandfather got into an argument and began pushing one another. When Jones’ grandfather tried to hit him, Jones grabbed a kitchen knife and stabbed him, breaking the knife. As the fight between the two of them continued, Jones snatched a second knife and stabbed his grandfather another seven times.9 Once Jones realized his grandfather was dead, he attempted CPR. When that did not revive him, Jones sloppily tried to cover up the murder. Later that night, the police tracked down Jones and arrested him for murder. He was eventually convicted, and the judge imposed the state’s mandatory life without parole punishment. The Mississippi Court of Appeals affirmed the conviction and sentence.10 However, while the Jones litigation was working its way through the Mississippi state courts, the U.S. Supreme Court took up the Miller v. Alabama case. Shortly after the Miller ruling, the Mississippi Supreme Court vacated his LWOP sentence and ordered a new sentencing hearing based on the Miller precedent. During the new hearing, the judge resentenced Jones to LWOP without making a factual finding that he was permanently incorrigible. In appealing his case to the Supreme Court, Jones argued that Miller and Montgomery require a separate factual finding (or an on the record explanation) of permanent incorrigibility before sentencing a juvenile to LWOP.

7

Jones Sotomayor dissent, page 18. Ibid. at 18–19. 9 Jones decision, page 2. 10 Jones v. Mississippi 122 So.3d 725 (2011). 8

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The Opinion In a 6-3 decision that fell along ideological lines, the Court affirmed the judgment of the Mississippi Court of Appeals and upheld Jones’ LWOP sentence. Writing for the Court, Justice Brett Kavanaugh rejected Jones’ argument that Miller and Montgomery require a sentencer imposing LWOP to a youth convicted of homicide to either make a separate factual finding or provide an on the record sentencing explanation of permanent incorrigibility. Rather, the Court held that Miller requires that the sentencing judge “consider youth as a mitigating factor when deciding whether to impose a LWOP sentence.”11 In the majority’s view, the sentencing judge fulfilled this requirement in Jones’ case because the precondition under Miller is “only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a life-without-parole sentence.”12 The Court, then, directly takes on the two lines of argument that Jones makes: (1) the separate factual finding argument and (2) the on the record determination of permanent incorrigibility argument. The Court disputes Jones’ contention that Miller and Montgomery require a separate factual finding of permanent incorrigibility before sentencing a juvenile to LWOP. Jones argued that there are other instances where the Court has required a separate factual finding, such as insanity or intellectual disability claims in capital cases, and that permanent incorrigibility determinations should be treated similarly. However, the Court rebuts this claim by suggesting that it would be too difficult for sentencing judges to differentiate between “transient immaturity and irreparable corruption.”13 Instead, the Court argues that Miller likens permanent incorrigibility to mitigating circumstances and how they are considered in capital cases. In such cases, the sentencing judge still has the discretion to determine the weight of mitigating circumstances and need not make any particular factual findings. Similarly, the majority contends that Miller only mandates a certain process—that youth and 11

Jones decision, page 10. Ibid. at 13. 13 Ibid. at 8. 12

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its attendant characteristics are considered—rather than demanding a specific factual finding. Secondly, Jones suggests that the language in Montgomery must have implicitly assumed a separate factual finding of permanent incorrigibility was necessary because Montgomery states that LWOP should be reserved for the instances where reform is deemed to be impossible. In rejecting this argument, the Court’s response is simple: Jones is incorrect because Montgomery says so—“a finding of fact regarding a child’s incorrigibility…is not required.”14 The Court insists that Montgomery was not intended to expand Miller as Jones maintains, but to determine its retroactivity and to clarify its requirements. Thus, as the Court suggests, Miller does not require a finding of permanent incorrigibility, and if the Miller Court had wanted to impose one, they would have done so explicitly. Lastly, Jones argued that Miller and Montgomery intended LWOP sentences for youth to be relatively rare; in order to achieve this goal, a separate factual finding of permanent incorrigibility is essential.15 The Court responded with Miller’s assertion that the discretionary sentencing procedure they described would ensure the rarity of such sentences. The Miller Court’s reliance on data instead of speculation gives weight to this perspective, showing that, when given the choice, sentencers will rarely impose LWOP on juveniles. Thus, neither Miller nor Montgomery require an explicit finding of permanent incorrigibility. After rejecting Jones’ main arguments, the Court turns to his second approach: that a sentencer must at least provide an on the record explanation with an implicit finding of permanent incorrigibility to ensure that youth was fully considered. The Court rejects this argument for four reasons. The first is that an on the record sentencing explanation is not necessary to ensure the consideration of youth. Jones’ argument rests on “the assumption that meaningful daylight exists” between a sentencer’s discretion and actual consideration of youth.16 However, in the cases where the defense makes an argument about the offender’s age, it would 14

Ibid. at 11. Ibid. at 13. 16 Ibid. at 15. 15

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be nearly impossible for it not to be considered as a mitigating factor. The Court acknowledges that there may be discrepancies in the weight that different sentencers would give youth as a mitigating factor, but the critical point is that consideration of the child’s age is unavoidable. Second, an on the record explanation is neither required by nor consistent with Miller. Again, Justice Kavanaugh noted that Miller could have required an implicit on the record finding of permanent incorrigibility had it chosen to do so. Third, this requirement is inconsistent with the precedent set in previous death penalty cases. As Kavanaugh indicates, if the Constitution does not require capital cases to have on the record explanations of mitigating circumstances, it would be “incongruous” to require them in juvenile homicide cases.17 Finally, the Court argues that on the record justifications are not consistent with historical and contemporary sentencing practices. Many states just do not have this requirement, and when they do require reasoning, there are rarely “magic-words” needed for mitigating circumstances.18 The sum of all these factors is conclusive: there is no requirement of an on the record sentencing explanation through Miller or Montgomery and the majority was clearly reluctant to add an additional procedural process in determining incorrigibility for youth offenders. Jones’ argument fails and the judgment of the Mississippi Court of Appeals is affirmed.

The Dissent The dissent, written by Justice Sotomayor, viscerally disagreed with the majority’s interpretation of Miller and Montgomery. Sotomayor asserts that the Court’s decision guts and mischaracterizes both cases by reducing them to a discretionary sentencing procedure where the youth of the offender is merely considered. She writes that the “Court distorts

17 18

Ibid. at 18. Ibid.

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Miller and Montgomery beyond recognition,” representing a break from precedent.19 Sotomayor discusses how Court precedent has repeatedly recognized that children are constitutionally different from adults when it comes to sentencing. She argues that the reasons listed in Roper provide clear support for the proposition that juvenile offenders are less culpable. She points out that the Miller Court emphasized how the penological justifications for LWOP for adults weaken when considering the youthful characteristics of immaturity and the potential for reform. Therefore, as Sotomayor reasons, to impose an LWOP sentence on a child, a sentencer needs to make a judgment of permanent incorrigibility, and “make it correctly.”20 Sotomayor’s argument rests on the idea that implicitly both Miller and Montgomery require a meaningful determination of permanent incorrigibility before sentencing a youth offender to LWOP. Sotomayor rejects the Court’s assumption that a discretionary sentencing procedure is enough to ensure a sentencer will meaningfully consider youth.21 The Court’s opinion, in her view, improperly hinges on Montgomery’s assertion that Miller did not impose a formal factfinding requirement for permanent incorrigibility. According to Sotomayor, the mere consideration of the youth offender’s age is not a replacement for Miller’s prohibition of LWOP sentences for those under eighteen— Miller requires more. Thus, for the dissenting Justices, a sentencing judge must determine whether the juvenile offender awaiting judgment is one “whose crimes reflect transient immaturity or is one of those rare children whose crimes reflect irreparable corruption.”22 Deviation from precedent requires a special justification, something the Court cannot provide because no factor of stare decisis supports overturning Miller and Montgomery. Sotomayor concludes her dissent by underscoring the importance of Jones’ case and the 1500 other youth offenders in the United States who are serving LWOP sentences. She argues that precedent has been 19

Jones Ibid. 21 Ibid. 22 Ibid. 20

Sotomayor dissent at 5. at 4. at 5. at 7.

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clear that the Eighth Amendment’s protection from cruel and unusual punishment has special significance for individuals under eighteen; they should be spared from penalties that afford them no hope of ever seeing the outside of prison walls. She notes that Jones and defendants like him are only requesting the possibility of parole, for the opportunity to show their worthiness of a second chance. Justice Sotomayor reiterates the question at hand in his case (and others): whether a State should have to determine a youth homicide offender permanently incorrigible before condemning them to LWOP. In Sotomayor’s view, the Eighth Amendment demands that the answer to that question must be Yes, while the majority of the Court believes that the Constitution allows state legislatures to decide for themselves.

9 Mahanoy v. B.L. on Off Campus Student Speech Katy Harriger

The Internet and the proliferation of social media platforms have fundamentally altered our lives, whether it be politics, social relationships, or educational systems. Even before the COVID-19 pandemic forced K12 and higher education online, educational institutions were struggling with how to navigate the new reality of online communication and the high usage of social media by their students. As it has in so many areas of life, the Internet has blurred the traditional geographic boundaries between school and the outside world, providing unprecedented access to information and opportunities for political engagement, but also new and troubling ways to engage in bullying, harassment, and cheating. The issue of how much authority school officials have over the off campus and online speech of their students had been simmering in the lower courts for years, with reoccurring efforts to get the U.S. Supreme Court K. Harriger (B) Wake Forest University, Winston-Salem, NC, USA e-mail: [email protected]

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to help clarify this issue.1 The Court had refused to take any of the cases that had been decided in the lower appellate courts until 2020 when it agreed to hear Mahanoy Area School District v. B.L. The Mahanoy case provided the Court the opportunity to clarify the extent of school officials’ authority over student speech that occurs off campus (and online) but is directed at or related to school matters.

The Legal Context The Court first weighed in on the free speech rights of public school students in its 1969 decision in Tinker v. Des Moines Independent School District. In that case, the Court stated that students do not “shed their constitutional rights to freedom of speech and expression at the school house gate.”2 The case involved high school students who were punished for wearing black armbands to school to protest the Vietnam War. The Court ruled in favor of the students, while acknowledging that schools must have some authority to punish speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”3 The armbands did not constitute such a disruption and the Court noted that simple disagreement or discomfort with the idea expressed did not meet the requirements of the Tinker test. In the 1980s, the Court seemed more sympathetic to the school discipline concern of the Tinker test than the free speech elements. It permitted the punishment of a student who gave a lewd speech during a student assembly, finding that the school’s authority extended to the control of vulgar language in school. Schools may censor material that they determine is in conflict with their “basic educational mission.”4 A few years later the Burger Court upheld the censorship of high school newspaper articles about teen pregnancy and divorce because the school 1 See for example Alexander G. Tuneski, “Online, Not on Grounds: Protecting Student Internet Speech,” Virginia Law Review 89, 139 (2003) and John T. Ceglia, “The Disappearing School House Gate: Applying Tinker in the Internet Age,” Pepperdine Law Review 39, 939 (2021). 2 393 U.S. 503 (1969) at 506. 3 Ibid. at 509. 4 Bethel School District v. Fraser, 478 U.S. 675 (1986) at 685.

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sponsored the newspaper and the censorship was “reasonably related to legitimate pedagogical concerns.”5 In all of these cases, the student speech or expression occurred on the school grounds. In 2007, the Court considered a case that involved an off campus incident but at a school-sponsored event. Students from an Alaska high school were across the street from the school during the last period of the day watching the Olympic torch come through their town, when several students looking for media attention unfurled a banner reading “Bong Hits 4 Jesus.” One of the students, Joseph Frederick, was suspended for violating school policy against the advocacy of illegal drug use. In a 5-4 decision, the Court upheld his punishment, recognizing that the school’s regulatory power covered the school-sponsored event and emphasizing the strength of the school’s educational interest in discouraging teen drug use.6 Concurring opinions in Morse v. Frederick by Justices Alito and Thomas foreshadowed their concurrence and dissent in the Mahanoy case. Alito expressed concern about the potential breadth of the school’s claim that it could regulate any speech that interfered with its “educational mission.” He noted that such missions get determined by local politics and “would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed.”7 He joined the majority in Morse because of the danger of drug use, but regarded “such regulation as standing at the far reaches of what the First Amendment permits.”8 Justice Thomas was on the other extreme of the Court’s majority, arguing that the Tinker test was “without basis in the Constitution” and that an original understanding of the First and Fourteenth Amendments provides no protection for student speech. “In short,” he wrote, “in the earliest public schools, teachers taught and students listened. Teachers commanded, and students obeyed.”9

5

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) at 273. Morse v. Frederick, 551 U.S. 393 (2007). 7 Alito concurrence at 423. 8 Ibid. at 425. 9 Thomas concurrence at 410 and 412. 6

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The Facts of the Case All of the case law informing Mahanoy occurred in the context of the school grounds or a school-sponsored event. While the Court had been deferential to school authorities within the school context, it remained quite unclear whether that same deference was warranted off campus, especially in the complex context of social media. The facts of the Mahanoy case are not as politically compelling as those of Tinker — a foul-mouthed disgruntled cheerleader as opposed to Quaker war protestors—but it nonetheless provided the Court the opportunity to explore this new terrain in First Amendment law. Brandi Levy was entering her sophomore year in high school when the case began. She had been on the junior varsity cheer squad her freshman year and hoped to make varsity. She was offered a spot on the junior varsity squad again and was quite disappointed, especially because an entering freshman made the varsity team that year. She was unhappy too about the fact that she had not gotten her preferred position on a private softball team for which she played. Over the weekend at a local convenience store, she posted a Snapchat message that included a picture of her and a friend with their middle fingers raised and the caption, “Fuck school fuck softball fuck cheer fuck everything.” One of her “friends” on Snapchat took a screenshot of the message and shared it with others on the cheerleading squad, including a coach. Brandi was suspended for a year from the j.v. squad for violating team rules requiring respect for the team and the school. Her appeals of that decision to the principal, superintendent, and school board were unsuccessful. Her parents then sued in federal court on her behalf. Brandi was successful in the courts below. The district court applied the “substantial disruption” test of Tinker and found that no such disruption had occurred as a result of the Snapchat messages. It ordered that she be reinstated to the team and that her disciplinary record be expunged. The Third Circuit affirmed that decision but on different grounds. It said that because her speech occurred off campus and did not involve a school-sponsored event, the Tinker rule did not apply. Outside the school context, no deference to school officials was required and the traditional high levels of protection for speech applied. The school

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district appealed to the Supreme Court, noting that the Third Circuit’s view was in conflict with numerous cases in other circuits where courts had applied the Tinker test to off campus and online speech, and also conflicted with numerous state laws requiring schools to act affirmatively against bullying and harassment. The case generated a number of amicus curiae briefs. National organizations of school officials and school boards were anxious for guidance from the Court about the extent to which they can police social media speech by their students, especially with heightened concern (and legal liability) for cyberbullying and school shootings.10 Free speech advocates were worried about the extent to which schools can extend their control over students outside of school grounds and hours, especially given the amount of time teens spend on social media and their increased use of these applications for political activism.11

The Opinions in Mahanoy The Court’s 8-1 decision could be considered a “win” for both sides. It agreed with the lower courts that B.L.’s First Amendment rights had been violated. But it disagreed with the Third Circuit’s analysis that Tinker did not apply to off campus speech. In the majority opinion, Justice Breyer wrote that the Court “did not believe the special circumstances that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus.” Those “regulatory interests,” he wrote, “remain significant in some off campus circumstances.”12 At a minimum, schools had to have the authority to regulate severe bullying and harassment, threats against staff and fellow students, online learning and assignments, and computer security.

10

See for example, Brief of the Pennsylvania School Boards Association and Pennsylvania Principals Association as Amici Curiae in Support of the Petitioner, filed 1 October 2020. 11 See for example, Brief of Amici Curiae Electronic Frontier Foundation, Brennan Center for Justice at NYU Law School and Pennsylvania Center for the First Amendment in Support of the Respondents, filed 31 March 2021. 12 Mahanoy decision at 5.

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On the other hand, Breyer stated that the off campus setting does alter some of the circumstances that justify deference to authorities on campus. Off campus, schools are no longer playing the role of in loco parentis (acting for the parents). Instead, parents are expected to discipline their children when they misbehave outside of the school context. Echoing the concerns raised by civil liberties advocates, Breyer noted that schools already have considerable control over student speech for much of the day and week during the school year. The Court was reluctant to allow for the possibility that schools could regulate off campus speech 24/7. Breyer said courts should be “more skeptical” of regulatory attempts off campus, showing less deference to school officials’ claims than would be the case for on campus regulations. Finally, Breyer reminded schools of their obligation to teach students the importance of free speech and the protection of unpopular opinion. Public schools are “the nurseries of democracy,” he wrote, and they have an obligation to pass on the democratic value of free speech to their students.13 Applying these principles to the facts of this case, the Court concluded that B.L.’s speech did not “meet Tinker’s demanding standard” of “substantially disruptive” speech, nor did it meet any of the other tests the Court has developed for regulating speech off campus.14 It was not targeted at anyone in particular. It was not obscene or threatening. It did not constitute “fighting words.”15 She used her own cell phone and sent the message to a limited group of friends on Snapchat. Was the language and message worthy of First Amendment protection? Breyer acknowledged that her language was vulgar and juvenile but noted that “sometimes it is necessary to protect the superfluous in order to preserve the necessary.”16 Justice Alito, joined by Justice Gorsuch, concurred in the ruling. As he had in his Morse v. Frederick concurrence, he emphasized the limits of the opinion. He agreed that the Third Circuit was wrong to hold that 13

Ibid. at 7. Ibid. at 11. 15 In Chaplinsky v. New Hampshire in 1942 the Court defined expressions “that by their very utterance inflict injury or tend to incite an immediate breach of the peace” as “fighting words” beyond the protection of the First Amendment (315 US 568 at 572). 16 Mahanoy decision at 11. 14

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Tinker had no application to off campus speech, but he emphasized the obligation of judges to be “skeptical” about off campus regulation.17 Justice Thomas was the lone dissenter. He reiterated his position from Morse, that Tinker was not good law, and argued that “schools historically could discipline students in circumstances like those presented here,” relying primarily on an 1859 Vermont case where a young man was disciplined for being rude to a teacher outside of school. “Because the majority does not attempt to explain why we should not apply this historical rule,” he wrote, “and does not attempt to tether its approach to anything stable, I respectfully dissent.”18

Implications During oral arguments, Justice Breyer signaled the outcome in Mahanoy. “As far as I can see,” he said, “I can’t write a treatise on the First Amendment in this case.” He suggested that the options before the Court were to make a narrow fact-bound ruling about whether Levy’s speech met the “substantial disruption” test required by Tinker , or say that Tinker doesn’t apply in the off campus setting.19 The Mahanoy decision avoids providing any kind of “bright-line” test for school officials to follow in dealing with off campus speech. The Court acknowledged that there are likely to be future cases with varying fact patterns that might help clarify where the line is, but it was responsive to the concerns raised by school officials about the necessity of being able to respond to cyberbullying, harassment, threats, and cheating. On the other hand, the call for judges to be “skeptical” about school regulation of off campus and online speech, and the reminder of the obligation of schools to teach First Amendment principles, serve as a warning to schools that the Court 17

Alito concurrence at 1–2. Thomas dissent at 2. Thomas is also skeptical about how the Court defines on campus versus off campus speech in the Internet era, objecting that “the majority uncritically adopts the assumption that B.L.’s speech, in fact, was off campus. But, the location of the speech is a much trickier question than the majority acknowledges.” Thomas argues that because current social media technologies make it “foreseeable and likely that speech will travel onto campus, a school has a stronger claim to treating the speech as on-campus speech” (dissent at 8). 19 Mahanoy oral arguments transcript, pages 43–44. 18

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is unlikely to be as deferential as it had been in the past, especially where political and religious speech is implicated. As the “nurseries of democracy,” public schools face many of the same challenges we currently face in our larger political world. It was clear from oral arguments and from the many amicus briefs filed in Mahanoy that the current broader debates around race, sexual identity, sexual harassment, religious freedom, and Confederate symbols were all in the minds of the Justices as they considered this case. Young people are actively engaged in these disputes online and in person, making it inevitable that these exchanges of ideas will create challenges in classrooms and among students. How much leeway schools will have to manage those conflicts remains an open question.

10 NCAA v. Alston on College Sports Morgan Marietta

Shawne Alston thinks he should have been paid. Most Americans agree that talented athletes who work hard at their sport and take risks on the field ought to be compensated. This is controversial only for athletes who compete in college sports, governed by the amateurism rules of the NCAA. The long-debated question of whether the NCAA can refuse to allow universities to pay athletes to play, or whether this tradition violates federal laws against price-fixing in labor markets, finally reached the Supreme Court. What is clear is that federal antitrust law forbids a group of businesses from agreeing among themselves to pay their workers less money than those workers could demand in a competitive labor market. As Justice Brett Kavanaugh phrased it, “The NCAA’s business model would be M. Marietta (B) Department of Political Science, University of Massachusetts Lowell, Lowell, MA, USA

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flatly illegal in almost any other industry in America.”1 But are college sports like any other business? Are they even a business at all? Televised games certainly generate a massive amount of revenue for their schools and for the NCAA’s headquarters. But college sports have a long history of being perceived as something else entirely, more a pastime and a tradition, or a facet of university education and entertainment, than a business. Some see college sports as “something that’s brought joy and all kinds of things to millions and millions of people, and it’s only partly economic,” as Justice Stephen Breyer described the institution during the oral arguments at the Court.2 At the heart of the controversy is a factual question: Is college sports an economic enterprise and hence bound by federal antitrust regulations on how employees are paid, or is it a different thing entirely, which deserves to be exempt from those rules?

The Disputed Facts of College Sports The NCAA was founded in 1905 in response to student deaths in football games (18 in the 1905 season alone). President Teddy Roosevelt— who was a big fan of Harvard football and wanted the tradition to continue with less bloodshed—organized the discussions among major universities, which would lead to the new organization. In the Alston ruling, Justice Neil Gorsuch details exactly how corrupt college competitions were in the early days, including the use of ringers who were not students at the school and the large sums paid to attract players. In the 1940s, the NCAA attempted to reign in these excesses through what was called the “Sanity Code,” establishing rules to make college sports what many of the college leaders wanted them to be: legitimate competitions among the schools’ actual students. In 1984, the Court made a major ruling on the legal status of the NCAA after the University of Oklahoma (OU) and the University of Georgia (UGA) attempted to break out of the NCAA’s restrictions on 1 2

NCAA v. Alston Kavanaugh concurrence, page 3. NCAA v. Alston oral arguments transcript, 31 March 2021, page 48.

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the number of televised football games any given school could offer in a season. The Court ruled that the NCAA could not restrain its member schools from making individual television contracts, so the Sooners and Dawgs could market their own games. But the NCAA could regulate the rules for players, including the amateurism principle that “in order to preserve the character and quality of the ‘product,’ athletes must not be paid, must be required to attend class, and the like.” The bottom line regarding the athletes was that “the NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question that it needs ample latitude to play that role, or that the preservation of the student athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act.”3 The current controversy unfolded against this backdrop, as many athletes and commentators began to take up the cause of changing the NCAA’s “no pay-for-play” rule. An influential 2011 article appeared in The Atlantic magazine, entitled “The Shame of College Sports.” Taylor Branch, a noted historian of the civil rights movement, argued that “two of the noble principles on which the NCAA justifies its existence— ‘amateurism’ and the ‘student athlete’—are cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes.” In short, “college sports has become Very Big Business.”4 As Dan Wolken phrased it for USA Today after the Alston decision was announced: “I think people recognize that the NCAA does a lot of good things, they offer a lot of opportunities for people to go to college, but the money has gotten so big that this is essentially professional sports… I think you’re seeing further chipping away at this notion that the NCAA is special, that the NCAA stands for something that is wholesome and

3

NCAA v. Board of Regents of the University of Oklahoma, 468 US 85 (1984) at 102 and 120. Branch also emphasized the racial aspect of the denial of pay to college athletes, describing it as “the plantation mentality resurrected and blessed by today’s campus executives.” In the Court’s discussion, only Justice Kavanaugh mentions this aspect of the dispute, noting that the “student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing” (Alston Kavanaugh concurrence at 4). 4

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good; I think you’re now seeing that the perception of the NCAA has shifted and the people realize it stands for making money.”5 This perception of the facts stands in stark contrast to the Justices’ views in 1984. At that time, one of the prominent Justices was Byron White, previously known as “Whizzer” White when he was the runnerup for the Heisman in 1937. He then played pro ball for the Steelers, leading the league in rushing his rookie year. Though the highest paid player in the game, he left the NFL in favor of a legal career. White wrote a dissent in Board of Regents, in which he disputed the entire concept that college athletics was a business that could be analyzed under the antitrust laws. In the view of the Court’s only former NFL player, “it is important to remember that the Sherman Act is aimed primarily at combinations having commercial objectives” and “the legitimate noneconomic goals of colleges and universities should not be ignored in analyzing restraints imposed by associations” in their attempt to provide “a public good—a viable system of amateur athletics.”6

The Lawsuit Shawne Alston was a running back for West Virginia (WVU) from 2009 to 2012 and then played briefly in the NFL. Alston is the kind of college athlete the controversy is really about—not the few who will later make millions as professional athletes, but the many who will play in college and move on to the rest of their lives without much financial prospect. The legal question Alston raised is whether the NCAA’s ban on direct payments to students—no pay-for-play in order to maintain the principle of amateurism—is a violation of federal law under the Sherman Antitrust Act, passed in 1890. The law’s subtitle is An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies. The targets clearly included the large monopolies or “trusts” that had become dominant in the early industrial age, driving out competitors 5 Dan Wolken, “Why the Supreme Court Ruling Is a Defining Blow for NCAA,” USA Today, 21 June 2021. 6 NCAA v. Board of Regents of the University of Oklahoma, 468 US 85 (1984) at 133, 134, and 122.

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and blocking markets from doing their job of keeping prices as low as possible through competition. The early Supreme Court cases on antitrust laws—Standard Oil v. US or US v. American Tobacco, both in 1911—dealt with producers operating in an obvious economic market. The student athletes argue that they are much the same—they work for a business, and they would rather be able to work for the highest bidder, but the producers have colluded illegally by agreeing amongst themselves to cap their wages at close to $0 per hour.7 The NCAA argues that it makes a difference that factory workers are not given university scholarships, or required to attend class along with their work duties, or to only work for a limited number of years. In short, the NCAA claims it is not merely an employer within a labor market, but something very different. Just to maintain the “product” of college sports at all, collusion among the “producers” is required. Otherwise, major sports programs will compete with large bags of cash for the best talent, college sports will quickly become professional sports housed on college campuses, and—the NCAA claims—consumer demand will fall. The last argument is disputed, and the plaintiffs offer evidence from opinion polls suggesting that fans will still watch college sports if the athletes get paid. How should such a dispute over the nature of an institution like college sports be resolved? The NCAA offered a theory that it should be decided by a “quick look,” a concept in antitrust law that applies when the economic effects of an anti-competitive rule are so clear that they can be discerned in the “twinkling of an eye.”8 This is another way of saying that the prevailing facts are obvious. Alston strenuously disputes 7

This is what economists call a monopsony. A monopoly is when there is only one seller, so they can exploit market power to charge artificially high prices for the good to consumers; a monopsony is when there is only one buyer (of labor), so they can exploit their market power to pay artificially low wages. As Justice Gorsuch phrases it, “the NCAA enjoys monopoly (or, as it’s called on the buyer side, monopsony) control in that labor market—such that it is capable of depressing wages below competitive levels and restricting the quantity of student-athlete labor” (Alston decision at 14). 8 “It should be obvious on a ‘quick look’ that product-defining NCAA rules, essential to preserve the character of college sports as they have existed for over a century, are not subject to judicial second-guessing.” “The NCAA rules at issue here should have been subjected to a ‘quick look’ by the district court and, upon that look, upheld in the ‘twinkling of an eye’.” NCAA brief at 3, 21 (quoting Board of Regents 1984 at 110 note 39).

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this view, arguing in his brief that the NCAA was presenting “a mythical rendition of the facts.”9 The Court rejected the quick look approach as useful only in obvious cases, while this controversy “presents complex questions requiring more than a blink to answer.”10 One of the authors of the student athletes’ brief to the Court—Jeanifer Parsigian from Winston & Strawn in San Francisco—gave a talk to a class at my university a week before the case was argued at the Court, so I had the rare opportunity to ask one of the advocates directly about the factual disputes of the case. Parsigian described the controversy as “bizarre sometimes to see how disconnected we can be on the facts… I think they’ve [the NCAA and their attorneys] really developed their own kind of reality, and they believe that things are a certain way, and we just really don’t see it that way.” Parsigian explained the athletes’ position that “whatever ideas they [the Court] may have had about amateurism in 1985 when Board of Regents was decided, things really have changed… and the athletes are bringing in so much value, and the disparity between what they would get in a market and what they are getting now just keeps getting greater and greater.”11

The Ruling The Court was unanimous. College sports are a business. Their pricefixing policies violate antitrust laws, and hence the lower court’s ruling in favor of the athletes must be upheld.

9

Alston brief at 4. NCAA v. Alston decision at 19. 11 Parsigian also agreed with Taylor Branch and others that there is a strong racial component to the controversy: “The racial undertones here are not undertones. There is so much that has to do with race in this debate.” 10

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Justice Gorsuch wrote the decision for the Court, which is crystal clear that “at the center of this thicket of associations and rules sits a massive business.”12 So what changed between 1984 when the Court saw things differently, and the greatest athlete to ever sit the bench—“Whizzer” White—wrote that “the Court errs in treating intercollegiate athletics under the NCAA’s control as a purely commercial venture in which colleges and universities participate solely, or even primarily, in the pursuit of profits”?13 In a word, money. In the sentence following Justice Gorsuch’s description of the NCAA as a “massive business” he wrote, “the NCAA’s current broadcast contract for the March Madness basketball tournament is worth $1.1 billion annually.”14 Later Gorsuch explains that “when it comes to college sports, there can be little doubt that the market realities have changed significantly since 1984… In 1985, Division I football and basketball raised approximately $922 million and $41 million respectively. By 2016, NCAA Division I schools raised more than $13.5 billion.”15 The intuition is clear: something that makes that much money cannot fail to be a business. Specifically, the Court’s ruling upheld the lower court’s mandate that the NCAA can no longer place limits on “education-related” benefits, which include scholarships for undergraduate and graduate degrees, paid internships after graduation, laptops, study-abroad programs, and up to $5980 in cash awards for academic achievement annually. In an important sense, the remedy does not match the reasoning. If the NCAA is no different from other businesses, then none of its current wage-fixing policies are legal, including the continuing prohibition on direct payments to athletes for their services. If the University of Pittsburgh football team is truly the same as workers in a Pittsburgh steel mill, why are salaries to the athletes limited at all? As Andy Schwarz, an economist who has worked on these lawsuits, put it, “The courts have 12

NCAA v. Alston decision at 7. NCAA v. Board of Regents of the University of Oklahoma, 468 US 85 (1984) at 121. 14 NCAA v. Alston decision at 7. 15 Ibid. at 21. 13

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said to the NCAA, you’re totally violating antitrust laws but can you just do it less egregiously?”16 The Court offers the justification that “rules aimed at ensuring student-athletes do not receive unlimited cash payments unrelated to education could play some role in product differentiation with professional sports and thus help sustain consumer demand for college athletics.” Limits on salaries may be allowable not because the student athletes are amateurs, but because the policy could maintain the entire enterprise: “professional-level cash payments… could blur the distinction between college sports and professional sports and thereby negatively affect consumer demand.”17 In other words, because consumers still believe college athletics are different—featuring students and not professionals—the NCAA can limit direct payments. But the reason any limitation at all is allowable is the remaining perception that these athletes are not just professionals (in this case the spectators’ perceptions). Justice Kavanaugh—who was the captain of his high school basketball team, played on the junior varsity team at Yale as an undergrad, and later coached his daughter’s middle school team—wrote a separate opinion to express a more expansive view of the athletes’ prospects. In his rendition, “the labels cannot disguise the reality”: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.” This means that “under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.” Kavanaugh concludes that “the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.”18

16 Quoted in Billy Witz, “Ruling Dings NCAA, But It Keeps Rule-Making Power,” The New York Times, 21 June 2021. 17 Ibid. at 11 and 12. 18 Alston Kavanaugh concurrence at 3, 5, and 2.

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The Ramifications What does this all mean, especially for the flagship state universities that house the big Division I sports programs? As one sports website phrased it after the ruling, “NCAA athletes are about to make money while in college, especially if they are solid players.”19 What the courts have not yet said—but is likely inevitable given the reasoning of the Alston decision—is that the NCAA will not be able to continue to block individual schools from paying student athletes for their services. A new era of schools competing in a labor market for athletes will begin. On a related front, the NCAA has already relaxed its rules on athletes benefiting from the sale of their name, image, and likeness (NIL), after losing in federal court in 2015. Those revenues may end up dwarfing what universities offer in direct payments, but mostly for a small number of elite performers.20 Dan Wolken, sports columnist for USA Today, sums up the bottom line well: “The deal that had been offered to college athletes before, which is that you play and we give you a scholarship, is no longer sufficient.”21 Likely ramifications for American universities will be: 1. The status of athletes on campus will rise even further (they will have not only social status, but financial status as well). 2. Schools will have to decide whether to shift resources from other parts of the budget to cover the new costs, or instead to forgo competitive D1 sports. Tradition-bound schools, such as those in the SEC, will feel compelled to continue major sports programs regardless of cost, while other schools may make the opposite choice.

19

“Shawne Alston is the real hero” NFLdraftdiamonds.com, 22 June 2021. See O’Bannon v. NCAA, 802 F. 3d 1049 (9th Cir. 2015). See also Associated Press, “The NCAA and the Impact of NIL Compensation, Explained,” The Denver Post, 1 July 2021. 21 Dan Wolken, “Why the Supreme Court Ruling Is a Defining Blow for NCAA,” USA Today, 21 June 2021. 20

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3. How much this will affect other sports outside of football and basketball is unknown. On the one hand, similar market pressures as schools compete for talent may lead to payments to other athletes as well; on the other hand, the rising costs of basketball and football programs may lead schools to shut down other sports that do not bring in spectator revenue. How much these fundamental changes in college sports will lead to reverberating changes on campus and within higher education is hard to predict, but the ramifications of this landmark ruling will play out in the coming years. As Alan Blinder of The New York Times put it, “now the college sports industry is bracing for an era they expect will be marked by chaos and uncertainty.”22

22

Alan Blinder, “Hope Fades for Imminent Federal Deal on College Athletes, Pressuring NCAA,” The New York Times, 17 June 2021.

11 Pereida v. Wilkinson on the Immigration Consequences of Ambiguous Convictions Brett Curry and Maureen Stobb

We live in a time when information always seems to be at our fingertips. Government records on individuals abound. It may therefore seem hard to believe that sometimes no record exists after someone is convicted of a crime to tell us exactly what they did. In Pereida v. Wilkinson, the Supreme Court had to decide whether this ambiguity should work for or against a noncitizen attempting to avoid deportation. This case is part of a larger conversation about the growing overlap between immigration law and criminal law, often referred to as “crimmigration.” Criminal convictions have immigration consequences, and the Supreme Court has played a central role in interpreting and applying these penalties. In Pereida, a state conviction potentially made Clemente Pereida ineligible for a form of relief known as cancellation of removal. According to federal immigration law, one’s record must be free of crimes B. Curry (B) · M. Stobb Georgia Southern University, Statesboro, GA, USA e-mail: [email protected]

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involving moral turpitude (CIMT) in order to petition for such a cancellation. The Court interpreted CIMT seventy years ago to include crimes involving fraud as an element.1 The statute under which Pereida was convicted included multiple offenses, only some of which included fraud, but the record failed to indicate exactly which one was the basis for his conviction. Pereida’s case illustrates one of the challenges of “crimmigration”: the substantive goals and procedural norms of the two areas are very different. State courts and prosecutors often treat a criminal statute listing numerous offenses as simply one crime, without clarifying which specific provision was violated. Their goal is to ensure that offenders are appropriately punished through the criminal justice system—not to determine the implications for immigration status. Yet, in constructing immigration law, Congress has indicated specific crimes which should prevent noncitizens from remaining in the United States. When these two systems talk past each other, the resulting confusion is left to the courts to settle. Originally passed in 1965, the Immigration and Nationality Act (INA) sets out the conditions under which noncitizens can lawfully enter, remain, or be removed from the United States.2 The INA creates a preference system, admitting a certain number of applicants each year based on several criteria. It describes crimes that can be used to deny admission or to deport noncitizens, and requires individuals petitioning for cancellation of removal orders to prove their eligibility. That relief can be granted by the Attorney General, though the total number of removal orders that can be cancelled is limited to 4000 annually by federal law. Eligibility for relief requires noncitizens who are not lawful permanent residents to meet several standards, including (1) be present in the United States for at least ten years; (2) be of good moral character; (3) not be convicted of certain criminal offenses; (4) and show that removal would impose an “exceptional and extremely unusual” hardship on a close relative who is either a U.S. citizen or lawful permanent

1 2

Jordan v. DeGeorge, 341 U.S. 223 (1951). 8 U.S.C. §§ 1101–1537.

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resident. It was the third requirement—that noncitizens not be convicted of specific crimes—which brought the Pereida case to the Court.

The Pereida Case Mexican citizen Clemente Pereida entered the United States without authorization around 1995. Pereida was later charged with presenting a fake social security card in an attempt to get a job. He pleaded no contest to the misdemeanor, which Nebraska law termed “criminal impersonation,” was fined $100, and given no time in jail. The law included multiple offenses, and the record did not establish the exact basis for Pereida’s conviction. Three offenses in the statute involved fraud and were disqualifying offenses of moral turpitude. A final provision, which prohibited engaging in business without a license, was not a disqualifying offense. The immigration judge (IJ) thought it unlikely that Pereida had committed this last offense and had instead committed one involving fraud. Did the INA put the burden on Pereida to prove that his conviction was not for a CIMT? The lower courts were split on the issue. The INA states that noncitizens applying for relief, including cancellation of removal, carry the burden of establishing that they satisfy eligibility requirements and merit “a favorable exercise of discretion.”3 But what did this mean in a situation like Pereida’s? Because of this lingering ambiguity, the lower court said Pereida was ineligible for relief. Pereida contended this was not his burden, and even if it were, he had shown the crime did not necessarily, or categorically, qualify as a CIMT. According to this “categorical approach,” if Pereida could hypothetically have violated the statute without having committed fraud, he was not convicted of a CIMT. Pereida contended that the ambiguity of the record was out of his control. The government argued that noncitizens seeking relief must not gain an advantage from a lack of information, because that may encourage them to withhold or conceal evidence about their convictions. 3

8 U.S.C. §1229a(c)(4)(A).

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Pereida appealed to the Supreme Court. The Justices granted review in December 2019 and scheduled oral argument for March of 2020. However, as the spread of COVID-19 upended the Court’s schedule that spring, the argument was postponed until October. Pereida, the government, and the lower courts would have to wait for the Court to clarify the law.

Oral Argument The Court that sat for oral argument was a short-handed one, the result of Justice Ruth Bader Ginsburg’s passing less than a month earlier. Much of the argument revolved around whether determining the version of an offense for immigration purposes is a “question of fact” or a “question of law.” As Justice Elena Kagan put it, the burden of proof issue is not applicable to legal questions—only factual ones. Asking who bore the burden of proof was irrelevant if, as she suggested, the Court faced a question of law. Justice Stephen Breyer suggested that Pereida satisfied the eligibility requirement because the legal documents did not necessarily show he had committed a CIMT. Likewise, Justice Sonia Sotomayor said that prior cases pointed to a clear result for Pereida’s side: “ambiguity flows to your favor automatically.”4 For Sotomayor, the fact that Pereida had produced all the available documents in the case and that those documents did not clearly show he had committed a CIMT should end the case. Others had a different take. According to Justice Samuel Alito, “Whether or not a person was convicted of a particular crime is a question of fact…[and] if that fact has to be proven, there’s nothing that prevents Congress in a civil case like this from saying the burden…is on one party or the other party.”5 Justice Clarence Thomas asked why it was inappropriate to place the burden on petitioners like Pereida in a non-criminal context like immigration. He suggested that was precisely

4 5

Pereida v. Wilkinson oral argument transcript, page 17. Ibid. at 10–11.

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what Congress had done and that its choice violated no constitutional protections. Apart from this debate over factual versus legal questions, several practical concerns surfaced at oral argument. Chief among these was that noncitizens are likely to have very little control over what is entered into a state court record. Chief Justice John Roberts noted that “busy criminal dockets and plea bargains” would make it difficult for immigrants to satisfy burdens of proof. A different question centered on just what a victory for Pereida might mean substantively, since allowing an application for cancellation of removal to be filed did not make the Attorney General’s cancellation decision any less discretionary. The oral argument left the outcome ambiguous. Breyer, Sotomayor, and Kagan seemed strongly disposed toward Pereida’s position. To them, the case involved a legal question, and employing a categorical approach was the simplest, fairest, and most reasonable solution. Thomas, Alito, and Gorsuch favored the government, with Roberts and Kavanaugh appearing to fall somewhere in between. One commentator summarized the discussion this way: “[I]t appears that a majority of the Justices are reluctant to rule that noncitizens convicted of minor crimes, whose state court conviction records are ambiguous, face mandatory deportation.”6 That impression would prove inaccurate.

The Decision The Court’s decision was announced on March 4, 2021, and there were fundamental differences between Justice Gorsuch’s opinion for the fivejustice majority and Justice Breyer’s dissent, which Sotomayor and Kagan joined.7 The majority and the dissent sparred over burdens of proof, factual versus legal distinctions, and how to best interpret the Court’s precedents. Gorsuch described Pereida’s burden under the INA as a heavy

6 Kate Evans, “Argument Analysis: Justices Weigh Mandatory Deportations Based on ‘Thin Reed’ of Minor Crimes,” SCOTUSblog, 19 October 2020. 7 Justice Amy Coney Barrett did not participate in the decision because she had not yet joined the Court when the oral arguments were heard.

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one. He underscored Pereida’s need to show that the eligibility requirements were met. In Gorsuch’s telling, Pereida accepted that he bore the burden of proof for three of the four statutory requirements, but on the final issue alone Pereida advocated for a different rule. That differential treatment of the non-conviction requirement, the Court said, had no support in the INA’s text. Gorsuch characterized the basic question as a factual one: “No amount of staring at a State’s criminal code will answer whether a particular person was convicted of any particular offense at any particular time.”8 Because Congress had chosen to treat uncertainty in the record differently in the immigration context, the Court rejected Pereida’s argument that prior rulings regarding state criminal convictions pointed toward a different outcome. For Justice Breyer and the dissenters, the case was also straightforward, but in the opposite direction. Pereida’s case, they said, had “little or nothing to do with the burden of proof ”; all that was required was to apply the so-called “categorical approach” to his situation. All existing documentation was before the IJ, who could not establish with certainty that the conviction was for a CIMT. “That,” he said, “resolves this case.” The dissent cited ten cases in a single paragraph to buttress the idea that employing the categorical approach in Pereida’s case was faithful to the Court’s prior decisions interpreting provisions of both the INA and the Armed Career Criminal Act (ACCA). That caselaw, Breyer said, tells the Court to look “only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.”9 Both the majority and the dissent framed their views as being respectful of Congress. Gorsuch couched the majority’s perspective as being rooted in legislative deference: “Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. Only that policy choice, embodied in the terms of the law Congress adopted, commands this Court’s respect.”10 Breyer’s dissent did the same, arguing that creating a “threshold factual question… 8

Pereida decision, page 9. Pereida Breyer dissent, pages 1, 3, 9. 10 Pereida decision at 16. 9

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will result in precisely the practical difficulties and potential unfairness that Congress intended to avoid.” In his view, these include threats to the immigration system’s efficiency and predictability. Breyer also quibbled with Gorsuch’s view of what Congress had, in fact, concluded. By tying one’s ineligibility for relief to a “conviction,” Breyer said Congress was being “underinclusive by design” to register its preference for the categorical approach.11

Implications In short, the Court’s ruling makes it easier for the government to remove noncitizens with criminal histories. If an applicant for relief cannot prove that his conviction was for a crime without negative immigration consequences, he is ineligible. The door will be closed for applicants charged with a broad range of crimes, including the long list of aggravated felonies which, despite their name, include a variety of state misdemeanor crimes. The ruling could also be applied to other types of relief from removal where the noncitizen bears the burden of proof. For example, noncitizens applying for defensive asylum in removal proceedings, claiming they fear persecution if returned to their home country, are ineligible if they have been convicted of an aggravated felony. Immigrant advocates are preparing for the possibility that the government will try to extend Pereida to noncitizens outside the removal context—including applications for immigration benefits before U.S. Citizenship and Immigration Services or even the Department of State’s offices abroad.12 Applications that could be affected include those for lawful permanent resident status or to become a U.S. Citizen through naturalization. If interpreted broadly, Pereida will have long-ranging consequences for many potential immigrants. Pereida also makes the job of criminal defense attorneys representing noncitizens harder. Under the Supreme Court’s holding in Padilla v. 11

Pereida Breyer dissent at 15 and 17. “Practice Alert: Overview of Pereida v. Wilkinson for Immigration and Criminal Defense Counsel,” Immigrant Defense Project and the National Immigration Project of the National Lawyers Guild, page 6 (9 March 2021).

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Kentucky, defense attorneys must inform their noncitizen clients of the immigration consequences of a guilty plea or risk violating the noncitizen’s Sixth Amendment right to counsel.13 To meet this requirement, defense attorneys attempt to craft plea deals that avoid negative immigration consequences and advise their clients that accepting those agreements will not trigger removal. Under Pereida, this advice “could be rendered incorrect years later should that jurisdiction of conviction destroy the record of the client’s plea.”14 Defense attorneys will need to work hard to ensure, to the extent possible, that the record of conviction makes clear that the noncitizen’s conviction is not for a crime that would make him ineligible for relief from removal. In placing this heavy burden on noncitizens and criminal defense attorneys, the majority revealed its view on one of the key debates in the crimmigration conversation. The growing connections between immigration law and criminal law raise the question of whether removal is a form of punishment akin to penalties imposed for traditional crimes, or instead is simply the denial of a benefit. If removal is a penalty, the burden of proof should be placed on the government as it is in criminal proceedings, in which the defendant is innocent until proven guilty. On the other hand, the burden should be placed on the immigrant if he is simply applying for a government benefit. If he fails to show he is eligible, removal is appropriate. Pereida’s majority seems to occupy the latter camp, placing the burden squarely on the immigrant seeking a benefit. The extent to which this view will influence future cases remains to be seen. At the very least, Pereida demonstrates that it is increasingly difficult to distinguish much of immigration control from criminal enforcement.

13

Padilla v. Kentucky, 559 U.S. 356 (2010). Brief for National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amicus Curiae in Support of Petitioner, page 3.

14

12 Tandon v. Newsom, South Bay Pentecostal, Diocese of Brooklyn, and Calvary Chapel on Religious Liberty and the Pandemic Richard W. Garnett and Mitchell Koppinger

On January 6, 2020, a headline in The New York Times read, “China Grapples with Mystery Pneumonia-Like Illness” and reported that “59 people in the central city of Wuhan” have been sickened by the illness, “the cause of which is unclear.”1 Within a few months, the World Health Organization had proclaimed COVID-19 a global “pandemic.”2 In the United States, and around the world, schools moved online, stores and restaurants were shuttered, travelers scrambled to return home, major

1 Sui-Lee

Wee and Vivian Wang, “China Grapples with Mystery Pneumonia-Like Illness,” The New York Times, 6 January 2020. 2 World Health Organization, “WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19,” 11 March 2020.

R. W. Garnett · M. Koppinger (B) Notre Dame Law School, Notre Dame, IN, USA e-mail: [email protected]

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sports and other events were canceled, beaches and parks were closed, and gatherings tightly restricted. Many official orders and regulations targeted, or affected, religious worship and gatherings. For example, the state of California, in May, issued rules limiting in-person services to 100 persons or fewer, restricting singing, and requiring churches to take attendees’ temperatures.3 In Nevada, such gatherings could not exceed 50 participants, regardless of a facility’s size or the precautions taken.4 And New York ordered “non-essential” organizations and operations to close while allowing “essential” businesses to remain open.5 Religious leaders and communities acted, too, and many voluntarily paused in-person worship or adapted their worship services to accommodate social distancing and other precautions. The Maryville Baptist Church in Louisville, Kentucky held a drive-in Easter service, with a sermon broadcast via loudspeaker.6 The University of Notre Dame suspended the distribution of sacramental wine and all physical contact during Masses, before eventually suspending in-person Mass altogether.7 In several places, these and other restrictions were challenged, in various state and federal courts, as infringing on congregations’ and believers’ religious liberty. These controversies were handled in different ways, in different places, by different judges. At first, and for several months, “the Supreme Court stayed out of the fray.”8 In late May of 2020, however, the Court began to weigh in, not in the context of fully briefed and argued cases, but rather through orders and unsigned opinions, regarding emergency applications and petitions, in the context of

3 Stefanie Dazio and Robert Jablon, “California Lays Out Pandemic Rules for Church Reopenings,” Associated Press, 27 May 2020. 4 Nevada Declaration of Emergency Directive 021, section 11, 28 May 2020. 5 Governor Cuomo’s Executive Order 202.68, 6 October 2020. 6 Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020) at 611. 7 Rev. Pete McCormick, C.S.C., Letter to the Notre Dame Community, 4 March 2020. 8 See Josh Blackman, “The ‘Essential’ Free Exercise Clause,” 44 Harvard Journal of Law & Public Policy 637 (2021) at 645. Prof. Blackman’s article includes a detailed review of the relevant cases and decisions.

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what some scholars call the Court’s “Shadow Docket.”9 This chapter addresses these interventions, and considers their implications for the Court’s religious freedom doctrines going forward.

South Bay Pentecostal v. Newsom (“South Bay I”) The Justices’ involvement in the challenge of balancing public health edicts and the freedom of religious exercise started on May 29, 2020. By a vote of 5-4, and without explanation, the Court upheld California’s restrictions which, among other things, limited attendance at places of worship to 25% of building capacity, up to a maximum of 100 attendees. Chief Justice John Roberts, however, added a concurring opinion that would, during the coming months, prove highly influential in other courts’ treatment of COVID-19-related limits on religious gatherings and activities. Roberts acknowledged that “California’s guidelines place restrictions on places of worship” but stated that, in his view, the “restrictions appear consistent with the Free Exercise Clause of the First Amendment.” He noted that sometimes “more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time” and that the state “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”10

9

See Will Baude, “Foreword: The Supreme Court’s Shadow Docket,” NYU Journal of Law & Liberty 9 (2015): 1. Rather than issuing an opinion written by one specific Justice, brief orders in response to a request to enjoin (halt) a government action are often issued by the Court as per curiam, or unsigned, opinions from the Court as a whole, though individual Justices can still issue dissenting opinions. 10 South Bay United Pentecostal Church v. Newsom (2020), Chief Justice Roberts concurrence at 2.

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This evaluation was coupled with a paragraph emphasizing the need for judicial modesty and restraint, particularly regarding a “dynamic and fact-intensive matter subject to reasonable disagreement,” and for deference to responsible, politically accountable actors: When officials “act in areas fraught with medical and scientific uncertainties,” he insisted, “their latitude ‘must be especially broad’.”11 Roberts’ approach—of comparing and contrasting the regulation of religious activities with non-religious ones deemed to be sufficiently similar—would be followed regularly, by courts and commentators alike. Justice Brett Kavanaugh, joined by Justices Clarence Thomas and Neil Gorsuch, dissented from the Court’s denial of relief, arguing that California’s “latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses” and therefore violate the First Amendment’s guarantee of free exercise of religion. The dissenters’ key point of disagreement related to the Chief Justice’s comparisons: In their view, religious gatherings should be compared to “secular businesses” that were “not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.”12 To treat religious gatherings worse than activities like this is, in the dissenters’ view, to discriminate against them. And while preventing the spread of COVID-19 was, they acknowledged, an important government goal, the state’s willingness to exempt so many secular businesses from the occupancy cap indicated that imposing the cap on religious gatherings was not necessary to achieve that goal.

Calvary Chapel v. Sisolak Lower courts across the country applied the approach and reasoning set out in the Chief Justice’s short concurring opinion, reaching varying conclusions. Then, about two months after the South Bay ruling, the Supreme Court returned to the debate in Calvary Chapel v. Sisolak. 11 12

Ibid. Kavanaugh dissent, page 1.

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The governor of Nevada had issued COVID-19-related directives that, among other things, restricted attendance at religious services to a maximum of 50 persons while allowing a wide variety of secular gatherings such as movie theaters, bowling alleys, and—perhaps most notable—casinos, to open with a 50% capacity and no absolute cap on attendees. Calvary Chapel sought relief in the federal district court and, eventually, in the Supreme Court. As in South Bay, the Justices denied the church’s application without an opinion and, as in South Bay, four Justices dissented. Justice Alito conceded that officials’ “initial response” to the pandemic—including the “unprecedented restrictions on personal liberty, including the free exercise of religion”—was “understandable.” He insisted, though, that a “public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists” and that the “problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.”13 He reminded readers that the “Constitution guarantees the free exercise of religion… It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities.”14 In his view, those “priorities” were evident from the fact that religious gatherings were subject to tighter restrictions than were “secular” ones that are, in Alito’s judgment, comparable. This differential treatment could not be justified as necessary to protect the state’s health and safety interests. Justices Gorsuch and Kavanaugh wrote separate dissents, and the latter is worth highlighting, because it provided a four-part categorization scheme for understanding official actions that are said to favor or disfavor religion or religious exercise. Nevada’s regulations fell, Kavanaugh thought, into his fourth category, namely, “laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations.”15 Citing an 13

Calvary Chapel Dayton Valley v. Sisolak Alito dissent at 3–4. Ibid. at 1. 15 Kavanaugh dissent at 3. 14

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article by a leading First Amendment scholar, Douglas Laycock, and his “most-favored nation status” analogy, Kavanaugh insisted that when governments make such classifications and distinctions, they must “place religious organizations in the favored or exempt category.”16 This line of argument has been much discussed since Sisolak was decided, both in scholarly commentary and in the public debate about the impact on religious liberty of various pandemic-related rules and restrictions.

Roman Catholic Diocese of Brooklyn v. Cuomo On September 18, 2020, Justice Ruth Bader Ginsburg died, and her successor, Justice Amy Coney Barrett, was confirmed on October 26. As it happened, this change in personnel was significant for the Court’s handling of religious liberty challenges to government pandemic policies. The Court’s next engagement with those policies came in Roman Catholic Diocese of Brooklyn v. Cuomo. And the newly configured Court this time agreed with the challengers that an executive order issued by the governor of New York should be enjoined. The governor’s order imposed “very severe restrictions on attendance at religious services in areas classified as ‘red’ or ‘orange’ zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25.” These limits applied regardless of a building’s size and without regard to precautions in place. In addition, various “essential” businesses—including acupuncturists, bicycle repair shops, accounting firms, and law offices—were exempted from these restrictions, and even “non-essential” businesses were permitted to use their own discretion in “orange” zones. The new majority concluded that this differential treatment was not necessary or justifiable. “Members of this Court are not public health experts,” the majority conceded, “and we should respect the judgment of those with special expertise and

16

Ibid. at 5, citing Douglas Laycock, “The Remnants of Free Exercise,” Supreme Court Review (1990) at 49–50.

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responsibility in this area. But even in a pandemic,” the Court said, “the Constitution cannot be put away and forgotten.”17 Justices Gorsuch and Kavanaugh wrote concurring opinions, with the latter returning to the “most-favored nation” analogy he had proposed in Sisolak. And, this time, it was the Chief Justice, along with Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer who were in dissent. Of the three dissenting opinions, Sotomayor’s focused most closely on the First Amendment issues. In her view, the approach taken by the Chief Justice in South Bay was the correct one, and an appropriate comparison of similar activities provided support for New York’s line drawing. The “Justices of this Court play a deadly game,” she warned, “in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”18 Still, after the Roman Catholic Diocese ruling in November 2020, lower courts clearly began to scrutinize COVID-19 responses more closely. The 9th Circuit, returning to Calvary Chapel to apply the Court’s new ruling, suggested that Diocese of Brooklyn “arguably represented a seismic shift in Free Exercise law.”19

South Bay Pentecostal Church v. Newsom (“South Bay II”) Although there were other developments and decisions, in both the Supreme Court and in lower courts, it makes sense to move next to February of 2021 and the South Bay II case.20 The restrictions at issue included a prohibition of all indoor worship services in “Tier-1” restriction zones—which included the areas in which nearly all Californians live—and a prohibition on singing and chanting during indoor services, as well as a 25% capacity limit on indoor services outside of “Tier-1.” 17

Roman Catholic Diocese of Brooklyn v. Cuomo per curiam decision at 1 and 5. Sotomayor dissent at 3. 19 Calvary Chapel Dayton Valley v. Sisolak, 982 F. 3d 1228 (9th Cir. 2020) at 1232. 20 See Blackman supra at 727. The Court ruled along the same lines in a factually similar case, on the same day, in Harvest Rock Church, Inc. v. Newsom. 18

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The Court divided differently with respect to the specific restrictions, but six Justices agreed this time that the near-statewide ban on indoor worship was unconstitutional, while three dissenters would have let stand all of the challenged regulations. On the one hand, Justice Kagan, echoing Sotomayor’s dissent in Roman Catholic Diocese, reminded her colleagues that “Justices of this Court are not scientists” and expressed her regret that “today the Court displaces the judgments of experts about how to respond to a raging pandemic.”21 On the other, the Chief Justice insisted that “the Constitution... entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure,... but because they are.” “Deference,” he emphasized, “though broad, has its limits.”22 On display in South Bay II , and helping to explain the Justices’ disagreements, was, once again, a different approach to the compareand-contrast exercise. To the Justices in the majority, it appeared that religious gatherings were being treated less favorably than hairstylists, manicurists, train stations, and checkout lines, while these latter activities posed at least the same risk of spreading COVID-19 as do gatherings for indoor worship with proper safeguards. In the dissenters’ view, though, the better comparators were political meetings, movies, concerts, and in-restaurant dining, which were also restricted by California. For the dissenters, even if the state’s policies did not afford religious exercise “most-favored nation” status, they treat worship just as favorably as secular activities (including political assemblies) that, Kagan believed, “pose the same risk of COVID transmission.”23

Tandon v. Newsom By April of 2021, in most of the United States, something like “normalcy” was returning, thanks to the development, availability, and use of effective vaccines. Likely the final chapter in the Court’s COVID-19-era 21

South Bay United Pentecostal Church v. Newsom (2021), Kagan dissent, pages 1 and 5. Chief Justice Roberts concurrence at 2. 23 Kagan dissent at 1. 22

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engagement with the balancing act between public health and religious freedom was its ruling in Tandon v. Newsom. With a short, punchy per curiam opinion, the Court rejected, by a 5-4 vote, Governor Newsom’s rules that limited at-home gatherings to three households. Tandon provided the clearest statement and summary of the Court’s approach, as it had developed since the South Bay case. Perhaps the most notable feature of the Court’s opinion was its explicit embrace of Justice Kavanaugh’s approach, and its statement that “government regulations are not neutral and generally applicable... whenever they treat any comparable secular activity more favorably than religious exercise.” The fact, which Justice Kagan emphasized in dissent, that at-home gatherings for “secular” reasons were also regulated, was not determinative. Instead, the majority compared the treatment of at-home religious gatherings to the more favorable, less regulated stance taken toward “hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants.”24 This disparate treatment of the exercise of First Amendment rights triggered close judicial review of the state’s explanation for it—that is, of its reasons for not employing less restrictive means of advancing its public health goals—and that explanation was found wanting. It remains to be seen, and one should hope it will not be seen anytime soon, how the principles and method developed for reviewing the impact of public health regulations on religious exercise will be applied during the next emergency. That said, the Court’s end-of-Term decision in Fulton v. City of Philadelphia provides a suggestive data point.25 In that case, the Justices were unanimous in concluding that Catholic Social Services’ religious exercise rights were violated when it was excluded from participating in the city’s foster care certification program because of its commitments regarding the nature of marriage. The Justices who had dissented in Tandon—Breyer, Kagan, and Sotomayor—joined Chief Justice Roberts’ opinion, which stated that a law “lacks general applicability if it prohibits religious conduct while permitting secular conduct

24 25

Tandon v. Newsom per curiam, pages 1, 3. See Chapter 7 on Fulton v. Philadelphia.

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that undermines the government’s asserted interests in a similar way.”26 The Chief Justice’s opinion did not, however, cite Tandon, but the connections among the recent rulings expanding religious protections are clear. Stay tuned.

26

Fulton v. Philadelphia decision at 6.

13 Tanzin v. Tanvir on RFRA and Damages Against Federal Officials for Violations of Religious Liberty Paul Baumgardner

During the U.S. Supreme Court’s 2020–2021 term, the Court decided several cases that explored the contours of religious freedom in the United States. Tanzin v. Tanvir was one of those influential cases. Behind the Court’s mere nine-page decision lay several puzzles for both federal officials and legal reformers. Although the Court issued a unanimous decision in Tanzin, the Justices’ terse, textualist ruling significantly heightened the financial stakes of religious freedom claims without leaving federal officials or legal reformers much guidance about the future of rights enforcement. Tanzin v. Tanvir centered around the Religious Freedom Restoration Act of 1993 (RFRA) and the kind of relief that claimants may seek under this federal statute. The respondents in this case were three Muslim men—Muhammad Tanvir, Jameel Algibhah, and Naveed P. Baumgardner (B) Belmont University, Nashville, TN, USA e-mail: [email protected]

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Shinwari—who were wrongfully added to the Transportation Security Administration (TSA) No Fly List. According to the respondents, the Federal Bureau of Investigation (FBI) repeatedly attempted to coerce them into acting as government informants and to spy on members of their faith. The respondents declined, so the FBI placed them on the TSA No Fly List. Because of this imposition on their travel, the respondents financially suffered. Tanvir, Algibhah, and Shinwari sued select FBI agents for monetary damages, invoking a clause in RFRA that grants “appropriate relief ” to the victims of religious persecution.1 Although the district court ruled against the three men, the U.S. Court of Appeals for the Second Circuit reversed the lower court’s ruling and found that the FBI agents were financially liable for their actions. The Second Circuit’s decision was appealed to the Supreme Court, which was tasked with determining whether the appropriate relief remedy guaranteed under RFRA can include damages against individuals who serve as federal government officials.

The Opinion of the Court On December 10, 2020, the Supreme Court issued a unanimous 8-0 decision affirming the Second Circuit’s ruling.2 Justice Clarence Thomas—who has long defended an expansive view of both RFRA and the First Amendment’s Free Exercise Clause—penned the opinion of the Court. In this short and blunt opinion, Thomas moves methodically through the RFRA text, plucking out the key terms and statutory clauses being disputed in the case and proffering the ordinary meanings for each. “Our task is simply to interpret the law as an ordinary person would. Although background presumptions can inform the understanding of

1

See Religious Freedom Restoration Act of 1993, Public Law No. 103-141, 107 Stat. 1488. Justice Amy Coney Barrett had not yet joined the Court when oral arguments were heard, and she did not participate in the Court’s decision. 2

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a word or phrase, those presumptions must exist at the time of enactment. We cannot manufacture a new presumption now and retroactively impose it on a Congress that acted 27 years ago,” Thomas explains.3 The opinion first addresses the kinds of suits that are explicitly protected through RFRA. For example, does the statute permit the religiously persecuted—such as Tanvir, Algibhah, and Shinwari—to “sue Government officials in their personal capacities”?4 Thomas turns to the text of the statute, which clearly states, “A person whose exercise of religion has been unlawfully burdened may ‘obtain appropriate relief against a government’.”5 Lawsuits against the government obviously are protected through RFRA. Moreover, RFRA defines “a government” quite broadly, covering “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”6 The Court interprets these passages to mean that RFRA grants injured parties the right to sue more than just a government agency, such as the FBI. The statute also authorizes suits brought against individual persons who serve as federal government officials, such as select FBI agents. Thomas is quick to highlight the conventionality of this statutory text (as well as the conventionality of the Court’s method of statutory interpretation). Other federal civil rights laws also allow “individual-capacity suits” against persons who serve as federal government officials.7 Next, the opinion interprets the appropriate relief remedy guaranteed under RFRA. Although the phrase “appropriate relief ” is not explicitly defined within the statute, Thomas discovers that the phrase does include monetary damages. Thomas points both to “the phrase’s plain meaning at the time of enactment” and also to similar examples of monetary damages being categorized as appropriate relief. According to Thomas, “damages against federal officials remain an appropriate form of relief today.”8

3

Tanzin decision, page 8. Ibid. at 3. 5 Ibid., quoting the Religious Freedom Restoration Act of 1993. 6 Ibid. 7 Ibid. at 4. 8 Ibid. at 5. 4

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Citing the judicial and legislative history surrounding RFRA, the opinion of the Court contends that the statute accomplished more than merely returning to the religious rights landscape that existed before the Supreme Court decided Employment Division v. Smith in 1990.9 “RFRA made clear that it was reinstating both the pre-Smith substantive protections of the First Amendment and the right to vindicate those protections by a claim,” Thomas asserts.10 Near the end of the opinion, Thomas goes one step further, finding that the statute’s damages remedy against individual persons represents “the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction… it would be odd to construe RFRA in a manner that prevents courts from awarding such relief.”11 Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari were well within their rights to sue select FBI agents for monetary damages. RFRA undeniably ensures this form of redress for victims of religious persecution.

Caveats Legal observers closely watched cases such as Tanzin v. Tanvir and Fulton v. City of Philadelphia to see how the newly reconstituted Supreme Court would approach religious freedom. Would the Justices rely on RFRA and the First Amendment to craft new, broad protections for religious adherents and institutions? Or would a sharply fractured Court end up weakening religious freedom protections? Would religious freedom case law become transformed into a deeply partisan instrument, which could be wielded by conservatives to legitimate and provide cover for reactionary social agendas? Or would the Court seek out pragmatic solutions to balance an increasingly divisive area of American law?

9

494 U.S. 872 (1990). Tanzin decision at 6. 11 Ibid. at 7. 10

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The unanimous Tanzin ruling appears to offer more questions than answers.12 Justice Thomas’ curt opinion is barely able to conceal the indeterminate futures of RFRA and of religious freedom in the United States. On the one hand, it seems likely that Tanzin will have a chilling effect on federal law enforcement. Although the Supreme Court vindicated individual-capacity damages suits under RFRA, the Court did not elaborate on any parameters for these suits. Beyond the Tanzin case, how will these suits operate and how far will they extend? When can federal officials be held liable for such damages? What guidelines should lower federal courts follow? The eight Justices who decided Tanzin furnished minimal guidance. It is easy to understand why an FBI official, a TSA agent, a federal housing official, or a prison guard working at a federal penitentiary might shirk their professional duties after learning of the Tanzin ruling. They might think twice before taking action against a religious adherent or institution, reasonably deciding that it is not worth the risk of financial ruin if they accidentally misstep. Additionally, federal officials might worry about regulating privately held corporations too closely, for fear of inadvertently committing a RFRA violation and triggering a massive damages suit.13 If this sounds too apocalyptic, it is important to remember that Tanzin self-consciously reaches beyond RFRA; Justice Thomas notes that statutes like the Religious Land Use and Institutionalized Persons Act (RLUIPA) include similar appropriate relief clauses as well.14 Is this the beginning of the kind of anarchy that former Justice Scalia warned about in Smith?15 Maybe, but maybe not. Justice Thomas does insert several significant restrictions into the opinion of the Court. For example, in one footnote Thomas hedges:

12

Similarly, the Fulton decision was unanimous, but it left open many questions regarding the future of Smith and the Free Exercise Clause. 13 See Burwell v. Hobby Lobby, 573 U.S. 682 (2014). 14 Tanzin decision at 8. 15 “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.” Employment Division v. Smith, 494 U.S. 872 (1990) at 888.

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Both the Government and respondents agree that government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA. Indeed, respondents emphasize that the “qualified immunity defense was created for precisely these circumstances,”…and is a “powerful shield” that “protects all but the plainly incompetent or those who flout clearly established law.”16

In addition to federal officials shielding themselves with formidable qualified immunity defenses, the appropriate relief guaranteed under RFRA can be legislatively erased. Justice Thomas encourages Congress to take such a step if it is uncomfortable with the heightened financial stakes of religious freedom claims under RFRA: To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there are no constitutional reasons why we must do so in its stead. To the extent the Government asks us to create a new policy-based presumption against damages against individual officials, we are not at liberty to do so. Congress is best suited to create such a policy.17

Conclusion So where does Tanzin actually leave us? Where does the decision leave religious freedom? As progressive pundits and legal observers in the United States increasingly bemoan the possibility of unbridled religious freedom (which they interpret as crowding out more valuable social goods and constitutional rights), Americans should not ignore several likely alternative futures for Tanzin, RFRA, and religious freedom. The first future is one of retrenchment. As they continue to be battered by heavy public criticism, state and federal religious rights protections do not seem durable. This vulnerability represents one of the most momentous (yet undertheorized) political developments in the United 16 Tanzin decision at 8. For further discussion of qualified immunity, see SCOTUS 2020 Chapter 6 “Hernández v. Mesa on Rights and Restitution for Victims of Excessive Force at the Border,” by Paul Collins and Rebecca Hamlin. 17 Ibid.

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States over the past thirty years. Consider the long-term viability of RFRA. Once deemed a central statute for warding off religious persecution, the future of RFRA appears wobblier today. State and federal RFRAs received considerable bipartisan support in the 1990s and early 2000s. But recent years have witnessed a sweeping progressive attack on anything resembling expansion in religious rights protections, and new state RFRA bills have become too politically toxic to pass.18 As the fate of state RFRAs continues to fall, will the federal RFRA eventually weaken as well? The Court’s ruling in Tanzin places the ball firmly in Congress’ court. And as public opinion—especially on the Left—continues to scrutinize religious rights protections as inherently discriminatory and antimodern tools of the Right, it certainly is possible that a future Democratic majority in Congress will take up Justice Thomas’ advice and revise, retrench, or radically weaken the ostensibly reactionary RFRA. The second future relates to the first, and may even prove the compromising catalyst for the first. This future is forced to wrestle with the progressive puzzle generated by Tanzin. This is a puzzle of political priorities. Since the murder of George Floyd in 2020, progressives have ramped up their calls to either eliminate or—at the very least—to severely limit qualified immunity defenses for public officials, especially law enforcement officials. In order to hold public officials accountable for their violence, negligence, and rights violations, progressives have led the public outcry to remove qualified immunity defenses for state and federal government officials. However, at the same time, American progressives have participated in a growing demonization of state and federal RFRAs and of expansive Free Exercise Clause interpretations that supply greater safeguards for religious adherents and institutions. Here too, progressives are leading the push to temper preexisting legal protections (in this case, state and federal religious freedom protections). The Court’s reasoning in Tanzin appears to set these two priorities on a collision course. Relaxing qualified immunity defenses for federal officials will expand the financial stakes of RFRA claims, while maintaining or strengthening qualified immunity defenses will erode the financial 18

See Paul Baumgardner and Brian K. Miller, “Moving From the Statehouses to the State Courts? The Post-RFRA Future of State Religious Freedom Protections,” 82 Albany Law Review 4 (2019).

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stakes of RFRA claims. It is unclear which progressive priority will gain primacy in the years to come. Maybe the puzzle will find a way of dissolving naturally without jeopardizing either priority, but maybe it won’t. What is clear is that the Supreme Court’s recent religious freedom cases, such as Tanzin v. Tanvir, augur a precarious political future for religious protections in the United States.

14 Torres v. Madrid on Use of Force Under the Fourth Amendment Stephen Simon

Apart from the pandemic and the presidential election, no topic occupied the Nation’s attention over the past year more than police misconduct. Torres v. Madrid resonates with ongoing conversations about the fraught nature of many interactions between law enforcement and the public. The case centers on an incident in which police officers opened fire on Roxanne Torres, who was fleeing in her vehicle. The officers shot at Torres thirteen times, striking her twice. Torres sued the officers, alleging that they used excessive force against her in violation of the Fourth Amendment. The issues raised have implications far beyond the events that gave rise to the dispute. Although Torres connects with a prominent subject of heated public debate, you might not know it from reading the decision. This is not unusual. Constitutional litigation frequently couches topics that excite S. Simon (B) University of Richmond, Richmond, VA, USA e-mail: [email protected]

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strong reactions in technical arguments about the meaning of legal phrases. There is good reason for that. On the one hand, constitutional law concerns fundamental questions about the country’s character and the scope of government power. On the other hand, it is not the Justices’ job to answer these questions simply by consulting their own consciences. They are entrusted with interpreting the laws that belong to everyone, which often involves the intricate analysis of multiple sources, including history, statutes, and judicial precedents. The big picture is wrapped up with fine details. Navigating a dispute to the Supreme Court means compressing the raw feelings and messiness of real-life struggles into questions expressible in a few lines. It only took sixteen words for the Court to state the issue in Torres: “whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting.”1 To appreciate the stakes, we will examine the constitutional controversy in Torres, the reasoning behind the Court’s opinions, and the broader ramifications of the decision.

What Is a Fourth Amendment Seizure? The Fourth Amendment declares that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...” It is one of the main constitutional provisions governing the interaction of law enforcement with the public. Unlike many rights protections phrased in more absolute terms, the Fourth Amendment speaks of “unreasonable” government actions. Reasonableness is the standard, and one could fill a library with cases and commentary discussing its boundaries. In addition to reasonableness, the other key concept is “searches and seizures.” This places great significance on the meaning of those terms because they determine when the Amendment applies. Torres does not focus on reasonableness, but instead on whether what occurred counts as a Fourth Amendment seizure. 1

Torres decision, page 1.

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During the early morning hours on July 15, 2014, New Mexico police officers Janice Madrid and Richard Williamson arrived at an Albuquerque apartment complex to arrest a woman (not Torres) who was suspected of various crimes. Torres was seated in her vehicle in the apartment’s parking lot when the officers approached, seeking information to help them in making the arrest. Unaware of the officers until they were trying to open her car door, and spotting their guns but not their police identification, Torres claims that she thought she was being carjacked.2 As she sped out of the lot, the officers shot at her 13 times. The two bullets that struck Torres in the back left her paralyzed in one arm. Steering with the other arm, Torres entered a nearby lot, where she stole an idling car, and drove to a hospital 75 miles away. After being transferred to a hospital back in Albuquerque for suitable medical care, Torres pled no contest to a number of charges, including fleeing from a law enforcement officer and unlawfully taking a motor vehicle. Two years later, Torres sued Madrid and Williamson under a federal statute that allows individuals to recover damages from state officials in their personal capacities for actions depriving them of their constitutional rights.3 Torres alleged that the officers’ bullets unreasonably seized her in violation of the Fourth Amendment. The officers sought to have the lawsuit thrown out on the grounds that their actions did not constitute a seizure. Some questions about seizures are easy. For instance, a seizure clearly occurs if the police grab a man by the wrists while shouting that he is under arrest. And a seizure clearly does not occur if officers wish a passerby a nice day and then go on their way. What makes our case trickier is that the officers tried to stop Torres but failed. It might seem bizarre to say that a person is seized when grasped by the arm but not when shot in the back. Yet, from the perspective of textual interpretation, it might also seem strange to say that individuals can be seized if their motion is never halted. By addressing what it means for a person

2 Although the facts were contested, the Court adopted Torres’ version of events for procedural reasons: namely, because the lower courts had held that the lawsuit lacked merit even if all of her allegations were true. 3 42 U.S.C. § 1983.

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to be seized under the Fourth Amendment, Torres helps to delineate the contours of the Constitution’s protection.

The Court’s Opinions The officers won in the lower courts, which held that Torres was not seized because she eluded capture. By a vote of 5-3, the Supreme Court reversed, allowing Torres to resume her lawsuit.4 In a majority opinion written by Chief Justice Roberts (and joined by Justices Breyer, Sotomayor, Kagan, and Kavanaugh), the Court announced the rule that a seizure occurs whenever the police apply force to an individual’s body with the intent of restraining. Crucially, the occurrence of a seizure did not depend on whether the person escaped. Since the officers applied force to Torres’ body with the intent to restrain, she was seized in a constitutional sense during the moments when the bullets struck her. Roberts’ opinion largely tracked the reasoning of the Court’s ruling 30 years earlier in California v. Hodari D.5 That case concerned a youth who discarded drugs just before being tackled by a police officer. The Court held that the youth was not seized until the tackle, and, thus, could not use the Fourth Amendment to block admission of the drugs as evidence at trial. In his majority opinion, Justice Scalia indicated that there were two ways a person could be seized: (1) if the police made a show of authority—as by yelling “You are under arrest”—and the person submitted; or (2) if the police applied force to an individual’s body in an effort to restrain, regardless of the outcome. Scalia’s analysis rested on the common law: a body of legal doctrines built up by judges over time through individual decisions based on a combination of customary practices and principles of reason. The common law was initially developed in England, and the American colonists made it part of their own legal systems, where it continued to evolve. The Court often looks to common law for insights into the 4 When the case was heard the Court had only eight members after the passing of Justice Ruth Bader Ginsburg. 5 499 U.S. 621 (1991).

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meaning that specific terms had at the time of the Constitution’s adoption.6 According to Scalia, when it came to property, the common law principle was that seizure meant taking possession. If officers tried to take hold of an object but failed, then there was no seizure. However, Scalia found that the rule was different for arrests, which was the quintessential instance of a person being seized. As long as officers got a hand on someone with the intent to subdue, there was an arrest. In Torres, Roberts not only adopted Hodari D’s framework for determining what counted as a seizure, but also Scalia’s approach of looking to the common law for guidance. Now, Roberts acknowledged two differences between the old common law cases and Torres’ arrest. First, in virtually all of the common law cases, the officers applied force to the arrestees’ body with their own hands, not with bullets or other inanimate implements. Second, the common law cases mostly concerned the collection of debts in civil lawsuits, not criminal prosecutions. However, Roberts did not think that either of these differences compelled a different result. Regarding the use of force with inanimate objects, Roberts cited a 1604 decision from England, Countess of Rutland’s Case, in which an officer authorized to collect debts arrested a woman by touching her body with a mace.7 Moreover, he noted that there were no early common law decisions involving suspects apprehended with guns simply because law enforcement did not begin carrying firearms until the second half of the nineteenth century. At any rate, the common law never said that the application of force had to be with the officers’ own hands, and Roberts saw no basis for adopting such a rule. As for the majority’s predominant reliance on civil cases, Roberts stressed that the common law rules relevant to the dispute did not distinguish between the civil and criminal contexts. Justice Gorsuch’s dissenting opinion, joined by Justices Thomas and Alito, rejected the majority’s source as beside the point. According to Gorsuch, Roberts had relied on portions of Scalia’s opinion in Hodari D which were mere dicta—rhetorical flourishes unnecessary to decide 6

The Constitution was adopted by the Constitutional Convention in 1787 and ratified in 1788, and the Bill of Rights, comprising the first ten amendments, was approved by Congress in 1789 and ratified in 1791. 7 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber 1605).

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the case before the Court, and, thus, lacking in precedential authority. Gorsuch also argued that the civil debt collection cases that the majority relied on were too far afield from the issues in Torres to have any bearing on the case. According to the dissenters, the principles governing the seizure of property and individuals must be the same, since the Fourth Amendment collectively references “persons, houses, papers, and effects.” In their view, the relevant precedents revealed the correct rule: seizing “something doesn’t mean touching it; it means taking possession.”8 Gorsuch’s opinion additionally appealed to common sense, deeming it absurd to suppose that the officers seized Torres but not the car she was driving. Thus, the dissenters agreed with the lower courts that Torres could not have been seized because she got away. There were intriguing aspects to the breakdown of the Court’s votes in Torres. While Roberts is considered one of the Court’s conservative Justices, he has authored important opinions for slim majorities that included the liberal Justices. After last year’s passing of the Court’s most senior liberal member, Justice Ruth Bader Ginsburg, Court observers questioned whether Roberts could continue to play a similarly pivotal role in sharply divided cases. However, in Torres, Roberts marshaled a majority that included not only the three remaining liberal Justices, but also Kavanaugh, another one of the Court’s conservatives. Another interesting feature of the voting alignment revolves around Scalia’s opinion in Hodari D. Scalia, a famously conservative Justice, was known for relying on common law cases to reveal the meaning that constitutional terms had during the Founding era. Yet, in Torres, it was three of the current Court’s most conservative Justices who rejected Scalia’s reasoning on the grounds that the circumstances of the precedents he cited were too different from today’s cases to be helpful. An additional twist concerned Justice Amy Coney Barrett, who did not participate in the case because she had not yet joined the Court by the time of the oral argument. Barrett is regarded as closest in judicial philosophy to the conservative dissenters in Torres, who repudiated Scalia’s reasoning in Hodari D. But Barrett is the Justice most closely associated with Scalia; she spent two years clerking for him

8

Torres Gorsuch dissent, page 6.

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and has extolled his interpretive methods. Something to watch is how the newest Justice will vote when similar issues arise in future cases.

The Fourth Amendment and Police Accountability Although it is not a new issue, abusive police behavior—especially in encounters with African Americans and other minorities—has recently received intensified public attention. There are many views regarding the nature of the problem and the best ways to address it. For instance, some focus on transforming cultural attitudes while others maintain that only institutional reform can bring about real change. Constitutional law has a vital place in this conversation because it provides critical mechanisms for imposing accountability on the instruments of government power. Constitutional rights speak in grand terms. They invoke ideals like freedom, equality, and what it means for public officials to behave reasonably. These lofty phrases serve important roles in themselves. They articulate the people’s self-conception and teach basic principles around which democratic governance is organized. That said, the great rights clauses are not only exhortatory or pedagogical in character. They were also meant to provide enforceable guarantees against abuses of power. However, the text typically says little about remedies. The Bill of Rights furnishes standards, but does not say much about what happens when they are violated. It often falls on the judiciary to develop the legal doctrines that give rights their practical bite.9 No portion of the Constitution is more significant than the Fourth Amendment in safeguarding the people from misconduct by the officers who are charged with maintaining peace and security. One of the most significant judicial doctrines that gives life to the Amendment’s mandates is the “exclusionary rule,” which blocks the government from

9 See the discussion of restitution for rights violations in SCOTUS 2020 Chapter 6 on Hernández v. Mesa by Paul Collins and Rebecca Hamlin.

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using evidence obtained unconstitutionally in court.10 The rule shelters criminal defendants and removes the incentive in many situations for officers to transgress the Constitution. However, the impact of the exclusionary rule on police behavior is limited. It applies in the context of criminal prosecutions, but offers little protection from police misconduct that harms individuals in other ways. Another vital mechanism for enforcing rights resulted not from the Court’s decisions, but from congressional legislation: the Enforcement Act of 1871, which allows individuals to bring legal actions against public officials who violate their constitutional rights. This is the statute Torres used to sue Madrid and Williamson. Since the statute only applies if there is a constitutional violation, Torres’ holding about the meaning of a Fourth Amendment seizure has important implications for police accountability. It facilitates a remedy for individuals harmed by police violence even if they are never prosecuted or even arrested. Much of the current debate is about balancing the needs of law enforcement in carrying out its inherently dangerous responsibilities and the public’s right to be protected from police abuse. A crucial question concerns the extent to which existing law holds the police accountable. In Torres, the dissenters emphasized the range of remedies that individuals may use to address police abuse. For example, Torres could have alleged different constitutional violations under the Enforcement Act, or brought an action based on state laws on assault and battery.11 Meanwhile, the majority noted a number of hurdles that Torres still must clear to succeed in her lawsuit. Most notably, she must show that the officers acted unreasonably (the other facet of the Fourth Amendment’s boundaries), and that they did so in a way that violated “clearly established” principles of law.12 For now, one thing about Fourth Amendment seizures is clear: people cannot be deprived of a day in court against the police just because they escaped being brought into custody. We can also be assured that the Fourth Amendment will remain a crucial arena for negotiating law enforcement’s interaction with the 10

Weeks v. United States (1914) for federal cases and Mapp v. Ohio (1961) for violations by state governments. 11 Torres Gorsuch dissent, pages 2–3. 12 Harlow v. Fitzgerald , 457 U.S. 800 (1982) at 818.

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public. Less than three months after Torres, the Justices decided another case regarding the scope of legitimate police action, Lange v. California. While the Fourth Amendment normally requires officers to obtain a warrant before entering a person’s home, the Court has recognized an exception for certain emergency circumstances, as when police are chasing a fleeing suspect. The lower courts held that this exception applied even if the person fleeing was suspected of only minor crimes. In Lange, the Court rejected such a bright-line rule allowing warrantless entry in hot pursuit for suspected misdemeanors, opting instead for an approach that evaluates the overall circumstances of each particular instance. Together, Torres and Lange exemplify the Constitution’s vital significance to continuing national conversations about the bounds of legitimate behavior by law enforcement.

15 Uzuegbunam v. Preczewski on Nominal Damages and the Right to Assert Rights Howard Schweber

In 2016, two students at Georgia Gwinnett College wanted to pass out religious literature to their fellow students. They were prevented from doing so because of a campus policy that limited distribution of religious materials outside specially designated “free speech zones,” and even then a permit would be required. When one of the students, Chike Uzuegbunam, tried to talk to students in the free speech zone after acquiring an official permit, he was stopped again—this time by a campus police officer claiming he had violated a school policy banning any statement even within the free speech zone which “disturbs the peace and/or comfort of person(s).” The two students sued, claiming violations of their First Amendment rights. In response, college officials initially proposed that the religious speech in question was unprotected “fighting H. Schweber (B) Department of Political Science, University of Wisconsin, Madison, WI, USA e-mail: [email protected]

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words”; shortly thereafter they abandoned that argument and the policies in question. The college then moved to dismiss the case on the grounds that since the policies had been revoked, there was no longer anything to argue about (in legal terms they asserted that the case was “moot”). The students argued that the case should be allowed to continue on the grounds that they were seeking “nominal damages” for the past infringement on their rights. Writing for an 8-1 majority (Chief Justice Roberts dissenting) Clarence Thomas ruled in favor of the students. In legal terms, the Court held that a plaintiff seeking only nominal damages has “standing” to pursue a claim. “Standing” is a technical term that hides a hugely important question: who gets through the courthouse door? A right that cannot be enforced is not a real right at all, and in the U.S. system, access to federal courts is a key element of rights enforcement. So to declare that certain parties or certain claims cannot be heard in court at all is tantamount to saying “in this case we will not see the rights being asserted at all.” That is what is meant by saying that a plaintiff lacks standing; either the nature of the claim or the position of the party fails to satisfy the requirements for getting through the courthouse door.1 The basis for standing rules is the requirement in the Constitution (Article III) that federal courts hear “cases or controversies” arising under federal law or the Constitution. The phrase “case or controversy” has been relied on by courts over the years to create a thicket of complicated rules limiting the cases that federal courts can hear. The question must be “ripe” (there must be a claim of an actual harm, not one that might occur in the future) but cannot be “moot” (the harm has to be continuing or likely to recur; it cannot be something that happened in the past and is now over). The plaintiff must be a “real party in interest”: they themselves have to be the one to have suffered a harm; they cannot be suing on behalf of someone else. The question cannot be political, meaning courts 1 One of the most famous quotations in American constitutional law is John Marshall’s statement in Marbury v. Madison that “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137 (1803) at 163. In the very same opinion, however, Marshall laid the groundwork for what became the “political question doctrine,” which says that certain kinds of issues could not be reviewed by courts, thus sharply cutting back the scope of judicial review that had been exercised by the first generation of Supreme Court Justices.

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have to be able to determine an outcome based on legal rules, and there must be an available remedy that courts can provide. These are restrictions that courts have said derive from the Constitution; there are further limitations that courts have adopted on the grounds that they are “prudential.” And there are exceptions, and exceptions to the exceptions… despite its obvious importance, it may fairly be said that standing doctrine is an area of constitutional law that only a lawyer could love.2 In Uzuegbunam, the standing question turned on the specific question of whether a claim for nominal damages is enough to establish that a plaintiff has standing. A suit for nominal damages is one that seeks a symbolic amount of money, usually (as here) $1. Justice Thomas addressed the issue by turning to the English common law tradition to explain the meaning of Article III of the Constitution. At common law, says Thomas, there was a long-standing tradition of allowing standing when the suit can only achieve a form of “declaratory” relief—a judgment merely “declaring” that certain conduct was wrongful. “For example, a trespass to land or water rights might raise a prospective threat to a property right … By obtaining a declaration of trespass, a property owner could ‘vindicate his right by action’ and protect against those future threats.”3 Thomas describes a historical development in which early common law rules requiring actual monetary damages in order to pursue a claim were replaced by rules to allow any alleged injury to receive redress from a court. “Later courts, however, reasoned that every legal injury necessarily causes damage, so they awarded nominal damages absent evidence of other damages (such as compensatory, statutory, or

2 While there are a great number of Supreme Court cases that deal with standing, there are a few that are considered canonical: see Baker v. Carr, 369 U.S. 186 (1962) on the political question doctrine; Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) on the question of what constitutes an injury in fact; Flast v. Cohen, 392 U.S. 83 (1968) on the question of whether taxpayers have sufficient particularized interest to challenge government spending decisions; and most recently Juliana 947 F. 3d 1159 (9th Cir. 2020), in which a Ninth Circuit panel determined that the remedies required to respond to the problem of climate change are too great to be within the competence of a court to deliver. 3 Uzuegbunam decision at 4.

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punitive damages), and they did so where there was no apparent continuing or threatened injury for nominal damages to redress.”4 Interestingly, Thomas cites an early voting rights case to illustrate the argument. Thomas also cited nineteenth-century American sources for the same rule. The principle, said Thomas, is essential to ensure the protection of noneconomic rights: “A contrary rule would have meant, in many cases, that there was no remedy at all for those rights, such as due process or voting rights, that were not readily reducible to monetary valuation.”5 As Thomas notes, the ruling does not mean that any time someone asserts a violation of the First Amendment they can get into federal court. The other requirements of standing “such as a particularized injury,” “a cognizable cause of action,” etc., are still required.6 But with this case, the Court has ruled that where a claim of constitutional rights violation is concerned, a demand for a $1 recovery to redress a past violation is sufficient to satisfy the element of standing that requires an available judicial remedy for a case to proceed. The rule is novel insofar as it uses nominal damages as a basis for continuing a lawsuit that challenges a policy that is no longer in effect. In past cases, a claim like this one would have been declared “moot.” Going forward, this rule opens a crack in one of the courthouse doors that was previously closed. In his dissent, Chief Justice Roberts identified that as exactly the problem: “If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.”7 Roberts rejects Thomas’ reliance on English common law practice on the grounds that separation of powers was not a concept that was known to English constitutionalism at the time of the founding.8 That concern, preservation of separation of powers, is at the heart of Roberts’ dissent: allowing anyone who claims $1 in nominal damages to bring a claim, he says, will mean that courts can be asked to rule on the constitutionality of any law without the presence of parties who have real stakes in the outcome. 4

Ibid. at 5. Ibid. at 8. 6 Ibid. at 11–12. 7 Uzuegbunam Roberts dissent at 1. 8 Ibid. at 4. 5

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Roberts is alluding here to the concept of an “adversary system” of law in which decisions should be made based on a contest between parties to a dispute through their champions (lawyers). Constitutional questions in particular, in this view, should not be decided in “the rarified atmosphere of a debating society.”9 And above all, Roberts insists on “the need to cabin the jurisdiction of the Judiciary to ensure it does not trespass on the province of the political branches,” a separation of powers-based argument for standing restrictions that goes all the way back to John Marshall in Marbury v. Madison.10

Pushing Open the Courthouse Door? How significant is the new rule announced in Uzuegbunam? As is usually the case, it is difficult to say until we see what kinds of limiting principles the Court will develop as the rule is tested and refined. Viewed in one way, the ruling is an invitation to file federal lawsuits for nominal damages to assert a wide range of constitutional rights claims that might previously have been rejected as too speculative to be heard. The courthouse door has been flung wide for anyone with a constitutional theory they would like to test, a narrative in which they were a participant, and a willingness to settle for $1 in damages. On the other hand, it is difficult to escape the impression that the facts of the case influenced the thinking of the Justices. Uzuegbunam involved deeply religious Christian students attempting to share their faith; both the category of parties and the nature of the claim have been treated with sympathy if not outright preference in recent years.11 What will happen when claims for 9 Uzuegbunam at 3. Chief Justice Earl Warren had provided a similar justification in a major standing case in 1968: “The gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Flast v. Cohen, 392 U.S. 83 (1968) at 99. 10 Ibid. at 5. 11 The ACLU, among many other observers, have suggested that the Roberts Court favors religious Christian plaintiffs in cases involving the Religion Clauses. See Daniel Mach, “The Supreme Court Is Playing Favorites with Religion,” available at www.aclu.org.

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nominal damages are used as the basis for standing to assert rights to which the Court’s conservative majority is less sympathetic? Or is the significant factor not the religious identity of the litigants but rather the Roberts Court’s increasingly libertarian take on freedom of expression?12 Alternatively, the political implication may be unfair, but the Justices may nonetheless find that they have opened the courthouse door more widely than they had realized. On what basis will they distinguish among different kinds of cases in order to push that door closed again? Or will a little-noted ruling13 on a technical point of standing law signal a meaningful change in the way federal courts review constitutional rights claims?

12

When the majority of the Roberts Court ruled that the First Amendment prohibits the collection of mandatory union fees, dissenting Justice Elena Kagan accused the majority of “weaponizing” the First Amendment. See Janus Kagan dissent at 26 and SCOTUS 2018 Chapter 5, “Janus v. AFSCME on Mandatory Fees to Public Sector Unions,” by Brett Curry. 13 A Google search for “Uzuegbunam” results in numerous results, but the vast majority of the links refer to freedom of speech or evangelical Christians; the fact that this was a decision about standing, and a potentially far-reaching decision on that subject, seems to have passed with very little notice. Google search results checked 30 June 2021.

16 Justice Ruth Bader Ginsburg’s Supreme Court Legacy Julie Novkov and Carol Nackenoff

Ruth Bader Ginsburg was an important force on the Supreme Court, providing a clear voice for gender equality, abortion rights, racial justice, free speech, and generally supporting a moderate to liberal agenda from the bench. In a closely divided Court, she cast a deciding vote in 112 cases from the time Chief Justice Roberts joined the Court in 2005 until her death.1

1 Justice

Ruth Bader Ginsburg as a Deciding Vote on the Supreme Court: Select Data, Congressional Research Service, 25 September 2020, R46546.

J. Novkov (B) University of Albany, SUNY, Albany, NY, USA e-mail: [email protected] C. Nackenoff Swarthmore College, Swarthmore, PA, USA

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Becoming Justice Ginsburg Ruth Bader was born in Brooklyn, graduated from Cornell University, married, and two years later entered Harvard Law School before transferring to Columbia Law School where she earned her LL.B. in 1959, graduating first in her class. Ginsburg was a professor at Rutgers University School of Law and subsequently at Columbia University Law School. She had experienced firsthand some of the discrimination women faced in the workplace, cofounded the Women’s Rights Project of the American Civil Liberties Union in 1971, and served as general counsel of the ACLU from 1973 to 1980. Ginsburg argued some important early gender discrimination cases before the Supreme Court. She often chose cases in which a man was denied a benefit that would have been provided if the genders were reversed, as a means of establishing the principle of gender equality. Her first Supreme Court oral argument was in Frontiero v. Richardson, a successful challenge to the military’s refusal to provide dependent allowances for husbands of women serving in the military (while wives were entitled to a dependent’s allowance).2 And in Weinberger v. Wiesenfeld Ginsburg successfully argued that the Social Security Act discriminated illegally when it denied family benefits to widowed fathers when they were provided to widowed mothers.3 On March 20, 1993, Associate Justice Byron White announced his intention to step down at the end of the 1992–1993 term. At the time, he was the only Justice on the Court who had been nominated by a Democrat.4 President Bill Clinton nominated Ginsburg to serve as an Associate Justice. He hoped that she would become a consensus builder on the Court; in what he described as a “conversation of a lifetime,” the President recalled that he found her “disarmingly straightforward” and appreciated not only her intellect but also the fact that she understood 2 411 U.S. 677 (1973). The ACLU had filed an amicus brief and Ginsburg was given special leave by the Court to argue. The statute in question was held to discriminate unconstitutionally against women in the military. 3 420 U.S. 636 (1975). 4 Linda Greenhouse, “White Announces He’ll Step Down from High Court,” The New York Times, 20 March 1993.

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the human impact of Court decisions.5 At the time of her nomination, she had been serving as a judge on the U.S. Court of Appeals for the D.C. Circuit for about thirteen years; there, she had formed a lasting friendship with fellow judge Antonin Scalia, with whom she often disagreed on points of law. At the time of her nomination, some feminist organizations worried that she might undermine Roe v. Wade, since she had criticized the decision for relying on autonomy rather than sexual equality, and for going much further than had been necessary.6 She argued that the decision undermined liberalization of abortion statutes that had been going on at the state level and expressed concern that it would mobilize opponents of abortion.7 During Ginsburg’s confirmation hearings, she distinguished between questions regarding her record, which she agreed to answer, and those asking her to speculate about issues that might come before the Court, which she declined to answer. This distinction caught on among later nominees, becoming known as the “Ginsburg Rule.”8

Justice Ginsburg on the Bench Ginsburg was the first Justice appointed by a Democratic President in 26 years. She was only the second female Supreme Court Justice, joining Sandra Day O’Connor. Early in her tenure, she established her own path as a moderate, agreeing most frequently with Justices Kennedy and Souter, but also providing decisive votes on the left when liberals and

5 Clinton Digital Library, https://clinton.presidentiallibraries.us/rbg-topical-guide; William Jefferson Clinton, CNN Politics, 20 September 2020. 6 410 U.S. 113 (1973). On the concern from feminists—including Kate Michelman of the National Abortion Rights Action League (NARAL)—see Richard Carelli (Associated Press) “Abortion Allies Unsure of Nominee,” 15 June 1993. 7 Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade ,” North Carolina Law Review 63 (1985): 379–383. 8 See Denis Steven Rutkus, “Questioning Supreme Court Nominees About Their Views on Legal or Constitutional Issues: A Recurring Issue,” Congressional Research Service 2010: R41300, 6–10.

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conservatives divided.9 Before joining the Court, she had a reputation as a “moderate and ‘cautious’ jurist,” but also as a thoughtful and precise legal reasoner.10 As a Supreme Court Justice, she retained her dedication to the meticulous crafting of opinions. Whether tracing a line of precedent or parsing the salient facts, her writing was consistently thoughtful, presenting her arguments in logically connected steps. While she was capable of rhetorical flourishes and some degree of tartness, unlike her colleague and friend Antonin Scalia she tended to avoid pyrotechnics and to focus primarily on substantive, serious analysis. While Justice Ginsburg advocated strongly for her preferred outcomes and reasoning throughout her career, collegiality was always important to her. Just prior to her ascent to the Supreme Court, she explained that “the effective judge... strives to persuade, and not to pontificate,” encouraging dialogue with other branches of government, state-level actors and institutions, and judicial colleagues.11 She claimed that dissents and concurrences should be vehicles for substantive criticisms and departures, not “expressions... that generate more heat than light.”12 Her commitment to collegiality remained strong throughout her tenure on the Supreme Court; in 2016 she underlined the deep respect that the Justices held for each other and characterized collegiality as “key to the success of our mission.”13 Ginsburg was the first Jewish woman appointed to the Court. When reflecting on how being a Jew had affected her life’s work, she said that growing up in the shadow of World War II and the Holocaust reminded her of her status as an outsider. It made her empathetic to other outsiders and minorities who had suffered oppression for no sensible reason.14

9 See Christopher E. Smith et al., “The First-Term Performance of Justice Ruth Bader Ginsburg,” Judicature 78, 2 (1994): 74–77. 10 Harry Edwards, “In Tribute to My Friend, Justice Ruth Bader Ginsburg, AKA ‘Notorious RBG,’” Harvard Law Review 234 (2020–2021): 891. 11 Ruth Bader Ginsburg, “Speaking in a Judicial Voice,” New York University Law Review 67 (1992): 1186. 12 Ibid. at 1194. 13 Ruth Bader Ginsburg, My Own Voice (New York: Simon and Schuster, 2016). 14 Jane Eisner (editor of the Forward ) interviewing Ruth Bader Ginsburg, 1 February 2018, www.youtube.com/watch?v=TTKwqzaSC30.

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Race Justice Ginsburg established herself as a reliable member of the Court’s liberal wing regarding questions of race, particularly with respect to affirmative action and voting rights. Early in her Supreme Court tenure, she dissented in Adarand Constructors, Inc. v. Peña, objecting to the Court’s endorsement of strict scrutiny to evaluate federally mandated affirmative action programs, thereby limiting the authority of government agencies to implement diversity policies.15 In 2003, in the twin affirmative action cases addressing the University of Michigan’s programs to increase racial diversity, Justice Ginsburg dissented in Gratz v. Bollinger (which rejected Michigan’s undergraduate affirmative action program), and concurred in Grutter v. Bollinger (which allowed applying a multifactor approach, including race, to admissions decisions), in order to underline the historical and continuing inequality in education.16

Women’s Rights Justice Ginsburg remained steadfast in her support for women’s access to abortion. Planned Parenthood v. Casey (1992), the landmark ruling maintaining the core holding in Roe v. Wade in 1973, had already been decided when she joined the Court, but she was an important voice against further restrictions. In Gonzales v. Carhart (2007), she wrote a dissent joined by Justices Stevens, Souter, and Breyer which called the majority opinion “alarming.” “For the first time since Roe,” she charged, “the Court blesses a prohibition with no exception safeguarding a woman’s health.”17 And in Whole Woman’s Health v. Hellerstedt (2016), her short concurrence described Targeted Regulation of Abortion Provider (TRAP) laws as open attempts to “strew impediments to abortion” which “do little or nothing” for women’s health. Given ample

15

Adarand Constructors v. Peña, 515 U.S. 200 (1995) at 274. 539 U.S. 244 (2003) and 539 U.S. 306 (2003). 17 550 U.S. 124 (2007) at 170; Aziza Ahmed, “Symposium: Ginsburg’s Abortion Jurisprudence Prioritized Women’s Health,” SCOTUSblog, 13 October 2020. 16

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evidence of the safety of the medical procedure, Ginsburg wrote, the claim that such abortion laws are designed to protect women’s health is “beyond rational belief.”18 Her support for women’s equality remained steadfast. When crafting the Court’s majority opinion in U.S. v. Virginia in 1996, Ginsburg drew upon language employed earlier by her colleague, Justice O’Connor, arguing that state-sponsored gender-based exclusion of women from the Virginia Military Institute violated the Fourteenth Amendment’s Equal Protection Clause. Providing only an inferior alternative for women, Virginia had “fallen far short of establishing the ‘exceedingly persuasive justification,’... that must be the solid base for any gender-defined classification.”19 The burden, she wrote, rests on the state, and Virginia had not met its burden. Justice Scalia was prompted to write, in dissent, that the decision constituted “a de facto abandonment of the intermediate scrutiny that has been our standard for sex-based classification for some two decades,” in effect substituting strict scrutiny.20 Justice Ginsburg’s commitment to equal protection led her to vote with the majority in the major gay rights rulings of Romer v. Evans, Lawrence v. Texas, Windsor v. United States, and Obergefell v. Hodges. She penned a dissent in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) arguing that since the baker “would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple,” and that Colorado had chosen to grant vigorous protection from this sort of discrimination, the Colorado Civil Rights Commission’s action exhibited no hostility toward religion.21

Voting With respect to voting rights, election law expert Richard Hasen describes her as having “unfailingly sided with voters in election cases 18

Whole Woman’s Health v. Hellerstedt (2016), Ginsburg concurring opinion at 1–2. U.S. v. Virginia, 518 U.S. 515 (1996) at 546, quoting Mississippi Univ. for Women, 458 U.S. 718 (1982) at 731. 20 U.S. v. Virginia Scalia dissent at 574. 21 Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) Ginsburg dissent at 7–8. 19

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and viewed the Constitution as giving Congress broad power to protect voting rights.”22 Along with Justices Breyer, Stevens, and Souter, she dissented in Bush v. Gore on the 2000 presidential election recount, but her most famous and influential dissent was in Shelby County v. Holder in 2013. The Voting Rights Act, passed in 1965 and periodically reauthorized, provided a formula in Section 4(b) for identifying jurisdictions with problematic histories of voter suppression. Section 5 mandates that any covered jurisdiction must submit proposed changes to voting laws or practices to the Department of Justice for preclearance. A narrow majority of the Court found that the formula, last updated in 1975, was unconstitutional. The invalidation of Section 4(b) short-circuited Section 5’s preclearance process. In dissent, Justice Ginsburg emphasized the Fifteenth Amendment’s grant of power to Congress to address discrimination and the urgent need for continued oversight. She noted that in preclearance reviews between 1982 and 2006, the Department of Justice had found more than 700 proposed changes to be problematic.23 She emphasized the comprehensive nature of congressional review accompanying each successive reauthorization of the Act, counseling deference and claiming that Congress had easily met the burden of establishing that preclearance “is still effectively preventing discriminatory changes to voting laws.”24 Her recitation of the history and operation of the act defended its dynamism and the continued relevance of preclearance. She famously summarized: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”25 Justice Ginsburg eked out a narrow victory in Arizona State Legislature v. Arizona Independent Redistricting Commission in 2015. She wrote for a 5-4 majority upholding an Arizona initiative amending the state constitution to delegate the redistricting process to an independent commission rather than allowing the Arizona legislature to continue 22

Richard Hasen, “Symposium: Ginsburg Was a Champion of Voting Rights, but Mostly in Dissent,” SCOTUSblog, 29 September 2020. 23 Shelby County v. Holder, 570 U.S. 529 (2013) Ginsburg dissent at 571. 24 Ibid. at 570. 25 Ibid. at 590.

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to manage the process. Her opinion held that “the Elections Clause permits the people of Arizona to provide for redistricting by independent commission,” reading the Elections Clause in the U.S. Constitution as a “safeguard” against factional entrenchment in the states.26

Defendants’ Rights In the area of criminal justice, Justice Ginsburg has been characterized as a gradualist.27 Unlike a Justice to whom she is frequently compared, Thurgood Marshall, when considering the death penalty Justice Ginsburg supported rulings that narrowed its scope and strengthened procedural protections for death-eligible defendants rather than condemning the practice entirely.28 This approach guided her majority reasoning in Ring v. Arizona, which held that capital defendants are entitled to a jury’s determination of facts that render them eligible for the death penalty.29 In 2015, she was the only other Justice to join Justice Breyer’s vigorous dissent in Glossip v. Gross, examining the unreliability and arbitrariness of death penalty sentencing and application, arguing that they “believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.”30 She was a staunch defender of habeas corpus, “including in every one of the cases contesting the Bush Administration’s attempts to exempt its war on terrorism from federal court jurisdiction.”31 She championed procedural justice, but also showed a keen sense of awareness of

26

Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015) at 813, 815. 27 Christopher Slogobin, “Justice Ginsburg’s Gradualism in Criminal Procedure,” Ohio State Law Journal (2009): 867–887. 28 Ibid. at 870. 29 536 U.S. 584 (2002). 30 Glossip v. Gross, 576 U.S. 863 (2015) at 946, Justice Breyer dissent joined by Ginsburg. See also Jeffrey Kirchmeier, “Symposium: Ginsburg, the Death Penalty and Strategic Gradualism,” SCOTUSblog, 5 October 2020. 31 Slogobin supra at 875.

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the inequities in the criminal justice system.32 In Alabama v. Shelton, she wrote for the Court that defendants charged with misdemeanors which could lead to suspended sentences had a right to counsel, and strongly dissented in Connick v. Thompson, in which the majority overturned a jury verdict awarding $14 million dollars to an individual whose conviction was based on prosecutorial misconduct.33 And in one of her last opinions for the Court, filed in 2019, she issued a ruling holding that the Eighth Amendment’s Excessive Fines Clause applies against the states as well as against the federal government, incorporating one more Bill of Rights protection through the Fourteenth Amendment.34

The First Amendment Justice Ginsburg read freedom of speech fairly broadly. However, she joined the dissent in Citizens United , insisting that the First Amendment does not bar regulatory distinctions based on a speaker’s identity and does not require that corporations be treated identically to natural persons when it comes to political speech.35 She supported the separation of church and state and generally found that religious displays on public property violated the Establishment Clause. She wrote a dissent in American Legion v. American Humanist Association (2019) arguing that “By maintaining the Peace Cross on a public highway the [Capital Park and Planning] Commission elevates Christianity over other faiths and religion over nonreligion.”36 She joined Justice Souter’s dissent in Zelman v. Simmons Harris, finding that support for the religious mission of schools receiving vouchers paid for with 32

Lisa Kern Griffin, “Symposium: Procedural Equality in Ginsburg’s Criminal Justice Decisions,” SCOTUSblog, 1 October 2020. 33 535 U.S. 654 (2002); 563 U.S. 51 (2011). 34 Timbs v. Indiana, 586 U.S. ___ (2019), see SCOTUS 2019 Chapter 12, “Timbs v. Indiana on Excessive Fines and Civil Forfeitures,” by Marian Williams. 35 Citizens United v. Federal Election Commission 558 U.S. 310 (2010) at 394, Justice Stevens dissent joined by Ginsburg. 36 588 U.S. ___ (2019), Ginsburg dissent at 3. See SCOTUS 2019 Chapter 2, “American Legion v. American Humanist on Religious Monuments Under the First Amendment,” by Ronald Kahn and Gerard D’Emilio.

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taxpayer money violated the Establishment Clause. She voted with the majority in a holding that the Santa Fe school district’s policy of permitting student-led and student-initiated prayer at high school football games also violated the Establishment Clause.37 While she found herself on the side of a number of conservative Justices in City of Boerne v. Flores, holding that Congress had exceeded its authority under section 5 of the 14th Amendment by extending the Religious Freedom Restoration Act of 1993 (RFRA) to the states, her views on religious accommodation diverged from the conservatives.38 In her view, RFRA did not allow a for-profit company, based on the religious objections of its owners, to deny employees contraceptive health coverage to which they would otherwise be entitled. Writing for the other liberal Justices in Burwell v. Hobby Lobby, she called the majority opinion a “decision of startling breadth,” including the claim “that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”39 In her final official opinion, penned on July 8, 2020, Justice Ginsburg strongly dissented in Little Sisters of the Poor, writing that “In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs....Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”40

37

Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). City of Boerne v. Flores, 521 U.S. 507 (1997). 39 Burwell v. Hobby Lobby, 573 U.S. 682 (2014) Ginsburg dissent at 739. 40 Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 US__ (2020), Ginsburg dissent at 1. 38

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Conclusion Late in life, Ruth Bader Ginsburg—to her own surprise—became a celebrity, known to younger fans as “the Notorious RBG.”41 Fans, including many young women, paid attention to the collars that adorned her judicial robes signaling support for a decision, or dissent.42 Notorious RBG merchandise became popular. A documentary film about her life and a feature film were both released before her death. Despite her celebrity, her decision to remain on the Court was controversial. Even with President Obama’s two nominees, Sonia Sotomayor and Elena Kagan, joining her on the bench, the Court shifted rightward over the course of her tenure. In July 2013, Justice Ginsburg lunched privately with President Obama to discuss the risk that the Democrats would lose the Senate in the upcoming midterm elections, making it more difficult for him to fill a vacancy with a young left-leaning Justice. Ginsburg later described her potential retirement as “a question for my own good judgment.”43 In 2014, the Republicans retook the Senate. As the end of Obama’s second term neared, Antonin Scalia died suddenly in February of 2016, the Senate refused to consider Obama nominee Merrick Garland for his seat, and the Republicans nominated controversy-ridden Donald Trump for the presidency. At that point, Ginsburg likely calculated that the chances of her being replaced by a like-minded nominee would be better after January 2020. However, after Trump’s election, the Court migrated rightward with the additions of Neil Gorsuch and Brett Kavanaugh. Despite a fourth bout with cancer in 2020, Ginsburg clarified in July that she had no intention of leaving the Court “as long as I can do the job full steam. I remain fully able to do that.”44 Ginsburg died in September 2020 at the age of eighty-seven.

41

On the history of this designation, see Dahlia Lithwick, “Justice LOLZ Grumpycat Notorious R.B.G.,” Slate, 16 March 2015. 42 Chloe Foussianes, “Ruth Bader Ginsburg’s Collars Decoded,” Town and Country, 19 September 2020. 43 Susan Dominus and Charlie Savage. “The 2013 Obama-Ginsburg Lunch That Could Have Altered Supreme Court History—But Didn’t,” The New York Times, 26 September 2020. 44 U.S. Supreme Court, Statement from Justice Ruth Bader Ginsburg, 17 July 2020, available at SupremeCourt.gov.

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Small in stature but influential in her voting and in her words, she increasingly read from her most vehement dissents from the bench, somewhat uncommon at the time she began doing so.45 As a reliable and persuasive leader of the Court’s liberal wing in her last years, Ginsburg’s reputation seems likely to grow as the Court moves in a conservative direction.

45 These include Burwell v. Hobby Lobby, Gonzales v. Carhart, and Shelby County v. Holder. See Jacqueline Bell, “In Her Own Words: 4 of Ginsburg’s Strongest Bench Dissents,” Law360, 18 September 2020.

Index

0–9

A

1st Amendment 1, 3, 6–9, 22, 23, 74, 76, 78, 79, 95–99, 121, 122, 124, 125, 127, 130, 132, 147, 150, 152, 161 2nd Amendment 18, 22 4th Amendment 3, 5, 137–140, 142–145 5th Amendment 2, 4, 13, 53–55, 58, 60 6th Amendment 118 8th Amendment 83–85, 91, 160, 161 14th Amendment 76, 95, 158, 161, 162 15th Amendment 2, 10, 33, 36, 37, 40, 159 2020 presidential election 20

abortion 23, 153, 155, 157, 158 administrative agencies 63 Administrative Patent Judges (APJs) 2, 63, 65–67, 69 Affordable Care Act (ACA) 1, 2, 11, 12, 43–51 Alito, Samuel 4, 5, 7, 11, 15, 16, 18, 19, 28, 38, 39, 43, 45, 47–51, 66, 69, 80, 81, 95, 98, 99, 114, 115, 123, 141 amicus curiae 47, 97, 118 antitrust law 3, 101, 104–106, 108 Appointments Clause 65, 66 Armed Career Criminal Act (ACCA) 116 Article II 21, 68, 70

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 M. Marietta (ed.), SCOTUS 2021, https://doi.org/10.1007/978-3-030-88641-7

165

166

Index

B

Barrett, Amy Coney 5, 45, 66, 115, 124, 130, 142 Bong Hits 4 Jesus 8, 95 Branch, Taylor 15, 103, 106 Breyer, Stephen 4, 5, 8, 11, 15, 20, 22, 38, 44, 45, 47, 49, 50, 58–60, 66, 67, 69, 70, 97–99, 102, 114–117, 125, 127, 140, 157, 159, 160

C

Casey. See Planned Parenthood v. Casey census 19, 20 Chemerinsky, Erwin 10, 14 citizenship 19 climate change 2, 4, 12, 25, 26, 28, 31, 32, 149 Clinton, Bill 5, 154, 155 college sports 2, 5, 15, 101–103, 105–108, 110 Congress 3, 7, 8, 11–13, 17, 19, 27, 34, 38, 41, 43, 44, 47, 49, 64, 65, 67–71, 76, 112, 114–117, 131, 134, 135, 141, 144, 159, 162 Consumer Finance Protection Bureau (CFPB) 64 COVID-19 7, 70, 114, 119, 122, 126 crimes involving moral turpitude (CIMT) 112–114, 116 crimmigration 1, 111, 112, 118

D

defendants’ rights 1, 160

discrimination 29, 34, 37, 40, 73, 76–79, 154, 158, 159

E

election laws 10, 11, 20, 21, 38, 41, 158 Elections Clause 21, 160 Employment Division v. Smith 8, 76, 132, 133 en banc 10, 36 equality 6, 75, 78, 79, 81, 143, 153–155, 158, 161 Equal Protection Clause 158 Establishment Clause 161, 162 establishment of religion 6 executive power 66

F

federalism 31 federal removal 8, 27, 28 Free Exercise Clause 120, 121, 130, 133, 135 free speech 8, 9, 21, 75, 94, 97, 98, 153 free speech zones 9, 147

G

gay rights 158 gender 23, 153, 154, 158 Ginsburg, Ruth Bader 2, 14, 23, 114, 124, 140, 142, 153–164 Gorsuch, Neil 4, 5, 7, 16, 18, 28, 38, 45, 47, 66, 67, 80, 98, 102, 105, 107, 115–117, 122, 123, 125, 141, 142, 144, 163 gun rights 23

Index

167

H

M

Holocaust 78, 156

Marbury v. Madison 148, 151 Masterpiece Cakeshop v. Colorado Civil Rights Commission 77, 158

I

ideology 23 immigration 1, 13, 65, 111–114, 116–118 Immigration and Nationality Act (INA) 8, 112, 113, 115, 116 incorrigibility 88, 89 individual mandate 11, 12, 43–51 in-precinct voting 2, 39 Interstate Commerce Clause 11 Ivory Coast 19

J

N

name, image, and likeness (NIL) 109 Native Americans 35 Newsom, Gavin 127 nuisance 26, 57

O

Obama, Barack 1, 5, 163 Obamacare 1, 2, 4, 11, 12, 17–19, 22

juvenile offenders 4, 16, 84, 90 P K

Kagan, Elena 4, 5, 11, 15–17, 20, 22, 38, 40, 41, 44, 58, 64, 67, 70, 114, 115, 125–127, 140, 152, 163 Kavanaugh, Brett 4, 5, 15, 17, 22, 38, 45, 58, 66, 87, 89, 101–103, 108, 115, 122–125, 127, 140, 142, 163 Kennedy, Anthony 50, 155

pandemic 3, 5, 7, 16, 21, 22, 34, 77, 93, 119, 120, 123–126, 137 per curiam opinion 20, 127 permanent incorrigibility 3, 16, 85–90 Planned Parenthood v. Casey 157 political question 10, 26, 148, 149 precedent 20, 29, 31, 53, 56, 58, 59, 61, 67, 86, 89, 90, 115, 138, 142, 156 property rights 1, 12, 13, 54, 55, 57, 58, 67, 149

L

LGBT rights 4, 6, 22, 73 life without parole (LWOP) 83–88, 90, 91

Q

qualified immunity 134, 135

168

Index

R

race 10, 11, 13, 15, 34, 36, 38, 77, 100, 106, 157 Religious Freedom Restoration Act (RFRA) 3, 8, 129–136, 162 religious liberty 3, 4, 6, 7, 9, 16, 19, 73, 75–81, 120, 124 representation 19, 20 restitution 5, 19, 134, 143 Roberts, John 4, 5, 7, 17, 18, 21, 22, 37, 44, 54, 55, 63, 64, 66, 69, 70, 80, 115, 121, 122, 126, 127, 140–142, 148, 150–153 Roe v. Wade 155, 157

S

Scalia, Antonin 23, 50, 133, 140–142, 155, 156, 158, 163 seizure 3, 5, 138–142, 144 separation of powers 2, 4, 12, 13, 17, 22, 63, 64, 68, 69, 71, 150, 151 Sherman Antitrust Act 15, 104 slavery 78 social facts 13–17, 102 social media 3, 8, 93, 96, 97, 99 Sotomayor, Sonia 4, 5, 20, 22, 28, 30, 31, 45, 58, 67, 69, 86, 89–91, 114, 115, 125–127, 140, 163 standing 2, 9, 10, 12–14, 17–22, 44–51, 95, 148–152 stare decisis 90

statutory interpretation 8, 28, 131 student speech 3, 94, 95, 97, 98

T

Takings Clause 2, 53, 55 Texas v. Pennsylvania 20 textualism 28 third-party ballot collection 2, 9, 35, 37 Thomas, Clarence 4, 5, 7, 12, 18, 21, 38, 44, 45, 50, 51, 67, 80, 95, 99, 114, 115, 122, 130–135, 141, 148–150 Tinker case 94, 96–99 Trinity Lutheran 7 Trump, Donald 5, 20, 34, 71, 163 Trump v. New York 20

U

unions 2, 13, 54, 56, 58–60, 152 unitary executive theory 64, 69–71

V

voting fraud 14, 34, 37 Voting Rights Act (VRA) 2, 4, 8–11, 14, 15, 33, 34, 36, 37, 40, 41, 159

W

White, Byron 104, 107, 154