As we glance forward toward the upcoming political season, we also want to take the time to look back at some of the cases this term that have caused a stir in the governmental system. The major cases are covered here by Donald Roth, available in a video (located here) as well as in an article which more thoroughly details the cases and the impact they had.
Many industries and areas of life are marked by a rhythm of surging activity during certain times of the year. Retail stores have Christmas season. Farmers have harvest season. Public accountants have tax season. For legal nerds, it has become increasingly true that the last weeks of June (or, this year, the first few weeks of July) are Supreme Court season. Sure, the Court releases a few opinions throughout the year, but they hold on to almost all of the really big ones until right before the Court leaves on its summer recess. The pattern has become so regular that the eyes of the nation’s news media also gather around, with reporters setting up like hunters in their duckblinds along First Street Southeast, waiting eagerly for new decisions to be let fly each few days, captivated by the possibility of feeding something substantive to an insatiable news cycle.
Since 2013, each summer I’ve also taken this season as a chance to look back over the previous term. I do this to keep myself up-to-date for the sake of my teaching, and I share this in the form of annual presentations to my campus community. I also periodically share these reviews here, albeit less regularly.
This year is both remarkable and consistent with this trend for many reasons. For the Court, the uniqueness of the coronavirus pandemic created historic milestones, including its first virtual (via telephone) oral arguments and a term that saw the fewest signed opinions since the Civil War. For me, the uniqueness of Covid-19 meant that I created a video version of my campus update for the first time ever. Clearly this latter uniqueness is less historic than the former, but it does give me the opportunity to share the video with you as well.
Since you can watch the video (linked here), this also gives me this space to add on some notes and further remarks that I had to cut from there due to time limitations. The video includes timestamps that clarify when I address individual cases, so you can navigate that easily enough; however, for any of you who aren’t interested in the video, I’ll give a quick overview of what cases I cover there.
Quick Rundown of Major Cases (for those who want to skip the video)
Bostock v. Clayton County: This was the most significant landmark case of the term. In Bostock, the majority held that discrimination based on sexual orientation or gender identity is inextricably connected to “sex,” a protected class within Title VII of the Civil Rights Act of 1964. In other words, while these two characteristics are not protected innately, they are entailed by the protection against discrimination “based on sex.” As I will address below, this case left a significant number of issues unresolved as to what the exact impact of this ruling will be, especially as related to religious nonprofits.
Chiafalo v. Washington: The Court unanimously held that States have significant discretion to pass laws that hold “faithless electors” accountable. The American Constitutional system envisions federal power as the contractual creation of the various States. As a result, the federal government does not function as a direct democracy (where the people directly vote on policy decisions); instead, the States send representatives to Congress to vote for legislation, and they also designate representatives to vote for the President (this voting system is called the electoral college). This decision not only affirms that States may apportion electors to the electoral college as they choose, but the holding allows for various mechanisms that hold electors accountable to vote for the candidate that they were appointed to vote for.
DHS v. Regents of the University of California: In this case, the Court held that President Trump did not follow proper procedure in seeking wind down the Deferred Action for Childhood Arrivals (DACA) program. This decision was not about the President’s power to end the program (he can) but the procedure he followed. Generally, the Court will defer to regulatory actions taken by the executive branch so long as they conform to the Administrative Procedures Act (APA) and are not “arbitrary or capricious.” In this case, the lack of explanation given for why the administration viewed DACA as illegal or individual consideration of the various facets of that program (for instance, differentiating between things like granting social security cards and choosing not to pursue deportation actions) meant that the President’s decision did not abide by APA standards and would need to be better explained before the wind-down could be implemented. This just delays the policy change and, as I’ve argued before, highlights how important a legislative solution to this issue is.
Espinoza v. Montana Department of Revenue: This case struck down the application of a provision of Montana’s State Constitution that prohibited any sort of public funds being distributed to any religious institutions. These sorts of “No Aid” provisions are law in most states (although Montana has one of the strictest versions), and most were adopted in the wake of a failed attempt to amend the U.S. Constitution to prohibit any federal money or lands ever coming “under the control of any religious sect.” Given this ruling, the constitutionality of all similar state laws is in serious question.
Our Lady of Guadalupe School v. Morrissey-Berru: This case clarified and, in doing so, significantly extended the reach of the “ministerial exception” to employment discrimination laws. The concept behind this exception is that the First Amendment prohibits the government from interfering in the hiring decisions of religious organizations, and this case clarified that “ministers” are not designated by their title, but rather their centrality to the religious mission of the institution. It’s not yet clear how comprehensively this case interacts with Bostock, but it’s reasonable to conclude that this case would prevent the holding in Bostock from affecting faculty hiring practices at religious schools.
Trump Financial Records Cases (Mazars, Deutsche Bank, and Vance): These cases all involved subpoenas (legally-mandated disclosure) for various financial records, especially tax returns, from President Trump. In all three cases, the Court rejected the President’s arguments that he was entitled to broad immunity from subpoenas. This does not mean that the legal battle over these records is over, though, as the Court’s holding was primarily about the proper standard to apply when determining whether the subpoenas were valid and whether there might be case-specific reasons to block access to these documents. All of these cases return to lower courts to apply these new standards, and we shouldn’t expect this fight to be resolved before the upcoming election.
Important Cases that didn’t make the Video
Appointment Clause Cases: There were a number of cases this term dealing with the extent and limitations on the President’s authority to appoint (and remove) officials within the Executive Branch. The most important case among these was Seila Law v. Consumer Financial Protection Bureau. This case was especially important because it raised the potential of dismantling the relatively new CFPB. Ultimately, this did not happen; however, the unique design of the CFPB’s leadership was rejected. Specifically, the CFPB is led by a single person appointed by the President for a five year term, and that person cannot be removed except for certain reasons. The Court rejected this last restriction, viewing it as an unconstitutional delegation of Executive power. Instead, the President must be able to remove the Director of the CFPB at will, just like with all other executive agencies headed by a single person.
June Medical Services v. Russo: This case will end up being a historical footnote, but it had the potential to be a blockbuster. It involved challenges to the requirement that Louisiana doctors have admitting privileges at a local hospital in order to perform abortions, a restriction very similar to the one rejected in Whole Women’s Health v. Hellerstedt in 2016. In fact, the similarities are so striking that many experts wondered if this case was being taken up in order to rewrite the rules from that case, perhaps even striking down the line of precedent running back to Roe altogether. Ultimately, Chief Justice Roberts cast the crucial vote striking down the Louisiana law, and he did so based on his concern for how similar these two cases are and his respect for precedent, the idea that two factually similar cases should have similar results. What was striking is that that Roberts voted this way despite saying that he thought Hellerstedt was wrongly decided. Given that four of Roberts’ more conservative colleagues signaled their readiness to significantly rethink the way abortion rights are considered, this is an issue that is likely to revisit the Court in coming terms.
New York State Rifle & Pistol Association v. City of New York: This is another case that also could have been much more significant than it ended up being. The case involved highly stringent conditions on certain New York City firearm permits that essentially prevented gun owners from taking their weapons to homes or practice ranges outside of the city. Once the city learned that the Supreme Court was taking this case, they changed their regulations and argued that this meant that there was no live controversy for the Court to decide. By a 6-3 majority, the Court agreed with this logic, dismissing the case. In dissent, Justice Alito pointed out that many states have been creatively interpreting the landmark DC v. Heller (2008) and McDonald v. Chicago (2010) cases, which made it clear that owning firearms for self-defense is a Constitutional right. A recent lawsuit instituted by New York’s Attorney General seeking to dissolve the National Rifle Association only adds credence to Alito’s concern that New York City’s change of regulations may have been designed to thwart the Court’s ability to review State’s noncompliance with the precedent set by these cases. Given these developments, I think it likely that we’ll see this issue taken up again by the Supreme Court in the near future.
What do we make of this term?
The “so what” of this term obviously varies depending on which issues are most dear to your heart, and there are many important, interesting, or even somewhat humorous (the Court upheld North Carolina’s piracy of Frederick Allen’s footage of the recovery of Blackbeard’s ship) cases that I didn’t have space to cover. However, this term provides valuable insight into questions of how we should think about the current makeup of the Court and how it is likely to rule.
Overall, the mainstream media narrative is that this is a very conservative Court. There has been a concerted movement among some Democratic partisans to cast this in such stark and political terms that it justifies “packing” the Court with enough additional justices to nullify the conservative voices. However, this term demonstrated how this narrative is simply untrue.
This term, the Court’s decisions ended up aligning with general public opinion most of the time, and this cannot be attributed to the personal calculations of any one justice. While there has been some talk of Chief Justice Roberts as a “swing vote” between four liberals and four conservatives on the Court, this is a reductionist view of the Court’s dynamics. In what little space I have left, I’d like to offer what I consider to be a more accurate paradigm of the Court’s dynamics.
The Court is anchored by Justices Ginsberg and Sotomayor on the progressive wing, with Justices Thomas and Alito on the conservative side. It’s important to note that we should not confuse “progressive” or “conservative” with “Democrat” and “Republican,” as the confusion of party politics and judicial philosophy tends to obscure, rather than clarify. Beyond these four, Justices Breyer and Kagan lean generally progressive, but each have issues of concern that draw them away from voting in lock step with that leaning. Similarly, Justices Kavanaugh, Gorsuch, and Roberts all lean conservative, but they are also commonly the fifth vote that sides with the progressive justices in 5-4 decisions. In other words, there are four justices who are relatively predictable, but five have more moderated or complicated judicial philosophies that result in a less uniform vote. This means that the Court does lean conservative, but not nearly as strongly or predictably so as commonly asserted.
When it comes to specific justices, this term revealed a few instructive trends. Both Justices Roberts and Kagan departed from their affiliative peers in deference to the issue of precedent. This is not surprising for a Chief Justice, who also typically bears the mantle of thinking about the broader prestige of the Court, but it is important to consider in both cases. Justice Gorsuch also staked out a position as a textualist, that is, someone who will defer to a more grammatical understanding of statutory text over considerations of legislative intent or other factors. While he shares this distinction with the late Antonin Scalia, Gorsuch follows a different path in this way, as his opinion in Bostock showed. In that case, Gorsuch rejected the idea of limiting the meaning of the term “sex” to what it meant at the time that Title VII was written. Instead, his reasoning essentially allows the term to evolve with the times, meaning that legislators could pass a law that eventually says something substantially different from what it said when it was passed. I believe that Gorsuch meant to pair this pro-LGBT+ ruling with an expanded concept of religious liberty entailed by the First Amendment, but his opinions formed concurrences, not majority reasoning in both cases that addressed that latter issue this term.
Overall, the brevity of this term did not in any way detract from its significance. While the Court generally leaned conservative, there were several important decisions that progressives would herald as well. With another term just around the corner, and a number of significant cases on the docket for the upcoming term, it’s likely that next June will be another dramatic Supreme Court season, too.
This post was originally published in two parts for In All Things on August 18, 2020 and August 20, 2020, and is cross-posted with permission. The original versions of this post can be found here:
Part 1: https://inallthings.org/supreme-court-decisions-in-review-part-1/
Part 2: https://inallthings.org/supreme-court-decisions-in-review-part-2/