Bench Memos

The “Moderates” Are Not So Moderate: Sri Srinivasan

As I’ve explained before, one of the Obama Administration’s key strategies in the coming Supreme Court nomination fight will be to pretend that their nominee is a “moderate” when, in fact, he or she will be firmly committed to the left’s legal policy priorities. One of the names that keeps coming up along those lines is former Obama Administration official and sitting D.C. Circuit judge Sri Srinivasan. Is he a “moderate”?  Not according to his record.

Let’s take a look at two examples. 

The first is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a Supreme Court case in which Srinivasan was counsel of record for the claimant. The main issue in the case was whether religious schools, churches, and other non-profits have the constitutional right to choose their own religious leaders. For decades, courts have applied a First Amendment rule called the “ministerial exception,” which says that courts should not interfere with the relationship between a church and its ministers. The ministerial exception protects against all sorts of government interference in church disputes, like controversies about whether the local synagogue can fire the rabbi, whether the mosque down the street chose the right imam, or even whether a baptist church should pay its pastor more. By the time Srinivasan got involved in the case, the ministerial exception had been adopted by every federal circuit court as a practical way to apply the First Amendment’s free exercise and establishment clauses.

Srinivasan’s client lost in the trial court because she was a commissioned minister and teacher at a Lutheran religious school, and therefore was covered by the ministerial exception. She brought suit after the school fired her for violating Lutheran teachings about bringing lawsuits in secular courts. When her case reached the Supreme Court, however, Srinivasan denied the existence of the ministerial exception altogether. Religious schools like Hosanna-Tabor, he wrote, “possess[] no greater rights of expressive association than a secular school.” The First Amendment’s two religion clauses didn’t make any difference; religious schools were “commercially operated” and therefore had a “diminished” right to religious expressive association. As such, the First Amendment offered no constitutional protection “to select teachers free from the constraints of neutral and generally applicable antidiscrimination laws” or “to avoid judicial enforcement” of such laws.

The Supreme Court unanimously rejected Srinivasan’s argument. Not one of the liberal justices came to Srinivasan’s defense. In fact, at oral argument the government took a position similar to Srinivasan’s, leading staunchly liberal Justice Kagan to ridicule the government’s view as “amazing.” Even Srinivasan’s co-counsel Walter Dellinger, who argued the case before the Supreme Court, wisely spent his time on other aspects of the private claimant’s argument.

But, one might say to oneself, wasn’t Srinivasan just representing his client? No. The firm that handled the case below never challenged the existence of the ministerial exception. Srinivasan’s brief made that argument for the first time before the Supreme Court. It’s very unusual for parties other than the government to wait until they reach the Supreme Court to introduce sweeping new arguments, much less to dismiss 40 years of unanimous case law along the way. Only a lawyer with an extremely liberal approach to the First Amendment — more liberal than any Justice on the Supreme Court — could have considered this argument plausible. 

The second example is similarly instructive. Last year the EPA issued new “Clean Power” regulations that pose an unprecedented economic threat to the American economy. These regulations threaten to kill hundreds of thousands of American jobs, shut down 66 power plants, and cost the U.S. economy $2.5 trillion by 2030. Worse, the EPA issued the regulations based on the shaky legal claim that it has the power to do basically whatever it wants when Congress passes a flawed law. Power companies sought a temporary stay of the regulations, since without a stay they would have to fire thousands of employees while waiting for the courts to rule. Yet Srinivasan voted to deny the request. The Supreme Court had to grant the stay, with all four liberal justices dissenting. 

The next time someone tells you Sri Srinivasan is a “moderate,” remember his ruling in the Clean Power Plan and his 9-0 loss in Hosanna-Tabor


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