Law & the Courts

The Court Delivers a Major Win for Religious Freedom

(Jonathan Ernst/Reuters)

Yesterday the Supreme Court handed down a major victory for religious liberty and for people of faith as it eviscerated the insidious Blaine amendment for schools. In Espinoza v. Montana Department of Revenue, a 5–4 majority of the Court pushed back on a shameful, 150-year legacy of discrimination against religious schools in an opinion written by Chief Justice Roberts. He was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.

In 2018, the Montana Supreme Court held that legislation that gave residents up to a $150 tax credit for contributions to a scholarship program violated the state’s “Blaine amendment.” Blaine amendments are anti-religious state constitutional provisions enacted in many states during the 19th century and early 20th century to prevent the government from funding Catholic schools. They have also been used to block funding to Jewish and Mormon schools, and Christian-run schools for freed slaves. The only reason the Montana court struck down the scholarship program was that it gave parents the choice of applying it to religious schools.

As Roberts explained for the Court, that is clearly inconsistent with the Free Exercise Clause of the First Amendment. The Court had articulated the relevant principle in Trinity Lutheran Church v. Comer (2017), where it held that an otherwise neutral and secular public benefit cannot be denied on account of an entity’s religious status. But the Court’s tradition of respecting parental decisions about their children’s education and religious upbringing goes back nearly a century to precedents like Pierce v. Society of Sisters (1925), which predates modern Free Exercise jurisprudence, and later Wisconsin v. Yoder (1972).

That is not to overlook another body of decisions over the years that applied the First Amendment’s other religion clause — the Establishment Clause — in a way that, as Justice Thomas described in a concurring opinion, “bordered on religious hostility.” As just one example, consider that in 1985, the Court had gone as far as to bar public school teachers from providing assistance at parochial schools, for fear they would “subtly (or overtly) conform their instruction to the environment in which they teach.” That decision, School District of Grand Rapids v. Ball, would be overruled twelve years later. Still, Thomas noted that the “Court’s interpretation of the Establishment Clause continues to hamper free exercise rights.”

Justice Gorsuch joined Justice Thomas’s concurrence. Both agreed with the Court that identifying discrimination based on religious status was enough to decide this case, but added that there is no meaningful distinction between such status and religious conduct. Gorsuch eloquently elaborated in his own concurrence: “The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” The Court did not need to reach a conclusion on that distinction in this case, but the door is open for future decisions embracing an expansive protection of religious freedom.

Expect the four liberal justices to continue to dissent from any such effort. Their view of the religion clauses continues to constrict free exercise. Justice Breyer, who is known for taking muddled positions in this area, objected to the majority’s rigorous standard, advocating instead a “flexible, context-specific approach” in which judges have free rein. (And, consequently, reach confusing results.) Justice Sotomayor continued to disagree with Trinity Lutheran Church and left no doubt she would prefer the earlier, less protective standard for free exercise. In fact, she called the Court’s ruling “perverse” and downplayed its historical analysis.

Roberts did not mince words about the history of Blaine amendments. He incorporated into the Court’s opinion a twenty-year-old plurality opinion’s observation: “The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’; many of its state counterparts have a similarly ‘shameful pedigree.’”

Justice Alito wrote a concurrence that recounted in detail the Blaine amendments’ history as a vehicle for “virulent prejudice against immigrants, particularly Catholic immigrants.” He included in his opinion a notorious 1871 cartoon from Harper’s Weekly that depicted Catholic bishops as crocodiles preying on American children while a public school in the background crumbles. The movement to found common schools, which had roots in the first half of the 19th century, cannot be separated from nativism, Alito explained. It aimed to “inculcate a form of ‘least-common-denominator Protestantism’” through daily readings from the King James Bible, an affront to Catholics and non-Christians. “Catholic and Jewish schools sprang up because the common schools were not neutral on matters of religion.”

The justices in the majority have gone a long way toward blotting out the stain of religious bigotry that has permeated so much of the law in this area. They should be applauded for stating clearly that laws like Montana’s that treat people of faith like second-class citizens have no place under our Constitution.

Law & the Courts

Roberts’s Arbitrary Flip on Abortion

Chief Justice John Roberts departs after the impeachment trial of President Trump ended for the day in Washington, D.C., January 25, 2020. (Joshua Roberts/Reuters)

In June Medical Services L.L.C. v. Russo, we see a stark contrast between Roberts past and Roberts present. That case involved a challenge to Louisiana’s law requiring doctors who perform abortions to have admitting privileges at a local hospital. The litigation raised questions about the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt striking down a similar Texas admitting-privileges requirement and also about whether an abortion clinic and doctors have standing to challenge the statute on behalf of their patients, despite the law being designed to protect patients from unsafe clinics and abortionists.

Roberts understands the purpose of such laws. After all, he had voted to hold the similar Texas law constitutional. He joined Justice Alito’s dissent that eviscerated the Court’s logic and recognized what was at stake, citing the atrocities of Kermit Gosnell. Laws like those in Texas and Louisiana, however they vary in application in each state, were motivated substantially by the desire to avoid the kind of nightmarish conditions under which Gosnell operated.

June Medical Services stoked concerns about whether the Court would once again revert to the “abortion distortion” — ignoring normal rules of procedure in the context of abortion, treating the practice as the preeminent constitutional right, and behaving like our nation’s de facto medical board. Unfortunately, that is precisely what did happen — not because of the votes of either of the two junior justices who were not on the Court in 2016, but because Roberts changed his position, giving the liberal bloc a majority.

While the four liberal justices produced a plurality opinion that went out of its way to replicate the shoddy analysis of Whole Woman’s Health, Roberts concurred in the judgment separately. Instead of going deeply into the merits, the chief justice wrote to explain that the doctrine of stare decisis — letting erroneous prior decisions stand — compelled him to follow the 2016 precedent, even though he had dissented and “continue[d] to believe that the case was wrongly decided.”

Of course, no justice believes that prior decisions must never be overturned. Tellingly, Roberts’s discussion of stare decisis cited Payne v. Tennessee (1991), where the Court overruled two- and four-year-old precedents, and Janus v. State, County, and Municipal Employees (2018), where he joined the Court’s opinion overruling a 41-year-old precedent. So what is sacrosanct about a four-year-old precedent he felt was wrongly decided? Roberts never tells us. He did not embrace the abortion distortion previously: In 2007, he joined the Court to uphold a federal ban on partial-birth abortion in Gonzales v. Carhart, even though the Court had struck down another partial-birth ban seven years earlier.

This time, the chief decided to play politics. As Justice Gorsuch noted in his dissent: “To arrive at today’s result, rules must be brushed aside and shortcuts taken.” Gorsuch also joined Justice Alito’s dissent, which accused the Court’s fragmented majority of applying “an abortion-only rule.” The Louisiana regulation was on even stronger legal footing than the Texas regulation at issue in Whole Woman’s Health. While the two statutes were nearly identical, in Louisiana it is simpler for doctors to get admitting privileges, and if clinics were forced to close, women would not have to drive as far as in Texas to get to an alternate clinic. The legislature also had a much stronger record of health violations regarding in-state clinics, including some of the plaintiffs in the case, and of serious medical problems when women were unable to get swift hospital treatment after experiencing abortion complications.

The majority also extended the “abortion distortion” to stretch third-party standing rules so that the plaintiffs could make a challenge based upon an asserted right that supposedly belongs to women seeking abortions. Alito noted the “blatant conflict of interest between an abortion provider and its patients” since the former “has a financial interest in avoiding burdensome regulations” while the latter “have an interest in the preservation of regulations that protect their health.” Future Gosnells will be grateful that position did not command a majority.

Thomas, for good measure, wrote a separate dissent discussing further the lack of pedigree for third-party standing and calling Roe v. Wade “grievously wrong” to begin with. In another separate dissent, Justice Kavanaugh, who like Thomas had joined most of Alito’s dissent, noted that when Roberts’s opinion was read next to those of the four dissenters, it amounted to a rejection of the cost–benefit standard of Whole Woman’s Health.

So much for stare decisis. But in a perverse way, that result adopts the spirit of Planned Parenthood v. Casey’s own odd conception of stare decisis. After all, the 1992 precedent had, in the name of stare decisis, rejected Roe’s trimester framework and overruled other abortion precedents from 1983 and 1986. And as Alito pointed out, Whole Woman’s Health had altered Casey’s standard with its “bulldozer” approach seeking to “flatten legal rules that stand in the way.”

Roberts’s arbitrary application of stare decisis to preserve a four-year-old precedent he continues to regard as wrongly decided does nothing to clear away the fog.

Law & the Courts

The Chief Justice and Stare Decisis in June Medical—Part 2


What broader lessons might be drawn from Chief Justice Roberts’s invoking—or, if you prefer, hiding behind—stare decisis to justify his vote in June Medical?

One lesson that folks on the Left are drawing from this and other recent votes by Roberts is that bullying him pays big dividends. Whether or not that is right as an explanation for his votes, it’s certainly reasonable.

Indeed, the Chief Justice’s professed concerns over the Supreme Court’s perceived legitimacy might well amount to having a “Kick Me” message tattooed on his forehead. The more the Left squawks, the more the Court’s legitimacy is said to be at stake.

The Court’s legitimacy as an institution ought to be a byproduct of its reasoned decisionmaking and its imperviousness to political influence. But if, as, alas, often appears to be the case, the Chief is instead, consciously or otherwise, deciding how to vote based on whether and how he imagines a case’s result will affect the Court’s legitimacy, he is engaged in a thinly disguised political exercise that empowers his most implacable critics on the Left and that ought to operate to discredit the Court.

Another reasonable lesson to draw is that the Chief is remarkably skittish about confronting what ought to be one of his major tasks: overturning the Roe/Casey regime and restoring abortion policy to the states. The Chief surely knows that it is Roe, more than any other modern ruling, that has politicized the judiciary and deformed American politics.

To be sure, there was little progress that the Chief could make against the Roe/Casey regime while Justice Kennedy was still on the Court. But after Kennedy’s replacement by Justice Kavanaugh, the Chief should have been looking for a good opportunity to begin the process of dismantling Roe. A certiorari petition filed by the state of Indiana in the fall of 2018, raising the question whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus, presented such an opportunity, but the Chief seems to have been part of a dubious compromise to deny review.

So, as was entirely foreseeable, the first abortion case for the reconstituted Roberts Court ended up being June Medical. That case was a much less attractive vehicle for making headway against Roe, and the Chief’s joining with the liberals means that no headway at all was achieved.

Law & the Courts

This Day in Liberal Judicial Activism—July 1

Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

1976—By a 5-4 vote, the Court rules in Singleton v. Wulff that two abortionists challenging limitations on Medicaid funding of abortion had standing to assert not only their own rights but also the rights of their patients. This expansion of third-party standing will fuel litigation against abortion regulations for decades to come.

1987—Upon President Reagan’s announcement of his decision to nominate D.C. Circuit judge Robert H. Bork to the Supreme Court, Senator Edward Kennedy races to the Senate floor to launch a viciously false attack on Bork:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens….

The campaign of calumny that Kennedy initiates will lead several months later to the defeat of Bork’s nomination.

2002—Federal district judge Jed S. Rakoff rules (in United States v. Quinones) that the federal death penalty is unconstitutional. In October 2002, a unanimous Second Circuit panel, in an opinion by Judge José A. Cabranes (a Clinton appointee), will reverse Rakoff’s ruling.

Law & the Courts

Espinoza Ends State-Sanctioned Religious Discrimination in Education

The Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

Montana parents like Randi Meyer had something to celebrate Tuesday. In Espinoza v. Montana Department of Revenuethe Supreme Court toppled a barrier that for more than a century has handicapped Catholic schools in Montana and other states and discriminated against parents like Randi searching for a better education for their kids.

Randi, mom to three boys, is the sole means of support for her family since a back injury left her husband Scott unable to work. Two of Randi’s boys have special learning needs and struggled at their public school. St Joseph’s K-8 Catholic school in Missoula had a much better learning plan for them. Thanks to tuition assistance and great sacrifice on their part, Randi and Scott have been able to send all three boys to St. Joe’s. But the Meyers hope their boys can access government-endorsed tuition scholarships after Tuesday’s 5-4 Supreme Court decision in Espinoza. The high court clarified that, contrary to the ruling of Montana’s highest court, a modest tuition-assistance program must be available for use at all private schools, including religious ones.

Back in 2015, the Montana legislature enacted a tax-credit scholarship program. It offered a dollar-for-dollar tax credit of up to $150 for donations to private organizations funding tuition scholarships for private-school students. In rules for the program, the state’s revenue department excluded religiously affiliated schools from the tuition assistance. It pointed to a provision in Montana’s constitution — a state Blaine amendment — prohibiting public money for any “sectarian” purpose.

Montana’s ban on public aid to “sectarian” schools and institutions traces back to a period of intense anti-Catholic animus across the United States in the 19th century.  Many non-Catholics supported barring government funding of Catholic “sectarian” schools at a time when public schools were overwhelmingly and explicitly Protestant. The “state Blaines” mirror House speaker James G. Blaine’s unsuccessful proposal to include a funding ban in the U.S. Constitution’s First Amendment. Checked at the federal level, “no aid” language found its way into Montana’s 1884 territorial constitution and the 1889 state constitution. Montana was not alone. Blaine amendments are tucked in the constitutions of more than 25 states. Over time, they’ve been used to bar state funding of all religious schools, not just Catholic schools. Until Tuesday.

Kendra Espinoza and two other Montana moms with kids at Christian schools objected to the state’s exclusionary rule and filed suit. The state high court agreed with the tax department and, astonishingly, invalidated the entire program. These moms, however, wouldn’t give up. They sought relief in our nation’s court of last resort, the U.S. Supreme Court. Numerous friends of the court filed briefs in support of Espinoza, et al. Among them were Randi Meyer and other Montana Catholic School parents whose amicus brief shared their personal stories of how Catholic schools have benefited their children and their families.

Five years after state lawmakers passed the private-school scholarship program, the U.S. Supreme Court found that it’s simply unconstitutional for a state to exclude a school from a private-school funding program because of the school’s religious character. “Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools,” Chief Justice John Roberts wrote for the majority. “The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”

The state claimed that general school aid could be used for religious ends by some recipients. The Supreme Court, however, has consistently held that a state does not violate the Establishment Clause when religious groups have access to neutral governmental programs that are generally open to broad classes of participants. As Roberts made clear in Tuesday’s opinion, “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”

Espinoza ends state-sanctioned religious discrimination in education. It gives children from low-income families a better chance to benefit from Catholic schools. As parents like Randi and Scott Meyer attest, Catholic schools are often the only lifeline available for students not well-served by their local public school. By effectively burying the Blaines, the Supreme Court’s decision also empowers states to respond to the danger of Catholic and other private-school closures. This comes none too soon, as Catholic schools across the country are struggling to keep their doors open.

In this week’s Espinoza decision, the Supreme Court removed a great stain on our nation’s history, but what it did for our present and future may be more important. It enhanced the ability of low-income students, such as Randi Meyer’s boys, to attend Catholic schools using government-endorsed private-scholarship funds. A welcome victory for religious freedom, countless American families, and our country’s Catholic schools.

Law & the Courts

Concurring Opinions in Espinoza v. Montana Department of Revenue


In addition to joining the Chief Justice’s majority opinion (summarized here) in Espinoza v. Montana Department of Revenue, Justices Thomas, Alito, and Gorsuch each wrote concurring opinions. Here is a summary of their opinions.

Justice Thomas:

While this case involves the Free Exercise Clause, not the Establishment Clause, the Court’s mistaken interpretation of the Establishment Clause continues to hamper Free Exercise rights.

Under the modern view of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion. This view is unmoored from the original meaning of the Establishment Clause. Under its original meaning, the Establishment Clause protects states and their citizens from the imposition of an established religion by the federal government. Even if it were later incorporated by the Fourteenth Amendment against the states, it would protect only against an “establishment” of religion as understood at the founding: coercion of religious orthodoxy and of financial support by force of law and threat of penalty.

The Court’s overly expansive understanding of the Establishment Clause has led to a cramped interpretation of the Free Exercise Clause. Under this Court’s current approach, state and local governments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause.

Justice Alito:

Regardless of the motivation for the no-aid provision, its application here violates the Free Exercise Clause. Nevertheless, the provision’s origin is relevant under the decision we issued earlier this year in Ramos v. Louisiana, holding that Louisiana and Oregon laws allowing non-unanimous jury verdicts in criminal trials violated the Sixth Amendment. The majority in Ramos emphasized that the states originally adopted those laws for racially discriminatory reasons. I argued in dissent that this original motivation, though deplorable, had no bearing on the laws’ constitutionality because such laws can be adopted for non-discriminatory reasons, and both States readopted their rules under different circumstances in later years. But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here.

Montana’s no-aid provision was modeled on the failed Blaine Amendment to the Constitution, which was prompted by virulent prejudice against Catholic immigrants. (Pp. 2-7.) Montana’s claim that the provision merely reflects a state interest in preserving public schools ignores that the public-school (or common-school) movement at the time was itself anti-Catholic. (Pp. 7-10.)

It is also not clear that the anti-Catholic animus was scrubbed from the no-aid provision when it was re-adopted at Montana’s constitutional convention in 1972. (Pp. 10-12.)

Justice Gorsuch:

Any jurisprudence grounded on a status-use distinction seems destined to yield more questions than it answers. [Majority opinion leaves open whether this is a meaningful distinction.] This distinction shouldn’t matter under the Free Exercise Clause. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly. Our cases have long recognized the importance of protecting religious actions, not just religious status.

The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways?

[Gorsuch doesn’t cite Employment Division v. Smith (1990), the controversial opinion holding that laws that substantially burden religious exercise don’t violate the Free Exercise Clause if they are neutral and generally applicable, and his opinion is best read, I think, as signaling his willingness to overturn that ruling.]

Law & the Courts

Important Free Exercise Victory in Espinoza v. Montana Department of Revenue


In its ruling today in Espinoza v. Montana Department of Revenue, the Supreme Court ruled by a 5-4 vote that the Montana supreme court violated the Free Exercise Clause when it applied a state constitutional no-aid provision to bar religious schools from receiving scholarship money under a state tax-credit program. Chief Justice Roberts, joined by the four (usually) conservative justices, wrote the majority opinion. Justices Thomas, Alito, and Gorsuch each wrote concurring opinions. Justice Ginsburg, joined by Justice Kagan, wrote a dissent, as did Justice Breyer (joined in part by Kagan) and Justice Sotomayor.

In this post, I will outline the reasoning of the Chief Justice’s majority opinion. Here is his framing paragraph:

The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.

Here (in the Chief’s voice, so to speak, and with extensive direct borrowing) is the heart of the majority’s analysis:

Our 2017 decision in Trinity Lutheran v. Comer distilled our Free Exercise precedents into the unremarkable conclusion that disqualifying otherwise eligible recipients from a public benefit solely because of their religious character imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny. Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools, and it also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.

Montana argues that Trinity Lutheran does not govern here because the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used—for religious education. But whether or not that is a meaningful distinction, this case also turns expressly on religious status and not religious use. The Montana supreme court applied the no-aid provision solely by reference to religious status. That the no-aid provision might have the goal or effect of ensuring that government aid does not end up being used for religious purposes is immaterial. Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses. (Pp. 8-12.)

Locke v. Davey (2004) differs from this case in two critical ways. First, the state of Washington had merely chosen not to fund a distinct category of instruction: the essentially religious endeavor of training a minister to lead a congregation. Second, Locke invoked a historic and substantial state interest in not funding the training of clergy. (Pp. 12-16.)

Montana can’t satisfy the strict-scrutiny test. (Pp. 18-20.)

Montana argues that the Montana supreme court’s elimination of the scholarship program altogether means that there was no Free Exercise violation. According to Montana, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit. But it’s the Montana legislature that created the scholarship program. The Montana supreme court invalidated it pursuant to a state-law provision that expressly discriminates on the basis of religious status. When the Montana supreme court was called upon to apply the no-aid provision to exclude religious schools from the program, it was obligated by the federal Constitution to reject the invitation. Had it done so, it would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, it would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana supreme court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds. (Pp. 20-22.)

Law & the Courts

The Chief Justice and Stare Decisis in June Medical—Part 1


Chief Justice Roberts’s deciding vote in June Medical Services v. Russo against Louisiana’s admitting-privileges law for doctors performing abortions rests squarely on his conclusion that stare decisis—the legal doctrine of respect for precedent—requires that result. Specifically, even as he reiterates his belief that the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt was “wrongly decided,” Roberts determines that the Louisiana law is “nearly identical” to the Texas law that the Court invalidated in Whole Woman’s Health and that it “burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous.”

Roberts’s assertion that stare decisis requires his vote against the Louisiana law is difficult to take seriously.

As Justice Alito spells out in his dissent, the majority’s decision in Whole Woman’s Health was intensely fact-dependent. Indeed, it was on the basis of “changed circumstances” that the majority held that the post-enforcement challenge that it addressed did not involve the same claim as the pre-enforcement facial challenge that plaintiffs had first pursued and lost (and was therefore not barred under principles of res judicata). In June Medical, the plaintiffs were making a pre-enforcement challenge to Louisiana’s law. The district court’s factual findings were therefore little more than predictions about what the effects of the law would be, and, as Alito emphasizes, one of its key findings “was based on a fundamentally flawed test” regarding the “good faith” of abortion-clinic doctors in seeking admitting privileges at nearby hospitals. (See Alito dissent at 12-14; see also pp. 15-24 (evidence in record doesn’t show that doctors made serious efforts to obtain privileges.)

Further, even as Justice Breyer in his plurality opinion repeats the balancing test that he set forth in his majority opinion in Whole Woman’s Health, Roberts devotes pages to arguing that Breyer doesn’t really mean what he says in either case and that Breyer’s opinions therefore aren’t really a departure from the undue-burden standard set forth in Casey. (Roberts opinion at 5-11.) Roberts won’t take Breyer at his word because the precedential force of Whole Woman’s Health would be much weaker if Whole Woman’s Health itself departed from Casey.

More broadly, Roberts had never before applied such a wooden view of stare decisis. Indeed, as Ilya Shapiro discusses here, Roberts’s previous decisions to overturn precedents that were “much older and more entrenched” make his “capricious application of stare decisis [in June Medical] startling.”

Roberts tries to invoke Edmund Burke in expounding his position on stare decisis:

This principle [of stare decisis] is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the “private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France 110 (1790).

But as Burke scholar Yuval Levin explains, Roberts badly botches Burke:

Burke described precedents as “one ground, though only one ground, of legal argument,” and said that before they could be treated as authoritative they needed to be tested against five crucial criteria:

“They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.”

The Chief Justice did not refer to any such criteria in thinking through his defense of a decision he disagreed with just four years ago. And if he had, it isn’t likely that his concurrence today would have withstood scrutiny under them.

Further, as Adrian Vermeule points out, Roberts’s faux “judicial Burkeanism” collapses on itself:

If the very first decision freezes the law forever, obliging all subsequent Justices to put aside their disagreements permanently in the name of stare decisis, then the “bank and capital of nations and of ages” shrinks radically. The only depositors to the bank will be the Justices in the initial majority, which means in practice that a majority of only one or two will frequently determine the law forevermore…. [T]he effect of the Chief’s approach is to require Burkean Justices to conform to the initial, maximally arrogant decision…. The self-undermining approach of the Chief’s concurrence, then, actually embodies a kind of judicial hubris cloaked in the garb of humility.

Law & the Courts

This Day in Liberal Judicial Activism—June 30

The Supreme Court building in Washington, D.C. (Yuri Gripas/Reuters)

1993—In furtherance of his 1985 desegregation plan for the Kansas City, Missouri, School District—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark orders the state of Missouri to fund salary increases for school-district staff in order to improve the “desegregative attractiveness” of the school district to non-minority students outside the district. By the time the Supreme Court reviews this and similar orders, the total salary assistance that Clark will have required the state of Missouri to provide will exceed $200 million.

In its 1995 decision in Missouri v. Jenkins, the Supreme Court will rule, by a 5-to-4 vote, that Clark’s orders of salary increases exceed his “admittedly broad discretion.”

2016—Federal district judge Carlton W. Reeves rules (in Barber v. Bryant) that a Mississippi law that provides protections against government reprisals for those who take various actions based on their conviction that marriage is the union of a man and a woman violates the Establishment Clause and the Equal Protection Clause.

One year later, a unanimous Fifth Circuit panel will reverse Reeves’s ruling on the ground that the plaintiffs in the case, having failed to show that they were injured by the law, lacked standing to challenge it.

2016—Perhaps Ninth Circuit judge Kim McLane Wardlaw is competing for a Lifetime Summary Reversal Award. As Judge Diarmuid O’Scannlain aptly sums it up in dissent, the panel opinion by Wardlaw in Cuero v. Cate “erroneously orders federal habeas relief to a state prisoner on the basis of a non-existent plea agreement and irrelevant state contract law.”

In 2017, a unanimous Supreme Court will summarily reverse Wardlaw’s ruling (in Kernan v. Cuero) and thus add to her record of dubious achievements.

Law & the Courts

This Day in Liberal Judicial Activism—June 29

A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, U.S., June 14, 2019 (Jonathan Ernst/Reuters)

1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade.

The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation.

But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment.’ The Federalist No. 78.” 

2018—By a 5-2 vote, the Iowa supreme court rules (in Planned Parenthood v. Reynolds) that the state constitution requires that regulations of abortion be subject to strict judicial scrutiny and, applying such scrutiny, bars a state law that requires a 72-hour waiting period between the time a woman seeking abortion provides informed consent to the abortion and the time the abortion takes place.

Law & the Courts

This Day in Liberal Judicial Activism—June 28

Tools used in abortions displayed at an office of Korea Pro-Life in Seoul, South Korea, in 2008. (Lee Jae-Won/Reuters)

2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”

Law & the Courts

This Day in Liberal Judicial Activism—June 27

Justice William Brennan in 1972 (Library of Congress)

1979—Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.”

2005—By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.

Law & the Courts

Ninth Circuit’s Oh-So-‘Humble’ Bar on Border-Wall Funding


In two separate rulings today in Sierra Club v. Trump and California v. Trump, a divided panel of the Ninth Circuit ruled that the plaintiffs have causes of action (legal claims) to challenge the Trump administration’s transfer of appropriated funds to build a border wall with Mexico and, further, that such transfer is unlawful. In the Sierra Club case, the panel majority—Ninth Circuit chief judge Sidney Thomas, joined by Judge Kim McLane Wardlaw—affirmed the district court’s grant of a permanent injunction enjoining expenditure of the transferred funds. In California v. Trump, it affirmed the district court’s declaratory judgment that such expenditure would be unlawful. Judge Daniel P. Collins dissented in both cases.

If this dispute sounds familiar, that might be because a year ago in this same Sierra Club case another divided panel of the Ninth Circuit left in place, pending consideration of the government’s appeal, the district court’s permanent injunction against the use of transferred funds. Three weeks later, the Supreme Court, by a 5-to-4 vote, overrode the Ninth Circuit’s ruling and block the district court’s injunction from taking effect. In so doing, the Court stated: “Among the reasons [for overriding the Ninth Circuit] is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005 [i.e., of the transfer of appropriated funds].”

The panel majority purports to “heed the words of the Court” and to be “wary and humble,” for, it says, “it is not a pleasant judicial duty to find that the President has exceeded his powers.” (The majority is quoting and embracing language from a concurring opinion by Justice Frankfurter.) But, for the reasons that Judge Collins spells out in his dissents, it is difficult to contend that the majority has acted cautiously and humbly.

The opinions in the two cases span nearly 200 pages, so, even though there is a fair amount of overlap between the cases, it is not an easy matter to present the key points of division concisely. But I’ll take a stab.

1. On whether plaintiffs have a cause of action

Sierra Club: The majority holds that Sierra Club has a constitutional cause of action. (Sierra Club at 25-31.) Circuit precedent, it says, establishes that the Appropriations Clause provides a cause of action to challenge violations of that provision. It rejects the government’s argument that the “zone of interests” test limits who has a cause of action under the Appropriations Clause. (Pp. 37-40.)

Collins argues that, under the Supreme Court’s ruling in Dalton v. Specter (1994), Sierra Club’s supposed constitutional cause of action is a statutory claim “dressed up in constitutional garb” and, in any event, is governed by, and cannot satisfy, the zone-of-interests test. (Pp. 70-79; see also pp. 59-69 on zone of interests of section 8005.)

The majority also holds that Sierra Club has “an equitable ultra vires cause of action.” (Pp. 31-36.) Collins replies that even if such a cause of action exists, it also is subject to, and can’t satisfy, the zone-of-interests limitations. (Pp. 79-80.)

California: The majority holds that plaintiffs California and New Mexico have a cause of action under the Administrative Procedure Act. (California at 30-36.) They satisfy the applicable zone-of-interests test, in its view, “because their interests are congruent with those of Congress and are not inconsistent with the purposes implicit in the statute.” (Internal quotation omitted.)

Collins disagrees that the states satisfy the zone-of-interests test. Section 8005 is “aimed at tightening congressional control over the appropriations process” and has nothing to do with the environmental interests that the states assert. (Pp. 61-74.)

2. On the legality of transferring the funds

Section 8005 provides that its transfer authority “may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.”

The majority holds that the need for a border wall was not “unforeseen” (California at 37-42) and that the need was not related to a military requirement (pp. 42-46). It also holds that Congress denied the item for which funds were requested (pp. 46-47).

Collins responds, first, that Congress did not deny the relevant “item” at issue. The “item,” he argues, is not properly “broadly defined to include any ‘border barrier construction” but must instead by understood “at the same ‘item’ level at which the Secretary would have to justify a reprogramming with an appropriation.” (Pp. 85-93.)

Collins also disputes the majority’s conclusion that the need was unrelated to a military requirement, as the Department of Defense’s provision of support for counterdrug activities is plainly a military requirement. (Pp. 94-98.) The majority is also wrong, he argues, in concluding that the need for a border wall was not “unforeseen.” In the context of the appropriations process, an item is foreseen only if it is reflected in DoD’s budgetary submissions or in Congress’s review and revision of those submissions. (Pp. 98-100.)

Law & the Courts

This Day in Liberal Judicial Activism—June 26

Supreme Court Justice Ruth Bader Ginsburg (Jonathan Ernst/Reuters)

1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive.

But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade. 

2013—The federal Defense of Marriage Act, enacted in 1996, merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. It respected and implemented federalism by exercising the federal government’s authority in the realm of federal law.

Unable to muster any coherent attack on DOMA, Justice Kennedy baselessly charges, in his majority opinion in United States v. Windsor, that DOMA was motivated by a bare desire to harm same-sex couples. Never mind that the 342 members of the House of Representatives and the 85 senators who voted for DOMA included lots of strong supporters of gay rights and that President Clinton signed it into law. As Chief Justice Roberts puts it in his dissent, by “tar[ring] the political branches with the brush of bigotry,” Kennedy gives short shrift to the “[i]nterests in uniformity and stability [that] amply justified” DOMA.

2015—“Just who do we think we are?” That is Chief Justice Roberts’s plaintive query in dissent in Obergefell v. Hodges, as five of his colleagues—Justice Kennedy, joined by the Court’s four liberals—impose on the American people a radical redefinition of marriage that, as Roberts observes, “has no basis in the Constitution or this Court’s precedent.”

It’s farfetched to believe that Justices Ginsburg, Breyer, Sotomayor and Kagan actually agree with Kennedy’s rambling reasoning (which will earn substantial criticism from the Left), but they demonstrate once again that they will happily sign their names to anything that delivers the bottom-line result they want. Embarrassed for his colleagues, Justice Scalia states that he “would hide his head in a bag” before he ever joined an opinion with such “silly extravagances” and “profoundly incoherent” “showy profundities.”

Law & the Courts

Excellent Critiques of Bostock Ruling


I’ve run across several excellent critiques of Justice Gorsuch’s majority opinion in Bostock v. Clayton County (on top, of course, of the compelling dissents by Justices Alito and Kavanaugh). A non-exhaustive list:

1. In this Law and Liberty essay, law professor John McGinnis, who is very high on, if not at the top of, my list of best constitutional commentators, explains that Gorsuch’s opinion “embraces a desiccated literalism over a common-sense understanding of a text’s public meaning”:

The only way Gorsuch can avoid conceding that Alito’s is a better interpretation is to read the language as a kind of computer code, divorced from the understanding that people would have given to the phrase “discriminate . . . because of the individual’s sex.” …

But this kind of analysis depends on a mistaken understanding of natural language, even specialized legal language. It is emphatically not a computer code. It can only be understood through context. Consider what one of the foremost scholars of the philosophy of language, Scott Soames, says about legal interpretation. He argues that the narrow linguistic (read “literal”) meaning does not fully capture what the legislature “asserts” in a statute. This is not surprising, because linguistic communication always depends on the presuppositions and contexts that a speaker or groups of speakers share with their listeners. Just as in ordinary language, some matters are left unstated, so too in legislation. In this sense, communication in natural language is the opposite of a computer code where nothing is left unstated. To recapture that context, interpreters must be able to take account of matters, such as what problems the legislatures were addressing. Only then can one understand what they were asserting. That is why legal interpreters since Blackstone have warned that interpretation cannot descend into literalism.

2. This Law and Liberty essay by Thomas Ascik observes that Gorsuch’s flawed textualism treats the text of Title VII as “both immutable and mutable” and exposes his empty “reassurances” about “questions for future cases.”

3. On Public Discourse, Ryan Anderson illustrates the absurdity of the test that Gorsuch reads into Title VII:

So, under the Gorsuch test, if changing the plaintiff’s sex would change the outcome, then sex discrimination has taken place. To see the concrete implications of such an approach, just look at what Gorsuch’s theory requires: Suppose a female lifeguard is fired because she wears a swimsuit bottom but refuses to wear a top. No doubt, “changing the employee’s sex would have yielded a different choice by the em­ployer” and her sex was a “but-for” cause of the decision. Yet her termination was not sex discrimination provided it held males and females to the same standard: a male lifeguard who exposed private parts would have similarly been fired. That male and female bodies differ—and thus require different swimsuits to prevent exposure—doesn’t amount to discrimination unless one embraces a simplistic theory. And, of course, nothing hinges on whether this lifeguard currently “identifies” as a woman or a man.

Consider another example. Suppose a male employee at a fitness center repeatedly goes into the women’s locker room and is fired. Now it’s true that “changing the em­ployee’s sex would have yielded a different choice by the em­ployer” and that his sex was a “but-for” cause of the decision to fire him. But the negative treatment the employee faced was not sex discrimination provided the employer imposed no double standard for men and women, such as a bathroom policy that imposed the same burden on men and women: each is prevented from entering the opposite sex’s private space. The Supreme Court has embraced a theory of sex discrimination that prevents employers—and schools—from keeping males out of female-only spaces. Either that, or it believes only males with a “transgender status” have the privilege of entering female-only spaces.

4. In this Wall Street Journal piece titled “The Abolition of Man and Woman,” David Crawford and Michael Hanby, both professors at the Pontifical John Paul II Institute, argue that Gorsuch “has intervened in a bitterly contested question—a question of philosophy before it is a question of law—and codified a radical new conception of human nature with a dubious ideological history.” The ruling has a “totalitarian character” in that it “requires everyone to live for all public and practical purposes as if what they know to be true in their pre-ideological experience of reality—the knowledge we imbibe with our mother’s milk—were officially false, a ‘stereotype’”:

It is impossible to redefine human nature for only one person. When a fourth-grade girl is required to affirm in thought, word and deed that a boy in her class is now a girl, this does not simply affirm the classmate’s right to self-expression. It calls into question the meaning of “boy” and “girl” as such, thereby also calling into question both her own “identity” and that of everyone in her life, from her mother and father to her brothers and sisters, and all of her friends and relatives. As well it should. If each of us is defined by a “gender identity” only arbitrarily related to our male and female bodies, now relegated to a meaningless biological substrate, then there is no longer any such thing as man or woman. We are all transgender now, even if sex and “gender identity” accidentally coincide in an overwhelming majority of instances.

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