Constitutional Law Prof Blog

Court Says States Structurally Waived Sovereign Immunity for Common Defense

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today that States "structurally" waived their sovereign immunity from suits for money damages in cases under Congress's war powers, and that Congress can therefore authorize such suits against States, even in State courts.

The ruling means that a servicemember who returned with constrictive bronchitis can sue his State employer in State court for failing to accommodate his condition.

More broadly, it means that the Court has now recognized States' "structural" waiver of immunity in cases under the Bankruptcy Clause, under Congress's power of eminent domain, and (now) under Congress's war powers. ("Structural" waiver means that the States waived their sovereign immunity when they signed on to the Constitution in the first place, as part of the original Constitutional design. Congress can also abrogate State sovereign immunity by enacting legislation under its enforcement power under the Fourteenth Amendment; but that's a different thing.)

This is significant, because it gives structural waiver more teeth, and says that any categorical understanding of Alden v. Maine that Congress cannot authorize private-damage suits against States under its Article I powers is wrong. (Alden says that Congress can't abrogate State sovereign immunity using its Article I powers. Today's ruling says that Congress may, however, rely on structural waiver to authorize private-damage suits.)

The case, Torres v. Texas Department of Public Safety, tested the federal Uniformed Services Employment and Reemployment Rights Act of 1994, in particular, whether the Act validly authorized a servicemember's money-damages lawsuit against a State for failure to re-employ or accommodate the returned servicemember in their State job. Congress enacted the Act under its Article I powers "[t]o raise and support Armies" and "[t]o provide and maintain a Navy."

The Court said yes, it did. Justice Breyer wrote for the Court, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh. The Court held that the text, history, and precedent of Congress's war powers all said that the States structurally waived their sovereign immunity when they joined the Union, and that Congress could (and did) therefore validly authorize suits against States for money damages for violations of the Act.

Justice Thomas dissented, joined by Justices Alito, Gorsuch, and Barrett. He argued that the Court was wrong on each point (text, history, precedent), and that Alden v. Maine "should have squarely foreclosed [the Court's] holding."

Court Rules in Favor of Praying Football Coach

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court on Monday ruled in Kennedy v. Bremerton School District that a public-school district violated the Free Exercise and Free Speech rights of a football coach who prayed at the 50-yard line after football games, and that the district could not justify its violations under the Establishment Clause.

The ruling is yet another move by the Court to expand free-exercise rights at the expense of anti-establishment concerns, and thus to allow and require religion to play a larger role in public life.

Still, it's not clear exactly how far this ruling will extend. That's because Court took pains to describe the coach's prayers as private religious exercises, contrary to the facts. By one reading, then, the case only allows a public employee to engage in private religious exercise that doesn't impede their job or coerce others to join. But don't expect the Court to limit this case to its facts. This is part of a larger move to expand free-exercise rights and limit the Establishment Clause, and we can expect the Court to use this case as a building block as it moves forward in this effort.

As part of the ruling, the Court abandoned the three-part Establishment Clause test under Lemon v. Kurtzman and replaced it with a "historical practices and understandings" test that "faithfully reflec[ts] the understanding of the Founding Fathers." (The Court acknowledged that this test includes an anti-coercion component, but it didn't specify exactly what coercion means.) It's not at all clear what that test means, or how lower courts will apply it. But again: this is part of the Court's larger move to expand free-exercise rights and limit the Establishment Clause, so we can expect the Court to apply this "historical practices and understandings" test consistently with that trend.

Justice Gorsuch wrote for the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh (except the part on the coach's free-speech claim), and Barrett. The Court held that the district violated the Free Exercise and Free Speech Clauses for disciplining the coach for "offer[ing] a quiet personal prayer" at the 50-yard line after football games. It went on to hold that the district couldn't justify its violations under any standard of scrutiny. It said that the district lacked a sufficient anti-establishment concern under its "historical practices and understandings" test, including that the district failed to demonstrate that the coach's prayers were impermissibly coercive.

Justice Sotomayor dissented, joined by Justices Breyer and Kagan. She argued that the Court got the facts wrong--this was no private prayer, but rather a very public exhibition--and that

Today's decision goes beyond merely misreading the record. The Court overruled Lemon v. Kurtzman and calls into question decades of subsequent precedents that it deems "offshoot[s]" of that decision. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new "history and tradition" test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation's longstanding commitment to the separation of church and state.

Court Overturns Roe v. Wade

Steven D. Schwinn, University of Illinois School of Law

As expected, the Supreme Court today overturned Roe v. Wade and ruled that women do not have a fundamental right to abortion.

The extraordinary ruling rolls back nearly 50 years of a fundamental right, and quite plainly lays the groundwork for overturning other fundamental rights.

The ruling allows and invites States to regulate abortion any way they wish, including criminalizing the procedure from the point of conception, with no life or health exception for the woman, and no exceptions for rape or incest. (The opinion doesn't compel this; it just allows and invites it.) Expect to see myriad regulations in about half the States (many of which have "trigger" laws that will regulate abortion as soon as the Court overturns Roe, that is, today), and a number of other States moving explicitly to protect abortion (some have already done so in one way or another).

Justice Alito wrote for the Court, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. He wrote that Roe was wrong when it was decided, and should be overturned.

Justice Thomas concurred, arguing that there's no such thing as substantive due process, and that the Court should reconsider all its substantive-due-process cases, including Griswold (right to contraception), Lawrence (right of two consenting adults to engage in private sexual conduct), and Obergefell (right to marry, including for same-sex couples).

Justice Kavanaugh concurred, arguing that the ruling only says that the Constitution is silent on abortion, and that the ruling kicks the issue to the States.

Chief Justice Roberts concurred in the result, arguing that while the viability line "never made any sense," the Court should nevertheless affirm the right to abortion to "extend far enough to ensure a reasonable opportunity to choose," but no further.

Justice Breyer dissented, joined by Justices Sotomayor and Kagan.

Court Strikes New York's "Proper Cause" Requirement for Concealed Carry

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court today struck New York's requirement that a person demonstrate "proper cause" in order to obtain a permit to carry a concealed handgun in public for self-defense. In so doing, the Court also clarified its approach to Second Amendment claims, rejecting the predominant intermediate-scrutiny test applied by the federal circuit courts in favor of an historical analysis.

The ruling means that states can't impose additional conditions on concealed carry permits that would require a person to demonstrate anything other than bare and general self-defense as a reason for seeking a permit. (The ruling seems to validate background checks for such permits, though. It also doesn't call into question restrictions on persons with criminal histories, for example, or restrictions based on unusual weapons in certain locations.) Beyond that, it's hard to say just how far the ruling may impact gun regulations. But it will impact them significantly, and we can expect to see a spate of challenges to test the limits of state regulation under this ruling.

(It's hard to say, too, how much the Court's historical approach may impact its analyses of other rights. The case contains some strong language, untethered to the Second Amendment, that suggests that history must be a primary guide in assessing other rights claims. We've already gotten a glimpse of this in the leaked draft opinion by Justice Alito in Dobbs, the abortion case. Today's ruling suggests that we'll see much more of this going forward.)

The Court split 6-3 along conventional lines. Justice Thomas wrote for the Court. Justice Breyer wrote the dissent.

The case, New York State Rifle and Pistol Association v. Bruen, is the first high-Court ruling on the Second Amendment since it applied the Second Amendment right to self-defense to state governments in McDonald v. Chicago, in 2010. Since that time, lower federal courts have coalesced around a two-part test for Second Amendment challenges. Under the first part, courts ask whether a regulation falls outside the scope of the Second Amendment, drawing on the history of the Second Amendment. If so, the courts uphold the regulation. If not, under the second part the courts determine how close a challenged regulation comes to the "core" of the Second Amendment right. If a regulation touches on the "core" right to self-defense within the home, courts apply strict scrutiny, and ask whether the regulation is narrowly tailored to achieve a compelling government interest. If a regulation doesn't touch on the "core," courts apply intermediate scrutiny, and ask only whether a regulation is substantially related to an important government interest. (These are both familiar "means-ends" tests that courts use in many other contexts. Strict scrutiny means that most or all government regulations will fail; intermediate scrutiny gives the government significantly more room to regulate.)

The Court today said that the second part is inapplicable. It held that courts shouldn't engage in means-ends scrutiny in assessing gun regulations, because the Second Amendment already encompasses means-ends considerations, because Heller and McDonald both applied an historical approach without considering means-ends scrutiny, and because courts aren't well suited to means-end analysis in this context, anyway.

Instead, the Court said that courts should assess state regulations under the Second Amendment based on an historical approach. In particular,

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

The Court ruled that New York's "proper cause" requirement failed this test. The Court said first that the Second Amendment covers an individual's right to carry a handgun outside the home for self-defense (because of the right to "bear" arms). It then said that New York's requirement had insufficient historical support. In short, "But apart from a handful of late-19th-century jurisdictions, the historical record compiled by [New York] does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." (There's a ton to pick apart in the Court's lengthy armchair-historian historical analysis; I won't begin that here, except to note that the Court itself seems to see that its historical analysis raises more questions than it answers.)

Justice Alito concurred to address some of the points made by Justice Breyer in dissent.

Justice Kavanaugh concurred, joined by Chief Justice Roberts, to outline some of the limits of the ruling.

Justice Barrett concurred to point out some of the questions left open in the Court's historical analysis.

Justice Breyer dissented, joined by Justice Kagan and Sotomayor, to place the ruling in the context of recent mass shootings and general gun violence; to set the factual record right; to argue against the Court's historical approach (and its rejection of the two-part test used by the lower courts); and to argue that the Second Circuit rightly upheld New York's law.

Court Says Maine's Tuition Assistance Program Violates Free Exercise

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled today that Maine's tuition assistance program violates the Free Exercise Clause, because it limits payments to "nonsectarian" schools. At the same time, the Court said that the State's antiestablishment interests didn't justify the limit, effectively eliminating any "play in the joints" between the two religion clauses . . . or at least limiting Locke v. Davey to its facts.

The ruling follows the Court's trendline in recent years expanding the Free Exercise Clause, privileging free-exercise concerns over antiestablishment concerns, and limiting any play in the joints.

The case, Carson v. Makin, tested Maine's tuition assistance program for parents of children in districts with no public secondary schools. Maine provides tuition for those parents to send their children to qualified, "nonsectarian" private schools. The State defines "a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith."

The Court said the program violates the Free Exercise Clause, because it denied participation in a public program because of a school's religion. Chief Justice Roberts wrote for the majority that the Court's opinions in Trinity Lutheran and Espinoza directly answered the question. The Court rejected an argument that unlike the programs in Trinity Lutheran and Espinoza, Maine's prohibition applied to the schools' use of public funds (and not their status as religions, or religious). It backed away from the use-status distinction, and wrote that "those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause." It also rejected an argument that by promising a public education, Maine was necessarily promising a nonsectarian education. The Court said that nothing in Maine's law defines public education this way (as nonsectarian), that Maine funds nonsectarian private schools that vary in other ways from its standard public education, and that Maine's mere defining "public education" to include only "nonsectarian" schools invites States simply to define their way around free-exercise concerns.

The Court went on to hold that the State's antiestablishment interests were insufficient to justify its free-exercise violation. The Court said that Maine's program operated like the voucher program upheld in Zelman (where the Court upheld parents' use of public vouchers for religious schools, because parents' choices broke the chain between the government and religion), and, as a result, "Maine's decision to continue excluding religious schools from its tuition assistance program . . . thus promotes stricter separation of church and state than the Federal Constitution requires."

Justice Breyer dissented, joined by Justice Kagan and (mostly) Justice Sotomayor. He argued that Maine's program falls within the play in the joints in Locke v. Davey, that the Court's ruling expands free-exercise interests at the expense of antiestablishment concerns, and that the Court's ruling unduly limits the play in the joints. He also argued that the Court's approach would contribute to religious strife and conflict.

Justice Sotomayor wrote her own dissent, pointing out how the Court's approach has evolved, even over just the last five years:

In 2017, I feared that the Court was "lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment." Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.