Constitutional Law Prof Blog

SCOTUS Broadens Ministerial Exemption from Anti-Discrimination Laws

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Our Lady of Guadalupe School v. Morrissey-Berru, consolidated with St. James School v. Biel, the Court extended the application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, to the teachers at schools run by religious organizations in the cases, and seemingly to all teachers employed by religiously-affiliated schools. 

Writing for the Court, Alito's opinion — joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh — held that although the teachers in these cases were not actually "ministers" by title and did not have as much as religious training as the teacher in Hosanna-Tabor, they are encompassed in the same exception from enforcement of anti-discrimination laws.  The Court stated that the First Amendment protects a religious institution's independence on matters of "faith and doctrine" without interference from secular authorities, including selection of its "ministers." But who should qualify as a "minister" subject to this exemption? Recall that the factors of Hosanna-Tabor figured in the oral argument (and recall also that they figured in the Ninth Circuit's opinions). But here, the Court stated that while there may be factors,  "What matters, at bottom, is what an employee does," rather than what the employee is titled. Moreover, the "religious institution's explanation of the role of such employees in the life of the religion" is important. Indeed, the religious institution's "explanation" seems determinative. The Court rejected a "rigid formula" for determining whether an employee is within the ministerial exception, concluding instead that:

When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.

The brief concurring opinion by Thomas, joined by Gorsuch, argues that the Court should go further and essentially make the implicit more explicit: the Court should decline to ever weigh in "on the theological question of which positions qualify as 'ministerial.' "

Sotomayor dissenting opinion, joined by Ginsburg, begins:

Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the majority shields those employers from disability and age-discrimination claims. In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school- teachers of their legal protections, I respectfully dissent.

For the dissent, the Court's conclusion has "grave consequences," noting that it is estimated that over 100,000 secular teachers employed by religiously-affiliated schools are now without employment protections. Further, it contrasts Esponiza v. Montana Dept of Revenue, decided this Term, in which the Court "lamented a perceived 'discrimination against religion,'" but here "it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs." The dissent concludes with a hope that the Court will be "deft" enough to "cabin the consequences" of this ministerial exception, but given the current composition of the Court, that hope seems a narrow one.

SCOTUS Finds Exception in Robocalls Prohibition Statute Violates First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in  Barr v. American Association of Political Consultants the United States Supreme Court held a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A), exempting certain calls from the prohibition of robocalls violated the First Amendment.

Recall from our discussion when certiorari was granted that the federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice ("robocalls") subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government including mortgages and student loans. Recall also from our oral argument preview that the case involves the tension between marketplace of ideas and privacy.

The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA. To win, the challengers had to prevail on both arguments. However, a majority of the Justices found that while the exemption violated the First Amendment, it could be severed and so the prohibition in the TCPA applicable to the challengers remained valid.

As the plurality opinion expresses it:

Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.

[citations omitted].

Despite this seeming overwhelming agreement, there is no majority opinion and the opinions demonstrate a perhaps needless fragmentation of the Justices and complication of precedent.

• Kavanaugh's plurality opinion garnered support from Chief Justice Roberts and Justice Alito, with Thomas joining on the First Amendment issue applying strict scrutiny to a content-based regulation, but not on the severability issue (Part III). 
• Sotomayor wrote a brief solo concurring opinion, concluding that although the First Amendment standard should be the more relaxed intermediate scrutiny, the standard was not satisfied. She agreed that severability of the exemption was proper.
• Breyer, joined by Ginsburg and Kagan, agreed that the provision was severable, but dissented on the First Amendment issue, finding that strict scrutiny should not apply and that the robocall exemption survived intermediate-type scrutiny ("The speech-related harm at issue here — and any related effect of the marketplace of ideas — is modest").
• Gorsuch, joined in part by Thomas, agreed that the exemption violated the First Amendment, but argued that it was no severable, or more accurately that severability should not be the issue. He argued that severing and voiding the government-debt exemption does nothing to address the injury the challengers claimed and it harms strangers to this lawsuit. The opinion calls for a reconsideration of "severability doctrine" as a whole, citing in a footnote Thomas's partial dissent in Selia Law just last week.

Thus while the outcome is clear, its ultimate basis is muddied.

 

SCOTUS Holds Free Exercise Clause Bars Application of State's No-Aid to Religious Institutions Clause in State Constitution

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded to religious schools so that the Free Exercise Clause was not violated.

Recall that the Montana Supreme Court held that the tax credit program's application to religious schools was unconstitutional under its state constitution, Art. X §6 , which prohibits aid to sectarian schools. This type of no-aid provision is often referred to as (or similar to) a Blaine Amendment and frequently appears in state constitutions. 

In a closely-divided decision, the Court decided that the Montana Supreme Court's decision that the tax credit program could not be extended to religious schools should be subject to struct scrutiny under the First Amendment's Free Exercise Clause and did not survive. (The Court therefore stated it need not reach the equal protection clause claims). The Court essentially found that this case was more like Trinity Lutheran Church of Columbia v. Comer (2017) (involving playground resurfacing) and less like Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology. The Court distinguishes Locke v. Davey as pertaining to what Davey proposed "to do" (become a minister) and invoking a "historic and substantial” state interest in not funding the training of clergy. Instead, the Court opined that like Trinity Lutheran, Esponiza "turns expressly on religious status and not religious use."

The Court's opinion, by Chief Justice Roberts and joined by Thomas, Alito, Gorsuch, and Kavanaugh, is relatively compact at 22 pages.  In addition to taking time to distinguish Locke v. Davey, the opinion devotes some discussion to federalism, invoking the Supremacy Clause and Marbury v. Madison in its final section. But the opinion also engages with the dissenting Justices' positions in its text and its footnotes. Along with the concurring opinions, the overall impression of Espinoza is a fragmented Court, despite the carefully crafted majority opinion.

The concurring opinion of Thomas — joined by Gorsuch — reiterates Thomas's view that the Establishment Clause should not apply to the states; the original meaning of the clause was to prevent the federal establishment of religion while allowing states to establish their own religions. While this concurring opinion criticizes the Court's Establishment Clause opinions, it does not confront why a state constitution would not be free to take an anti-establishment position.

Gorsuch also wrote separately, seemingly to emphasize that the record contained references to religious use (exercise) and not simply religious status. Gorsuch did not discuss the federalism issues he stressed in his opinion released yesterday in June Medical Services.

Alito's thirteen page concurring opinion is an exegesis on the origins of the Montana constitutional provision as biased. Alito interestingly invokes his dissenting opinion in Ramos v. Louisiana decided earlier this Term in which he argued that the original motivation of a state law should have no bearing on its present constitutionality: "But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here." 
(Noteworthy perhaps is that Roberts joined Alito's dissenting opinion in Ramos and Roberts's opinion in Esponiza does spend about 3 pages discussing the Blaine amendments' problematical history, but apparently this was insufficient for Alito).

Ginsburg's dissenting opinion, joined by Kagan, pointed to an issue regarding the applicability of the Court's opinion:

By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional.  Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no- aid provision divorced from its application to a specific government benefit.

Breyer, joined in part by Kagan, essentially argued that the majority gave short-shrift to Locke v. Davey and its "play-in-the-joints" concept authored by Rehnquist as expressing the relationship between the Establishment and Free Exercise Clause of the First Amendment. Breyer's opinion is almost as long as the majority opinion, and the majority takes several opportunities to express its disagreement with Breyer, including in a two paragraph discussion, his implicit departure from precedent (e.g., "building on his solo opinion in Trinity Lutheran").

Sotomayor's dissent, also criticized by the majority in text, argues that the Court is "wrong to decide the case at all" and furthermore decides it wrongly.  The Court's reframing incorrectly addressed (or seemingly addressed?) whether the longstanding state constitutional provision was constitutional. Thus, she argues, the Court has essentially issued an advisory opinion.  On the merits, she contends, "the Court’s answer to its hypothetical question is incorrect." She concludes that the majority's ruling is "perverse" because while the Court once held that "the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs,” it now departs from that balanced view.

The Court's opinion is much more divided than it seems at first blush. And the future of state constitutional provisions that prohibit taxpayer money from being used to support religious institutions remains in doubt.

 

Daily Read: More Kavanaugh Controversy

An article in the New York Times exploring the inner workings of the Washington Post has more than insider media news: it begins by divulging the role of the Washington Post editors in not publishing news about Supreme Court nominee Bret Kavanaugh during his contentious confirmation hearing.

Almost anyone who works in the Washington Post newsroom can look inside its publishing system, Methode, to see what stories are coming. And at the height of the furor over Brett Kavanaugh’s nomination to the Supreme Court in 2018, some who did saw a shocking article awaiting publication.

In the article, Bob Woodward, the Post legend who protected the identity of his Watergate source, Deep Throat, for 30 years, was going to unmask one of his own confidential sources. He was, in particular, going to disclose that Judge Kavanaugh had been an anonymous source in his 1999 book “Shadow: Five Presidents and the Legacy of Watergate.”

Mr. Woodward was planning to expose Mr. Kavanaugh because the judge had publicly denied — in a huffy letter in 1999 to The Post — an account about Kenneth Starr’s investigation of President Bill Clinton that he had himself, confidentially, provided to Mr. Woodward for his book. (Mr. Kavanaugh served as a lawyer on Mr. Starr’s team.)

The article, described by two Post journalists who read it, would have been explosive, arriving as the nominee battled a decades-old sexual assault allegation and was fighting to prove his integrity.

The article was nearly ready when the executive editor, Martin Baron, stepped in. Mr. Baron urged Mr. Woodward not to breach his arrangement with Mr. Kavanaugh and to protect his old source’s anonymity, three Post employees said. (The three, as well as other Post journalists who spoke to me, insisted on anonymity because The Post prefers that its employees not talk to the media.)

Mr. Baron and other editors persuaded Mr. Woodward that it would be bad for The Post and “bad for Bob” to disclose a source, one of the journalists told me. The piece never ran.

How this is coming to light now is left unexplained. 

 

SCOTUS Rejects First Amendment Claim of Foreign Affiliate Organizations

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Agency for International Development v. Alliance for Open Society International — or what will be called USAID v. Alliance for Open Society II — the Court's majority rejected the applicability of the First Amendment to foreign affiliates of the United States organizations who had previously prevailed in their First Amendment challenge.

Recall that AOSI I, the Court in 2013 held that the anti-prostitution pledge required of organizations seeking federal funding under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, violated the First Amendment. Writing for the Court, Chief Justice Roberts opined that the provision was an unconstitutional condition ("the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself").

Yet questions arose whether this holding extended to not only to the plaintiffs but to their "foreign affiliates."  A district court and a divided Second Circuit found that foreign affiliates were included.

A divided United States Supreme Court, in an opinion written by the Court's newest Justice, held that foreign organizations have no First Amendment rights.  Kavanaugh, joined by Chief Justice Roberts,  Thomas, Alito, and Gorsuch, wrote that

two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.

Thomas authored a brief concurring opinion restating his view that AOSI I was incorrectly decided.

Justice Breyer wrote a dissenting opinion which was joined by Ginsburg and Sotomayor (note that Kagan had recused herself), arguing that the Court's opinion misapprehended the issue:

The Court, in my view, asks the wrong question and gives the wrong answer. This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations. . . .

the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes.

The Court's opinion could seriously impair overseas work by US aid organizations as we noted in our argument preview. Moreover, the subject of sex-work makes it particularly contentious as we previously referenced.

 

SCOTUS Holds Louisiana Abortion Restrictions Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).

Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).

Breyer's plurality opinion  concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice.  Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.

Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.

The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."

SCOTUS Holds Administration DACA Rescission Violated the APA

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP, and McAleenan v. Vidal), the Court held that the Trump Administration's rescission of the DACA program forestalling deportation proceedings against undocumented persons who have resided in the United States since childhood was arbitrary and capricious under the Administrative Procedure Act (APA).  To reach that conclusion, the Court first found that the rescission decision was reviewable.

As we noted in our discussion of the oral argument (which occurred more than six months ago), the focus on the APA is not surprising although there were constitutional issues.  And as foreshadowed in the oral argument, the question of whether the Trump Administration memos adequately considered the issue of reliance on the DACA policy was central to the Court's opinion. 

The opinion by Chief Justice Roberts was joined by Justices Ginsburg, Breyer, and Kagan in full, and joined by Justice Sotomayor except to Part IV regarding the Equal Protection claim (applicable to the federal government through the Fifth Amendment). On the Equal Protection claim, Roberts, writing for a plurality, reasoned:

To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.”  Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.

None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

Second, there is nothing irregular about the history leading up to the September 2017 rescission. . . .

Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General.. . .Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue.

[some citations omitted].

 Justice Sotomayor disagreed.  In her concurring opinion she stressed that the equal protection challenges were still in a "preliminary posture," so that all that was necessary at this stage of the litigation was  a statement of  sufficient facts that would allow a court to draw the reasonable inference that there is liability for the misconduct alleged. For Sotomayor, this threshold was met and her opinion criticizes the plurality for  "discounting some allegations altogether and by narrowly viewing the rest." Instead, Sotomayor argues that Trump's statements matter, as she did in her dissenting opinion in Trump v. Hawai'i  (2018) (the "travel ban" case). Further, she contends that the

the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss stage, I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.

Moreover,

Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged decision.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Permanent Residents.  But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termination. The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.” Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plurality conclude otherwise.

The otherwise dissenting opinions concurred with the plurality on rejection of the equal protection claims.

Thus, with the nonconstitutional grounds for judgment, it is possible that the Trump Administration could attempt to rescind DACA by complying with the administrative requirements of the APA and not acting in an arbitrary and capricious manner. Whether or not the Trump Administration proceeds in that direction is uncertain.

 

SCOTUS Interprets Title VII to Include LGBTQ Identities

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in the consolidated cases of Bostock v. Clayton County, the United States Supreme Court interpreted the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq. to include sexual and transgender identities.  As we discussed in our preview, two of the consolidated cases involved sexual orientation discrimination -  Altitude Express v. Zarda and  Bostock v. Clayton County Board of Commissioners -  while the third - R.G. & G.R. Harris Funeral Homes v. EEOC - involved gender identity.

The Court's opinion, authored by Justice Gorsuch and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan, states:

At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.”

After considering and rejecting the employers' arguments, the opinion concludes:

Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.

But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.

 The Court's opinion is 33 pages or so and there are no concurring opinions.  Justice Alito's dissent, joined by Justice Thomas, weighs in at over 100 pages including its appendices. There is another dissenting opinion by Justice Kavanaugh, at a more modest 27 pages.

It is the dissenting opinions that provide the constitutional law perspective to the Court's statutory interpretation decision: both claim that the Court is violating separation of powers. Justice Alito begins his lengthy dissent by stating:

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

And the Court's most recently appointed Justice, Kavanaugh, begins in a similar vein:

Like many cases in this Court, this case boils down to one fundamental question: Who decides?

Kavanaugh concludes that it should not be the Court's decision, but does expound on why the Court's interpretation regarding "sex" is incorrect.

Congress could, of course, amend Title VII to exclude LGBTQ identities. But the momentum in Congress has tilted in the direction of inclusion, a step which would now be redundant.

As for the connections between Title VII and the Equal Protection Clause and the definitions of "sex" and protection for LGBTQ individuals, these arise in the dissenting opinions.  Alito's dissent worries that the Title VII interpretation will "exert a gravitational pull in constitutional cases," so that LGBTQ identities will be afforded the heightened scrutiny standard applicable to sex/gender.  For his part, Kavanaugh's dissent stresses that in the Court's discussions of sexual orientation in equal protection doctrine, the Court did not consider sexual orientation part of sex discrimination.

Additionally, all of the opinions raise the First Amendment free exercise of religion specter. The Court's majority states that "worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage," but that issue is for another day:

So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

For Alito dissenting, his views are similar to his views in the same-sex marriage cases. He states here that the " position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty."

SCOTUS Denies Emergency Injunction by Church Challenging California COVID-19 Order

Professor Ruthann Robson, City University of New York (CUNY) School of Law

A closely divided Court in South Bay United Pentacostal Church v. Newsom denied the application for emergency injunction relief sought by the church from California Governor Newsom's Executive Order placing numerical restrictions on all gatherings to combat the spread of the highly infectious corona virus causing COVID-19. The Ninth Circuit panel and the district judge had similarly denied the church's motion for a preliminary injunction.

There is no opinion from the Court. Chief Justice Roberts, who joined the majority in rejecting the emergency application, filed a brief concurring opinion.  On the merits, Chief Justice Roberts wrote:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).

That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

In short, religious gatherings were not being treated any differently under the California Order and the judiciary should defer to the politically accountable entities in health situations, especially when these are uncertain and changing.

Justice Bret Kavanaugh wrote a dissenting opinion, joined by Justices Thomas and Gorsuch — but interestingly not Justice Alito — concluding that the California Order did not treat the religious institutions the same as "comparable secular businesses" such as grocery stores. Kavanaugh argues that given this differential treatment, struct scrutiny should apply, and California has not advanced a sufficiently compelling reason to treat religious gatherings differently.

As the pandemic continues, there is certainly sure to be more litigation, but for a majority of the Court, gatherings including those that are religious can be limited in service to public health.

SCOTUS Rules Sixth Amendment Right To Unanimous Jury Verdict Applies to States

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court issued its opinion in Ramos v. Louisiana with a majority concluding that the Sixth Amendment confers a right to a unanimous jury verdict that is incorporated against the states through the Fourteenth Amendment.

Recall from the oral argument on the very first day of the 2019-2020 term that almost all rights have now been incorporated through selective incorporation, and that the unanimous jury requirement subject to an exception of the incorporation of the trial by jury clause. As Justice Alito phrased it in an opinion for the Court in  McDonald v. City of Chicago (2010) (in which a closely divided Court held that the Second Amendment is incorporated), the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).

The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument and is at the center of the Court's fragmented opinions in Ramos. The lone Justice in Apodaca is Justice Powell, who is specifically discussed throughout the opinions. Powell's adoption of what the Court calls the "dual-track" incorporation, and seemingly Justice Powell himself, does he does not fare very well in the Court's opinion, including quoting Powell that he was simply "unwilling to follow the Court's precedents" regarding incorporation.

Writing for the Court, Justice Gorsuch's opinion is joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh, but not in full. Indeed, the would-be majority loses Kavanaugh regarding some of its discussions of precedent and stare decisis, and loses both Kavanaugh and Sotomayor regarding a discussion of the specific stare decisis accorded to Apodaca. 

The Court clearly concludes, however, that there is a Sixth Amendment right to a unanimous jury verdict and that this right is incorporated as against the states.

Justice Thomas concurs, but renews his argument that the Privileges or Immunities Clause of the Fourteenth Amendment is the proper vehicle for incorporation. However, unlike in McDonald, Justice Thomas' vote is not necessary to constitute a majority.

Justice Alito dissented, joined by Chief Justice Roberts, as well as for most of his opinion, by Justice Kagan.

Certainly this case is important for both the constitutional doctrine of incorporation and for constitutional criminal procedure under the Sixth Amendment. But the Justices' various opinions discussing stare decisis might be read to portend larger developments.  Justice Kavanaugh's concurring opinion is most explicit in this regard: he outlines his views on stare decisis and supports his conclusion why Apocada should be overruled. Justice Alito's dissenting opinion argued for honoring stare decisis, but interestingly, Justice Kagan does not join that portion of the dissent arguing that the "reliance" in this case "far outstrips" other recently overruled cases.

Two other matters bear notice.
First, the racist roots of the non-unanimous jury verdict requirement is given attention by the Court, highlighted in Justice Sotomayor's concurring opinion, and minimized by the dissenting opinion (arguing that the opinion does not apply only to Louisiana and Oregon, but any future state that might adopt non-unanimous verdicts, even if all the lawmakers were "angels").
Second, there is the rhetoric and tone of some of the opinions. There is an evident conversation between the majority and dissent, with Gorsuch's opinion veering toward a condescending tone punctuated by rhetorical questions and Alito's opinion answering with accusatory and aggrieved notes.

But as a matter of incorporation doctrine, after last Term's Timbs v. Indiana regarding the Eighth Amendment's excessive fines provision, the Court's decision in Ramos now leaves only the Fifth Amendment grand jury requirement and the Seventh Amendment's right to a jury trial in a civil case as the federally applicable rights that are not incorporated as against the states. And then there is that Third Amendment.

Chief Justice and Senator Trade Remarks: Further Erosions of the Court's Legitimacy?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Chief Justice Roberts issued a rare statement today rebuking statements by Senator Chuck Schumer made while the Court was hearing arguments in June Medical Services v. Russo. The Chief Justice's statement read in full:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that “You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions.” Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

Senator Schumer's speech, reported and captured on video, included the Senator saying:

I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions.

Schumer's "whirlwind" reference echoed Kavanaugh's statements during his confirmation hearings to the Democratic Senators, telling them “You sowed the wind, the county will reap the whirlwind.”

 

A Presidential tweet predictably followed Roberts's statement:

 

This is a direct & dangerous threat to the U.S. Supreme Court by Schumer. If a Republican did this, he or she would be arrested, or impeached. Serious action MUST be taken NOW! https://t.co/WqQUbyzaJU

— Donald J. Trump (@realDonaldTrump) March 5, 2020

As some commentators — and a spokesperson for Senator Schumer — have pointed out, Chief Justice Roberts has not issued statements defending Justices Sotomayor and Ginsburg when they were maligned by the President, as we discussed here.

Indeed, because Chief Justice Roberts has chosen to make this statement, his choices of when not to make similar statements is now a very legitimate subject of debate. These choices add to the continuing debate about the Court's own legitimacy in this fraught political climate.

SCOTUS Hears Oral Arguments in First Amendment Challenge to Crime of Encouraging or Inducing Immigration Violation

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court heard oral argument in United States v. Sineneng-Smith involving the constitutionality of 8 U.S.C.§ 1324(a)(1)(A)(iv). The statute makes it a crime for any person who

encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.

The Ninth Circuit held that this subsection "criminalizes a substantial amount of protected expression in relation to the statute’s narrow legitimate sweep; thus, we hold that it is unconstitutionally overbroad in violation of the First Amendment."

The oral argument before the Supreme Court on certiorari was a criss-crossing of the lines between conduct and speech, between criminal law and the First Amendment, and between constitutional avoidance and judicial ability to redraft a statute.  The Deputy Solicitor General argued that the statutory provision was not aimed at speech and did not encompass "substantial amounts of it," and if it did, courts could remedy those situations with as-applied challenges rather than the "last resort remedy of overbreadth invalidation." Arguing for the Respondent, who had been convicted of two counts of the crime, Mark Fleming contended that the words of the statute — "encourages or induces" — are much broader than usual criminal words such as "solicitation" or "aiding and abetting." Fleming emphasized that the "even accurate advice" encouraging someone to stay in the United States is criminalized, including a teacher who says to an undocumented student that she should stay and pursue her education.

The argument returned several times to an amicus brief filed by Professor Eugene Volokh in support of neither party. Volokh contended that the Court should recognize that the line between protected abstract advocacy and unprotected solicitation must turn on specificity, and that

because the premise of the solicitation exception is that solicitation is conduct integral to the commission of a crime, only solicitation of criminal conduct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct cannot be made criminal, though it can be punished civilly.

(emphasis in original). It was this issue — that the undocumented person could be merely civilly liable while the person who "encourages or induces" the action of staying would be criminally prosecuted — that seemed to cause some consternation amongst the Justices. Justice Alito raised the encouraging suicide hypothetical:

There's a teenager who's -- who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I'm thinking of killing myself. And the person on the other end of the line says, you've said this before, I'm tired of hearing this from you, you never follow through, you're a coward, why don't you just do it, I encourage you to pull the trigger.

Alito asked:

Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.

Nevertheless, whether or not the statute would be used that way, or to prosecute people based only on their speech, Fleming pointed to United States v. Stevens, involving the "crush-porn" statute which the Court found unconstitutional, noting that the "first Amendment does not require us to rely on the grace of the executive branch." Interestingly, after Stevens, Congress did pass a more narrow statute which has been upheld.  That experience would surely be on some of the Justices' minds as they consider Chief Justice Roberts's comments about whether the extent to which the statute might be rewritten would need to be "passed by the Senate and House" and "signed by the President," garnering laughter in the courtroom.

Yet Fleming also noted that the government has recently made a "focus" of the enforcement of immigration laws and should the Court uphold the statute, more robust enforcement would likely follow. Given the current controversies around immigration, that would surely also be on the minds of the Justices.

Should any of the SCOTUS Justices Recuse?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The seemingly persistent question of the type of bias of SCOTUS Justices that should merit recusal has resurfaced again.

Recall that the Code of Conduct for United States Judges does not apply to the Justices of SCOTUS, a situation unchanged by the amended code effective March 2019. In his end-of-year Report in 2012, Chief Justice Roberts seemingly argued that there was no need to specifically include the Justices and addressed (albeit somewhat obliquely) some of the ethical concerns that had arisen. For example, Justice Alito had raised concerns when he appeared at an "event" for the The American Spectator, described as a "right wing magazine" that was behind the attempts to impeach Bill Clinton, that its publisher leads the “Conservative Action Project,” formed after President Obama’s election, to help lobby for conservative legislative priorities, elect Republicans and block President Obama’s judicial appointments.  The keynote speaker at the event was then-Rep. Michele Bachmann (R-MN).  Additionally, there were concerns regarding Justice Thomas's financial situation, including acceptances of financial gifts and nondisclosure of his wife's income.

Statements and relationships, especially pronounced in these contentious times, also give rise to concerns regarding bias and the recusal remedy.  Justice Ginsburg's comments about presidential candidate Donald Trump labeling him a "faker" caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview.  Later, a scholar argued that Justice Kavanaugh should recuse himself in a variety of cases based on Kavanaugh's statements during his confirmation hearing.

Lately, two situations have provoked controversy.  The first involves Justices Sotomayor and Ginsburg. It seemingly springs from Justice Sotomayor's dissent from the issuance of a stay in Wolf v. Cook County, on the public charge policy, which we discussed here. The President, in tweets and in a speech in India, criticized Sotomayor — and added Justice Ginsburg (who had not joined Sotomayor's dissent)  — calling on them to recuse themselves "on all Trump, or Trump-related matters!"  The tweet itself cites Laura Ingraham and FoxNews, and as journalist Matthew Gertz noted, the President's tweet replicates the words of the broadcast, which referenced Ginsburg's 2016 "faker" comment.

The second situation involves Justice Thomas's wife, Ginni Thomas, who reportedly was advising Trump on people in federal employment who should be "purged" as disloyal to the President and who should be hired to replace them.  As the New York Times subsequently reported:

Among Ms. Thomas’s top targets have been officials at the National Security Council, the former head of the White House personnel office, Sean Doocey, and other top White House aides. Another target was Jessie K. Liu, who recently left her job as the U.S. attorney for the District of Columbia for a job in the Treasury Department that was later withdrawn by the White House.

Ms. Thomas, a politically active conservative who for nearly seven years has led a group called Groundswell, also successfully lobbied for a role for Kenneth T. Cuccinelli II, the former attorney general of Virginia who is now the acting deputy secretary of homeland security.

This has led at least one organization, Take Back the Court, to write a letter requesting that Justice Thomas recuse himself from matters before the Court involving Trump.

The overall effect may be to (further) erode the legitimacy of the courts in general and SCOTUS in particular. 

Meanwhile, rereading Canons 4 and 5 of the Code of Conduct for United States Judges and the considerations relating to bias, the appearance of impartiality, and political participation might anchor the conversations about bias.

 

Daily Read: Justice Sotomayor on Role of the Court

Dissenting from the grant of a stay in Wolf v. Cook County, Illinois, involving the controversial "public charge" immigration rule of the Trump Administration, Justice Sotomayor wrote that the Court has been "too quick" to grant the United States government's requests for stays especially as compared to not granting stays in other circumstances, including executions. Importantly, the stay at issue was not related to a nationwide injunction:

Its public-charge rule is set to go into effect in 49 of 50 States next week. The Seventh Circuit is set to consider the Illinois-specific injunction next week as well, with a decision to follow shortly thereafter. And the Government is unable to articulate how many cases—if any—this narrow injunction would affect in the meantime. In sum, the Government’s only claimed hardship is that it must enforce an existing interpretation of an immigration rule in one State—just as it has done for the past 20 years—while an updated version of the rule takes effect in the remaining 49. The Government has not quantified or explained any bur- dens that would arise from this state of the world. Indeed, until this Court granted relief in the New York cases, the Government itself did not consider this Illinois-specific harm serious enough to warrant asking this Court for relief.

These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.

Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.

After discussing the extensive time and resources that stay applications involve, Justice Sotomayor continued:

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Murphy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

In brief, Justice Sotomayor has argued that some of her colleagues have been biased toward the Trump Administration's petitions.

 

SCOTUS Will Hear First Amendment Challenge to Federal Robo-Call Law

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court granted certiorari in Barr v. Political Consultants involving a First Amendment challenge to a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A).

The federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government.

The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA.

The district judge held that the TCPA exemption was content-based but satisfied strict scrutiny review. The Fourth Circuit's opinion agreed that the exemption was content-based, applying the rubric from Reed v. Town of Gilbert (2015).  Like the district judge, the panel rejected the government's contention that it was not content-based but only relationship-based.  The panel stated:

Instead, the exemption regulates on the basis of the content of the phone call. Under the debt-collection exemption, the relationship between the federal government and the debtor is only relevant to the subject matter of the call. In other words, the debt-collection exemption applies to a phone call made to the debtor because the call is about the debt, not because of any relationship between the federal government and the debtor.

Importantly, as the district judge noted:

a private debt collector could make two nearly identical automated calls to the same cell phone using prohibited  technology, with the sole distinction being that the first call relates to a loan guaranteed  by the federal government, while the second call concerns a commercial loan with no government guarantee.

Unlike the district judge, the Fourth Circuit concluded that the exemption failed strict scrutiny:

It is fatally underinclusive for two related reasons. First, by authorizing many of the intrusive calls that the automated call ban was enacted to prohibit, the debt-collection exemption subverts the privacy protections underlying the ban. Second, the impact of the exemption deviates from the purpose of the automated call ban and, as such, it is an outlier among the other statutory exemptions.

However, the Fourth Circuit agreed with the government that the exemption was severable, citing NFIB v. Sebelius (2012), and reasoning that severing the debt-collection exemption will not undermine the automated call ban. given that for twenty-four years, from 1991 until 2015, until the exemption was added,  the automated call ban was “fully operative.”

The United States Supreme Court has now added this case to its 2019-2020 Term.

SCOTUS to Hear Ministerial Exception Cases

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court granted certiorari to two Ninth Circuit cases and consolidated them: Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel. 

Both cases involve an application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC.  In the unanimous decision in Hosanna-Tabor, the Court found that the school teacher Cheryl Perich was tantamount to a minister. Thus, under both Religion Clauses of the First Amendment, as a "minister" her employment relations with her church school employer were eligible for a "ministerial exception" to the otherwise applicable employment laws, in that case the Americans with Disabilities Act. 

But who is a "ministerial" employee subject to the exemption from employment laws?

Chief Justice Roberts' opinion for the Court in Hosanna-Tabor declined to provide a test for deciding whether or not an employee was within the ministerial exception. However, the Court did extensively analyze Cheryl Perich's employment. And the lower courts have been struggling with how to analogize to the Court's conclusions regarding the "called teacher" Perich.

In the unpublished and very brief panel opinion in Morrisey-Berru, the court stated that the Court in Hosanna-Tabor considered four factors in analyzing whether the exception applied:

• (1) whether the employer held the employee out as a minister by bestowing a formal religious title;
• (2) whether the employee’s title reflected ministerial substance and training;
• (3) whether the employee held herself out as a minister; and
• (4) whether the employee’s job duties included “important religious functions.”

Applying those factors, the Ninth Circuit panel stated:

Considering the totality of the circumstances in this case, we conclude that the district court erred in concluding that Morrissey-Berru was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, Morrissey-Berru’s formal title of “Teacher” was secular. Aside from taking a single course on the history of the Catholic church, Morrissey-Berru did not have any religious credential, training, or ministerial background. Morrissey-Berru also did not hold herself out to the public as a religious leader or minister.

Morrissey-Berru did have significant religious responsibilities as a teacher at the School. She committed to incorporate Catholic values and teachings into her curriculum, as evidenced by several of the employment agreements she signed, led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year. However, an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework. See Biel v. St. James Sch. (9th Cir. 2018). Therefore, on balance, we conclude that the ministerial exception does not bar Morrissey-Berru’s ADEA claim.

Biel, relied upon in Morrisey-Berru's unpublished opinion, was much more contentious. Reversing the district court, the Ninth Circuit panel's opinion in Biel similarly considered four factors from Hosanna-Tabor and applying them to the school teacher Kristen Biel concluded that she was not a ministerial employee. For the panel in Biel, she

by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.

***

Also in contrast to Perich, nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.

Only with respect to the fourth consideration in Hosanna-Tabor do Biel and Perich have anything in common: they both taught religion in the classroom. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required. We do not, however, read Hosanna-Tabor to indicate that the ministerial exception applies based on this shared characteristic alone. If it did, most of the analysis in Hosanna-Tabor would be irrelevant dicta, given that Perich’s role in teaching religion was only one of the four characteristics the Court relied upon in reaching the conclusion that she fell within the ministerial exception.

And even Biel’s role in teaching religion was not equivalent to Perich’s.. . .

The panel's opinion in Biel was not unanimous. A dissenting judge would have held that Biel was a minister in large part because her teaching duties at a Catholic school included religious teachings; the judge was "struck by the importance of her stewardship of the Catholic faith to the children in her class. Biel’s Grade 5 Teacher title may not have explicitly announced her role in ministry, but the substance reflected in her title demonstrates that she was a Catholic school educator with a distinctly religious purpose."

The petition for rehearing en banc was denied, but with a lengthy dissenting opinion  by Judge R. Nelson joined by an addition eight Ninth Circuit Judges - - - that's nine Judges dissenting.  Judge Nelson's opinion argues that the panel opinion in Biel (as well as the opinion in Morrisey-Berru) had taken the narrowest possible interpretation of Hosanna-Tabor, so narrow as to have "excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone." For the dissenting judges, 

In turning a blind eye to St. James’s religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.

With the Court's grant of certiorari in Biel and Morrisey-Berru, perhaps there will be more clarity regarding the factors of Hosanna-Tabor and how they should be applied to teachers in private schools run by religious organizations. 

The facts of Biel may strike many as particularly sympathetic: Kristen Biel was diagnosed with breast cancer and terminated when she said she would have to take some time off work when she underwent chemotherapy. St. James's principal, Sister Mary Margaret, told Biel it was not "fair" "to have two teachers for the children during the school year.” If she had worked for a nonreligious school, Biel would have been protected by the Americans with Disabilities Act.

The Court is set to decide whether Biel and seemingly almost every teacher at a private school operated by a religious organization should be excluded from the employment protections afforded other workers.

[image "Chalk Lessons, or the Black-board in the Sunday School. A Practical Guide for Superintendents and Teachers" by Frank Beard (1896), via]

SCOTUS Grants Certiorari in First Amendment Challenge to Delaware Constitution's Judicial Appointment Provision

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court granted certiorari in Adams v. Carney, Governor of Delaware in which the Third Circuit held several sections of the Delaware Constitution regarding the selection of judges violated the First Amendment.

Centrally, the Delaware Constitution, Art IV §3 seeks to achieve a partisan balance in the judiciary and provides that appointments to the state judiciary "shall at all times be subject to the following limitations":

First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.

Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.

Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.

In its opinion, the Third Circuit panel found that this political balancing violated the First Amendment, concluding that it was not within the protections for political policymakers of Elrod v. Burns (1976) and Branti v. Finkel (1980).  The Third Circuit found that even assuming that "judicial political balance is a vital Delaware interest," Delaware failed to demonstrate that this goal could not be realized using less restrictive means of infringing on the plaintiff's associational interests. 

And while the Third Circuit found that the plaintiff, a retired Delaware attorney who belonged to neither major party. lacked standing to challenge the Delaware constitutional provisions regarding Family Court and the Court of Common Pleas.  The United States Supreme Court, however, has directed briefing on the issue of Article III standing, presumably pertinent to the other provisions.

[image via]

 

SCOTUS Hears Oral Argument in NY Rifle v. City of NY on Second Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court heard oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows a person having a "premises license" — one the most restricted type of licenses —  for handguns to “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately,”  but further defines an "authorized" range/shooting club as limited to facilities located in New York City.  Recall that  the Second Circuit unanimously upheld the regulation.

There is a substantial mootness question here: the City of New York changed the regulation to allow for transport to another residence and a range or shooting club, whether or not those secondary places are within the City. Additionally, the state of New York amended its law to provide for the legality of transport. The Court had previously rejected a filed "Suggestion of Mootness" and instructed the parties to address the issue at oral argument.

Arguing for the NYSRPA, a state gun-rights organization, Paul Clement broached the subject of mootness in his introduction and Justice Ginsburg asked him "So what's left of this case? The Petitioners have gotten all the relief that they sought." While Clement argued they were entitled to an injunction, the mootness issue resurfaced again and again. Arguing for the United States, supporting the gun rights organization, Principal Deputy Solicitor General Jeffrey Wall contended the named plaintiffs could be entitled to damages and thus the case was not moot. On behalf of the City of New York, Richard Dearing argued that "changes in state and city law have given Petitioners everything they asked for and, indeed, more than that," and that rather than view the City's actions "skeptically," it is a "good thing and not a cause for concern when the government responds to litigation by resolving matters through the democratic process." As to any damages claim that might be added in the future by petitioners, Dearing argued that this would be a unique support for the courts exercising Article III power.

On the merits, an underlying argument concerns the level of scrutiny suitable for evaluating the law. The Second Circuit panel tracked the analytic structure articulated previously by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. The Second Circuit concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' "  The level of scrutiny to be applied to gun regulations was a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Yet the oral argument did not delve deeply into this issue. Wall argued that the Second Circuit had applied a "watered-down form of scrutiny" and the correct standard is simply that the "text, history, and tradition" mandate "real protection" for the Second Amendment, seemingly always strict scrutiny.

Justice Kavanuagh, like Justice Thomas, had no questions, and whether or not the Court will dismiss the case as moot is difficult to predict, although it would seem to be a likely outcome. Note also that the Court's legitimacy should it reach the merits in this case will certainly be questioned; an amicus brief by several Senators has made that point and attracted attention.

SCOTUS Hears Oral Arguments on Legality of DACA Rescission

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court heard oral arguments in Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP, and McAleenan v. Vidal) regarding the legality of the Trump Administration's rescission of the DACA program forestalling deportation proceedings against undocumented persons who have resided in the United States since childhood.

While the controversy implicates many constitutional issues, the argument before the Court centers on the Administrative Procedure Act (APA) regarding whether the rescission is subject to judicial review and if so, whether the rescission is supportable on the merits.  In part these questions revolve around the rescission memo by acting DHS Secretary Elaine Duke (described by some as an "act of rebellion") and a subsequent June 2018 memo by DHS then-Secretary Kirstjen Nielsen (who famously resigned) regarding the rationales for the rescission.

One question is the extent to which these memos adequately considered the issue of reliance on the DACA policy.  The Solicitor General contended that

to the extent there are any reliance interests, they're extremely limited. DACA was always meant to be a temporary stop-gap measure that could be rescinded at any time, which is why it was only granted in two-year increments. So I don't think anybody could have reasonably assumed that DACA was going to remain in effect in perpetuity.

Yet some Justices seemed to question the assertion that reliance interests were limited. For example, Justice Breyer stated,

But there are all kinds of reliance interests.

I counted briefs in this Court, as I'm sure you have, which state different kinds of reliance interests. There are 66 healthcare organizations. There are three labor unions.

There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses. . . .

And they all list reliance interests, or most of them list interest reliance -- interests applicable to them, which are not quite the same, they are not quite the same as those of the 700,000 who have never seen any other country.

And more pointedly, Justice Sotomayor implicated the President in the reliance interests:

I think my colleagues have rightly pointed there's a whole lot of reliance interests that weren't looked at, including the very President of -- current President telling DACA-eligible people that they were safe under him and that he would find a way to keep them here.

And so he hasn't and, instead, he's done this. And that, I think, has something to be considered before you rescind a policy.

Yet even if the Court were to find a violation of the APA (a conclusion which is by no means clear at all), the remedy — remand to the agency — is problematical.

Justice Gorsuch gave the Solicitor General an opportunity to respond to the remand remedy, but the SG did not take up this invitation, arguing that the memos were adequate. Later, Justice Breyer asked the Michael Mongan, the Solicitor General of California arguing for the state respondents, whether it was just playing “ping-pong” to send it back to the agency reach the same result but do it differently. Mongan argued that the result was not a foregone conclusion:

We don't truly know what the agency would do if confronted with a discretionary choice. If they knew that DACA were lawful, there's a new Secretary, and the administration has expressed broad sympathy for this population, and they very well might continue the policy or stop short of wholesale termination.

In many ways, the arguments and issues here mirror the citizenship question on the census controversy,  Department of Commerce v. New York in which the Court did remand in its decision in June.  Whether or not the Court will follow a similar path is difficult to predict. 

 

Daily Read: Portrait of Justice Elana Kagan

In an extensive article in the New Yorker, Is the Supreme Court’s Fate in Elena Kagan’s Hands?, Margaret Talbot provides a profile of Justice Kagan, situating her in her role as the Court's "youngest liberal":

Kagan, who has long been admired by legal scholars for the brilliance of her opinion writing and the incisiveness of her questioning in oral arguments, is emerging as one of the most influential Justices on the Court—and, without question, the most influential of the liberals. That is partly because of her temperament (she is a bridge builder), partly because of her tactics (she has a more acute political instinct than some of her colleagues), and partly because of her age (she is the youngest of the Court’s four liberals, after Ginsburg, Breyer, and Sotomayor).

Talbot is good at relating Kagan's background and her written opinions:

Although Kagan didn’t become a historian, her opinions at the Court often read as though a historian might have written them. It’s not because she stuffs them with references to the Founding Fathers—some of her colleagues do that more often, and more clumsily—but because she knows how to weave an internally coherent and satisfying narrative, incorporating different strands of explanation and event.

Like any historian worth reading, Kagan avoids getting mired in the details. Her best opinions often begin by sounding broad political themes, as though she were gathering people around her to tell a story about democracy.

Definitely worth a read (or a listen) at the New Yorker.

[image via New Yorker].