There’s an old saying in sports: “That’s why you play the game.” You might think you know what’s going to happen. You might be sure you know what’s going to happen. But until the game is played, you just don’t know. Just ask the 1980 USSR Olympic hockey team. When I read yesterday’s momentous Supreme Court decisions, I thought of a legal corollary to the athletic rule: “That’s why you litigate the case.”
If you’d told me six months ago Justice Sonia Sotomayor would join all eight other SCOTUS justices in ruling that the City of Philadelphia discriminated against Catholic Social Services (CSS) when it punished CSS for refusing to certify same-sex couples as foster parents, I’d have laughed. The very thought was absurd. But that’s why you litigate the case.
If you’d told me six months ago that Justice Amy Coney Barrett would help save Employment Division v. Smith—the much-maligned 1990 SCOTUS decision that dramatically curtailed religious free-exercise rights—I would have been surprised. Many others would have been shocked. But that’s why you litigate the case.
And if you’d told me six months ago that SCOTUS would once again uphold Obamacare, this time by a supermajority of 7-2, I would have … no, wait. That’s exactly what I thought would happen. I’m mildly surprised at the reason the court upheld Obamacare, though. That’s why you litigate the case.
The top-line summary of the two important decisions the Supreme Court released yesterday—California v. Texas and Fulton v. Philadelphia—is relatively simple. In the first case the court upheld Obamacare. In the second case, it protected religious liberty. But the top-line summary doesn’t tell the important stories. Here are four things you need to know after a huge day at SCOTUS.
First, the narrowness of the Fulton holding obscures the breadth of support for religious liberty on the court. Let’s first discuss the disappointing aspect of the Fulton decision. The case did not overrule Smith. Far from it. Instead, it was an application of Smith so rote that even Sonia Sotomayor could join in. The basic rule of Smith is that religious liberty claims fail when a religious plaintiff challenges a “neutral law of general applicability.”
In other words, if the law isn’t aimed at religious exercise (“neutral”) and applies to everyone equally (generally applicable), then that law will survive a religious liberty challenge. For example, in Smith itself, neutral, generally applicable drug laws trumped the religious liberty rights of adherents of Native-American religions to smoke peyote as part of a religious ritual.
In essence, Smith demoted the Free Exercise Clause of the First Amendment to a glorified nondiscrimination doctrine. Rather than granting Americans an affirmative right to practice their religion absent compelling governmental reasons to restrict that practice, the Free Exercise Clause becomes almost entirely defensive—impotent against government encroachment absent evidence of targeted attack or unequal treatment.
In Fulton, the court found ample evidence that Philadelphia’s legal position was anything but “neutral” or “generally applicable.” The underlying facts are important. As a Catholic agency, CSS conducts itself according to church doctrine. Thus, it will not certify unmarried couples as foster parents, and it defines marriage as a “sacred bond between a man and a woman.” It will certify single people as foster parents, gay or straight, but it will only certify couples if they’re married in accord with the Catholic definition of marriage.
Did this mean CSS was turning away gay couples? Did it mean that gay couples could not become foster parents in Philadelphia? Not at all. Here’s Justice Roberts, writing for the majority:
No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs.
Philadelphia came after CSS not because it turned anyone away but because of media reports. “After receiving a complaint about a different agency,” Roberts wrote, “a newspaper ran a story in which a spokesman for the Archdiocese of Philadelphia stated that CSS would not be able to consider prospective foster parents in same-sex marriages.”
This report triggered an investigation, and the investigation yielded a punitive outcome. The city determined that CSS’s policy violated nondiscrimination provisions in CSS’s contract with the city and nondiscrimination provisions of the Fair Practices Ordinance. As a result, the city stated “that it would not enter a full foster care contract with CSS in the future unless the agency agreed to certify same-sex couples.”
Aren’t nondiscrimination statutes neutral (not aimed at religion) and generally applicable (apply to everyone)? Well, not in this case. It turns out that the Commissioner of the Department of Human Services had the power to grant exceptions to the nondiscrimination rule at the Commissioner’s “sole discretion.” As Justice Roberts writes, “a formal mechanism for granting exceptions renders a policy not generally applicable.”
So does that mean that Philadelphia can change its policy, remove the possibility of exceptions, and ultimately exert its will? Not so fast. It turns out that five justices—Barrett, Kavanaugh, Gorsuch, Thomas, and Alito—are willing to revisit Smith itself. Gorsuch, Thomas, and Alito plainly wanted to do so immediately.
Justices Barrett and Kavanaugh seem to agree with Gorsuch, Thomas, and Alito in principle. In her concurrence (that Justice Kavanaugh joined), Justice Barrett wrote, “In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.”
So why not reverse Smith? Because Justices Barrett, Kavanaugh, and (interestingly) Breyer weren’t ready to articulate a different standard. Again, here’s Barrett:
I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical concurring strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.
I was trying to think of a technical legal description of this sentence. Instead, I’ll go with a Princess Bride version of this quote: “Good night, Employment Division v. Smith. Good work. Sleep well. I’ll most likely kill you in the morning.” So no, Philadelphia should not feel like it can simply tweak its policy and achieve a different result. Fulton not only vindicated CSS’s right to be free from religious discrimination, it forecast an even stronger religious liberty jurisprudence in the future.
Second, SCOTUS reaffirmed that government money and government contracts don’t trump the First Amendment. Very few comments about the Fulton case have emphasized a critical part of its ruling—that Philadelphia has very limited ability to force city contractors to contract away their First Amendment rights. Because the foster care system is a government program, the city argued, it should enjoy “heightened powers when managing its internal operations” and that individuals who “enter into government employment or contracts” accept “certain restrictions on their freedom as part of the deal.”
Not so fast, said SCOTUS. Government control over the foster parent process did not translate into the ability to discriminate against religious participants. In other words, it could not contract away Smith’s requirements of neutrality and general applicability. Moreover, the Court held, the government wasn’t even entitled to greater judicial deference in the management of the foster care program.
Why is this important? When the government expands—and government contracts and government funds touch more American lives and institutions—opposing partisans frequently demand that those funds come with ideological strings attached. The courts, however, have frequently put a stop to this. There are multiple cases, for example, blocking the state from excluding religious institutions from various public funding schemes. On the other side of the aisle, the Trump administration recently and unsuccessfully attempted to require private contractors to ban critical race theory in their own internal diversity training efforts. Simply put, don’t believe that government fund leads to unlimited government control.
Or, to put the point in tweet length, I like the way Becket’s Luke Goodrich described this aspect of the Fulton holding:
Third, the alignment of the Supreme Court is far more complicated than 6-3. If there is a consistent theme to the flagship Dispatch podcast (I’m speaking of course of Advisory Opinions, with the brilliant Sarah Isgur), it’s the idea that we cannot, must not, and should not refer to the current court as a “6-3 court.” While there may be some 6-3 cases, with the GOP appointees on one side and the Democratic appointees on the other, those cases are likely to be rare. Indeed, they’re likely to be rare even in the most hot-button and politically-charged cases that come before the Court.
Take yesterday, for example. The Court decided one of the most contentious religious liberties cases in years with a unanimous ruling on the outcome and a complicated 3-3-3 alignment on the reasoning. It decided the final case in what Justice Alito described as the Court’s “epic Affordable Care Act trilogy” with SCOTUS aligned 7-2 on the outcome and (most of) the reasoning.
Going back to the election challenges, the Court slammed the door on Trump’s effort to overturn the election without any indication that a single one of his appointees was prepared to rule for him on the merits.
I’ve said it on the podcast a thousand times, and I’ll say it again here: Judges are human beings. They are not ideological automatons. Yes, it is absolutely fair to say that the Supreme Court is more originalist and textualist than it was before Trump’s presidency, but that does not mean that we can easily and simply predict the outcomes of cases on the basis of partisan predictions.
Remember all those folks who feared (or hoped!) “Trump’s judges,” including Justice Barrett, would overturn the election or end Obamacare? The court has already taken a number of contentious cases for its next term. While I have educated guesses about how the court might rule, I won’t know until I read the decision.
That’s why you litigate the case.
The Obamacare battle created an unwritten Roberts rule. The fight against Obamacare has never been the GOP’s finest hour. The party hated the law yet couldn’t repeal the law, even when it controlled the presidency, House, and Senate. It hated the law, yet it couldn’t agree on a replacement for the law. There was never a realistic plan. It’s over, and Obama won.
But I’d also add that the Obamacare trilogy has not represented the Supreme Court’s finest hour. This newsletter is already going long, but the judicial contortions required to rescue the law from its numerous challenges were impressive indeed. Let me quote and endorse this especially spicy paragraph from Justice Alito’s very spicy dissent:
No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again.
As we say down South, “He ain’t wrong.” While I agree with the ultimate outcome of this last episode of the trilogy, the court reached the right result for the wrong reason. The court ruled against the petitioners on the basis that they didn’t have standing. I agree with George Mason’s Ilya Somin and many others—the Court should have held that the relevant states and individual plaintiffs had standing to challenge the law, but that the law should stand anyway. When Congress repealed the penalty from the individual mandate while letting the rest of Obamacare stand, it clearly indicated that the individual mandate was not indispensable to the law.
In other words, the mandate was severable from the rest of the law.
But if you step back and look at the entire trilogy, the contortions Alito outlined above tell me that something was going on, that an unwritten rule might be in play. Remember that Justice Roberts always has one eye on the institutional credibility of the Supreme Court. Overturning an immense piece of social legislation passed by a filibuster-proof legislative majority would create a cultural and political convulsion. Roberts doesn’t want a convulsive court.
So what’s Roberts’s unwritten rule? Perhaps it’s something like this: When the elected branches of government enact truly significant social reforms, opponents should focus on winning elections more than winning cases. Any other approach degrades the cultural and political capital of the court.
No, the Roberts rule doesn’t mean significant social reforms are untouchable, especially when fundamental rights are at stake. After all, he ruled with the majority in favor of Hobby Lobby to strike down part of the Obamacare contraception mandate in one of the most contentious cases of the entire Obama presidency. But the Hobby Lobby case still left the overwhelming bulk of the law intact. Roberts protected religious liberty and preserved Obamacare. Institutionalism trumped originalism and textualism, but not entirely. The unwritten rule has its limits.
One more thing …
There’s much more to say—so very much more. Yesterday Sarah and I discussed Fulton and California at length on the podcast. You can listen to it all here. And if your thirst for legal nerdery still isn’t quenched (and, honestly, when is it ever?), tune in again on Monday. We’re going to have more analysis and no doubt a few new thoughts. Watch this page for all the latest episodes. Thank you for listening!
One last thing …
Jean-Luc Picard is coming back, along with the only Q that’s actually real. I’ll watch every minute: