A Preview of SCOTUS Term Review: Theocracy Edition

by Michael C. Dorf

On Monday of next week, I shall participate in the Practicing Law Institute (PLI)'s 22nd Annual Supreme Court Review (as I have done each year since it began). Although the day's activities will be entirely online due to the pandemic, I look forward to seeing old friends, and once again the faculty is a star-studded cast: joining co-chairs (Berkeley Law Dean) Erwin Chemerinsky and (Touro Law Emeritus Professor) Martin Schwartz will be Professors Sherry Colb (Cornell), Leon Friedman (Hofstra), Melissa Murray (NYU), Burt Neuborne (NYU), Cristina Rodriguez (Yale), and Ted Shaw (North Carolina), as well as prominent attorneys Miguel Estrada (Gibson Dunn), Judson Littleton (Sullivan & Cromwell), and Janai Nelson (NAACP LDEF), with journalist Joan Biskupic (CNN) and me rounding out the group.

Coming off a fairly momentous Term, I expect that we will give the most attention to the following issues: the role of CJ Roberts in both dominating the Court and moving it to the center (with special focus on the DACA, Title VII, abortion, and Presidential subpoena cases); whether and to what extent the opinions by Justice Gorsuch in the Title VII cases and the Creek case against Oklahoma show that he is a principled textualist who goes where the law leads him; and how the Court's performance in the presidential financial records cases (in which all the Justices rejected the broadest claims of presidential immunity) will play out in the short and long terms. I expect that there will also be considerable interest in recent leaks about internal Court deliberations based on Ms. Biskupic's reporting (on the financial records cases, the Title VII cases, the DACA case and the Second Amendment, and Justice Kavanaugh's attempts to duck hard cases).

For my part, I expect to weigh in on all of those questions and more in my role as "panelist" in three of the first four sessions. Here I want to preview my remarks for the 10:30 am panel on free speech and religion, where I have responsibility as "speaker" on the religion cases. Before doing so, however, I'll add that it's not too late to register for the program--which is an entertaining and useful way for practicing lawyers to earn a whole lot of the CLE credit they need. (It's not exactly cheap, however. We panelists/speakers are volunteers, but PLI, which is a non-profit, has to recoup its production costs.)

The Trump Campaign as Protection Racket

by Neil H. Buchanan

With so many things going so horribly wrong in the world, this is not a good time for a politician to be running as an incumbent (at least one who is a member of the party in power).  Facing a daunting political environment, losing politicians can turn to a fairly standard set of desperate ploys to turn things around.

Donald Trump is in most ways not at all a standard politician -- and I continue to reject the idea that he has any grand strategies or actual political acumen -- but he most certainly is acting like a standard-issue political loser in the sense that he is flailing about, looking for scapegoats and trying to get out from under the weight of his own terrible decisions.

Much has already been written about Trump's "little green men" gambit -- sending untrained paramilitaries into Portland, Oregon -- but here I want to focus on how that leading-edge-of-fascism idea fits into the "legitimate" side (more on those scare quotes presently) of Trump's doomed reelection campaign.  He is, in fact, acting more like a mafia boss than a president.

Justice Kavanaugh's Calvary Chapel Dissent Misstates Free Exercise Law

by Michael C. Dorf

Late last week, in Calvary Chapel Dayton Valley v Sisolak, the Supreme Court denied a Nevada church's request for injunctive relief against state COVID-19 rules that limit in-person worship services to 50 people. The church pointed to Nevada rules that permit other places where people gather indoors for sustained periods of time--including casinos, bowling alleys, and restaurants--to be open at 50% capacity, even if their regular capacity greatly exceeds 100. The Court denied the request 5-4 without giving a reason, but it is relatively easy for readers to infer that the majority thought the case was sufficiently similar to its May 29, 2020 decision in South Bay United Pentecostal Church v. Newsom to warrant the same result.

In South Bay, a church complained that California was discriminating against religion by subjecting worship services to greater restrictions than some other facilities, such as grocery stores and marijuana dispensaries. Concurring in the order denying relief, Chief Justice Roberts rejected the church's analogy:

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 same four Justices who dissented in South Bay--Thomas, Alito, Gorsuch, and Kavanaugh--also dissented in Calvary Chapel, but they argued that even accepting South Bay's authority, the church in Calvary Chapel should win. In three dissents--one by Alito and joined by Thomas and Kavanaugh, as well as solo dissents by each of Gorsuch and Kavanaugh--they explained that, as Justice Alito put it, Nevada "specifically treats worship services differently from other activities that involve extended, indoor gatherings of large groups of people." Collectively, the dissents are quite persuasive that there is no good public health justification for the differential treatment. They also demonstrate that Nevada's reopening has proceeded recklessly and almost certainly led to avoidable illnesses and deaths.

Remedial Collapse in Portland

By Matthew Tokson

Last week in Portland, federal officers seized at least two protesters without probable cause, threw them in unmarked vans, and interrogated them inside a federal courthouse. There is little question that these seizures violated the Fourth Amendment. But whether there will be any meaningful legal remedy for these wrongs remains in doubt. 

As anticipated by Michael, Judge Mosman of the US District Court for Oregon ruled on Friday that Oregon lacked standing to challenge the federal government's seizures of its citizens. The decision turned on parens patriae doctrine, which allows a state to sue on behalf of its citizens when it has an interest apart from the interests of the private parties and a "quasi-sovereign interest" that has been violated. Judge Mosman ruled that Oregon lacked a quasi-sovereign interest in preventing its citizens from being arrested without probable cause, at least where only two citizens have been unlawfully seized so far. Also, as in Lyons v. City of Los Angeles, the state lacked standing to seek an injunction against further unlawful seizures, because it could not prove those seizures will occur in the future. Finally, the state couldn't assert its citizens' rights to be free from chilling effects on their speech, because citizens can "bring indivdual lawsuits to vindicate those rights." 

This last argument is especially troubling. So far, no citizen seized without probable cause, thrown in a van, and interrogated in a federal courthouse has filed a lawsuit. Why not? There are several potential deterrents to individual lawsuits. When suing a federal officer for constitutional violations, plaintiffs typically cannot recover attorney's fees, under 28 U.S.C. 2412. Compensatory damages are likely to be limited in these cases, and the Supreme Court has generally limited punitive damages to a maximum of ten times compensatory damages. And qualified immunity, where officers can only be held liable for violating clearly established law, may bar recovery in this case. Many courts have treated qualified immunity as a sort of "one bite rule" for constitutional violations, allowing plaintiffs to recover only when the exact factual scenario at issue has arisen in a previous case. In Portland, although the government's actions plainly violated the Fourth Amendment, it is unlikely that courts have previously ruled on the precise fact pattern of a seizure without probable cause in the context of an ongoing protest plus travel in a van plus interrogation in a courthouse followed by release within 20 minutes. Courts applying the ultra-fact-specific version of qualified immunity might find that it applies here. On the other hand, some courts have been a bit more flexible in finding law clearly established, especially in cases involving First Amendment expression. But the prospects for substantial financial recovery for individuals are poor overall.

June Medical and How to Talk About Abortion Part III

By Eric Segall

In the fall and winter of 2014, I published two posts on this blog lamenting how we talk, argue, and litigate about abortion. Those posts generated as much attention as any I have written over the last six years in terms of substantive feedback. My main sentiment was that "we don’t need to live in a zero-sum world when it comes to abortion and that name calling and misleading labels do not advance the debate or the politics surrounding the debate. Although compromise and civility might be hard to achieve, I argued we should at least try to do better (on both sides)."

I also cautiously suggested that compromise would be more likely if the Supreme Court returned this issue to the political process. This term, of course, the Court decided June Medical, which effectively held that lower courts must determine whether a regulation of abortion places an undue burden or substantial obstacle in the way of women seeking abortions without the court addressing the law's benefits if any (Chief Justices Roberts' concurring opinion is the controlling one). This holding all but guarantees more expensive, lengthy litigation across the United States because red states will continue to pass laws targeting abortion providers as well as women seeking to terminate their pregnancies.

Last week I had the pleasure of having on my Supreme Myths podcast Professor Mary Ziegler, an expert on abortion, reproductive rights, and family and constitutional law. She has written three books on abortion including her new one, Abortion and the Law in America: Roe v. Wade to the Present, which I strongly recommend. Among many other important contributions, Professor Ziegler has built a reputation as someone who is fair to both sides of the abortion debate.  Her new book and her views as stated on our podcast definitely provide measured, open-minded perspectives on this highly divisive issue, Reading her book and interviewing her made me want to revisit the question of how we talk about abortion.

Veganism, Year Twelve: The Pandemic, Animal Slaughter, and Economic Transition

by Neil H. Buchanan

There is nothing like a global pandemic to get people thinking about ways in which the world can make very big changes in very short periods of time.  That which seemed simply impossible -- animals walking through empty city streets, air quality radically improving in mere weeks (saving tens of thousands of lives in China alone) -- becomes not only possible but banal.  What else might be possible?

Today is the twelfth anniversary of my becoming a vegan.  Each summer, I write one or more veganniversary columns: 2019 (plus followup), 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and the original announcement in 2008 (plus followup).  Because my co-Dorf on Law writers Professors Sherry Colb and Michael Dorf have written extensively and deeply on this topic (including their wonderful 2016 book), I have tended to approach the topic from one or both of two angles: offering non-expert (even pedestrian) observations of how vegans are perceived in popular culture, and providing economic analyses of vegan and non-vegan production and consumption.

This year, I will emphasize the latter.  Even so, I will begin with two pop culture references, the second of which actually provides a nice transition from the social observations to the economic argument of this column.

Trump Admin Legal Team's Defense Of Portland Goon Squads Mirrors Prior Pretextual Arguments

by Michael C. Dorf

Running for the Republican nomination for President in December 2015, candidate Donald Trump called for a "total and complete shutdown of Muslims entering the United States." Two and a half years later, a 5-4 US Supreme Court upheld travel restrictions on persons entering the US chiefly from Muslim-majority countries, even though, as Justice Sotomayor noted in dissent, there was overwhelming evidence that the version of the Travel Ban before the Court in 2018 was the lineal descendant of, and would not have existed but for, Trump's extensive and blatant anti-Muslim animus. Nonetheless, Chief Justice Roberts, writing for the majority, deemed that background irrelevant in light of the sanitizing efforts of Trump's minions: "the issue before us is not whether to denounce [Trump's] statements," the Chief Justice said in the course of accepting a clearly pretextual national security justification for the supposedly sanitized Travel Ban.

The next year, the Chief's patience seemed to have run out. Once again the Court was confronted with Justice Department arguments that sought to defend an indefensible Trump program via a pretext. This time the question was whether the Census Bureau could include a citizenship question that was clearly designed to generate an undercount of Latinx households and thus boost the relative representation and distribution of funds to non-Latinx, Republican-leaning, jurisdictions. Again writing for the Court but this time joined by the liberal wing, Chief Justice Roberts rejected the administration's preposterous claim that it sought to add the citizenship question in order to generate data that would help it enforce the Voting Rights Act.

Were I now focusing on the practical import of the census case ruling, I would direct readers to the executive order Trump signed on Tuesday purporting to exclude "illegal aliens" (a term widely deemed offensive that the order therefore uses nine times) from the ranks of "persons" who count for apportionment. However, I'll set that issue aside for current purposes. My interest today is in the question of when the Court will and when it won't accept clearly pretextual justifications for Trump's policies.

That question could ultimately decide the fate of Trump's invasion of Portland and potentially other cities. Here too we have a very substantial divergence between the clearly unlawful policy Trump is pursuing and its depiction and defense by his spokespeople. On one hand, Trump expressly states that his rationale for sending federal personnel into cities "run by liberal Democrats" is to quell violence generally, for which the federal government lacks authority in the absence of state or local authorization. On the other hand, Acting Homeland Security chief Chad Wolf says that the vaguely identified federal shock troops on the ground in Portland are there simply to protect a federal courthouse, a line that the federal government lawyer David Morrell repeated in a videoconference hearing before Federal District Judge Michael Mosman yesterday on a lawsuit brought by Oregon Attorney General Ellen Rosenblum on behalf of the state--asserting its own sovereign interest and its parens patriae interest in protecting its citizens.

Will Judge Mosman, the Ninth Circuit, and/or ultimately the US Supreme Court accept the Trump administration's pretextual arguments? I hope not, but several factors give one pause.

Will Liberal Justices Pay A Price For Signing Onto Justice Gorsuch's Textualist Opinions?

by Michael C. Dorf

Last week, Prof Segall pushed back against an emerging narrative among many SCOTUS watchers. According to the rapidly-becoming conventional wisdom, in the most recent Term, Chief Justice Roberts and Justice Gorsuch demonstrated that they are principled jurists who follow the law and their interpretive methodology where it leads them. The main pieces of evidence for this narrative are the SCOTUS decisions this term in the LGBT Title VII case (written by Gorsuch and joined by Roberts and the liberals), the Louisiana abortion case (written by Roberts and joined by the liberals), the DACA case (same), and the Trump financial records cases (written by Roberts and including Justices Gorsuch, Kavanaugh, and in one respect all the Justices). We can also point to the Oklahoma case involving the Creek Nation (written by Gorsuch and joined by the liberals), about which more below.

That's a pretty impressive list, right? So what is Prof Segall's objection? He makes three powerful points. First, he notes that the Court remains quite conservative, pointing in particular to the very broad conception of religious freedom that animated a couple of its end-of-Term rulings. Second, he offers ideological and pragmatic explanations for the votes of Chief Justice Roberts (who is the focus of his commentary). And third, he offers the legal realist observation that, at least at the level of the Supreme Court, the conventional legal materials (text, history, precedent) are so under-determinate that one pretty much must look to extra-legal causes for any jurist's decision. In addition to all of that, Prof Segall refers to a fourth point, citing Prof Leah Litman's excellent analysis in The Atlantic: the Court's liberal-leaning rulings this past Term are not so liberal and could well prove to be fleeting.

Although I am a bit less of a Supreme Court exceptionalist than Prof Segall, that difference is small in context. I broadly agree with his critique. Here I want to use that critique to respond to a worry that might otherwise trouble liberal Court watchers. The worry is encapsulated in the title of today's essay: Will liberal Justices pay a price for signing onto Justice Gorsuch's textualist opinions?

Trump's Not-So-Proto Fascism is Still Not Proof of Political Genius (Evil or Otherwise)

by Neil H. Buchanan

Now that Donald Trump has decided that he wants to expand his terrifying use of unidentified shock troops in American cities beyond Portland -- a tactic that Professor Dorf has brilliantly (and accurately) likened to Vladimir Putin's invasion of Crimea -- people are finally feeling some sense of growing alarm about the lawless intent of this president and his enablers.  One hopes that it is not too late.

Even in the midst of existential crises like this one, it continues to surprise me how important our word choices are.  What we call things frames how we think about things (of course), and it is no mistake that demagogues and autocrats abuse language to minimize or maximize matters to their own purposes.  Hence, Trump's dismissal of increases in reported coronavirus cases as merely "the sniffles" -- as if hospitals (already stretched to capacity) say, "Oh, a positive case with trivial symptoms; looks like we'd better expedite his admission papers!" -- is completely normal even for dimwitted politicians like him and is part of the drip drip drip of trying to get people not to blame him for being the failure that he is.

How do sloppy and misleading word choices make matters worse today?  There are the typical Orwellian abuses of language for political ends ("Biden is a puppet of the radical left!"), but there are also inadvertent choices that end up weakening our responses and making Trump appear stronger than he is.  This is a big problem, for multiple reasons.

Portland is the New Crimea: Trump's Little Green Men

by Michael C. Dorf

The Trump/Barr administration has been deploying federal law enforcement officers in Portland without approval of local or Oregon state authorities, without clearly identifying who they are, and without a clear law enforcement mandate. In each of these respects, the deployment may well be illegal, as Prof. Steve Vladeck explained on Friday. Further, Portland Mayor Ted Wheeler believes--with good reason--that the federal presence is causing rather than quelling violence. Here I will focus on the striking similarity between what Trump and Barr are now doing in Portland and the Russian invasion of Crimea (and then eastern Ukraine).

A Different View About Chief Justice Roberts and this Year's Term: The Return of O'Connorism

By Eric Segall

As legal scholars and pundits publish their year end op-eds and essays about the Court's 2019-2020 term, one clear trend emerges. There is almost universal acclaim for how Chief Justice John Roberts steered the Court into the political center and showed that, for at least this term, the Court was above politics. Luminaries such as Yale Law Professor Akhil Amar and Harvard's Noah Feldman wrote pieces in the New York Times and Bloomberg respectively, suggesting, in the words of Amar, that "The Roberts Court is nothing like America. In a polarized nation, the Court continues to defy partisanship." Similarly, Feldman wrote that "Chief Justice John Roberts revealed himself to be (or to have become) a genuine, judicial restraint Burkean conservative who is prepared to uphold liberal precedents and to keep the Trump administration subordinate to the rule of law... [The Term] showed that the justices aren’t robots, driven by partisan or ideological agendas." These perspectives on Roberts particularly and the Court generally, reflect the (good faith) need of constitutional law professors across the country to pin acclaim on the institution they write and teach about. Let's take a closer look.

Virtually everyone gave the Court high fives for its decision providing gays, lesbians, and transgender people legal protections against employment discrimination. I agree and gave the decision three cheers in my year-end summary. And if folks simply celebrated the result, which was obviously a good one for folks interested in LGBTQ equality, I'd have nothing else to say. But many commentators failed to focus on the positive real world effects of the decision and instead applauded Roberts and Gorsuch for reaching a decision that they claimed conservatives generally hate. According to Feldman, Justice Neil Gorsuch "revealed himself as so highly principled in his commitment to textualist statutory interpretation that he will carry its logic to conclusions that liberals love and conservatives hate." 

Hogwash. As I mentioned here, roughly 70% of Americans want gays and lesbians to have equal rights at work with heterosexuals, and I'm pretty sure so do Gorsuch and Roberts (the latter's dissents in the same-sex marriage cases no doubt reflect his traditional Catholic/family values as much as any particular perspective on constitutional law). In any event, it is empirically false that "conservatives hate" the decision. The far right and evangelicals maybe, conservatives no. Chief Justice Roberts is conservative and a GOP loyalist, but he's not far right. Of the three dissenters, Alito and Thomas fall into the extremely far right category, and it's too early to tell about Kavanaugh. But they hardly represent most of America's conservatives.

Team Names, Merch, and Making Money: Bigotry Trumps Capitalism

by Neil H. Buchanan

Question: When do money-hungry businessmen -- men who tout the idea that there is nothing more important than the almighty dollar, not only as a measure of business success but as evidence of personal value (and even virtue) -- decide to leave dollars on the proverbial table?

Answer: When they would rather stoke bigotry and culture wars than make money.

Surprisingly often, the cheerleaders for unbridled capitalism firmly embrace squishy things like "culture," even though they mock every other attempt to say that life is about more than money.  And it is almost invariably true that the cultural commitments of these men (and very occasionally women) are all about reinforcing racial, gender, and class hierarchies.  What fun is it to make money unless you can spend it to keep your inferiors down?  There is a lot going on here.

SCOTUS News Flash: Judges Trust Other Judges More Than They Trust Legislators

by Michael C. Dorf

Because of my father's sudden illness and death last week, I only got around to reading the Trump financial records cases and the excellent commentaries on them by Profs Buchanan (here and here) and Segall (here) yesterday, when I also produced edited versions of the cases for the supplement to the constitutional law casebook I co-edit with Profs Richard Fallon and Fred Schauer. (Prof Jesse Choper is also listed as a co-editor to reflect his enormous contributions to earlier editions.) I confess that I have not yet had a chance to read others' reactions to the cases, and so I apologize if my take repeats what others have already said.

What is my take? Simply that in reading the two cases together, I was struck by the different way in which the Court treated judges from the way in which it treated legislators. In Trump v. Vance, the Court rejects Trump's argument for absolute immunity against a grand jury subpoena and even for a requirement of heightened need, because it trusts state court judges backed by lower federal court judges (in an exception to the principle of Younger abstention) to apply the same rules that apply to everyone else with sensitivity to the needs of the President. Trump v. Mazars similarly rejects absolute immunity but, by contrast, adopts a four-part test that can be fairly summarized as roughly equivalent to the heightened-need standard rejected in Vance.  

Why the difference? My null hypothesis is that the Justices, as judges, trust judges and value what courts do substantially more than they trust Congress or value what it does. I consider a couple of competing hypotheses below, but neither is sufficiently persuasive to move me off the null hypothesis that a kind of home cooking explains the different approaches in the two cases.

Were the Trump Tax Cases More Important Than I Thought? Not Really

by Neil H. Buchanan

Last week, the U.S. Supreme Court issued a pair of decisions in what were somewhat misleadingly known as the "Trump tax cases."  I then wrote a column here on Dorf on Law under an oh-so-clever title -- "The Supreme Court ... yawn ... Rules on Presidential Tax Returns" -- in which I argued that there was not really much of interest in those cases, at least not in the sense that we usually think of Supreme Court cases as being important.

That is, I argued that unlike the DACA ("Dreamers") case this term, or Obergefell (same-sex marriage) a few years ago, the immediate import of the tax cases was essentially nothing.  Even if the Court had ruled much more forcefully against Trump by ordering the immediate transfer of his tax and financial records to Congress and the Manhattan DA, it is not at all obvious that the world would have been meaningfully better or worse for either Trump or his opponents.  In fact, I argued that Democrats might even be better off in a world in which Trump insists on acting like he has a lot of bad things to hide than in one where we get to see what he is hiding (even if it is truly bad).

That was my reason for including the sarcastic "... yawn ..." in the title of my column, even though I did note that of course Trump has reason to worry (as a result of the Vance case) that the Manhattan DA (after yet further delay) will almost certainly come into possession of evidence of serious felonies.  We spent months anticipating the Court's rulings on these two cases because of their supposedly explosive political import, yet when we actually saw the rulings it all seemed so anticlimactic, at least in the immediate sense.

In the days since then, I have been reading and watching the continuing commentary about those cases.  I also noted a comment on my column by Professor Marty Lederman that the cases are about a wide range of issues, which is why I said above that calling these the Trump tax cases is "somewhat misleading."  There are, in fact, plenty of reasons to applaud the Court's rulings here, in particular by contrast to what the Court's conservatives could have ruled, as I will explain presently.

Even so, I continue to think that even the non-tax aspects of these cases give us very little reason to think that the Court is going to act as a meaningful check on Trump's efforts to destroy the rule of law.  In the end, the laudatory aspects of the Trump tax cases -- and they truly are to be applauded -- should not in any way give us confidence that the Supreme Court will save us from a Trumpian destruction of the American constitutional system.

In Memory of Stanley Dorf (1931-2020)

By Laura Dorf Queller & Michael C. Dorf

Stanley Allen Dorf was born in 1931 on the Lower East Side to our grandparents Irving and Sally Dorf. It was the Great Depression, but fortunately for dad and his brother Bill, born four years later, Grandpa had a secure job with the Post Office. They were hardly well-to-do, but they always had enough to eat, and good too, as Grandma Sally was a wonderful cook.

 

No doubt to Grandma’s dismay, dad weighed a whopping twelve pounds at birth and thus needed some assistance entering the world. The obstetrician yanked newborn Stanley’s right arm, permanently damaging it. For the rest of his life, he could not use his dominant hand for tasks requiring twisting motions, such as throwing a ball, playing a musical instrument, or even opening a door. Later, he had what he described as a “mild” case of polio, which left other scars and kept him in quarantine for months—preparation for what we have all been experiencing lately. Dad accepted these limitations without complaint and even noted philosophically that his partial manual paralysis might have saved his life by keeping him out of the Korean War.

 

Dad was a prodigy. In kindergarten, he read articles from The New York Times aloud to his classmates. He was fortunate to attend a publicly-funded special elementary school for gifted students near where his family had moved to in Brooklyn. This week we discovered files of his many writings, including a report he produced as a sixth grader entitled “Industry.” It is more comprehensive and better organized than many doctoral dissertations. Despite the report’s generally objective tone, dad’s moral compass found a way into the paper. In a chapter on the Industrial Revolution, he wrote that “the owners of factories became richer because of the speeding up of production. The workers became poorer because the owners paid them next to nothing.”

The Court's Term: Who Won and Who Lost

By Eric Segall

In the words of my friend Professor Josh Blackman (in an email), "what a term!" For one thing, for the first time the American people listened live to some of the Supreme Court's oral arguments. That it took a worldwide pandemic to achieve that result should not go unmentioned. Whether the Court go back to its ancient ways next year is anyone's guess, but sadly it still feels like live streaming the Justices' open and public hearings is at least two pandemics away.

There were at least two obvious winners this term. Gays, lesbians, and transgender persons will finally get legal protection when they are discriminated against because of their sex, and that is an overwhelmingly positive development. It is a little sad that it took the Supreme Court to make that call when our cowardly Congress should have made explicit those protections long ago.

Many people suggested these cases were a win for Justice Gorsuch -style "textualism," while others booed the Court for legislating from the bench.  In reality, the decision was just the Court doing what it thought best all things considered. Most polls show that Americans want legal equality for gays and lesbians, and the Court's decision reflected that consensus. In any event, three cheers for the decision that will move our society closer to full equality for LGTBQ people.

The other big winner this term, perhaps ironically, was religious schools, many of which refuse to hire openly gay Americans (that conflict is coming to a court near you). In two major constitutional cases the Justices interpreted the religion clauses of the First Amendment to provide broad protections for religious schools (religious folk also won a big statutory case involving the Affordable Care Act and contraceptives, but that opinion is not the end of that controversy).

In Espinoza v. Montana Department of Revenue, the Justices held that if states decide to give secular private schools financial assistance they must provide the same assistance to religious schools. Make no mistake, since numerous states do provide tuition vouchers and other assistance to secular private schools, and are unlikely to give that up, Espinoza means our tax dollars will go to help religious schools whether we want them to or not. The Justices cited what they argued were broad and longstanding principles to support their decision, but as I wrote here, there is no originalist basis for the decision, and the Court's ruling is just another example of the Justices making stuff up.

The other big religion case involved two religious school teachers who were fired for allegedly illegal reasons. One was fired when she told her employer she had breast cancer, and the other was allegedly terminated in violation of the federal anti-age discrimination law. By a 7-2 vote, the Court held that anti-discrimination laws could not be applied to these teachers because doing so would violate some combination of the Establishment and Free Exercise clauses. This opinion extended what the Court previously called "the ministerial exception" to essentially all religious school teachers. Justice Thomas' concurring opinion accurately suggested the exception needed a new name.

The Court's overriding of Congress' desire to protect Americans from employment discrimination based on disability and age was unwarranted. We can all agree that religious institutions must be able to hire and fire their ministers without governmental interference. But extending that protection to religious school teachers fired, not for violating any faith-based principles, but for allegedly illegal secular reasons, puts these schools above the law in a way that severely threatens Establishment Clause values. In fact, this case taken together with Espinoza show that the Free Exercise Clause was a big winner this term while the Establishment Clause was once again reduced to meaningless rhetoric.

Picking the winners and losers in this year's big abortion case, which was also the big abortion case four years ago, is complicated. Chief Justice John Roberts joined with the four liberals to strike down a Louisiana law requiring doctors who perform abortions to obtain admitting privileges at a nearby hospital. The Court invalidated an identical Texas law before Justice Kennedy retired, and Roberts stuck by that decision in his concurring opinion mostly on the basis of stare decisis. So for now, women seeking abortions were the winners.

There are, however, two big caveats. As Mike wrote here, Roberts altered the test from that previous case which might in the future give states more leeway to regulate abortions. Moreover, as I wrote here, Trump can now run again against abortion and the Court, and if he wins again, women seeking abortions will undoubtedly be hurt (compared to a Biden Presidency). Moreover, there is every reason to believe the Court will soon whittle away and then eliminate constitutional protections for women seeking abortions.

I am happy to report that the Second Amendment was a big loser this term as the only case the Court decided to hear on the subject was dismissed for mootness (the obviously correct result). The Court also refused to grant cert. on any other gun case. Let's hope this trend continues for as long as possible.

I am also happy to report that, at least for now, thousands of children and young adults avoided the Trump Administration's war on immigrants. The Court held that Trump violated the Administrative Procedure Act when he repealed the Deferred Action for Childhood Arrivals program (DACA). Alas, if Trump is re-elected, this victory will be short-lived because the Court was clear that, done correctly, Trump can legally rescind DACA. Of course if Trump is re-elected...well that's a terrifying subject for another post.

The two cases involving Trump's tax returns and other financial documents were mostly duds with no clear winners or losers. I refer people to Professor Neil Buchanan's fine post last Thursday which makes the same point. Yes, future Presidents now have to worry about state prosecutors pursuing them for allegedly criminal activity, and that is something, but there will still be many defenses available, and of course it is still unclear whether a sitting President can be indicted for a crime, state or federal.

The Court also sent down to the lower courts the cases involving congressional subpoenas with an open-ended four part balancing test which will allow those courts to rule any way they want to and, as the Supreme Court is currently constituted, means GOP Presidents will win future cases and Democratic Presidents will likely lose if and when those cases end up at the Court.

At the end of the day though, I agree with Neil: "This seems to be an instance in which the media decided that these cases were interesting and important because they involve Trump, but no one stopped and said, 'Will anything that we care about in 2020 change, depending on how the Court rules?’ It turns out ... that even high-profile cases might not actually matter very much.  This is one of those times."

There were a few other important cases, including one holding that Native Americans in a huge swath of Oklahoma cannot be tried by the state for certain major crimes. The implications of the Oklahoma case will have to be worked out over time but it certainly appears to be a win for a group that rarely triumphs at the Court. In fact, this case was divided 4-4 along partisan lines before Gorsuch replaced Scalia, and Gorsuch sided with the liberals, most likely because he fancies himself a westerner who is sympathetic to the plight of Native Americans. The governing law here was hopelessly complicated and once again the Justices' priors ruled the day.

Perhaps the biggest winner this term was Chief Justice John Roberts. He only dissented in 2 cases, and is clearly both the swing vote and the Chief, a rare combination. The importance of being Chief is that if he is in any majority, which he almost always will be as the Court is currently constituted, he can assign the opinion to anyone he chooses, which is a more important power than most people realize. In addition, because of his votes in the Court's abortion, DACA, and Trump document cases, he gave the illusion of a Court that will abide by the law regardless of politics. 

That illusion is dangerous. Professor Jonathan Adler argued in a New York Times op-ed that Roberts likes to move the law slowly and incrementally (with a few exceptions such as his shredding of the Voting Rights Act). But the reality is that in this term, like others before, Roberts usually moves slowly when liberals win but rather quickly when conservatives win. He is also a completely faithful servant of the GOP when it comes to all important election and voting rights cases.

The Supreme Court is now the Roberts Court all the way down. He is a big winner, at least for now, and so is the GOP, at least at the highest Court in the land, despite what you may have heard.

Reassessing America's Founders is Completely Patriotic

by Neil H. Buchanan

U.S. Senator Tammy Duckworth, an Illinois Democrat, has upset some people lately.  She was asked whether statues of George Washington, Thomas Jefferson, and so on should be brought down, and she replied that it was legitimate to have a "national dialogue" about that question.  She did not say that she agreed with those who would change the national deification of those (slave-owning) men, only that discussing it is legitimate.

Naturally, she was quickly excoriated by those on the right who are constantly looking for wedge issues, including (of course) Donald Trump.  Duckworth responded with a pointed and moving op-ed in The New York Times, in which she stated emphatically:

"I don’t want George Washington’s statue to be pulled down any more than I want the Purple Heart that he established to be ripped off my chest. I never said that I did.

"But while I would risk my own safety to protect a statue of his from harm, I’ll fight to my last breath to defend every American’s freedom to have his or her own opinion about Washington’s flawed history. What some on the other side don’t seem to understand is that we can honor our founders while acknowledging their serious faults, including the undeniable fact that many of them enslaved Black Americans."

Duckworth's military service resulted in her losing both legs on a battlefield in Iraq (hence the Purple Heart), and she acidly added this about Trump and his culture warriors:

"They should know, though, that attacks from self-serving, insecure men who can’t tell the difference between true patriotism and hateful nationalism will never diminish my love for this country — or my willingness to sacrifice for it so they don’t have to. These titanium legs don’t buckle."

Well played.  I happen to disagree with Duckworth on the merits of Washington and Jefferson, but as she points out, that is not the larger issue here.  She knows that such discussions are not only appropriate and natural but that they are nothing to be afraid of.  They are certainly patriotic.

The problem is that Republicans are not the only ones who get it wrong about this issue.  Some who claim to be centrists smugly assert that Duckworth is wrong both politically and morally.  What the heck are they talking about?

The Supreme Court ... yawn ... Rules on Presidential Tax Returns

by Neil H. Buchanan

Imagine that the Supreme Court had ruled today that Donald Trump must immediately provide all of his tax returns from the past x years to both the Manhattan District Attorney and to the House Ways and Means Committee.  That would have seemed like a big deal, much bigger than the Court's actual rulings (see below), but would it have mattered?

As I worked through the possible outcomes before today's decisions were released, I realized that these were the highest profile cases with the lowest immediate stakes that anyone could imagine.  The mismatch is striking.

We take for granted that the Court's decisions affect the parties in a material way and affect other parties substantially (and often immediately).  Same-sex marriage is declared a right protected by the Constitution, and thousands of people celebrate and head to the county courthouse.  The Court says that Trump's attempt to end the Deferred Action for Childhood Arrivals program was invalid, and hundreds of thousands of people who have only known America as home breathe a sigh of relief.  Louisiana's attempt to regulate abortion providers out of existence is deemed an undue burden, and women who choose to terminate their pregnancies in the Pelican State can do so.  If the Court had come out the other way in any of those cases, those people would have suffered the consequences.

But what, exactly, was at stake in today's paired cases regarding access to the president's tax returns?  There is plenty for ConLaw types to chew over, but what is the on-the-ground effect of one outcome as opposed to any of the alternatives in those two cases -- an effect that most Americans without legal training would think is important?

The Roberts Court: We are All Living Constitutionalists Now

By Eric Segall

"There are really only two ways to interpret the Constitution-either try to discern the best we can what the framers intended, or make it up."

Justice Clarence Thomas

During the 2016 Presidential election campaign, then-candidate Donald Trump repeatedly promised to only appoint originalist Justices like the late Antonin Scalia to the Supreme Court. His first nominee, then-Judge Neil Gorsuch, testified at his confirmation hearing that he "was happy to be called an originalist." Trump's second nominee, then-Judge Brett Kavanaugh, must have thought he was being clever by quoting Justice Elena Kagan who said at her confirmation hearing that "we are all originalists." Kavanaugh, however, conveniently left out the beginning of Kagan's quote which went as follows: "Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do. In that way, we are all originalists."

Kagan was suggesting that when the Framers used specific rules, judges should follow them, but when they laid down broad principles, judges would have to look elsewhere to flesh out how those principles applied to new conditions. In that (Balkinian) sense, we are all originalists, but it is unlikely that is what Gorsuch or Kavanaugh meant when they self-identified as originalists. In any event, Gorusch is not an originalist and neither are Kavanaugh or Justice Thomas despite all three self-identifying as originalists (neither Chief Justice Roberts nor Justice Altio make that claim).

Writing and Rewriting History, from Columbus to Jefferson and Beyond

by Neil H. Buchanan

Donald Trump has now decided that he will stand up for Confederate generals and symbols, accusing everyone else of being eager to erase history.  His cult has, of course, decided that any attempt to change the way history is presented -- actually, that any progressive change at all -- is a horrific act of leftist fascism.  This is all deranged, and it should continue to be treated with derision.

For the sane world, however, there are still a lot of interesting questions to confront, and we must at least try to begin to think through possible answers.  Last week, I joined the side of those who argue that nothing should be off the table, which means that the answer to Trump's slippery slope-style question -- If Robert E. Lee goes, will Washington and Jefferson be next? -- might be yes.  Might be, although the arguments can be complicated and nuanced (which are not, of course, words that described Trumpian thinking).

Here, I want to ask what it means to "erase history" and then to suggest that the cases in favor of continuing to honor some of the historical figures now under reconsideration are actually not all that strong.  In my column last week, I analogized Joe Biden's position -- essentially that Confederate generals are categorically different from the founders, because the former tried to destroy the nation that the latter built -- to the middle-ground solution in the same-sex marriage debate, that is, creating civil unions.  Neither of these centrist compromises is exactly satisfying, but they are still significant in that a hyper-cautious centrist like Biden now no longer feels it politically necessary to dance around the question of Confederate iconography.

The fundamental difference between the same-sex marriage debate and the current debate is that there is no direct analogy to marriage equality when it comes to honoring historical figures.  That is, even if one views Biden's approach as a halfway measure, the full measure is not to automatically drop the names of every historical figure and remove every statue.  Instead, this debate ends up being a classic facts-and-circumstances inquiry, the type of analysis that people with legal training both love and hate.

Law is all about finding baseline principles.  What do we do when there is no consensus baseline?  We argue, reconsider, and reach uneasy compromises.  Welcome to real life.

SCOTUS Abortion GVR's Suggest June Medical Narrowed The Right

by Michael C. Dorf

On Thursday, the Supreme Court granted certiorari, vacated the appeals court decisions, and remanded for reconsideration (GVR'd in SCOTUS lingo) in light of June Medical Services v. Russo in two Seventh Circuit cases. Prima facie, that's odd. In June Medical and both of the GVR'd cases, the plaintiffs challenging abortion regulations won. Ordinarily, the Court GVRs when the result of a new SCOTUS case is contrary to the result of the GVR'd case. To GVR is to say: "Hey, the result you reached looks inconsistent with the result we just reached in a similar case, but we don't want to reverse; maybe there's an important distinction; you figure it out in the first instance." So here the question arises: what is there about the new SCOTUS case that might be thought to narrow abortion rights?

As I wrote here a week ago, four justices in June Medical adhered to the view they had expressed for a majority (when Justice Kennedy was still on the Court) in Whole Woman's Health v. Hellerstedt: that the "undue burden" test of Planned Parenthood v. Casey requires a court to invalidate a law that burdens the abortion right, regardless of whether the burden crosses an absolute threshold of substantiality, if the law provides scant or no benefits sufficient to outweigh the burden; however, the fifth and decisive vote in June Medical came from Chief Justice Roberts, who rejected balancing as inconsistent with the Casey test and inherently subjective. And because the two Seventh Circuit cases--what I'll call the Ultrasound Case and the Parental Notification Case--relied at least in part on the balancing portion of Whole Woman's Health, the GVR can be understood as an instruction to reconsider the result under the Chief Justice's version of the undue burden test, in which the question is simply whether the law has the purpose or effect of imposing a substantial obstacle to the exercise of the abortion right, regardless of any benefits.

Describing the foregoing development with her customary and admirable concision, Amy Howe at SCOTUSblog wrote last week that "the decision to send the case[s] back for another look rather than simply deny review suggests that the Supreme Court wants the 7th Circuit to apply the more lenient test outlined in the concurring opinion filed by Chief Justice John Roberts in June Medical, which would not include a balancing of the benefits of the law against the burden it places on pregnant women." Let's explore the question whether the Chief's test is necessarily "more lenient" than the balancing test of Whole Woman's Health.

Happy (?) Independence Day

by Neil H. Buchanan

Today, Friday the 3rd of July, is designated "Independence Day observed" on my calendar.

We at Dorf on Law are hardly giddy optimists, but we do hope that next year's celebration of this country's declaration of independence will occur in a time with more reasons to feel confident about the future than we can see today.

In any event, we wish all of our readers health and happiness,

Biden's Statues and Names Compromise is 2020's Version of Civil Unions

by Neil H. Buchanan

I never thought that I would see NASCAR ban the Confederate flag from its events.  Ever.  I could not imagine Mississippi getting rid of the that flag's inclusion in its state flag.  Ever.  I never thought that entire high school sports teams would take a knee during the national anthem, or Mitt Romney would join a civil rights march against systemic racism, or any number of other politicians would embrace the phrase "Black Lives Matter."  Ever.  Ever.  Ever.

Even so, we often see things happen suddenly that had once seemed unthinkable.  I have noted at various times, for example, that the public's attitude about cigarette smoking once seemed implacable: Smoking was viewed as an individual's right, goddammit!  But in very short order, not only did smoking become "uncool" but New York City's smoking ban -- even in bars and restaurants -- was adopted in cities across the country and the world.  Paris without people smoking arrogantly (and now merely being arrogant)?  Quelle horreur!!

Drunk driving went from cool to unacceptable in a few short years in the mid-1980's.  Marijuana is now legal and widely accepted in many states, with nary a Jeff Sessions to turn it into a culture war battle.  Bill Cosby is a pariah.  Harvey Weinstein is serving a 23-year prison sentence.  There are, of course, different reasons for each of these changes, but they all once seemed unthinkable.  Some are small and some are large.

In addition to the current debate about statues/flags and names, same-sex marriage is the other huge issue about which, when public attitudes suddenly and radically changed for the better, advocates happily said things like: "I thought that, if this ever happened, it certainly would not be in my lifetime."

Here, I first want to discuss the current reconsideration of Confederate and other racist iconography, offering some examples that I think are especially telling.  But my larger point, telegraphed in the title of the column, is that I think the position that Joe Biden and others have taken -- yes to ending idolatry of traitors, no to similar treatment of slave-owners and others -- is the equivalent of the creation of so-called civil unions during the years prior to the acceptance of same-sex marriage.

Some Puzzles in Espinoza v. Montana Dept of Revenue

by Michael C. Dorf

The big news in yesterday's SCOTUS ruling in Espinoza v. Montana Dep't of Revenue is that there is very little remaining "play in the joints" between the First Amendment's Free Exercise and Establishment Clauses. That's a quote from the two most recent previous Chief Justices: Chief Justice Burger writing for the Court in Walz v. Tax Comm'r (1970) and Chief Justice Rehnquist writing for the Court Locke v. Davey. Play in the joints is a federalism-friendly idea. It allows that some states have some discretion in deciding how to treat religion and religious institutions. The Free Exercise Clause limits the ability of states to act on hostility towards religion, while the Establishment Clause limits their ability to favor religion, but there is a range of permissible policies in between. Thus, in Locke, the Court allowed the State of Washington to provide scholarships to postsecondary students so long as they did not use them to study "devotional theology." Although the federal Establishment Clause would allow the money to be spent that way (because the students rather than the state would choose the course of study under a generally neutral program), Washington was allowed to take a somewhat stricter view of church/state separation without being deemed to run afoul of the federal Free Exercise Clause.

The majority opinion of Chief Justice Roberts in Espinoza nominally leaves Locke undisturbed, distinguishing rather than overruling it on two grounds: (1) Montana's exclusion of religious institutions from its scholarship program is based on their religious status rather than the use to which the funds would be put, as in Locke; and (2) a “historic and substantial” tradition of not funding the clergy that does not extend to not funding education at religious schools. Whether these distinctions and thus the play-in-the-joints principle itself survive in the long run remains to be seen. Justice Breyer writes in dissent that the Court renders the play-in-the-joints principle "a shadow of its former self." And elsewhere in his majority opinion, CJ Roberts notes that Justices Thomas and Gorsuch have questioned the status/use distinction (as they do again in concurrences in Espinoza) and suggests that in a future case the Court could eliminate it. If so, that would mean that point (1) would no longer distinguish Locke. And even if the Court would adhere to point (2), that would restrict the play-in-the-joints idea to the very narrow category of state decisions not to fund the clergy themselves, as opposed to a wide range of other funding decisions.

Accordingly, it is fair to read Espinoza as very substantially undercutting the freedom of action of states with respect to religion. In that respect, it's 5-4 against "states' rights," with the conservatives against and the liberals for. But the substantive holding is not the only aspect of Espinoza that has peculiar implications.