Wednesday, July 08, 2020

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).

The two newest Justices who claim that judges shouldn't overturn laws unless they violate the Constitution's original meaning have spent the last few terms striking down laws with little or no originalist basis, just as Thomas has done for over a quarter of a century (and Justice Antonin Scalia did while he was alive) despite their protestations to the contrary.

I have documented Thomas' (and Scalia's) living constitutionalism before. Their votes on affirmative action, free speech, takings, standing,  sovereign immunity, and anti-commandeering, among other hugely important areas of constitutional law, cannot be persuasively justified on an originalist basis.

Since Justice Gorsuch was promoted to his current position, he, Thomas, and Kavanaugh have teamed up on numerous important occasions to strike down laws in what can only be fairly described as living constitutionalist decisions. They voted to overturn state laws requiring public-sector union employees to pay partial union dues; a state law requiring certain abortion information to be posted at so-called pregnancy crisis centers; a state law prohibiting wearing political apparel at voting places; and a Colorado anti-discrimination law as applied to a baker who refused to make a cake for a same-sex wedding. As I've argued before, none of these cases can be justified by reference to originalist materials. They are all based on the Justices' personal values and politics. The decisions in these cases might be right or wrong, good or bad, but they are not originalist.

Last week the three were at it again in what is one of the most important cases this term. In Espinoza v. Montana  Department of Revenue, the five conservatives (over the dissent of the four liberals) reversed a Montana Supreme Court decision that held it would violate the state constitution for taxpayer dollars generated by a tax credit to be given to religious schools. Montana's state constitutional "no-aid" provision is similar to limitations in roughly 2/3 of the states. Some of these provisions were passed with anti-Catholic bigotry in mind during the 19th century but many came much later. Montana's no-aid provision was renewed in 1972, and despite Justice Alito's misleading concurring opinion, there is no persuasive evidence that anti-Catholic bigotry was at play when Montana re-enacted the provision.

Montana's decision to not give public funds to religious organizations furthers important Establishment Clause values by trying to keep separate church and state. In fact, for many years, the Supreme Court interpreted the Clause to actually prohibit government aid of any kind going to religious schools except for secular textbooks and a few other minor exceptions. Case after case tried to flesh out what aid could be given and what aid violated the Establishment Clause. But if the Free Exercise Clause required the aid whenever similar assistance was provided by the government to non-religious schools (virtually all the cases), those Establishment Clause opinions would have been unnecessary. As I recently wrote on this blog:
From 1988-1991, while at the Department of Justice, I litigated on behalf of the United States Department of Education a church/state case in San Francisco in which a public interest group challenged federal aid to private religious schools. I worked closely with experienced lawyers representing the United States Catholic Conference and the Archdiocese of  San Francisco. Their position, and ours, was that the federal program was constitutional under relevant Court cases involving what the government could and could not provide to parochial schools. No one, and I mean no one, thought for one second that, by giving aid to not-for-profit private secular schools, the federal government would be constitutionally obligated under the free exercise clause to provide the same aid to religious schools. Quite simply, no one thought that.
The Court eventually reversed those Establishment Clause aid cases after Justice Thomas replaced Justice Thurgood Marshall in 1991, and held that the government may constitutionally give religious schools assistance that is generally available to secular schools. But at no time during the six decades the Court struggled with what aid could be given to religious schools did it ever suggest that aid given to secular schools had to be given to religious schools under some form of non-discrimination principle. When the Court eventually faced that issue in Locke v. Davey, which upheld Washington's decision to disqualify from a general scholarship program those students studying to become clergy, that famous bleeding-heart liberal Chief Justice Rehnquist held that the aid did not have to be provided to the student because there was a space where aid that could be given under the Establishment Clause did not have to be given under the Free Exercise Clause. The only two dissenters were Scalia and Thomas and neither cited originalist sources to justify requiring Washington to fund students studying for the clergy just because it funded the studies of students working on other subjects.

Chief Justice Roberts' majority opinion in Espinoza barely mentions originalist sources. Most of the legalisms in the opinion were supported by citations to Trinity Lutheran v. Comer, a 2017 decision in which the Court held that Missouri could not bar religious schools from participating in a program that reimbursed schools for repaving playgrounds with recycled tires. Chief Justice Roberts wrote the main opinion in that case, which also failed to to cite originalist materials, so Espinoza's piggy-backing on Trinity Lutheran cannot provide the missing originalist link.

The lack of an originalist basis for the Court's ruling that states cannot disqualify religious schools from general aid programs can be seen in Roberts' lengthy attempt to distinguish Locke on the basis that there had been a “historic and substantial state interest in not funding the training of clergy." Roberts said there was no similar tradition when it came to the funding of religious schools because, and this is the only originalism in the case, in "the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones." But the issue in Espinoza was not whether Montana could support religious schools but whether it had a constitutional obligation to give religious schools the same aid it gives non-religious schools. For the proposition that Montana had no choice in the matter, Roberts did not cite any originalist sources.

Roberts tried to buttress the majority's ruling that religious schools cannot be legally excluded from school aid programs by quoting (really misquoting) the following passage from Everson v. Board of Education (a 1946 case concerning the validity of a local government paying for bus transportation to children in religious schools): "a State cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." But Roberts left out the next line of the opinion which said that, "we do not mean to intimate that a state could not provide transportation only to children attending public schools...." In other words, of course, the government did not have to pay for religious school children to get to school just because it provided buses free of charge to public school children. The issue simply was whether the state could constitutionally pay for the transportation.

Justice Thomas wrote a concurring opinion in Espinoza devoted mostly to his wild and crazy idea that the Establishment Clause does not apply to the states, and Gorsuch wrote a concurring opinion on a tangential point, but neither offered up an originalist basis for a firm rule requiring state governments to give taxpayer money to religious schools whenever it spends money on non-religious private schools. The reason is obvious: requiring states to use taxpayer money to support religious institutions is just not a legal rule that can be supported  by the Constitution's original meaning. It might be a good rule or a desirable rule, but it is not an originalist rule. It is a rule the conservatives just "made up" because they liked it. 

No doubt President Trump will soon announce again that he only wants to appoint originalists to the Court (not that he has any idea what that means). If he succeeds in that endeavor, however, we will have our first originalist Justice.

4 comments:

Joe said...

The tone is more "make shit up" but the expletive is implied.

Judging is creative. Ha ha.

Greg said...

I'm not sure Roberts' quote from Everson is actually a misquote if you view his opinion as completely invalidating no-aid provisions. Viewed that way, he views the ruling in Everson as saying that the government has no authority to explicitly exclude religion under any circumstances. Government only has the option of passing laws that happen to not include any religious actors.

So, for instance, the government can pass a law funding cosmetology training. This doesn't create an obligation for the government to fund religious schools teaching other subjects. Under Roberts' rule, this would only create an obligation for the government to fund religious cosmetology training, if there happen to be any religious cosmetology training programs.

I still believe the Montana constitution's no aid provision should legitimately be determined as the people of Montana, as a matter of state law, removing the authority of current and future legislatures to pass any law that has the effect of funding religious programs. Thus, the legislature had no authority to enact the scholarship program in the first place. In effect, the Montana constitutional provision would be expressing a preference for "leveling down" in every case where free exercise would cause money to flow to religious actors.

Frank Willa said...

Of course the 'Originalist' is a cover story, for as you put it,'the three were at it again', in Espinoza, in the 'reasoning' they rely on. Ideologues will use, as I think it was Professor Buchanan (or Dorf)put it, (herein or at Verdict), the 'sophistry' they learned in law school.
I want to look at this in less sophisticated way. Not just the 'say Originalist, or Textualist' and then make up the rule to fit the result you want analysis. But to look at what seems to me to be another 'internal contradiction'- a basic outlook, or personal framework. This in my view can be seen by looking to the Janus case and one part of what I think are its flawed reasonings stated by Alito.
I get that Espinoza is Establishment and Free Exercise, but where is the concept that drove the Janus case and the Alito discomfort with the violation of compelling someone to pay for something they not only did not support but violated their most basic beliefs. I cite two passages here.

'As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.”...
Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.'

I would have liked to have seen that Alito was as concerned in Espinoza with the use of money by non-religious taxpayers as he was with a non-union 'fair share' being forced to contribute to supporting ideas that were contrary to his fundamental beliefs. Perhaps, what I am looking for are what Justice Kagan referred to as 'Sometimes they laid down broad principles.'- they do not seem to have 'broad principles'.
That is that these ideologues seem to me not to have a consistent underlying concept of what the Constitution is about. Or, as you say in a more clear way, they are not really 'Originalists', just in my view "Opportunists' for a political agenda.

Frank Willa said...

a short correction to the first sentence in my last paragraph:


'I would have liked to have seen that Alito was as concerned in Espinoza with the use of money "of" non-religious taxpayers as he was with a non-union 'fair share' being forced to contribute to supporting ideas that were contrary to his fundamental beliefs.'