“As the Court held in Employment Division v. Smith (1990), religious objectors must follow “neutral law[s] of general applicability.”
Ever since Justice Amy Coney Barrett joined the Court last fall, however, the Supreme Court has been rapidly dismantling Smith…the Court fired a bullet into Smith’s heart. It ruled that people of faith who want to gather in relatively large groups in someone’s home must be allowed to do so, despite the fact that California limits all in-home gatherings to just three households.
Although the Court’s new 5-4 decision in Tandon v. Newsom doesn’t explicitly overrule Smith, the decision makes it so easy for many religious objectors to refuse to comply with the law that Smith is basically a dead letter.
The Court’s new majority has accomplished what amounts to a revolution in its approach to religion and the law, entirely through cases brought by churches and other religious actors seeking exemptions from public health rules intended to slow the spread of Covid-19.
The Court is serious about giving religious conservatives broad immunity from the law — so serious, in fact, that it is literally willing to endanger people’s lives in order to achieve this goal.”
““California treats some comparable secular activities more favorably than at-home religious exercise,” the majority opinion in Tandon claims, “permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.
As Justice Kagan explains in her dissent, there are three very good reasons why a state might treat these secular activities differently than a gathering in people’s homes. First of all, “when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting,” and the people at social gatherings are “more likely to be involved in prolonged conversations.”
Additionally, “private houses are typically smaller and less ventilated than commercial establishments,” and “social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.”
But, ultimately, none of these distinctions mattered to the Court’s majority. The practical impact of Tandon is that, so long as many religious objectors can cite any secular activity that is treated differently than a religious activity — no matter how distinct those two activities may be — this Supreme Court is very likely to grant the objector an exemption.
Tandon is not an especially surprising decision — the Court reached a similar conclusion last November in Roman Catholic Diocese of Brooklyn v. Cuomo, a decision that I described at the time as a “revolutionary victory” for religious conservatives.”
“Imagine, for example, that a police officer randomly opens fire on two innocent bystanders, with no justification whatsoever for doing so. One of those bystanders is struck in the arm and successfully flees; the other is struck in the leg and thus is unable to escape the officer.
Under Roberts’s rule, both of these bystanders could bring a Fourth Amendment suit against the officer. But under Gorsuch’s rule, only the person struck in the leg could do so. Whatever the framers intended to accomplish when they drafted the Fourth Amendment, it’s hard to imagine that they wanted to write such an arbitrary distinction into the Constitution.”
“practical effect of Torres…means that officers who use excessive force can be subject to Fourth Amendment suits, even if the plaintiff in that suit successfully escaped the officer.”
“On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.
The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration’s most ambitious effort to fight climate change. Had the Clean Power Plan taken effect, the EPA predicted that by 2030 it would have reduced overall carbon dioxide emissions from utility power plants 32 percent from where they were in 2005.
But the Clean Power Plan never took effect. Though the Supreme Court’s order halting the plan was temporary, Donald Trump’s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn’t replaced this Obama-era policy with a significantly weaker rule, the appointment of Neil Gorsuch to fill Scalia’s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.
The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off. This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “deconstruction of the administrative state.””
“It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.
So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.
But the right’s approach to federal agencies shifted drastically during the Obama administration. With the GOP’s grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary’s power to strike down new rules pushed by federal agencies.”
“Congress is a slow-moving body, and federal laws are difficult to amend. If, in the 1970s, Congress had commanded power plants to use the best emissions reduction technology that existed at the time, it could have potentially locked these plants into using obsolete tech that is vastly inferior to the technology available now. At a minimum, Congress would have struggled to stay on top of new developments and to update this law as new methods of reducing emissions were invented.
For this reason, Congress may also regulate businesses in a second way. It can pass a law that lays out a broad federal policy but leave the details of how to implement that policy up to a federal agency. Often, such delegation means giving that agency a fair amount of authority to determine how businesses operate, so long as the agency uses this authority to advance the policy goal enacted by Congress.”
“Ideally, laws like the Clean Air Act make complex lawmaking possible without having to sacrifice democratic accountability. Regulation allows our laws to be both democratic and dynamic. Such laws are democratic because the goals of federal policy — goals such as ensuring that power plants use the best emission reduction technology available — are still set by the people’s elected representatives in Congress. But they are dynamic because it allows federal rules to be updated without requiring Congress to enact a new law every time a new innovation is developed.”
“the very idea that Congress should be free to delegate power in this way has many enemies within the conservative legal movement. In a 2016 opinion, for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies’ ability to regulate “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.””
“early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials.”
“As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?
The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.”
“If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration.”
“what the Court held in Uzuegbunam, which was decided in an 8-1 vote with only Chief Justice John Roberts in dissent, is that this case is not moot. Because Uzuegbunam sought “nominal damages” — a kind of automatic payment for a victorious plaintiff who isn’t entitled to any other relief, and that is often just a single dollar — Thomas’s majority opinion concludes that Uzuegbunam still has a live dispute with the college over whether he is entitled to that one dollar.”
“Despite the case’s provocative facts, Uzuegbunam has little to say about the First Amendment, or about broader cultural disputes about campus speech. The issue before the Court was limited to whether Uzuegbunam could continue to press his lawsuit even though he personally has very little to gain from it.
But the stakes in this case were quite significant, and they led to an unusual alliance among liberal and conservative groups that frequently butt heads in the Supreme Court. The case produced a raft of amicus briefs from conservative religious groups that urged the Court to rule in favor of Uzuegbunam, but left-leaning groups such as Public Citizen, the American Civil Liberties Union, and the American Humanist Association also filed briefs in support of Uzuegbunam.
The latter organization frequently files lawsuits seeking to vindicate the separation of church and state, and it feared that a ruling against Uzuegbunam could undermine those suits.
Public Citizen’s brief explains why left-leaning groups found common cause with the religious right in this case. First, they argue, allowing claims for nominal damages to move forward facilitates “the sound development of constitutional law in contexts in which traditional compensatory damages may not be appropriate.”
Imagine, for example, a slightly different version of the facts in Uzuegbunam. In this hypothetical, a civil rights organization believes that colleges throughout the country are systematically giving lower grades to Black students. So they identify a student hurt by this alleged discrimination, and file a lawsuit seeking to establish a legal precedent that will apply to all campuses across the country — or at least within a particular federal judicial circuit.
But just when they are about to win their case, the defendant college backs down, agrees to raise the plaintiff student’s grades, and seeks to dismiss the case as moot. Under Uzuegbunam, this lawsuit could still proceed so long as the plaintiff asked for nominal damages — and thus the civil rights organization would still be able to secure the binding precedent that it seeks.
Additionally, Public Citizen’s brief says, if a plaintiff can move forward with a claim for nominal damages, that plaintiff may be able to “obtain an award of attorney’s fees.” Federal law permits the “prevailing party” in many civil rights suits to receive “a reasonable attorney’s fee” from the defendant — basically, the defendant is ordered to pay for the victorious plaintiff’s lawyers.
The purpose of this law is to encourage lawyers to bring suits that vindicate individuals’ civil rights; attorneys would understandably be reluctant to do so if they weren’t sure if they’d be paid for their efforts. And such fees can provide the operating funds that allow nonprofit litigation shops to employ much of their staff.
So, while the plaintiff in Uzuegbunam is likely to earn considerable sympathy from conservatives, the stakes in this case went far beyond disputes over campus speech. Had Uzuegbunam lost this case in the Supreme Court, the biggest losers might have been civil rights attorneys arguing cases traditionally associated with the political left.”
“In the early ’90s, when conservative lawyers couldn’t even dream of prevailing in the kinds of lawsuits that get taken seriously by the current Supreme Court, conservative justices spent a lot of time swatting down cases brought by civil rights and environmental groups. So it was easy to see why a judge like Scalia might want to make it harder for plaintiffs with marginal claims to bring lawsuits. Today, however, strict limits on who can bring a federal lawsuit are at least as likely to hinder a pro-gun organization or a religious conservative as they are to halt a lawsuit brought by a left-leaning party or organization.
And so Roberts finds himself alone, with none of his fellow conservative justices (or, for that matter, the Court’s three liberals) embracing his narrow view of who is allowed to pursue a federal case.”
“By law, unions must represent every worker in a unionized shop, regardless of whether each individual worker joins the union. If a union contract provides that every worker gets a 5 percent raise, for example, that raise must go to everyone in the shop, including workers who choose not to join the union.
This arrangement creates a free-rider problem. If workers receive all the benefits negotiated by a union without having to pay to join the unions, then many workers will elect not to join the union. If too many workers make that decision, the union will be starved of the funds that it needs to operate and will collapse — and then no one will receive the benefits of unionization.
According to a 2021 paper by the Economic Policy Institute’s Larry Mishel, “the union wage premium — the percentage-higher wage earned by those covered by a collective bargaining contract — is 13.6 percent overall.” So workers typically are better off if they work in a unionized shop, even if they have to pay a small percentage of their wages as fees to the union.
Agency fees are a common solution to the free-rider problem. Often, when a union negotiates a contract with an employer, that contract will include a provision allowing the union to charge such fees to nonmembers, which reimburse the union for the cost of providing its services to those nonmembers.
Many states, however, have so-called “right-to-work” laws, which prohibit agency fees. In Janus I, the Supreme Court held that public sector unions are forbidden from charging such fees anywhere in the country. So public sector unions are now under a “right-to-work” regime even in states that reject such laws.”
“It appears likely, moreover, that the GOP-controlled judiciary will be a thorn in Biden’s side. Trump-appointed Justice Neil Gorsuch, for example, is already laying the groundwork to strip federal agencies of much of their power to regulate after Biden takes office, and Gorsuch almost certainly has the five votes he needs to make this happen.
The Republican Party dominates the federal judiciary in no small part due to six years of work by outgoing Senate Majority Leader Mitch McConnell. When Justice Antonin Scalia died nearly a year before President Barack Obama left office, McConnell announced almost immediately that Obama’s Supreme Court nominee would get the cold shoulder from a Republican Senate. When Justice Ruth Bader Ginsburg died shortly before the 2020 election, McConnell ensured that her conservative replacement, Amy Coney Barrett, would be confirmed just days before the nation voted to cast Trump out of office.
During the final two years of Obama’s presidency — the only two years of his presidency that Republicans controlled the Senate — McConnell imposed a near-total blockade on new appointments to the federal courts of appeals (often referred to as “circuit” judges). The result was that now-outgoing President Donald Trump got to fill nearly all of the judicial vacancies that came open during his presidency, plus nearly all of the appellate court seats Obama should have filled in his final two years.
Although Obama served for twice as long as Trump, there are currently 53 active circuit judges appointed by Trump and only 50 appointed by Obama. (Obama’s judicial confirmations also got off to a fairly slow start, though they picked up considerably once the Senate changed its rules in 2013 to make it easier to confirm judges.)”
“Until recently, the Supreme Court’s precedents drew a distinction between religious discrimination cases, where religious plaintiffs typically prevailed, and cases where religious people or institutions were treated the same as comparable secular institutions or individuals.
Under the Supreme Court’s decision in Employment Division v. Smith (1990), state laws may be enforced against people who object to those laws on religious grounds so long as the challenged policy is a “neutral law of general applicability.” Thus, so long as a state law does not single people of faith out for inferior treatment, such people of faith must comply with the law. (A federal statute applies a stricter rule to federal laws that burden religious exercise, so religious objectors are much more likely to prevail in suits against the federal government.)
If a state or local government discriminates against a particular religion or against religious institutions generally, however, such discrimination will typically be struck down. The seminal Supreme Court case involving religious discrimination is Church of the Lukumi Babalu Aye v. City of Hialeah (1993), which answered the question of how courts should approach laws that appear to be neutral on their face, but were enacted with a discriminatory purpose.”
“Lukumi established that, when a law that appears neutral on its face contains an array of exemptions, those exemptions can provide evidence that the real purpose of the law is to discriminate on the basis of faith. Several justices, however, believe that Lukumi does not go far enough. They’ve claimed that the presence of exemptions in an otherwise neutral law isn’t just evidence that the purpose of the law is religious discrimination, but that it is often definitive proof of discrimination.
Thus, for example, in his dissent from the Court’s decision not to hear Stormans v. Wiesman (2016), Justice Samuel Alito claimed that a Washington state regulation that requires pharmacies to “deliver lawfully prescribed drugs or devices to patients” was constitutionally suspect because it included a number of secular exemptions — the regulation permitted a pharmacy to refuse to fill a prescription if it did not accept the patient’s insurance, for example — but no exemption for religious pharmacy owners who object to dispensing birth control.
Alito, in other words, sought to blur the line between religious discrimination cases and cases involving a “neutral law of general applicability” by defining the concept of religious discrimination so broadly that an enormous swath of state laws become suspect.
The Court’s decision in Roman Catholic Diocese, the case involving New York’s restrictions on attendance at worship services, largely embraced Alito’s vision. Although these restrictions were quite severe, they are actually less harsh than the restrictions imposed on secular businesses that are similar in character to places of worship. As a lower court that upheld New York’s restrictions explained, “public gatherings with scheduled starting and ending times such as public lectures, concerts or theatrical performances” must “remain closed entirely” in the parts of New York where strict limits on houses of worship were in place.
But Roman Catholic Diocese held that it does not matter whether businesses that are similar in character to houses of worship are subject to less restrictive rules. What matters is whether any secular business is subject to lighter restrictions. If the state only permits churches to admit 25 people, but it permits grocery stores to admit many more people, then the state’s actions are potentially suspect.
Roman Catholic Diocese, in other words, is a tremendous expansion of the Court’s holding in Lukumi. Lukumi called for a fact-specific inquiry into the real reason why a state or local government enacted a policy that burdens people of faith, and the purpose of that inquiry was to sniff out laws that “stem from animosity to religion or distrust of its practices.” Roman Catholic Diocese, by contrast, presumes that the state engaged in unconstitutional discrimination if a religious institution is treated differently from secular ones — regardless of why the institutions are treated differently.”
“Before Roman Catholic Diocese, it was clear that the Danville Christian plaintiffs should have lost their case. Gov. Beshear’s order closes all primary and secondary schools, regardless of whether those schools are religious or secular. Whatever the wisdom of that policy, it’s a neutral law of general applicability. It does not treat religious schools any differently than similar secular schools.
After Roman Catholic Diocese, however, it’s far from clear that the Danville Christian plaintiffs should lose. As Justice Neil Gorsuch points out in a dissenting opinion, Kentucky allows a wide array of secular institutions to remain open, including preschools, universities, movie theatres, and bowling allies.”
“In any event, because the Court’s decision in Danville Christian places such heavy emphasis on the fact that Beshear’s order is about to expire, that decision is unlikely to have very many doctrinal implications. Once the pandemic is over, the doctrinal shifts laid out in Roman Catholic Diocese will remain, while Danville Christian is unlikely to be cited very often by future courts.
But Danville Christian is a strange decision. And it suggests that, at least while Covid-19 is still raging, some key members of the Supreme Court may be uncomfortable with the full public health implications of their decision in Roman Catholic Diocese.”
“Roberts does have an underlying judicial philosophy that motivates him in many of these big cases; it just happens that this philosophy has rapidly fallen out of favor among many of his fellow conservatives.
I am referring to the philosophy of judicial deference or restraint, which, in a nutshell, is the idea that people should take their complaints to the ballot box, not to the courthouse.”
“That deferential view is not as popular among conservatives today as it once was. But Roberts can still be seen carrying the Holmes/Bork torch.
During his 2005 Senate confirmation hearings, for instance, Roberts tried to put a positive spin on Kelo v. City of New London, a recently decided case that left many conservatives fuming, angry that the Court had shortchanged property rights in favor of a controversial eminent domain scheme. Roberts offered a different view. The Court’s ruling “leaves the ball in the court of the legislature,” he said, “and I think it’s reflective of what is often the case and people sometimes lose sight of, that this body [Congress] and legislative bodies in the States are protectors of people’s rights as well.””
“the survival of the Patient Protection and Affordable Care Act, also known as Obamacare.
Roberts saved the law from destruction. Why did he do it? In their piece for The Washington Post, Vermeule and Mehta cite the Obamacare case as “an early, important example” of Roberts’ “dismaying trend of tactical decisions.” He upheld President Barack Obama’s signature law, in their view, in order to save the Court from scorching liberal criticism.
But Vermeule and Mehta’s take misses what actually happened in Roberts’ Obamacare ruling. Not only did Roberts’ borrow a page from the Holmes/Bork playbook, but he specifically invoked one of Holmes’ most notable statements about the proper role of the courts. “If my fellow citizens want to go to Hell I will help them,” Holmes wrote in 1920. “It’s my job.” Here is how Roberts put it in 2012: “It is not our job to protect the people from the consequences of their political choices.”
Whether or not you agree with the chief justice’s embrace of judicial deference, it would be a mistake to downplay this important facet of his thinking.”