Religious Institutions Must Pay Abortion Coverage in NY (Part 1)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

Last week, in Roman Catholic Diocese of Albany v. Vullo, a New York appellate court rejected religious objections to paying for abortion coverage.

The state's Appellate Division, Third Department, voted unanimously to deny the Albany Catholic Diocese, as well as other religious groups, an exemption from New York's administrative regulation that mandates abortion coverage in employer provided health insurance.

Despite the objectors' religious belief that abortion is--or is akin to--the killing of a human being, the appeals court held that an earlier decision of the state's highest court, the Court of Appeals, was controlling authority to deny a exemption. In that 2006 ruling, Catholic Charities v. Serio, the state's contraceptive mandate was at issue. Although the Court of Appeals acknowledged the sincerity of the religious objections, it nevertheless concluded that the burden on free exercise of religion was permissible.

In last week's case, the Appellate Division, the state's intermediate court, applied the Catholic Charities precedent to hold that the state was not required to grant any exemption to the religious objectors. The constitutional guarantee of religious liberty, that court held, provides no protection for the religious objectors. They are entitled to no exemption. They must violate their religion and pay for what they sincerely believe is--or is akin to--murder.

But wait, you might say. Wasn't there a Supreme Court decision not too long ago that said that the government could not force religious objectors to pay for contraceptive coverage? Wouldn't that decision apply to abortion coverage as well? And New York can't violate a Supreme Court decision, right?

Well, yes (Hobby Lobby v. Burwell, 2014), yes, and yes. BUT...

The Supreme Court's protection of religious freedom in that case simply does not apply to New York or to any other state. What, you ask, can that really be? Doesn't the Constitution's 1st Amendment rights apply to New York and other states? Aren't New York and other states required to obey Supreme Court decisions about the Constitution?

Again, yes, yes, and yes. BUT...

That's where Antonin Scalia's dreadful--yes, and disgraceful and dishonest--opinion in the 1990 decision in Oregon v. Smith comes in. [The full formal name of the case is actually Employment Division, Department of Human Resources of Oregon v. Smith. I'll stick with Oregon v. Smith.]

The late Justice, in his opinion for the Court, insisted that the 1st Amendment did not protect religious liberty from laws that were "otherwise valid." So as long as a law does not violate some other constitutional right, it's permissible for that law to interfere with freedom of religion. As Scalia further explained, as long as a law is "generally applicable"--i.e., it does not deliberately target or discriminate against a religion--it makes no difference if the law abridges religious liberty. And no, according to Scalia's opinion, the law doesn't even have to be a particularly important one. And no, it doesn't even matter if the government can do what it wants to do in some other way that doesn't interfere with freedom of religion.

Just in case there are doubts that Scalia, who apparently was a devout Roman Catholic, could actually dilute freedom of religion so drastically, here are his own words:

[I]f prohibiting the exercise of religion . . . is not the object of the [law], but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. [My emphasis]

Not surprisingly, the Court in Smith was deeply divided.

Four of the Justices disagreed vehemently with Scalia. Justice Sandra Day O'Connor agreed with the ultimate result reached by the majority, but she condemned Scalia's evisceration of constitutional religious freedom, as well as his dishonesty about the Court's prior decisions. She catalogued a long line of decisions that had protected the 1st Amendment right

by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest...The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order. [My emphasis]

Justice O'Connor was justly upset with Scalia's dishonest devaluation of religious liberty. In fact, as she spelled out in her separate concurring opinion, the Supreme Court had repeatedly scrutinized interference with religious liberty very strictly. The Court had repeatedly required government to show that an interference with religious liberty was necessary for a compelling purpose. And the Court had repeatedly exempted sincere religious objectors from "generally applicable" and "otherwise valid" laws. The Jehovah's Witnesses' objection to pledging allegiance to the flag, the Seventh Day Adventists' objection to working on their Saturday Sabbath, the Amish objection to their children completing high school--all of these and other religious objections were held to be entitled to exemptions from generally applicable, otherwise valid laws in landmark Supreme Court decisions. (See respectively, West Virginia v. Barnette, 1943; Sherbert v. Verner, 1963; Wisconsin v. Yoder, 1972.)

At issue in Oregon v. Smith was a Native American religious ritual that included smoking peyote, which was illegal under the state's anti-drug law. Justice O'Connor concluded that the government's prohibition of the religious ritual was justified, but only because prohibiting the use of hallucinogens was a compelling interest. Scalia, on the other hand, denied that religious liberty was even entitled to the compelling interest/strict scrutiny test. He did so despite the well-established Supreme Court landmarks affirming that test, and despite that test's unquestioned application to every other right in the 1st Amendment. (The 3 dissenting liberal Justices agreed entirely with Justice O'Connor's recitation of the constitutional law of religious liberty, but not that prohibiting the religious use of peyote was justified under the compelling interest/strict scrutiny test.)

[I've written and spoken at length about the Smith decision and it's impact on religious liberty. See e.g., Justice Scalia's Record (Part 1), 2/18/16; Religious Liberty--commentary, interview, video, presentation [updated 5/15/13]; Religious Liberty: Fundamental Right or Nuisance, 14 U. St. Thomas L.J. 650 (2018); The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007). Ironically, but not surprisingly, conservatives today are much more supportive of free exercise of religion than previously, and liberals much less so, because recent cases have involved majority and fundamental religions objecting to abortion rights, LGBTQ rights, and other rights favored by political liberals.]

OK then, but what about that 2014 Hobby Lobby case mentioned earlier? Didn't the Supreme Court hold that Obamacare violated the rights of religious objectors and, therefore, that those objectors did not have to pay for contraceptive coverage? Didn't the Court rule that the religious objectors were entitled to an exemption from the law? And yet, isn't the Obamacare contraceptive mandate--in words that Scalia used in Smith--a generally applicable and otherwise valid law which, according to Scalia's majority opinion in Smith, defeats 1st Amendment religious liberty?

Yes, absolutely right. BUT...

Congress--both Democrats and Republicans, liberals and conservatives; as well as the overwhelming majority of constitutional scholars--was appalled by Scalia's opinion. So Congress passed a law, with almost unanimous support, to overrule Smith and to reimpose the "compelling interest/strict scrutiny" test. That legislation, the Religious Freedom Restoration Act (RFRA), however, applies only to federal laws. Not to state laws. Why? Well, without getting into the weeds here, the Supreme Court ruled shortly thereafter that the statutory protection of RFRA cannot overrule the constitutional decision in Smith. Consequently, the 1st Amendment's protection of free exercise of religion is still what it was defined to be in Scalia's Smith opinion, and that--not RFRA--is the federal protection for religious freedom against state laws. (See Boerne v. Flores, 1997.)

So let's be clear. The Supreme Court's decision in Hobby Lobby, protecting religious objectors from the contraceptive mandate of Obamacare, was an application of the statutory "compelling interest/strict scrutiny" protection of RFRA against a federal law. It was not about 1st Amendment constitutional protection, and it was not about a state law. In fact, if the case were about constitutional protection, or if it was about a state law, the religious objectors would have lost! That's because Scalia's "generally applicable" and "otherwise valid" standard would have applied, and the contraceptive mandate would have defeated any religious liberty objections.

Now, with that as background--the minimalist 1st Amendment constitutional protection (i.e., Scalia's opinion in Smith) and the rigorous federal statutory protection (RFRA, which does not apply to state laws)--we can better understand New York's religious liberty decisions. The only 1st Amendment constitutional protection against New York laws is Scalia's opinion in Smith. And the statutory RFRA protection--i.e., the Hobby Lobby decision--does not apply.

We'll look at those New York decisions--the Court of Appeals in Catholic Charities (2006) and the Appellate Division in last week's Roman Catholic Diocese--in the next post.

[Disclosure: Readers may be curious and deserve to know that I strongly believe in a woman's right to choose; I do not share the religious belief that human person-hood begins at conception and therefore that abortion is always wrong; but I do believe that freedom of religion and conscience are extremely vital to a free society (although I am not much of a religious believer myself) and I think that Scalia's opinion in Smith was dishonest and disgraceful and has dreadful consequences for 1st Amendment free exercise of religion.]

It's Roberts' (somewhat less right-wing) Court (Part 3)

As this is being prepared, the 5-4 Court--Roberts voting with the liberals--invalidated the Louisiana abortion restrictions. More on that and on that continuing pattern below.

Source:Reuters/Leah Mills

We've previously looked at Chief Justice Roberts' breaking with his conservative colleagues and aligning with the Court's liberals to help form majorities in politically charged cases dealing with Obamacare and immigrantion (see Part 1), and LGBTQ rights and the death penalty (see Part 2). The point is not that I applaud his doing so (although I do, and wish he did so more regularly). The point is that he has been doing so and, whatever else political liberals may think of him, it simply cannot be denied that on some major issues he has prevented the Court from veering off too far to the right.

Let's finish this series by recalling a few other decisions reflecting the same pattern. Perhaps these cases, like those we've previously discussed, evince a Chief Justice concerned primarily about the legitimacy of his Court, i.e., rebuffing criticisms that it is just another institution polarized along partisan lines. Perhaps it's Roberts holding his Court together by giving the benefit of the doubt to the Court's liberals--at least every once in a while in close cases where he could honestly support either side. Perhaps it's the Chief Justice upholding the integrity of the Court's authority by supporting precedents against which he had originally dissented (as he just now did again in the Louisiana abortion case). Or perhaps it's actually the Chief Justice changing his mind after some time for reconsideration.

Again, whatever the reason--and likely there are different reasons in different cases--the emerging pattern is clear. Roberts has given political liberals, both on and off the Court, some significant victories

(Of course this has not escaped the President's notice--and ire.)


Okay, enough with preliminaries. Let's get to the last few cases we'll look at in this series that illustrate the pattern that may well be the most salient characteristic of this otherwise quite politically conservative Court.

Church and State. Late last month, the Chief Justice joined his liberal colleagues in refusing to lift the COVID-crisis restrictions on church attendance that had been imposed by California's governor. Roberts' 4 conservative colleagues all dissented. Justice Kavanaugh, in an opinion joined by Justices Thomas and Gorsuch, argued that the numerical limitations on gatherings and the requirement for social distancing unconstitutionally discriminated against religious exercise. This was so, according to Kavanaugh, because other similarly situated  activities did not face such restrictions. [Alito's dissenting vote was simply noted.]

Although the Court's decision was merely an order, Roberts' authored an opinion explaining why the majority got it right. The standard for granting emergency relief is that the constitutional merits are already "indisputably clear." Roberts deemed it "quite improbable" that the religious objectors could show that. Two basic reasons. First, despite the dissenters' claim, "only dissimilar activities...in which people neither congregate in large groups nor remain in close proximity for extended periods" are treated more leniently than churches. Second, the need for restrictions "during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement," which the Constitution "principally entrusts" to the "especially broad" latitude of the states' political officials. And such matters of public health and safety should usually "not be subject to second-guessing" by the federal judiciary.

In short, the Chief Justice disagreed with his conservative colleagues that the religious objectors had demonstrated that they were being treated disparately or too harshly. South Bay United Pentecostal Church v. Newsom, 2020.

Three years earlier, in another church-state case, Roberts held the middle ground to which some of his conservative colleagues and some of his liberal colleagues objected--naturally for different reasons. Writing the opinion for the Court, the Chief Justice explained that the ineligibility of religious organizations from a state program that subsidized the safety improvement of school playgrounds violated free exercise--i.e., the disqualification discriminated on the basis of religion, despite the purely secular purpose of the program's assistance.

Although Justices Kennedy and Alito joined Roberts' opinion in full, Thomas and Gorsuch objected that the ruling was too limited--i.e., it should not have been limited to playground safety, nor to secular versus religious uses.

While Justice Kagan fully joined Roberts' opinion, Breyer wrote a separate concurence to emphasize that the program in question, as well as the Court's ruling, was limited to a public service--here "the health and safety of children." The remaining liberals, Justice Sotomayor joined by Ginsburg, dissented on the ground that directly funding a religious organization violated the constitution's non-establishment mandate.

Here, as we have seen elsewhere, the Chief Justice struck a balance. He crafted a ruling that was narrow enough to secure a majority, despite differences or even dissents from some of his more ideologically-driven colleagues--conservative or liberal. Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017).

Right to Choose/Abortion Rights. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Court ruled that a Texas law, that limited which physicians and facilities could provide abortion servoces, imposed an unconstitutional "undue burden" on a woman's right to choose. Chief Justice Roberts dissented, along with his conservative colleagues, Justices Thomas and Alito. [Justice Scalia had recently passed away and his vacancy had not yet been filled.]

Since that decision, Justice Gorsuch was appointed to fill Scalia's seat, and Justice Kavanaugh was appointed to replace Justice Kennedy who had retired in the interim. With Kennedy now missing from the 5 Justices who comprised the majority in Whole Woman’s Health, the Court was confronted this term with another case term involving similar abortion retrictions. This time the state was Louisiana, but the restrictions, the prospective consequences, and the outcome were similar. Only physicians with privileges at a nearby hospital could perform abortions. The restrictions would drastically reduce the availability of abortion services. The restrictions were ostensibly to protect the health of women. The restrictions, according to expert analysis, actually had minimal health-related benefits. And the Court again found such restrictions to be an unconstitutional burden on a women's right to choose.

The big difference? This time the Chief Justice sided with the liberals to give them the bare 5-4 majority. In a separate concurrence, Roberts insisted that he still believed that Whole Woman’s Health was wrongly decided. But, in a 16 page opinion in which he reviewed the reasons for stare decisis and the Court's abortion rights precedents to date, the Chief Justice set forth a jurisprudence that has become a distinctive part of his opinion and voting patterns: "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike." [My emphasis.] Then, he concluded by applying that formula to his vote in this case: "The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law"--despite his disagreement then. June Medical Services L. L. C. v. Russo, 2020.
[Notably, Roberts signaled his thinking about this case when, in February 2019, he joined the liberals to form the same 5-4 majority to grant an order stopping the Louisiana law from taking effect while litigation was pending.]

One last one. This is one of my very favorites. I've written about it previously on New York Court Watcher.

Technological Searches. In the last few decades, the Court has seriously diluted constitutional search and seizure protections. It has done so, for example,

• by adding exceptions to the warrant requirement (e.g., warrantless searches and seizures incident to minor traffic infractions);
• by adding exceptions to the rule excluding unconstitutionally obtained evidence (e.g., the "good faith" exception);
• by diluting what is required for probable cause (i.e., the "totality of the circumstances" test);
• by diluting the 1967 landmark Katz decision which protected legitimate expectations of privacy (e.g., denying legitimacy to a host of privacy expectations);
• by (mis)using that landmark's formula in order to rule that searches are not "searches" for constitutional purposes (e.g., police searches from a hovering helicopter);
• by employing doctrines such as "third party" (i.e., if anyone else has access to information about you, then government needs no warrant or probable cause to access it);
• and "public access" (i.e., if members of the public can see you in a public place, then government can surveil you without a warrant or probable cause);
• and "tresspass" (i.e., equating search and seizure rights to property rights whereby a physical tresspass is necessary to constitute a violation);
• by limiting search and seizure protections to those specific items enumerated in the 4th Amendment.

Well, two years ago, Chief Justice Roberts joined the liberals and, in the 5-4 majority opinion he assigned to himself, he avoided or simply dispensed with some of those foregoing dilutions--to the considerable consternation of his more law and order minded colleagues. Roberts wrote that a warrant supported by probable cause is required for law enforcement to access cellphone location data about a suspect from a cellphone company. No, the fact that some entity, the company itself, already had access to the information (i.e., the third party doctrine) didn't allow the government to have warrantless access. No, the fact that the data did not belong to the individual, but to the company (i.e., the property rights/tresspass doctrine), didn't mean that the individual was without some entitlement to privacy from the government. No, the fact that the individual's movements and location in public might be observed by members of the public (i.e., public access doctrine), didn't mean that he had no legitimate expectation of privacy from government surveilance. Etc.

Yes, acknowledged Roberts, the Court's opinion six years earlier in U.S. v. Jones, authored by Justice Scalia, did assert that the warrantless monitoring of a suspect's movements and location was unconstitutional because the police had "tresspassed" on his property--i.e., by attaching a GPS device to his vehicle without his consent. But, the Chief Justice pointed out that a majority of the Justices in Jones had actually reaffairmed the Katz "legitimate expectation of privacy" doctrine. There was Justice Alito and the 3 liberals who joined his concurring opinion, stridently rejecting Scalia's tresspass analysis in favor of Katz; and Justice Sotomayor who authored a separate concurrence, joining Scalia but also reaffirming Katz.

As Roberts explained in declining to apply some of the previously adopted doctrines, "few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements." He went further: "Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily 'assume[] the risk' of turning over a comprehensive dossier of his physical movements."

The concerns expressed by the Chief Justice in his majority opinion sounded much more like those of the liberal Justices who had previously dissented while the Court was diluting search and seizure protections. And Roberts' conservative collegues in this case understood that and objected to his aligning with the liberals in refusing to apply those law and order doctrines. Carpenter v. U.S., 2018.
[For more on the Carpenter decision, see The Supreme's Cell Location Data Decision: Right, Revealing, and a Real Milestone, June 26, 2018.]

There are other cases--an increasing number of them at that--where Chief Justice Roberts has indeed established a distinct pattern of parting with his usual ideological allies on the Court and siding with the liberals to form a majority on some major, highly-charged issues. That point, I believe, has been well made, and continuing further is not only uneccessary but perhaps fatiguing. So we shall end here.

Of course, decisions handed down by the Court in the next few days, as the current term comes to a close, may well make all of the foregoing seem like wishful thinking based on a a few isolated exceptions. But the pattern is there, it is clear, and there no particular reason to think that it won't continue.

It's Roberts' (somewhat less right-wing) Court (Part 2)

Source: AP/Dave Tulis/Larry Downing

In Part 1, we saw how Chief Justice Roberts joined decisions that saved so-called Obamacare and that protected immigrants. In those cases, he often authored the majority opinion himself, allying himself with his liberal colleagues to render decisions that triggered unconcealed outrage on the part of all or most of his conservative colleagues in dissent.

We witnessed exactly that last week in the DACA case (Department of Homeland Security v. Regents of the University of California, 2020) which was discussed in the previous post. Let's now turn to last week's other momentous decision, as well as an earlier related one that is, perhaps, even more revealing about the role and direction of Roberts as the primus inter pares.

LGBTQ Rights.  In a long-awaited decision--it took over 8 months from oral arguments on October 8, 2019--the Court ruled last week that the prohibition against "sex" discrimination in the Civil Rights Act of 1964 protects gay and transgender employees. The Chief Justice joined his 4 liberal colleagues, as well as one of the Trump-appointed conservative Justices, Neil Gorsuch, to whom he assigned the writing of the majority opinion.
Over the dissents of the 3 remaining Republican appointees [Thomas, Alito, and Kavanaugh], the Roberts-assigned/Gorsuch-penned majority opinion agreed with the fired employees that discrimination on the basis of "sex" necessarily covered discrimination against gays and transgenders. The crux of the argument [distilled from what I found to be a mostly insufferable 33 pages] was that the term "sex," as a matter of sheer linguistics and logic, does apply to gays and transgenders, even if that application was not within the underlying legislative intent of the law.
The 3 remaining conservatives wrote 134 combined pages of dissent. Justice Samuel Alito's seething 107-page opinion, joined by Justice Clarence Thomas, as well as the separate dissent of Justice Brett Kavanaugh, evinced frustration triggered not only by the Court's decision, but no doubt also by the loss of another Roberts vote to the liberals--this time, together with Gorsuch's vote as well. Bostock v. Clayton County, 2020.

[I feel compelled to add that, regardless of my unqualified agreement with the Court's result, I find much of the majority opinion unnecessary, unpersuasive, and perilous. The same decision could have been reached by simply sticking to the inexorable logic of what sex discrimination necessarily includes. (E.g., if a woman prefers men, that's ok. But if a man does, that's not? The only difference is the different sex of the person who prefers men.)
Beyond that, a far better majority opinion, in my view, would have embraced the overarching principle in prohibiting sex discrimination. Sex and sex-related characteristics are utterly irrelevant for most purposes. For like reason, most disparate treatment on those bases is born of bigotry or some other form of ignorance, rather than some justified reason--which is precisely what discrimination means.
On the other hand, Gorsuch’s "it’s clear from the original understanding of the plain terms of the statute" argument (I’m paraphrasing) can be expected to be used in the future to support reactionary results. The 6 votes his opinion received will surely be used as a strong endorsement of his insistent originalism—i.e., the “ordinary public meaning” of the terms of the law “at the time of the enactment" (his language)—about which he waxed and waned ad nauseam. This will be thrown back at the liberals--all of whom joined his opinion without a whisper of discomfort--when he and the other conservatives (including those in dissent in this case) use it in future cases to undercut past progress and block attempts to move the law forward.
I wish at least one of the liberal Justices had authored a separate concurrence making clear that they weren’t endorsing Gorsuch’s originalist interpretive approach. The need to do so should have been especially clear in light of Alito's dissenting opinion. Regarding what "sex discrimination" was understood to mean "at the time of enactment," Alito's dissent had the much stronger argument. Just consider this: would the law's prohibition of "sex discrimination" have been passed--"at the time of enactment" in 1964--if legislators were told that those terms protected gays and transgenders as well as women? Now ask the same question about progressive interpretations of countless other statutory and constitutional provisions. The liberals should at least have expressed their reservations about the originalism touted by Gorsuch.
Others have raised similar concerns. See e.g., Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion. https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion/]

An earlier decision of the Court, three years before Bostock, was arguably more revealing about Roberts' view of his role as Chief Justice (as well as of Gorsuch's view of LGBTQ rights). Roberts' position in that earlier case took many by surprise because he had dissented two years before in Obergefell v. Hodges (2015).  In Obergefell, Roberts, together with the other Republican appointees-- except for Justice Anthony Kennedy--had rejected the notion that the Constitution guarantees same-sex couples the right to marry. But in 2017, Roberts broke with the Court's conservatives and, aligning with the Obergefell majority, helped reaffirm that landmark decision.
In a per curiam opinion, with the Chief Justice in the 6-3 majority, the Court invalidated an Arkansas rule that treated same-sex and opposite-sex spouses differently on their children's birth certificates. While the male spouses of biological mothers were entitled to be identified, female spouses were not. Repeatedly quoting from the Obergefell majority opinion--against which the Chief Justice had originally dissented--Roberts, together with his 4 liberal colleagues and Justice Kennedy, summarily granted review, reversed the state's supreme court, and struck the Arkansas practice on the ground that "the Constitution entitles same-sex couples to civil marriage 'on the same terms and conditions as opposite-sex couples.'”
Justice Gorsuch, this time writing a dissent, which was joined by Thomas and Alito, argued that, although the Obergefell decision held that "a State must recognize same-sex marriages," it said "nothing" about "a birth registration regime based on biology." In response, the Roberts-joined per curiam majority noted that opposite-sex spouses identified on Arkansas birth certificates need not be biological parents. Applying another line excerpted from Obergefell, the Chief Justice and his more liberal colleagues concluded that Arkansas has "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.'” Pavan v. Smith, 2017.

Roberts had thus apparently decided that his role as Chief Justice included adhering to the Court's recent progressive landmark and opposing attempts to undermine it--regardless of his original position on the matter.

Death Penalty/Intellectual Disability. A similar pattern is evident in positions taken by Roberts in some recent death penalty cases. He had dissented in Moore v. Texas when that case came before the Court in 2017. The Court's majority ruled that the state court's judgment that the death row inmate was mentally competent to be executed "had no grounding in prevailing medical practice." Accordingly, the case was remanded for a determination "informed by the medical community’s diagnostic framework." Roberts dissented on the ground that the "independent basis for [the state court's] judgment" was adequate.
When the case returned to the Supreme Court two years later, the majority once again disapproved the state court's determination that the inmate was competent. This time, however, the Chief Justice broke with the conservative dissenters [Thomas, Alito, and Gorsuch] and joined the majority [which notably included Justice Kavanaugh]. Despite Roberts' own previous dissent, he acknowledged that the Texas determination "did not pass muster under this Court’s analysis last time" and, because "[i]t still doesn’t," he joined the majority's opinion to again reverse the state court's judgment. Moore v. Texas, 2019.

The Chief Justice joined his liberal colleagues in several other related death penalty cases in 2019. A few weeks prior to the Court's decision in Moore, Roberts signaled his break with his conservative colleagues in White v. Kentucky. In that early 2019 decision, he joined the majority's order [over the dissent of Thomas, Alito, and Gorsuch] to grant review and simultaneously, without argument, reverse a judgment of the state's supreme court--on the basis of the Court's earlier 2017 Moore decision.
Similarly, in Madison v. Alabama, also decided in early 2019, Roberts again broke with his conservative colleagues [Thomas, Alito, and Gorsuch]. In that case, he sided with the liberals to vacate the judgment of the state court that had approved an execution. He joined Justice Elena Kagan's majority opinion that the Constitution prohibits executing a person who is unable to understand why he's being punished, regardless of the particular intellectual disability he suffers, dementia or psychosis.
One more. In Murphy v. Collier, decided several weeks thereafter, the Chief Justice again sided with his liberal colleagues to halt to another execution. Over Justice Alito's dissenting opinion, which was joined by Thomas and Gorsuch, the Roberts-joined majority summarily enjoined Texas from carrying out the execution, at least until it first granted the inmate's request to be accompanied into the chamber by a Buddhist chaplain.

To be sure, Chief Justice Roberts' positions in the cases thus far discussed do not mean that he has transformed into an ideological liberal. But they do demonstrate a pattern of willingness to break with his more natural political allies on the Court and, moreover, to do so on some of the most highly charged issues of the day.
We'll look at a few more of these in the next and final post in this series.

It's Roberts' (somewhat less right-wing) Court (Part 1)

Source: Reuters//Jonathan Ernst

Sure, let's not go overboard. Despite some recent decisions welcomed by political liberals, the Supreme Court has hardly turned liberal.

Indeed, most decisions of the past year--let alone of the last few decades--have been those favored by political conservatives. Whether in civil rights and liberties, the rights of the accused, employment and labor law, war and foreign affairs, and other crucial areas that define the nation's principles, the Court has largely rendered rulings that conservative Republican politicians would reach if up for a vote in their elected representative chambers.

         BUT...

Neither can it be denied that the Court has issued some major politically-liberal decisions. And the difference often has been Chief Justice Roberts. He is the one who, more than any of the other conservative Republican appointees, has deviated from the Court's typical partisan divide.

There were some indications, even before the retirement of "swing vote" Justice Anthony Kennedy, of Roberts disrupting the holy political alliances among the Justices. ("Holy," because some members of the Court, such as the late Justice Antonin Scalia, would react to Roberts breaking with the conservatives as though it were blasphemy, heresy, or some other mortal religious transgression.) But the Chief Justice's breaking with the other conservatives has in the past few years become a foreseeable--if not expected--phenomenon of Court dynamics.

A quick survey of some major decisions in which Roberts voted on the politically liberal side of a hot-button issue should leave little doubt. Oftentimes, the Chief Justice authored the majority opinion himself--meaning that he often assigned the Court's opinion to himself in these high profile cases. And oftentimes, his vote was the deciding one in giving his liberal colleagues a victory over his usual conservative allies. Here's a sample:

Obamacare. Perhaps Roberts' best known break with the conservatives was his saving of Obamacare: his dispositive opinion for the 5-4 majority--himself and the Court's 4 liberals--upholding the constitutionality of the Affordable Care Act's "individual mandate." He did so, over the bitter opposition of the other 4 Republican appointees [Scalia, Kennedy, Thomas, and Alito], by characterizing the enforcement mechanism as a tax imposed within Congress's power, rather than an otherwise invalid penalty. National Federation of Independent Business v. Sebelius, 2012.

Three years later, Roberts again saved a major aspect of Obamacare: his 6-3 majority opinion--joined by all 4 liberals and Justice Kennedy [with Scalia, Thomas, and Alito dissenting]--upholding federal tax subsidies for all lower-income Obamacare insureds, even if their state declined to set up an insurance exchange. King v. Burwell, 2015.

Immigration. Like Obamacare, there are, of course, the immigration issues that have been among the most contentious and divisive along party lines. And like Obamacare, the Chief Justice saved DACA [the Deferred Action for Childhood Arrival program] from partisan attempts at elimination. In his majority opinion, this past week, for himself and the Court's 4 liberals--once again raising the ire of the other conservative Republican Justices [Thomas, Alito, Gorsuch, and Kavanaugh]--he declared the Trump administration's attempt to scrap DACA "arbitrary and capricious."
Moreover, Roberts made clear his determination that the administration's proffered reasons were dishonest, labeling them "post-hoc rationalizations" and "convenient litigation arguments." Department of Homeland Security v. Regents of the University of California, 2020.

A pair of related decisions should be included here: one dealing with state immigration policy; the other dealing with immigrants and, again, the Trump administration's dishonesty.

The immigration case, eight years prior to the DACA decision, involved an Arizona law allowing the arrest of any person, without a warrant, who the police suspected was an unauthorized immigrant "removable" from the United States. The Chief Justice joined a 5-3 decision--together with 3 liberals [Justice Kagan did not participate] and Justice Kennedy, who authored the opinion--invalidating the Arizona law for interfering with federal immigration policy. The remaining Republican appointees [Scalia, Thomas, and Alito] each wrote dissenting opinions emphasizing states' rights and denying any conflict with federal law. Arizona v. U.S., 2012.

The Citizenship Question--and Dishonesty Before the Court.  The other case related to the DACA decision was the one last year involving the Trump administration's attempt to insert a citizenship question on census forms. The Chief Justice's vote was decisive in thwarting this transparent attempt to undercount the population of states such as New York and California--home to large numbers of immigrants who would be discouraged from completing such a form.
In his 5-4 majority opinion, Roberts, joined by the Court's 4 liberals--and again denounced by the other Republican appointees [Thomas, Alito, Gorsuch, and Kavanaugh]--blocked this initiative of the administration, just as he did the attempted repeal of DACA, because the administration's beneficent rationale for doing so was a lie. That's my word, not his. But,  his words were no less pointed.
As Roberts himself put it, there was "a significant mismatch between the decision the Secretary [of Commerce] made and the rationale he provided." For emphasis, the Chief Justice repeated that "the evidence tells a story that does not match the explanation the Secretary gave." And just in case any doubt remained, he said the same thing a third way: the "rationale—the sole stated reason—seems to have been contrived."
Roberts concluded by leaving no doubt about his contempt for the administration's dishonesty. "We are presented," he wrote, "with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process." And therefore, the Court--meaning at least the Chief Justice with the 4 liberals--"cannot ignore the disconnect between the decision made and the explanation given." Department of Commerce v. New York, 2019.

Ok, let's start with those cases. Only a few, but major and very revealing.

We'll continue our look at the Chief Justice's and his Court's "somewhat less than right-wing" record next time with LGBTQ rights, search and seizure, the death penalty, and then a few other issues.

Trump's Justices: Gorsuch to Date (Part 3)

Pandemic restrictions, transitioning to remote teaching, exams, grading, other projects, preoccupation with breaking news, etc. Now back at last.

In the first post in this series, we took a look at Justice Niel Gorsuch's voting record immediately following his appointment in the final few months of the 2016-17 term. As shown in that post, Gorsuch voted for the politically conservative side of every politically charged issue in cases involving the death penalty (pro), campaign finance restrictions (con), gun rights (pro), gay rights (con), workers' rights (con), separation of church and state (con), President Trump's travel ban (pro), and similar politically divisive matters.

Yes, there were legitimate (or semi-legitimate) arguments that supported each side in these cases. A reasonable, good-faith judge might have voted either way. But Gorsuch always chose arguments that supported the politically conservative side. Never the other side. In short, connect the dots! Moreover, Gorsuch's 100% politically conservative record was more than double the 41% conservative decisional record of the Court as a whole.

Juxtaposing his record with that of the other conservatives on the Court, as well as of the Court as a whole, in that spring of 2017 looks like this (click to enlarge).


Then, in the second post in this series, we saw that Gorsuch continued to amass a very politically conservative record throughout the 2017-18 term, his first full term on the Court. As noted in that post, in cases involving highly charged matters, Gorsuch voted for the politically conservative side virtually every time: Trump's travel ban (again, pro), immigrant rights (con), abortion rights (con), gay rights (con), union representation (con), worker rights (con), voting rights (con), ending gerrymandering (con), search and seizure protections (con), and international human rights (con). Again, connect the dots.

And again, let's juxtapose Gorsuch's voting with that of the other conservatives on the Court, as well as of the Court as a whole. His record for the first full term on the Court, the 2017-18 term, looks like this (click to enlarge).


Now, let's take a look at Gorsuch's record for the last completed term, 2018-19, his second full year on the Court. Among the cases involving those "hot-button" or politically charged issues, these were his positions:

• American Legion v. Amer. Humanist Assn. (2019) [re: the 40 Foot Cross maintained by Maryland state government]--the majority approved the cross; Gorsuch's separate concurring opinion would have lowered the separation of church and state even more by disallowing concerned groups even to complain.

• Dept. of Commerce v. New York (2019) [re: the Trump administration's proposed citizenship question on the census form]--the majority, in an opinion by the Chief Justice, disallowed the question because the administration's claimed justification was a lie; Gorsuch joined the dissenters' argument that the administration did have some legitimate reasons.

• June Med. Servs. v. Gee (2019) [re: the Louisiana abortion services restriction law]--the majority summarily blocked the law from going into effect; he joined the dissenters to approve the law until it actually resulted in unduly burdening the right to choose.

• Rucho v. Common Cause (2019) [re: partisan gerrymandering]--he voted with the majority which held that the Court should do nothing about it.

• Bucklew v. Precythe (2019) [re: lethal injection]--he authored the majority opinion to approve the use of a method of execution on an inmate, despite the inmate's particular's medical condition that would make that method excruciating.

• Moore v. Texas (2019) [re: intellectual disability of a death row inmate]--in this and several similar cases, the majority (which included Chief Justice Roberts and Justice Kavanaugh) halted the execution because the state applied outdated mental health standards which the Court had previously invalidated; he joined the dissent in each case to nevertheless allow the executions.

• Murphy v. Collier (2019) [re: the Buddhist chaplain case]--the majority (which again included Roberts and Kavanaugh) halted an execution until the state honored the inmate's request to be visited by a chaplain of his faith; he joined the dissent to excuse the state and allow the execution to go forward.

• Garza v. Idaho (2019) [re: ineffective counsel]--the majority (once more including Roberts and Kavanaugh) ruled that the defense counsel's failure to file an appeal violated the defendant's right to effective counsel; he joined the dissent arguing that the defendant's waiver of appeal upon his guilty plea disposed of the question.

• Flowers v. Mississippi (2019) [re: race-based juror discharges]--the majority (which this time included Roberts, Alito, and Kavanaugh who authored the opinion) condemned as unconstitutional the “relentless” use of peremptory challenges by the prosecution to strike all black jurors, throughout 6 trials and retrials; he joined the dissent which declined to condemn the pattern.

Well, speaking of patterns, Gorsuch's voting pattern should be quite evident. Whether it's church and state, abortion rights, the death penalty, race-related questions, the Trump administration's initiatives, and other politically charged issues, Gorsuch voted like a conservative Republican partisan. And he did so even more than some other conservatives on the Court.

Take a look (click to enlarge):

Gorsuch's 89% politically conservative voting record for the 2018-19 term contrasts dramatically with the 50% decisional record of the Court as a whole. And remember, this is a Court where a majority of the Justices are political conservatives--who worked in politically conservative Republican administrations before being appointed by Republican presidents. It is compared to just such a politically conservative Court that Gorsuch's record is so extreme!

Indeed, Gorsuch's record for the 2018-19 term is not only significantly more politically conservative than that of conservative Chief Justice Roberts, 89% to 58%. But his record is notably more politically conservative than that of the second Trump appointee to the Court, Brett Kavanaugh.

The difference between the two Trump appointees, 89% politically conservative for Gorsuch, 74% for Kavanaugh, is underscored by the sorts of politically charged issues on which they disagreed. Take a look at some of them (click to enlarge):

Church and state, racial discrimination, the death penalty, an accused's right to effective counsel--these are among the critical areas of constitutional law in which Gorsuch took the more politically conservative side of the issue than did Kavanaugh.

To be sure, there are many many other areas of constitutional law, as well as non-constitutional but still highly charged political issues, about which we do not yet have Supreme Court decisions in which both Gorsuch and Kavanaugh participated. There are some of those in cases to be handed down by the Court within the next few weeks. That will give us more evidence of the individual and the comparative ideological leanings of the two Trump appointees. Stay tuned!