Chemerinsky: Blockbuster decisions in 6 areas of law made this a SCOTUS term to remember
Erwin Chemerinsky. Photo by Jim Block.
The most important lesson from the Supreme Court's just completed term is that it is truly the John Roberts court. Since the retirement of Justice Anthony Kennedy two years ago, Roberts has been ideologically in the middle of the court and thus, its “swing justice." This was powerfully evident this term. Roberts voted with the majority in 97% of the cases; he dissented only twice all term. As chief justice, he assigns the opinion when he is in the majority and he wrote the majority opinion in many of the most important cases of the term.
It was an unusual term in so many ways. The court decided only 53 cases with signed opinions after briefing and oral argument; that is the fewest number since 1862, when the court issued 41 opinions during the Civil War. Because of the COVID-19 pandemic, the court canceled oral arguments in March and April; it was the first time that had happened since the court canceled arguments because of the Spanish flu in October 1918. In May, the court held telephonic oral arguments for the first time in its history and allowed live broadcasts, which also was a first.
But most of all, it was a term of blockbuster decisions, almost all of which saw Chief Justice John G. Roberts Jr. in the majority.
In June Medical Services, LLC v. Russo, the court declared unconstitutional a Louisiana law that required a doctor to have admitting privileges at a hospital within 30 miles in order to perform an abortion. In one sense, this was not remarkable because four years earlier in Whole Woman’s Health v. Hellerstedt (2016), the court struck down an identical Texas law. Justice Stephen G. Breyer wrote for the plurality in June Medical Services and said the Louisiana law, like the Texas one, would do little to protect women’s health but would significantly decrease access to abortion in that state.
In Whole Woman’s Health, Justice Anthony Kennedy was the fifth vote in the majority joining Justices Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. What is most notable about June Medical Services is that Chief Justice Roberts was the fifth vote to invalidate the Louisiana law. Roberts concurred in the judgment and said although he dissented and disagreed with the decision in Whole Woman’s Health, he felt bound to follow precedent. This is the first time since coming on the court in 2005 that Roberts has voted to strike down an abortion restriction. Of course, everyone now wonders whether this is a signal as to how he will vote when the issue of overruling Roe v. Wade and Planned Parenthood v. Casey is squarely before the court.
Civil rights litigation
In Bostock v. Clayton County, Georgia, the court held that Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sexual orientation or gender identity. Justice Neil M. Gorsuch wrote the opinion, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan. Justice Neil Gorsuch focused on the plain language of Title VII, which prohibits employment discrimination “because of sex.” He explained that the gay men who were fired would have kept their jobs if they were women; the transgender woman who was fired would have kept her job if she were male. This is discrimination because of sex.
In addition to Title VII, there are more than 100 federal laws that prohibit discrimination because of sex. This case likely means that all of them must be interpreted to prohibit discrimination based on sexual orientation or gender identity.
Deferred Action for Childhood Arrivals
The DACA program created by President Barack Obama in 2012 applies to individuals who were brought to the United States before age 16 and who were under the age of 31. The person must be in school or have graduated high school, or be in the military or have been honorably discharged from it. The individual must not have a conviction for a felony or a serious misdemeanor or three misdemeanors of any kind. Pursuant to federal immigration law, these individuals are given deferred deportation status for a period of two years, which can be renewed. This means they do not need to fear being deported during this time and are eligible for work permits. There are many Dreamers in my law school and on my campus.
President Donald Trump repealed this program as part of his strong anti-immigrant policies. In Department of Homeland Security v. Regents of the University of California, the Supreme Court found, 5-4, that President Trump’s rescission of DACA violated the Administrative Procedures Act. In an opinion by Chief Justice Roberts, the court held that there was not an articulated, legitimate justification that considered alternatives when DACA was rescinded and put 700,000 individuals in danger of deportation. President Trump can try again to rescind DACA, but for now the program remains in effect.
Free exercise of religion
The most important triumphs for the conservative justices were in the area of religious freedom. The court clearly signaled a major change in the law and a much greater protection for religious institutions under the Constitution.
Espinoza v. Montana Department of Revenue involved a Montana law that allowed parents sending their children to private school to receive a $150 tax credit. In Montana, almost all of the private schools are religious. The Montana Supreme Court invalidated the tax credit law as violating the Montana state constitution, which forbids direct or indirect government aid to religion.
But the Supreme Court, 5-4, concluded that the Montana Supreme Court violated free exercise of religion in invalidating the Montana program. Chief Justice Roberts wrote the opinion for the court and said that the Montana constitution prevented parents from receiving aid if they sent their children to religious as opposed to secular private schools. This, the court concluded, violated free exercise of religion. The court said that the government must have a compelling reason and no other alternative any time it denies benefits to religious institutions that it allows to secular ones.
The practical effect of this decision, which follows from the court’s ruling in Trinity Lutheran of Columbia, Missouri v. Comer in 2017, is that whenever the government gives benefits to secular private schools it must provide them to religious schools unless it can be shown that doing so would violate the Establishment Clause of the First Amendment.
In Our Lady of Guadalupe School v. Morrissey-Berru, the court held that a religious school cannot be held liable under employment discrimination laws for the choices it makes as to its teachers. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the court concluded that a fifth-grade teacher who had been a commissioned minister in the faith could not sue a religious school for employment discrimination.
In Our Lady of Guadalupe School, the court in a 7-2 decision with Chief Justice Roberts writing for the majority, held that religious schools are exempt from employment discrimination laws for the choices they make as to their teachers. This means that religious schools are free to discriminate on the basis of race, sex, religion, sexual orientation, age and disability in hiring and firing teachers.
Finally, in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the court upheld the authority of the Trump administration under the Affordable Care Act to promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees.
Presidential immunity from subpoenas
In two cases, the court held that the president does not have absolute immunity from subpoenas of information from financial institutions with whom he does business. Both cases were 7-2, and Chief Justice Roberts wrote the majority opinion in each. Both were remanded for further proceedings.
In Trump v. Vance, the court concluded that the president does not have immunity from state grand jury subpoenas and that there is no need for a heightened showing of need for such subpoenas. The court stressed that the law has a right to every person’s evidence, including from the president. The case involved a subpoena to President Trump’s accountants in connection with a criminal investigation of whether there were campaign finance violations in hush money paid to porn actress Stormy Daniels to not reveal her sexual relationship with Trump.
In Trump v. Mazars USA, LLP, the court held that congressional subpoenas for the financial information concerning the president may be enforced, but there has to be sensitivity to separation of powers concerns. The court said on remand, courts must consider the importance of the information and the availability of it through other sources, the narrowness of the subpoena, the legislative purpose and the burdens imposed on the president by the subpoena.
In Seila Law LLC v. Consumer Financial Protection Bureau, the court held that it violated separation of powers to have the Consumer Financial Protection Bureau led by a single director who cannot be removed by the president except for cause. Chief Justice Roberts wrote the opinion for the court in the 5-4 decision and so narrowly to focus just on the unconstitutionality of limiting presidential removal in an agency headed by a single director; the court did not disturb precedents upholding limits on removal for commissions of multimember bodies.
One year does not make a trend. And I am not among those who is convinced that Chief Justice Roberts decided these cases to make the court less of an election year issue, or to lessen the likelihood of court packing or to preserve the legitimacy of the court. All of those are possible explanations, but it also is possible that he was just calling each case on the merits as he saw them.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.