And she understands something else: that on today’s Supreme Court, she is fated to be on the losing side of many of the issues she cares most about. So her project, it seems to me, is to make legible, for these times and in times to come, the context for the court’s decisions and the consequences likely to flow from them. Winners should do this, too, of course, but these days they often don’t. Losers need to, if they want to contribute something that matters to events they can’t control. Justice Sotomayor’s contribution is to tell us what she knows. Our obligation is to pay attention.
Linda Greenhouse's column today was about Justice Sotomayor, who had a separate opinion today for the liberals making sure to say "whoa there" concerning how far an "aliens torts" statute should go. Thomas for everyone but Alito (who did not have a great day) said the claim here should be rejected, since it did not have enough of a connection to domestic (U.S.) activity. She also nose counts to five regarding its protection to corporations.
[Personally, I'm sympathetic in this case regarding applying a statute from 1790 or something to the current world narrowly at least category-wise -- Congress should update it. ]
The Alien Torts Statute has been used by some human rights clients in the last view decades, but the Supreme Court consistently has defined it narrowly. Liberal justices pushed to leave more open, so it basically has been a fight to see what's left. The ruling to my understanding is not really a surprise though the Sotomayor nose counting might be notable. So, it was for most the least important of today's trio. Fifteen left.
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The latest, and most stupid (even supporters of the past ones thought so), challenge to ACA that reached SCOTUS came first. Last time, Roberts dealt with it and basically said "stop it; we aren't going to knock it down." The idea was that maybe he would do it again, but toss in something like saying the "mandate" (even without a tax in place) was unconstitutional or something. Breyer had the opinion instead and just said "no standing." Thomas went along, even if he wasn't THAT happy about it. Only Alito (with Gorsuch) dissent. ACA holds. BFD long term.
(A stickler with loose standing principles might argue that there is enough here for standing, but the rules are so inconsistently applied, it's hard to carp too much. Yes, the merits are easy, but a few judges -- each of the tainted people I don't want to call "justices" were court of appeals judges so that seems valid -- disagree. So, partially since the litigants didn't make a clear showing, even if possibly they could, Breyer's opinion is valid.)
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The last case, to quote Amy Howe, held that "Philadelphia violated the First Amendment’s free exercise clause when the city stopped working with a Catholic organization that refused to certify same-sex couples as potential foster parents." The result is not surprising. The fact it was unanimous with no liberal justice at all (not even Sotomayor) writing separately is not. The whole thing is under twenty pages. So why is the .pdf over 100? Well, Alito wrote a really long concurrence.
The concurrences are suggestive. The High Federalists (Alito, Gorsuch and Thomas) basically want to overturn Oregon v. Smith. Thomas wasn't around when Smith was handed down, but did not seem to have an issue with it when Boerne was handed down and O'Connor, Souter and Breyer were willing to re-examine it. We saw with the Big V cases what this might entail -- special rules benefiting religious exercise in the name of avoiding "discrimination." And, allowing it in another way.
Barrett and Kavanaugh was open to changing the law, but didn't quite know how. So, since it wasn't deemed necessary here, they went along with Roberts. Avoiding a paragraph questioning Smith, Breyer joined Barrett's short concurrence. Let me add to her questioning of the Free Exercise Clause being merely an anti-discrimination clause. Sure. But, what does that mean? Ministerial exemptions? Allowance but not requiring religious exemptions? No coercion? Hybrid rights like raising children in a faith? I agree it isn't just discrimination, but how?
The Roberts opinion, like the Masterpiece Cakeshop opinion, seems to be a negotiated punt job to let a specific plaintiff win without doing too much. But, as there for a somewhat different reason, the whole exercise is not too convincing. A basic part is saying foster care isn't really a public accommodation, and as applied here, the anti-discrimination concern was limited. If so, how limited is the opinion to the facts as suggested by another part of the opinion? Best you can get can be not that good.
If some locality has a law without exemptions (this one does and this was damning for nuanced reasons), could they do the same thing as Philadelphia? Could Philadelphia itself just re-write things? And, what about a bit about how private companies are key for foster care. Is that really true? Can't it just be public? And, the opinion notes the law burdens free exercise, which puts the government on some notice. The law recall resists the government reaching out to bring in certain religious institutions in. Smith seemed to cabin the unemployment exemption cases; recent cases seem to say government services broadly have to include religious actors, even when trying to avoid government funding of religion or to resist discrimination.
I am wary of the result and wish -- like last time -- separate opinions could have at the very least underline that what Philadelphia was trying to do was important and could be done if in another way. The majority opinion barely said the first and it's again unclear how limited it really is regarding the second. And, the breadth of its doctrine on religious liberty will largely rely on three tainted seats, part of a Republican packing job. But, it's okay when Republicans do it!
The thinly argued majority opinion again makes me concerned here. The Law, Rights and Religion Project, for instance provides a bit more clarity on why there are exemptions in place in the foster care law: "this exception was created to allow contracting agencies to sometimes take the race or disability status of a potential parent into account when making a child placement." So, a racist might not make a good fit. (To cite an email update I received.) How this matters here is unclear, but is used as a sort of gotcha to in a "minimalist" way strike down this law.
Bit More: One account noted that there are many providers for foster care so children will get placed and not go to Catholic groups anyway. This sounds a bit like the "there are enough wedding bakers around" argument or something.
The basic principle here is for the state not to be involved in discrimination, giving it aid and comfort. Trying to apply a "not enough of a burden" or "enough alternatives" test is hard to apply along margins and violates the basic principle in general. Anyway, as Gorsuch notes -- asshole has a point -- the overall reasoning is just garbled or just unconvincing.
A few spoke of Roberts "wizardry," but besides noting he has already been in dissent this term, I am not particularly impressed. The liberals are an easy sell as a defensive mechanism (though some argue in the long run, this sort of thing can be counterproductive) while Barrett/Kavanaugh (already Roberts-focused and open to cushioning the blow strategies) can easily be sold on the fact that a new rule is hard, plus do they really want to do it in a case where they might look like bigots?
This sort of avoidance mechanism in practice helps religious plaintiffs, especially with friendly judges, while they have plenty of time. And, I'm not sure how much is lost here -- again, results suggest net avoiding big wins in these cases still helps religious liberty claims. So, my position is still "calm down on that wizard" stuff. Plus, the opinion is blah.
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Seems a lot of opinions left with a week and half (including the very end of the month) of June. There is a major voting case mixed in there, while Congress (especially the Senate) works on voting rights. Sen. Manchin submitted a memo that provided a pretty good list, if leaving out some things. But, it still would need Republican support to reach sixty, or Democratic support (with any Republicans?) to change the filibuster.
And, of course, there's Breyer. Will today's opinions be deemed "optimistic" by him, leading him to stay on? Past discussion, including Mitch McConnell saying Republican control would make filling the seat even in 2003 dubious, underlines that will be fucking stupid. We are left to wait. That includes to the 2021 Term, which promises to be a bit more eventful than this sort of "wait and see" exercise.
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Supreme Court has scheduled three more opinion days -- Monday, Wednesday, Friday with another Order Day the following Monday. Each Monday has orders; the second is per previous practice likely a "clean-up" order day to finish off the term. Fifteen opinions in three days is five each, after they continuously had one or two day opinions. Sigh.
There was going to be two executions in South Carolina this month, but the state court said a state law requires actual procedures in place to allow for a firing squad option. So not yet. Again, that has bad optics, but for the actual prisoner, it might be a better call than electrocution and lethal injection. Lethal injection also raises medical ethics problems. Or, we can just not have executions, like that state avoided for around a decade.
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