October Term 2019 in Review

Photo by Phil Roeder on Flickr

Trane J. Robinson, Robin2t3@mail.uc.edu, Citations Editor, University of Cincinnati Law Review

In July, the Supreme Court tied a bow on a term that won’t soon be forgotten.  October Term 2019 featured live-streamed, telephonic oral arguments during the May sitting—firsts at the court[1]—complete with seldom-heard questioning from Justice Thomas, a presidential impeachment trial in January pulling the Chief Justice across the street for double duty, and, by the way, a merits docket with more huge cases than the game show Deal or No Deal.  Apparently less eager for summer recess than usual (damn virus!), for the first time in decades the justices completed their work after the Fourth of July.[2]

In this post, I review the momentous Term that was O.T. 19.  I look to the court’s disposition of cases that reached invigorating social and religious issues and sculpted executive power.  This term saw expanded Title VII protections but constricted Affordable Care Act coverage.  It saw the court strike down an abortion restriction while it bolstered the free exercise of religion, expand executive removal power but not executive privilege.  The justices’ summer recess marks a fine occasion to reflect upon a term just completed to digest cases, weigh outcomes, discern trends, and extrapolate projections, but it is important not to diagnose unwritten motives—or even presume their existence.  The following comes from the four corners of published opinions.  Everything here presupposes that the justices decide cases discretely, based on facts applied to law and precedent, without horse-trading votes across cases or regarding extra-record influences on decision making.

With that said, court commentators have centered on one theme above all to characterize this iteration:  As his title and center-seat intimate, Chief Justice John G. Roberts is the court bellwether.  The Chief Justice occupies the median seat in terms of judicial philosophy.[3]  Indeed, he joined the majority in all but two merits cases this term (59/61[4]), 14 of those were decided 5-4.  And as Chief he always assigns opinion authorship for his side, be that the majority or dissent.  John Roberts, now fifteen terms in and healthy (right?[5]), is just an adolescent in his line of work and figures to steer the judiciary for the foreseeable future.

Look no further than this term to realize the significance of the opinion-assigning function:  The Chief, by his own assignment, wrote the lead opinions in Vance, Mazars, Seila Law, Regents, and Espinoza to name a handful[6]—all hot-button cases discussed below.  In those cases and others, Roberts swung majorities in his preferred direction, tactfully dictating outcomes and the narrowness of reasoning.  Begin, though, where the Chief registered minority votes.

Justice Gorsuch delivered the decision for a bare majority in McGirt v. Oklahoma.[7]  His coalition threw out for lack of prosecutorial jurisdiction the Oklahoma criminal convictions of Creek Nation Indians who committed crimes on Native American soil.  The Chief wrote a dissent on account of history and precedent for the remaining four Justices.

Contrary precedent, it turns out, motivated both of Roberts’ dissenting votes:  He disagreed with the majority’s fractured decision in Ramos v. Louisiana[8] to contravene a Sixth Amendment precedent called Apodaca[9] and incorporate into the Due Process Clause of the Fourteenth Amendment—applicable to States—the jury unanimity requirement.[10]  Justice Gorsuch carefully criticized and ultimately laid to rest Apodaca’s plurality decision written by his former boss Justice White.  Several members wrote separately.  Justice Thomas applied a hybrid of his concurrences in McDonald[11]and Gamble[12] to argue incorporation is properly achieved through the Privileges or Immunities Clause regardless of stare decisis; Justice Kavanaugh submitted his own theory of the doctrine of stare decisis by collecting cases to synthesize a workable rule from precedent for reevaluating precedent.  Justices Alito, Sotomayor, and Gorsuch jousted over today’s relevance of the racial animus that poisoned the antebellum origin of states’ non-unanimous jury provisions.  Notably, Justice Kagan along with the Chief Justice joined Justice Alito’s dissenting opinion in this fractured but fundamentally 6-3 decision.

McGirt and Ramos, both Justice Gorsuch opinions, share another common thread.  Both decisions upset federalism generally and state criminal convictions in particular.  McGirt frustrated state convictions of Creek Nation Indians on jurisdictional grounds; relatedly, after Ramos,a question lingers regarding retroactive application of the newly incorporated right to unanimous convictions.[13]  State reliance interests, like stare decisis, loomed large in the dissents from McGirt and Ramos.

A proper term review would devote attention to additional state sovereignty cases, and now’s the chance.  On an issue of first impression, the unanimous court banded behind Justice Kagan to hold that states may prevent the “faithless elector” from eroding democracy by pledging electoral college votes to their State’s popular vote loser.[14]  The court was poised to break its decade-long hiatus from addressing the Second Amendment,[15] until New York City scrapped a dubious gun regulation to moot the case after certiorari had been granted.[16]  The State of Kansas fared well this Term:  The court approved its policy choice to deprive murder defendants the insanity defense;[17] plus the court held a federal law did not preempt the Kansas statutes used to prosecute illegal-immigrant fraudsters.[18]  North Carolina prevailed on an Eleventh Amendment claim because Congress lacked authority to abrogate sovereign immunity from copyright infringement liability.[19]  Potentially—though hopefully not—a foreshadow of November, the court was thrust into an election in Wisconsin on an emergency basis amidst pandemic; the court lifted a corona-virus related preliminary injunction issued by a three-judge district court panel.[20]  Justice Ginsburg illuminated disenfranchisement risks sown by Wisconsin and sanctioned by her court.[21]  Last, the court authorized a District Attorney’s subpoena of a sitting president’s records—as discussed below in connection with a companion case about executive power.[22]

Social Issues

The armchair expert will remember this Term for unforeseen results in high-stakes cases.  The court reached abortion, transgender and homosexual rights, Obama’s Dreamers program, and religious freedom.  And sometimes, get this, the court ruled for the party favored by social progressives.  “How could those five conservatives do such a thing?” some wondered perplexingly.  Others rejoiced “a miracle!”  Rumors swirled over whether Chief Justice Roberts had quote-unquote “flipped” in similar fashion to his republican-appointed-turned-progressive-champion former colleagues Justices Stevens, Souter, and sometimes Kennedy.  The U. S. Reports, however, told a different story.  Roberts never abandoned his restrained, conservative predilections.  The landmark progressive victories in June Medical (abortion), Regents (DACA), and Bostock (Title VII) were not so pronounced as the headlines screamed.

No case illustrates the point better than June Medical Services v. Russo.[23]  A 4-1-4 fractured court struck down Louisiana’s law that required abortion providers to obtain admitting privileges at a nearby hospital.  Justice Breyer for the plurality picked up where he left off a few terms back in Hellerstedt,[24] a case that invalidated an analogous Texas law.  Chief Justice Roberts, who dissented in Hellerstedt and “continue[s] to believe that the case was wrongly decided,”[25] issued the fatal vote to Louisiana’s law solely based onprecedent, namely Hellerstedt.[26]  Roberts’ vote against a law he personally thinks not unconstitutional displayed humility; Roberts’ written opinion displayed his deft legal acumen.  He abided by the result Hellerstedt commanded—admission-privilege requirements are unduly burdensome—an simultaneously nodded to the impetus of Supreme Court precedent.  Meanwhile, he revamped the test by reverting back to Casey’s familiar undue burden analysis.  Hellerstedt called for a balancing of State interests against abortion-patients’—a task Roberts analogized to “judging whether a particular line is longer than a particular rock is heavy.”[27]  He thought weighing divergent interests in this charged area is better left to elected officials.  But asking whether a law imposes a substantial obstacle, Roberts explained, is judge’s work.

Ironically, the fractured court in Casey did something analogous when it upheld the central holding of Roe v. Wade, while completely reworking the analytical framework for lower courts to operate in. June Medical is noteworthy for its outcome, yet it was reached only on the narrowest possible grounds[28]stare decisis—while discarding the interest balancing analysis that so often leaves judges with carte blanche.[29]

In other news, Barrack Obama’s non-deportation program Deferred Action for Childhood Arrivals (DACA) survived a Trump Administration takedown attempt.[30]  The court blocked the President’s move not for lack of authority given that Obama, not Congress, promulgated DACA, but for shirking the Administrative Procedures Act.  The justification produced by the Secretary for Homeland Security explained the rescission of Dreamers’ (DACA beneficiaries) stateside benefits, but not the rescission of forbearances—refrain from enforcing deportation laws on qualifying immigrant-children.  The APA required justifications for both; absent the latter, the executive action was improper—“arbitrary and capricious” in administrative law jargon.  By preserving DACA on statutory procedural grounds, the court avoided hot-button immigration policy and admonished the government to “turn square corners in dealing with the people.”[31]

Justice Sotomayor, concurring alone, would have allowed the Regents on remand to press an equal protection claim in light of the President’s derogatory remarks towards immigrants.  A Justice Thomas dissent argued that rescission was proper because DACA is unconstitutional.  Regents provided short-term reprieve for Dreamers, but Chief Justice Roberts’ opinion left no doubt that the Constitution and APA, properly followed, tolerate DACA’s rescission.[32]

Bostock v. Clayton County,[33] which brought homosexual and transgender protection under the auspices of Title VII to the Civil Right Act, drew perhaps the most attention this term.  A victory for the LGBTQ community right on par with Obergefell, six justices agreed that to fire someone based on their sexuality or gender identity is to “discriminat[e] . . . because of . . . sex.”  That decision will protect millions and likely alter the interpretation of numerous statutes (that Justice Alito exhaustively listed in Appendix C to his more than 100-page dissent).  Justice Gorsuch, President Trump’s textualist first-appointee, delivered the majority opinion and no one else concurred separately.  Thus the Court furnished this seachange in employment discrimination law “under a textualist flag.”[34]  Likewise, both dissenting opinions offered textualist analyses in support of the opposite result.  The disagreement pitted a sort of literal textualism (“[o]nly the written word is the law”[35]) against an original meaning flavor of textualism (“Title VII’s prohibition of discrimination because of ‘sex’ still means what it has always meant.”[36]).  Indeed, a subplot in Bostock was a tug-of-war for the late Justice Scalia’s approval.[37]  Purposovism (considering uncodified congressional intent) and consequentialism (reverse engineering rationale from a chosen result) were conspicuously absent from the decision.  If textualism is “conservative,” then conservative judging will bear progressive results.

The party advocating a progressive result prevailed in June Medical, Regents, and Bostock.  Yet those cases moved the needle somewhat to the right in a judicial sense: doctrinally in abortion law and toward a method of statutory interpretation beginning and ending with text.  Another trio of cases saw a pronounced doctrinal shift to the right.  This term, the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) perpetuated religious freedom.

Religion

Espinoza held that a State violates the Free Exercise Clause by prohibiting state-funded scholarships to attend religious schools when it provides those scholarships to secular schools.[38]  States cannot exclude religious institutions from an otherwise available education subsidy.  The decision invalidated Montana’s constitutional provision, colloquially referred to as a Blaine Amendment, that “broadly and strictly prohibit[s] aid to sectarian schools”[39]—which, Justice Alito explained, had pernicious origins in anti-Catholic bigotry.[40]  Some 37 other States have Blaine Amendments or the like.  The end result will reverberate across the country, requiring school voucher programs to include religious charter schools if such programs are to exist at all.  Roberts’ majority decision drew sharp criticism from the living-constitutionalist bloc, who argued this expansion of Free Exercise derogates its First Amendment companion the Establishment Clause.  Espinoza stands for the unremarkable, but somehow now “conservative”, ideal that the Free Exercise Clause defends America’s pluralistic society, tolerant of diverse and not necessarily reconcilable views.[41]

The Religious Clauses in Our Lady of Guadalupe School v. Morrissey-Berru prevented courts from adjudicating the employment discrimination claims of displaced teachers who were fired from sectarian schools.[42]  This extension of the so-called “ministerial exception” keeps courts from intervening in the pedagogical decisions over which “ministers”—a term that encompasses teachers—will inculcate students in the faith.

Finally, Little Sisters upheld an administrative decision to excuse employers with religious or moral objections from complying with the woman’s health coverage mandate to the Affordable Care Act.[43]  RFRA compelled that result.  This case interplays with Bostock, which expressly left open the question of Title VII employment discrimination for sincere religious purposes.

The religious parties’ victories this Term on constitutional and statutory grounds were sweeping; look ahead for the court to continue bringing Free Exercise doctrine towards the Clause’s original meaning,[44] or alternatively to decelerate the momentum of the doctrinal shift we saw this term.[45]

Executive Power

Believe it or not, the foregoing leaves unmentioned a swathe of this term’s cases.  The coordinate political branches of government called upon the judiciary to resolve sharp disputes.  The Supreme Court issued monumental decisions defining “the executive Power” and its relationship with competing powers entrusted elsewhere in the Constitution:  Can Congress curb the President’s removal power?  Is the President immune to a congressional subpoena?  A State criminal subpoena?  What judicial review are deported immigrants entitled?

When the Consumer Financial Protection Bureau fined Seila Law firm, the firm resisted by challenging the constitutionality of the agency’s structure.[46] Per Congress, the CFPB leader could be fired only for cause.  In something like an ode to Justice Scalia’s solo dissent in Morrison v. Olson,[47] the Chief Justice’s lead opinion held that the for-cause removal prescription defied the separation of powers.  In particular, the President, who wields “the executive Power,”[48] needs not show cause to remove an executive agent, even an agency boss.  An old precedent, Humphrey’s Executor, still good law but somewhat out of style, ensures that the removal power is not absolute.  Without overruling it outright, the court narrowed Humphrey’s Executor further towards obsolescence.[49]  That decision drew a concurrence from Justice Thomas who would have wholesale overruled the outdated precedent, and a memorable dissent from Justice Kagan—the only one she wrote this Term—who would have relied on that not-meaningfully-distinguishable case to uphold the CFPB structure.  Seila Law reflects the court-majority’s robust and unitary conception of executive power.

Allow a brief aside to discuss severability.  The court took up the Solicitor General’s position in Seila Law to sever the unconstitutional provision rather than strike down the entire CFPB.[50]  Seven Justices agreed with that remedy.  One week later, the court found a Free Speech violation in an exception from the Telephone Consumer Protection Act.[51]  There too, it severed the constitutionally infirm provision from the Act with seven Justices’ agreement.  It was no surprise to see the Justices staking positions on the severability doctrine:  In November, in California v. Texas,[52] the court will decide whether a hallmark provision to the Affordable Care Act is unconstitutional, and if so, whether it is severable.

This term’s immigration docket likewise tilted towards the executive branch.  For example, Thuraissigiam established that immigrants detained soon after illegally crossing the boarder and approved for expedited removal by an immigration court are not entitled to habeas corpus review.[53]  Going further, the court held such immigrants are not owed due process beyond an administrative deportation hearing.[54]  And the 5-4 court in Barton v. Barr said immigration statutes “do not allow cancellation of removal when a lawful permanent resident” commits serious crimes.[55]  But in Nasrallah v. Barr the court allowed deferential judicial review from an immigration court’s denial of Convention Against Torture relief from deportation.[56]Don’t lose sight of Regents either, the most significant immigration case of the term, where the Dreamers prevailed.

A pair of cases involving subpoenas stood for the unremarkable point that the President is not above the law.  House committees four times subpoenaed President Trump’s financial records in custody of Mazars accounting firm to “help guide legislative reform.”[57]  President Trump sought executive immunity.  Far from categorically immune to a legislative subpoena, Mazars v. Trump directed courts to balance a series of factors to determine whether the President must comply.[58]

President Trump likewise sought to quash “the first [ever] state criminal subpoena directed to a President.”[59]  In an opinion that read like a history lesson, beginning with a famous feud between gentlemen named Hamilton and Burr, the court concluded: “the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.”[60]  His failed categorical-immunity argument does not foreclose President Trump’s ability on remand to press an as applied challenge to the subpoena for imposing on his constitutional duties.[61]  In any event, information gathered by grand jury subpoena is reviewed under seal, thus the general public will continue its wait to view Donald Trump’s financial information.

*          *          *

All told, let’s see where the chips fell.  October Term 2019 produced its fair share of 5-4 decisions, as expected.  (Chief Justice Roberts voted in the majority in all but one of those fourteen cases.[62])  That should not shortchange the court’s achievement to obtain seven-member majorities over divisive issues, such as those in the subpoena cases and two of the religious freedom cases.  The court also reached heterodox majority lineups in the 6-3 decisions Ramos and Bostock.  Rather than comment on judicial partisanship, I think pairing-off the justices better tells the story.  Justices Ginsburg and Breyer, for example, only disagreed four times this Term, that’s 7% of cases[63]—the same amount as the Chief Justice and Justice Kavanaugh.[64]  Justices Thomas and Alito are a natural pairing; they disagreed just 8% of the time.[65]  Justice Kagan aligned most frequently with Justice Breyer, at 90% of the time.[66]  And Justices Sotomayor and Gorsuch had slightly less alignment with any particular colleague, which squares with their earned reputation for each having independent streaks.

I noted at the outset that the commentariat characterized O.T. 19 by the emergence of Chief Justice Roberts at the court’s helm.  For my part, I agree with that characterization, but I think a corollary is equally true and more informative.  This is a conservative court.  Perhaps the adjective—conservative—distracts from the noun, which matters more to John Roberts and it should to us too.  This is after all a court.[67]  A conservative court is not like a conservative legislature.  This court believes “The executive Power” is robust, and singular; it does not believe the temporary officeholder is above the law—i.e., categorically immune to subpoena.  This court leaves immigration policy to the political branches; it does not dismiss statutory procedural requirements.  And this court defends (expands) religious freedom, even to the Affordable Care Act’s detriment.  Conservative judges will reach results untenable to Conservative lawmakers.[68]  Sure, that disappoints some folks.  It may take the wind from the sails of the punditry who aspire to politicize—or worse, add seats to—the Supreme Court.  Save plenty of room for disagreement on the merits,[69] O.T. 19 stands for the reality that those, of any ideology, who envision a court as the means to their desired policy end will continue to be surprised and disappointed.  Courts are passive tribunals,[70] not political organs;[71] they respond to laws,[72] and move in increments,[73] not lurches[74]—that is the essence of this term on Roberts’ court.[75]


[1] The Court also implemented two minutes of uninterrupted argument time to begin each advocate’s oral presentation.

[2] The court did not clear its merits docket until July 9 this year.  Not counting special circumstances, such as the September re-argument of Citizens United v. FEC, 558 U.S. 310 (2010), the last time a term concluded after Independence Day was 1986, when the Burger Court decided Bowsher v. Synar, 478 U.S. 714, Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, and other cases on July 7.

[3] Justices Ginsburg, Breyer, Sotomayor, and Kagan are jurisprudentially more progressive—i.e., outcome conscious; Justices Thomas, Alito, Gorsuch, and Kavanaugh are jurisprudentially more conservative—i.e., textualist.

[4] Adam Feldman, Final Stat Pack for October Term 2019 (updated), SCOTUSblog (Jul. 10, 2020, 7:36 PM), https://www.scotusblog.com/2020/07/final-stat-pack-for-october-term-2019/, 21.

[5] Robert Barnes, Chief Justice John Roberts was hospitalized last month after injuring his head in a fall, Washington Post (July 7, 2020), https://www.washingtonpost.com/politics/courts_law/john-roberts-hospitalized-supreme-court/2020/07/07/6bc230ae-c0a0-11ea-b4f6-cb39cd8940fb_story.html.

[6] Not to mention the controlling opinion in June Medical Services v. Russo.

[7] McGirt v. Oklahoma, No. 18-9526 (U.S. July 9, 2020) (Gorsuch, J., delivered the opinion of the court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Alito and Kavanaugh, JJ., joined, and in which Thomas, J., joined, except as to footnote 9. Thomas, J., filed a dissenting opinion).

[8] Ramos v. Louisiana, No. 18-5924 (U.S. April 20, 2020) (Gorsuch, J., announced the judgment of the court, and delivered the opinion of the court with respect to Parts I, II–A, III, and IV–B–1, in which Ginsburg, Breyer, Sotomayor, and Kavanaugh, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which Ginsburg, Breyer, and Sotomayor, JJ., joined, and an opinion with respect to Part IV–A, in which Ginsburg and Breyer, JJ., joined. Sotomayor, J., filed an opinion concurring as to all but Part IV–A. Kavanaugh, J., filed an opinion concurring in part. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Roberts, C. J., joined, and in which Kagan, J., joined as to all but Part III–D).

[9] Apodaca v. Oregon, 406 U.S. 404 (1972).

[10] Ramos is my pick for the most entertaining read of O.T. 19.

[11] McDonald v. Chicago, 561 U.S. 742, 837 (2010) (Thomas, J., concurring in part and concurring in judgment) (supporting incorporation by way of the Privileges or Immunities Clause, U.S. Const., Amend. XIV, §1).

[12] Gamble v. United States, 139 S. Ct. 1960 (2019) (Thomas, J., concurring) (slip op., at 2) (providing view of the proper role of stare decisis).

[13] Ramos, (Kavanaugh, J., concurring in part) (Slip op., at 15-16); Id. (Alito, J., dissenting) (Slip op., at 21-22).  Next Term will supply the answer in Edwards v. Vannoy. No. 19-5807 (Cert. granted) (whether Ramos applies retroactively).

[14] Chiafalo v. Washington, No. 19-465 (U.S. July 6, 2020) (Washington law does not violate First Amendment by enforcing an elector’s pledge to vote for the popular vote winner); Colorado Dept. of State v. Baca, No. 19-518 (U.S. July 6, 2020) (upholding Colorado law requiring electors to vote for State popular vote winner).

[15] See District of Columbia v. Heller, 554 U.S. 570 (2008) (Opinion of Scalia, J.); McDonald v. Chicago, 561 U.S. 742 (2010).

[16] New York State Rifle & Pistol Assn., Inc. v. City of New York, No. 18-280 (U.S. April 27, 2020).  In a concurring opinion, Justice Kavanaugh noted the several Second Amendment certiorari petitions pending and suggested the court should grant one.  Id. (Slip op., 1).  To his disappointment, the court denied all of those petitions.  See Rogers v. Grewal, No. 18-824 (June 15, 2020) (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J.).  Also, look ahead to Uzuegbunam v. Preczewski, No. 19-968 (cert. granted), for a sequel to the mootness issue (damages sought for now-rescinded college campus policy that designated “free speech zones”).

[17] Kahler v. Kansas, No. 18-6135 (U.S. March 23, 2020) (Kagan, J., delivered the opinion of the court, in which Roberts, C. J., and Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined).

[18] Kansas v. Garcia, No. 17-834 (U.S. March 3, 2020) (Alito, J., delivered the opinion of the court, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Sotomayor, and Kagan, JJ., joined).  See also Kansas v. Glover, No. 18-556 (U.S. April 6, 2020) (Fourth Amendment case).  Following Kansas’ winning Term, President Trump nominated Kansas Solicitor General Toby Crouse to the U. S. District court for the District of Kansas.

[19] Allen v. Cooper, No. 18-877 (U.S. March 23, 2020).

[20] Republican National Committee v. Democratic National Committee, No. 19A1016 (U.S. April 6, 2020) (per curiam).

[21] Id. (Ginsburg, J., dissenting, joined by Breyer, Sotomayor, Kagan, JJ.).

[22] Trump v. Vance, No. 19-635 (U.S. July 9, 2020) (Roberts, C. J., delivered the opinion of the court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Kavanaugh, J., filed an opinion concurring in the judgment, in which Gorsuch, J., joined. Thomas, J., and Alito, J., filed dissenting opinions.).

[23] June Medical Services L. L. C. v. Russo, No. 18-1323 (U.S. June 29, 2020) (Breyer, J., announced the judgment of the court and delivered an opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Gorsuch, J., joined, in which Thomas, J., joined except as to Parts III–C and IV–F, and in which Kavanaugh, J., joined as to Parts I, II, and III. Gorsuch, J., and Kavanaugh, J., filed dissenting opinions.).  Take note that six justices wrote opinions in this abortion case.  Who didn’t?  Justices Ginsburg, Sotomayor, and Kagan—the Supreme Court’s three female Members.

[24] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (Opinion of Breyer, J.).

[25] June Medical, slip op., at 2 (Roberts, C.J., concurring in the judgment).

[26] Id. (“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.”).

[27] Id., slip op., at 6 (quoting Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888, 897 (1988) (Scalia, J., concurring in judgment)).

[28] Marks v. United States, 430 U. S. 188, 193 (1977) (the narrowest position supported by a majority is the court’s holding); Cf. June Medical Services, slip op., at 4 n.1 (Roberts, C.J., concurring in the judgment) (citing Marks).

[29] June Medical, slip op., at 6 (Roberts, C.J., concurring in the judgment) (“In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in protecting the potentiality of human life and the health of the woman, on the one hand, against the woman’s liberty interest in defining her own concept of existence, of meaning, of the universe, and of the mystery of human life on the other. . . . There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. . . . Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an unanalyzed exercise of judicial will in the guise of a neutral utilitarian calculus.” (internal quotation marks and citations omitted)).

[30] Department of Homeland Security v. Regents of Univ. of Cal., No. 18-587 (U.S. June 18, 2020) (Roberts, C. J., delivered the opinion of the Court, except as to Part IV. Ginsburg, Breyer, and Kagan, JJ., joined that opinion in full, and Sotomayor, J., joined as to all but Part IV. Sotomayor, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Alito and Gorsuch, JJ., joined. Alito, J., and Kavanaugh, J., filed opinions concurring in the judgment in part and dissenting in part.).

[31] Id., slip op., at 17 (internal quotation marks omitted) (“The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted.”).

[32]  If inclined, the United States Secretary of Commerce may include a citizenship question on the 2030 census.  See Department of Commerce v. New York, No. 18-996 (U.S. June 27, 2019).  Much the same, the Department of Homeland Security may rescind DACA.  Justice Thomas’ dissent urged rescission based on DACA’s unconstitutionality.

[33] Bostock v. Clayton County, No. 17-1618, slip op. at 2 (U.S. June 15, 2020).

[34] Id., slip op., at 3 (Alito, J., dissenting).

[35] Id., slip op., at 2 (Gorsuch, J.).

[36] Id., slip op., at 2-3 (Alito, J., dissenting).

[37] Id., slip op., at 3 (Alito, J., dissenting) (“The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled.”).

[38] Espinoza v. Montana Dept. of Revenue, No. 18-1195 (U.S. June 30, 2020) (Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Alito, J., and Gorsuch, J., filed concurring opinions. Ginsburg, J., filed a dissenting opinion, in which Kagan, J., joined. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined as to Part I. Sotomayor, J., filed a dissenting opinion.).

[39] Id., slip op., at 5 (Roberts, C.J.).

[40] Id., slip op., at 2-3 (Alito, J., concurring) (“Named after House Speaker James Blaine, the Congressman who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, particularly Catholic immigrants.”).

[41] See generally Legal Docket. Episode 4: Religious Education Discrimination (August 18, 2020) (podcast).

[42] Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (U.S. July 8, 2020) (Alito, J., delivered the opinion of the court, in which Roberts, C. J., and Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.).

[43] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431 (U.S. July 8, 2020) (Thomas, J., delivered the opinion of the court, in which Roberts, C. J., and Alito, Gorsuch, and Kavanaugh, JJ., joined. Alito, J., filed a concurring opinion, in which Gorsuch, J., joined. Kagan, J., filed an opinion concurring in the judgment, in which Breyer, J., joined. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined.).

[44] See Espinoza, slip op., at 1-3, 8-9 (Thomas, J., concurring) (“The Free Exercise Clause, although enshrined explicitly in the Constitution, rests on the lowest rung of the Court’s ladder of rights, and precariously so at that. Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended.”).

[45] See Fulton v. City of Philadelphia, No. 19-123 (Cert. granted) (whether Philadelphia’s, in barring a religious institution from placing children in foster homes because they would not choose homes of same-sex couples, violated the First Amendment).

[46] Seila Law LLC v. Consumer Financial Protection Bureau.  (Roberts, C. J., delivered the opinion of the court with respect to Parts I, II, and III, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined, and an opinion with respect to Part IV, in which Alito and Kavanaugh, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Gorsuch, J., joined. Kagan, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.).

[47] Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting).

[48] U.S. Const., Art. II, §1 (Vesting Clause) (emphasis added).

[49] See also,Hernandez v. Mesa, similarly foreclosing the availability of new Bivens claims without outright overruling Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

[50] The House of Representatives defended the CFPB structure because the Department of Justice agreed with Seila Law firm that the structure violated the separation of powers.

[51] Barr v. American Assn. of Political Consultants, Inc., No. 19-631 (U.S. July 6, 2020) (Kavanaugh, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Alito, J., joined, and in which Thomas, J., joined as to Parts I and II. Sotomayor, J., filed an opinion concurring in the judgment. Breyer, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Ginsburg and Kagan, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined as to Part II.).

[52] California v. Texas, No. 19-840 (Cert. granted) (whether nullifying the Affordable Care Act’s noncompliance penalty renders the minimum-essential-coverage requirement unconstitutional, and, if so, whether that provision is severable).  This case testing the constitutionality of the Affordable Care Act is set for argument on November 10, one week after the election.

[53] Department of Homeland Security v. Thuraissigiam, No. 19-161 (U. S. June 25, 2020) (Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Sotomayor, J., filed a dissenting opinion, in which Kagan, J., joined.).

[54] Id.

[55] Barton v. Barr, No. 18-725 (U.S. April 23, 2020) (Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.).

[56] Nasrallah v. Barr, No. 18-1432 (U.S. June 1, 2020) (Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.); see also Guerrero-Lasprilla v. Barr, No. 18-776 (U.S. March, 23, 2020).

[57] Trump v. Mazars USA, slip op., at 1 (Roberts, C.J.).

[58] Those factors are: (1) the legislative purpose, (2) the scope of the subpoena, (3) the nature of evidence justifying the subpoena, and (4) burdens imposed on the President.  Id., slip op., at 19-20.

[59] Trump v. Vance, slip op., at 1 (opinion of Roberts, C.J.).

[60] Id., slip op., at 21.

[61] Id., slip op., at 20.

[62] Feldman, supra., n.4.

[63] Id., at 23.

[64] Id.

[65] Id.

[66] Id.

[67] Need I mention that these nine unelected jurists have neither the “will” nor “force” to reshape society, only a pen to settle live cases or controversies with?

[68] See, e.g., Bostock.

[69] See, e.g., id. (Alito, J., dissenting); Seila Law (Kagan, J., dissenting); Little Sisters (Ginsburg, J., dissenting); McGirt (Roberts, C.J., dissenting).

[70] See, e.g., New York State Rifle & Pistol Assn. (dismissed for mootness).

[71] See, e.g., Vance (Kavanaugh, J., concurring in judgment, joined by Gorsuch, J.) (approving subpoena of President Trump, who nominated both men).

[72] See, e.g., Regents (APA decision); Little Sisters (same).

[73] See, e.g., June Medical (Roberts, C.J., concurring in judgment) (narrowing Hellerstedt); Espinoza (expanding Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)).

[74] See, e.g., Seila Law (severing provision, not striking down the entire CFPB).

[75] Accord Rucho v. Common Cause, (Roberts, C.J.) (“This Court’s authority to act, . . . is ‘grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.’”).

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