Dem
47
GOP
53
The good news is this Supreme Court term is over. And while the conservative majority further eroded individual rights, empowered religious groups, and expanded executive power, they did not take a hatchet to agency decisions or government structure/authority in the way they did last term.
The real bad news from the Court, however, is the way they have expanded their own power by inserting itself at earlier stages of litigation through, among other things, greater use of the not-so-emergency docket; signaling to certain groups that they will receive more favorable treatment at the Court regardless of the merits of their cases; creating barriers for disfavored groups to get in the courthouse door; kneecapping district courts' ability to use its equity powers regardless of the facts of any particular case; and, worst of all, creating a legal landscape where only six justices know what the outcome will be on any given issue. It's an "I'll know it when I see it" approach from a results-driven Supreme Court, which is generating arbitrary and inconsistent rulings further damaging the public's confidence in the Court, justice and the promise of the fair and unbiased application of the law. They're making law by pretending that they're playing it straight.
Let's start with the less bad decisions from this term and work our way toward the really bad:
Government Structure
The Court largely declined to undercut agency authority even further this term, with one notable exception—the EPA:
Kennedy v. Braidwood Mgmt.: the Court rejected a challenge from certain businesses and individuals to the structure of the U.S. Preventive Services Task Force, which recommends preventive services that must be covered by insurance under the Affordable Care Act. One of those services is HIV prevention medication, which the plaintiffs objected to on religious grounds, claiming that the drug "encourages homosexual behavior... and sexual activity outside of marriage..." The Court reversed the Fifth Circuit and held that the task force's structure is constitutional because members can be removed at will and are appointed and supervised by the HHS secretary, so that they are "inferior" officers as opposed to "principal" officers. As such the Constitution does not require them to be appointed by the president and confirmed by the Senate.
FCC v. Consumer's Research: The Court held that the FCC did not violate the non-delegation doctrine when it contracted with a private entity to provide advice on administering a program to provide free or low-cost phone and Internet to low-income households. The Court declined an invitation to expand the non-delegation doctrine and instead found that Congress had given sufficient guidance and standards to the FCC to operate the program. (This was one of the decisions that got the punditry's hopes up for a more collegial and normal SCOTUS term—oops.)
FDA v. Wages and White Lion Investments: The Court reversed the Fifth Circuit and held that the FDA's decision to deny application to market new e-cigarette products was not arbitrary and capricious.
NRC v. Texas: Non-parties to a Nuclear Regulatory Commission licensing proceeding are not entitled to judicial review of the licensing decision.
Diamond Energy v. EPA: The Court held that fuel producers have standing, or a legal right to sue, to challenge the EPA's approval of California's regulation requiring auto manufacturers to produce more fuel-efficient vehicles. The Court found that the fuel producers' alleged injuries could be redressed by a favorable ruling. (Why the same isn't true in the NRC case above, the Court doesn't say.)
Rights of Individuals
Martin v. U.S.: One of the bright spots this term—the Court held that the Martin family could continue their suit against the federal government for raiding their house by mistake because the agent failed to verify the address. The FBI warrant was for a different house a few blocks away. The father was forcibly dragged out of a closet and handcuffed while the mother and young son watched. An agent saw a piece of mail and realized they had the wrong address. They left abruptly without saying anything, leaving the traumatized family behind. The lower courts had dismissed the suit.
Rights of Religious and Minority Groups
U.S. v. Skrmetti: Tennessee bans hormone therapy and puberty blockers for transgender teens. Plaintiffs brought suit under the Equal Protection Clause of the Fourteenth Amendment, arguing that the law discriminates on the basis of sex because it only applies to transgender teens and so must be subject to strict scrutiny. The Court disagreed and held that the law does not classify by sex but by age and the use of the medication, and so is only subject to the lower standard of rational basis. In other words, the law survives if Tennessee can show that it's rationally related to a legitimate government interest, which is typically a very easy standard to satisfy. The Court held that the democratic process is sufficient to address the plaintiffs' concerns.
Medina v. Planned Parenthood: South Carolina, which receives federal funds for Medicaid, decided to cut off Medicaid funds to Planned Parenthood even though they provide services to Medicaid-eligible patients. Planned Parenthood sued, and the Court held that it does not have standing to bring such a suit. Importantly, the Court did not address the merits as to whether a state can withdraw funds from a specific provider. But the Court closed the courthouse door to private individuals looking to enforce the law in federal court, noting that there are other avenues for plaintiffs to challenge this action: a suit in state court or through an administrative proceeding.
Mahmoud v. Taylor: To our thinking, this is the biggie. First, allow us to indulge in some brief editorializing: Chief Justice John Roberts would have been well-served by assigning this decision to anyone other than Associate Justice Samuel Alito. He is by far the most bigoted and overtly and unapologetically partisan justice on the Court (though Clarence Thomas is a close second). He is the least credible justice on this subject as he makes his contempt for LGBTQ persons clear every chance he gets.
His opinion is full of gross generalizations, unsupported conclusions, assumptions without evidence and misstatements of the facts. He distorts the facts in his opinion to cast teachers and storybooks about fairytales, weddings and common identity crises in the most sinister light possible. But he struggles to turn the innocuous into the insidious. Alito cites this quote as evidence of a plot to indoctrinate children with immoral messages: "The book relates that 'on the two men's wedding day, the air filled with cheer and laughter, for the prince and his shining knight would live happily ever after.'" Or this: "'Bobby and Jamie love each other,' said Mummy. 'When grown-up people love each other that much, sometimes they get married.'" The horror, the horror!
To put this case into context, the legal landscape around public school curricula and conflicts with religious adherents was fairly well-settled. If a law or policy is generally applicable and otherwise valid, an individual is not excused from compliance based on one's religious beliefs. Incidental burdens on religion do not violate the First Amendment and exposure to offensive ideas and messages does not implicate the Free Exercise clause.
But Alito and the majority sidestepped all of that to greatly expand on a case called Yoder, which held that Amish parents were not subject to a law compelling high school attendance. Once Alito had settled on a sufficiently negative narrative, he then searched to identify the violation that "substantially interferes with the religious development of [the] children." After reading and re-reading this decision—for which (L) should be treated to multiple spa days—the asserted violation is a moving target. Alito, at times in the opinion, says that it's the Board's guidance regarding the storybooks that is coercive, even though that guidance is only optional for teachers. At other times it's the books themselves that carry a "normative" message that is at odds with the parents' opposing religious views and that teachers who read these books are conveying a moral message that impressionable children are especially susceptible to. Consider Alito's conclusion about the message of Uncle Bobby's Wedding that he decides impedes parents' religious freedom if children are exposed to it: "It is significant that this book does not simply refer to same-sex marriage as an existing practice. Instead, it presents acceptance of same-sex marriage as a perspective that should be celebrated." Apparently, conveying a "perspective" that differs from some students' religious views violates the First Amendment now.
In these situations, sometimes it's helpful to go from the bottom to the top (ooh, Alito would probably be offended by that phrasing...) When one does that, the breadth of this opinion is clearer. The Court holds that "the Board's introduction of the 'LGBTQ+-inclusive' storybooks, along with its decision to withhold opt outs, places an unconstitutional burden on the parents' rights to the free exercise of their religion" and that the parents are entitled to a preliminary injunction. "Specifically, until all appellate review in this case is completed, the Board should be ordered to notify them in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction." (emphasis added)
The Court doesn't identify or define what would constitute "any other similar book." Does a book on evolution qualify? Or, as Associate Justice Sonia Sotomayor's dissent wonders, what about books on women's history that showcase a woman's accomplishments outside of marriage? The dissent helpfully suggests that the Court has created a new test called the "very real threats" test. Like obscenity, the Court "will know it when it sees it." The rest of us just have to guess.
Setting aside the obvious subjectivity of what constitutes a moral or immoral message and whether a certain activity necessarily imposes those messages on kids, this new test that Alito sets out is an ever-moving target that no one will know how to hit. And we suspect that ambiguity is very much by design. And though this case is at the preliminary injunction stage and only applies to these parent plaintiffs in the Maryland school district, it is hard to see how this doesn't ripple out nationwide. The Court suggests that individual lessons or even aspects of a lesson are sufficient to trigger an opt-out requirement if a potentially offensive message is conveyed. Sotomayor is right that the end result, as it is with any overly broad and vague law, will be to chill any lessons, discussions or books that include LGBTQ characters or story lines. Every book will feature only straight characters and stereotypical gender roles. How soon before we have a lawsuit claiming a violation of the establishment clause? Isn't the government endorsing religion if every instruction must adhere to someone's religious beliefs? The majority doesn't concern itself with that minor detail.
Finally, it's important to note that the preliminary injunction only applies to these parents and not non-parties, as the Supreme Court has just held that "universal" injunctions are not permitted. So, unless other parents want to bring a class action lawsuit, the school district can minimize the disruption and expense of this injunction by limiting any opt-outs to the plaintiffs only.
That's it for this term, though the John Roberts World Tour will be back on the first Monday in October (plus, there will be special appearances courtesy of the shadow docket). (L)