The November 2020 AJEI virtual meeting was a record-breaking event with over 2000 attendees from five of the seven continents of the world.
Although many attendees missed the camaraderie of an in-person conference, the virtual presentation by Dean Erwin Chemerinsky, Dean of the Berkeley School of Law, was the highlight of the event. Dean Chemerinsky, one of the most eminent constitutional scholars in the county, often appears before the U.S. Supreme Court. He is also a frequent lecturer and the author of eleven books on the law.
The following is a recap of Dean Chemerinksy’s presentation of the Supreme Court’s most important civil decisions in the October 2019 Term.
Dean Chemerinsky began by pointing out that this last term differed from all other terms in many ways. First, the Court decided only fifty-three cases with opinions after briefing and oral argument ─ the fewest since 1862.
In response to the COVID-19 pandemic, the Court cancelled oral arguments in March and April. It was the first cancellation of a month of oral arguments since the Spanish flu in October 1919. Last term was also the first for telephonic oral arguments. Telephonic oral arguments have continued this fall and are expected to continue well into 2021.
Also, after many years of resisting calls to broadcast arguments, the Court broadcasted live oral arguments, a practice Dean Chemerinsky hopes will continue.
Dean Chemerinsky’s second observation was that last term the Supreme Court was truly the John Roberts Court. Chief Justice Roberts was in the majority in 97% of the decisions and assigned the most important opinions to himself. The Chief dissented only twice, in two criminal cases.
Last term, Chief Justice Roberts was the ideological center of the Court, replacing the retired Justice Anthony Kennedy as the swing justice. With four justices on the left, and four on the right, Chief Justice Roberts was the ideological middle. Now, with Justice Barrett on the Court, he is no longer the swing justice.
The Dean’s third observation touched on the replacement of Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett. Last term, of the fifty-three rulings, there were fourteen 5-4 decisions. In ten of the fourteen, the majority was Roberts, Thomas, Alito, Gorsuch, and Cavanaugh. If Justice Barrett had been on the Court instead of Justice Ginsburg, the decisions would have likely been 6-3 instead of 5-4, but the outcome would have been the same.
But in two of the 5-4 decisions, the majority consisted of Justices Ginsburg, Breyer, Sotomayor, Kagan, and Roberts. In those two cases, involving abortion and DACA, having Barrett on the Court instead of Ginsburg would have likely changed the outcome. With Ginsburg gone, it will be much harder for the remaining three liberal justices to get the five votes needed for a majority.
Dean Chemerinsky said that the most significant fact of this term is its effect on the future of the Court. The appointment of Justice Amy Coney Barrett, who is 48-years old, will likely change the Court for a generation. If Justice Barrett, like Justice Ginsburg, remains on the Court until she is 87, she will be a justice until 2059. The other conservative justices will also likely be on the Court for many years, which virtually guarantees a conservative bench for a decade or two, maybe longer.
June Med. Services LLC v. Russo, 140 S. Ct. 2103 (2020), was a challenge to a Louisiana law that required doctors performing abortions to have active admitting privileges at a hospital no more than thirty miles from where they perform abortions.
In a 5-4 decision, the Court held that the Louisiana law was unconstitutional because it unduly burdened abortion access. The Court held that it was bound by its decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), which held that a virtually identical Texas statute was unconstitutional.
Dean Chemerinsky noted that June Medical Services was the fifth time since joining the Court in 2005 that Chief Justice Roberts voted to strike down an abortion restriction. In his concurring opinion, Justice Roberts noted that he dissented in Whole Women’s Health because he believed, and continues to believe, that the decision was wrong. Justice Roberts nevertheless agreed that the Court should apply stare decisis and follow Hellerstedt.
Some people have questioned whether Justice Roberts’s concurring opinion signals that he is likely to follow precedent and vote to uphold Roe v. Wade and Planned Parenthood v. Casey. Dean Chemerinsky’s view is that regardless of Justice Roberts’s position, there are now five votes to overrule Roe and Casey.
Dean Chemerinsky believes that Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), was one of the most important decisions of the term. In a 6-3 decision, the Court held that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), prohibits discrimination against gay, lesbian, and transgender individuals on the basis of sexual orientation and gender identity.
Dean Chemerinsky opined that the decision is important because only about half of the states have laws preventing discrimination based on sexual orientation or gender identity. There are also over a hundred other federal laws that prohibit discrimination based on sex. Those laws will now likely be construed to prohibit discrimination based on sexual orientation and gender identity.
He also said that there will probably be more litigation over what happens if the employer has a religious objection to employing a gay, lesbian, or transgender employee. That issue was left open in Justice Gorsuch’s majority opinion but was emphasized in Justice Alito’s dissent.
Finally, Dean Chemerinsky raised the constitutional implications of Bostock. To date, the Court has held that intermediate scrutiny equal protection analysis applies to sex discrimination, but rational basis scrutiny applies to sexual orientation. If sex discrimination now includes sexual orientation and gender identity, must existing laws addressing those issues now be given intermediate scrutiny?
Another civil rights case, Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009 (2020), was an action in which Dean Chemerinsky represented Byron Allen, an African American owner and operator of cable television channels. Comcast refused to carry his programming. Allen sued under 42 U.S.C. § 1981, which prohibits race discrimination in contracting.
The Supreme Court held that in a race discrimination action under Section 1981, a plaintiff must allege in the complaint and prove that race was the “but for” reason for the denial of the contract. It held that Allen did not meet that standard.
Dean Chemerinsky said that the case is important because it creates a standard that applies in all civil rights cases unless Congress specifically declares otherwise. He also noted that “but for” causation is much harder to prove than showing that race was a motivating factor.
Fifty years ago, in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court held that an individual could bring a Fourth Amendment claim against federal agents for unlawful arrest and search.
But in every Bivens case decided since 1980, the Supreme Court has narrowed the scope of Bivens liability. It did so again in Hernandez v. Mesa, 140 S. Ct 735 (2020). The case arose out of a tragic situation. A U.S. border patrol agent in El Paso, Texas fired a shot across the U.S.-Mexico border that struck and killed a teenage boy. The boy’s parents sued the border patrol agent under Bivens.
In a 5-4 decision, Justice Alito, writing for the Court, concluded that Bivens liability is disfavored and should not be expanded. Also, because the case involved foreign policy issues, the federal courts should not intervene. Dean Chemerinsky views Hernandez v. Mesa as just the latest in a long line of cases that chip away at Bivens.
COVID-19, the Election, and the Constitution
The Court decided several COVID-19 and election cases without full briefing and oral argument because they arose as motions filed on the Court’s shadow docket.
The case Dean Chemerinsky cited to illustrate the most important principles was Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020). In RNC, five days before an election, a district court judge in Wisconsin extended by six days the deadline for the receipt of absentee ballots. The Supreme Court reversed, citing Purcell v. Gonzales, 549 U.S. 1 (2006) (per curiam), which stands for the proposition that the federal courts should not change the rules of an election shortly before the election.
Religious Challenges to State Closure Orders
The Court addressed two religious challenges to governors’ closure orders. The plaintiffs in S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), sought to enjoin California Governor Gavin Newsom’s Executive Order aimed at limiting the spread of COVID-19. The Order limited attendance at places of worship to no more than 100 people or 25% of the building’s capacity. The Court declined to enjoin the Executive Order.
In a concurring opinion, Chief Justice Roberts stressed the need for great judicial deference toward the government’s efforts to stop the spread of a communicable disease. He stated that so long as the government’s action is reasonable, it should be allowed.
Dean Chemerinsky believes that South Bay Pentecostal Church is the most important decision involving COVID-19 and strongly recommends that judges and lawyers read Chief Justice Roberts’s succinct opinion.
Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020), involved a religious institution’s challenge to Nevada Governor Steve Sisolak’s closure order. Again, the Court deferred to the state and upheld the restriction. But Justices Alito, Gorsuch, and Kavanaugh each wrote dissents highlighting the inconsistency in Nevada’s decision to severely limit attendance at religious services while simultaneously allowing thousands of patrons to visit casinos and other commercial establishments.
DACA, the Deferred Action for Childhood Arrivals program, defers for two years the deportation of certain children of illegal immigrants who are current or former students, are serving in the military, or were honorably discharged. Approximately 700,000 individuals have benefited from DACA.
During the Trump administration, the Acting Secretary of the Department of Homeland Security (“DHS”) terminated the DACA program. The action prompted many challenges. Federal district courts in San Francisco, Washington D.C., and New York held that President Trump’s actions violated the Administrative Procedure Act (“APA, 5 U.S.C. § 551 (1946)
In Dep’t. of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020), the Court held 5-4 that DHS’s rescission of DACA violated the APA. In an opinion by Chief Justice Roberts, the Court held that the APA requires that an administrative action not be arbitrary, capricious, or unreasonable, and there must be an articulated reasonable explanation for the government’s action, both of which were lacking in this instance.
The Electoral College
Chiafalo v. Washington, 140 S. Ct. 2316 (2020), addressed the question of “faithless electors.” The issue was whether electors may vote their conscience, or whether they must vote as the state directs. In an opinion by Justice Kagan, the Court held 9-0 that states may prohibit faithless electors because electors are agents of the state and the state may proscribe how they vote.
Free Exercise of Religion
Dean Chemerinsky stated that, in his view, the Free Exercise cases were among the most important cases of the term. He believes that “we are in the midst of a major sea-shift in the Supreme Court with regard to the issue of religious freedom.”
The Dean noted that for many years, the Court adopted Thomas Jefferson’s view that the Establishment Clause creates a wall that separates church and state. Today, however, a majority of the Justices reject the idea that there is a wall separating church and state. They believe that the government violates the Establishment Clause only when it coerces religious participation.
Three cases last term touched on religion. Espinoza v. Montana Dep’t. of Revenue, 140 S. Ct 2246 (2020), arose out of a Montana program that allowed tax credits for donations to organizations awarding scholarships for private school tuition. To reconcile the law with the Establishment Clause of the Montana Constitution, the Montana Department of Revenue promulgated a rule that prohibited tax credits for donations to religious schools. The Montana Supreme Court held that because the law as written allowed deductions for contributions to religious schools, the law violated the Montana State Constitution’s prohibition against direct or indirect aid to religion.
The Supreme Court reversed in a 5-4 decision, with an opinion by Chief Justice Roberts. The Court held that under the Free Exercise clause, where the government confers a benefit on secular institutions, it must confer the same benefit on religious institutions. A state’s failure to do so violates the Free Exercise clause unless the government’s action survives strict scrutiny.
Another religion case, Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020), arose out of employment discrimination claims brought by two lay teachers at Catholic schools. The Court held 9-2 that where lay teachers are teaching or modeling religious behavior at a religious school, it violates the school’s free exercise of religion for the courts to tell the school who it may hire or fire. The teachers therefore could not pursue claims for employment discrimination.
The third religion case, Little Sisters of the Poor Saint Peters & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020), was decided on narrow grounds. The Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 (2010) (“ACA”), requires employers to provide health insurance that includes preventive health care coverage. Under the Obama administration, regulations applying the ACA stated that employer-provided health insurance must include contraceptive care for women.
The Trump administration changed the ACA regulations to state that employers were not required to provide insurance coverage for contraception. The issue in Little Sisters was whether the Trump administration’s regulations complied with the ACA. In a 7-2 decision, the Court held that the Trump administration’s regulations complied with the ACA.
Dean Chemerinsky predicts that the Biden administration will likely change the ACA regulations back to the Obama-era requirements, but he believes that there will be more litigation involving religious challenges to the ACA.
Presidential Immunity from Subpoenas
On July 8, 2020, the Supreme Court decided two cases involving presidential immunity from subpoenas.
Trump v. Vance, 140 S. Ct. 2412 (2020), arose out of a grand jury proceeding in state court in New York investigating whether President Trump violated New York campaign finance laws when he allegedly paid over $100,000 in hush money to Stormy Daniels to prevent her from revealing her relationship with the President.
The grand jury subpoenaed Trump’s accountant, Mazars USA. President Trump went to federal district court to quash the subpoena. In an opinion by Chief Justice Roberts, the Court held that the law has a right to every person’s evidence and that no special showing was needed to subpoena information from President Trump’s accountant. The Court held that the President is neither absolutely immune from state criminal subpoenas nor entitled to a heightened standard of need.
The Court, however, further held that the President could challenge the subpoena as an unconstitutional attempt to influence the performance of his official duties. Also, like any other citizen, the President had the right to challenge the subpoena because it was impermissibly motivated or unduly burdensome.
History buffs may enjoy Chief Justice Robert’s discussion in Vance of the law and facts surrounding the subpoena issued to Thomas Jefferson in United States v. Burr, 25 F. Cas. 187, 192, F. Cas. No. 1494 (No. 14,694) (CC Va. 1807), and other subpoenas issued to Presidents throughout the nation’s history.
The second subpoena case, Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020), involved congressional committee subpoenas that sought financial information from two institutions doing business with President Trump: Deutsche Bank and Mazars USA. Both committees were investigating financial improprieties relating to the 2016 election, specifically the issue of Russian interference.
In a 7-2 decision, the Court held that a President does not have absolute immunity from congressional subpoenas. The Court nevertheless held that Congress’s need for the material should be scrutinized to determine whether the subpoena advances a valid legislative purpose and is no broader than reasonably necessary.
Dean Chemerinsky said he was surprised that the Court was much more deferential to state grand juries in Vance than it was to congressional subpoenas in Mazars. He had expected the Court to be more deferential to congressional subpoenas.
Separation of Powers
The Dodd-Frank Act, 12 U.S.C. § 5301 (2010), created the Consumer Financial Protection Bureau (“CFPB”) to oversee laws that aim to protect consumers. The statute provided for the CFPB to be headed by a single individual, who could only be removed for cause.
In Seila Law LLC v. Consumer Fin. Protection Bd., 140 S. Ct. 2183 (2020), the Court considered whether the provision that the head of the CFPB could only be removed for cause violates the separation of powers. The Supreme Court focused on the broad powers of the executive branch, including the authority to remove those who help the President carry out his duties. In a 5-4 decision, the Court held that the limitation on removal of the CFPB chair violated the Constitution’s separation of powers. Dean Chemerinsky said the opinion leaves open the question of just how far that principle extends.
Once again, Dean Chemerinsky provided AJEI conference attendees with a succinct and informative summary of recent Supreme Court cases.
Reprinted with permission from the Winter 2021 issue of ABA Appellate Issues.