The Supreme Court decides two kinds of cases, those that deal with constitutional rights and those that do not. This year’s term, now at the finish line, has produced some blockbuster decisions in both categories. Chief Justice Roberts has been with the majority in practically every instance, and despite the “betrayal” claims of Federalist Society conservatives and others, his credentials as a conservative remain intact. The same can be said for the Court as a whole.
But in any given case, even if you think you know the players’ numbers, you can’t always predict which side they will end up on.
I begin with a decision not to decide. California Governor Gavin Newsom issued an order limiting the number of people in churches and other gathering places. The federal court upheld the order, and United Pentecostal Church parishioners petitioned the Supreme Court for review. Chief Justice Roberts voted with the Court’s four liberal members to deny review on the grounds that in a pandemic, separation of powers principles call for the judicial branch to defer to elected officials. This underappreciated ruling reaffirms that Roberts is a stickler when it comes to whether the Court should weigh in on a subject, as when he led the Court’s refusal a year ago to consider whether political gerrymandering violates the Constitution.
In a surprise decision on June 15, the Court held that the Title VII prohibition against employment discrimination “because of sex” protects LGBTQ employees. This time Justice Gorsuch wrote the opinion, joined by Roberts and the four liberals. There is nothing “constitutional” about the case. The decision turned on the meaning of words used in a federal law, and while the outcome was a happy day for liberals, there is nothing particularly “liberal” about deciding that a law means what it says.
Another example is June Medical Services v. Russo, decided on June 20. By a 5-4 vote, the Court decided that a Louisiana law requiring abortion providers to be affiliated with a nearby hospital is unconstitutional. In so doing, the Court broke no new ground. with Roberts writing that the Court should abide by its decision four years earlier when it struck down a Texas “hospital proximity” requirement nearly identical to the Louisiana law.
Notably, Roberts had dissented in that earlier case, while Justice Kennedy was in the majority. Roberts seems determined to avoid having Supreme Court rulings compared to restricted railroad tickets good “for this day and train only.” Pro-choice advocates breathed a sigh of relief, but even if the outcome is “liberal,” the rationale for the decision is not.
Justice Kavanaugh, Justice Kennedy’s successor on the Court, voted with the minority. You may recall that Maine’s Senator Susan Collins spent nearly an hour on the Senate floor explaining that she would vote to confirm Kavanaugh as Kennedy’s successor, citing assurances that as far as Roe v. Wade was concerned, he thought it was important to follow precedent. The upshot of this year’s abortion decision is that the Court simply agreed with itself, Roberts decided not to vote as he had in 2016, and Kavanaugh apparently forgot what he told Collins about the importance of following precedent.
In the DACA case, Department of Homeland Security v. Regents of the University of California, Roberts again sided with the Court’s four liberals and prevented the Trump administration from taking away the rights of over 700,000 “Dreamers.” This case is a perfect demonstration of what Roberts was talking about at his 2005 confirmation hearing, when he famously testified that a judge’s job, like an umpire’s, is to call balls and strikes. And that is what he did in this case, insisting (as he did last year in the “Census Question” case) that the Government must act rationally and not issue pretextual or arbitrary orders.
So, much of what the Court is now doing is telling the President that his pitches — against crowd limits in the pandemic, against employment protection for anyone who isn’t straight, against a woman’s right not to be unduly burdened in her choice of a doctor, against the rights of Dreamers, and (just hours ago) against his claim of absolute immunity from a state criminal subpoena—aren’t even close to the plate.
But when it comes to constitutional issues such as freedom of religion, the five conservatives still vote as one. In the Espinoza case from Montana, they upheld the right of religious schools to participate in state-funded scholarships. And in Little Sisters of the Poor v. Pennsylvania, they decided that coverage under the Affordable Care Act (Obamacare) does not mean that the Government can require an employer who opposes birth control on religious grounds to provide contraception insurance coverage to female employees. In his opinion for the majority, Justice Thomas went so far as to praise the Little Sisters for their “noble work.” Justices Kagan and Breyer went along with the majority, on narrower grounds, while Justices Ginsburg and Sotomayor did not.
I conclude with the “Faithless Elector” case, one of my favorite decisions this year. The Court unanimously upheld the right of a state to impose penalties on any Electoral College Elector who fails to vote in accordance with the majority vote. This may not be an earthshattering decision (who knows?), and we are still stuck with the Electoral College. But a 9-0 ruling should make everyone smile. I also like the case because, despite his recent posthumous success, Alexander Hamilton did not get his way. In Federalist Paper No. 68, he wrote that Electors should be entrusted with “analyzing the qualities” of anyone aspiring to become President. In her erudite—and funny—opinion for the Court, Justice Kagan says, in effect, that he (and John Jay) may have thought that way, but they didn’t put it in the Constitution, and our national history says that “We the People rule.”