Thus far, SCOTUS has ruled that:
(1) a Catholic adoption agency is within its rights to refuse to certify same-sex couples as foster parents (9-0)
(2) the Affordable Care Act remains (7-2)
(3) college student athletes can receive education related payments (9-0)
(4) a high school student is within her rights to spew F-bombs and post vulgarities on social media for being denied a spot on the varsity squad (8-1)
(5) the government cannot force people to allow union recruiters to trespass on their private property (6-3)
(6) Alaska Native Corporations (ANCs) do qualify as federally-recognized tribal governments, and thus are eligible to receive CARES funds (6-3)
(7) Only a plaintiff concretely harmed by a defendant’s violation can seek damages against the defendant in federal court (5-4)
(8) a company can sue a state to secure land-use rights for its projects; the state isn’t protected by sovereign immunity just because it has federal approval for the project (5-4)
(9) illegal immigrants who reentered the U.S. without authorization after already having been deported are not entitled to bond hearings (6-3)
(10) Arizona’s voting restrictions are not racially discriminatory (6-3)
I agree with rulings (1), (3), (4), (5), and (9), and not with rulings (2), (6), (7), (8), and (10). Details below.
(1) Fulton v. Philadelphia (6/17/21). The decision: A Catholic adoption agency is within its rights to refuse to certify same-sex couples as foster parents. Written by Roberts for a 9-0 ruling.
— It’s the correct decision but interpreted so narrowly that it leaves the wider question hanging. In this sense it mirrors Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (6/4/18), which ruled that a private baker could refuse to bake a wedding cake for same-sex couples, but only “in this particular case”, because of a technicality. Instead of ruling unambiguously — declaring that business owners cannot be compelled to artistic design, only to provide equal access to whatever products they do make — the justices copped out, saying that the baker in this particular case had been treated poorly by the human rights commission. Gorsuch was the sole justice to face the issue head on in a separate concurrence. Fulton v. Philadelphia repeats the side-stepping maneuver of the wedding-cake ruling. Instead of ruling firmly — saying that non-discriminatory policies still need to make carve-outs for religion and other forms of free expression — Roberts said that Philadelphia’s non-discriminatory policy is not generally applicable “in this particular case”; that the city’s policy was not a “neutral policy”, implying that if the city somehow made it a neutral policy, then “maybe” the city could then refuse to work with Catholic Social Services. Three concurring justices — Gorsuch, Thomas, and Alito — were rightly scornful of Roberts’ correct-but-feeble ruling. [See my full details here]
(2) California v. Texas (6/17/21). The decision: The Affordable Care Act remains. Written by Breyer for a 7-2 ruling.
— As above, the real issue wasn’t addressed. The justices didn’t decide whether the ACA had been rendered unconstitutional; they simply ruled that neither the states nor the individuals challenging the law had a legal right to sue. The substantive question should have been answered. When Congress eliminated the penalty for failing to obtain health insurance (in 2017), it no longer imposed a tax on individuals who didn’t comply. And if the ACA is no longer a tax, then it is unconstitutional, because that was the whole premise of the ruling of National Federation of Independent Business v. Sebelius (2012): Obamacare was Constitutional precisely because it was a tax. I believe the two dissenters, Gorsuch (the best justice on the court) and Alito (the worst), were correct: the change in 2017 to the penalty transformed the health care mandate into a “standalone command” to buy health insurance, which is something that Congress has no power to do. Without the mandate, the entire Affordable Health Care Act must fall. It’s time indeed for Obamacare to go away. Once again, the justices (especially Roberts) didn’t want to get their hands dirty and take the issue head on.
— It’s worth citing Alito’s dissent (which Gorsuch joined), as it’s a rare case of him showing juridical intelligence: “The Court is presented with the daunting problem of a ‘tax’ that does not tax. Can the taxing power, which saved the day in the 2012, sustain such a curious creature? In 2017, Congress reduced the tax imposed on Americans who failed to abide by the individual mandate to $0. With that move, the slender reed that supported the decision in 2012 was seemingly cut down, but once again the Court has found a way to protect the ACA. Instead of defending the constitutionality of the individual mandate, the Court simply ducks the issue and holds that none of the Act’s challengers, including the 18 States that think the Act saddles them with huge financial costs, is entitled to sue. Can this be correct? The ACA imposes many burdensome obligations on States in their capacity as employers, and the 18 States in question collectively have more than a million employees. In prior cases, the Court has been selectively generous in allowing States to sue…” [See further here]
(3) National Collegiate Athletic Association. v. Alston (6/21/21). The decision: College student athletes can receive education related payments. Written by Gorsuch for a 9-0 ruling.
— The ruling allows college athletes to receive education-related benefits such as graduate school tuition, opportunities to study abroad, computers, tutoring, and achievement awards for their academic progress. In other words, it allows more money from a billion-dollar industry to go to the players themselves. College athletics get filthy rich from the sales of tickets and merchandise plus TV contracts for high-profile sports like football and basketball. But the NCAA has argued that restrictions on student athletes are necessary to ensure they maintain amateur status. The justices called out the NCAA for treating athletes poorly and directing the profits generated by college sports to everyone except the actual players. However, the ruling does uphold the NCAA’s general right to pass and enforce amateur rules — to monitor college athletes’ lives, from where they can and cannot work, to their academic degree progress, to their dietary intake, etc. It was a sound ruling and not surprisingly 9-0.
(4) Mahanoy Area School District v. B.L. (6/23/21). The decision: A high school student is within her rights to spew F-bombs and post vulgarities on Snapshot for being denied a spot on the varsity squad. Written by Breyer for an 8-1 ruling.
— This one is a slam dunk. Of course this girl can vent her bile on social media, because her inflammatory speech took place outside of school hours and away from the school’s campus. There’s no loco parentis at issue here. The school had no business giving her a disciplinary action, let alone suspend her from the team for a whole year. Thomas dissented, in a feeble excursion on loco parentis.
(5) Cedar Point Nursery v. Hassid (6/23/21). The decision: The government cannot force people to allow union recruiters to trespass on their private property. Written by Roberts for a 6-3 ruling.
— In this case, union activists had entered Cedar Point Nursery to recruit farm workers to join the United Farm Workers union. The farm owner wasn’t legally allowed to tell them to leave because of a California law that allows union activists to invade private property for recruitment purposes. This Supreme Court ruling declared that law unconstitutional, and rightly so. The government cannot force people to allow third parties to trespass, even if only for a temporary period of time (aside from a few exceptions, like health and safety inspections, and enforcement of regulations that prevent owners from violating others’ rights). The three dissenters were the liberals — Kagan, Breyer, and Sotomayor — in what is becoming an increasingly alarming trend for liberal justices on property rights issues.
(6) Yellen v. Confederated Tribes of the Chehalis Reservation (6/25/21). The decision: Alaska Native Corporations (ANCs) do qualify as federally-recognized tribal governments, and thus are eligible to receive CARES funds. Written by Sotomayor for a 6-3 ruling.
— I like the end result but disagree with the ruling. The background: there are twelve Alaska Native corporations (ANCs) that were established in 1971 to operate oil and gas services, in order to generate revenue that provides benefits to the Alaska Natives. It’s an arrangement unique to Alaska; in the other states the Native Americans operate their own tribal governments on reservations recognized by federal law. The Indian Self-Determination and Education Assistance Act of 1975 (ISDA) assured that both Native American tribal governments and ANCs were given the self-autonomy to operate as governments for their respective peoples. The Treasury Department reasoned that the ANCs should thus be awarded CARES funds during the Covid-19 pandemic. The Treasury Department, however, was challenged by three Native tribes: the Navajo Nation, the Confederated Tribes of the Chehalis Reservation and the Cheyenne River Sioux Tribe. These Natives asserted that the ANCs were not officially recognized as tribal governments under the language of ISDA, and thus were ineligible to receive any of the CARES funds during the Covid-19 pandemic. (The Natives were obviously concerned that the amount of funds available to them would be diluted.) The majority backed the Treasury Department against the three Native tribes.
— Though my heart lies with the majority ruling, I believe the dissenters (Gorsuch, Kagan, and Thomas) probably have the legal right of it. See Gorsuch’s dissent here: “Our disagreement is simply about applying the plain meaning, grammar, context, and canons of construction to the particular statutory terms before us. As I see it, an ordinary reader would understand that the recognition clause applies the same way to all Indian groups. And if that’s true, there’s just no way to read the text to include ANCs as ‘tribal governments’ for purposes of the CARES Act.”
(7) TransUnion LLC v. Ramirez (6/25/21). The decision: Federal courts lack jurisdiction to hear many class action lawsuits. Only a plaintiff concretely harmed by a defendant’s violation can seek damages against the defendant in federal court. Written by Kavanaugh for a 5-4 ruling.
— Thomas, correctly, wrote a furious dissent and was joined by the three liberals: “TransUnion generated credit reports that erroneously flagged many law-abiding people as potential terrorists and drug traffickers. Yet despite Congress’ judgment that such misdeeds deserve redress, the majority decides that TransUnion’s actions are so insignificant that the Constitution prohibits consumers from vindicating their rights in federal court.” Thomas and liberals are right, this is a bad ruling. Basically the majority usurped Congress’ power to protect victims by authorizing lawsuits when their rights are violated. Because of TransUnion’s sloppy and inaccurate system, victims were denied credit because TransUnion told businesses they were serious criminals. Not only that, but TransUnion didn’t even tell these individuals that the company had flagged them as serious criminals; it declined to provide them with a summary of rights required by law. This class of victims certainly suffered a “concrete” enough harm, according to Congress. The Supreme Court shouldn’t be violating the separation of powers. Thomas blasted the majority for overturning a precedent that goes right back to America’s founding: Congress has always had the power to define legal rights, and federal courts have never required plaintiffs to demonstrate “concrete” injury.
(8) PennEast v. New Jersey (6/29/21). The decision: PennEast Pipeline Company can sue New Jersey to secure land-use rights for its 116-mile natural-gas project. The state isn’t protected by sovereign immunity just because it has federal approval for the PennEast project. Written by Roberts for a 5-4 ruling (3 conservatives and 2 liberals).
— The result is that private companies have more leverage to negotiate with states when they need the state’s public land. It’s a win for private companies who want to put down pipelines or any kind of infrastructure, and a loss for that states who don’t want such private intrusions. The logic of the majority ruling is that PennEast had been properly delegated the power of eminent domain from the federal government, to which by their nature, states had agreed to upon joining the union. I agree with the dissenters that there is a problem with that logic. After the Federal Energy Regulatory Commission approved the pipeline in 2018, PennEast sued to gain access to land owned or partially controlled by New Jersey. A Philadelphia-based federal appeals court said (quite rightly, I think) that, while the law gives companies eminent domain powers, it doesn’t let them sue states to enforce those rights. That appeals court (again, rightly) pointed to the Constitution’s 11th Amendment, which limits the circumstances in which private parties can sue states without their consent. But Chief Justice Roberts rejected those arguments, saying that lawsuits like the one filed by PennEast “do not offend state sovereignty, because the states consented at the founding to the exercise of the federal eminent domain power, whether by public officials or private delegatees”.
— Barrett wisely dissented (joined by Gorsuch, Kagan, and Thomas): “A straightforward application of our precedent resolves this case. Congress passed the Natural Gas Act in reliance on its power to regulate interstate commerce, and we have repeatedly held that the Commerce Clause does not permit Congress to strip the States of their sovereign immunity. Recognizing that barrier, the Court insists that eminent domain is a special case. New Jersey has no sovereign immunity to assert, it says, because the States surrendered to private condemnation suits in the plan of the Convention. This argument has no textual, structural, or historical support. There is no reason to treat private condemnation suits differently from any other cause of action created pursuant to the Commerce Clause.”
— Basically, the majority grounded its argument on the fact that Congress and the States, like the Colonies before them, have consistently authorized private parties to exercise the right of eminent domain to obtain property for mills, roads, and other public improvements. But the question isn’t whether Congress can authorize a private party to exercise the right of eminent domain against another private party. Nor is it whether Congress can authorize a private entity to take state property through means other than a condemnation suit. The question is whether Congress can authorize a private party to bring a condemnation suit against a State, and on that point the majority doesn’t seem to have a legal leg to stand on.
(9) Johnson v. Guzman Chavez (6/29/21). The decision: Illegal immigrants who reentered the U.S. without authorization after already having been deported are not entitled to bond hearings. Written by Alito for a 6-3 ruling.
— Meaning that they are not entitled to be released on bond while waiting to find out if they will be sent back again; they must be detained. The liberals dissented, but I can’t see a basis for it. The majority ruling appears sound.
(10) Brnovich v. DNC (7/1/21). The decision: Arizona’s out-of-precinct policy and restriction against ballot harvesting do not violate the Voting Rights Act, and are not racially discriminatory. Written by Alito for a 6-3 ruling.
— The background: Arizona invalidates ballots that are cast in the wrong precinct, and it also bans ballot harvesting, in which third parties collect and return other people’s ballots in cases of early voting. Many voters, particularly minorities, who vote early used third parties to collect and drop off voted ballots, until 2016, when Republican legislators passed H.B. 2023, which criminalized the collection and delivery of another person’s ballot. The DNC challenged H.B. 2023 as violating Section 2 of the Voting Rights Act and the Fifteenth Amendment because it was enacted with discriminatory intent. It also challenged the restriction against out-of-precinct voting. The restrictions end up disproportionately affecting voters of color, and that they therefore violate the Voting Rights Act. Ballot harvesting, for example, is particularly useful to the state’s Native Indians, because polling places can be far away and mail service isn’t always reliable. The majority denied that Arizona’s restrictions amounts to racial discrimination.
— I believe the liberals (Sotomayor, Kagan, Breyer) were correct to dissent, and that Arizona’s restrictions are effectively discriminatory. And the upshot of this ruling is that states will easily be able to change rules that govern their elections. When you sit this ruling on top of Rucho v. Common Cause (2019) — which ruled that federal courts can’t even consider limits on partisan gerrymandering — this is sure to lead to state-level majorities preserving their power.