One big piece of news about the end of the Supreme Court's term is that it came without an announcement of anyone's retirement. There is no vacancy, thus we do not face the prospect of any further Trump effort to fill another seat through the remainder of his term.
That's a good thing.
As to the cases, I'd like to have something to say here about five as yet unmentioned. All of them important.
Abortion Rights
I've mentioned before a decision this term that may have helped persuade the evangelical Christian core of the Trump coalition that he isn't delivering for them: the reading of the civil rights act so as to protect gay employees from firings. Here we reach another decision that might contribute to that disenchantment. And everything that weakens the Orange Dynast politically is at this moment a good thing.
Abortion rights survive.
https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf
The case this session was June Medical Services v. Russo.
In June 2014, the state of Louisiana had six clinics providing abortions. In that month, the legislature passed a law -- modelled after a Texas statute the constitutionality of which was itself then on appeal to the SCOTUS -- that said that doctors cannot perform abortions unless they have admission privileges at a hospital within 30 miles of the clinic. The purported idea was to make it easy for a patient, in the event that something goes wrong during a procedure, to be rushed to the nearest hospital and admitted. But no one doubts, and the drafters of such statutes generally admit, that the real point is to force such clinics to close and undermine the market.
In June 2016, the US Supreme Court decided the Texas case. It said that the restrictions at issue placed an undue burden on the women seeking an abortion and thus were unconstitutional given the privacy right protecting procreative decisions. Justice Breyer wrote for the majority, "We have found nothing in Texas' record that shows that, compared to prior law (which required a 'working arrangement' with a doctor with admitting privileges) the new law does anything to advance the legitimate interest of Texas in the protection of the patient's health.
Since then, though, Donald Trump has made two new appointments, Gorsuch in 2017 and Kavanaugh in 2018. Gorsuch filled the empty Scalia seat, which was empty at the time of the Texas decision, Whole Women's Health. Even more important for our count, Kavanaugh replaced Anthony Kennedy. If Gorsuch and Kavanaugh both voted in favor of the Louisiana law, and the three Justices who had voted that way in dissent in 2016 voted that way again, then the vote would be at least 5 to 4 in favor of the law, in favor then of overturning Whole Women's Health on no basis other than the appointment arithmetic.
But things don't work that way, and it is always good to have that point confirmed. Roberts, the Chief Justice, who voted for the Texas law in dissent in 2016, nonetheless voted to strike down, because he respects the court's own recent precedent.
As Roberts wrote in a concurring opinion in this year's case, June Medical Services v. Russo, "for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the [earlier] case was decided correctly."
Church and State
Things did not go so well for the doctrine of stare decisis as to the "establishment of religion" clause of the first amendment, what is generically known as the "separation of Church and State." The key addition to that body of doctrine this year was Espinoza v. Montana.
https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf
I ought to admit, in light of what I just said about June Medical, that Epinoza is a decision that could have been predicted on the basis of one's knowledge of who appointed the Justices now on the bench.
A general point about ideology. Conservative Republicans often argue that the prohibition on "establishment of religion" should be understood quite narrowly, and that it certainly does NOT imply a general principle of the separation of Church and State, which they regard as a myth and a harmful one. They would, at their most consistent anyway, interpret the "establishment of religion" language simply to mean that governments cannot, say, declare that Episcopalianism is the true faith, and impose a punishment on failure to attend Episcopal Church services.
Some would go further, and say that the the establishment clause should never have been incorporated into the 14th amendment, and that this incorporation should as soon as feasible be reversed. Thus, Utah should be allowed to say officially that Mormonism is the true faith. Massachusetts might say the same about Unitarianism. And so forth.
In Espinoza, the court rules not only that Montana can -- without violating the establishment clause -- but that in the context at issue it must -- due to the free exercise clause -- grant tax credits to those who donate to organizations which, in turn, award students scholarships to religious schools. Tax credits to donors is a somewhat indirect method of subsidy, but so far as I understand the decision, it would not be different had to system of subsidy been more direct.
The Court reached this conclusion with five votes, and they are the votes you would expect: Thomas, Alito, Roberts (each nominated by somebody named Bush), Gorsuch, and Kavanaugh. Thomas filed a concurring opinion, joined by Gorsuch, complaining that the other three in the majority here don't go far enough, because those other three accept incorporation.
Tension Resolved?
Here is a Big Picture observation (incorporation aside). There has long been a tension between the judicial application of the "free exercise" clause on the one hand and the "establishment" clause on the other. "Free exercise" means at core that the legislature should not punish people for disfavored religions, or secular worldviews either I would propose. "No establishment" means at core that the legislature should not bestow benefits upon people or associations for favored religions or worldviews. Between the two of them, that may be taken to mean neutrality is required.
BUT ... with the Leviathan state well entrenched, neutrality is virtually impossible. It is at best an ideal. In application, somebody gets helped and somebody gets hurt, directly or indirectly or both. Hence the tension. Montana and other recent cases indicate that the tension has been resolved in favor of free exercise. It is more-or-less okay now for the legislature and regulators to have favorites, though they are still prohibited from visiting punishments for not being among the favored. There can be favored and non-favored, but there can't be disfavored.
That seems to be the new rule, insofar as there is a new rule. We'll soon enough discover that it cannot be sustained, and perhaps non-establishment shall win its innings again as the long game continues For now, though, all is free exercise.
One of the cases the court decided on the penultimate day of this term, Our Lady of Guadalupe School v. Agnes Morrissey-Berru dramatically confirmed such a Big Picture view of Montana. In Our Lady of Guadalupe the court voted in a more lopsided way than one might have imagined, 7-2, to expand the ministerial exemption to employment discrimination laws.
The court's opinion was written by Justice Alito, a nominee of the younger Bush. He was joined by the other Republican nominees on the Court and by both Stephen Breyer and Elena Kagan.
Free Speech and Calling the Tune
Late this term, the Supreme Court found, in AID v. Alliance for Open Society, that Congress is entitled to limit the funding of foreign nongovernmental organizations involved in public health initiatives around the world to those organizations that are willing to avow their opposition to prostitution and sex trafficking, even when the foreign nongov organizations excluded from funding for not making that avowal are affiliated with US based organizations.
This became a pressing issue seven years ago, when the same court held that the same policy avowal cannot be demanded of US based beneficiaries themselves. It is not a case of "he who pays the fiddlers bears the tune." Anyone who loves liberty must be glad that THAT is not the rule, because we are asymptotically approaching a situation in which Uncle Sam is paying every fiddler of significance. It is good that Uncle Sam does not get to demand every tune.
Further, commanding someone to speak in a certain way is a disreputable thing to do, (even criminal suspects are told they have a right to remain silent!) and demanding speech of a specific sort seems quite on a par with telling someone to shut up. Sometimes, required speech is upheld as a matter of law (as when cigarette companies are required to include the Surgeon General's warning on their packaging.) But that is a rare situation.
Those points made: there is also a general legal principle to the effect that foreigners do not possess first amendment rights. This case involved an effort to extend the freedom acknowledged for US based organization to legally independent foreign based affiliates. And that, for the court, was -- to reuse a phrase we used in part one of this discussion -- a bridge too far.
https://casetext.com/case/agency-for-intl-development-v-alliance-for-open-society
Finally, I will say a few words about a decision in which the court struck down a distinctive feature of a controversial agency, the Consumer Financial Protection Bureau.
Senator Warren's Baby
Elizabeth Warren, then a Harvard Law professor, proposed a CFPB in 2007, at a time when the markets for mortgages and mortgage derivatives were roiling, but while various august bankers, private and central, were re-assuring the equity markets that the trouble was "contained."
Others had proposed similar ideas before, but Warren's was fortuitously timed. She was arguing for a new agency aimed at policing unscrupulous practices in the marketing of securities and financial services, just as the the subprime mortgage crisis rolled through public consciousness. Over the course of a year subprime troubles morphed into broader market unrest and, in the autumn of 2008, a global financial crisis. The outgoing Bush administration got Congress to approve a Troubled Asset Relief Program, and Congress created its own Oversight Panel for this TARP. That panel hired Professor Warren to head its staff.
While both the program and that panel went about their work, Congress also took under advisement the imperative of regulatory reform. In 2010, President Obama signed a bill that, among much else, created the CFPB. He then appointed Warren a Special Advisor to the Secretary of the Treasury for the purpose of getting it set up. He didn't nominate her its first director because the Republicans were threatening a filibuster. Nonetheless, the CFPB was seen as very much her baby.
Warren, as you likely know, ran for Senator in 2012, as Obama was running for and winning re-election. I understand that there are Wall Street pooh-bahs who are worried that, should the Democrats take control of the US Senate in January 2021, Warren will be the next chair of the Banking Committee. Serve them right. Let them worry. They are essentially the same pooh-bahs who kept telling us the subprime problems were contained in the later months of 2007.
I'm not a fan of the government's layering of new regulatory systems on the old, and I don't think this either precludes or mitigates periodic crises. Nor is the absence of a sufficient number of layers in financial regulation the cause of crisis. As I have explained at book length, the cause of the last century or so of crises in the US is the volatile monetary policy embodied in the Federal Reserve.
Still, the pooh-bahs are jerks and if they are worrying about Warren: good one, karma.
What Was Wrong With the CFPB?
https://www.supremecourt.gov/opinions/19pdf/19-7_n6io.pdf
The case in which we're interested is captioned Seila Law LLC, v. CFPB. Seila is a law firm in California that provides debt relief services. The CFPB has rules limiting the telemarketing of such concerns and it was investigating Seila for allegedly having violated them. The agency had demanded pertinent documents from the law firm pursuant to this investigation and the law firm said: "screw you, you aren't a proper agency at all" or words to that effect.
Seila maintained that the mandated structure is designed to limit the President's authority over it. There is only the one director, who has a term of five years (thus necessarily outlasting a single term of the appointing president) and who cannot be fired except "for cause." This limits the president's own responsibility for and ability to see to it that the laws are faithfully executed. This in turn means that the CFPB is a tool of the legislature exerting executive power, and a violation of the principle of the separation of powers.
The Supreme Court, via a Roberts opinion, struck down the removal protection of the CFPB. But it did not abolish the CFPB as an agency. The opinion said that there is no reason to believe that Congress when it was drafting the Dodd-Frank Act would have preferred no CFPB to a CFPB with more effective Presidential supervision. So it struck down the directors's removal protection, left the CFPB in place, and ended up with no resolution to the underlying controversy about its discovery demand from the Seila law firm, which is to be addressed by the court below on remand.
The opinion reeks of end-of-term haste.
But it does seem to speak to the broader issue of the severability of provisions within a complicated legislative structure. This court's bias seems to be in favor of allowing severance: that is, if a bill mandates A,B, and C, and the court finds that it must strike down C, it prefers to leave A and B in place where possible.
And that observation ends our reckoning of another term in the life of this august institution. Next term the court will take up a new Obamacare case, in a situation where this permissive attitude toward severability will be of great importance.
StrictionBP scam reviews Angledale
ReplyDelete