Big Monday 2017: Here’s Gorsuch!

Traditionally, the last Monday in June is the last day of the Supreme Court’s Term for a given year. It’s also traditionally when the cases with the highest political profiles are decided. This year, Big Monday gives us a single big case, and most of the action happens on, or off, of another document called the “Order List.” This is usually something that gets shunted off to the side in media coverage. It consists of grants or denial of review for cases offered up for the next term, and summary disposition of other cases.

This year, we have one big case, and a bunch of things to note on the Order List. Because I’m pressed for time (I was in court all morning, and need to prepare for a client meeting in the afternoon) I’m going to be very, very brief in all of this so I beg your indulgences in advance if I gloss over or miss something important. Also forgive me if there are some errors and typos — I’m just putting this out there in a first draft to get discussion going.

The big case is Trinity Lutheran Church of Columbia, Inc. v. Comer. The basic facts are that a church run by a church in Columbia, Missouri sought to compete for a state subsidy to purchase a recycled-rubber surface for its playground. Article I, Section 7 of the Missouri Constitution provides:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher hereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Citing this section of the state Constitution, the grant application was excluded from competition; based on other criteria, it appears that this grant application would have qualified for one of the competitive awards other than this law. So the Church challenged the law, on Equal Protections and Free Exercise grounds. I predicted that the church would win, on Equal Protections grounds. I was wrong. The church won on Free Exercise grounds, and the Court never addressed the Equal Protections arguments at all, beyond blurring the intellectual ground between them by using Church of Lukimi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520, 533, which stated that the Free Exercise Clause “protect[s] religious observes against unequal treatment.”

The case has a few interesting notes to it. First, the vote split. Chief Justice Roberts wrote the majority decision, joined by Justices Kennedy, Thomas, Altio, Kagan, and Gorusch. You could fairly easily have predicted Justice Gorsuch joining this majority based on what we learned of his jurisprudence during his confirmation. But what’s Justice Kagan doing in there, siding completely and silently with her more conservative Brethren? Justice Breyer concurred in part of the reasoning and in the result. Only Justices Ginsberg and Sotomayor dissented; Sotomayor has the dissenting opinion. So what I read here is that the facts of this case cleaved the “liberal” bloc of Democratic-appointed Justices, probably due to the highly sympathetic plaintiff and the small stakes of the matter at hand. Justice Breyer’s concurrence notes that the subsidy program itself is totally secular and “…there is [no] administrative or other reason to treat church schools differently” than private secular or public schools, and he thought that brought Free Exercise into play. Sotomayor’s dissent would have held that any direct governmental assistance to a religious institution must come “with assurances that public funds would not [ever] ¹ be used for religious activity, despite the religious nature of the institution.” (Slip op., dissent of Sotomayor, J. at 5).

Most interesting to me was Justice Clarence Thomas’ concurrence. Baked into Justice Thomas’ opinion is the simple assumption that the Free Exercise Clause applies to Missouri. Which would mean that it had been Incorporated by the Fourteenth Amendment. In the past, Justice Thomas has suggested that no such thing can happen, because in Elk Grove Unified School District v. Newdow (2004) 542 U.S. 1, Justice Thomas concurred at length arguing that the Establishment Clause of the First Amendment cannot logically be incorporated to the States because its raw text limits the power of Congress alone. I did not understand in 2004 when the opinion was announced, and I do not understand now, how the phrase “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” can possibly apply to only Congress when it comes to an Establishment but to all levels of government when it comes to Free Exercise. Part of that may be my own peculiar concept that both of these clauses aim at describing the same right (with the concept of a “right” defined as a limitation on the power of the government), a right of governmental non-involvement in religious matters, which is what leads me intellectually to embrace the concept of Endorsement as the means by which a governmental overstep in the realm of religion may be identified, see Lynch v. Donnelly (1984) 465 U.S. 668, 687-688, O’Connor, J., concurring (“The … more direct infringement [of the Establishment Clause] is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.”). In 2017, I feel a bit be a lone wolf howling at the moon on that point; certainly today feels that way. Justice Thomas’ inconsistency on First Amendment issues has been the subject of some scholarly analysis already, but I’ll just note here that it superficially appears that Justice Thomas does not want to incorporate the First Amendment, except when he does. Ooh it makes me so mad.

Not yet decided are two immigration cases: first, there’s Jennings v. Rodriguez, concerning bond hearings for aliens seeking to enter the United States who are detained upon attempted entry, when those detentions last longer than six months. Also, Sessions v. Dimaya involves a facial challenge to 18 U.S.C. § 16(b)‘s definition of a “crime of violence” as being void for vagueness. Both cases were orally argued months ago, before Neil Gorsuch was confirmed to the High Court; it could be that right now the vote count is 4-4, so Court may be looking to delay decisions until next Term to allow Justice Gorsuch and his team to review the merits, or maybe ask for a new oral argument and/or circulate a request for supplemental briefs on some point that Gorsuch finds important to decide the cases.

Now, on to the Order List. Which is uncharacteristically fascinating today.

I begin by noting in passing that the very first Order of the day is a 5-4 order in Johnson v. Alabama, vacating a criminal conviction for misapplication of Brady v. Maryland (a case dealing with prosecutorial suppression of evidence). The Chief Justice, and Justices Thomas, Alito, and Gorsuch, ² all would have denied certiorari and let the conviction stand. Very odd to see this sort of split, with a written dissent, on an Order, although it’s easy to see why it moves this way — four Justices are enough to grant certiorari, which is what happened here.

Second in Pavan v. Smith (starting at page 13 of today’s Orders) the Court, per curiam, ordered the state of Arkansas to begin listing both members of a same-sex couple having a child as the parents of that child on birth certificates. Previously, the state had only listed a birth mother, citing Arkansas Code 20-18-401(e) (“For the purposes of birth registration the mother is deemed to be the woman who gives birth to the child.”) But if you go to page 18 of the Order List, you’ll see a dissent from this per curiam opinion by Justice Gorsuch, joined by Justices Thomas and Alito, arguing that since the State of Arkansas recognizes full parental rights for the same-sex non-birth parent, a biology-based vital statistics regime is not clearly unconstitutional and therefore should, at least, have been fully briefed and argued rather than decided on a summary basis.

Immediately following that, we see again that same four-Justice bloc, although fissured into two separate opinions, in Hicks v. United States, addressing the effects of Dorsey v. United States on a sentencing under an overturned statute. I’m pretty much with Justice Gorsuch on this opinion: there is no doubt that given that the mandatory minimum sentences were held unconstitutional five years ago, the defendant is quite obviously entitled to a new sentencing hearing. But I find myself charmed by Chief Justice Roberts’ use of the phrase “no-brainer” criticizing Justice Gorsuch’s opinion that the matter could be decided summarily.

A bit later down the order list, there’s a denial of certiorari in Peruta v. California, an unsuccessful facial challenge to California’s prohibition against the open carrying of most firearms. Only two Justices dissented from the denial of certiorari, and the opinion was written by Justice Thomas, but he was joined in that dissent by Justice Gorsuch.

Justice Gorsuch took the time to comment on the denial of certiorari in Bay Point Properties, Inc. v. Mississippi Transportation Commission, too, addressing an issue of limitations of remedy in Takings cases.

Then we have two more marquee-level events. The last thing I’ll note from the Order List is Trump v. International Refugee Assistance Project, which is the companion case to Trump v. Hawaii, and this is the expected petition for certiorari by the Government attempting to defend the second version of President Trump’s “Muslim Travel Ban” order, more properly called “Executive Order 13780.” But going further than that, the Court dealt with the Government’s request to stay the injunctions against implementing the Order. This is formally a bit different, but has the same effect, as “reinstating” the order. And all nine Justices agreed that the injunctions against the Order should be stayed, and the Government allowed to enforce the order, as to people with no personal or professional linkage to the United States. Six Justices voted to keep the injunction in place as to people who have family or business reasons to travel to the U.S., which is the Order of the Court.

Three Justices would have stayed the injunctions in full, effectively reinstating the travel ban in its entirety, until the Court’s final decision on the merits. Can you guess who those three Justices were? (Switch to Mister Rogers voice) I bet you can. (Now switch to beer-commercial-sports-announcer voice.) If you said “Thomas, Alito, and Gorsuch,” you made the right call!

And finally, last week there were rumors aswirl throughout Washington that Justice Anthony Kennedy would announce his retirement from the Court today. He didn’t, and really, no one ought to be surprised by this. And with that, I need to get ready for my client meeting, so enjoy your discussion of what we learned today, particularly about Justice Neil Gorsuch.

1. I added in the “[ever]” in light of the dissent’s discussion of Tilton v. Richardson (1971) 403 U.S. 672 just preceding the quoted sentence.
2. I think I may need to program a text shortcut in my computer for “The Chief Justice, and Justices Thomas, Alito, and Gorsuch” as I suspect I’ll be typing those exact words a lot in the future.