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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. []

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17 thoughts on “Big Monday 2017: Here’s Gorsuch!

  1. I generally dislike Breyer opinions (though not as much as I dislike Kennedy opinions) both when he’s right and when he’s wrong. So I was surprised to see him write something short and sweet, coming to what seemed to me the right conclusion for a simple and sufficient reason, and then shutting up. In some recent opinions, various Justices have tut-tutted their colleagues about saying or doing more than needs to be done or said to decide the case at hand, but then turn right around and spew when they feel the need to get something off their own chests.


    • This one, in particular, seems to fall directly into the “You’re just voting this way because you like the result” accusation that originalists love to drop on standard interpretation school members, as happened like between Gorsuch (there he is again) and Breyer: Breyer is pretty candid about the desirability of the policy result influencing his vote and I think the originalists have a point that the Court should not be creating a rule just because, if they had been legislators with a free hand, would have voted for that result in that one circumstance.

      Trinity Lutheran Church presents a very clear example of this: traditional liberals like Breyer are not going to like the principle of this case when it gets applied to school voucher programs one bit. I suppose Breyer, who is smart enough to see this, figures that the Court will just draw a line when that case comes to bar and it won’t matter whether it’s a principled like or not. Lots of Justices seem to get cynical that way later in their careers. Happened to Brennan, happened to Rehnquist.

      Gorsuch can at least maintain the pretense of being principled. Whether the pretense reflects reality is a different matter. Breyer sets that kabuki mask aside, and I don’t like it.


      • It isn’t easy to be more cynical than I am, but I think you have me beat. As I read Breyer, all he was saying was that if you can send a fire truck to keep the church school from burning down and killing the kids, and everyone seems to agree you can, you can pay for rubber matting in the playground to keep the kids from splitting their skulls when they fall off the monkey bars.
        I have always thought that the Supremes will uphold vouchers anyway, on the theory that — to use NYC examples — if you give money (or its equivalent) to parents who can use it for either Horace Mann or Regis, they, and not the government, are deciding who gets it.


      • My take is that ol’ footnote 3 is exactly the split between the originalists and the traditionalists. The footnote was written specifically to keep the camel’s nose out of the tent, and the non-concur to keep it breathing on the flap.


        • Part of what makes John Roberts so very good at what he does is how he does exactly this, and does it with the minimally-disruptive technique of reducing that difference to a single footnote. Chief Rehnquist would more often than not sacrifice an entire subsection of the opinion, and sometimes even the fulcrum of his own reasoning, in his efforts to get to five.


  2. For those of you wondering who Gorsuch has agreed with the most, the answer is “Thomas”.

    (He agrees with Thomas as much as Kagan agrees with Breyer. Which is 100% of the time.)

    Chart here.


    • I recall an NPR segment during the transition where a legal expert was asked his opinion on who Trump would nominate. He mentioned two people with standard conservative bonafides who he thought even democrats would have a hard time objecting to, and then said something like “but I think Gorsuch would be viewed as a fairly radical choice and really raise some hackles. So that’s my guess.”


  3. There will be a follow-on case from Colorado sometime in the next year or two.

    One of our largest richest school districts has been trying for years to get a scholarship program that allows them to send public funds to private religious schools to support students that live in the district past the state supreme court. The court has tossed them each time based on “plain language” in the state constitution that says no public funds may be given in any manner to a school run by an organization affiliated with a religion.

    For the same reason, religious groups can’t establish charter schools (charter schools in Colorado are funded through the local school district and can’t charge tuition). I expect at least one of the big churches will consider making a run at creating a charter school, being turned down, and then heading to federal court.


  4. You make the call wasn’t beer, it was IBM. (Alcoa fantastic finishes was the better series of spots, for the record)


    • Ah. Noted. On the one hand, I wish they’d bring it back because I thought the format was good for TV watchers, but on the other hand, we have instant replay now and every network has a at least one ex-ref whose job it is to refsplain good calls and blown calls to death as part of the “guys talking about football” programming that bloats out broadcasts of actual football games to fill the airtime. But that’s really a complaint about a different subject; today I wanted to read tea leaves about Justice Gorsuch.


      • I provided the commentary I did because I didn’t go to one day of law school, but I did watch football on TV pretty much every Sunday it was on during the 80s. (Unless I was actually at RFK). So I’m just trying to stay in my lane of expertise.



    • Doesn’t look like it. He appears to be every bit the courteous gentleman; his snark and critique are pretty clearly going to be much more indirect and subtle than what Scalia dealt out. Both Roberts and Breyer also are this way. In a way, it feels gray and sedate after so many years of Scalian fireworks. But there’s something to be said for gray and sedate.


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