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July 9, 2021

'Con Law' Episode 54: 'Bong Hits for Jesus'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

We discuss three cases from the recently wrapped Supreme Court term: California v. Texas, Mahanoy Area School District v. B.L., and Lange v. California. (This episode contains explicit language – quoted from a cheerleader).

Listen to episode 54 of What Trump Can Teach Us About Con Law.

June 18, 2021

The Surprisingly Broad Implications of Nestlé USA, Inc. v. Doe for Human Rights Litigation and Extraterritoriality

[Cross-posted from Just Security]

By William S. Dodge

In Nestlé USA, Inc. v. Doe, the U.S. Supreme Court took up the question of corporate liability for human rights violations under the Alien Tort Statute (ATS) for the third time. The Court again failed to resolve the question, holding instead that application of the ATS cause of action would be impermissibly extraterritorial in this case because nearly all the defendants’ relevant conduct occurred in Ivory Coast. At first glance, this holding appears narrow, which is no doubt why it attracted the votes of eight Justices. But the decision has potentially broad implications for ATS suits against individuals and for the extraterritorial application of federal statutes in other areas. This article will briefly discuss the questions of corporate liability and limiting the ATS cause of action before exploring the Court’s extraterritoriality holding and its potentially dramatic implications.

Background

The defendants are U.S. companies that buy cocoa from Ivory Coast. The plaintiffs are individuals from Mali who were trafficked to Ivory Coast as child slaves to work on cocoa farms. Plaintiffs alleged that defendants aided and abetted their slavery by providing the farms that held them with technical and financial resources despite knowing or having reason to know that the farms were using children as slaves. Plaintiffs alleged that the defendants made all their major operational decisions from the United States.

The ATS is a jurisdictional provision that was part of the First Judiciary Act of 1789. As codified today, it gives federal district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 1980, the Second Circuit held in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that non-U.S. citizen plaintiffs could use the ATS to sue a foreign police inspector who had come to the United States to recover damages for torture that occurred abroad, reasoning that the plaintiffs were “aliens,” that torture is a tort, and that torture violates modern customary international law.

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court rejected arguments that a statutory cause of action should be required for claims under the ATS and that claims should be limited to the three violations of the law of nations that the First Congress had in mind in 1789 (violations of safe-conducts, infringement of the rights of ambassadors, and piracy). The Court recognized an implied, federal-common-law cause of action for violations of modern international law that are as generally accepted and specifically defined as the three historical paradigms, although the Court found that Alvarez-Machain’s claims of arbitrary detention did not meet that standard.

In 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), that corporations could never be sued under the ATS because corporate liability for human rights violations did not meet the Sosa standard. The Supreme Court granted review on the corporate liability question, but after reargument the Court declined to answer the question. Instead, the Court applied the presumption against extraterritoriality to the ATS cause of action, holding that ATS claims must “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application” and that “mere corporate presence” in the United States is insufficient. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124-25 (2013). The Court tried again to answer the corporate liability question in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). Again, it failed, holding only that the ATS cause of action does not extend to foreign corporations. Id. at 1407.

The Nestlé case presented the Court with a third opportunity to decide the corporate liability question because the defendants were U.S. corporations not protected by Jesner. But once again, the Court disposed of the case on other grounds. Justice Thomas concluded in Part II of his opinion (joined by every member of the Court except Justice Alito) that applying the ATS cause of action would be impermissibly extraterritorial because the plaintiffs had not alleged sufficient relevant conduct in the United States. Justice Thomas went on in Part III to propose that the ATS cause of action should be limited to the three historical paradigms that the First Congress had in mind, but he was joined only by Justices Gorsuch and Kavanaugh. Justice Sotomayor (joined by Justices Breyer and Kagan), agreed with Justice Thomas about extraterritoriality but disagreed about limiting the ATS cause of action. She also reiterated her view that the ATS cause of action should extend to corporations. Justices Gorsuch and Alito agreed with Justice Sotomayor that there was no basis for limiting the ATS cause of action to natural persons (which, yes, makes five Justices on that point of law). Justice Gorsuch (joined by Justice Kavanaugh), however, would have overruled Sosa, whereas Justice Alito would not have reached the extraterritoriality question before deciding other issues he though should be preliminary.

Corporate Liability

The Court granted review in Nestlé to decide the corporate liability question that it left open in Kiobel and Jesner. In Jesner, the plurality and the dissent fundamentally disagreed on how the question should be framed. Justice Kennedy’s plurality opinion asked whether there was a “norm of corporate liability” under international law, whereas Justice Sotomayor’s dissent read Sosa to require an international consensus about the prohibited “substantive conduct” but not about the “forms of liability.” As I have previously explained at Just Security, Justice Sotomayor’s framing is most consistent with international law, which prohibits certain violations of human rights but leaves it to each nation to decide whether and how to provide remedies for such violations. (Full disclosure: I wrote an amicus brief on this question in Jesner and a similar brief in Nestlé.) The Trump administration reversed the position on corporate liability under the ATS that the United States had taken in Kiobel and Jesner, arguing that the Supreme Court should reject corporate liability—not on international law grounds but because the decision should be left to Congress.

Although the majority opinion in Nestlé did not address the question of corporate liability, five Justices saw no reason to distinguish between corporations and natural persons as defendants. Justice Gorsuch wrote: “The notion that corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.” Justice Alito added in dissent that “corporate status does not justify special immunity.” And Justice Sotomayor (joined by Justices Breyer and Kagan) agreed (n. 4). There was no discussion in any of the Nestlé opinions of the need for a “norm of corporate liability” under international law, and one hopes that this spurious argument has finally been put to rest.

Limiting Sosa

In Part III of his opinion, Justice Thomas (joined by Justices Gorsuch and Kavanaugh) would have held “that federal courts should not recognize private rights of action for violations of international law beyond the three historical torts identified in Sosa.” In Justice Thomas’s view, “creating a cause of action to enforce international law beyond [the] three historical torts invariably gives rise to foreign-policy concerns,” warranting deference to Congress. Congress had also shown itself willing and able to address human trafficking by amending the Trafficking Victims Protection Reauthorization Act (TVPRA) to add a private right of action, he explained. With respect to torts beyond the three historical paradigms, Justice Thomas concluded, “there always is a sound reason to defer to Congress.” In Part II of his concurrence, Justice Gorsuch (joined by Justice Kavanaugh) largely echoed Justice Thomas but suggested more explicitly that the Court should overrule Sosa or, as he put it, avoid “adhering to a precedent that seized power we do not possess.”

Justice Sotomayor spent her concurring opinion, in which Justices Breyer and Kagan joined, defending Sosa against Justice Thomas’s attack, which would have overruled that decision “in all but name.” It was the First Congress’s assessment, she noted, “that diplomatic strife is best avoided by providing a federal fo­rum to redress those law-of-nations torts that, if not reme­died, could bring international opprobrium upon the United States.” “Barring some extraordinary collateral consequence that could not have been foreseen by Congress,” she continued, “federal courts should not, under the guise of judicial discretion, second-guess that legislative decision.” Although Congress could have limited the ATS to the three historical paradigms with which it was familiar, it did not do so. Instead, Congress relied on “international law [to] suppl[y] the substantive contours of actionable torts.” Justice Sotomayor concluded that to “suggest that identifying actionable torts risks upsetting the careful balance of interests struck by the lawmakers is ahistorical at best” (quotation marks and alterations omitted).

Extraterritoriality

The Justices found more room for agreement on the question of extraterritoriality, with eight Justices joining Part II of Justice Thomas’s opinion. Only Justice Alito dissented, reasoning that the extraterritoriality question should not be addressed before other questions that the Court had not considered.

The Court did not apply Kiobel’s “touch and concern” test but rather the two-step framework for the presumption against extraterritoriality subsequently articulated in RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016). Under that framework, as I have explained at length elsewhere, courts determine the geographic scope of a statutory provision by looking for a clear indication of that scope (step one) or by looking to the focus of the provision (step two).

In Kiobel, the Supreme Court found that there was no clear indication of geographic scope with respect to the ATS cause of action and did not address the focus question. In Nestlé, the parties disagreed about the focus of the ATS, but the Court found it unnecessary to resolve the focus question because it was still up to the plaintiffs to “establish that ‘the conduct relevant to the statute’s focus occurred in the United States’” (quoting RJR, 136 S. Ct. at 2101). The Court in Nestlé noted that “nearly all the conduct that [the plaintiffs] say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast.” Plaintiffs had alleged that the defendants made their major operational decisions in the United States, but the Court concluded that “allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.”

The key language from RJR on which the Nestlé decision turned is worth quoting in full:

If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s “focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.

In RJR, the language about “conduct relevant to the statute’s focus” was dictum (as I have explained in greater detail at pp. 49-50 here). When the Court in RJR came to apply the second step of the analysis to RICO’s private right of action, the Court made no mention of the need for conduct in the United States, holding simply that the provision “requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries.” RJR, 136 S. Ct. at 2111. Similarly, in Morrison v. National Australia Bank, Ltd., 561 U.S. 247 (2010), the Supreme Court found the location of the conduct irrelevant in applying the presumption against extraterritorially, adopting a “transactional test” for the geographic scope of Section 10(b) of the Securities Exchange Act that turns entirely on the location of the transaction. Id. at 269-70. Based on these decisions, the Restatement (Fourth) of Foreign Relations Law rejected a separate requirement of conduct in the United States when the focus of the statutory provision is on something other than conduct as it was in RJR and Morrison, providing simply: “If whatever is the focus of the provision occurred in the United States, then application of the provision is considered domestic and is permitted” (§ 404 cmt. c).

Nestlé’s reliance on RJR’s dictum has potentially broad implications both for ATS cases and for the Court’s approach to extraterritoriality more generally. With respect to ATS cases, if plaintiffs must show relevant conduct in the United States, it is hard to see how traditional ATS cases against individual defendants can continue. The Second Circuit’s seminal decision in Filartiga, for example, involved torture by a Paraguayan police inspector in Paraguay. The connection to the United States was the fact that the inspector later came to the United States. That fact might have been sufficient to satisfy Kiobel’s “touch and concern” test. See, e.g., Jane W. v. Thomas, 354 F. Supp. 3d 630, 639 (E.D. Pa. 2018) (finding residence sufficient to satisfy “touch and concern” test). But it seems unlikely to satisfy Nestlé’s requirement of relevant conduct in the United States.

Of course, many cases against individual defendants are now covered by the Torture Victim Protection Act (TVPA), which provides an express statutory cause of action against natural persons for torture and extrajudicial killing under color of foreign law. Claims for torture and extrajudicial killing may therefore continue under the TVPA, subject to federal common law rules governing foreign official immunity. But the TVPA does not cover other well-established human rights violations like genocide and war crimes. Genocide and war crimes do sometimes involve torture and killing, but the TVPA’s color-of-foreign-law requirement would nonetheless preclude those suits against non-state actors. The TVPA also does not cover piracy. Almost everyone seems to agree that piracy was within the First Congress’s contemplation when it passed the ATS, but piracy does not involve conduct in the United States and so would not be actionable under Nestlé. It seems odd that Justices Breyer, Sotomayor, and Kagan would join the majority’s extraterritoriality analysis without some consideration of its implications for ATS claims against individuals.

Beyond the human rights context, adding a requirement of relevant conduct in the United States is likely to disturb the law concerning extraterritoriality in other areas—and in ways that might concern other members of the majority too. For example, Morrison rejected the Second Circuit’s conduct and effects tests for securities fraud claims, finding those tests to be “unpredictable and inconsistent,” in favor of a more easily administrable test that turns on the location of the transaction. Lower courts have expressly held that Morrison’s transactional test does not require conduct in the United States. See Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 69 (2d Cir. 2012). Nestlé upsets that understanding by suggesting that conduct relevant to the transaction must also occur in the United States. Lower courts will now have to consider not only whether a separate conduct requirement applies to securities fraud claims but also what kind of conduct is relevant to the transaction and how much conduct is required, making the application of Section 10(b) in transnational cases unpredictable and inconsistent once again. Nestlé will not unsettle every established test for geographic scope, because some tests are based on clear indications of congressional intent (e.g. Title VII of the 1964 Civil Rights Act) and others were fixed before the presumption against extraterritoriality was reborn in 1991 (e.g. the effects test for antitrust law). But Nestlé is likely to make life more complicated for the lower courts considering questions of extraterritoriality than the Justices anticipated. Indeed, if the Justices had anticipated these downstream effects, they would have presumably provided some guidance to avoid them.

Conclusion

Nestlé certainly does not mean the end of human rights litigation in U.S. courts. Cases against individual defendants may continue under the TVPA, the TVPRA, and similar statutes granting express causes of action. But Nestlé does seem to mark the end of the Filartiga line of ATS cases against individual defendants whose relevant conduct occurs outside the United States. It also appears to limit the ATS cause of action to claims against U.S. corporations based on conduct in the United States that goes beyond making decisions about how to conduct operations abroad. There may be cases that fit that description, but they are likely to be few and far between.

May 3, 2021

Breaking News: Supreme Court Finds for Noncitizen in Relief From Removal Case -- Niz-Chavez v. Garland

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

On April 29, the Supreme Court in Niz-Chavez v. Garland held that a notice to appear sufficient to trigger the “stop-time” rule for measuring the time for cancellation of removal relief must be a single document containing all the information about the noncitizen's removal hearing.  The case involved the application of the Court's 2018 decision in Pereira v. Sessionswhich held that A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a notice to appear under the statute , and does not trigger the "stop-time rule."

Justice Gorsuch delivered the majority opinion.  Justices Thomas, Breyer, Sotomayor (who wrote for the Court in Pereira), Kagan, and Barrett.  Justice Kavanaugh filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.

As described by the syllabus to the opinion, the majority held that "[a] notice to appear sufficient to trigger the . . . stop-time rule is a single document containing all the information about an individual’s removal hearing . . . . "

In recapping the argument, Jayesh Rathod is spot on in predicting the outcome:

"By the end of the hour, four justices – Breyer, Gorsuch, Kagan and Sotomayor – had openly expressed skepticism about the government’s reading of the statute. Roberts and Barrett revealed less, but seemed persuaded that the government could sidestep this entire issue by modifying some agency practices. Although few of the justices invoked Pereira as controlling precedent, the court’s decision there – coupled with its seeming reluctance to indulge bureaucratic inefficiencies – could very well lead to another lopsided decision in favor of noncitizens."

Here is the SCOTUSBlog collection of materials and commentary on the case.

We will post analysis of the Court's decision as it becomes available.

UPDATE (April 30):  The title of Mark Joseph Stern's article in Slate ("Neil Gorsuch’s Persnickety Libertarianism Gave Immigrants a Win at the Supreme Court") offers a good hint of his analysis of the Court's decision in Niz-Chavez.  The punch line:

"On Thursday, Agusto Niz-Chavez received the benefit of the written word. He can now petition for the ability to remain in the United States with his three children, all American citizens. The decision may not be an earth-shaking victory for immigrants’ rights. But it vindicates a principle that has been badly damaged in recent years: Immigration officials can’t cheat non-citizens out of a right guaranteed to them by the plain language of the law."

May 3, 2021

How Andrew Cuomo Exploits Public Confusion Over the Definition of Sexual Harassment

[Cross-posted from NBC News]

By Vicki Schultz and Brian Soucek

Reporters finally had a chance this week to ask New York Gov. Andrew Cuomo about “all the groping, the sexual harassment” that current and former staffers have alleged in recent months. “I didn’t do anything wrong,” Cuomo insisted, despite having apologized in March for “acting in a way that made people feel uncomfortable." He also denied even engaging in the underlying acts several women have reported.

How can all these claims be true?

Cuomo seems to be following the tried-and-true playbook used by powerful men accused of sexual harassment throughout modern history.

Cuomo seems to be following the tried-and-true playbook used by powerful men accused of sexual harassment throughout modern history: deny and obfuscate. Use your public stature to reinforce a flat denial of sexual assault or other unwanted sexual advances. And seize on definitional ambiguity to deny that any other actions “that made people feel uncomfortable” count as sexual harassment.

A lawyer for Cuomo has defended the governor’s unsolicited kisses and “ciao bellas” by saying that he’s not a sexual harasser — he’s just “old-fashioned.” But what’s actually old-fashioned, and obsolete, is the definition of sexual harassment used by many popular media outlets and workplace harassment trainings where most people get their understanding of what sexual harassment is. For decades, legal cases have made clear that sexual harassment includes sexist insults and gendered demands, not just sexualized advances. But most people get their understanding of sexual harassment from the stories told in the news and at work, not from esoteric legal sources. Cuomo is taking advantage of people’s confusion about the nature of the problem — and what needs to be done about it.

Take the news media. Even The New York Times has promoted an overly narrow sexualized conception of sexual harassment in its reporting, as we explained in a 2019 article. In 2017, the Times helped ignite the #MeToo movement with its Pulitzer prize-winning reporting on alleged harassers like Harvey Weinstein and Bill O’Reilly. The coverage followed a familiar pattern: A powerful man in an influential field is accused of making unwanted sexual advances with women whose careers depend on him. The harassment is top-down, male-to-female, and, most important, sexualized. The Times even defines sexual harassment this way, as “a range of behaviors that are sexual in nature and nonconsensual.” Most other media outlets have viewed and covered sexual harassment in a similar way.

So, too, have employer policies and training programs, the sources designed to inform people about their rights. More Americans probably receive training on sexual harassment than any other legal topic, except perhaps drivers’ education. Yet, a comprehensive survey one of us conducted many years ago found that, without exception, employer policies defined harassment exclusively as unwelcome sexual advances and other sexual conduct, including sexual jokes and remarks. A more recent study found that little had changed. In an extensive analysis of sexual harassment trainings up to 2016, the vast majority of companies continued to define harassment in purely sexual terms.

As a legal matter, the sexualized definition of harassment contained in these everyday sources is over 20 years out of date. Worse, this definition leaves out most of the harassment women (and others) actually face on the jobStudy after study shows that most harassment doesn’t involve sexual advances or coercion. More often, harassment involves nonsexualized acts that demean, exclude, sabotage, assault or otherwise mark women as unwelcome, incompetent, insignificant or just “different,” because of their sex. Sexist put-downs are more common, and just as illegal, as sexual come-ons.

The Supreme Court recognized this broader conception of sexual harassment as far back as 1998, in an opinion by Justice Antonin Scalia involving a man harassed by his male co-workers on an oil rig. The court ruled that “sexual harassment” doesn’t have to be sexual in motivation or content to constitute unlawful workplace sex discrimination; the misconduct simply has to occur “because of sex.” So, harassment rooted in stereotypes about what constitutes proper work or behavior for men or women violates the law, just like male-female sexual advances. Gay men and others seen as not “man enough,” like women who take on traditionally male jobs or in other ways don’t keep to what some see as “their place,” frequently are harassed in both nonsexual and sexualized ways, more often by their co-workers than their bosses. The conduct is legally considered sexual harassment nonetheless.

But what does this have to do with Cuomo? Former aides have accused him of unwanted kissing and touching, ogling and commenting on their appearance, asking about their sex lives, and otherwise suggesting he wants to have sex with them. So, the allegations against him fall squarely within the popular understanding: A powerful man makes unwanted sexual advances toward the women who work for him. No need for a clearer or expanded definition, right?

Wrong. If we focus solely on sexual advances and misconduct, we fail to see that these behaviors are typically part of a broader pattern of sex-based and generalized harassment, and often other abuses of power, too. We also fail to see the deeper motivations behind the abuse and the institutional structures that enable it. For even when it does consist of gross sexual advances, sexual harassment is less about securing sexual gratification than it is about enacting a sense of macho authority and superiority over working women and others. It’s a way of reinforcing gender hierarchy.

We saw this with Harvey Weinstein, where media coverage that focused on his awful sexual transgressions obscured the fact that he wasn’t just a sexual predator. According to the New York attorney general, he was also engaged in a gross pattern of sexual and nonsexualized harassment against female and gay male employees, alongside misuse of corporate resources. Tying it all together was an outsize sense of entitlement, enabled by an industry and institutional position that gave Weinstein unchecked discretion to make or break other people’s careers and lives. And a sense of impunity about flatly (and in Weinstein’s case, falsely) denying the allegations, like other powerful harassers before him.

So too with Cuomo. Instead of debating how many uninvited gropes or lewd advances it takes to establish a sexual harassment claim, we need to see these stories within a larger pattern of reported verbal abuse, gendered dress codes, demeaning nicknames and threats of career-ending ruin, both by Cuomo and by others in his orbit. All are part of Cuomo’s projection of patriarchal power and authority. And it all constitutes sexual harassment, under the law, whether it fits the narrow popularized definition or not.

Ultimately, no one should be surprised that Cuomo, like so many other powerful alleged sexual harassers before him, has also been accused of broader misconduct, including lying about the death toll in New York’s nursing homes and using campaign money to promote his book. Research shows that the more unfettered the institutional power that bosses and leaders are given, the freer they feel to lord it over others and use it in abusive ways. To end sexual harassment and abuse, then, we can’t just remove individual harassers. We have to remake the structural positions they occupy, constraining unnecessary, arbitrary discretion and imposing public accountability. Properly understanding sexual harassment is just the necessary first step.

April 12, 2021

The simple principle that can fix American law

[Cross-posted from The Atlantic]

By Aaron Tang

Aristotle once observed that “the virtue of justice consists in moderation.” By any measure, he would find little to admire in America’s modern judicial landscape.

In one sense, the problem is simply one of personnel: Precious few judicial moderates serve in America’s federal courts. This absence is most obvious at the Supreme Court, but courts of appeals and district courts suffer from it, too. The researchers Adam Bonica, of Stanford, and Maya Sen, of Harvard, have found, for example, that the present ideological distribution of federal judges resembles an inverted bell curve. We have lots of liberal and conservative judges, but few in between. Gone are the days of jurists like Sandra Day O’Connor, for whom the middle ground was a good place—not one to avoid for fear of being voted down in the Senate or lampooned as a “squish.”

Yet to focus on our nation’s dearth of moderate judges is to scratch at the surface of a much deeper problem. As a field, the law lacks a satisfying, middle-ground response to the core philosophical question that judges must face: By what legal theory should they decide difficult cases—ones in which the law is unclear and where any ruling risks inflaming division among the American people?

Liberal and conservative judicial approaches are, of course, well established. The late Ruth Bader Ginsburg captured the former approach when she testified during her confirmation hearings that the Constitution should be interpreted so as to govern “not just for the passing hour, but for the expanding future.” By contrast, her conservative successor, Amy Coney Barrett, is now the fourth self-professed originalist on the Court.

The rift between living constitutionalism and originalism is not merely an esoteric debate among judges. It is equally salient—and equally partisan—among the broader public. A recent Pew Research poll found that while 88 percent of liberal Democrats believe that the Supreme Court should “base its rulings on what the Constitution means in current times,” 79 percent of conservative Republicans say the Court should “base its rulings on the Constitution’s original meaning.”

But what is the judicial philosophy that occupies the middle ground? There is, of course, no way to split the temporal difference between originalism and living constitutionalism. Either the law’s meaning is fixed in time, or it isn’t. Some prominent academics have worked to re-brand originalism as itself a neutral and centrist approach. But on balance, the results have tended to track conservative views.

What America lacks today, in other words, is a judicial philosophy that can mediate the usual theories advanced on the left and the right. This absence might be every bit as much of a problem for our legal culture and legal system as the absence of centrist judges. Or, rather, it might be the underlying problem altogether. For without a compelling philosophy of judicial moderation, what hope is there for the reemergence of judicial moderates?

Today’s supreme court offers a powerful lens through which to view this dilemma. In the aftermath of Barrett’s confirmation, progressives are fearful of the likely consequences of the Court’s new conservative supermajority. Some have suggested that, putting aside the possibility of eliminating the filibuster and enacting meaningful Court reform, Democrats’ best short-term hope is for two of the Court’s six conservatives to dial back the political temperature and look for centrist solutions in divisive cases. Although the Court has hardly swung left over the past several months, a surprising pattern of decisions suggests that a modest pivot to the middle might well be emerging.

Here is where the absence of a moderate judicial approach becomes crucial moving forward. Suppose Chief Justice John Roberts, whose concern for the Court’s institutional legitimacy is well known, is joined by a second conservative who cares about preserving the Court’s public image. Perhaps it is Justice Brett Kavanaugh, who shocked onlookers with a recent declaration that “the same-sex marriage right recognized in Obergefell” is a “very important right.” Or maybe it is Justice Neil Gorsuch, whose unexpected opinions last term rankled some conservatives. Even Barrett has shown surprising signs of moderation, as her early votes have aligned her closer to the chief justice than to staunch conservatives Clarence Thomas and Samuel Alito.

The trouble is, what comes next? Or, rather, how does a new center emerge? How might a bloc of institutionalist-minded conservative justices vote to reach moderate outcomes in the controversial disputes that come before them?

One option would be to pick, choose, and even trade off winners across a range of cases based on the justices’ best guess as to which outcomes would be most politically palatable. In this ad hoc approach, the pursuit of aggregate results approximating some rough vision of centrism would itself be the touchstone for decision—legal reasoning be damned. Indeed, some critics have argued that the Court’s recent centrist pivot is the product of precisely this approach.

This would be a recipe for disaster. Supreme Court justices are poorly equipped to make these kinds of political judgments. Consider Chief Justice Roger Taney’s apparent belief that the Court’s Dred Scott ruling would somehow settle sectional conflict over slavery, thereby averting a civil war. If anything, the justices’ political instincts are even less informed now, given the growing social and economic distance between them and the American public.

Ad hoc rulings of this kind would also suffer from a severe public-reason problem. Faced with the opportunistic and inconsistent rationales put forth by a Court that dresses up its political guesswork from one opinion to the next, the public would soon recognize naked political expediency—not principled legal reasoning—as the Court’s lodestar.

A Supreme Court interested in moderation would do better to explain its decisions in the language of a consistent legal principle. Legal theory offers two traditional contenders: deference to legislatures and stare decisis—deference to the Court’s own prior judgments. Recently, Roberts has drawn on both approaches. He explained his vote to uphold a California COVID-19 response as an exercise of deference owing to the fact that the Court, unlike a legislative body, “is not accountable to the people.” And he defended his surprising vote to strike down a Louisiana abortion regulation in June Medical Services v. Russo by citing stare decisis.

Each of these approaches, however, is beset by problems. As an initial matter, the two doctrines are often internally contradictory. June Medical is itself an example. The chief’s vote to invalidate Louisiana’s admitting-privileges requirement for abortion providers was a textbook application of stare decisis given that the Court had struck down an identical Texas law just four years earlier. Yet following that precedent amounted to a direct rebuke of state legislators.

More fundamentally, legislative deference and stare decisis are inadequate on their own terms. The notion of deference to legislatures grew in appeal during an era when the major question before the Court was whether to second-guess popular New Deal economic regulations. But the doctrine’s infirmity was soon exposed, when, during the civil-rights era, bigoted local and state officials pleaded for deference to racially discriminatory laws. From this perspective, Brown v. Board of Education signaled more than the Court’s overdue intervention in the great racial injustice of segregated public schools; it heralded the rightful end of legislative deference as an overarching principle of judicial review.

A similar problem plagues stare decisis. Like legislative bodies, sometimes the Court makes constitutional errors that require correction. Yet if taken to the extreme, stare decisis would compel the Court to stand by odious rules announced in cases like Plessy v. Ferguson and Korematsu v. United States. Stare decisis, like legislative deference, cannot be an “inexorable command”—a fact the Court itself has stated many times. But once the Court admits that it can discard these doctrines at its pleasure, what constraining role is left for them to play?

All of this points to the fundamental problem that faces the Court’s institutionalist conservatives if they choose to pursue a path of judicial moderation. It is a problem for America’s broader legal culture, too, to the extent that one hopes the polarized segments of American society can ever discover common ground. Does any legal principle exist by which we can find our way there?

The year 2020 will long be remembered as a year of tragic and unparalleled adversity, from the onset of the deadly global pandemic, to glaring reminders of society-wide racial injustice, to Donald Trump’s ill-fated effort to steal the election. But even as we grieved, worried, and mobilized for change, something encouraging happened, unexpectedly, at the Supreme Court: The justices stumbled onto the beginnings of a compelling theory of judicial moderation.

It started last summer, at the end of one of the most monumental terms in recent history. Over a 25-day sprint, the Court handed down high-profile opinions concerning the rights of LGBTQ workers; the fate of hundreds of thousands of undocumented immigrants who had been brought to America as small children; impassioned efforts to obtain Trump’s private financial records; a controversial Louisiana abortion regulation; religious-school vouchers; and whether much of eastern Oklahoma remains an Indian reservation.

These cases raised genuinely difficult legal questions with enormous stakes. And in all of them, the Court’s decisions followed an intriguing logic. Rather than resting solely on some highly debatable conclusion as to a one-and-only “correct” meaning of the law—whether rooted in arguments over original meaning or in evolving precedent or societal values—the Court justified its rulings by pointing to an additional rationale: the goal of minimizing the harm of its decisions. The Court did so in a particular way—by identifying and ruling against the side with the greatest ability to avoid the harm it would suffer in defeat. (I’ve previously called this the “least harm principle.”)

Take, for example, last term’s blockbuster ruling in Bostock v. Clayton County, in which Gorsuch (joined by Roberts) stunned movement conservatives by holding that federal law forbids employment discrimination on the basis of sexual orientation. Much has been written about the particular brand of textualism that Gorsuch employed to reach this outcome, and rightly so. But that commentary has obscured an equally vital piece of Bostock’s reasoning: the opinion’s clear suggestion that, despite their defeat, religious employers have powerful legal options for minimizing their harm moving forward. It is no accident, in other words, that Gorsuch went out of his way to describe the “careful consideration” that such employers would receive in future cases should they request exemptions from federal anti-discrimination law under the free-exercise clause or the Religious Freedom Restoration Act. That is least-harm reasoning at its apex.

The same principle explains Trump v. Mazars. That case involved subpoenas issued by several Democrat-controlled committees in the House of Representatives seeking private financial records from Trump’s bank and accounting firm. The committees argued that the records were needed to inform potential legislation on issues like money laundering and foreign election meddling. The president contested the subpoenas, and the Supreme Court ruled in his favor. Critically, the Court did so because Congress has better options for avoiding the harm of defeat. For unlike Trump (and future officeholders), who would be powerless to avoid the intrusion of such subpoenas, the House could potentially secure the information it needed to legislate from subpoenas to other sources or narrower subpoenas to the president himself.

The Court, to be sure, has not consistently followed this approach; prominent counterexamples include cases in which the Court has upheld state laws burdening voting rights even where those states have other ways to protect their interests. But as I argue in a forthcoming law-review article, the least-harm principle remains firmly grounded in a broad tradition of high-profile decisions in which the Court has consciously bypassed arguments rooted in originalism or evolving social values and ruled instead to ensure that the losing side has ample alternatives to minimize its harm. Promisingly, the Court has shown signs of following this approach in a number of important cases this term, too.

The least-harm principle is moderate in the most logical of ways: By ensuring that losing groups have other avenues for redress, the principle prevents the destructive world President Joe Biden cautioned against in his inaugural address—one in which “every disagreement [is] a cause for total war.” The principle is neutral because the side that is best able to avoid its harm will differ based on the nuanced facts of each case, not political preferences—as cases such as Bostock and Mazars illustrate. And the least-harm principle is intellectually honest because it admits that judges will often be unable to discover clear answers to society’s deepest disagreements using lawyerly arguments about vague, ambiguous, and conflicting sources of legal meaning.

The least-harm approach is also judicially administrable. Consider, for example, the Court’s ruling in the DACA case, which invalidated the Trump administration’s effort to rescind protections for roughly 700,000 “Dreamers” because the administration failed to provide a “reasoned explanation” for its action. It is obvious which side would be better able to avoid the harms of a defeat. Unlike the Dreamers, who would have been powerless to avoid deportation had they lost, the Trump administration had “considerable flexibility,” as the Court pointed out, to rescind DACA, as long as it provided a sufficient explanation.

Opinions like these show how the Court is on the cusp of a powerful new approach for deciding hard cases. Yet the least-harm principle’s future is complicated by the recent change in the Court’s composition. No longer is Chief Justice Roberts, who either authored or joined last term’s prominent least-harm decisions, the median justice. How, then, will we know if the approach retains influence in the coming months?

A major test case currently pending in the Court will be revealing. The question in Fulton v. City of Philadelphia is whether the Constitution entitles a Catholic foster-care agency to an exemption from a general city rule forbidding discrimination on the basis of LGBTQ status. (The Catholic agency refused on religious grounds to certify LGBTQ foster parents.) The Catholic agency is likely to win the case; the major question is how it will do so.

One possibility is that the Court will write in sweeping terms, overruling long-standing precedent to confer a broad religious exemption to engage in LGBTQ discrimination. But the least-harm principle provides a narrower—and superior—ground of decision. Under it, the Court would explain that it is ruling against Philadelphia because the city has a sensible alternative for protecting LGBTQ people’s right to participate as foster parents: The city can compel religious agencies to refer LGBTQ applicants to other agencies that would gladly serve them. In Philadelphia alone, 29 such foster-care agencies exist. But as Kavanaugh implied in oral argument, this middle-ground approach would mean that religious agencies would lose in jurisdictions where no secular agencies were willing to serve LGBTQ applicants—for in such cases the government would lack any way to avoid harm to the LGBTQ community.

To be sure, progressives and conservatives alike might be skeptical of this principle as a first-best solution. To progressives, any defeat for their most cherished values might seem too much to stomach. Many on the right likely feel the same, and understandably so.

But the pursuit of victory by any means is what has brought the Court to this current precipice. To preserve the Court’s legitimacy, both sides of the partisan divide must come to terms with the prospect of some losses. And if that is so, then all Americans should hope for the kind of losses the least-harm principle calls for, where one side doesn’t get what it wanted precisely because it has other ways to protect its interests.

The greatest virtue of the least-harm principle, then, might be its potential to remind the American people that Supreme Court decisions are not the end of the road. Under it, losing groups retain the power to remedy the harms they suffer. A legal philosophy that awakens the people’s own sense of agency might not be the best that progressives or conservatives can hope for separately. But it might be the best they can hope for together: a legally and morally attractive judicial middle ground, where one has been missing for far too long.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

March 22, 2021

Just one Supreme Court case could blow up unions, child protection and anti-discrimination law

 

[Cross-posted from The Washington Post]

By Aaron Tang

Aaron Tang is a professor at the University of California, Davis School of Law. He was a law clerk to Justice Sonia Sotomayor.

On March 22, the Supreme Court will hear oral arguments in a seemingly minor labor-law dispute with potentially sweeping ramifications. Although the case itself concerns a mundane California agricultural regulation, a decision could threaten fundamental laws governing organized labor, child safety, nursing-home inspections — and even laws forbidding stores and restaurants from discriminating.

The case, Cedar Point Nursery v. Hassid, involves a decades-old California regulation that grants union organizers temporary access to an agricultural employer’s property — during non-working hours — to communicate with workers about their right to organize.

A pair of California fruit producers are challenging this access in the Supreme Court, contending that it amounts to an uncompensated “taking” of their property, forbidden under the Fifth Amendment. But California is not taking their property at all. Unlike the paradigmatic situation where government appropriates private property for its own use, California’s regulation merely grants union organizers a narrow license to meet with workers — without interrupting the employer’s operations.

The fruit producers are thus left to make a different — and far more sweeping — argument. They assert that the access regulation is a taking because it prevents them from excluding people that they just don’t like. And this “right to exclude unwanted persons,” they contend, is “so universally held to be a fundamental element of the property right that it cannot be infringed without compensation.” If the Supreme Court agrees, the upshot would be staggering.

Start with the effects on union organizing across the nation. The ability to access employer property is vital not only to California agricultural unions but also to millions of employees who enjoy the right to organize under the National Labor Relations Act. In 1945, the Supreme Court held that this law grants pro-union employees the same right at issue here: the ability to access an employer’s property outside of work hours for the narrow purpose of union organizing. Yet if the court holds that the takings clause permits property owners to exclude any unwanted person, employers could cripple unions by blocking employees from organizing on their premises.

The dispute threatens havoc just as great outside the union context. Consider state laws that permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers’ logic, such individuals would have a Fifth Amendment right to do so — unless the government paid the suspected abuser to access the property. The same problem would ensnare nursing home visits and food safety inspections.

Perhaps most glaring of all, the case threatens to blast a giant hole through the heart of anti-discrimination law. Federal law forbids stores, restaurants and other public accommodations to refuse service on the basis of a customer’s race. A number of states protect LGBTQ persons from similar discrimination.

Yet if Cedar Point creates a right to eject all “unwanted persons” from one’s property in the absence of a government payout, states and the federal government would face an impossible choice: raise taxes so that they can pay untold sums of money for every instance an LGBTQ person or person of color enters a storefront that belongs to a discriminatory owner, or call off the crucial project of eradicating societal discrimination.

There is reason to worry what the Supreme Court’s newly bolstered conservative majority will do. Just three years ago, in Janus v. AFSCME, Council 31, the conservative justices struck a blow against organized labor when they overturned a decades-old precedent and invalidated state laws permitting public sector unions to charge “fair share fees” to non-union workers.

But there is also cause for optimism that the justices will follow an emerging pattern, which I’ve called the “least harm principle,” in which they consider which side could best withstand a ruling against it. This approach points to a clear outcome in Cedar Point given the asymmetrical nature of the case.

While a ruling against the unions would leave them unable to communicate with seasonal employees who often lack cellphones and permanent addresses, a ruling against the employers would leave them with other, existing avenues for legal redress. Under longstanding Supreme Court precedent, property owners can assert a different kind of takings claim, known as a “regulatory taking,” under which they may be entitled to compensation if a regulation is especially burdensome. That case-by-case approach, as Chief Justice John G. Roberts Jr. wrote recently, finds the proper “balance between property owners’ rights and the government’s authority to advance the common good.”

The fruit growers never even attempted to make this argument. The likeliest reason is as cynical as it is obvious: Whereas a regulatory takings claim might have entitled them to some compensation if California’s law actually imposed an onerous burden, winning on that ground would have done nothing to eviscerate organized labor around the nation.

The radical character of the challengers’ lawsuit should give the justices pause. The court should decline the fruit producers’ plea to constitutionalize a sweeping power to exclude “unwanted persons” — and remind them of the rights they already enjoy.

 

January 11, 2021

Might Chevron deference be reconsidered?

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

Jack Chin for SCOTUSBlog previews Pham v. Guzman Chavez, which will be argued before the Supreme Court on January 11.  Chin writes that "[t]he case, addresses the right of certain noncitizens to be released on bond while they are in the process of removal from the United States. The migrants at issue are a subgroup of a subgroup: those who have previously been ordered removed, and are statutorily subject to swift deportation based on reinstatement of the prior order, but who have a so-called `withholding' claim, which, if granted, prohibits their removal to a particular country under the Convention Against Torture or related U.S. statutes and regulations."

The case raises the deference doctrine of Chevron USA v. Natural Resources Defense Council, which Justice Kennedy observed in Pereira v  Sessions might be due for reconsideration.

January 11, 2021

Case preview: Justice will confront statutory puzzle on bond eligibility for non-citizens contesting deportation

[Cross-posted from SCOTUSblog]

By Gabriel “Jack” Chin

Pham v. Guzman Chavez, which will be argued on Jan. 11, addresses the right of certain noncitizens to be released on bond while they are in the process of removal from the United States. The migrants at issue are a subgroup of a subgroup: those who have previously been ordered removed, and are statutorily subject to swift deportation based on reinstatement of the prior order, but who have a so-called “withholding” claim, which, if granted, prohibits their removal to a particular country under the Convention Against Torture or related U.S. statutes and regulations. Noncitizens with reinstated removal orders are normally summarily removed with virtually no formal process, and are prohibited from raising almost all defenses or claims for discretionary relief. The major exception is that withholding claims halt removal as the petition is administratively and judicially evaluated. (Some courts hold that claims of U.S. citizenship may also be raised).

The Immigration and Nationality Act allows migrants pursuing so-called “withholding only” relief to be released on bond at some point; the court must decide which release statute applies. The United States insists that the restrictive 8 U.S.C. § 1231 governs. That section applies to some noncitizens already ordered removed, and it mandates 90 days’ detention to carry out the deportation. After 90 days, if for some reason deportation has not occurred, release is granted or denied based on an internal Immigration and Customs Enforcement process with no live hearing. If release is granted, various forms of supervision are required. In addition, in Zadvydas v. Davis, the Supreme Court recognized constitutional limits on detention under Section 1231 once it appears that there is no significant likelihood that a noncitizen would actually be removed.

Maria Angelica Guzman Chavez and other noncitizens claim they may be released under 8 U.S.C. § 1226, which applies “pending a decision on whether the alien is to be removed.” This section generally requires no period of detention, does not mandate supervision if a person is released, and, perhaps most importantly, allows an immigration judge to evaluate the question of release based on live testimony.

The briefs of the parties and amici underline the consequences of the choice. Withholding-only cases can remain pending before an immigration judge or the Board of Immigration Appeals for months, or several years, if the decision is reviewed in a court of appeals. Detained individuals are less likely to obtain counsel, which reduces the chances of obtaining relief. According to amici, prolonged detention under harsh conditions sometimes causes noncitizens to abandon their meritorious claims. Drawing the sting from the unsympathetic fact that all migrants involved in this case have previously been deported and subsequently reentered the United States unlawfully, amici point out that some had no opportunity to present their claims in the first proceeding. The inspector general of the Department of Homeland Security, for example, noted that ICE detainees were not always given information about asylum and withholding of removal in a language they could understand.

The question of the applicable bond regime divided the circuits, as well as the three-judge panel of the U.S. Court of Appeals for the 4th Circuit the justices are reviewing here. This disagreement accurately reflects the headache-inducing complexity of the statutory structure.

At one level, the parties argue over policy and practicalities — should a withholding-only claimant be treated as a recidivist in the process of being expelled again, or as someone whose ability to stay in the United States remains undecided? The United States points out that a withholding-only claim does not undermine the removability of an individual with a reinstated removal order. A decision on withholding relief, the government says, is “not a decision on whether the alien is to be removed from the United States; rather it only affects where and when removal may occur.” In principle, a person awarded withholding relief may be removed to some other country that is willing to take them in.

However, removal to a third country cannot happen without giving the noncitizen the opportunity to raise a withholding claim as to the new country. And the noncitizens claim that less than 2% of those granted withholding are removed to some alternative country where they do not face danger. Thus, those ultimately awarded withholding relief often remain in the United States, at liberty, indefinitely. Detention under the more restrictive Section 1231 is intended to give the government an opportunity to arrange for actual deportation. Because that cannot happen while the withholding claim is evaluated, the noncitizens contend that mandatory detention is a pointless and arbitrary imposition of hardship, unconnected to any legitimate justification for a restraint on physical liberty.

The technical statutory analysis is also challenging. The mandatory detention/limited release scheme of Section 1231 is triggered by the commencement of the “removal period.” The removal period begins “on the latest of the following”: (1) the date the order of removal becomes “administratively final”; (2) “the date of the court’s final order,” if the order is judicially reviewed and the court orders a stay; or (3) the date the noncitizen is released from some form of non-immigration detention, such as prison.

In the ordinary case of a reinstated removal order coupled with a withholding-only claim, the trigger for the removal period will turn on whether the order is “administratively final.” There is no statutory definition of “administratively final.” However, the INA deems a deportation order “final” when it is affirmed by the Board of Immigration Appeals, or when the time for board review has passed without an application for review. The United States argues that “final” and “administratively final” are identical, and that a reinstated order of removal is, if anything, more final than “final.” Under subsection (a)(5) of Section 1231, if an immigration officer finds that someone ordered removed has unlawfully reentered, the government points out, “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief … and the alien shall be removed under the prior order at any time after reentry.”

The noncitizens do not dispute that in the more than 98% of reinstatement cases raising no withholding claim, a reinstated order is final and triggers the removal period and mandatory detention under Section 1231. But in the relatively unusual cases where a withholding claim is advanced, it will be considered by an immigration judge, and possibly also the board and a court of appeals. It makes no sense, they claim, to regard an order of deportation as “final” when it undisputedly cannot be executed precisely because it is undergoing administrative review.

The noncitizens have on their side a remarkable body of precedent which developed to untangle the puzzle of review of withholding claims. A reinstated order is statutorily “not subject to being … reviewed.” In addition, 8 U.S.C. § 1252(b)(1), governing judicial review of removal, provides that “[t]he petition for review must be filed not later than 30 days after the date of the final order of removal,” which for a reinstated order will usually be a date long in the past. The prohibition on review coupled with the expired deadline might suggest that reinstated orders are simply unreviewable. But 8 C.F.R. § 241.8(e) makes clear that withholding claims can be raised even in the context of a reinstated order. And the INA makes clear that a withholding claim is judicially reviewable as part of the reinstated order. Subsection (a)(4) of Section 1252 provides that “a petition for review” of a removal order “shall be the sole and exclusive means for judicial review” of withholding claims, which unambiguously suggests that withholding claims can be judicially reviewed after conclusion of the administrative process. Based on this provision, 11 circuits agree a reinstated order is judicially reviewable, as a vehicle to permit review of withholding claims. And several courts have also held that a reinstated order is not final until the withholding claim is administratively resolved.

The United States did not address this body of cases in its opening brief. Turning to them in its reply, the government declined to argue that all 11 circuits were wrong, instead contending that “the court need not resolve the issue.” “Finality is variously defined,” it explained, and “like many legal terms its meaning depends on context.” The government’s position is apparently that a reinstated order with a pending withholding claim is not final for purposes of judicial review, yet is final for purposes of bond. But the two bond regimes differ based on the finality of the order. And if the language is to be interpreted prudentially, the government’s position is challenged by the fact that withholding claims are unusual exceptions to the general effect of reinstatement, and that successful withholding claims do, apparently, almost always mean there will be no removal.

The United States finally invokes Chevron USA v. Natural Resources Defense Council, under which courts defer to agencies’ reasonable interpretations of ambiguous statutes. The government argues that regulations issued by the Department of Homeland Security and the Department of Justice reflect the determination that Section 1231 applies. The noncitizens dispute that any regulations actually reflect that interpretation, and they invoke the constitutional avoidance canon, under which courts refrain from statutory interpretations that would cause constitutional problems. Here, they argue, the government’s interpretation would subject individuals to prolonged periods of civil detention with no legitimate justification – an outcome that would raise serious due process problems. In a case this close and complicated, these considerations will surely be discussed at Monday’s argument — and could even be decisive.

November 30, 2020

The new Supreme Court is sending surprisingly centrist signals

[Cross-posted from the Los Angeles Times]

By Aaron Tang

With President-elect Joe Biden’s victory and the potential for Democrats to control the Senate, it’s the question on the mind of everyone who cares about the court. If the conservative justices lurch the law to the right, calls to retaliate by adding liberal justices will surely grow. That pressure would subside, however, if the conservatives reach moderate outcomes in divisive cases.

Surprisingly, comments in three major oral arguments held since Justice Amy Coney Barrett took her seat offer significant clues. Across these cases, several conservative justices asked questions revealing a desire to find compromises that, to some degree, could satisfy both sides of the partisan divide.

Start with Fulton vs. City of PhiladelphiaThe case arises out of Philadelphia’s decision to stop referring foster children to Catholic Social Services, a private agency with a religious objection to certifying same-sex couples as foster parents. Catholic Social Services sued, arguing that the city’s decision violated its religious freedom.

In recent years, conservative justices have issued a string of religious freedom rulings in favor of Christian challengers. Progressives accordingly fear a ruling in Fulton that might eviscerate protections for the LGBTQ community. But in exchanges at oral argument Nov. 4, Justice Brett M. Kavanaugh made clear he would have none of this.

“It seems like this case requires us to think about the balance between two very important rights recognized by this court,” Kavanaugh observed, “the religious exercise and belief right … and the same-sex marriage right.” Given this, he continued, “we should be looking, where possible, for win-win answers.”

Kavanaugh offered one possibility. If the court rules against Philadelphia, he wondered, couldn’t the city still protect the right of same-sex couples to participate in the foster system by forbidding Catholic Social Services to reject LGBTQ applicants outright, instead requiring the agency to “refer any same-sex couple to one of the [30] other agencies” that would gladly serve them? However, another city would be free to require a Catholic agency to serve same-sex couples if no other agencies were available.

Next consider Jones vs. Mississippi. The question here is what a judge must do before sentencing a juvenile offender to life without the possibility of parole. In a pair of prior rulings, the Supreme Court suggested that under the 8th Amendment, only juvenile offenders “whose crimes reflect permanent incorrigibility” could receive this punishment. Yet in Mississippi, trial judges hand down such sentences without specifically finding juveniles incorrigible.

Mississippi’s lawyer argued that no incorrigibility finding should be necessary because all the 8th Amendment requires is an individualized sentencing hearing where an offender’s youth can be considered. Chief Justice John G. Roberts Jr. and Barrett were unsympathetic.

“I have to say,” the chief observed, “it [doesn’t] seem like very much” to ask a trial judge to utter “one sentence” to make it clear that an incorrigibility finding had been made. Barrett joined in almost incredulously: “So your objection here is really that it’s making the state jump through too many hoops to put something actually formally on the record?”

The implication was clear. A ruling against Mississippi would still leave state prosecutors free to pursue life without parole for juvenile offenders as long as prosecutors convinced judges of their incorrigibility. On the other hand, a ruling against the petitioner in the case (one Brett Jones) would leave juvenile offenders with virtually no recourse. Even if at some point they could show they’d rehabilitated in prison — proving they’d never been incorrigible — they would still be barred from pleading their cases before a parole board.

The conservative justices weighed similar concerns during oral arguments in the Affordable Care Act case Nov. 10. Originally, the ACA provided that certain individuals “shall” purchase health insurance or pay a tax penalty. In 2017, Congress zeroed out the tax. Several challengers sued, arguing that the remaining command to purchase insurance was unconstitutional and the entire act should be invalidated as a result.

At the heart of the court’s skepticism with this argument is the following fact: Once the tax penalty is eliminated, there is nothing pressuring individuals to purchase unwanted insurance. Justice Clarence Thomas put it: People who refuse to buy insurance no longer face a “threat” of enforcement. Or as Justice Neil M. Gorsuch mused, “I guess I’m a little unclear who exactly [the challengers] want me to enjoin and what exactly they want me to enjoin them from doing” given that the government is already powerless to punish them for refusing to buy insurance.

In other words, even if the challengers lose the case, they could still easily avoid the harm at the heart of their complaint — the command to buy insurance. The harm of a ruling in the opposite direction, however, would be far harder to avoid. What choice, for instance, would individuals with pre-existing conditions have if the ACA were invalidated and insurers were suddenly free to deny them coverage?

Taken together, these comments signal a laudable centrist pivot by key conservative justices using an emerging judicial philosophy I call the least harm principle. Under this principle, the court does not resolve hard cases by rendering some best guess as to our Constitution’s centuries-old meaning or to our evolving societal values. Instead, it rules against the side that can most easily minimize its harm.

The Supreme Court has relied on the least harm principle in a number of high-profile cases, including several last term. For example, it upheld a subpoena seeking President Trump’s financial records by explaining that the president had “the same protections available to every other citizen” for avoiding undue harassment. Similarly, in rejecting the president’s attempt to rescind the Deferred Action for Childhood Arrivals program (DACA), the court made clear his administration still had ways to achieve its ends: As the decision noted, the administration’s failure to “provide a reasoned explanation for its action” was a mistake it could correct.

Least harm reasoning can preserve public confidence in the court because it avoids creating full-on losers. It won’t apply in every case, but in this dangerous and partisan moment, the kind of sensible middle-ground rulings it yields are precisely what our country needs.

September 28, 2020

Episode 45: 'SCOTUS without RBG'

[Cross-posted from “What Trump Can Teach Us About Con Law”]

By Elizabeth Joh

On Sept. 18, Justice Ruth Bader Ginsburg died at age 87. She was a trailblazing jurist who fought for the equality of women before the law. But her legacy is in peril, as President Donald Trump and Senate Republicans prepare to push through a conservative successor. What can Democrats do to alter the course of the SCOTUS? And what does the Constitution tell us about so-called "judicial supremacy?" Listen to episode 45 of "What Trump Can Teach Us About Con Law"