[Cross-posted from Los Angeles Times]

By Aaron Tang

There is a lot to dislike about the Supreme Court’s decision to invalidate the Biden administration’s requirement that workers either vaccinate against COVID-19 or test and mask at work.

The court’s party-line ruling invented limits on the Occupational Health and Safety Administration’s express authority to “protect employees” from the “grave danger” of exposure to “new hazards.” The conservative justices substituted their own judgment for the considered expertise of public health officials. And in the end, they issued a decision that, if uncorrected, will leave millions of Americans exposed to grave workplace health risks and could result in thousands of needless deaths.

Concerned Americans are right to question a court that would make such serious mistakes. The Biden administration is right to do the same. But as it does, it must not lose sight of a greater obligation: the need to respond to the ruling in whatever way legally permissible to protect American workers. Fortunately, the majority opinion in the case leaves open a surprisingly straightforward way for the administration to do just this.

Start with the actual rationale the court used to block OSHA’s vaccinate-or-mask requirement. The court did not dispute that the agency has the legal authority to protect workers from the dangers posed by the pandemic. It instead argued that OSHA swept too broadly by requiring employers to enforce what the court called a “vaccine mandate.” (In truth, OSHA’s emergency standard granted employers a choice between requiring all workers to vaccinate or requiring unvaccinated employees to undergo weekly testing and mask while at work).

The problem the conservative justices found with the so-called vaccine mandate is that it was “strikingly unlike the workplace regulations that OSHA has typically imposed.” Other workplace safety regulations, they said, protect workers while they are at work; vaccines protect workers both at work and outside it, too. The majority thus decided that OSHA’s vaccine rule was impermissible because vaccines “cannot be undone at the end of the work day.”

High quality masks, though, can be taken off after work. And rapid tests can be conducted in just minutes at the start of work or beforehand. So on the conservative majority’s own terms, OSHA would be within its power to require workers to test and mask while at work. Such a rule would fix the court’s complaint about the prior OSHA order precisely because it would be limited to the workplace dangers posed by COVID-19, without extending further. Indeed, OSHA has already enacted medical exam and face covering requirements in other work contexts, further demonstrating that a test-and-mask rule would be firmly within the agency’s authority.

Of course, some employers may balk at the notion of compelling all of their workers to test weekly and wear masks, especially employers that rightly recognize the existence of a simple, proven alternative that also powerfully reduces the virus’s spread: vaccination. So OSHA’s new emergency rule should permit employers to waive the test-and-mask-while-at-work mandate for employees who choose to get vaccinated. (Nothing would prevent the vaccinated from masking as well, which would increase their protection.)

In other words, OSHA should rewrite its rule in reverse order. Rather than requiring employers to adopt a mandatory vaccination policy with an exception for employers that instead require unvaccinated workers to test and mask, OSHA’s new regulation would make employers mandate worker testing and masking first, with an exception allowing employers to waive this rule only for the vaccinated.

You may think merely flipping the order of these requirements is too clever by half. But if it seems that way, it’s only because the court’s opinion on Thursday was itself too clever. There is, after all, nothing in relevant statutes that prohibits OSHA from protecting against workplace dangers through requirements that have the incidental effect of protecting against similar dangers outside of work too.

Indeed, reenacting OSHA’s COVID workplace safety rule as a mask-or-vax mandate would comport precisely with the conservative justices’ majority opinion. They admitted, for example, that “targeted regulations” that “account for [the] crucial distinction” between “occupational risk and risk more generally” would be “plainly permissible.” That is exactly what a rule requiring workers to mask only while at work would do.

It is possible, of course, that under a revised mask-or-vax rule, more employees would choose to test and mask while at work rather than get vaccinated. But given a choice between obtaining a vaccine and taking on the burdens of testing and daily masking, at least some would choose the former.

Most importantly, even if the rule’s ultimate effect is only to make testing and mask-wearing widespread within places of work across America, that would still represent a considerable public health advancement. Dozens of states do not currently require masks indoors despite ample evidence that masking saves lives and enjoy widespread public support. The Supreme Court may have handed U.S. workers a dangerous and legally ungrounded blow. But the Biden administration can act decisively to protect them in this crucial moment.

[Cross-posted from Los Angeles Times]

By Aaron Tang

For years, cities across the country have limited who may carry a gun in public. The Supreme Court will soon decide whether these limits violate the 2nd Amendment. The effect could be staggering — the difference between a few hundred guns and hundreds of thousands of guns on the streets of Los Angeles, New York City or Washington.

With stakes so high, commentators have naturally speculated about the outcome. Given the court’s conservative supermajority, many expect the court to dramatically expand the right to carry firearms in public.

Quietly, however — in a rare action taken through the court’s docketing procedures — some of the court’s conservative justices may have tipped their hand. What they’ve revealed is a fact-sensitive approach to the case that should give gun safety proponents reason for cautious optimism.

Start with a bit of Supreme Court 101. When a party that has lost in a lower court wishes to obtain the Supreme Court’s review, it files a petition for a “writ of certiorari.” The most important page of this petition is the first one, which sets forth the question presented by the case. As the court’s own rules explain, “Only the questions set out in the petition, or fairly included therein, will be considered by the Court.” The “question presented” thus dictates the scope of the court’s analysis.

It takes four justices to vote in favor of granting a “cert” petition. And in nearly every granted case, the justices vote to accept, verbatim, the question presented in the petition. (Occasionally the justices will limit their review to one of multiple questions in a petition, or add a threshold question to clarify the court’s power to hear the case. )

In the cases the court initially decided to hear this term, the justices accepted the exact wording of a question presented in all the cert petitions — all, that is, except the landmark gun rights case, New York State Rifle & Pistol Assn. vs. Bruen. In this case, they took the significant step of rewriting the question presented, and thus changed the trajectory of the case.

Rewriting a question may seem trivial. It is not. Last term, out of 58 cases, the Supreme Court rewrote the question presented in just one. Tellingly, the justices then decided that case entirely on the basis of the revised question, holding that an earlier decision by the court does not apply retroactively. The same was true in the year I clerked at the court: The justices rewrote just one question and proceeded to decide that case precisely on the new grounds.

In this term’s gun case, the revision seems equally crucial.

Current New York law forbids individuals to carry a gun in public unless they can demonstrate a “special need” for self-defense. In challenging this law, the original cert petition presented this question: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

To gun rights activists, the answer is an obvious no because all law-abiding citizens should have the right to carry a gun in public, regardless of whether they have a special need. And if the conservative justices had strongly agreed, the petition would probably have been quickly accepted as written.

But that’s not what happened. As the court’s docket shows, the justices first discussed the cert petition at a private conference in March, before debating it again at two additional conferences in April. In each conference, however, the conservative justices failed to produce the four votes needed to grant review. (None of the liberal justices are likely to have voted to grant the case because they almost certainly agreed with the lower court ruling upholding New York’s law).

Then, at another conference held at the end of April, the justices voted to grant the case.

What changed? The record indicates just one thing: The court rewrote the question presented, limiting it to ask “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

The rewritten question focuses the court’s review first to the matter of concealed-carry, rather than open-carry, licenses — a sensible move because that is the type of license for which the petitioners originally applied.

The second change is more important. Rather than asking about the right of all law-abiding citizens to carry guns in public, the court’s rewritten question focuses on just the original two petitioners — individuals who were denied special need licenses by New York. In doing so, the justices have made clear that the specific, factual circumstances surrounding the applications will be crucial to their analysis. (Otherwise, the original question presented would have sufficed.)

What, then, are the specifics of the applications? One of the petitioners, Robert Nash, explained in his application that he needed a concealed-carry license because of a “recent string of robberies in the area” around his home, including a robbery that occurred on his street just days before he filed for the license. Yet the New York licensing authority still rejected his application. In contrast, the other petitioner, Brandon Koch, openly admitted in his application that he did “not face any special or unique danger to his life.”

By training the question presented on these facts, the court hints at an outcome that both sides in the gun debate should be able to live with.

State laws that condition the right to public carry on a demonstrated need for self-defense could be constitutional, in keeping with a lengthy historical tradition of similar laws. So New York would be free to deny licenses to applicants like Koch who lack a special need, thus substantially reducing the number of guns on the streets. But states may not utilize a special need requirement as a de facto ban on all public carry. Doing so would infringe the 2nd Amendment right of those who face real and particularized dangers — such as Nash.

The Supreme Court has begun its 2021-22 term with its lowest approval rating in decades. A fact-sensitive, centrist ruling on gun rights would go far toward bolstering its public legitimacy.

[Cross-posted from The Washington Post]

By Aaron Tang

As the Supreme Court weighs the future of Roe v. Wade, one of the chief arguments for overruling the case — and allowing states to ban abortions throughout pregnancy — is that the right to abortion is inconsistent with the C

The problem with this argument is that it is historically inaccurate. If the conservative justices wish to be faithful to the Constitution’s original meaning, they should not eliminate the right to abortion. Instead, they should restore it to the position that characterized American society throughout our early history, recognizing a constitutional right to abortion early in pregnancy.

This understanding would allow states to prohibit abortion after 15 weeks, just as Mississippi has done in the case to be argued Dec. 1. But states could not ban abortions any earlier. A moderate ruling of this kind could be just what the court needs to restore its battered credibility.

As Justice Amy Coney Barrett has explained, originalism is the philosophy that the Constitution has “the meaning that it had at the time people ratified it.” In the context of the 14th Amendment — the provision that Roe held encompasses the right to abortion — originalist justices have asked whether a right is “deeply rooted in this nation’s history and tradition.”

Time and again, they’ve answered this question by pointing to a historical consensus under state law. As leading originalist and former federal judge Michael McConnell has shown, the 14th Amendment’s original meaning requires “a substantial consensus of the states” to recognize a right over time. Thus, when Justice Antonin Scalia dissented from the court’s 2003 decision recognizing a right to same-sex sexual activity, his reason was that at the time the 14th Amendment was ratified in 1868, only five of the 37 states in the union permitted the practice.

The importance of a state-law consensus is why antiabortion advocates have long rested their argument on the similar claim that when the 14th Amendment was ratified, 27 of the 37 states banned abortion throughout pregnancy. The state of Mississippi makes this claim in Dobbs v. Jackson Women’s Health Organization, the pending case, and no fewer than five amicus briefs repeat it.

This claim is wrong, grounded on a series of historical errors. The foundational mistake is the failure to grapple with the long-standing rule that abortion was legal so long as it was performed before quickening, the first noticeable fetal movement that often occurs at 15 or 16 weeks.

The concept of quickening is crucial because people understood it to represent the first sign of life. Sir William Blackstone, an 18th-century jurist whom originalists deem a “preeminent” originalist authority, wrote that abortion is unlawful only after a “woman is quick with child” because that is when life “begins in contemplation of law.” As historian James Mohr has explained, the “distinction between quick and unquick” pregnancies was “virtually universal” in 19th-century America.

This historical reality undermines the 27-state claim. For instance, antiabortion advocates include Oregon in their count. Yet Oregon’s own prosecutors recognized in 1909 that, under the state’s 1864 abortion law, “abortion is not a crime . . . unless it results in the death of the mother, or of a quick fetus.”

Alabama and Nebraska are two other faulty examples. The Alabama Supreme Court declared in 1857 that abortion was not punishable by Alabama law unless “the woman was ‘quick with child,’ ” a fact at least one pro-life writer has conceded. And the Nebraska statute forbade only giving “any poison or other noxious or destructive substance” to a pregnant person. Safer abortion procedures remained legal.

The more accurate statement is that just 16 of 37 states prohibited abortion throughout pregnancy when the 14th Amendment was ratified. To put it in originalist terms, every single state recognized the lawfulness of pre-quickening abortion at the founding. And a substantial consensus of states continued to embrace this deeply rooted tradition in 1868.

Even the 16 states that banned pre-quickening abortions should hold dubious weight for originalists. Their laws were enacted in response to an all-male medical lobby that argued abortion was inherently “disastrous” to women’s health and that a woman was so “prone to … derangement” that she should not be “allowed to judge for herself in this matter.” Originalism is bound no more by these distorted views than it is bound by historic laws rooted in bigoted beliefs about white supremacy.

As much as this history undermines antiabortion forces who claim there is no constitutional protection for any abortion right, it also suggests that the existing rule, which prohibits states from banning abortion until fetal viability at about 24 weeks, lacks originalist support. Virtually every state in 1868 banned abortion after quickening.This outcome might be far from ideal for either side in the abortion wars. Yet in this deeply polarized moment, an originalist abortion middle ground may be the best the court — and the American people — can hope for.

In Supreme Court cases, our tendency is to focus on who should win. That’s not what matters most in Mahanoy Area School District v. B.L.

[Cross-posted from USA Today]

By Aaron Tang

Like every high school freshman ever, 14-year-old Brandi Levy had a bad week. She missed the cut for her high school’s varsity cheerleading team. She struggled at softball practice. And she worried about her final exams. So like every high school freshman, Levy vented. “F--- school f--- softball f--- cheer f--- everything,” she posted to her friends on Snapchat on a Saturday afternoon.

Unlike every other high school freshman, Levy’s angry snap spawned a controversy that is now before the Supreme Court.

Levy’s message, it turns out, found its way to her cheerleading coaches, who suspended her from the team. Two lower courts ruled that this violated Levy’s right to free speech, and the Supreme Court will hear oral argument in her case Wednesday.

When contemplating major Supreme Court cases, our natural tendency is to focus on who should win. Counterintuitively, that’s not what matters most in Mahanoy Area School District v. B.L. 

What matters more is what the court says about what comes next for the losing side. If the justices are wise, they will write an opinion ensuring that who loses can still protect their interests even after an adverse ruling.

The question in Mahanoy concerns the proper application of a canonical First Amendment decision, Tinker v. Des Moines. In Tinker, the Supreme Court famously held that although students do not “shed their constitutional rights ... at the schoolhouse gate,” the First Amendment permits public schools to punish students for speech that would “substantially disrupt” school activities. 

Tinker concerned three students who were suspended for wearing black armbands to protest the Vietnam War. The court ruled that this violated the students’ right to free speech because their protest caused little in-school disturbance.

Levy’s speech was different in a crucial respect. Unlike the armbands in Tinker, which were worn on campus, Levy’s speech took place entirely off-site.

The 3rd Circuit Court of Appeals thus held that Tinker’s carveout for student speech that would “substantially disrupt” school activities did not apply in the first place. Levy’s expression accordingly enjoyed full First Amendment protection.

It’s easy to sympathize with Levy’s plight. Yet the 3rd Circuit’s reasoning is also quite worrisome. Perhaps that court was correct that she shouldn’t have been punished for her casual weekend snaps, but surely students who engage in more dangerous off-site speech should be.

Consider the tragic story of Mallory Grossman, 12, a middle school student who was so brutally harassed by her classmates through Snapchat and other off-campus social media that she took her own life. Or Phoebe Smith, a 15-year-old freshman who hung herself after being victimized by relentless bullying, much of it online.

Schools must have the power to crack down on the perpetrators of such harmful and pernicious speech, even if it takes place off-campus.

But the interests on Levy’s side of the case are significant, too. Levy’s speech threatened no student or school employee. She simply wanted to vent a little and live her life.

Free expression at stake

To allow the school district to punish her for such relatable frustrations — feelings that teenagers around the nation share everyday online — would dangerously stifle free expression among the very young people whom schools are supposed to teach that value.

Who, then, should win the case? Happily, the answer is not as important as one might expect given the gravity of the conflict.

The reason is that whoever loses on the technical legal question — whether Tinker applies to off-campus speech — should still enjoy a meaningful strategy for protecting their interests moving forward. The key is for the Supreme Court to say so in any opinion it writes.

Start with a ruling against Levy. If the Supreme Court holds that school districts can, in fact, punish students for off-campus speech that meets Tinker’s substantial disruption standard, that is not the end of Levy’s case. She can (and should) still prevail if her snap did not actually create such a disruption.

As it turns out, the district court ruled in her favor on exactly this basis. Apart from a few comments from upset students — precisely the kind of reaction generated by the protests in Tinker — Levy’s snap caused no disruptive effect in school.  

Or consider a possible ruling against the school district. If the court wishes to protect the expressive interests of young people like Levy, it can affirm that Tinker has no application to off-campus speech.

But if it does that, it can (and should) also make clear that schools retain the power to punish students for off-campus speech that threatens, bullies or harasses others because such speech is not protected under standard First Amendment principles.

Tellingly, Levy agrees. As her brief puts it, “Ordinary First Amendment standards … already permit schools to regulate harassment and bullying, including when they are carried out by speech.”

Both sides need good options

The outcome of Supreme Court rulings on major societal conflicts can feel like a matter of life or death, so battles over the Supreme Court often feel the same way. That is especially true in this polarized moment. But a case like Mahanoy Area School District shows why it is important to look beyond the court and focus on what happens after the court issues its decisions. Sometimes, the side that loses a monumental case will still have meaningful options for avoiding harm.

Indeed, I’ve argued that the Supreme Court is increasingly deciding hard cases with this important idea in mind: A number of its recent opinions have reminded losing litigants of their other avenues for redress.

By signaling the availability of these post-defeat responses, the court ensures that its decisions avoid all-out losers. The court should continue on this promising path, both in Mahanoy and the other cases on its docket.

[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.

[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.

[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 Philadelphia. The 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.

[Cross-posted from the New York Times]

By Aaron Tang, Ethan Hutt and Daniel Klasik

Already ravaged by poor health outcomes and joblessness before a crushing wave of Covid-19 cases, the people of Detroit received welcome news Thursday in the form of a long-awaited ruling from a federal Court of Appeals. In Gary B. v. Whitmer, a three-judge panel on the Sixth Circuit Court of Appeals held that Detroit's students enjoy a "fundamental right" to literacy under the United States Constitution. If allowed to stand, this landmark ruling could force the State of Michigan to dramatically improve the quality of education offered to thousands of Detroit's most disadvantaged students.

Sadly, the decision is likely to be reversed. The political and economic reality is that if poor children and children of color in Detroit are ever to have the schools they deserve, state elected officials - not the courts - will need to be the ones to deliver it.

The student plaintiffs in Gary B. v. Whitmer alleged that several of Detroit's lowest-performing public schools employ teachers without appropriate training, lack basic instructional materials like textbooks or supplies and occupy decrepit buildings infested with vermin. "If proven true," the court held, these allegations "would demonstrate that [the plaintiff students] have been deprived of an education providing access to literacy."This candid recognition of the unjust educational conditions facing Detroit's poorest children is admirable. But there is almost no chance that the Sixth Circuit's ruling will ever be enforced. The entire Sixth Circuit, of which only five of the current 16 members were appointed by Democratic presidents, will almost assuredly take up the Gary B. panel opinion. And the panel's ruling is unlikely to survive this review. Even if it does, the conservative majority on the Supreme Court is exceedingly unlikely to let it stand.

This is because the panel's ruling relies on a constitutional law doctrine known as substantive due process. While progressive judges and academics have generally supported it, conservatives have been less sympathetic. There is little reason to think the conservative justices - who have long expressed disdain for this line of cases, which include controversial rulings such as Roe v. Wade - would change their minds to guarantee a federal right to literacy. And historically, conservatives have fervently championed local control in education over federal edicts from Congress (to say nothing of edicts from unelected judges).

In addition to the political challenges to the federal right to literacy, there is another obstacle: the economy. In a forthcoming paper in the Washington University Law Review, we analyzed more than 300 state-level rulings concerning state constitutional challenges to school funding. We found that one of the most powerful predictors of whether a court will ultimately impose liability on a state is the condition of the national economy: For every percentage-point reduction in national G.D.P. growth in the year of the ruling, judges are 6 percent less likely to rule against the state. Why? Our best sense is that judges grow more reluctant to issue costly liability rulings that would require states to raise taxes or cut essential services when their budgets are already deeply in the red. Given that America is about to experience a painful economic retraction this quarter with little relief in sight, our findings bode especially poorly for children.

What does this mean for Gary B. and the children of Detroit? Even if the Sixth Circuit panel's ruling survived further review, the decision only settles the legal question of the existence of a fundamental right to literacy. It sends back to the district court the critical factual question: namely whether Michigan actually deprived Detroit children of that right - a right the court itself characterized as a "basic minimum education." And because the state will almost certainly introduce competing evidence about the quality of education available to Detroit children, the district judge in this case (who already ruled against the plaintiffs in the very opinion the Sixth Circuit panel reversed) might be tempted to conclude in the face of a dire budget shortfall that Michigan did enough - even if just barely.

Given this, Detroit's citizens shouldn't rely on the federal courts to enforce educational equality. But there is hope. It rests on other side of the case caption - with the named defendant, Gov. Gretchen Whitmer of Michigan.

As a candidate, Ms. Whitmer criticized Gov. Rick Snyder for opposing the Detroit plaintiffs' claim to a right to literacy. But rather than reverse Mr. Snyder's position once she took office, Ms. Whitmer instead avoided the issue by arguing that the Sixth Circuit should dismiss the plaintiffs' suit on alternative grounds.

The Sixth Circuit's ruling that Detroit children do, in fact, enjoy a constitutional right to literacy should spur Ms. Whitmer into action. A legislative solution to invest dramatically more resources in Detroit's schools would work wonders for the state's long-term economic outlook - perhaps a compelling argument Ms. Whitmer can make to Michigan's Republican-controlled Legislature. Such a solution wouldn't rely on the courts. And most importantly, it's what the city's children deserve.

[Cross-posted from The Atlantic]

By Aaron Tang

This is an essay about two words no one wants to see in the same story: guns and schools. But this isn’t about school shootings. This is instead about two starkly different social-activist groups: gun-rights proponents and educational-equity advocates. It’s about their steadfast pursuit of wildly divergent civil rights. It’s about a surprising similarity in their legal strategies. And more than anything, it’s a story about law and ideology, and the difficulty of deciding the former without the influence of the latter.  

Both groups have long courted the Supreme Court’s intervention. Spearheaded by new leadership at the NRA in the late 1970s, gun-rights activists engaged for decades in an effort to persuade the Supreme Court to recognize an individual Second Amendment right to bear arms for self-defense at home. The Court ultimately enshrined that right 12 years ago in D.C. v. Heller, displacing a long-standing consensus to the contrary. In the years after Heller, however, conservatives such as Justice Clarence Thomas frequently complained that the Court had ignored this fledgling right by refusing to expand its reach beyond the facts of Heller itself, effectively resigning the right to “second-class” status.

Second-class no more. In New York State Rifle & Pistol Association v. New York, a major case argued in December, the Court appears poised to expand the Second Amendment to protect gun possession outside the home as well. Just how far is an open question, though gun-rights groups have focused for now on enshrining a right to transport guns to shooting ranges and second homes.

For educational-equity advocates, the Court’s involvement has not been as helpful. The Court declared in 1973 that the Constitution guarantees no right to an education. That ruling paved the way for today’s radically unequal public-school spending patterns—patterns that reinforce and exacerbate existing socioeconomic and racial inequalities.

Like the gun activists, educational-equality proponents have not given up their vision of a constitutional solution. Equity advocates’ present litigation strategy is exemplified by a case known as Gary B v. Whitmer, which is currently pending in the United States Court of Appeals for the Sixth Circuit. The complaint in the case is painful to read: Many classes in Detroit public schools are taught by unqualified substitutes, and many classrooms use textbooks that are decades old, or lack them altogether. School buildings are in complete disrepair; the temperature had risen to 110 degrees in one building because of the lack of air conditioning, and students have to wear jackets and hats inside a number of schools during the winter months because of the lack of heat.

These schools, the plaintiffs argue, have deprived Detroit schoolchildren of their basic right to literacy, in violation of the equal-protection and due-process clauses of the Fourteenth Amendment. A district judge rejected the plaintiffs’ theory in 2018, but a panel of judges on the Sixth Circuit Court of Appeals seemed more receptive during oral argument in October. And regardless of the outcome of the case in the Sixth Circuit, the Supreme Court will likely have the final say, perhaps as early as in 2021.

At first glance, the gun-rights movement and the pursuit of educational equity seem to have little in common. But they in fact share an approach: Both promote arguments that rely on what are called “implied” or “unenumerated” constitutional rights.

Start with the gun activists’ position in New York State Rifle & Pistol Association. One of their primary objectives is to vindicate a constitutional right to transport their firearms to any shooting range of their choosing. (New York City forbade certain gun owners with premises licenses from bringing their guns to shooting ranges outside city limits—at least, that is, before the city and state both amended the law to permit such travel. The gun-owning plaintiffs wanted to shoot at ranges in New Jersey.)

The argument for a constitutional right to train at any shooting range is far from obvious. The Second Amendment speaks of a right to “keep” and “bear” arms, but says nothing about a right to train or practice. And indeed, cities and states at the founding often restricted gun owners to practicing only at prescribed locations.

So what do the gun activists argue? It’s worth reproducing this argument from their brief verbatim, with emphasis added to a single word: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use … after all, the core right to keep and bear arms for self-defense wouldn’t mean much without the training and practice that make it effective.” The Second Amendment may say nothing about the right to practice at a shooting range of one’s choosing, in other words, but that right ought to be recognized implicitly because it is important for an express constitutional right to have full meaning.

Now consider the argument advanced by advocates of a constitutional right to basic literacy. Like gun activists and their right to firearms training, educational-equity advocates recognize that the Constitution says nothing explicit about education. But surely a guarantee of basic literacy skills must be implicit in the document in order for its express rights to have meaning. As the Gary B. complaint puts it, “without access to basic literacy skills, citizens cannot engage in knowledgeable and informed voting,” cannot exercise “their right to engage in political speech” under the First Amendment, and cannot enjoy their “constitutionally protected access to the judicial system … including the retention of an attorney and the receipt of notice sufficient to satisfy due process.”

The identical logical structure that underpins these otherwise distinctive arguments presents a puzzle for the Supreme Court. How can it in good faith accept a theory of implied constitutional rights for gun owners only to reject the same argument for schoolchildren? Yet the consensus among close followers is that this is the most likely outcome: Gun-rights activists believe the Court is primed to deliver them a victory in New York State Rifle & Pistol Association, while educational-equity advocates recognize that the Court’s conservative majority is unlikely to rule in their favor.

Should it come to pass, a pro-gun, anti-schoolchildren result would reveal some bleak lessons about the Supreme Court and the influence of political ideology on its justices. When logic cannot support the Court’s divergent decisions, the public is left with the impression that the Court is just engaged in politics by another name—that the “Supreme Court is not a court and its justices are not judges.” This has happened before: The Rehnquist Court famously took a cramped view of Congress’s power to regulate violence against women and (ironically enough) gun possession in school zones under the commerce clause. But when faced with a similar attack against Congress’s power to criminalize homegrown-marijuana production and use, the Court did a sudden about-face, broadly defending congressional authority.  

Perhaps, then, a neutral theory of implied rights—one founded on first principles instead of politics—ought to shape constitutional law. Under such a theory, starting with shared values seems fitting. To that end, consider Chief Justice John Marshall’s famous declaration two centuries ago that “we must never forget that it is a Constitution we are expounding.” A constitution’s very “nature,” Chief Justice Marshall explained, “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”  

Put another way, implied rights are a necessary consequence of the shared effort to live in a democracy bound by a timeless and embracing constitutional document. The Constitution is short for a reason: It lets people work out their problems over time, as they develop. Thus, many of America’s proudest judicial moments champion implied rights: the right to vote in state elections, the right to appeal a criminal conviction, and even the right to procreate. Like the right to vote, in particular, the right to education is “preservative of other basic civil and political rights,” and should be recognized for the same reason. And if one agrees with Heller’s individual, self-defense interpretation of the Second Amendment right—an assumption that, to be sure, is subject to powerful counterarguments—then an individual right to train with firearms would be entitled to the same logical underpinning.

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

[Cross-posted from Harvard Law Review Blog]

By Aaron Tang

The Supreme Court has just heard oral argument in Espinoza v. Montana Department of Revenue, a high-profile case involving a Montana private school voucher program that a number of families used to enroll their children in religious schools.  The Montana Supreme Court struck down the program, ruling that it violates a Montana constitutional provision that forbids any public funding to be used in aid of a religious school. 

Now the Supreme Court is set to decide if Montana’s application of its no-aid-to-religious-schools provision was itself unconstitutional.  The question is profoundly important because at last count thirty-eight states have similar prohibitions in their constitutions.

For proponents of religious education, oral argument could hardly have gone better.  The only Justice who asked probing questions of both sides was Chief Justice Roberts, but even he tipped his hand in analogizing Montana’s action to an outright instance of racial discrimination.  Suppose a state were to “buil[d] parks and pools,” the Chief began, but then decide that “if a higher percentage of African Americans come and use the pools, then we’re going to shut down the whole program. . . . That wouldn’t be good under your view, would it?  [Yet] how is that different than religion, which is also protected under [the Constitution]?”      

Given the likely outcome in the case, what are progressives to do?  It depends on what we really think is at stake in this case.  There are three possibilities.

One worry is that by striking down state no-aid provisions, the Court will threaten the wall between church and state by forcing states to subsidize religious education.  But this isn’t quite right: nothing in the Supreme Court’s looming decision will force states to enact private school vouchers at all.  As even counsel for the families challenging the Montana Supreme Court decision conceded, a state would be perfectly free to fund only its public schools, thus offering notaxpayer dollars to any private school, religious or secular.

The core constitutional principle in the case, in other words, isn’t the fear that states will use public dollars to establish religion over secularism (or one religion over another).  The principle is instead one of equal treatment: if a state decides to offer public funding to secular private schools, must it treat religious private schools equally?  That is a less objectionable demand—indeed, there is broad support for the general notion that people should not be subjected to disfavored treatment on the basis of their religion.  Federal anti-discrimination law, for instance, already forbids employers to fire employees because of their religion.  It’s not a far leap to think a similar rule should apply to institutions, too.  Things would be vastly different, to be sure, if public dollars were used to force unwilling students to attend a religious school.  But worries about government coercion or endorsement are mitigated when, as here, voucher-using families choose to do so on their own free will.

A second possibility is that this case is not actually about religion, but rather about school vouchers.  On this view, the progressive nightmare in Espinoza is that it will lend further support for the private school choice movement.  As Democratic presidential hopeful Senator Elizabeth Warren puts it, Democrats should oppose vouchers because they “diver[t] public dollars from traditional public schools.”

But is that necessarily a bad thing for Montana school children?  It turns out the research evidence is far from conclusive on either side.  Four recent studies have found significant negative effects from voucher use on participating students, but eight earlier studies found modest positive effects.  Complicating matters further, a leading survey of research recently concluded that “virtually all of th[e] studies” of voucher effects on public schools “find that public-school achievement increases” after a voucher program is introduced, though some of that effect may owe to the power of school accountability generally.  Vouchers, in short, may actually spark improvement in our public schools.  And at a minimum, vouchers offer a modicum of educational choice to low-income parents—choices that their more affluent counterparts already enjoy.

Given this uncertain evidence, it strikes me that the battle over school vouchers is not a worthwhile hill for progressives to die on.  In fact, progressives generally support the use of taxpayer dollars at private schools when the public schools fail students with disabilities; perhaps the same should be true for low-income students, too. 

There is, however, one more issue at stake in this case that progressives ought to take to the mat: nearly one-third of the private religious schools that participated in Montana’s voucher program expressly discriminate against LGBT staff and/or employees.  A prior study estimated roughly fourteen percent of religious schools nationwide have similar policies.  Here’s an example from the one participating Montana school’s handbook:

“Heritage Christian School reserves the right to . . . reject students, either new or current, at its sole discretion on the basis of . . . lesbian, gay, bisexual and/or transgender conduct.” 

It is one thing for a religious school to demand that it not be subjected to discrimination in the receipt of generally applicable benefits like a private school voucher program.  It’s quite another for a religious school to demand non-discriminatory treatment even as it engages in its own discrimination against its students.  The latter is, to say the least, not ok.

So what are progressives to do?  One idea is for progressive lawmakers to offer their support for private school voucher programs that are available to low-income students to attend secular and religious schools alike, conditioned on the requirement that receiving schools may not discriminate on basis of LGBT status, race, or other protected characteristics.  Under that neutral, generally applicable (and therefore constitutionally permissible) rule, all private schools—religious and secular—would be eligible to receive the voucher so long as they follow basic anti-discrimination norms.

Such an approach might create a broad, bipartisan consensus around shared values: religious schools shouldn’t be punished just because of their affiliation; private school choice should be available to low-income students so long as the evidence continues to suggest it may be beneficial; and crucially, no private school—whether religious or not—should be allowed to discriminate against its students.  The latter point in particular enjoys widespread support in our society: a recent survey found sixty-nine percent of Americans favor laws protecting LGBT persons from discrimination.

Not only would such a compromise preserve basic equal-treatment values that progressives care deeply about, it would also force conservatives to admit what they really value, too.  Many conservatives, I believe, will be more than happy with eliminating the differential treatment of religious institutions and promoting school choice for disadvantaged students.  These principled conservatives should gladly support a voucher policy with anti-discrimination provisions. 

And for any conservatives who want Espinoza to stand for the proposition that they can use taxpayer dollars to discriminate against members of the LGBT community?  They would be forced to say those untenable words aloud.