Sunday, October 4, 2020

by Anna Salvatore

NOTE: This post originally appeared on Gabe Fleisher’s Wake Up To Politics newsletter on October 1. In the upcoming Supreme Court term, Gabe will include my occasional analysis and my daily previews of oral arguments. You can subscribe to the newsletters by clicking this link and scrolling down to the red “subscribe” box. Thanks!

Justice Ruth Bader Ginsburg famously said that there will be enough women on the Supreme Court when they are nine. But days after her death, the jurist appointed to replace her — Judge Amy Coney Barrett of the Chicago-based U.S. Court of Appeals for the Seventh Circuit — would likely overturn several of the decisions which Ginsburg promoted. 

Coney Barrett identifies as an originalist, which means that she interprets the Constitution based on how its words were understood by the Americans who ratified them. When words’ original meaning is unclear, she looks to their dictionary definitions rather than what lawmakers intended them to mean. Although she will be not vote hard-right in every case, because the Supreme Court is unanimous in roughly 36% of its decisions, Coney Barrett will probably lean rightwards in cases which divide the justices along partisan lines, namely those relating to social issues like abortion, healthcare, and the right to bear arms. Her presence on the Court could solidify a six-justice conservative majority for decades. 

At her confirmation hearings in 2017 for the Seventh Circuit, Coney Barrett vowed to treat Roe v. Wade with the same respect as all other Supreme Court precedents. Her vow was unremarkable, because circuit judges are required by law and strict norms to abide by Court decisions. Soon Coney Barrett will acquire the power to overturn decades-old Court precedents, and no matter what she promises at her confirmation hearings, her past writings indicate that she will vote to limit abortion access. 

In 2018, Coney Barrett joined a dissenting opinion that would have upheld Indiana’s ban of abortions that targeted fetuses for sex, race, or other attributes. When her colleagues on the Seventh Circuit invalidated an Indiana law requiring aborted fetuses to be buried or cremated, she argued that the law should have been upheld because it didn’t burden women seeking abortions. She is adored by pro-life groups and law professors, with Senator Josh Hawley saying “I don’t think there’s much doubt” that she would overturn Roe. And she has deep personal convictions on the topic, having carried her son to term even after learning that he would have Down syndrome. 

As for her views on health care, Coney Barrett wrote in a 2017 essay that Chief Justice Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute” and criticized him for disobeying the plain text of the Constitution. If confirmed, Coney Barrett would surprise no one by voting to topple Obama’s signature legislation – a possibility which House Speaker Nancy Pelosi has noted in agitating for a delayed nomination. 

Her jurisprudence on the Second Amendment would be similarly conservative, resembling that of the late Justice Scalia more than it would Justice Ginsburg’s. We can expect this thanks to her March 2019 dissent in Kanter v. Barr, when Coney Barrett was the only judge (on a panel with two other conservatives) who voted to overturn a law banning felons from possessing guns, writing that her colleagues “[treated] the Second Amendment as a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees’” (quoting from McDonald v. City of Chicago). Her belief in a fulsome Second Amendment means that she will be far readier than Ginsburg to strike down gun control laws. 

Judges of different partisan backgrounds prefer different parts of the Constitution. To a left-leaning justice like Ruth Bader Ginsburg, the Equal Protection Clause was a tool for ensuring gender equality; to conservatives like Amy Coney Barrett, the Second Amendment and the Free Exercise Clause are vital for restoring Americans’ freedom. It’s a matter of when and not if Coney Barrett will bring her distinct constitutional preferences to the Supreme Court. 

Interview: Rep. Andy Harris

by Noelle McDowell

Andy Harris has been the U.S. Representative for Maryland’s 1st District for the past decade. Before joining Congress, Harris served as a member of the Maryland State Senate for 12 years. Dr. Harris is also a physician and has practiced anesthesiology for over 30 years. During his time in the Navy Medical Corps, Harris was called on active duty to serve during Operation Desert Storm.

Noelle’s questions are in bold, and Rep. Harris’s answers are in plain text.

What sort of person were you in high school? Were you already interested in medicine? What about politics? 

I was already interested in medicine; I knew that was what I was going to do. I went to do a natural science major at the University of Pennsylvania and then went to Johns Hopkins Medical School after that. I was always interested in policy, because my parents had left Communist countries. They understood that policy was important, that politics was important, and that who controls the government is important and can interfere with your liberties and freedoms. That’s why they came to this country and set a very good example for involvement, voting as often as possible and staying on top of current issues. 

You got your Bachelors of Science, your Medical Degree, and your Masters of Health Science all from Johns Hopkins University, making you a triple alumnus. Why did you always choose to go back? 

Well the Bachelors and the Medical Degree came as a part of a five year program, at the end of two years you got your bachelors degree and at the end of five years you got your medical degree. It was an up-and-coming anesthesiology department, so I decided to continue there. At the end of my training, I was offered a faculty position, so I decided to stay on the faculty. As I realized more and more that medicine involved policy, I got my Masters of Health Science in the Health, Policy, and Management Department at the School of Public Affairs. 

After so many years of successful medical practice at the Johns Hopkins Hospital in Baltimore and your time in the Navy Medical Corps, why did you decide to run for the MD State Senate in 1998? 

Like I said, I’ve always been interested in policy, and at the time I was involved in the State Society of Anesthesiologists. The opportunity arose, and the attraction of the MD state senate was that it is a part-time legislature. I could be a legislator for three months out of the year, and for the other nine I could continue my practice and my research at Hopkins.

Ten years after that, you ran for Congress for the first time. What made you want to take that bigger role? Were there any particular issues that you were motivated to address? 

Health issues are incredibly important at the federal level. I frequently talk to medical groups about the federalization of health care policy that’s occurred over the past twenty years. I saw the opportunity to have an even bigger impact on health care by being in Washington, so I took it. 

Do you think that the federalization of health care policy has been a good thing? 

No, but my observation was that it was occurring. [laughs] Obviously health care is not mentioned in the Constitution, and it’s still something that I think is best left at the state level to a large extent. In general, I think a lot of things can be handled very well at the state level, and I think health care is one of them. Through the increased number of people, for instance, in the Medicare program, with the aging of that demographic, it’s just become clear that we have increased federalization of health care. The ultimate federalization would of course be what’s being discussed right now, Medicare For All, in which case all health care would be handled at the federal level. 

The Constitution prescribes you a two-year term limit as a US Representative, which was intended to keep representatives accountable to their constituents, but it also means that you practically have to be campaigning all the time. 

Yes, you have to be listening to what your constituents are thinking about all the time, which is actually what you should be doing as an elected official. [laughs] So I fully support keeping it at a two-year limit. The Senate is fine with a six year limit; that house was designed to run differently. I think that Maryland would actually be much better served by not having all their elected offices at the state level for a four year term and not having everyone elected at the same time. I think they should stagger it as other states do. That keeps you more responsive to the people. 

Tell us a little more about campaigning. Is it stressful? What’s enjoyable? 

In the past few years, it’s gotten contentious with threats of violence and things like that. That should not be part of the American process. I’ve always held town hall meetings; I enjoy hearing people giving their opinion. Hopefully they do it in a respectful manner, where you respect other people’s time and the people there. If we do everything in a respectful manner, that’s what this country is all about. In the countries where my parents fled from, if you came to a meeting and criticised a government official, you probably ended up in jail that night. You didn’t get to go home, you got to go to jail. That’s not the way America is, and we have to preserve that.

For a while, D.C. residents have protested their deficiency of representation in Congress. In June, you testified on the House floor suggesting the retrocession of DC land back to Maryland. From a Constitutional perspective, how would that work? 

The same way it worked for Virginia back in the 1840’s. The bottom line is that the land given for the specific purpose of establishing a federal government could be given back to Maryland (obviously Maryland would have to agree). You could give back fairly large parts of the district and still maintain the protection of the federal government that I think is necessary and was wisely decided on by the people who wrote the Constitution. I think we see that very clearly by the protests that occurred literally right outside the White House. If that land was not federal land, those federal police could not have been there. You could imagine that if you had a leadership in a state that disagreed, they could actually promote that kind of activity right on the doorstep of the federal government. That had in fact occurred in Philadelphia before the Constitution was written, and that was on the minds of the writers when they established a federal enclave that no state could control. 

What do you think about the question of statehood for other non-represented territories? Take Puerto Rico, for instance. 

If they get the number of votes in Congress, then they will have statehood. It’s a very different circumstance from the District of Columbia, which is specifically described in the Constitution as a federal enclave. There was a clear way to make a territory a state, but there was no method outlined in the Constitution to make the District of Columbia a state. That’s why people believe that if the bill for statehood passed through the Senate and had been signed by the President, it likely would have had a Supreme Court challenge. I think the Supreme Court likely would have said, “No, you followed the way to make a territory a state, but the District of Columbia is not a territory; it’s dealt with very specifically in the Constitution.” 

As a medical professional and a legislator, what guidance can you give for the government’s response to the Coronavirus? 

What we need to realize, from the very beginning, is that with a respiratory virus like this, unless it mutates in a favorable direction (which it doesn’t look like it’s doing), everybody or almost everybody, will eventually get this virus if you don’t develop a vaccine. So the only way out is to develop one. That’s why I was fully supportive of Operation Warp Speed. For the first time ever in history, we will likely have an FDA-approved vaccine literally within nine months of its conceptualization. That’s just completely unprecedented; we have never before been able to cut through the red tape while maintaining safety to that extent.

In May, you co-sponsored House Resolution 955, which expressed dissatisfaction with government officials across the nation who had “abused their authority by infringing on the Constitutional rights of Americans, ordering private businesses to close, requiring citizens to stay in their homes, and imposing draconian punishments for violations.” The pandemic has raised questions about the right to assembly, the free exercise clause, and our liberty in general. How can we balance citizens’ rights with safety? 

The freedom of religion and of religious practice, as well as the freedom of assembly, are specifically guaranteed in the Constitution. I was particularly bothered when some governors would, in some instances, treat religious institutions, churches in particular, differently and more stringently than they did the local Walmart or Home Depot. This is not the way it should be. I strongly resist the idea that the government should ever tell you, first of all, whether or not you can assemble for a protest against the government, which some governments attempted to do early on, and second, whether or not you can assemble to practice your religion. 

Have you seen any positive results of the Coronavirus pandemic? 

Obviously it’s a tragedy that people die of a medical virus. That’s why I went to medical school, to improve people’s health. Fortunately, this virus is less deadly than it could have been, especially among younger healthy people. At first, it was predicted that one to two million Americans would die from this. We’re about to pass two hundred thousand, which of course is a tragedy, but it’s not one or two million. It’s also allowed us to have a program like Operation Warp Speed, where we’ve realized that if we need to develop a vaccine, we can do it quickly. We funded ten billion dollars of research to make vaccines much more easily developed in the future. I think it exposed some of the weaknesses in our supply chains that we will need in the future. So the silver lining is that we will have made tremendous advances for the next pandemic.

Monday, September 21, 2020

Welcome to the readers who are finding High School SCOTUS through my piece on Wake Up To Politics.

If you are interested in reading my past interviews with judges, journalists, law professors, and even a court artist, then please refer to the list below.

If you are interested in more in-depth legal analysis, then you can click through the archives on the side of the website. There you can read both my writing and the contributions of fourteen teenagers across the country.

Thanks for your time!

Monday, August 3, 2020

Dear readers,

It’s been a little over two years since I founded High School SCOTUS. Starting as a solo effort that focused on legal history, the website has become a forum for young people to write about the Supreme Court in general. Fourteen teenagers, hailing from states as far-flung as Oklahoma, New York, and Florida, have joined the blog to preview oral arguments and analyze the Court’s decisions. I am proud of the work we’ve published together: our posts range from in-person reporting to intricate legal analysis to interviews with federal judges.

Some of you have asked what will happen when I graduate high school. My friends jokingly wonder if the website will transform into “College SCOTUS,” “Law School SCOTUS,” and “Middle-Aged SCOTUS.”

The answer is that my blog will keep its name, but I will no longer be writing for it. Having graduated from high school in late June, I would now like to move on — to focus on my upcoming internship at Lawfare and then my coursework at Princeton. I will publish articles from the remaining High School SCOTUS contributors until they graduate high school. Then my hope is that the blog will become an archive for anyone who wants to read our nonpartisan coverage of the Court.

Thank you to the law professors, judges, and journalists who granted my interview requests when I was a nervous fifteen year-old. Thank you, readers, for your time and endless support. And “thank you” isn’t enough for my mom and dad, who have been the loudest fans of High School SCOTUS since it began one March afternoon in my living room.

Please don’t hesitate to reach out to me at highschoolscotus@gmail.com if you’d like to stay in touch. For now, goodbye!

— Anna Salvatore

Tuesday, July 28, 2020

Hi everyone! Please stop what you’re doing and visit collegevotersunited.org/vote

My friend Hope Perry, a rising freshman at Princeton University, made College Voters United “because voting should be simple.” Her website includes accurate voting information for all fifty states, with guidance on where to register, when polls are open, and how to vote by mail.

Accurate and comprehensive voting information is hard to find, especially for first-time voters who are unfamiliar with the myriad inefficiencies of the electoral system. Hope’s website makes it easy to fulfill our civic obligation to vote.

To counteract young voters’ cynicism about the value of voting, College Voters United even has a “Why Vote?” tab where teenagers share their reasons for voting. Today, student Alicia Method says she votes because she wants politicians to take gun control seriously.

I’m proud to have helped Hope compile voting information for her site, a process that involved scouring government websites and calling states for clarifications. But she deserves the credit for creating a team and turning her vision into reality. I urge you to follow her work, as well as to share her website with your children, your students, or your classmates so that they can participate in the 2020 election. 

Sunday, July 12, 2020

Washington’s Response to the Coronavirus

By Rishav Dhar

Over the past few months, Congress has passed multiple coronavirus stimulus bills. Around March, the stock market took a nosedive, which prompted Congress to use stimulus money to keep corporations afloat. There were a number of reasons why businesses collapsed. Employees for many businesses had to stay home or limit their efficiency, as they would only be able to work and communicate remotely. Since Americans were spending less money on oil, American gas companies suffered too. Saudi Arabian oil companies flooding our markets with oil further contributed to the crisis, and as a result US crude oil prices fell from $43.73 a barrel to just $28 a barrel. The surplus of oil in the market made oil obtained in the US via fracking completely useless. 

The March stimulus bill included $2 trillion in stimulus. Under the plan negotiated by the Democrats and Republicans, single Americans would receive $1,200, married couples would get $2,400 and parents would see $500 for each child under age 17. Congress expanded unemployment insurance on an unprecedented level; the federal government would give jobless workers an extra $600 a week for four months on top of their state benefits. Congress also agreed to 13 weeks of extended unemployment benefits, as well as to temporarily resolving debt for college students and injecting money into small businesses. 

The bill sparked controversy from both Democrats and Republicans. Some Democrats argued that the stimulus bill did not provide nearly enough protections or provisions for workers. Other democrats, including House Speaker Nancy Pelosi, urged their colleagues to be happy with the progress that they had made and suggested addressing worker protections in later bills. Republicans like Senator Lindsey Graham argued that the bill provided too many protections to workers and didn’t incentivize working. 

I believe that the March stimulus bill was ineffective, and not for either of the reasons Democrats or Republicans criticized it. For one, the bill was overly means-tested; workers earning more than $75,000 a year would not see much stimulus, and workers earning much more than that would not get stimulus checks at all. The amount of money included in the bill was also not even enough to support most unemployed people for more than a month, which is why many petitioned Congress to write further bills for further stimulus packages. Republican leader Mitch McConnell, a stalwart opponent to government spending in the form of unemployment benefits and worker stimulus packages, even said that he would be in favor of another bill, though he did say that it would be the last one Congress would pass during the coronavirus crisis. 

March’s bill was also criticized because it gave a lot of money to bail out corporations. In separate installments, the federal government agreed to resolve debt for stock traders and corporations for $50 billion, $25 billion, and finally a whopping $1.5 trillion on March 12. These bailouts were broad in scope and were ultimately ineffective. The stock market continued to plummet in the days following March 12th, and even several months later it maintains a shaky boom-bust cycle.

President Trump loathes a Democrat-written section of the bill that created an inspector general to monitor the corporate bailout money. In a statement released hours after signing it, the president suggested that he could decide what information this investigator could share with Congress due to his executive privilege. Executive privilege is the president’s right to have confidential conversations within the executive branch (in some situations) and to resist certain subpoenas and oversight by the neighboring branches of government. The right is triggered when revealing information would impair governmental functions. The words “executive privilege” are not explicitly mentioned in the Constitution, but the Supreme Court has ruled in the past, such as in United States v. Nixon, that presidents and members of the executive branch are allowed to invoke the privilege when there is a genuine need for confidentiality in decisions. However, withholding information from Congress about stimulus funds would likely not fall under executive privilege. This is because a significant requirement of executive privilege is that it can only protect or control communications sent or received by the president or his immediate advisors; communication between Congress and an investigator employed to oversee funds by Congress wouldn’t fall under the control of the executive branch, but rather the legislative branch. 

Executive privilege, as well as presidential signed statements, was used frequently during the second term of the Reagan administration. Presidential signing statements became more and more controversial after President George W. Bush used them to challenge more provisions of new laws than all previous presidents combined, including asserting a right to allow officials to bypass laws like a torture ban and oversight provisions of the USA Patriot Act. The American Bar Association has pushed in the past (in both 2006 and 2012) to get presidents to stop using signing statements to push laws or decisions through. Not only are signed statements not explicitly mentioned in the Constitution, the Bar Association believed them to be “contrary to the rule of law and our constitutional system of separation of powers.” Even in times of crisis, presidents should still adhere to the separation of powers in departments and not abuse executive privileges to control the flow of information from departments of the federal government.

Families First Coronavirus Response Act

Another bill that Congress recently passed was the Families First Coronavirus Response Act. This act requires employers to provide their workers with some provisions: two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work if the worker is quarantined or displaying symptoms of coronavirus, two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay if the worker is assisting a person or child diagnosed with coronavirus, and up to an additional ten weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay if a worker, who has been employed for at least 30 calendar days, is unable to work due to having to care for a family member or child. These provisions greatly assist workers, and are almost unanimously agreed upon as helpful provisions to Americans. 

Nevertheless, the FFCRA still doesn’t address childcare programs in schools for workers. Congress will address this in a later bill or let it be handled by states individually; considering that other issues, such as eviction protections and immigrant rights, were not addressed by the federal governments, many state governments will probably have to pick up the slack. Thus Congress’s actions are an important lesson in dual sovereignty; the powers not reserved to Congress by the Constitution are reserved to the states, who can establish their own far-reaching benefits for state residents. We will continue seeing the interplay between the federal government and the states as they confront the coronavirus. 

Opinions Released Today

by Anna Salvatore

The Supreme Court ruled this morning that almost all robocalls are illegal under the Telephone Consumer Protection Act of 1991. Justice Brett Kavanaugh wrote the majority opinion, striking down an exception that allowed the government to robocall people about collecting debts. Below are excerpts of Jamie Ehrlich’s article for CNN Politics, where she explains the contents of Barr v. American Assn. of Political Consultants, Inc. and its consequences for next year’s case on the Affordable Care Act.

“The Supreme Court upheld a federal ban on robocalls to cell phones on Monday, rejecting a bid by political consultants to open the floodgates for campaign ads and other communications.

In a decision that divided the court, Justice Brett Kavanaugh writes that an exception to the ban created by Congress is unconstitutional under the First Amendment — and that the overall ban should remain in place.

A federal appeals court held last year that the government debt exemption violated the First Amendment because it banned some calls based on content, but allowed others. The court said, however, that the provision could be severed and the rest of the law could remain in effect. This ruling was upheld by the Supreme Court.

The legal doctrine used by Kavanaugh in the opinion, known as severability — where Kavanaugh decided against invalidating the entire law while ruling one provision unconstitutional — could have wide implications for future cases heard by the court.

How courts should treat the rest of a statute when one provision is unconstitutional is at the heart of the major Obamacare challenge the Justices are set to hear next fall,’ Vladeck added. ‘Today’s decision suggests that only Justices [Clarence] Thomas and [Neil] Gorsuch are sympathetic to Texas’s argument in that case that the entire ACA should be struck down.'”

In Chiafalo v. Washington, the Supreme Court also held that states can punish their members of the Electoral College if they don’t support the state’s choice for President. Justice Kagan authored the opinion for the unanimous Court, writing that “the Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for President.” State laws that fire or penalize electors reflect “a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen.” Brenna Olson, a rising sophomore at American University, will soon write an analysis of Justice Kagan’s opinion for High School SCOTUS.

Monday, July 6, 2020

The Little Sisters Case & the Religious Freedom Restoration Act — Part I: Setting the Stage

By Will Foster & Curtis Herbert

Any day now, the Supreme Court will announce its ruling in Little Sisters of the Poor v. Pennsylvania. The case deals with the federal contraceptive mandate, which was created by the Obama administration and which generally requires employers to include contraceptive coverage in their employees’ health insurance plans. 

Little Sisters is the third case about the contraceptive mandate to come before the Supreme Court. From the beginning, the mandate was mired in controversy. In 2010, Congress passed the Affordable Care Act, a law requiring employers who offered insurance to their employees through a “group health plan” to include certain services and products — including “preventive care and screenings” for women — in those insurance plans without “any cost sharing requirements.” Congress left it to federal agencies, including the Department of Health and Human Services (HHS), to implement this provision of the law and to determine what female preventive care would be covered. 

In August 2011, a sub-agency within HHS, the Health Resources and Services Administration (HRSA), issued guidelines. It required employers to cover all FDA-approved female contraceptives, including some that, as the Supreme Court would later put it, “may result in the destruction of an embryo” (although that is disputed).

Later in the same month, the implementing agencies gave the HRSA greater ability “to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” The definition of “religious employer” was limited to “churches,” “their integrated auxiliaries,” “conventions or associations of churches,” and “the exclusively religious activities of any religious order.” Many religious groups slammed the mandate, irate that the religious exemption was so narrow. Seeking to stem massive public pressure, President Obama relented in February 2012, agreeing to extend an “accommodation” to a wider range of religious non-profits. Under the accommodation, as finalized in July 2013, religious non-profits who objected to paying for coverage of some or all contraceptives would not be required to do so. However, unlike fully exempt organizations, the non-profits would have to “comply with” the contraceptive mandate through another method. In essence, the non-profits had to sign a form which authorized (and, in many cases, obligated) their insurance company to pay for the objected-to contraceptive coverage. By creating this accommodation, the Obama administration sought to separate objecting religious non-profit employers from providing the contraceptive coverage. At the same time, the separate payments for contraceptive services would be provided by the same insurance company that the employer used for its health plan, thereby ensuring that employees received “seamless” coverage. 

This was a very clever solution, and one leading religious liberty expert thought it was “utterly inconsistent with the common charge that the Obama Administration is engaged in a ‘war on religion.’” Indeed, some religious institutions, such as Georgetown University, were satisfied with the accommodation. But many others were not. Even with the accommodation, the mandate still required objecting non-profits to take an affirmative step (signing a form) towards a goal the organizations considered morally wrong — with the threat of substantial fines ($100 per employee per day) looming over them if they did not comply. Plus, for-profit entities were still subject to the full brunt of the mandate; they had not been offered the accommodation. 

Challenges to the contraceptive mandate, from both for-profit and non-profit organizations, began snaking through the federal courts. In 2014, the Supreme Court held in Burwell v. Hobby Lobby that the Religious Freedom Restoration Act (RFRA) — a statute passed by Congress in 1993 in response to the Supreme Court’s narrow interpretation of the First Amendment’s Free Exercise Clause — prohibits the federal government from applying the full force of the contraceptive mandate to closely held for-profit corporations with religious objections to covering some or all contraceptives. The court reasoned that because the government could offer Hobby Lobby the accommodation that had been offered to religious non-profits, and because the accommodation still ensured employees’ access to contraception, there was no good reason for the government to insist that Hobby Lobby pay for the drugs and devices itself.  

Even as the Supreme Court was considering Hobby Lobby, appellate courts were dealing with other cases brought by non-profit organizations who felt their accommodation was insufficient. One of the suing entities was the Little Sisters of the Poor, an international Roman Catholic order of nuns who serve the elderly poor. The Little Sisters employ many people at their nursing homes, at least some of whom are likely women who do not share the Little Sisters’ faith and may wish to use birth control. On New Year’s Eve, 2013, hours before the mandate was set to go into effect and subject the Little Sisters to ruinous fines for non-compliance, Justice Sonia Sotomayor granted the Little Sisters temporary emergency relief from the mandate, which was later extended by the full Supreme Court. (There was no recorded dissent to that order, although a similar order several months later in a related case, Wheaton College v. Burwell, did garner a dissenting opinion.)

In 2016, the Supreme Court finally heard the non-profits’ cases (including the Little Sisters’) on the merits in Zubik v. Burwell. As then-Judge Kavanaugh had noted in a 2015 dissenting opinion in Priests for Life v. HHS, the Supreme Court’s orders in the Little Sisters’ case and Wheaton College were “not final merits rulings,” but were “extremely strong signals” that a majority of the Court believed the non-profits’ rights had likely been violated. However, due to Justice Antonin Scalia’s death, by the time the Court heard Zubik it was working with only eight members. Perhaps unable to reach a broader ruling without deadlocking 4-4, the Court unanimously handed the non-profits a small victory yet dodged all the core legal questions, essentially directing the parties to continue working toward a mutually agreeable solution without the government imposing any fines in the meantime. 

Four years later, the Little Sisters are back at the Supreme Court. This time their situation is different. Although the Obama administration couldn’t find a solution it liked after Zubik, the Trump administration promulgated rules in 2017 that gave broad religious and moral exemptions from the contraceptive mandate, fully satisfying the objections of the Little Sisters and many other organizations. Alas, Pennsylvania and New Jersey then sued the federal government, attempting to invalidate the new exemptions on the grounds that they violated the Administrative Procedure Act and were not authorized by the Affordable Care Act or RFRA. The states won in the Third Circuit, and the Little Sisters (who intervened to defend the exemption) and the federal government then successfully petitioned the Supreme Court to hear their case.

Under both the Obama and Trump administrations, HHS has argued that the Affordable Care Act gives the agency broad discretion to grant religious exemptions; recall that HHS fully exempted churches and other houses of worship from the contraceptive mandate from the beginning. Assuming HHS had the authority to grant that church exemption, the Trump administration clearly had the power to expand the exemption to cover more institutions with conscientious objections. There is no plausible reading of “such additional preventive care and screenings … as provided for in comprehensive guidelines” (the relevant language in the Affordable Care Act) that allows a federal agency to grant exemptions to churches but not to groups like the Little Sisters of the Poor.

So how do Pennsylvania and New Jersey, and their defenders, get around this simple logic? They argue that the Obama administration was wrong when it said that the Affordable Care Act allowed discretion to grant the church exemption. The states think the statute instead “delegated HRSA authority to oversee guidelines defining what preventive services for women must be covered, not who must cover them.” That reading is somewhat plausible, and it does have the benefit of narrowing the scope of the delegation of authority from Congress to the Executive Branch (although the federal government’s reading is unlikely to raise any concerns under the current anything-goes non-delegation doctrine). Nevertheless, deference to executive and administrative decisions is still very much the norm. It would be highly anomalous for the Supreme Court to substitute its own interpretation of the statute for an agency’s, especially where there is, in our view, no clearly superior interpretation available. 

Regardless, the Trump administration’s expanded religious exemption is independently required, or at the very least authorized, by RFRA. Or so we will argue in Parts II and III of this post, coming soon, in which we will explain in detail why we think the Little Sisters and the Trump administration should win their case. 

Wednesday, July 1, 2020

I’m pleased to announce that High School SCOTUS has a new contributor!

Noelle McDowell is a rising junior at Rockbridge Academy in Annapolis, Maryland. When Noelle was eleven, she told her parents that she no longer wanted to be the President of the United States. Nope. She wanted to be a Supreme Court Justice. “The President doesn’t even do anything — it’s the Supreme Court that does all the cool stuff!” Noelle loves competing on her school’s mock trial team, leading her school’s Students for Life club, volunteering with her church’s youth group, and belting out High School Musical songs just about whenever. 

Opinion Analysis: June Medical Services, LLC v. Russo

by Noelle McDowell

Since oral arguments were heard on March 4, 2020, the nation has waited in great suspense for the Supreme Court’s decision on June Medical Services, LLC v. Russo, the highest-profile abortion case in years. June Medical Services marks the first abortion-related case to be heard by Justices Neil Gorsuch and Brett Kavanaugh, who are both considered pro-life. Their appoinments gave the court the Court a conservative majority, frightening abortion rights supporters and raising the hopes of pro-life advocates that the Supreme Court might go so far as to overturn Roe v. Wade.

No such radical decision was made on Monday. By a 5-4 decision, the Court ruled that the contested Louisiana law creating stricter abortion clinic requirements created an “undue burden” on abortion access and was therefore unconstitutional. Justices Breyer, Kagan, Sotomayor, and Ginsburg, and Roberts formed the majority that struck down the law. Justices Alito, Gorsuch, Kavanaugh and Thomas dissented in favor of the law.

As the swing vote, Chief Justice Roberts’ vote was the most significant in this case, and his concurring opinion was fairly surprising. Roberts admitted that although he disagreed with the court’s decision, he decided to vote for it anyways. 

Why would he do that?

Chief Justice Roberts is generally considered a conservative on issues of race and executive power, but he sometimes votes against his beliefs in order to uphold the reputation and precedent of the Supreme Court. June Medical was one such case. Specifically, Roberts sided with the majority in order to uphold the Supreme Court’s precedent in Whole Woman’s Health v. Hellerstedt (2016). 

Whole Woman’s Health, a case arising from Texas, is nearly indistinguishable from June Medical. In both cases, abortion providers challenged a state law that imposed strict requirements for their facilities. 

In July of 2014, the Texas House of Representatives passed a law (Texas HB 2) that required abortion providers in the state to have “admitting privileges” at a hospital within a 30-mile radius of their clinic. Admitting privileges are rights that hospitals grant to doctors allowing them to admit patients to the hospital and to continue to care for them there. These privileges are meant to ensure that women receiving abortions have quick access to hospital care in emergency situations. For example, if something goes wrong with a surgical abortion and a woman is severely injured, her doctor can rush her to the hospital and coordinate her care with hospital staff. 

Texas’s HB 2 also required abortion providers to meet a certain set of standards for their building, staffing, and operational procedures. In Louisiana, other types of outpatient surgical facilities and physicians were required to meet certain health and safety standards. The ‘Unsafe Abortion Protection Act’ called abortion facilites and physicians to the same standard of excellence. HB 2 states: “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted… for ambulatory surgical centers.” 

In the end, HB 2 had a much greater effect than just raising abortion facility standards. Obtaining admitting privileges can be a difficult process for many doctors, and some clinics were not within the specified 30-mile radius of a hospital. Before HB 2, there were more than 40 licensced abortion facilities in Texas. Once HB 2 went into effect, the number had been cut in half, leaving only 19 abortion clinics open. If the law had not been contested, it was predicted that only 7 or 8 of these clinics would be able to meet all of the requirements and stay open.

Two of the affected abortion clinics, Whole Woman’s Health in McAllen, and Nova Health Systems in El Paso, contested the law in October of 2014. The Western District Court of Texas sided with the abortion clinics, but when their decision was appealed, the Fifth Circuit sided with Texas, allowing the law to go back into effect. Eventually, oral arguments were heard by the Supreme Court on March 2, 2016. By a 5-3 vote (Justice Antonin Scalia had died on February 13), the court ruled that the contested portions of HB 2 (namely, the admitting priviledges requirement and the surgical facility standards) were unconstitutional because they created an “undue burden” for women seeking abortions. 

The “undue burden” standard was established by the Supreme Court in Planned Parenthood v. Casey (1992). According to Casey, an “undue burden” is any legal restriction that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (Casey, 505 U.S. at 877).  Basically, the court ruled that any provision or law that restricts one’s right to abortion without a valid legal purpose is unconstitional. 

With the holding from Whole Womans’ Health v. Hellerstedt in mind, let’s move on to examine June Medical Services, LLC v. Russo. But don’t be surprised if you get a bit of deja vu

In 2014, the Louisiana House of Representatives passed Act 620, also known as the ‘Unsafe Abortion Protection Act,’ which was modelled almost word-for-word after Texas HB 2. Act 620 similarly required abortion facility doctors to have admitting priviledges at a hospital within a 30-mile radius and raised abortion clinic standards to meet those of other hospital-grade facilities. Only one of the six abortion doctors in Louisiana were able to gain admitting privileges to a hospital before the law came into effect. The five other abortion doctors challenged Act 620. 

The plaintiffs challenged the ‘Unsafe Abortion Protection Act’ in the Middle District Court of Louisiana, and the court sided with the abortion providers, ordering an injuction to prevent Act 620 from coming into effect. However, when the state appealed the decision, the Fifth Circuit overruled it, allowing Act 620 to become law on February 15, 2016. The clinics then appealed to the Supreme Court, which ordered that the courts wait for its ruling on Whole Woman’s Health and then rehear the June Medical case. 

Once the Supreme Court released its opinion in Whole Woman’s Health, June Medical was  re-heard at the Middle District Court of Louisiana. The judge deemed Act 620 unconstitutional, finding it an “undue burden” for Louisiana women. Then the state appealed to the Fifth Circuit, which again overturned the District’s decision, claiming that the circumstances in Louisiana were sufficiently different from those in Texas to justify ruling differently on Act 620 than the Supreme Court had on HB 2. 

The plaintiffs appealed yet again, and June Medical was back at the The Supreme Court of the United States. Justice Breyer delivered the majority opinion, with the three other liberal-leaning justices joining him. Chief Justice Roberts filed his own concurring opinion. All of the dissenting justices wrote their own opinions, but Justice Alito’s opinion was at least partially joined by the other three. 

Let’s start with Justice Breyer’s majority opinion. Breyer relied heavily on the precedent of Whole Woman’s Health, pointing out that Louisiana Act 620 “is almost word-for-word identical to Texas’ admitting-privileges law.” He observes that Act 620 would “result in a drastic reduction” of operating abortion clinics in Lousiana and would therefore create “substantial obstacles in the path of women seeking an abortion in Louisiana.” As 5 of the 6 previous abortion doctors would stop operating, there would be only one abortion provider left for the 10,000 women who annually seek abortions in Louisiana. However, this New Orleans doctor could only be reasonably expected to perform up to 3,000 abortions in one year, and only for early-stage pregnancies. Breyer found that these restrictions failed to meet Planned Parenthood v. Casey’s  “undue burden” test because they had no legal purpose to justify the significant burdens they placed. 

Chief Justice Roberts agreed that Act 620 should be struck down, but he provided completely different reasoning. Roberts made clear that he disagreed with the Supreme Court’s decision in 2016 to strike down Texas’s HB 2. Afterall, Roberts had dissented in Whole Woman’s Health and stated that he still believes that it “was wrongly decided.” Nevertheless, Roberts voted with the majority because of a legal doctrine called “stare decisis.” Stare decisis is the principle that courts ought to rule according to precedent and should therefore generally avoid overturning its older decisions. Roberts quoted the Federalist Papers for this idea, stating “[a]dherence to precedent is necessary to ‘avoid an arbitrary discretion in the courts.’ ” Roberts also quotes Justice Thurgood Marshall’s majority opinion in Vasquez v. Hillery (1986), saying that the principle of stare decisis is “the means by which this Court ensures that the law will not merely change erratically but will develop in a principled and intelligible fashion.” To abide by this doctrine, Roberts sided with the majority to uphold the court’s precedent in Whole Woman’s Health v. Hellerstedt, despite his enduring disagreement with that decision.

Justice Thomas wrote a dissenting opinion, one where he claimed that because abortion providers lack legal standing (aka, the right to sue) on behalf of their clients, their case should never have come before the Supreme Court. Thomas also argued that “[t]he Constitution does not constrain the States’ ability to regulate or even prohibit abortion.” He says that the “right to abortion” was created “without a shred of support from the Constitution’s text.” He rejects the idea that the court ought to rule according to its previous precedents, declaring that “[o]ur abortion precedents are grievously wrong and should be overruled.”

Justice Alito’s dissenting opinion was joined by Justice Gorsuch and joined in part by Justices Thomas and Kavanaugh. In it, Alito suggests that the case be sent back to the lower courts for reconsideration after a plaintiff who actually has a right to sue files the case. He also seemed to doubt that the plaintiffs had proved that “women’s access to abortions would be substantially impaired” or that abortion doctors had truly tried to gain admitting privileges before filing their complaint.

Justice Gorsuch dissented as well, asserting that Act 620’s admitting privileges requirement “would serve the public interest by protecting women’s health and safety.” He noted that “Louisiana’s abortion clinics historically have done little to ensure provider competence.” In his view, requiring doctors to gain admitting privileges would ensure that women receiving abortions are under the care of a skilled and knowledgeable physician. 

Justice Kavanaugh filed a very brief dissent, in which he expressed that “additional factfinding is necessary to properly evaluate Louisiana’s law.” He agrees with Justice Alito that the plaintiff’s case does not “adequately demonstrate that the three relevant doctors…cannot obtain admitting priviledges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-priviledges law.”

After almost seven years, five trials, and four separate appeals, June Medical Services, LLC v. Russo has finally come to an end. While the decision may seem like a victory for pro-choice activists, they aren’t completely satisfied. Chief Justice Roberts’ reasoning in this case leaves his future decisions on abortion cases up in the air, thus leaving the future of abortion rights insecure. Gretchen Borchelt, the vice president for reproductive rights and health at the National Women’s Law Center, expresses her concerns in an article entitled “June Medical Services v. Russo: When a ‘win’ is not a win.” She writes, “[Robert’s opinion] argues for a system that left people seeking abortion without access to the care they need. In his concurrence, Roberts plants a flag to mark the battlegrounds for future abortion fights…. We deserved a sweeping Supreme Court decision that recognize and supports both the right to abortion and access to abortion…. This, regrettably, is not that decision.” Pro-choice representatives hope that the Supreme Court will be more decisive in the future. 

  Meanwhile, pro-life advocates were disspirited that the Court did not protect Louisiana women by requiring more rigorous standards for physicians and their facilities. Carol Tobias, president of National Right to Life, said on Monday: “We are extremely disappointed that the U.S. Supreme Court ruled against Louisiana’s 2014 ‘Unsafe Abortion Protection Act.’ The Supreme Court’s decision to strike down Louisiana’s law leaves women vulnerable.” Tobias goes on to say that “[p]ro-abortion groups have made it clear that they care more about their bottom line than the women they claim to serve. If the abortion industry were really concerned about women, they would want an admitting privileges requirement in order to reassure women that they are getting good care.” Pro-life advocates hope that future cases might make better steps toward protecting women and their unborn children. 

Personally, I disagree with the court’s decision in June Medical for a number of reasons. When applying Casey’s “undue burden” standard, it is important to weigh both sides of the law. Yes, as Justice Breyer points out, the ‘Unsafe Abortion Protection Act’ would likely restrict abortion access in Louisiana. But that doesn’t necessarily mean that it imposes an “undue burden.” A burden, perhaps, but not an “undue” one. Where I disagree with him is his claim that “the law offers no significant health-related benefits.” 

It seems only natural that if abortion facilities want to be accepted as a qualified surgical facilities, they ought to be held to the same standards that every other type of ambulatory surgical facility in Lousiana are required to meet. Ease and accessibility are no justification for improper or unsafe care.

The court’s decision also allows women to be cared for by irresponsible physicians. As mentioned previously, Justice Gorsuch noted his concern that “Louisiana’s abortion clinics historically have done little to ensure provider competence.” Sadly, the same is true across the nation. Just three months ago in my home state of Maryland, two women suffered life-threatening, horrific injuries at the hand of abortion doctor LeRoy Carhart. The first woman’s uterus had been ruptured and parts of her fetus were left inside. An anonymous witness described it as “the most horrific thing I have ever seen” (Operation Rescue). Just 9 days later, a second woman was sent by Carhart to the hospital hemorrhaging so severely that a hysterectomy was required, destroying her ability to ever bear a child again. Pro-life group “Live Action” explains that since Carhart didn’t have admitting privileges at the nearest hospital, “the emergency medical staff likely did not know the full extent of the women’s injuries.” If Carhart did have admitting privileges, it would have been his responsibility to explain what had happened and be directly involved in coordinating the woman’s care; as it was, the hospital staff were left on their own to figure out what to do. 

Finally, this ruling leaves abortion doctors unaccountable for their actions. In the incident described above, Carhart’s lack of admitting privileges (and therefore, his total absence from the woman’s emergency care) meant that his name never appeared on medical records, leaving Carhart completely disconnected with the incident he had caused. In the future, other woman seeking abortions maybe never know that they are putting their lives into the hands of such an incompetent man. 

For these reasons, I disagree with the plurality in June Medical Services, LLC v. Russo that Act 620 created an “undue burden.” I concur instead with Justice Gorsuch that the ‘Unsafe Abortion Protection Act’ would have “serve[d] the public interest by protecting women’s health and safety.” 

Tuesday, June 30, 2020

The Supreme Court released three opinions yesterday:

  1. June Medical Services L. L. C. v. Russo
    1. Four years ago, the Supreme Court struck down a restrictive abortion law in Texas, one that required doctors who performed abortions to have admitting privileges at a nearby hospital (Whole Women’s Health v. Hellerstedt). The liberal-leaning justices plus Justice Kennedy agreed that Texas imposed an undue burden on the right to abortion.
    2. Yesterday the Court hewed to precedent, overturning an identical law in Louisiana that would have left the state with one licensed abortion doctor. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” wrote Chief Justice Roberts. “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” He noted that judges must often abide by past decisions, even if they disagree with them, to maintain faith in the judiciary and prevent the law from changing too quickly.
    3. Check back on the blog soon for an opinion analysis by Noelle McDowell, a rising junior from Annapolis, Maryland.
    4. Here law professor Michael Dorf criticizes the Chief’s reasoning, calling it “rather tepid” but nonetheless a small victory for abortion rights.
  2. Seila Law LLC v. Consumer Financial Protection Bureau
    1. The CFPB, or Consumer Financial Protection Bureau, is a federal agency that’s tasked with protecting American consumers. The director of the CFPB is appointed by the President for a five-year term, and by law she can only be removed because of poor work or neglecting her duties. In an opinion by Chief Justice Roberts the Court held yesterday that the director of the CFPB must be removable by the president at any time, since in Article II of the Constitution the president is charged with ensuring that the law is “faithfully executed.” Because independent agencies like the CFPB have substantial power over the economy, and because this power is concentrated in a single individual, the Chief Justice felt that they have “no basis in history and no place in our constitutional structure.”
    2. Justice Kagan dissented, arguing that Congress has had a great deal of flexibility in creating independent agencies. She writes that the Constitution doesn’t mention the president’s removal authority and that there’s ample historical precedent for single-head agencies, including the the Federal Trade Commission and Securities and Exchange Commission. Echoing her accusations of judicial activism in Janus v. ACFSME, she says her colleagues rejected “the result of [the] democratic process” and sent “Congress back to the drawing board.”
    3. Here is a Cato Institute piece praising the majority’s decision, and here’s a Slate article by Professor Leah Litman about what Seila means for the future of the administrative state.
  3. Agency for Int’l Development v. Alliance for Open Society
    1. Foreign groups funded by the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2002 must have an explicit policy against prostitution, writes Justice Kavanaugh for the majority. This requirement is constitutional because foreign organizations don’t have First Amendment rights, unlike American ones.
    2. Justice Breyer penned what lawandcrime.com calls a “withering dissent,” writing that, “Just as compelling a clearly identified domestic affiliate to espouse a government message distorts respondents’ own protected speech, so too does compelling a clearly identified foreign affiliate to espouse the same government message. Either way, federal funding conditioned on that affirmative avowal of belief comes at an unconstitutionally high “price of evident hypocrisy.”

by Anna Salvatore