Every Supreme Court term generates anticipation and excitement on its face, as lives are changed and decades-long battles are either initiated or resolved by the nine justices appointed to the high bench. The October 2020 term added partisan excitement to the mix, as Trump appointee Amy Coney Barrett, a law professor at Notre Dame, replaced liberal icon Ruth Bader Ginsburg, who died in mid-September, just days before the November presidential election, thus pushing the putative conservative majority in the Court from 5–4 to 6–3.
Conservative slam dunks all around, right? 6–3 decisions for as far as the eye can see? Didn’t happen. Instead, unanimity broke out among the nine black robes, at a far greater rate than in previous courts. One calculation, with five cases outstanding, ranked the unanimous or near-unanimous (one dissenting vote) rulings at 67 percent of this term’s cases, versus 46 percent last year and a 48 percent average of the past 10 years.
Some 9–0 votes were expected, but some decisions involved unlikely coalitions and offered unanimity where no one expected it — on a religious liberty case, for instance, where the conservative majority seems to have swallowed its whistle in seeking bench-wide concord on narrow grounds in order to avoid or defer until later a big anticipated fight. Chief Justice John Roberts is credited as the architect of these broad coalitions; the unified votes disabuse critics who accused the Court of deep division and quell chatter about court-packing that has emanated for the past six months from the White House.
Conservative slam dunks all around, right? 6–3 decisions for as far as the eye can see? Didn’t happen. Instead, unanimity broke out among the nine black robes, at a far greater rate than in previous courts.
The Court did come through way at the end with solid conservative opinions on a voting law case and a financial disclosure case, but in many decisions it seemed to sacrifice decisiveness for collegiality. And then there was Obamacare … again — a challenge to the 2010 law went down before the supreme bench for a third time, this one by an even more decisive tally than two earlier defeats, 7–2.
Add to that a pandemic and the myriad attendant issues it generated, many of which concerned the unequal treatment of religious interests; a presidential election in which the outgoing officeholder implored the Court to adjudicate alleged voting irregularities and overturn results; and the intriguing push from the Left to get Justice Stephen Breyer to retire so as to ensure that a Democrat president with a Democrat Senate would appoint his successor — and you have enough excitement to push every legal beagle’s SCOTUS meter well into the fun zone.
But enough setup. On to the docket.
The major conservative victories came late in the term, on the last day opinions were released, in fact. In Brnovich v. Democratic National Committee, the Court ruled that the state of Arizona could indeed enforce voter laws that liberals and civil rights activists challenged as disproportionately affecting minority voting. The decision, 6–3, coming down on party lines, will make it more difficult to challenge election laws under the Voting Rights Act.
Specifically, the court upheld two laws in Brnovich. One was the Grand Canyon state’s “out of precinct” policy, in which voters can legally vote only in the precincts in which they are registered; if they vote in the wrong precinct, the whole ballot is thrown out. The other regulation upheld concerns third-party collection of ballots, commonly called “ballot harvesting.” It remains a felony in Arizona for anyone other than family members, caregivers, mail carriers, and election officials to turn in ballots not their own.
The claim that Arizona’s voting laws disproportionately affected minority voters, central to the challenge of the Left, was quashed by Justice Samuel Alito in his majority opinion: “Arizona law generally makes it very easy to vote.” It’s tough to make the case that you’re discriminated against when you can vote “by mail or in person for nearly a month before election day,” Alito wrote.
It’s tough to make the case that you’re discriminated against when you can vote “by mail or in person for nearly a month before election day,” Alito wrote.
That these two laws were maintained by the high court comes as good news because it discourages the federal government from second-guessing state election laws. States may administer their elections in their own way and may adjust their laws, either expanding opportunities to vote or contracting them. The decision comes just in time to influence the upcoming election-law battle in Georgia, where the Biden administration brought suit against the state in late June over its recent voting reforms.
The other big conservative win, also by a 6–3 party-line margin, came in the Court’s final ruling of the term. The Court ruled that a California state requirement that nonprofit and charitable organizations operating in the state turn over the names of donors to the state violated those donors’ First Amendment rights.
Americans for Prosperity Foundation v. Bonta pitted two such charitable organizations, joined by hundreds of other groups emanating from all across the political spectrum — from LGBTQ interests to racial justice advocates — against California’s attorney general. Conservatives maintained that the current law was a lose-lose for charities: to mandate revelation of personal information would stoke the regnant cancel culture, allowing political opponents to target conservative donors as well as discourage donations.
Roberts, in the majority opinion, wrote, “We are left to conclude that the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights.”
While the Court’s response to the myriad attacks on religious liberty during the pandemic was strong, in one major case decided this summer, Fulton v. City of Philadelphia, the high court could be accused of “leaving points on the field of play.”
COVID played havoc with all aspects of national life, and none more so than the religious environment. Churches and synagogues, in the initial days of the crisis, complied readily with government restrictions, acknowledging the health dangers and suspending worship services and ancillary communal gatherings. Virtual church became standard in tech-savvy congregations, and, while a far cry from in-person worship, the faithful tuned in to the bare-bones services live-streamed into their homes and learned to live with it. But as the crisis lessened, some states and localities eased restrictions on places of business and other public get-togethers — like casinos and tattoo parlors and, of course, “largely peaceful” protest marches — but retained the lockdown on churches.
Pastors and churches cried foul. And the Supreme Court blew its whistle. Gov. Andrew Cuomo’s coronavirus rules were judged to unfairly burden houses of worship and overturned last year around Thanksgiving time. Restrictive laws in Colorado and New Jersey were also nixed by SCOTUS. Most egregious among the offenders, though, was California, where five times the Ninth Circuit Court of Appeals upheld Gov. Gavin Newsom’s COVID-inspired restrictions on religious activities, some treating religious groups less stringently than commercial ventures, and five times the Supreme Court knocked them down.
Some credit Barrett with this firming up of religious liberty. Whereas prior to her arrival on the Court in late 2020, SCOTUS had largely deferred to health authorities and government in cases involving COVID-inspired restrictions, since Barrett took her seat in the chamber (or rather, in front of her computer — the Court did its hearings over Zoom), cases involving complaints about religious discrimination have gone decidedly in the direction of liberty.
This trend continued in Fulton, a case in which a Catholic adoption agency in Philadelphia was granted the right to remain a partner with a city department even though, contrary to the city’s anti-discrimination policy, it declined to endorse same-sex couples for placement because of its religious beliefs. Like the Masterpiece Cakeshop case in 2018, in which the religious right of a baker to refuse to act contrary to his beliefs was vindicated in the narrowest way possible, the Court in Fulton did the same. It based its 9–0 verdict for Catholic Social Services on the city’s violation of an administrative detail in its own rules and let escape an opportunity to lay down firmly, once and for all, a standard protecting religious freedom by repealing Smith v. Employment Division, in which the Court in 1990 ruled that government may quell religious freedom if a law applies neutrally to everyone. Defenders of religious liberty have been complaining about that opinion for 30 years.
Comments in the various concurrences to the majority opinion in Fulton, in which six justices lamented Smith’s inadequacies in adjudicating religious-freedom cases, left many conservatives hopeful that the Court was simply waiting for the right case to come along. But the Court passed on what many considered the “right” case, involving a florist who was fined for refusing to service a gay wedding. Barronelle Stutzman, who operates Arlene’s Flowers in Washington state, was fined $1,000 for declining an order to create a flower arrangement for a gay wedding because it violated her religious beliefs. It looked like a perfect case to clarify the on-the-ground conflicts between groups’ rights not to be discriminated against — LGBTQ groups, for example — and artists and creators asked to violate their religious beliefs in servicing them, like bakers, florists, and photographers.
Hopes of 6–3 slam dunks for religious freedom from the current Court were dampened considerably when only three votes could be mustered to hear the Arlene’s Flowers case. No cases dealing with religious freedom are on the Court’s next slate.
It might not have endorsed the play-for-pay scenario sports enthusiasts have been urging for years, but the Court sweetened the pot for college athletes by ruling, 9–0, in NCAA v. Alston, that schools could provide, gratis, all manner of educational perquisites — like laptops and graduate school internships — to their athletes.
The unanimous ruling may have pleased the NCAA insofar as it was narrowly decided and didn’t go the extra mile and permit schools to pay jocks directly for their athletic participation, but the pleasure had to be fleeting, as the Court did chip away at the sacrosanct amateur status of college athletics.
The Court ruled that educational benefits didn’t threaten the distinction between amateur and professional sports, so they could not be restricted by the governing organization. The other piece of the issue, whether or not denying non-education-related benefits violated antitrust laws — that is, prohibiting college athletes from seeking market value for their services — was not up for review and was let be by the Court.
The real news in the decision, though, came from Justice Brett Kavanaugh, who, in a concurrence to the majority ruling, let the NCAA have it, challenging the antitrust laws enjoyed by the oversight body:
The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.
Although the Court remained silent on the play-for-pay question, the NCAA’s antitrust exemption may be on unsteady ground.
The only leftward veer in the Court’s major decisions was a ruling that kept Obamacare in place. By a 7–2 tally, the high court ruled that the 18 red states that brought suit against the health-care legislation had not been substantially harmed by the law and thus did not have standing to sue. It was a technical decision in which the Court deigned not to consider the act’s validity or merits.
Technicality aside, the challenge went down more decisively than two previous votes — the first challenge, in 2012, was defeated by a 5–4 count, while the second, in 2015, went down 6–3 — and that fact, plus this being the third failure to bring down the controversial law at the high court, has prompted some to think major legal challenges to the law have seen their day in the sun. Said Jonathan Adler, a professor at Case Western Reserve University School of Law: “There will not be a big omnibus challenge to the entire statute, but there will continue to be ongoing litigation about the administration and enforcement of the law, and that will go on for some time.”
Republican attempts to ameliorate the law’s many maladies will most likely be limited to the legislature now. Although House Minority Leader Kevin McCarthy and other GOP leaders did not testify to that in so many words, they did not repeat the signature promise to “repeal and replace” Obamacare in a statement released shortly after the SCOTUS ruling. But they did say, “Congress must work together to improve American health care…. House Republicans are committed to actually lowering health care costs, protecting those with preexisting conditions, and providing Americans more health care options that best fit their personal health needs.”
In other cases of interest, the Court ruled, 6–3, against labor unions, striking down a regulation that allowed labor organizers to come onto agricultural fields to recruit members; the 1975 California law violated property owners’ private property rights. Also, in a free-speech case, it held that a high school cheerleader couldn’t be punished by the school for using profanity, while not on school grounds, on social media when she didn’t make the cheerleading squad.
In this polarized age, with Congress electing to punt on its responsibility to legislate difficult issues — sometimes on third down (see immigration) — the courts have assumed the mantle of deciding contentious matters, with the Supreme Court reigning as the final, ultimate bench to which there is no appeal.
Coming before the nine black robes next term are cases that will push many of the perennial hot buttons in American society: on abortion, guns, and affirmative action, to name just three.
The conservative bona fides of the Court’s majority will certainly be put to the test come October, when hearings for the next term begin.
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