Justice Alito’s ‘Terrible, Horrible, No Good, Very Bad Day’

In three major U.S. Supreme Court decisions on Thursday, Justice Samuel Alito Jr. found himself with losing arguments and he wrote in one of the three a 77-page explanation, five times the length of the court’s opinion with which he disagreed.

It was not a good day for the justice who, along with Justice Clarence Thomas, is one of the court’s most conservative members. Justice Alito even disagreed with Justice Thomas that day.

The first decision of the day was the 7-2 decision dismissing the challenge by 18 Republican states and the former Trump administration to the constitutionality of the Affordable Care Act., better known as Obamacare.

Justices Alito and Thomas are the only justices remaining on the court who dissented in the 5-4 decision upholding the act in 2012. But this time, Justice Alito was joined in dissent by fellow conservative Justice Neil Gorsuch, not Justice Thomas.

The seven-justice majority was led by liberal Justice Stephen Breyer, who was joined by conservatives Chief Justice John Roberts, Justices Thomas, Brett Kavanaugh and Amy Coney Barrett, and liberal Justices Sonia Sotomayor and Elena Kagan.

The majority dismissed the challenge because the challengers lacked a threshold key to unlocking the courthouse door—standing, or the right to sue.

The Constitution requires the Supreme Court to review and decide only cases or controversies. To have a case or controversy, the party suing must claim an injury, past or future, that is traceable to the conduct being challenged and an injury that a court can remedy.

The insurance law’s individual mandate was no longer being enforced because Congress in 2017 zeroed out the tax penalty for not having health insurance. All of the alleged injuries claimed by the challengers could not be traced to the mandate because it was unenforceable, wrote Justice Breyer.

“Here, there is no action—actual or threatened—whatsoever,” Justice Breyer said. “There is only the statute’s textually unenforceable language.”

Justice Alito, joined by Justice Neil Gorsuch, disagreed, accusing the court of ducking the issue of the mandate’s constitutionality. He wrote: “The ACA imposes many burdensome obligations on States in their capacity as employers, and the 18 States in question collectively have more than a million employees. Even $1 in harm is enough to support standing. Yet no State has standing?”

Here are a few takeaways from the decision:

>> By relying on standing to dismiss the challenge, the court did avoid the constitutional question about the now toothless individual mandate but standing clearly was a problem voiced by a number of justices during oral arguments. And standing is a threshold question that every federal court must address before going forward with a case.

>> Justice Thomas continues to believe the act was unconstitutional in 2012, but as he wrote on Thursday:  In this case, “there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them.”

>> During Trump appointee Justice Barrett’s Senate confirmation, Senate Judiciary Committee Democrats portrayed her as an imminent threat to the act’s future. She homed in on the standing issue during oral arguments in the Supreme Court and voted with the majority to dismiss the challenge.

The second potential blockbuster of the term was Catholic Social Services’ challenge to Philadelphia’s refusal to contract with the agency because it would not work with same-sex couples seeking foster parent certification. The agency claimed the city’s nondiscrimination policy violated its free exercise of religion right under the First Amendment.

Chief Justice John Roberts Jr. wrote the unanimous decision in favor of the agency. But the court divided 6-3 over six justices’ decision to avoid ruling on the agency’s argument that a 1990 decision, Employment Division v. Smith, should be overruled.

Roberts said it wasn’t necessary to re-examine Smith, which had held that neutral, generally applicable laws that incidentally burden free exercise rights are unlikely to violate the First Amendment. Religious and conservative organizations, seeking broad protections from anti-discrimination laws, have sought to overturn Smith for a number of years.

But Roberts said the city’s policy fell outside of Smith because it was not generally applicable. Instead, he applied the Constitution’s most searching scrutiny—strict scrutiny— to the city’s policy. That test requires the government to show a compelling interest for its law or policy and a narrowly tailored means to achieve that interest in order to pass constitutional muster.

The fatal flaw in the city’s policy, according to the court, was that it included a mechanism for entirely discretionary exemptions to its policy. That mechanism, Roberts wrote, “undermines the City’s contention that its non-discrimination policies can brook no departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.”

Justice Alito, joined by Justices Thomas and Gorsuch, agreed that Philadelphia violated the First Amendment free exercise right, but the three wanted the court to go bigger in favor of religious exemptions. Alito wrote in his 77-page opinion that the court should have overruled the Smith decision and why. He was unable to persuade two more justices to make a majority for his position.

In recent speeches and opinions, Justice Alito has made clear that he—and likely others on the court—believe that freedom of religion is, as he has said, becoming a “disfavored right.” Secular society is increasingly intolerant to religious beliefs such as marriage is between a man and a woman, he has suggested. Just recently he and Justice Thomas said the court should revisit its 2015 decision finding a constitutional right to same-sex marriage. During arguments in the Philadelphia case, Justice Alito told the city’s lawyer that “what’s really going on here” is that the city doesn’t like the Catholic agency’s view on same-sex marriage.

As recent rulings show, religious groups bringing claims to the Roberts Court will almost always prevail. And the court is just two votes away from abandoning the Smith precedent and its limit on exceptions.

Like the health insurance and Philadelphia decisions, the court did not go as far as it might have in the third decision of the day involving corporate immunity from suits claiming human rights violations committed abroad.

The court ruled 8-1 that Nestle USA and Cargill, accused of complicity in child slave labor used on Ivory Coast cocoa farms, could not be sued in federal court under the 1789 Alien Tort Statute, which permits foreigners to bring lawsuits in U.S. courts for serious violations of international law. Justice Thomas, writing for the majority, said there was not a sufficient tie between the companies’ activities in the United States and the asserted abuses which occurred abroad. Because of that insufficiency, the human rights victims were “impermissibly” seeking “extraterritorial” application of the federal law.

The court originally granted review to answer whether domestic corporations were immune from suit under the 1789 law. The court said in a previous decision that foreign corporations cannot be sued under the 1789 law, but in Thursday’s decision, the court did not address the issue of domestic corporations’ immunity. Instead the court ruled on other grounds for Nestle and Cargill.

Justice Alito wrote in dissent that the majority should have addressed the corporate immunity question and should not have ruled on the alternative grounds. “Corporate status does not justify special immunity,” he wrote.

Four other justices—Stephen Breyer, Sonia Sotomayor, Elena Kagan and Neil  Gorsuch-- indicated they agreed with Alito’s position but they chose to join Justice Thomas’s opinion in the relevant part.

In the end, all three decisions reflect a court that is not marching in lockstep based on ideology but working through complex issues in often nuanced ways. Justice Alito has been odd man out, for now.

* Headline based on Judith Viorst’s classic tale, Alexander and the Terrible, Horrible, No Good, Very Bad Day

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.