Last week, our companion podcast We the People was recorded live in front of our National Constitution Center audience for the first time! Host Jeffrey Rosen was joined by SCOTUSblog’s Amy Howe and John Elwood to preview the Supreme Court’s 2019 term, which began this week. They discussed this term’s blockbuster cases, including a trio of cases argued at the Court this morning which raise the question of whether Title VII, a federal statute prohibiting employment discrimination because of sex, also prohibits discrimination by employers based on gender identity and sexual orientation. They also dove into other major topics that will soon come before the Court, including immigration policies like DACA, abortion, the Second Amendment, and school choice. [Update: after this episode was recorded, the Supreme Court agreed to hear June Medical Services LLC v. Gee, the Louisiana case about a regulation on abortions mentioned in this discussion.]
Amy Howe co-founded SCOTUSblog in 2002, and was editor and reporter until September 2016. She continues to serve as an independent contractor and reporter for SCOTUSblog, in addition to writing her own blog Howe on the Court. Howe served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. She has also taught at Stanford, Harvard, and several other law schools.
John Elwood is a contributor at SCOTUSblog where he writes the Relist Watch, monitoring cases the Court has relisted. He is a partner at Arnold & Porter in Washington, D.C., where he is the head of the firm's appellate and Supreme Court practice. He has argued nine cases before the Supreme Court, and has argued before most of the federal courts of appeals. John was senior deputy in the Justice Department’s Office of Legal Counsel from 2005 to 2009, an assistant to the Solicitor General from 2002 to 2005, and was an attorney in the DOJ’s Criminal Division.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- Bostock v. Clay County, Georgia
- R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission
- Department of Homeland Security v. Regents of the University of California
- Espinoza v. Montana Department of Revenue
- New York State Rifle & Pistol Association Inc. v. City of New York, New York
This episode was engineered by Greg Scheckler with editing by Jackie McDermott and David Stotz. It was produced by Jackie McDermott and the Town Hall Team of the National Constitution Center – Lana Ulrich, Tanaya Tauber, and John Guerra. Research was provided by Bridget Golob, Robert Black, and Lana Ulrich. Special thanks to the team at SCOTUSblog's podcast SCOTUStalk for partnering with us on this program.
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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffery Rosen, president and CEO of the National Constitution Center and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the constitution among the American people. And this week, we're recording We the People live in front of the National Constitution Center audience for the first time. Friends, let's have a round of applause for our We the People audience.
It is so exciting to see our great, uh, friends here at the National Constitution Center and to share this learning with you and with our We the People audience. Uh, here in Philadelphia, we're previewing the Supreme Court's October 2019 term, which begins next Monday, October 7th. And I'm so excited to be teaming up with the podcast, SCOTUS Talk, to preview the blockbuster cases of this term.
Uh, we're joined by two of America's leading court watchers for Scotus Blog. Amy Howe co-founded Scotus Blog in 2002, and was editor and reporter there until 2016. She continues to write for Scotus Blog in addition to writing her own blog, Howe on the Court. Uh, Amy's served as council in over two dozen merits cases at the US Supreme Court and argued two cases there. She's also taught at Stanford, Harvard and several other law schools. Amy, thank you so much for joining.
Amy Howe: [00:01:39] Thanks for inviting me. It's great to be here.
Rosen: [00:01:40] It's wonderful to have you. And John Elwood is a contributor at Scotus Blog where he writes the Relist Watch, monitoring cases that the court has relisted. He is a partner at Arnold and Porter in Washington DC where he heads the firm's appellate and Supreme Court practice. He has argued nine cases before the US Supreme Court, and has argued before most of the Federal Courts of Appeals. John was senior-deputy in the Justice Department's Office of Legal Council from 2005 to 2009, and assistant to the Solicitor General from 2002 to 2005. And an attorney in the department's criminal division. John it is wonderful to have you on the show.
John Elwood: [00:02:19] Thank you for having me.
Rosen: [00:02:21] Amy, let us start with you. Last year was something of a blockbuster term with powerful cases at the end involving the census and partisan gerrymandering. At the same time there was a high degree of unanimity, uh, on Justice Brett Kavanaugh's first term. Uh, what are you expecting from this term? Will it be a blockbuster or a sleepers? And where are the fault lines likely to be?
Howe: [00:02:49] I think it's gonna be even more of a blockbuster than last term. We had certainly big cases last term, we had the census case, it was a big case in partisan gerrymandering, but the, the conventional wisdom, at least, was that last term, the, the Supreme Court was actually trying to keep a relatively low profile including because of the contentious confirmation hearings of the court's newest justice, Brett Kavanaugh. And so we saw, you know, each of the, the court's more conservative justices at some point during the term sort of crossed over and voted with the court's more liberal justices.
Um, and we also saw them sort of, for lack of a better word, kick the can down the road in a couple of cases. Some of the cases that we're going to be talking about tonight were actually cases that the Supreme Court could have heard oral argument in and decided last term, but for whatever reason, decided not to. And so we're going to be… the Supreme Court's going to have a lot of blockbuster cases, including some that we're going to talk, talk tonight and we're really going to hit a lot of the hot button issues.
It's already got, you know, LGBT rights, um, immigration, guns, and almost certainly is going to have abortion on its docket, and it's going to be issuing all of these decisions, if, you know, if it had been trying to keep a low profile last term, um, the, the, the result is just going to be issuing all of these decisions in the spring and summer of 2020, right in the middle of the presidential election season.
Um, I think the justices are also probably at home watching cable news like the rest of us and crossing their fingers that none of the legal disputes related to impeachments or records, you know, come to the supreme court and they would have to weigh in.
Rosen: [00:04:29] Wow, thank you for wetting our appetite so well.
Howe: [00:04:33] Yes, exactly. [laughs]
Rosen: [00:04:34] [crosstalk] and this incredibly, uh, important discussion we're about to have. John, Amy mentioned the unexpected alliances last term, she noted that Justice Gorsuch and Justice Kavanaugh, uh, voted together less frequently than any two justices appointed by the same president in the past 50 years, and suggested that this term is likely to be even more dynamic. How do you see the fault lines on this term and do you think it will be a blockbuster, or not?
Elwood: [00:05:01] Na, I agree, uh, with what Amy said, uh, uh, across the board, uh, but they are very different, although they were appointed by the same president, they're very different justices, we'll get a better sense of that next term because you know, any time you're dealing with so few cases, the court takes around 70 cases a term, um, it's hard to know if what you're seeing is a trend or just noise. But, uh, they are very different people. We saw a little bit of that last term and I expect we'll probably be seeing more of it, uh, in the coming term as well. Uh, Gorsuch is more of, uh, an iconoclast and kind of a maverick, although you hate to use a term that's so plays into sort of the western upbringing. And, uh, Kavanaugh is more kind of a centrist.
Um, uh, Gorsuch dissented more than anybody last year and, uh, Kavanaugh was in the majority more than anybody last year. And, uh, and it's, it'll be interesting to see if that trend continues. I kind of suspect it will.
Rosen: [00:05:57] Well we have to plunge right into the cases because they're so important. We begin with LGBT rights. Uh, the first week in October, the court will hear three cases involving the question of whether Title Seven's prohibition on discrimination because of sex includes sexual orientation. Uh, in 2015, for the first time, the EOC said that discrimination because of sex did encompass, uh, discrimination because of sexual orientation and the court will decide whether or not that was correct.
Amy, tell us about the facts in, uh, the two cases involving, uh, two individuals who say they were fired because they were gay, that's the Altitude Express Case and the Bostock Case and, uh, we- the arguments for and against viewing that kind of discrimination as discrimination covered by Title Seven.
Howe: [00:06:51] Sure so the, the first case is a case called Altitude Express verses Zarda and the, the employee in this case was a man named Donald Zarda, who's actually passed away. He was a skydiving instructor. And as part of his work, frequently, you know, you're… he was a skydiving instructor, he'd be sort of strapped to one of his clients before they jumped out of a plane together, and sometimes he said to reassure his clients when they were women that he wasn't trying to get too friendly with them, he would tell them, “I'm gay.”
And so he said this to someone, and after he said this to someone, then later on he said he was fired because he was gay, and so he sued the company for discrimination and their federal, under federal law, ye- this is the law that you have to rely on if you want to argue that you were discriminated against, that you were fired or didn't get a promotion because of your sexual orientation.
The other employee in the case was a man named Gerald Bostock, who worked for Clayton County, Georgia, and argues that he was fired because he was gay and it hinges on the interpretation of this statue, which was enacted in 1964, um, to the Civil Rights Act of 1964 and, and the phrase because of sex, and everyone, I think, in the case agrees that when congress enacted this, this language in 1964, it wasn't thinking about, uh, discrimination based on sexual orientation. Um, but there was 1998 decision by Justice Scalia, it was actually a unanimous decision in a case called Oncale. Is that how you pro- that's how, that's how I pronounce it.
Um, and the, the Supreme Court, in that case, ruled that you could rely on the Civil Rights Act to bring a lawsuit for discrimination, it was, uh, same sex, sexual harassment, and the, the key part, which I think will be, uh, uh, play a prominent role at the oral argument, Justice Scalia said, is that, it doesn't really matter what congress had in mind when it wrote the, the language of Title Seven. All that really matters is the, the text itself. And so the argument that, that the employees are making is that when you refer to discrimination because of sex is that they are being discriminated against because they are men who are attracted to other men. That if they were men that were attracted to women, they would not be, would not have been fired.
So that, that is their argument.
Rosen: [00:09:18] That's so much for that, and for putting the arguments in favor of the two men so, uh, well. Uh, John, the employers in this case disagree and they advance a bunch of propositions for why sexual orientation should not be covered by Title Seven. Uh, tell us what those arguments are.
Elwood: [00:09:39] Well, this argu- or this case is a very good, uh, illustration that's going to flush out, uh, Justice Kagan's statement that we are all textualists now because the primary arguments, uh, in this case are tex- textualist, both from the, uh, employees and the employers. And the, uh, employers take a slightly different view of the, uh, textual arguments because they say, you know, um, we're not firing anybody because they're a man or because they're a woman. It's not because of their sex. It's because of, you know, who they're attracted to. It's because of sexual orientation and that is not, uh, sex. And they, they, they fall back not on kind of a mechanical application of, uh, you know, mandating another man, uh, you know, that's because of sex. And they say the original public meaning back in 1964, nobody would have said if you fired someone, uh, because of their sexual orientation that it was discrimination on the basis of sex or you were firing them because of their sex.
Um, uh, it's because of sexual orientation. And that, uh, that, under the sort of original public meaning, as they say, uh, it is not, uh, it is not discrimination. And they further say that, um, you know, even though you talk about, uh, as this Oncalve… I don't know how it's pronounced, either.
Howe: [00:10:57] I was on the panel, we pronounced it three different ways, so-
Elwood: [00:10:59] Um, but I'll call it Sundowner, then, that was the respondent. We can all agree on how that's said. But, uh, that, even if, you know, you don't look to what the evils are, it's one thing to say, uh, you're going to sweep in ancillary things, so if Title Seven covers harassment, it also covers same sex harassment. It's another thing to sweep in an entirely, you know, new area of the law, which is a pretty considerable thing, uh, in which congress and other legislatures have talked about regulating discrimination separately, uh, uh, it's another thing to sweep that in entirely.
There's this kind of doctrine that congress doesn't hide elephants in mouse holes and you can say you know, it's one thing to say same sex harassment, we're going to sweep that in with, uh, opposite sex harassment, but it's another thing entirely to sweep in sexual orientation, you might want to regulate that differently, you might want to exempt religious organizations or religious employers, um, so leave this for congress.
Rosen: [00:11:56] Thank you very much for that and for emphasizing that the employers say that in '64, would have assumed that because of sex, prohibited discrimination because of sexual orientation and the employers also stress, as you say, that congress has refused on several occasions since '64 to add sexual orientation and that while 22 states have added the prohibition, uh, most have not.
Uh, later this, later the, during the first week in October, the court will hear a separate case involving transgender rights and that raises related, but different arguments about whether discrimination on the basis of gender identity is discrimination because of sex. Amy, tell us please about the facts in the RG and GR Harris Funeral Homes Case and what the argument in favor of recognizing discrimination on the basis of gender identity as discrimination because of sex is.
Howe: [00:12:57] So as you said, similar although not identical. The employee in this case, uh, had been hired by the funeral home as, presented as a man, I, I… and then one day, sent a letter and said, “I'm going to be coming to work dressed as a woman, uh, my name is going to be Amy Stevens, and eventually I'm going to have gender reassignment surgery.”
The owner of the funeral home was very religious. There's also a lot of discussion about a dress code that the funeral had that, that the men were supposed to wear suits to work every day, the funeral home provided an allowance to, to buy these suits and the owner of the funeral home said this really doesn't comport with either my beliefs as a Christian or the dress code and how I'd like you to present to the public and so the fu- the employee, Amy Stevens was fired.
So Amy went to the EEOC, the Equal Employment Opportunity Commission, which filed a complaint on her behalf, and it's a little bit of an interesting twist here because originally the EEOC was on her side, uh, believing that she could bring a complaint under Title Seven of the, uh, of the Civil Rights Act, but as the case comes to the Supreme Court, the Trump Administration is now arguing that there is no right to bring a claim under Title Seven based on discrimination based on gender identity. So it's a little bit of a shift by the federal government.
But, so the arguments are similar in the sense that, you know, Amy Steven's argument in the Supreme Court is you know, you would not discriminate against me if I, you know, were a woman who presented as a woman, um, but you're discriminating against me because, or if I were a man who presented as a man, but I'm wa- was assigned a gender of a man at birth and now I'm presented as a woman.
And then there's a separate claim that's not, uh, a separate claim in the case based on sexual orientation involving what's known as sex stereotyping, the idea that you can't discriminate based on your idea of what a woman should look like, or what a man should look like. It had been, it was a case called Price Waterhouse, in which a, in a pa- partner in an accounting firm hadn't gotten a promotion, she said because she was, you know, didn't dress feminine enough, she did, was too aggressive they said and, and so the, the idea is that when you are discriminating based on gender identity, when you are not… when you believe that someone who is transgender is not complying with your idea of what a man or a woman should look like.
Rosen: [00:15:31] Thank you very much for that. So as you've explained, two of the arguments are similar and related in both cases. The but for argument is the same, but for the fact that Amy Stevens was born as a male, she's arguing she wouldn't have lost her job for wanting to present as a female. And then there's this sex stereotyping argument under this case, Price Waterhouse you just identified where she said discrimination because of transgender status is motivated by sex based stereotypes.
John, you suggested that the more textualist justices might be st- skeptical of those arguments about sex based stereotypes. Is it possible that a textual justice could view sexual orientation differently than gender identity viewing transgender status as more closely identified with a person's sex than sexual orientation?
Elwood: [00:16:21] That's a tough one. I mean it's, uh, eh, you know, the, the cases are, are so similar in some ways, but I mean, to me, uh, the transgender case does seem to revolve more around sex stereotyping, is a more kind of obvious way of them to win that case and because the sex stereotyping argument to me is a little bit less lured to the text, um, I, I could see it kind of running into more trouble, uh, with the, uh, with the more conservative justices.
I think, you know, especially like Justice Gorsuch, uh, he had a case where he ruled for the employee, um, last term or the term before, I forget which one it was in, in a, an arbitration case because he took a very, he took a, an originalist view, original public meaning view of what the word employee meant, which at the time the statue was passed would have encompassed, uh, independent contractors, and so in that case, the employee won.
Uh, but in this case I think, you know, if he looks at the original public meaning, uh, that could have a very different outcome for the employee. I think that the place, that the justices who, uh, the employee is most likely, Amy Stevens is most likely to pick up are probably, uh, the chief justice and the, uh, and, and Brett Kavanaugh. Uh, we'll see. I think that they're probably the most available votes of the more conservative voters, uh, and it'll be interesting to see which way they go.
One thing I have to note is, uh, totally non germane aside, uh, there was a, a criminal defendant, I think, in a case, uh, a few years back, uh, who was transgender and Justice Alito managed to write the entire opinion, uh, about this defendant without ever using a pronoun. Uh, and it'll be interesting if he tries to repeat, if he, uh, I don't know if he'll have an opinion in any of these cases. But, uh, it was, it didn't jump out at me when I read it. Uh, you know, it was only when somebody pointed it out to me that I noticed it. But, uh, it'll be interesting if anybody tries to repeat that verbal trick this time.
Rosen: [00:18:18] Just one more beat on this, uh, Amy because I'm always urging We The People listeners not to assume that votes correlate with the presidents who appointed justices, but correlate more with their, uh, constitutional and statutory methodologies and philosophies. John just said that, uh, the chief and Justice Kavanaugh might be votes that the… Amy Stevens could get. Uh, do you agree and, and what methodologies would lead the chief and Justice Kavanaugh to vote for Amy Stevens in this case, if they did so?
Howe: [00:18:44] I think that the sex stereotyping would, would be sort of the, the hook there. You know, I, I think that, I, I'm actually also going to be watching Justice Gorsuch closely during the oral argument. I think of him as sort of the successor to Justice Scalia who wrote the opinion in the Oncale case.
And I, I can see a scenario in which he looks at, at Oncale and says, you know, Title Seven, the phrase because of sex, yeah, that's not what congress had in mind, but I, I think you can read it that way.
Rosen: [00:19:16] That's true, and John, it's fascinating tension between textualism, which says just look at the words and not at the original public meaning, and a focus on legislative history, which Justice Scalia eschewed, but at least in this case, would point against ruling for the, uh, people who are seeking protection. Uh, John, how might that split between textualism and legislative purpose breakdown and could it create some unexpected alliances?
Elwood: [00:19:41] Well, I think, um, eh, eh, uh, the, the employers are trying to dress up sort of legislative history and congressional intent, which are kind of out of favor with, uh, original public meaning is the way they, the way it is kind of phrased. Um, but it is still, uh, you know, they, they're arguing it's a form of textualism and that you're looking at how people at the time would have understood the words.
Um, and, it just, it's extremely hard to predict, uh, how, how it's going to shake out. Um, you know, personally I, I sort of feel like, uh, Justice Gorsuch is unlikely to, uh, eh, embrace a reading that, uh, says that you know, uh, discrimination on the basis of sexual orientation or transgender status, uh, is covered. Uh, but you know, all of these cases, you don't kind of really know what's going to happen until, uh, a couple of points. Uh, the first is during oral argument when you see what people's questions are like, and then the, I think the easier, uh, time to predict it is when the opinion is actually issued [laughs] and you, uh, can just see the way it came out because, uh, you know, I've been, I've been surprised as often as I've, uh, felt like it bore out my understanding after argument.
Rosen: [00:20:52] You do have to read the entire opinion though.
Elwood: [00:20:55] Yeah, you don't even know then, that's true, until you get to the last page.
Rosen: [00:20:58] Absolutely. Our next blockbuster case also involves a reversal between the, uh, administrative determinations of the Trump Administration and the Obama Administration with huge consequences. It involves the DACA and DAPA programs, those acronyms are the Deferred Action for Child Arrivals and the Deferred Action for Parents of Americans and Lawful Permanent Residents. The Obama Administration had tried to forbear seeking the removals or certain aliens brought to the United States as children. The Trump Administration tried to reverse that policy. Amy, tell us about that reversal and what the legal challenge is to the Trump Administration's attempt to reverse the policy are.
Howe: [00:21:38] Okay, so this, yeah, this is a trio of cases at the Supreme Court challenging the Trump administration's decision in 2017 to end the program known as DACA, Deferred Action for Childhood Arrivals. Um, the decision to end DACA when it was announced was immediately subject to challenge, and lower court, a couple of different lower courts around the country ruled that the Trump Administration could not terminate DACA. The challenges were based on two things, the idea that it violated the Administrative Procedure Act, which is the law that's governing how the federal agencies and federal government can act, and then that it violated the rights of DACA recipients.
And so the, the lower courts agreed. They said the decision was known as arbitrary and capricious. It wasn't a product of reasoned decision making. So the Trump Administration took it straight to the Supreme Court, without stopping in the lower courts, and the Supreme Court agreed to weigh in in June of this year. And so there were two questions before the Supreme Court and the first is whether or not the Trump Administration's decision to end the DACA program is something that courts can review at all. The Trump Administration, as you might expect, says no, it's not. Because this is something that's within our discretion, we've got this program, we want to end it, it's not, it's sort of a political decision that courts should stay out of.
Um, the challengers say absolutely it's something that the courts can weigh in on and the reason they can weigh in on it is because the reason that the Trump Administration said it wanted to end DACA was because it thought that DACA was illegal, and so that's not a discretionary decision. If you're saying that, that it's a program that violates the law.
So the first question is whether or not the courts can weigh in at all. If the Supreme Court decides that it can weigh in, then the next question is whether or not the decision to end DACA was in fact illegal. The Trump Administration says yes, uh, we were, it was not illegal, um, we thought it was unlawful and besides that, there are a whole host of other reasons why we wanted to do it, and in particular, we believed based on the court's ruling on the DAPA program, the Deferred Action for Parents of Childhood Arrivals, that it was likely to be struck down at any moment and we wanted to go ahead and do it on our own terms, rather than have some court tell us we had to do it now.
And, the challengers response is you know, you only told us one reason at the beginning, why you wanted to do it, you thought it was illegal, and you can't… that's not the case, it's not illegal and you can't bring in all of these other reasons after the fact to, to justify it, essentially is what the arguments boil down to.
Rosen: [00:24:21] Beautifully described. Thank you so much for doing so clearly. John, maybe begin with this question of the arguments for and against whether DACA and DAPA are in fact illegal. The Supreme Court during the year when there were only eight justices after Justice Scalia passed, divided four to four on that question, what was the division there, and what is the relevance of that division for the two questions that Amy so well set out?
Elwood: [00:24:45] Well, um, uh, you don't get to find out when they divide equally, uh, who, who was where, really. But, uh, I presume that it was on the, uh, standard liberal conservative lines, which means that everybody is looking at Justice Kavanaugh to see how it would come out, uh, come out this time.
And, um, uh, so I, I guess everyone will be looking at him for this case.
Rosen: [00:25:08] So, John, um, Amy identified these two arguments, can the court review it and is the program actually illegal. Uh, wha- what are the arguments against the court reviewing it and the arguments against the legality of these programs?
Elwood: [00:25:22] Well the argument against the court reviewing it is that this is, that there's basically no law to apply and, uh, the administration is in kind of a tough position when they were just relying on their argument that we think this program is illegal, um, uh, and that's the reason why we're dropping it, because that's something where there is law. They can look at that, that's the second question, after all. Uh, and that's why, uh, I think the administration, uh, is trying to fold in other arguments to this idea that, uh, look, it's subject to litigation risk and so we just want to you know, wrap things up, uh, and also, uh, you know, we want to communicate the idea that you know, border, undocumented border crossing is wrong.
Uh, because that's, uh, you know, those are arguments for, you know, for exercising discretion. And I think, uh, nobody thinks, I mean, people think generally speaking that if the administration were willing to take a hit and say, “Yes, we just want to end this program because we're against it,” uh, the, you know, it's a discretionary, uh, it's an exercise of discretion and that's kind of a traditional, uh, think that agencies, uh, you know, isn't really all that reviewable. And I think that's one of the reasons why you know, they, they have improved their argument by trying to fold in these additional considerations.
But the problem is is under, uh, uh, as Amy indicated, uh, that there's this principle of administrative law, the Chenery Doctrine that, uh, that you have to, uh, evaluate administrative action according to its actual state of rational and, uh, you know, you look at the time of action, uh, to do that and so they might be, uh, they might not be able to take advantage of, uh, these arguments that they've developed along the way.
Rosen: [00:26:59] Um, Amy there are big stakes in this case, the fate of nearly 700,000 DACA recipients is, uh, at stake and tell us about the practical effects of a decision one way or another and also tell us about how this fits in to the debate on the court about whether justices should defer to administrative agencies. Last term in the census case, uh, the more conservative justices generally were inclined to defer to the president's decision to remove the citizen question from the census, the liberal justices joined by Chief Justice Roberts, uh, in this case, were less inclined to defer. Here, deference would rule against the administration and how is that likely to play out?
Howe: [00:27:37] Yeah, so the sta- the stakes, as Jeff mentioned are, are high. I mean, you've got, you know, over a half a million of these, the, the, the term is Dreamers who have applied or would have been eligible to apply for protection from deportation and so there's the, the assurances that you are not going to be deported from the country and then the protection also would, under da- DACA, also opened up other benefits, being able to apply for driver's licenses, being able to work legally in the United States, um, often being able to get health insurance. And so the, the stakes are, are quite large.
As far as deference, I think that the… it will be interesting to see whether or not there are parallels to the census case in this oral argument. You know, the census case, the supreme court, there were several justices who were willing to, to really let the department of commerce do an awful lot of what it wanted to do, but when push comes to shove, the message was you, you have to give us, you have to tell us the actual reason why you're doing it. And so it'll be interesting to see how this carries over into the DACA case.
You know, I, I'm inclined to say that the census case was really kind of a one ticket only decision. I think that the, the circumstances were, were so extreme in the sense that you have sort of this ongoing trickle of news coming out over, as the supreme court was trying to decide the case about what was actually going on behind the scenes in the census case and what the, the real motivation for adding the question might have been and so that may well have been the supreme court saying we'll give you a lot of deference, but we're not going to let you, we're not going to let you do whatever you want.
Rosen: [00:29:23] Conservative justices led by Justice Gorsuch are skeptical of the Chevron Doctrine, which generally says court should defer to administrative agencies, unless its legal conclusions are plainly wrong. Justice Gorsuch thinks the courts should evaluate the law as an original matter and not these deferential. Um, do you expect them to maintain this general refusal to defer in this case, and which way would that cut?
Elwood: [00:29:52] There is a, there is a rising tide of skepticism to administrative action generally. In this case, um, I'm not sure whether it'll get traction here. It, it may, uh, because, uh, so much of this depends on whether, uh, the, the DACA program was illegal, and that is something that, uh, you know, the courts are more expert than agencies on. So, uh, it may be that, uh, you know, that they go straight to this legal issue and don't, you know, get too caught up in, uh, in, uh, in sort of matters of deference.
But, um, I, I, I candidly, I'm not really sure how that, uh, will shake out here. I just… my gut instinct is that it's not as, uh, as implicated here as it is in some matters.
Rosen: [00:30:44] Our next topic is the free exercise of religion. Uh, there is an important case called Espinoza against Montana Department of Revenue, involving the extent to which the free exercise clause of the first amendment forbids a state from refusing to provide certain benefits to religious organizations which it provides to secular organizations. Amy, tell us about the stakes in that case and the legal arguments.
Howe: [00:31:11] This is a really interesting and potentially very important case. Uh, the, what it boils down to really are school choice programs. The supreme court has said that court, that states can provide school vouchers, um, including for religious schools, and the question really that is gonna, could flow from this case is whether or not if states provide aid to attend private schools, whether or not they're going to have to provide it so that people can attend religious schools as well.
Um, back in 2015, the Montana legislature created a program that provided a dollar for dollar tax credit if you donated to a scholarship program, you'd get a tax credit of up to $150, and those scholarship programs could then turn around and give people scholarships to attend private schools, including religious ones. And it turns out that in Montana, almost all private schools are religious ones. Uh, little interesting tidbit was that the governor is, uh, Steve Bullock, who had vetoed similar bills several times but ultimately let this one go without signing it into law because he was afraid that then there would be a referendum that would bring out lots of republican votes and so he just sort of let it pass.
But, um, so, shortly after the, the bill was enacted, the Montana Department of Revenue passed a rule that said yeah, this is all well and good, but our state constitution prohibits aid from going to churches and religious schools, so this program is in place, but you can't use it for scholarships to religious schools.
Um, and so this was quickly challenged by a group of me- parents who wanted to use the program to pr- to get scholarships to send their kids to Christian schools in Montana. The Montana Supreme Court didn't get in to the constitutionality of the rule and instead said that the, struck down the whole program, said that under our state constitution, we can't provide aid to religious schools. The challengers had argued essentially that having this rule that barred aid from going to religious schools violated the federal Constitution, which, uh, guarantees the free exercise of religion.
Rosen: [00:33:28] So I'm hearing you say there are competing precedents on the table. In the Zelman case, as you noted, the court upheld school voucher programs on the grounds that as long as parental choice rather than state control determined whether a secular or a sectarian school got the voucher money, it was consistent with the free exercise clause. Then we had the Locke v. Davey Case, which reached a different conclusion, it said that a state program which gave needs based scholarships to attend religious or secular colleges but excluded those who wanted to, uh, prepare for the ministry, uh, was oh- was okay because it was, uh, in that case, uh, the money would have been going directly to the ministry.
And then there was the Trinity Lutheran case recently that said that, um, it was a violation of the free exercise clause to give assistance to secular schools but not religious schools for public funds like resurfacing the rubber on a school pr- playground.
So John, with these complicated precedents on the table, does it al- all boil down to whether that Locke V. Davey case is basically an exception for money that goes directly to the ministry and otherwise as long as the, uh, pa- parents rather than the state is determining the direction of the fund, the court will generally uphold it? Uh, and, or is there some other way of, uh, of skinning this cat?
Elwood: [00:34:49] You know, the, he- it'll be interesting to see how the court handles it because Locke is, uh, kind of a wrench in the works in that it, it kind of points in the opposite direction. There might be narrow ways of distinguishing it because I believe that the money more or less went directly from the state, uh, to the person, to, to the, uh, to the student, so it was one step closer. Because here, it's basically you get a tax credit for contributing to a private fund, so there's like an additional kind of layer of, uh, there's kind of an additional kind of, uh, step between the state and the religious institution here. And it may be that they think that's enough.
Um, but, uh, uh, but it's very hard to predict exactly what he'll say. I mean, the way the Robert's court generally does things is that they're going to try to avoid overruling stuff if they can avoid it.
Uh, and so they'll probably, uh, you know, say that that has, uh, sufficient ground, assuming they were going to go out and rule in favor of the scholarships, um, that that is an adequate basis for distinguishing it.
But, uh, eh, you know, when you take a step back, um, you know, that was a Rehnquist, Locke vs. Davey was a Rehnquist era court, it was in waning days of the Rehnquist era court, which was, you know, kind of more, uh, muscular, uh, federalism and wanted to give states, uh, you know, different ways of handling manners on their own. And the, in the kind of intervening years, they've been, uh, focused more on kind of strict neutrality towards religion and treating religion, uh, like every other int- interrace. So it's, uh, kind of an interesting, uh, movement in the court in terms of, uh, you know, not to be too flippant, but it was much more kind of a flavor of the week and, uh, in the Rehnquist court, the, the federalism, and now kind of, uh, a strict religious neutrality is more of a feature of the Robert's court.
Rosen: [00:36:38] That is a crucial principle of the Robert's court, as you say, and religious neutrality has been getting the votes of six to three or seven to two justices, uh, the two often justices, uh, Ginsberg and Sotomayor will take a more separationist position as they did in the Bladensburg court, uh, cross case last year, where the other seven justices said it was okay for historical reasons to keep the cross on what was now public land. But the tri- but the, uh, Trinity Lutheran case was a lopsided one as well. So, eh, given all that, Amy, is this case likely to be a lopsided win in favor of religious neutrality and the, uh, voucher program, uh, and if there are any divisions, might it be under whether to strike down these so called Blaine Amendments, which, uh, hold that any mingling of, uh, public and secular funds is impermissible?
Howe: [00:37:30] I think it's gonna be, I think it's likely to be closer, at least more closely fought. The Trinity Lutheran case actually was really fascinating because it was a pretty big gap between when the court announced that it was going to hear the case and when it was actually argued and, uh, we don't know exactly what was going on behind the scenes, but every month they'd, you know, release the argument calendar and it wasn't there and sort of the sense was that they were wa- it was after Justice Scalia died that the uncertainty about when there was going to be a replacement is that they were waiting for another, a ninth justice because they thought it might be a close call. When they finally got Justice Gorsuch, you know, they heard the oral argument and even after the oral argument, it didn't seem like it was going to be particularly close, but there was a, sort of a key footnote in the Trinity Lutheran case that said essentially this is about playgrounds. We're not talking about funding for religious uses.
And at least a couple of the more conservative justices, Gorsuch and Thomas said, you know, you know, basically, I think that was a footnote that they had to include to bring Justices Kegan and Breyer on board. Um, but Just Gorsuch and Justice Thomas, I believe, kind of balked at that footnote.
And so, you know, this is gonna, I think gonna be a, a more difficult one. You know, you can't say like oh, this is just about rubber funding for playgrounds. You know, I think it's, it's, there may be ways to distinguish it to sort of come up with an opinion that is sort of… has some sort of narrow compromise, the way that they had with the Bladensberg Cross Case in which Justices Breyer and Kegan joined some of the court's more conservative justices to say well at least when you have a cross on public land that's been there for almost a century and has another meaning besides just sort of endorsing Christianity, those crosses can stand. It's harder to see sort of what the compromised decision would be in this case right now at least, on my end.
Rosen: [00:39:30] I'm so glad you called attention to that footnote, uh, which shows the division on the court. John, do we have any sense of Justice Kavanaugh's views on religion cases? Would he be likely to join the, uh, moderate footnote saying that case was just about playgrounds or is he more likely to side with Justices Thomas and Gorsuch in, uh, a broader opinion for religious liberty and can you imagine the compromise position here and what would it look like?
Elwood: [00:39:56] I, I think that the, the best, uh, proxy for Kavanaugh's vote is Chief Justice Roberts. Uh, they voted together, uh, they, they were very close analogs, uh, last term. And although, of course, uh, again, what I said before, we've only had a few cases from them and it's very hard to generalize, but, uh, let me generalize anyway that, uh, I think they probably are, uh, I think that they're probably going to voting more closely, so I think he'd be… he's also very practical and so I think he's going to be looking for kind of practical solutions.
Um, h- h- they, there is, this is kind of a weird enough case, I mean, the fact that they took, the Supreme Court reached out… I can't say reached out, they granted the petition, even though they, they struck down the whole program. There was no discriminatory, uh, treatment, you know, nobody was getting, uh, the program. Um, uh, there was enough weird things about the case that I, I, I sort of feel like Amy that, uh, it doesn't feel like they're going to be able to couple together a majority, but they are very, uh, they all seem to be very motivated to not make cases look like they're breaking down on, uh, on, on the lines of which president appointed them.
So, I think that they will look for what common ground they can find, uh, but what common ground there is is not always obvious.
Rosen: [00:41:13] All right, one more merits case and then we turn to the shadow docket, uh, and the cases the court has not yet agreed to hear, but may, including abortion. The final case involves the second amendment. We did a great podcast on this fascinating second amendment case recently, but the case may become moot, in other words, the justices may soon decide that there's no longer a live controversy and dismiss the case. Uh, and yet there's at least one more second amendment case bubbling up that the court might take instead.
So Amy, tell us about New York State Rifle and Pistol Association, why it might become moot and what the stakes in the other second amendment cases that are bubbling up are.
Howe: [00:41:53] Sure, so this is a challenge to a New York City law that prohibited, uh, and I'm talking about it now in the past tense, uh, even if you had a licensed hand gun, prohibited you from taking it outside the city, including to your country home, outside the city, including to shooting practice at a target range outside the city and so the New York State Rifle and Pistol Association challenged it as a violation of the second amendment. The Supreme Court agreed to take the case earlier this year and it was the first time in almost 10 years that they had agreed to take up a second amendment case, so that in and of itself is noteworthy because they'd had many requests to weigh in on various, uh, second amendment challenges to gun control laws and had declined to do so.
Um, this summer, New York ch- New York City changed its rule so that the, the, the restriction no longer applied and then New York State also changed it's laws in a way that work sort of backstop the change to New York City's rule and so New York City filed a motion with the Supreme Court to dismiss the case, dismiss the case as moot, to say it is no longer a live controversy.
Um, the New York State Rifle and Pistol Asso- Association has resisted that move, saying that A, New York City, basically, we don't trust New York City. They could change the rule back at any moment as soon as you dismiss the case and you shouldn't trust them either, and in any event, you know, they've changed the rule, but it's still, there are still violations of our right. If you're taking your, you can take your gun to your country home or to your target practice, but if you stop for coffee, that's a violation of the rule and if you, if you rent rather than own your summer home, it's also a violation.
And so that, the, um, Supreme Court actually considered today whether or not they're going to hear oral argument in the case or instead dismiss the case. So we should know possibly by the end of this, uh, this week, or more likely next week what the Supreme Court's going to do. It has been scheduled for oral argument in December, but there are, even if this case were to go away, there are other challenges, um, in p- the pipeline, so to speak, to different gun control laws, including a challenge to a New Jersey law, that among other things, if you want to get a permit to carry a gun, which, uh, requires you to show a need to have the handgun.
There are, you know several states, I think, including Maryland, have similar laws and it's been a, a topic of several challenges at the Supreme Court and the Supreme Court so far has not weighed in on them, but perhaps is, the Supreme Court is now more likely to, to consider them seriously.
Rosen: [00:44:45] Fascinating. John, uh, it sounds like these need to carry a handgun laws are more common than New York's relatively unique law saying you can't carry a gun out of state lines to a firing range. If the court were to hear the need to carry laws, how would it evaluate it? And I learned from our last podcast that there's a division on the court between Justice, uh, Thomas and some other justices who believe that the court has relegated the second amendment to a second class right and want to increase the level of scrutiny with which, uh, gun control laws are evaluated and other justices who believe that the court got it right in the Heller case where it said that reasonable regulations are permissible. So how might the different justices evaluate a need to carry case, if they took it up?
Elwood: [00:45:30] Well, uh, eh, as Amy says, it's been 10 years since we've heard anything from the court, uh, and there've been a number of changes, uh, in the court's composition since then and, uh, I think you know, unless, uh, you want to talk about the, the, uh, the quartering clause, the third amendment of the constitution, uh, the second amendment has had so little written about it that, uh, the kind of scope of what it means, uh, is still very unsettled. So I think, uh, it's, it's, would be very tough to say what, uh, how the justices would, uh, uh, would interpret the second amendment and how it would apply to, uh, these kind of need to, need to carry or, uh, need to carry laws.
Um, uh, you know, you have some general inklings about, uh, what, how they might approach it, uh, because, you know, Justice Gorsuch is, you know, a very, you know, kind of a fire breathing originalist. Uh, Justice Kavanaugh, uh, views himself as an originalist but he's, you know, uh, you know kind of, uh, uh, less outspoken about it, uh, there among the, uh, more important additions, especially when you consider that, uh, Justice Kavanaugh replaces Justice Kennedy who was kind of putting the breaks if you, you know, you read the various books that have been written, uh, since then, uh, including, uh, Justice Stevens. You know, Justice Kennedy was kind of putting the brakes on the court's past second amendment cases. Uh, you know, suggesting that you know, we need to have a area of reasonable regulation and it's a bit uncertain.
As I say, Justice Kavanaugh, we have the impression that he's kind of a more pragmatic person, uh, but I think people, uh, correctly view him as being more conservative than Justice Kennedy. So, uh, it, it remains to be seen, uh, ye- you know, what the second amendment's going to look like going forward.
Rosen: [00:47:17] All right, our last rounds involve the so called shadow docket and the cases that people are looking at more avidly involve abortion. So Amy, what is the shadow docket, and what are the abortion cases that the court might hear?
Howe: [00:47:30] So the shadow docket's sort of a loose term for the cases that aren't, you know, argued and argued on the merits in open course and decided at the Supreme Court. So it can be sort of the cases in which the Supreme Court may or may not decide whether to hear them on the merits and, uh, you know, frequently the se- especially more recently, the Trump Administration has come to the Supreme Court a lot asking it to step in and block lower court orders and the justices will act on, on those requests.
Um, the, but abortion is a case that is in the, uh, an issue that's in the pipeline and was considered at the justice's conference today and in fact, cases from two different states. There was a challenge to a Louisiana law that is very similar to a Texas law that the Supreme Court struck down in 2016, after the death of Justice Scalia. It's a law that requires doctors to have admitting privileges at local hospitals. Um, Justice Kennedy joined the courts former liberal justices back in 2016 to strike down the Texas law. The Louisiana law is very similar, but the US Court of Appeals for the Fifth Circuit earlier this year upheld the law. So the abortion providers came to the Supreme Court in February asking the justices to block the law from going into effect. They said if the law goes into effect, um, there's only going to be one doctor performing abortions in Louisiana, none after, uh, 17 weeks of pregnancy, and if these clinics close, they're likely not going to reopen.
And so the Chief Justice, John Roberts joined the court's former liberal justices in temporarily blocking the state from enforcing the law, even though he had been in the decent in the Texas case a couple of years back. So that's kind of a fascinating thing to, to chew on, and think about why he did that. Um, and then there's an Indiana law that requires women who want to have an abortion to have an ultrasound at least 18 hours before they have an abortion. The US Court of Appeals for the Seventh Circuit struck down that law, said that it placed an undo burden, which is the standard for deciding whether or not a restriction on abortion is constitutional on a woman's right to have an abortion. The, the argument by the challengers was that many women, there aren't a lot of places where you can get the ultrasounds done and that many women wouldn't be able to have it done the same day, they'd have to make two trips or spend the night. It would make it more difficult for them to have an abortion.
So both of those cases were on the Supreme Court's conference today, so we could hear quite soon whether or not the Supreme Court's going to hear oral argument on the merits in those cases.
Rosen: [00:50:14] John, as you said, you can't predict a decision until you read it, but if the court choose to hear either the Louisiana or Indiana cases, um, how do you think the justices might, uh, decide it, given the fact that this would be Justice Kavanaugh's first major reproductive rights case, eh, replacing Justice Kennedy?
Elwood: [00:50:36] Well, uh, the Louisiana case, uh, is kind of special because it's an awful lot like this Texas case, Whole Women's Health that they had, uh, a few years ago and so, they might feel more constrained to, uh, you know, hold in the Louisiana case the way they did in the Texas case. Although, uh, uh, Justice Kavanaugh has written, uh, about why they didn't need to stay the Louisiana case for various technical reasons, but it was a very, you know, in the weeds, uh, explanation about why, uh, they would need to have a stay there. But they may feel constrained to rule in a way that aligns the Texas case up with the Louisiana one.
Um, the fetal, uh, uh, the, the ultrasound case, um, you know, because there's not a, a close analogy on point, they may, uh, you know, they may be kind of more open but, uh, you know, each of these cases, the undo burden standard, you know, people thought this was the center that came out of the Casey, uh, case from, uh, in the 90s that you know, what is an undo burden? And it's very much, it's a very, uh, open textured test, uh, and you know, it, there, there've been opinions over the years that are very different.
You know, there was, uh, the, the so called partial birth abortion case, they had a very, you know, they, they had a very, very, um, you know, deferential to the legislature opinion in that case, and then in the Whole Women's Health Case, uh, they had, uh, a much more, uh, critical, uh, opinion that looked very hard at what the legi- at the legislature's judgment of whether they were really justified.
And you know, just as Kennedy authored one opinion, joined the other one, uh, but even though they were very different, you know, they were applying the same test, they were very, very different and the question is, which test shows up, um, for the ultrasound case? Because, uh, if it's the deferential test, um, from the partial birth abortion ban case, you know, that's one answer that the conservatives are going to like and if it's the, um, uh, the Whole Women's Health, much more, you know, looking critically at what the legislature decided, uh, it's going to be one that's going to, uh, uh, please the, the liberals more.
Um, and that's even assuming that it is the undo burden test because I think the sort of nightmare scenario for, uh, people who are on the left of center is what if the court revisits, uh, the undo burden test? We've seen a lot, one of the kind of recurring themes in the last couple of terms is the role of stare decisis, how much you give deference to precedent and, uh, the, uh, you know, Justice Kavanaugh and Justice Breyer in particular have been criticizing the conservatives for you know, being unduly differential to precedent and, uh, the reason why they've been doing that is not because they care so much about these cases along the way, although they do, but it's because of, uh, what it might mean for, uh, um, uh, for Casey and abortion rights.
Rosen: [00:53:28] Well it's time for closing arguments in this absolutely fascinating discussion and I want to ask about unanimity and polarization. Uh, Chief Justice Roberts has achieved something in, in three terms that had not been seen since Chief Justice Fred Vincent in 1946, namely 90% unanimity in the court's first 10 decisions of a term, and yet at the end of last term of course, we did see some high profile divisions in the census and gerrymandering cases. Uh, given the extraordinarily controversial cases that the court will be hearing this year, ranging from religious freedom to the second amendment to LGBT rights to perhaps abortion, do you expect, Amy, to see an effort to achieve consensus and avoid five to four splits, especially since we're coming up on an election and we may be seeing a presidential impeachment? Or do you expect there to be serious divisions on the cases we've discussed?
Howe: [00:54:29] Both. I expect there will be an effort, um, but you know, the Chief Justice is only one vote and to a certain extent, he is trying to herd cats, you know, at the court. And so I think that particularly with some of these issues that are so important and polarized that it's going to be impossible to, to, to achieve consensus. I, I know that he would like to, to live in a world in which people don't think of the court and that the court… that people don't vote based on the, uh, political party of the president who, who appointed the justices, but I think that's what we're, we're likely to see perhaps in the, in the Title Seven cases and in the DACA cases.
Um, you know, I think he will work very hard to try to have some consensus. I think that Justices Kegan and Breyer will also work very hard for consensus because I think that they would rather, as we saw in the Bladensberg Cross Case, give a little, um, to avoid a, a broader result, but that, you know, that may not be possible.
Rosen: [00:55:34] Uh, John, your thoughts about whether we are likely to see at the end of this important term more unanimity or more divisiveness or both?
Elwood: [00:55:43] I, I hate to be a copy cat, but I agree with, uh, Amy on this one because, uh, but I do think that there are people who are going to try to, uh, achieve unanimity and, uh, you know, both, uh, because it decreases, uh, it makes people view the S