Tag Archives: Linda Greenhouse

The Roberts Court

Linda Greenhouse is an astute observers of the U.S. Supreme Court, so when I see her byline on an article, I read it carefully. Last Sunday, she provided an 18-year overview of the Roberts Court,— providing readers with a chilling description of what Americans have lost since John Roberts assumed the position of Chief Justice.

Greenhouse noted that the just-completed term was in many respects the capstone of Roberts’ 18-year tenure. As she writes,

To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

When Roberts joined the Court, Greenhouse says there was a “robust conservative wish list.” She then enumerates the items on that wish list:  overturning Roe v. Wade, reinterpreting the Second Amendment in order to turn gun ownership into a constitutional right, the elimination of race-based affirmative action in university admissions, the elevation of religion within the legal landscape (Greenhouse doesn’t say it, but what was wanted was the elevation of Christianity–not just “religion”)–and a drastic reduction of federal agencies’ regulatory power.

Despite the fact that William Rehnquist, the prior Chief Justice, was a committed conservative, the Court had not accomplished a single one of those goals. Greenhouse describes the case decisions that had failed to accomplish that conservative wish list– establishing precedents that would seem to preclude their realization.

That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.

t’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.

Lawyers point out that the major questions doctrine was invented out of whole cloth; it is certainly nowhere to be found in the Constitution or prior case law. Greenhouse notes its utility to a rogue Court: “how to tell a major question from an ordinary one? No surprise there: The court itself will decide….it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.”

You really need to click through and read the entire essay, because Greenhouse does a masterful job of explaining the disingenuous reasoning that allowed the Court’s majority to impose its reactionary policy preferences while ignoring “settled” law.

The web designer case was among the most egregious:

The court has created a religious opt-out from compliance with laws that govern the commercial marketplace…. [Gorsuch’s] opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.

But none of those precedents are relevant, because none involved discrimination by a commercial entity.

The essay concludes that the Court “has become this country’s ultimate political prize…  from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.”

Absent a Blue wave in 2024, it will only get worse.

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The Age of Grievance

There are a number of ways to escape “the news of the day.” Suicide, of course; substance abuse (mostly booze), studied ignorance…I can’t be the only person who needs some respite from the daily reports of Trump damage, environmental despoliation, insane conspiracy theories and the like.

Recently, I’ve been escaping into fiction. Mostly science fiction and mysteries–guilty pleasures that are finally available to an almost-retired person. I’ve particularly enjoyed a series written by a Canadian writer, Louise Penny, who follows an Inspector Gamache through sixteen books. I was reading book number 8, when I came across an observation that explained not just crime, but political behavior. The Inspector was explaining motivation–and attributing much of it to fear.

Especially, he said, fear of loss.

Could there be a more apt description of the political insanity we inhabit? During the past four or five years, the word “grievance” has become an indelible part of our political discourse. It applies almost always to people who believe they are at the cusp of loss–loss of the world in which their particular identity dominates others. As I have often noted, research has established that “racial grievance” is the most reliable marker of Trump support.

Other research has found that certain Christians exhibit an almost hysterical fear that their “religious liberty”–defined by them as their right to prescribe the behavior of others– is slipping away. Linda Greenhouse, one of the most thoughtful observers of the Supreme Court, focused on that fear in a recent New York Times column. She wondered whether Amy Coney Barrett would join the “grievance conservatives.”

Greenhouse began by discussing the recent 5/4 decision exempting religious gatherings from COVID restrictions, and noting that it was likely to be moot, since the restrictions had already been modified.

The real significance of the decision lay in the which-side-are-you-on test it posed for the newest justice. I don’t mean the conservative side versus the liberal side. Obviously, she’s a conservative. What matters is that a month into her tenure, she chose to align herself with what I call grievance conservatism: conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.

The embodiment of grievance conservatism is Justice Alito, who in a speech last month to his fellow members of the Federalist Society said that “it pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”

Greenhouse pointed out how ironic this was:

Justice Alito is a member of a Supreme Court majority that during his nearly 15-year tenure has been more deferential to the demands of religious believers than any Supreme Court in modern history. Just this past summer, the court ruled that a state that offers a subsidy for private-school tuition must include parochial schools in the program; that religious organizations may exclude a substantial category of employees from the protections of federal civil rights laws under a “ministerial exception” that goes well beyond members of the ministry; and that employers with religious or even vague “moral” objections to contraception can opt out of the federal requirement to include birth control in their employee health plans.

As Greenhouse also reported, Alito and Thomas wrote “sympathetically in early October about Kim Davis, the Kentucky county clerk who refused for religious reasons to issue marriage licenses to same- sex couples.”

Since the two justices were neither voting to grant the appeal nor dissenting from its denial, their opinion was entirely gratuitous. They simply used the case as a platform to reiterate warnings about the threat to religion from official recognition of same-sex marriage.

Greenhouse is absolutely correct when she observes that what religious adherents want is not equal treatment. Equality is no longer sufficient. “Special treatment is the demand.”

There is also irony to this (quite correct) “special treatment” characterization. Back in the early days of the gay civil rights movement,  religious figures hysterically objected to any grant of civic equality to members of the LGBTQ community, asserting that laws against discrimination weren’t equal rights, but “special” rights.

What these frantic warriors for “religious liberty” really fear is loss of their unearned privilege. And as Inspector Gamache understood, fear of loss can make people do criminal things.

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Frame Me A Story

When I think about what I learned in law school all those years ago, it really boils down to one truism: he who frames the issue wins the debate.

Okay, that might be a wee bit of overstatement, but a recent column by Linda Greenhouse— one of the most savvy reporters covering the Supreme Court–reminded me just how important framing is, not just in litigation but also in politics.

Greenhouse was writing about two “religious liberty” cases on the Court’s docket this term. As she noted, these cases involve a constitutional gray area; we know that the  Free Exercise Clause requires government to give religious believers room to practice their faith without undue interference. Courts must decide how much room, under what circumstances, and what interference is “undue.”

The cases the Justices must decide this term–Little Sisters of the Poor v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru— both lend themselves to what Greenhouse calls “alternative narrative” packaging. Religious organizations have been in court ever since the Affordable Care Act was passed, protesting the Act’s requirement that health insurers cover contraception for employees that want it.

Which gets us to posturing. Despite Little Sisters’ name on one of the lawsuits, it has virtually no interest in the decision.

That’s because the order’s lay employees, not all of whom are Catholic, are covered by a church-sponsored insurer, the Christian Brothers Trust, which the government conceded in earlier litigation can’t be penalized for its refusal to provide the disputed contraception coverage.

In other words, the Little Sisters have already won. The actual dispute before the court is between Pennsylvania and New Jersey, on one side, and the Trump administration on the other. The states sued to block the administration’s rule that lifts the contraception mandate entirely from any employer — profit, nonprofit, privately held or publicly traded — with a religious objection to covering birth control, as well as from any privately held employer that claims a “moral” objection.

The actual issue raised by the states is whether the Trump administration complied with the Administrative Procedure Act when it issued the rules.

But that hardly comes through from headlines like “The Endless War on the Little Sisters of the Poor” on a Wall Street Journal op-ed by Helen Alvaré….. And Ramesh Ponnuru’s Bloomberg opinion column declaring that “The Left Is at War With the Little Sisters of the Poor” concluded by demanding, “Leave the nuns alone.”

Talk about a compelling story line. Except that it isn’t accurate, not by a long shot. On the table when the Obama administration left office was a proposed accommodation under which religious nonprofits would not have to do anything — hands off, completely, nothing to sign, no forms to fill out — to have the insurer, with reimbursement by the government, provide “seamless” contraception coverage. That was the Obama administration’s one nonnegotiable requirement. (The administration didn’t want women to have to shop for a stand-alone birth-control insurance policy.)

In other words, the nuns and all other religious employers, were not being asked to “pay for birth control,” far from it, and would have been untouched by the bureaucratic hand. But that still wasn’t sufficient, the religious employers said, to avoid their complicity in the sin of contraception because their insurance policy would still provide the link, however attenuated, between their female employees and contraception.

The court’s second religion case involves the “ministerial exception,” a doctrine that exempts churches from having to follow federal nondiscrimination laws when it comes to employees whose jobs are essentially religious. (As I tell my students, that means that a synagogue can’t be required to hire a Baptist as Rabbi, or a Baptist Church compelled to employ an atheist Sunday school teacher.)

Two Catholic schools in California dismissed fifth-grade teachers, each of whom taught fifth-grade subjects– including, twice a week, a class taught from a religious workbook. One was fired after she developed breast cancer and needed time off for treatment, who sued under the Americans With Disabilities Act. The other woman alleged age discrimination.

Both schools claim that the ministerial exception applies, and federal anti-discrimination laws don’t.

During last week’s argument, the justices and lawyers jousted over hypothetical questions: Would the exception apply to a janitor? To a football coach? To a football coach who led the team in prayer? An employee at a soup kitchen who leads grace before meals?

The case is being framed as the right of religious schools to select religion teachers. The actual issue is whether a teacher who teaches religion for two hours a week, along with math, social studies, English and everything else, is a “religion teacher.”

Here’s the real question raised by both of these cases: do Americans employed by religious employers forfeit their Constitutional rights?

Would framing these cases accurately win the debate?

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Avoiding The Merits Of The Case

My years as Executive Director of Indiana’s ACLU gave me the kind of education that schooling just can’t supply. It was during that time that I first recognized how few Americans knew even the most basic principles of the Constitution and Bill of Rights; for example, there was–and probably still is–a belief that the majority always rules.

I can’t count the number of Hoosiers I encountered who insisted that if a majority of citizens wanted a book banned or a public prayer said– why, that should be the law. The idea that the Bill of Rights enumerates things government cannot do –even if a majority wants government to do them–was both a foreign concept and an unpleasant surprise.

When the issue involved criminal procedure, people expressed widespread disgust at “stupid rules” (for example, the Fourth Amendment) that allowed an occasional defendant to “get off on a technicality.” (“Occasional” is the operative word; aside from television episodes of “Law and Order,” that’s a pretty rare occurrence.)

I thought about those negative attitudes toward “technicalities” a while back, while I was reading a New York Times column by Linda Greenhouse on the standing doctrine. Standing actually is a “technicality” in the sense that when the doctrine is too expansively applied, it allows a court to ignore the merits of a case–to sidestep the issue that is being litigated.

I’m copying a fair amount of the Greenhouse column, because the concept of standing is unfamiliar to most Americans, and its significantly expanded use by the Courts is far more dangerous than the likelihood that fidelity to the Fourth Amendment will free an accused felon.

Pop quiz No. 1: What do the following have in common: an abortion clinic in Louisiana; the county of El Paso, Tex.; and two individuals who don’t want to buy health insurance?

Answer: All are plaintiffs in federal court.

The Hope Medical Group for Women, in Shreveport, La., is the petitioner in the June Medical case now at the Supreme Court, challenging the constitutionality of Louisiana’s latest effort to shut down the state’s few remaining abortion clinics.

El Paso County is suing the Trump administration to stop construction of a new section of border wall on its southern border with Mexico that will be paid for in part by siphoning off millions of dollars that Congress intended for a project at the Fort Bliss Army base, the county’s biggest employer and economic engine. This case is not yet at the Supreme Court, but is most likely headed there.

And Neill Hurley and John Nantz, the two men who object to being told to buy health insurance? They and a group of red states led by Texas are in the Supreme Court defending the lower courts’ conclusion that the Affordable Care Act’s individual mandate, which no longer carries any penalty for noncompliance, is unconstitutional.

Pop quiz No. 2: Which of these are the only plaintiffs that the administration’s lawyers are not trying to throw out of court?

Answer: The ones who don’t like Obamacare.

And how are Trump’s lawyers trying to keep the other issues from being decided by the courts? By arguing that the plaintiffs lack standing —the right to bring the lawsuit in the first place.

Courts have developed a three-part inquiry for deciding whether a plaintiff has standing, designed to ensure that a lawsuit presents the “case or controversy” that Article III of the Constitution requires for the exercise of federal court jurisdiction. Did the plaintiff suffer a real injury? Was the injury caused by the defendant? And can a victory in court actually bring relief? These questions appear to invite simple yes-or-no answers. But a few minutes’ reflection shows that they are far from value-free, and finding the answers requires the exercise of judgment.

For example, El Paso County claims that even before a dime has been diverted from Fort Bliss and spent on the wall, it is already suffering damage to its reputation that will cost it business investment and tourist dollars.

The District Court Judge agreed with El Paso that “reputational and economic injuries”  were real, and sufficient to establish standing, and that the injuries were traceable to the government’s proposed action.The Court of Appeals for the Fifth Circuit, however, granted the administration’s request for a stay of the injunction, finding a “substantial likelihood that appellees lack Article III standing.”

Greenhouse goes through the arguments for and against standing in each of the other cases; the explanations demonstrate both the dishonesty of the administration’s positions and the pliability of the doctrine.

“Actual damage” is in the eye of the beholder, and when the beholder is an unqualified partisan put on the bench by Trump and McConnell, standing becomes a “technicality” that can be used to neuter constitutional guarantees.

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The Klingons in Florida

Linda Greenhouse’s column in this morning’s New York Times discusses an absolutely appalling policy being applied in Florida. It is aimed at illegal immigration, but I hesitate to classify it as an immigration policy, because it is aimed squarely at young citizens whose parents lack documentation. The state refuses to authorize residential tuition rates for these young resident citizens who enroll at Florida’s public colleges.

It’s as if Worf, from Star Trek the Next Generation, is making policy in Florida. Klingons, as you may (or may not) recall, believe that “dishonor” passes from parent to child. Several episodes of the series drew their dramatic impact from the viewers’ sense of the terrible injustice of holding Worf responsible for crimes his father was alleged to have committed.

Klingons are fictional. Rick Scott, the criminal who is governor of Florida (I use the word deliberately; his company defrauded Medicare of billions) unfortunately is not.

As Greenhouse notes, the U.S. Constitution expressly forbids punishing children for the crimes of their parents.

““Corruption of blood” was a familiar feature of the common law in England. A person found guilty of treason and certain other crimes would be barred from passing his estate on to his children, who would thus inherit nothing but the corrupted blood line. The framers of the United States Constitution considered and forcefully rejected the concept. Article III, the judiciary article, contains this sentence: “The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained.” As James Madison expressed the thought more directly at the time, the purpose was to prevent Congress “from extending the consequences of guilt beyond the person of its author.”

There are two questions here, both pertinent: Where was Florida’s Attorney General while officials were deciding to implement a policy so clearly at odds with what the Constitution requires? And perhaps more importantly, what happened to these policymakers’ human decency?