Good Friday Morning, and if you’re reading this over the weekend, happy Juneteenth! It’s a good thing Congress decided to make this one of the national holidays, as it marks the end of slavery in America, Lincoln’s Emancipation Proclamation, and more. This is one of those good and rare bipartisan moments in Congress. Caleb Franz had a nice word on this on Twitter, “July 4th is the promise of Juneteenth. Juneteenth is the fulfillment of July 4th. These two dates aren’t opposed to one another, they complement each other.”
Earlier in the week, I had thought about writing about something other than what I’m writing about today. In particular, I read an essay by the Nigerian author Chimamanda Ngozi Adichie. She details how a former pupil of hers, that she mentored, went on to greater success and turned around and blasted her on social media, all while making pleasantries in email. In the breathtaking conclusion section, she writes:
There are many social-media-savvy people who are choking on sanctimony and lacking in compassion, who can fluidly pontificate on Twitter about kindness but are unable to actually show kindness. People whose social media lives are case studies in emotional aridity. People for whom friendship, and its expectations of loyalty and compassion and support, no longer matter. People who claim to love literature – the messy stories of our humanity – but are also monomaniacally obsessed with whatever is the prevailing ideological orthodoxy. People who demand that you denounce your friends for flimsy reasons in order to remain a member of the chosen puritan class.
People who ask you to ‘educate’ yourself while not having actually read any books themselves, while not being able to intelligently defend their own ideological positions, because by ‘educate,’ they actually mean ‘parrot what I say, flatten all nuance, wish away complexity.’
I highly recommend it for your reading. She never utters the word cancel culture or anything like it, but so thoroughly devastates the concept and the current woke cultural moment in history that it’s well worth your time. The essay is: “It is Obscene: A True Reflection in Three Parts.”
One other recommendation for this week: an essay by Tanner Greer, “Historians, Slaves of Fashion?” He makes a rather persuasive case that the history books that we see produced are more a product of our time, than the eras they document.
With all of that out of the way, this week I’m going to jump into the two big Supreme Court cases released Thursday morning, talk through what happened, and also go through why smart legal observers are saying votes changed in both cases at the last minute. Links to follow.
Where you can find me this week
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GOP should strip the Squad of committee assignments in the House – The Conservative Institute.
On Loving Day, remember progressive racism – The Conservative Institute.
I knew at some point this month I’d have to do something on Supreme Court opinions. Everyone has been waiting for several big-name cases from the Supreme Court, and we finally got two of them bright and early Thursday morning. We finally got decisions on the Obamacare and Fulton county cases; the first you know about, and the second deals with First Amendment religious liberty.
The Obamacare decision
Let’s deal with the first and most straightforward of the two decisions. Most conservative legal watchers were unsurprised by this decision. With a 7-2 majority, the Court left Obamacare in place and kicked the red states who challenged out on standing grounds. When this litigation first began, I assumed that while they had a novel theory, they’d lose on standing.
That’s not the interesting part of this case. The intriguing aspect is that Justice Breyer wrote it. Coming into today, the odds-on favorite to write this case was Chief Justice John Roberts. People expected him to write this case and for Justice Alito to write the Fulton county decision. Instead, Breyer wrote this one, and Roberts wrote Fulton County. We’ll get into why this is interesting at the end, but overall, I think it was a good day for conservatives.
To understand why conservatives lost on striking down the law, we need a quick back story.
When the Supreme Court initially upheld Obamacare in 2012, it did so while acknowledging that it was doing so on narrow grounds. It ruled part of Obamacare a “tax” (I use quotations because that tax was a fee, and John Roberts was too cute with that distinction) which fell within Congress’s powers. Furthermore, the Court said without that tax provision, Congress lacked the constitutional authority to enact such a law under the Commerce Clause. When Trump won in 2016 and conservatives couldn’t get any form of repeal or replace through Congress, conservatives took a different tactic.
They took the “tax” at issue in Obamacare and got rid of it. Then they made a second legal challenge and said that without that “tax,” Obamacare should be struck down in its entirety. As far as theories go, it took the Court at its word and said that the Court must strike the law down under precedent. Strategically and legally, that should all make sense.
There’s just one glaring problem: to bring a case, you have to have standing. What that means is you have to prove that you are harmed or will be harmed by legislation. Without that tax or fee in place, you can’t prove you’re being injured by the law. There’s no tax to bring direct harm to you as a person. And if you don’t have standing in a case, that means you don’t have a “case or controversy” that the Supreme Court can adjudicate. They’ll say nothing on the merits of the case before them.
Justice Thomas wrote a concurrence with the opinion and summed up the conundrum concisely:
There is much to commend JUSTICE ALITO’s account of “our epic Affordable Care Act trilogy.” This Court has gone to great lengths to rescue the Act from its own text. So have the Act’s defenders, who argued in first instance that the individual coverage mandate is the Act’s linchpin, yet now, in an about-face, contend that it is just a throwaway sentence.
But, whatever the Act’s dubious history in this Court, we must assess the current suit on its own terms. And, here, 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. Today’s result is thus not the consequence of the Court once again rescuing the Act, but rather of us adjudicating the particular claims the plaintiffs chose to bring.
Justices Alito and Gorsuch dissented from this decision. And on the merits of the case, I think they’re absolutely correct, and there’s not a good argument against them. But the weakest part of their dissent is the standing section. There’s not a good argument to prove that these states were or will be harmed by this now de-fanged statute.
This marks the end of the Obamacare Supreme Court decisions. I can’t imagine any more challenges that the Supreme Court would take on this front. All evidence points to Roberts changing his vote at the very last second on the 2012 decision. There was likely some behind-the-scenes politicking on this case too, which we will address momentarily.
The Fulton v. Philly decision
The Fulton case involved a Catholic foster care center and whether they had to serve same-sex couples. As Roberts lays out, “[Philadelhpia] stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage. The City will renew its foster care contract with CSS only if the agency agrees to certify same-sex couples. The question presented is whether the actions of Philadelphia violate the First Amendment.”
In an effectively 9-0 judgment, the Court unanimously agreed that the city of Philadelphia violated the First Amendment Free Exercise rights of the Catholic foster care center. The City held a truly egregious position here that it was better for the Catholic adoption center to shut down and not function than to simply exempt them under religious grounds and send same-sex parents elsewhere to adopt.
The ruling is unambiguously good and keeps religious liberty law headed in the right direction. It’s also good that the Supreme Court said this on a 9-0 level. Where does the decision break down? For most conservatives, myself included, it didn’t go far enough. There’s an old case in play that conservatives like myself — and Alito, Thomas, and Gorsuch at least — want to be overturned, called Employment Divison v. Smith.
The Smith case effectively gutted Free Exercise protection in America and we’ve been fighting to get back to a pre-Smith footing ever since. Alito’s concurrence lays out the path forward on getting to a post-Smith jurisprudence. The Fulton decision is a step in the right direction, but it is a narrow decision. The split on Smith was readily apparent in the decision, as Josh Blackman breaks it down:
Justice Barrett concurred, joined by Justice Kavanaugh, and in large part by Justice Breyer. She declined to overrule Smith in this case. Critically, she rejected Michael McConnell’s originalist argument that Smith was wrong: she found the “historical record more silent than supportive.” Justice Barrett would only consider revisiting the case in light of “textual and structural” concerns based on modern doctrine. (So far I have been holding my breath about Barrett; I will exhale very soon). Justice Alito wrote an 87-page (!) concurrence, joined by Justices Thomas and Gorsuch. It emphatically endorsed McConnell’s reading of the Free Exercise Clause, excoriated Justice Scalia’s opinion in Smith, and found no stare decisis values favor defending the case. Justice Gorsuch wrote a separate dissent that rejected the Chief’s construction on Philadelphia municipal law.
I am firmly in the camp with Alito, Thomas, and Gorsuch on Smith. My college honors thesis explored the ideas pronounced by Michael McConnell, and I’m squarely in that camp. So this breakdown of the case is very disappointing to me. Scalia wrote the Smith decision, so I’ve always known I’m in a different camp among some conservatives on this point.
So while it is a 9-0 decision, there are many fractures sitting underneath the surface. And it’s those differences that caused most of the speculation after the cases were released. Did votes change on these issues? It certainly appears so…
The change in votes theory
After looking through things, I fall in the camp of “votes were changed” on both cases. Josh Blackman lays out the evidence first for Fulton. Here’s what he thinks went down:
Let’s start with Fulton. At conference, the votes were fractured. Alito, Thomas, and Gorsuch voted to overrule Smith. Barrett and Kavanaugh joined the majority opinion in part. They were not willing to overrule Smith, but found some other way to rule for CSS. (Maybe targeting?). Roberts wrote a concurrence in judgment that reflected his ultimate majority opinion: the law is not generally applicable because of the exemptions. Therefore, it fails strict scrutiny. Gorsuch wrote a concurrence, responding to the Chief’s concurrence, that responded to local municipal law. Justice Kagan wrote a vicious dissent about stare decisis. She raised the mantle of Justice Scalia’s decision in Smith. Justice Sotomayor wrote a dissent how this decision will enable bigotry and harm to LGBT families. Then Justice Breyer brokered a compromise. He was willing to join the Chief’s opinion, and much of Barrett’s concurrence. Once Breyer flipped Kavanaugh and Barrett, Kagan and Sotomayor withdrew their dissents, making the Chief’s razor-thin opinion the majority. Ruling against LGBT families must have been bitter pill to swallow, but there is no evidence that anyone was actually ever denied a service. CSS is not like Jack Phillip’s bakery, where anyone can call, demand a cake, and sue. Adoption is a lengthy process, and it is unreasonable to set up a test case on a whim. At that point, Justice Alito was stuck with his 87-page majority, which became a concurrence.
What evidence do I have? First, Chief Justice Roberts’s opinion barely acknowledges the Alito dissent. There is only one citation. Meanwhile, there are four citations to Gorsuch’s dissent. Second, consider the timing. Fulton was argued in November. The majority opinion was only 15-pages. It didn’t respond to the dissents. There was no “ping-ponging” back and forth. This ostensibly unanimous case should have been released months ago. Third, much of Justice Alito’s decision reads like a majority opinion. It lacks that general, bitter dissent tone. And the extensive discussion of stare decisis seems designed to respond to Justice Kagan’s broken record.
The alternative to this theory is that Alito wrote a concurrence to set the stage for overruling Smith in the future. Ed Whelan at National Review makes this argument, saying, “Alito’s opinion in Fulton lays [the] foundation for overruling of Smith, much as his opinion in Harris v. Quinn laid [the] foundation for overruling of Abood in Janus. Complications (procedural, contract language) in Fulton meant that Smith wasn’t teed up clearly at argument. Why did Alito write such a long and comprehensive opinion against Smith? Some speculate that he had the majority assignment from the beginning and lost it. I doubt that. I think it more likely that he thought it valuable to spell things out to set up issue better for next time.”
So why does all this matter? It tells us what could be happening on this new court. We don’t have a good idea of how everyone is working with each other yet, and with three fairly new members, there’s a lot of ground to cover. For me, the Smith insight is key because I fall far more conservatively on this issue than most. If Kavanaugh and Barrett are tracking to the left of that, and upholding Scalia’s opinion in Smith, it could signal far more litigation on religious exemptions down the road – more than there need to be, if we’re being honest.
Josh Blackman also makes the case there was a vote flip in the Obamacare decision, which you can read here. It’s longer and more involved. While I think it’s certainly possible this is the case, I find it a bit harder to believe simply because I and nearly everyone I’ve read on this case expected roughly this result. And with Thomas agreeing on the standing issue, which is roughly where I would fall on it, I see less room for a vote switch. But Blackman lays out the evidence, which is compelling.
The main evidence for both cases in vote jockeying is that, ostensibly, for 9-0 and 7-2 decisions, they got delayed quite a bit, which suggests there were behind-the-scenes issues. That shouldn’t exist with short majority opinions with large vote margins. All of this suggests the newly composed Court is still finding its feet and working to find consensus. I’ve seen some people try to make a broad pronouncement of Barrett’s impact, and I just don’t see anything discernable so far, especially with these cases.
Stay tuned, though!
In my overall conclusion though, it was a good day. The Fulton case is a solid decision in the right direction. Nothing changed on the Obamacare front. There are still several more decisions to come down in the next few weeks as the Court heads towards the end of its term.
Links of the week
The Crusade to Destroy Jack Phillips Continues – David Harsanyi, National Review
Justice Amy Coney Barrett Proves Democrats’ Obamacare Doomsaying Wrong – Dan McLaughlin, National Review
I Taught Online School This Year. It Was a Disgrace. – The New York Times
Liberal unrest threatens to doom bipartisan infrastructure talks: Democrats are leery that talks with Republicans will derail the rest of Biden’s agenda: enhancing public education, paid leave policies and fighting global warming. – Politico
Twitter Thread(s) of the week
Satire of the week
Thanks for reading!