Nikolai Morse ‘24
Staff Editor
This past Tuesday at the Federalist Society’s annual SCOTUS Round-Up, Professor Daniel Ortiz, Mr. Giancarlo Canaparo of the Heritage Institute, and Dean John C. Jeffries ’73, discussed several cases from the Supreme Court’s recent term. The event, which was held in Caplin Pavilion, was well-attended and the discussion ranged from captivating legal discussion to what can only be described as a stinging rebuke. A recording of the discussion is available on the Law School’s website, and I would encourage you to watch it.
UVA Law professors John C. Jeffries Jr. ’73 and Daniel Ortiz are joined by GianCarlo Canaparo of the Heritage Foundation. Photo Courtesy of UVA Law
Professor Ortiz first discussed Fulton v. City of Philadelphia, the case in which Philadelphia stopped referring children to the Catholic Social Services (“CSS”) foster care agency because it refused, on religious grounds, to certify same-sex couples as appropriate foster parents.
Noting that the case had “culture war written all over it,” Professor Ortiz argued that the interesting legal aspect was the potential for overturning Smith, which has been criticized by free exercise proponents. Professor Ortiz said, “this was a really big deal, not only in defining the borders of the culture wars, but in determining when religious belief entitled one to exemptions more generally.”
The decision by the Court was surprising, first, because it was a unanimous decision that held that removing CSS from the adoption program was unconstitutional and second, the decision did not address Smith! Professor Ortiz described the bemusement many experienced seeing the Court tee up a juicy legal issue for resolution, only to then neglect the issue.
Professor Ortiz ended by posing two questions: first, why does the Court tease us like this? And second, would a big win in such a case be good for religious organizations in the long run?
UVA Law professors John C. Jeffries Jr. ’73 and Daniel Ortiz are joined by GianCarlo Canaparo of the Heritage Foundation. Photo Courtesy of UVA Law
The second case Professor Ortiz discussed was Brnovich v. Democratic National Committee, which concerned an Arizona law requiring people to vote in person only in their precinct and limiting the people who could collect an early ballot. Highlighting the impact on voting and the stakes of the case, Professor Ortiz noted that in the 2020 Presidential election the vote was 49.36% Democrat and 49.06% Republican. However, the impact of this case was more than purely political, as it implicated Section Two of the Voting Rights Act of 1965.
After reviewing the history surrounding the passage of the VRA, Professor Ortiz described the 6-3 decision in Brnovich as “pulling many of the teeth of Section Two.” He suggested that it was “a kind of bookend for Shelby County v. Holder,” where the Court effectively deactivated Section Five of the Voting Rights Act pre-clearance requirement. Professor Ortiz closed by noting that “now the next frontier, I think, of voting rights litigation after Brnovich is going to be voting administration. And you've seen some moves of this already in Georgia, in particular. And I don't see how Section Two after Brnovich is going to do any work there at all.”
UVA Law professors John C. Jeffries Jr. ’73 and Daniel Ortiz are joined by GianCarlo Canaparo of the Heritage Foundation. Photo Courtesy of The Heritage Foundation.
Mr. Canaparo began by noting the “golden age of agreeableness” at the Court, evidenced by 44% of decisions on merits cases being unanimous, and two-thirds of all cases having no more than two justices in the dissent. Mr. Canaparo then discussed Cedar Point Nursery v. Hassid, which challenged a California law that allowed union organizers to access farmland without the permission of the owner for up to three hours per day, 120 days per year, to organize laborers. The Court rendered a 6-3 decision that this law amounted to a per se taking.
This case touches on a long-standing debate within the law. One position says that property rights are inviolably enshrined in the Constitution and the other argues that some invasion is necessary for the government to regulate a complex world. In his dissent, Justice Breyer argued that unless the law allows for access 365 days per year, it is not a taking. Mr. Canaparo described the dissent as “something of an anachronistic opinion,” because it “doesn't pretend to articulate an objective standard beyond Breyer's own judgment.”
Mr. Canaparo’s second case was Roman Catholic Diocese v. Cuomo, in which the court granted relief to two houses of worship seeking relief from New York’s maximum occupancy limits during the pandemic. The Court agreed 5-4 in a per curiam decision that under the Free Exercise clause, you must treat houses of worship as well as you treat secular businesses. Mr. Canaparo contrasted this with the Court’s decision last year, in South Bay Pentecostal v. Newsom, not to grant relief, but rather to defer to the state legislature. Noting the shift from the earlier case, Mr. Canaparo closed by referencing Justice Gorsuch’s concurrence, saying “We are back safely into the realm of the Constitution.”
Dean Jeffries opted to begin first with a review of Ex Parte Young (decided in 1908), which established the practice of enforcing the Federal Constitution via injunctive relief against states by naming state officers in the suit. Turning to the recent Texas statute which prohibited abortion, Dean Jeffries described it as “flagrantly, dramatically, incontestably unconstitutional.” Based on the precedent set by Young, we would expect there to be lawsuits seeking injunctive relief against the state officers of the relevant state governmental departments responsible for enforcing this.
Anticipating this, Texas evidently designed its statute to avoid this by providing that no state officer at any level would have a role in enforcing the statute. Rather, the statute would be enforced by what Dean Jeffries called “a system of bounty hunters,” authorizing any resident of Texas to sue an abortion provider or anyone who abets an abortion, and be awarded $10,000 for every abortion prevented – raising the possibility that injunctive relief would not be sufficient to halt the statute.
Calling it “wholly unprecedented,” Dean Jeffries argued that the intent to circumvent Ex Parte Young was the central impact of this case. “For many of you . . . this was an abortion case. For me, it's a rule of law case. By adopting the bizarre scheme of barring all enforcement by state officials, Texas hopes both to act unconstitutionally . . . and to prevent judicial review of its unconstitutional actions. This is a direct attack on American constitutionalism, on the institution of judicial review, and the rule of law. [N]o matter what you think about abortion or Roe v. Wade, we should all be united in condemning this attack on the rule of law.”
Dean Jeffries ended by condemning the Supreme Court’s 5-4 order denying relief, in which the Court said that the stay application presented complex and novel procedural questions. Noting that complex and novel procedural questions are exactly what the Supreme Court is designed to address, Dean Jeffries commented that “their willingness to allow this statute to go into effect gives rise to a suspicion I hope is ill-founded, a suspicion that the majority is so eager to get rid of the abortion rights that they're willing to throw the rule of law over the side to do it.” Dean Jeffries ended by noting that this will not be the last time this issue arises, and that “when it does, let us hope wiser heads and stronger spines prevail.”
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