Nikolai Morse
Managing Editor
Pictured: Professor Julia Mahoney, Scott Keller, and Professor Douglas Laycock discussing the Supreme Court term.
This past Tuesday, a panel of legal experts discussed several high-profile decisions from the Supreme Court’s October 2021 Term. Professor Julia Mahoney, Scott Keller,[1] and Professor Douglas Laycock reviewed cases concerning abortion, the Second Amendment, administrative agency challenges, and religious liberty.
Professor Julia Mahoney began with a review of Dobbs v. Jackson Women’s Health Organization. Professor Mahoney acknowledged the case’s import, which upheld Mississippi’s ban on abortion after fifteen weeks and explicitly overturned Roe v. Wade and Planned Parenthood v. Casey. Professor Mahoney noted the complexity of the Supreme Court’s decision, which contained five opinions, each important.
Beginning with the majority, the Court argued that Roe ignored the text, history, and tradition of the Constitution, which Professor Mahoney characterized as a “shoutout to originalist methodologies.”[2]Reviewing the majority’s analysis of the five stare decisis factors undergirding its decision,[3] Professor Mahoney noted that the first two were decided on originalist grounds and the remaining three on prudential. Professor Mahoney made two overarching points about the majority opinion. First, as it now stands, laws regulating abortion, like laws regulating other aspects of health, will be given a strong presumption of validity. While querying how strong this presumption truly is, Professor Mahoney said it did not appear to be a rational basis review. Second, Professor Mahoney noted that while the majority took pains to make clear that its opinion was limited to abortion and did not impact any other substantive rights based on due process, it seemed unlikely this decision could be “hermetically sealed.”
In contrast, Justice Thomas’s concurrence explicitly called into question any rights premised on substantive due process and called for revisiting related precedent.[4] Professor Mahoney noted that Justice Kavanaugh’s concurrence appeared to reference Justice Rehnquist in noting that the “Constitution is neither pro-life nor pro-choice.”[5] Professor Mahoney said Chief Justice Roberts’s opinion, which concurred in the judgment, was primarily a statement of judicial minimalism, arguing that the Court could uphold both Roe and Mississippi’s abortion ban. Professor Mahoney noted that while Justices Breyer, Sotomayor, and Kagan’s dissent took aim at the majority’s “cavalier” approach to overruling precedent, they did not engage in an equal protection analysis, despite this being a strong argument in favor of Roe.
Turning next to New York State Rifle & Pistol Ass’n v. Bruen, which challenged New York’s concealed carry licensure law, Professor Mahoney suggested that New York lost not only on an objective basis[6] but also due to the perception that the rich and powerful were able to obtain permits, while ordinary citizens struggled to do so. In a majority opinion written by Justice Thomas, the Court held that “consistent with this nation’s historic tradition of firearm ownership,” the Second and Fourteenth Amendments protect citizens’ rights to carry firearms outside the home for self-defense. Professor Mahoney noted, however, that the opinion did not give significant guidance to lower courts in what level of scrutiny they should apply to firearm regulations going forward.
Speaking next, Scott Keller framed his discussion by noting that recent years have seen an increasing number of challenges to administrative laws. Mr. Keller argued that this has been driven by Congress passing fewer laws and administrative agencies filling that gap with administrative actions that have “sweeping policy consequences.”[7] Lastly, Mr. Keller pointed to the Supreme Court’s acknowledgment of the “major questions doctrine” within this context as a significant development.
Mr. Keller first reviewed NFIB v. OSHA, which challenged OSHA’s mandate for businesses with 100 employees or more to either vaccinate or test their employees for COVID-19. Mr. Keller noted that this mandate was made under an emergency temporary standard granted to OSHA by Congress, which had been used less than ten times in the last fifty years, and typically on a narrow topic, such as the presence of a chemical in particular workplaces. Mr. Keller noted that because this was done under an emergency temporary standard, it would take immediate effect for 84 million Americans overnight, without the notice and comment process that is typical for agency rulemaking. “I think it’s safe to say that there really wasn’t a disagreement over, ‘Is this a major question?’”[8] Mr. Keller said. The Court issued a per curiam majority opinion, which held that OSHA did not have the power to enter this emergency temporary standard. The Court said that this power was historically more limited in scope and that since this was a question of vast economic and political significance, the question was whether Congress had been clear in delegating this power, which the majority held it was not.
Mr. Keller then transitioned to West Virginia v. EPA, in which the Court held that the EPA does not have the power to order energy generation shifting (as opposed to ordering particular sites to process chemicals more cleanly). “The Court said…this doctrine isn’t just about hyper-textualism and looking at specific terms,” Mr. Keller said. Rather, the Court said that when there are equally plausible textual interpretations and a major question, then Congress must be clear. Mr. Keller noted that while the opinion “did not mention or overrule Chevron deference directly, that is the opposite of how Chevron deference works.” Importantly, Mr. Keller said, while this case is one in a series of cases over forty years not following Chevrondeference, this was the first case in which the Supreme Court explicitly invoked the major questions doctrine—though, Mr. Keller noted, whether there is in fact a major question is a crucial issue which will be a focus of future litigation.
Finally, Professor Douglas Laycock discussed two religious liberty cases, the first of which he argued was a victory for “religious liberty for everyone” and the second of which “was a terrible gash.” Professor Laycock began with Carson v. Makin, which held that Maine’s “non-sectarian” requirement for otherwise-available tuition assistance to families living in districts without their own secondary school[9] violated the First Amendment’s Free Exercise Clause. Professor Laycock argued that this decision was correct and consistent with concerns at the Founding regarding government funding of religious institutions, which was focused on funds being used to build churches or pay ministers, rather than non-secular education, which was commonplace. The next important question, Professor Laycock said, will be whether the state can place any conditions on funding to non-secular schools.
Wrapping up the panel’s review, Professor Laycock reviewed Kennedy v. Bremerton School District, which held that “the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.” In this case, the Court held that a football coach, who had a tradition of kneeling and praying at the fifty-yard line and was later terminated, was protected by the First Amendment. “If you want to know what happened in this case, do not read the majority opinion; it is a pack of lies. Look at the photos in Sotomayor’s dissent.” Professor Laycock pointed out that the majority opinion appears to ignore the dynamics between a football coach and his players, many of whom began joining him at the fifty-yard line for post-game prayers. Professor Laycock argued that this was “a disaster” and inconsistent with the historical rule prohibiting school-sponsored religious speech or observances. Professor Laycock closed by positing that if a coach can pray at the fifty-yard line immediately following a football game, it seemed plausible that a fourth-grade teacher could pray in their classroom.
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cpg9jy@virginia.edu
[1] Mr. Keller is a founding partner of Lehotsky Keller and the former Solicitor General of the State of Texas.
[2] Though Professor Mahoney noted that other prominent originalists, such as Professor Lawrence Solum, argued the Court’s analysis was not originalist because it failed to pinpoint the original public meaning of due process, the Privileges and Immunities Clause, and the Equal Protection Clause.
[3] Professor Mahoney listed these five factors considered by the Court: 1) the nature of the precedent’s error, 2) the quality of precedential reasoning, 3) the workability of the rules, 4) the disruptive effect on other areas of the law, and 5) the presence or absence of concrete reliance.
[4] Professor Mahoney said this was unsurprising, given Justice Thomas’s well-known belief that unenumerated rights would be better located in the Privileges and Immunities Clause.
[5] Though, Professor Mahoney noted, the concurrence did not go as far as Rehnquist in saying that there could be abortion laws so restrictive that they would be unconstitutional (e.g., “no rational relation”).
[6] Professor Mahoney noted that New York’s law based approval on having a seemingly subjective “special need or condition,” while forty-three other states’ concealed carry laws were based on objective factors.
[7] Mr. Keller pointed out that many litigants to administrative actions are from the states, which, along with “the rise of States’Solicitors General,” has made them effective litigants against the federal government.
[8] Mr. Keller noted that the major questions doctrine, while only explicitly invoked by the Supreme Court in West Virginia v. EPA, has been a doctrine whereby the Supreme Court over the last thirty years has said that when an agency takes an action that is of “vast political and economic significance,” Congress must be clear in its statutory delegation of that power to the agency.
[9] Maine provides a robust tuition assistance program because approximately half of Maine’s school districts do not have a public high school, according to Professor Laycock.