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Supreme Court Review: October Term 2021

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Supreme Court Review: October Term 2021

The Supreme Court’s October Term 2021 was among the most momentous in history. Dean Erwin Chemerinsky will review the leading cases in the areas of abortion, administrative law, civil rights, federal jurisdiction, the First Amendment, and the Second Amendment, and discuss their implications for constitutional law and society.

Transcript

 My name is Erwin Chemerinsky. I'm Dean and Professor of Law at the University of California, Berkeley School of Law. The last term of the Supreme Court was momentous. I don't think it's hyperbole to say the most momentous term in my lifetime. Historically, I think the only term that's analogous was 1937, when the Supreme Court overruled 40 years of precedence, that limited the ability of Congress and states to enact progressive legislation safeguarding workers and consumers. In September, 2020, Justice Ruth Bader Ginsburg died. In October 2020, Justice Amy Coney Barrett was confirmed to replace her. At that time, I made two predictions about the new Supreme Court. First, we would see a lot more six-three decisions. Simple arithmetic explains why. There were six conservative justices, all appointed by Republican presidents and three liberal justices, appointed by democratic presidents. This is a new development. Until recently, there were liberal justices appointed by Republican presidents. Think of John Paul Stevens or David Souter. There were conservative justices appointed by democratic presidents. Think of Byron White or before that Felix Frankfurter. My other prediction is we would see many fewer five-four decisions with the liberal justices in the majority. Again, simple arithmetic explains why. When Justice Ginsburg was on the court, there were four liberal justices. They only needed to get one additional vote to be a majority. Now, the three liberal justices need two in a court with so many staunch conservatives. This past term, October term, 2021, so both of those prophecies came true. The Supreme Court decided 60 cases with signed opinions after briefing and oral argument. 19 of them were six-three decisions, almost a third. There were another nine five-four decisions. There were very few five-four decisions where the liberals were in the majority, especially with regard is the major cases. It's worth taking a moment to talk about how did we get here? Between 1960 and 2020, there were 32 years with a Republican president and 28 years with a Democratic president, almost even, but between 1960 and 2020, Republican presidents picked 15 Supreme Court justices, whereas Democratic presidents picked only eight Supreme Court justices, or to put this another way, President Donald Trump picked three justices in his four years in the White House, but the last three Democratic presidents, Jimmy Carter, Bill Clinton, and Barack Obama, served a combined 20 years in the White House, and in those 20 years, they picked only four justices. What I'd like to do in this hour is review the major cases from this momentous term and talk about what they're likely to mean. I've listed the topics in alphabetical order and prepared a handout that lists the cases in the order in which I'll discuss them. The place to begin both alphabetically and in terms of social importance, is with regard to abortion, and the case is Dobbs v. Jackson Women's Health. It involves a Mississippi law that prohibited abortion to the 15th week of pregnancy. In Roe v. Wade in 1973, the Supreme Court ruled that states cannot prohibit abortions prior to viability. In Planned Parenthood v Casey in 1992, the court said it was reaffirming the essential holding of Roe, that states can't permit abortions prior to viability. What's interesting with regard to the political shift is that Roe was a seven to two decision. The majority opinion was written by Justice, Harry Blackmun, who had been put on the Supreme Court by President Richard Nixon. Planned Parenthood v. Casey was five to four, but all five justices in the majority, who reaffirmed Roe, had been appointed by Republican presidents, Harry Blackmun by President Richard Nixon, John Paul Stevens by President Gerald Ford, Sandra Day O'Connor and Anthony Kennedy by President Ronald Reagan, David Souter by President George H.W. Bush. In Dobbs v. Jackson Women's Health, the Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey. Justice Samuel Alito wrote the majority opinion, joined by Justice Thomas, Gorsuch, Kavanaugh and Barrett. Chief Justice Roberts concurred in the judgment and there was a vehement, unusual joint dissent of Justices Breyer, Sotomayor, and Kagan. Justice Alito's majority opinion said and I quote that, "Roe v. Wade was egregiously wrong and exceedingly poorly reasoned." Justice Alito said, "that a constitutional right should be protected only if it's stated in the text, was part of the original meaning, or there's a clear, unbroken tradition of protection." Justice Alito said, "that abortion does not fit into any of those categories. It's not in the text of the Constitution, wasn't part of the original meaning and is not a long unbroken tradition." He said, "Therefore, Roe v. Wade should be overruled. Stare decisis should not be followed here." He said, "that the issue of abortion is left to the political process. Only a rational basis test is to be used in evaluating government regulations of abortion." Chief Justice Roberts concurred in the judgment he would've upheld the Mississippi law prohibiting abortions after the 15th week of pregnancy, but not reached the question of whether to overrule Roe v. Wade. The dissenting justices said that Roe was properly reasoned. It was correctly decided. They said the Supreme Court, for a century, has safeguarded aspects of privacy and autonomy under the liberty of the due process clause. "Laws that prohibit abortion," Roe said, "infringe that privacy and autonomy." The dissenting justice said there's no basis for abandoning stare decisis. What's the case likely to mean? Well, first it means that the issue of abortion is left to the political process. At least for now, it means that each state gets to decide for itself. It's estimated over half the states will prohibit all, or virtually all, abortions, but about half the states will continue to allow abortions before viability, places like California, Illinois, New York, New Jersey, Connecticut. In practical terms, it means that women in states where abortion is illegal will travel to states where abortion is allowed so long as they have the resources to do so. The real effect then will be found on disadvantaged women, teenagers who don't have the resources to travel. Also, there are bills in some state legislatures now, like Missouri, that will make it a crime for a woman to cross state lines to get an abortion, and those laws will need to be challenged. I intentionally said for now it's left to the political process in the states. The reason I said that is that there's a possibility that Congress could adopt a national law with regard to abortion. With the Democratic president and a Democratic Congress, it's possible that Congress could use its Congress clause power to recognize a national right to abortion and protect it all over the country; however, it appears that Republicans in the Senate would filibuster such a bill. The Democrats don't have the votes to change the rules with regard to the filibuster. On the other hand, when there's a Republican president and a Republican Congress, they may try to adopt a national law prohibiting abortion for the entire country. 20 years ago, Republican President, Republican Congress adopted The Federal Partial Birth Abortion Ban Act where Congress used its commerce clause power to prohibit a particular abortion procedure. Maybe Republicans were willing to change the rules with regard to filibusters. There's also what this is gonna mean with regard to reproductive healthcare. I expect that states will adopt laws, try to prohibit methods of contraception that can act after conception like the morning after pill, maybe the IUD. I expect some states will try to regulate in vitro fertilization, maybe requiring that all embryos be implanted, which would make the process impossible, and then there's the question of what is this gonna mean for other rights that are protected under the liberty of the Due Process Clause? Here there was an interesting exchange among the conservative justices. Justice Thomas wrote an opinion where he said, "And now the Supreme Court needs to overrule Griswold v. Connecticut," that protect the right to purchase and use contraceptives, "Lawrence v. Texas", that safeguarded a right of consenting adults to engage in same sex sexual activity, "or Obergefell v. Hodges", that protected a right to marriage equality for gays and lesbians. Justice Kavanaugh wrote a concurring opinion saying, "None of those rights are in jeopardy." Justice Alito and the majority opinions said, "Those rights aren't in jeopardy because, unlike abortion, they don't involve potential life." And maybe it will be that this is just about abortion. On the other hand, the criteria that Justice Alito articulated for protecting a right, is it in the text? Was it part of the original meaning, is there a long unbroken tradition, would not justify protecting a right to purchase and use contraceptives, a right to engage in same sex sexual activity, or a right to same sex marriage. It can't be forgotten that Justice Alito, say nothing about Chief Justice Roberts and Justice Thomas vehemently dissented back in Obergefell v. Hodges, so it'll be interesting to see how this plays out in future litigation as well. The second area that I wanna talk about from the term concerns administrative law, and many have predicted that the more conservative Roberts court will have imposed greater restrictions on administrative agencies. We saw in a couple of cases, this term where the court implicitly or explicitly used, what's called the major questions doctrine. The major questions doctrine principle, that when it comes to major questions of economic and social significance, Congress must give clearer direction to administrative agencies. If it's a major question and Congress has not given clear direction, then the agency action is invalid. My guess is that even a few years ago, most constitutional law, administrative law professors had never heard of the major questions doctrine, but now it's taken on great significance. The first two cases involved vaccine mandates and it's important to note that neither raised a constitutional issue. There have been constitutional challenges to the vaccine mandates in lower federal courts and state courts, overwhelmingly they've been upheld. There have been vaccine mandates for public employees, for students in public schools, including public universities and courts have upheld them almost without exception. The only issue that split the lower courts on the constitutionality of vaccine mandates is whether there has to be a religious exemption. But the two cases decided by the Supreme Court in January involved statutory questions is the agency authority. The first of these is National Federation of Independent Business v. Department of Labor, Occupational Health and Safety Administration. What's involved here is the Occupational Safety and Health Administration adopted an emergency, temporary standard requiring that workplaces, with more than a hundred employees have their workers, either vaccinated or subjected to weekly testing. It's expected that this would've affected about 84 million workers in the United States. The United States Court Appeals for the Sixth Circuit in a two-one decision upheld this vaccine mandate is within the scope of the Occupational Safety and Health Administration. The United States Supreme Court in a six-three decision reversed. There was a per curiam opinion of Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. They said that this is a regulation that's unprecedented in its scope. It's 84 million workers. The per curiam stressed that the Occupational Safety and Health Administration here was regulating, not just for hazards within the workplace, but for something, COVID, that causes danger in and out of the workplace. The majority opinion stressed there wasn't any clear direction from Congress as to authority in this area. The majority opinion didn't mention the major questions doctrine, but justice Gorsuch wrote a concurring opinion in which he explicitly mentioned the major questions doctrine. He said, "For reasons of separation of powers, it has to be that Congress gives clear direction on nature questions. It hasn't done so here. That's why this is invalid. Justices Breyer, Sotomayor, and Kagan dissented. They said, "This COVID poses an unprecedented threat. It's the greatest public health crisis in over a century." They said that, "COVID gets spread in the workplace." They said, "there's no reason why the Occupational Safety and Health Administration is limited to just threats unique to the workplace." Quite the contrary they said, "OSHA often regulates dangers that are both in and out of the workplace, fire, floods, ladders," The same day the court decided another case, Biden v. Missouri, and it came down differently. This involved a rule of the Department of Health and Human Services that all facilities receiving Medicare and Medicaid funds had to require that their employees be vaccinated or tested on a regular basis. It's estimated this would apply to about 10 million healthcare workers. The Supreme Court, five to four upheld this. The per curiam opinion of the five of the majority were Roberts, Breyer, Sotomayor, Kagan and Kavanaugh. The dissent of course then was Thomas, Alito, Gorsuch, and Barrett. Here the per curiam opinion stressed the unprecedented threat that COVID poses. At that point, 850,000 people in the United States had died from COVID. The court talked about how COVID is spread in the workplace. The court found that there was statutory authority. It was hard for me to believe in reading these cases that they came down from the same court on the same day. The former case stresses the unprecedented nature of the regulation and doesn't talk about the threat of COVID. The latter case talks about the unprecedented threat of COVID and finds it within statutory authority. I actually think the statutory authority for the Occupational Safety and Health Administration here is clearer than that for the Department of Health and Human Services. The difference is, of course, whatever Roberts and Kavanaugh saw. They were the only justices in the majority in both cases. What explains the difference? Maybe it's that the former case involved 84 million workers and the latter case was just 10 million workers. Maybe there was something different in the court's eyes in the statute of authority, or maybe, as one of my students said, that the justices can imagine they're going and getting healthcare, but they can't imagine working in a poultry factory. The other case that's very explicitly about the major questions doctrine is West Virginia v. Environmental Protection Agency. The Obama administration adopted the Clean Power Plan to restrict greenhouse gas emissions from coal fired power plants. Coal fired power plants are a major source of carbon dioxide that's responsible for climate change. The Trump administration rescinded the Clean Power Plan and adopted its own Affordable Clean Energy Plan. This plan was much more permissive with regard to allowing greenhouse gas emissions from coal fired power plants. Challengers went to court and argued that the Trump administration violated the Administrative Procedures Act. The DC Circuit agreed with the challengers. The DC Circuit said the Trump administration didn't follow Administrative Procedures Act requirements in rescinding the Obama plan and adopting their own. West Virginia and some coal companies sought Supreme Court review. They won in a six to three decision. Here, Chief Justice Roberts writes the opinion for the court. Justice Kagan wrote the dissent. Chief Justice Roberts said that when it comes to major questions, there's to be clear direction from Congress in terms of the agency's authority. It says major questions that are about key issues of economic and social significance. He said the authority of the EPA to regulate greenhouse gas emissions from power plants is a major question. He said, "The statutory authority wasn't sufficiently specific in empowering the EPA to deal with this; therefore, the EPA lacked the authority to regulate greenhouse gas emissions from power plants." Justice Kagan wrote a strong dissent. She began by talking about the way in which climate change is threatening the preexistence of life on the planet. She criticized the major questions doctrine saying, "Where did it come from? What's its basis?" She said, "The text of the statute is sufficiently clear in giving the EPA the authority to regulate power plants." I think this case is important on many levels. It's significant in restricting the ability of the EPA to deal with the crisis of global warming. Also, it does make clear that the major questions doctrine is a basis for challenging agency action. I think this is gonna open the door to hundreds, now thousands of challenges, What's a major question? What's sufficiently specific in a statute to meet the major questions doctrine requirement? The court doesn't answer these. And so I think that you're gonna see challenges, especially by business to a whole host of government regulations for the environment, for health and safety, of business practices. With the challenger saying, "It's a major question and Congress wasn't sufficiently specific." I think we're gonna hear a great deal more about the major questions doctrine and the cases in the years to come. The third area that I wanna talk about concerns Civil Rights litigation and there are a number of important cases here. The first two concern qualified immunity. Whenever a government official, federal, state, or local is sued for money damages, there's always an immunity defense. Some government officials have absolute immunity. They can't be sued at all for money damages, for tasks that are protected by this, judges for the judicial tests, legislators for the legislative tests, prosecutors for the prosecutorial tests, law enforcement officers testifying as witnesses, the president for acts taken in carrying out the presidency, all have absolute immunity and can't be sued for money damages at all. All government officers who do not have absolute immunity possess qualified immunity. The Supreme Court has said that qualified immunity means that a government official is liable only if he or she violates clearly established law that every reasonable officer should know, the court has said. To overcome qualified immunity, it must be right, it's established beyond debate. The court has said that qualified immunity exists to protect all but the plainly incompetent officer. In recent years, there's been great criticism of qualified immunity, both from the right and the left. Many predicted that the court might modify the doctrine of qualified immunity to make it less, practically speaking, like absolute immunity. There are two cases in October which made clear the court has not modified qualified immunity. It remains very significant protection for government officials who are sued for money damages. Both cases arose in the context of domestic violence. In both, there was a suit against a police officer for excessive force in both the lower court that allowed the case to go forward, but in each the Supreme Court unanimous reversed based on qualified immunity. Rivas-Villegas v. Cortesluna involved a situation where a woman called the police, said she was threatened by her boyfriend. The police came, ordered him to come out with his hands up. When he lowered his hands, they fired a beanbag round at him. The officer then pushed him to the ground. The officer was so rough as to cause permanent injury. The man sued the officer for excessive force. The Ninth Circuit said that the issue of whether it's excessive force and qualified immunity should go back to the district court for a trial, But the Supreme Court unanimously reversed was a per curiam opinion. The court said there's no case on point from the Ninth Circuit or the Supreme Court, with sufficiently identical facts, therefore qualified immunity in the case had to be dismissed. City of Tahlequah, Oklahoma v. Bond had even more tragic facts. Here, a woman called the police, said she was threatened by her ex-husband. The police came there and found the ex-husband in a tool shed, garage like area. The ex-husband picked up a hammer off the shelf. The police told him to put it down. When he didn't, the officer shot and killed him. The man's estate sued the police officer for excessive force. The United States Court of Appeals for the 10th Circuit ruled in favor of the plaintiff. The 10th Circuit said this was excessive force. The man was sufficiently far from the police that the hammer didn't pose a danger to them, and the 10th Circuit said no qualified immunity. The Supreme Court unanimously reversed again in a per curiam opinion. The court said, "There's no case sufficiently on point with sufficiently identical facts from the 10th Circuit or the Supreme Court, therefore qualified immunity." These cases make it clear that to overcome qualified immunity, plaintiffs cases with almost identical fact. There's always some factual difference, which make it hard to overcome qualified immunity. The third case that I've listed is Egbert v. Boule. What's involved here is the ability to sue federal government officials for their constitutional violations. If a state or local government officer violates the Constitution, he or she can be sued under 42 United States Code Section 1983, but there is no federal statute that authorized suits against federal officers when they violate the Constitution. In 1971, in Bivens v. Six Unknown Named Agents, the Federal Bureau of Narcotics, the Supreme Court said it would infer a cause of action for money damages directly under the constitutional provision. That case involved Webster Bivens, who had been subjected to a degrading unconstitutional search by agents of the Federal Bureau of Narcotics. He sued them for money damages and the Supreme Court ruled that such a cause of action existed, not withstanding the absence of a statute. Justice Brennan wrote for the court. He emphasized that it's the role of the judiciary tried remedies when rights are violated. Justice Harlan, in a famous concurring opinion said, "For people in Bivin's shoes, its damages or nothing." In the years following Bivins, the Supreme Court expanded the availability of such suits. In Davis v. Passman In 1979, the Supreme Court said that federal officers can be sued for money damages if they discriminate, violation of equal protection, safeguarded by the due process clause from the Fifth Amendment. In Carlson v. Green in 1980, the Supreme Court said that a cause of the action exists for money damages directly under the Eighth Amendment for cruel and unusual punishment, but since 1980, without exception, the Supreme Court on every occasion has narrowed the availability of Bivins suit. The court hasn't overruled Bivins, but has repeatedly said that Bivins actions are strongly disfavored and the court has limited their availability. Egbert v. Boule follows this pattern. Robert Boule owned an inn near the Washington state Canadian border. Maybe it was a mistake for him to call it, "The Smugglers Inn". A border patrol agent, Erik Egbert followed a passenger from the Blaine, Washington airport to the Smugglers Inn. Once there, Boule told Egbert to leave the guest alone. According to Boule, Egbert then became violent, throwing Boule to the ground. He then questioned the guest. The guest was allowed to go. There was no arrest made at that time. Boule filed a complaint against Egbert with the border patrol saying that Egbert had used excessive force and had acted inappropriately. Egbert then retaliated against Boule. Egbert filed a complaint with the Washington state licensing board against Boule. Egbert told the IRS that Boule was cheating with regard to taxes. Boule was investigated. It took a deal of his time and money, but no wrongdoing was found. Boule then sued Egbert in a Bivins cause of action. He brought two claims. One was under the fourth amendment saying that Egbert used excessive force. The other was under the First Amendment for retaliation, saying that what did was retaliation for Boule for his speech for complaining to the border patrol. The Ninth Circuit said the Bivins claims could go forward. The United States Supreme Court reversed. Again, it was a six to three decision. Here, the majority opinions side was written by Justice Thomas, that Bivins cause of actions are disfavored. The court said if it's an extension to a new area, then the question has to be, is there any reason why Congress would be better to deal with this rather than the courts? Unless there's some reason why Congress can't deal with this, no Bivins cause it action should be allowed. The court said, to the Fourth Amendment claim, no Bivins actions against the border patrol are allowed. And as to the latter claim, the court said that there's no precedent from the Supreme Court to extend Bivins to the first amendment context, unless it would not do so. I think this case fits an important pattern in the court denying Bivins causes of action. But I think it's also significant that the one area where Bivins seem secure was the guard to the fourth amendment. And the Supreme Court says at least in the context of border patrol agents, no Bivins claims are allowed for Fourth Amendment violations. The final case that I listed with regard to civil rights litigation is Vega v. Tekoh, And I should disclose here that I was co-counsel for Tekoh in the Supreme Court and the losing side. In 1966, in Miranda v. Arizona, the Supreme Court said it's inherently coercive when police question a person who's in custody. To lessen that coercion, the Supreme Court said police, before questioning a person in custody, must always give certain warnings, and the warnings are familiar to everyone. The police have to tell the person, "You have the right to remain silent. Anything you say can be used against you. You have the right to an attorney. If you can't afford one, one will be provided." Terence Tekoh was a nursing assistant at a hospital in Southern California. A woman on awakening from emergency heart surgery said that she felt that Tekoh had touched her inappropriately in a sexual way. The hospital called the Los Angeles County Sheriff's Office. The Sheriff's office sent Carlos Vega to come question. Vega took Tekoh into a small room for questioning. There seems little doubt that Tekoh was in custody at this time. The Supreme Court has said a person's in custody If a reasonable person wouldn't feel free to leave under the circumstances. No way anyone would feel free to leave under those circumstances, Vega engaged in aggressive, threatening questioning. He threatened Tekoh with deportation. Finally, after a good deal of time, Tekoh said he would give a written apology to the woman. Tekoh was then prosecuted in California state court. The apology was used against him. Tekoh was acquitted. Tekoh then filed a suit against Vega for violating his Fifth Amendment rights. Though it was in custodial interrogation and miranda warnings required, none were administered, and so Tekoh sues Vega under 42 United States Code Section 1983 for violating the Fifth Amendment. The United States Court of Appeals for the Ninth Circuit said that Tekoh had a cause of action and it could go forward. The United States Supreme Court, in a six to three decision, reversed and ruled that there was no cause of action here under Section 1983, the court rules against Tekoh and in favor of Vega. Justice Samuel Alito writes the opinion for the court. Justice Elena Kagan for the three dissenters. Justice Alito says a suit is available to section 1983 only if there's the violation of a constitutional right. The issue is does miranda create a constitutional right? Earlier in Chavez versus Martinez, the Supreme Court said there can't be a civil suit in a 1983 for a violation of miranda unless the statements obtained are actually admitted as evidence at trial. What makes this case different is that the statements that Tekoh made to Vega were admitted at trial and then Tekoh was acquitted. The Supreme Court and Justice Alito's opinion said, Nonetheless, no cause of action exists under Section 1983 for violations of miranda. Justice Alito said miranda doesn't create a constitutional right. He said, "It's just a prophylactic device that's meant to prevent the police from violating the Fifth Amendment to lessen coercion." He said, "Whereas 1983 is available if it were his constitutional right, none exists here." Justice Kagan, strongly dissents. She said in United States v. Dickerson in 2000, the court recognized that miranda creates a constitutional right. The reason state courts have to follow it is it's a constitutional right. The reason it can be raised on habeas corpus, it's a constitutional right, and the dissent expressed concern that this is a major step to undermining the requirements of Miranda v. Arizona. Bottom line, there cannot be a suit under section 1983 for violations of miranda. The court characterized the miranda as not creating a constitutional right. The fourth area that I wanna talk about concerns federal jurisdiction. The case is Whole Women's Health v. Jackson. It arose in the abortion context, but the decision is not about abortion rights. The decision is about federal jurisdiction. The case involves the Texas law, SB eight. It prohibits abortion after the sixth week of pregnancy, When it was adopted in the summer of 2021, it was clearly unconstitutional. Roe v. Wade, Planned Parenthood v. Casey were the law, and they said that states could not prevent abortion until viability, about the 23rd or 24th week of pregnancy. What makes the Texas law unusual is it's not enforced by government officials. It's not enforced by the Attorney General or by District Attorneys, rather it's enforced by civil suits. A doctor. or anyone who aids or abets an abortion, could be sued for $10,000. Whole Women's Health, a reproductive healthcare facility in Texas, brought a challenge to this. They said that the law was unconstitutional and they sought an injunction. The district court granted them the injunction. The Fifth Circuit lifted the preliminary injunction and Whole Women's Health went to the Supreme Court for a preliminary injunction before the law was to go in effect at midnight on September 1st. On the evening of September 1st, the Supreme Court five to four denied a preliminary injunction. The five in the majority were Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. The four dissenters were Roberts, Breyer, Sotomayor, and Kagan. All five in the majority said, in very short order was that the case raised unusual procedural issues and therefore was not appropriate to issue a preliminary injunction. The court then scheduled oral argument for November and decided in December. In a five to four ruling, the Supreme Court said that a court can issue an injunction against government officials only if the government officials play a role in enforcing the law. So here are the court said you can't sue the judges, the court clerks, the Attorney General, because they don't play a role in enforcing the law. In terms of the judges, they have absolute immunity. The court clerks are not an adverse party, and the court said the only time state officers can be sued for injunctive relief is when the state officers play a role in enforcing the law. Now, the court said eight to one that it thought that the state licensing officials played a role in enforcing this law, and it remanded the case back to determine that. The Fifth Circuit on remand certified the question of the Texas Supreme Court is whether Texas state licensing officials play any role in enforcing the law, but the unequivocal holding is there can be a suit against state officers for injunctive relief. Only if those state officers play a role in enforcing the law, so if the law just creates civil liability, then there can't be a suit against state officers to enjoin it. The implications of this are enormous. If the oral argument in November of 2021, Justice Kavanaugh asked the Solicitor General of Texas, Judd Stone, could a state create a law that prohibits performing a same sex wedding and create liability a hundred thousand dollars or a million dollars. There's a right to same sex marriage and Solicitor General Stone's answer was yes, a state could do that. In fact, a state could create liability for anyone for exercising a constitutional right. Now, to be sure, there are other avenues for challenge and Justice Gorsuch pointed this out. If somebody is sued under an unconstitutional law, they can argue, as a defense, that the law is unconstitutional and this just limits the ability to sue in federal court. It doesn't limit the suits in state court, but still it is a great restriction on injunctive relief. Chief Justice Roberts wrote a crucial dissent here. Of course the other dissenters were Breyer, Sotomayor, and Kagan. Roberts talked about the importance of federal courts being able to enjoin unconstitutional laws, how crucial it is that federal courts be able to uphold the Constitution in the United States. This restriction on federal jurisdiction is important. In fact, in mid-July that California legislature passed, and California Governor Gavin Newsome signed a law that creates liability for those who sell and distribute guns under some circumstances. It's modeled after the Texas law. It's not enforced by the state, but it's enforced by civil suits. For example, it says that anybody who sells or distributes a gun, if it purchaser, the recipient, is under 21 for a handgun and under 18 for a long gun, can be sued for $10,000. Again, they're not gonna be able to go to federal court for an injunction to challenge that law, and it would either have to be somebody who's sued for violating, argues the defense it's unconstitutional or a matter brought in state court for injunction. So Whole Women's Health v. Jackson is a major limit on the ability of federal courts to issue injunctive relief. Federal court conditional injunction, only against state officers who play a role in enforcing the law. The fifth area that I wanna talk about concerns the First Amendment and freedom of speech. This was not a major term with regard to freedom of speech in the Supreme Court, but there were a couple of cases that clarified important issues with regard to free speech doctrine. The first of these is City of Austin, Texas v Reagan National Advertising. It's involved here is a crucial distinction in First Amendment law between content based and content neutral laws. The Supreme Court has said that content based laws generally must meet strict scrutiny, whereas content neutral laws only have to meet intermediate scrutiny, but how is that distinction to be drawn? That's what City of Austin v. Reagan National Advertising is about. Austin, Texas adopted an ordinance that limited digital signage on buildings. It said there could be a digital sign on the building generally, only if it was advertising what was going on within the premise of the building. There couldn't be a digital sign to advertise anything else. If I were in Austin, then the building where I'm located could have a digital sign for Berkeley Law, but we couldn't rent the space to McDonald's or Chick-fil-A, or any other business, because it's not on the premises. Regan National Advertising brought a challenge to this. The district court upheld it, but the United States Court of Appeals for the Fifth Circuit struck the law down. The Fifth Circuit said this is a content based restriction on speech. In order to tell if the law applies, you have to read the ad. If the ad is about what's going on in the premises, then it's allowed. If it's not about what's going on in the premises, it's prohibited. That's content based. The United States Supreme Court, in a six to three decision, reversed the Fifth Circuit. Justice Sotomayor wrote the opinion for the court. Here Justice Thomas dissented, joined by Justice Alito and Gorsuch. Justice Sotomayor said that a law is content based in only one of two circumstances. First it's content based if it's a subject matter restriction on speech. A law is a subject matter restriction if the application of the law depends on the topic of the speech. An example, for 40 years ago, Chicago had an ordinance that said no picketing in residential neighborhoods, unless it was a labor protest related to a place of employment. The speech was allowed if its topic was a labor protest. The speech was not allowed on any other topic. The court said that's a content based restriction, a subject matter restriction. The court used strict scrutiny and declared it unconstitutional. Justice Sotomayor said the other way in which a law can be found to be content based is if it's a viewpoint restriction. It's a viewpoint restriction if the application of the law depends on the ideology of the message. If a city were to say, "Demonstrations against abortion rights are allowed, but demonstrations in favor of abortion rights are not allowed," that would be a viewpoint restriction and viewpoint restrictions are never permitted. Justice Sotomayor says the fact that you have to read the message to know if the rule applies isn't enough to make it content based, said it's content based only if it's a subject matter restriction or a viewpoint restriction, and she said that the Austin ordinance was neither of these. Justice Thomas, in his dissent, said that the majority is too narrow in what it says is content based. If the content of the sign was about what's going on on the premises was allowed, if the content sign is something else that wasn't, and he said that's enough for content based. Bottom line, I think this does offer clarity in terms of when a law can be found to be content based and when it has to meet strict scrutiny. Now, the fact that the law is content neutral doesn't mean automatically that it's upheld. The court remanded the case to the Fifth Circuit for the application of intermediate scrutiny. The other speech case here is Shurtleff v. city of Boston. There's three flag poles at Boston City Hall. On one of them, the city is willing to raise the flags of private groups. Prior to this incident, there'd been 284 requests by private groups to have their flags raised. 284 times the request have been granted. Harold Shurtleff and his group asked the city of Boston to raise a flag that was just a cross. The city said it couldn't do so. It was concerned about the Establishment Clause. Shurtleff sued. The Federal District Court and the United States Court of Appeals for the First Circuit ruled in favor of Boston. They said the flag poll is a place of government speech. The Supreme Court is held when the government itself is the speaker, the free speech clause of the First Amendment can't be used to challenge its expression. The Supreme Court unanimously reversed, Justice Breyer writing for the court. Justice Breyer said the key question presented is, should the flag poll be regarded as government speech, in which case, the free speech clause in the First Amendment wouldn't apply, or should it be regarded as the government creating a forum for private speech, in which case the First Amendment applies? He said here it was the government creating a forum for private speech. I think particularly crucial was 284 times out of 284 requests, the government had raised the private flag for request that it do so. He said in light of this, people would not perceive this as government speech and thus the First Amendment applied and the court found this to be unconstitutional, content based discrimination. The reason the case matters is there's such clear law now. If the government is the speaker, it then can't be challenged with violating the free speech clause's First Amendment, but it can be challenged with violating the establishment clause of the First Amendment with regard to religion. On the other hand, if the government is creating a private forum for speech, then government regulation can be challenged as violating the free speech clause of the First Amendment, but the private speech can't violate the establishment clause of the First Amendment. The sixth area that I listed concerns the First Amendment and religion, and two blockbuster cases came down, month of June dealing with the First Amendment's religion clauses. Let me talk about them individually and then put together in terms of what they mean. The first of these is Carson versus Makin. There are parts of Maine that are too rural to support public school systems. In these areas, the state will give parents money to send their children to private school. Maine law requires that these be secular. private schools. The state says the money can't be used in "sectarian schools". It's estimated about 5,000 children are affected. Maine says that its interest is providing a free, secular education to all children in the state. Maine says, following the words of Thomas Jefferson and James Madison, it doesn't wanna attack some people to support the religion of others. Two families that wanna send their children to religious school and use this government money brought a challenge. The Federal District Court ruled in favor of the state of Maine. The United States Court of Appeals to the First Circuit affirmed, but the Supreme Court reversed in yet another six to three decision. Chief Justice Roberts wrote the opinion for the court. Here Justice Breyer wrote a dissent joined by Justice Sotomayor and Kagan and Justice Sotomayor wrote her own separate dissent as well. Chief Justice Roberts said that earlier recent Supreme Court cases made clear that the government can't discriminate against religious schools when it's giving money to secular private schools. He pointed to Trinity Lutheran v. Comer. This was a case in 2017 that involved the state of Missouri giving aid to schools for resurfacing playgrounds. The state would give the money to public schools and secular, private schools, but not religious schools. Missouri pointed provision its constitution that prohibited direct or indirect aid to religion. The Supreme Court, and it was a seven to two decision, ruled that Missouri violated free exercise of religion, Chief Justice Roberts wrote for the court. And he said, "It is odious for the government to give aid to secular private schools that denies the religious schools", says, "when the government does this, it's gonna have to meet strict scrutiny, so the government failed strict scrutiny here." But in footnote three, he said, "This is just a case about aid to playgrounds and no more." Justice Sotomayor wrote a strong dissent, joined by Justice Ginsburg. She said, "This is the first time in history that the court has ever required that the government give aid to religion." Justice Sotomayor said that the government has an important interest in subsidizing secular schools, but not giving money to religious schools. And she said, it's not likely it's gonna be limited to aid to playgrounds. Two years later in 2020, the court decided Espinoza v. Montana Department of Revenue. It involved a Montana law that allowed people to get a tax credit if you gave money to a private school tuition organization. The private school tuition organization could then use those funds for any private school, secular, religious. The Montana Supreme Court found that this violated the Montana Constitution and one thought maybe that puts an end to it, but the state Supreme Court found a state law violates the state constitution, but the Supreme Court in a five to four decision reversed. Chief Justice Roberts wrote for the court and the same for liberal justices of dissent, Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts said when the government subsidizes secular private schools, it is constitutionally required to subsidize religious schools. Well in Carson v. Makin this term, Chief Justice Roberts said this case is decided by Trinity Lutheran and Espinoza. The government is giving money for secular private education. It can't exclude religious education. Justice Breyer wrote a dissent about how divisive this would be and the government's interest in not subsidizing religion. Justice Sotomayor wrote a dissent saying, "Trinity Lutheran, remember my dissent, I said it's a mistake to force the government to subsidize religion, and we're seeing that come to fruition." Now, why is the case important? Well, notice the shift in the law. For decades, the issue was, when may the government give aid to religious schools without that violating the establishment clause of the First Amendment. Now, the issue is very different. Now it's when must the government give aid to religious schools or it's violating free exercise of religion. Also, I think this is gonna lead to a good deal of litigation. As an example, many cities have charter schools. These are funded by the government, but run by private entities. California has a law that says that charter schools must be secular, but I'm sure some religious group that wants to create a charter school is gonna bring a challenge to this. Where state and local governments have often had programs so they give money for secular purposes, but not religious purposes. I was involved in a case in New Jersey where New Jersey would give historic preservation money for buildings, but not to churches, synagogues, mosques. That was upheld by the New Jersey Supreme Court, but likely wouldn't be decided the same way today. Where there are many government programs, the right funds for drug and alcohol rehabilitation, but exclude faith based programs, that too will now be subject to challenge. The other religion case was Kennedy v. Bremerton Schools. Joseph Kennedy was a high school football coach in Bremerton, Washington. He says he's a devout Christian and, at the end of games, he'd go onto the 50 yard line and pray. Now the majority in the dissent characterized this very differently. The majority says that this was a moment of private, silent prayer. It was after the football game was over. The dissent says that this wasn't private at all. It was in a crowded stadium. Justice Sotomayor attaches pictures in her dissent to show it wasn't private. Well, what's clear is that some players from Kennedy's team and other teams would join him in these silent prayers. When he was told by the school district to stop, he briefly complied, but then begin the practice of going onto the 50 yard line after games and delivering a Christian inspirational message, which he called a prayer. Sometimes he was joined by players of his team and the opposing team. Sometimes people from the stands would come to be with him. He was put on administrative leave. He was given a poor performance evaluation. He sued saying this violates his free exercise of religion, his free speech. The Supreme Court in a six to three decision reversed the lower courts and ruled in favor of Joseph Kennedy. Justice Gorsuch wrote the opinion for the court. Justice Sotomayor wrote the dissent. Justice Gorsuch said that this was restricting the free exercise of religion by Kennedy. It was limiting his free speech, said Kennedy was not speaking as a government official in delivering these prayers. The court said the government violates the establishment clause only if it's coercing religious participation. The court said Lemon v. Kurtzman in its test for the establishment clause has been overruled. The court said that there's disagreement still about what's enough for coercion, but in any test, there's no evidence here of coercion. Justice Sotomayor wrote a blistering dissent. She talked about the strict prohibition of prayer in schools. She talked about the coercion that's inherent to prayer in schools. She said here, for example, a parent had complained that his son was an atheist and felt the pressure to pray or he wouldn't get as much playing time. Justice Sotomayor complained that the court was opening the door here to much greater presence of religion in public schools. Well, what's this case likely to mean? I don't think this case deals with official school sponsored prayer, but it does say that a teacher, when there's what Justice Alito called all lull in the activities, can engage in prayer and students can join. So teachers before school, at recess, lunch, after school, when the children have their heads down on the desk, can engage in prayer, and it's fine, even if the students wanna join in the prayer. It seems that if you put these two cases together, Carson v. Makin and Kennedy v. Bremerton Schools, the Supreme Court is taking an aggressive approach to protecting free exercise of religion, but sees a very minimal role if any, for the establishment clause. Finally, last certainly not least, there's the Second Amendment case, New York Rifle and Pistol Association v. Bruen. From 1791, when the Second Amendment was ratified until June, 2008, not one federal, state, or local gun regulation was struck down by the Supreme Court, but then in 2008 in District Columbia v. Heller, the Supreme Court declared unconstitutional a 32 year old DC ordinance that prohibited ownership of possession of handguns. Justice Scalia wrote the opinion for the court. It was five to four. Justice Scalia said the Second Amendment gives a right to have guns in the home for the sake of security. Two years later in McDonald v. city of Chicago, the court said that the Second Amendment is incorporated and applies to state and local governments, but that was the last decision about the Second Amendment until Thursday, June 23rd, and then the court handed down the Bruen case. It involves a New York law that was adopted in 1911 and it says that people can't have concealed weapons in public unless they were permitted. In order to get a permit, a person is gonna have to show cause, the New York courts have said. Cause requires that the person demonstrate a safety need for a concealed weapon. The Federal District Court in the Second Circuit upheld this, but the Supreme Court in yet another six to three decision declared this unconstitutional. Justice Thomas wrote for the court. Justice Breyer wrote for the three liberal dissenters. Justice Thomas said there's a right to have guns outside the home. This includes a right to have concealed weapons. He said laws that give discretion to government officials, limiting concealed weapons, those cause unconstitutional. He says a state can limit concealed weapons and require a permit, but only if there's clear criteria to leave no discretion. If this is all that Bruen did, it would be significant. It's the first time the court has said that there's a right to have weapons outside the home and concealed weapons at that, but the court went further. Most lower courts had adopted a two-step approach, much like intermediate scrutiny. The court explicitly rejected that, said it doesn't provide enough protection for Second Amendment rights. Now I would've thought that the court would then have adopted strict scrutiny. When it comes to fundamental rights, the government can interfere only if it meets strict scrutiny, if action is necessary to achieve a compelling purpose, but the court rejected that. The court said instead that the government can regulate guns only if it can show it's a type of regulation that historically existed. Let me quote Justice Thomas' opinion. "Only if a firearm regulation is consistent with this nation's historical tradition, may a court conclude an individual's conduct falls outside the Second Amendment's command." He writes, "The Second Amendment is the very product of interest balancing by the people, and it truly elevates, above all other interests, the right of law abiding citizens to use arms for self defense." Never has the Supreme Court said the First Amendment elevates free speech above all other interests. Never has the court said the Fourth Amendment elevates the protection against unreasonable search and seizure of all other interests. This is dramatic and it provides more protection for Second Amendment rights than any others under the Constitution. It's gonna lead to an enormous amount of litigation, cause when it comes to any gun regulation, the question is gonna be, "Is it a type that historically existed?" There's a discussion in Justice Thomas' opinion and Justice Barrett's concurring opinion, about how to determine history. Does it focus just on 1791 when the Second was adopted or does it also look to 1868 when the 14th Amendment was adopted, which applies the Second Amendment to the states? That's left to be resolved, but what's clear is this is the most important case, the most expansive decision, by the Supreme Court in history protecting gun rights. These of course are just some of the major cases of the term, but focusing, even on only these, it's clear, as I said at the beginning, it was a truly momentous year in the United States Supreme Court.

Presenter(s)

Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
The University of California, Berkeley, School of Law

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