Supreme Court October 2021 Review

Now that the Supreme Court’s (Court) 2021 term is over, it’s time to look back at the major decisions to understand the key takeaway from each case.

First, federal law requires the Court’s term to begin on the first Monday in October. See 28 U.S.C. § 2. Because the term starts in October, each year of the Court’s term is referred to as October Term, followed by the year. Come October 3, we will be in October Term 2022. This is also reflected on the syllabus (first page) of each of the Court’s decisions. The Court’s term ends whenever it finishes its opinions, usually by July 4.

October Term 2021 was Justice Stephen Breyer’s last term. In late January, he announced his intention to retire at the end of the Court’s term. President Biden nominated then-Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit to replace him. The Senate confirmed her in early April in a 53-471 vote. On June 30, the last day of the Court’s term, Justice Breyer made good on his intention to retire, and Judge Jackson was sworn in later that day by Chief Justice Roberts.

October Term 2021 was also important for another reason—while the Court’s term was ongoing, President Biden’s Presidential Commission on the Supreme Court of the United States (Commission) was receiving testimony from legal experts and preparing its report with recommendations. It is important to keep this in mind because the justices knew the Commission was watching their actions very closely. While many believed the Commission would recommend adding justices (i.e., court-packing) to the Court, it did not.

Below, the cases are split between merits petitions and “shadow docket” petitions. To oversimplify things, merits petitions involve a full briefing to the Court by both parties and several amici; oral argument; and an opinion explaining the reasons for granting or denying relief. Merits cases take several years before they get to the Court, and the case concludes with the Court’s opinion. In contrast, cases on the shadow docket have a limited briefing; fewer or no amici briefs;  and no oral argument; usually the Court does not provide a written opinion, but the justices that dissent usually write a brief dissent. Cases on the shadow docket continue in the lower courts after the Court grants or denies relief, and they sometimes end up back at the Court on the merits docket.

Within the merits and shadow docket division, the cases are divided by legal topic; and within the topic, are listed in order by the date when the Court handed down the opinion.

1On April 6th, the Department of Justice’s Office of Legal Counsel released an opinion concluding that President Biden could prospectively nominate, and the Senate could prospectively confirm, Judge Jackson, even though Justice Breyer had not stepped down. The opinion concluded that the prospective appointment was permissible because Justice Breyer’s intention to retire fell within President Biden’s term. However, the opinion does not address what would happen had Justice Breyer decided to forgo retirement until the next president assumed office.


First Amendment Freedom of Speech

Shurtleff v. City of Boston. 9-0 result; Justice Samuel Alito wrote an opinion concurring in the judgment joined by Justices Clarence Thomas and Neil Gorsuch.

Facts: Three 83-foot flag poles stand outside the entrance to Boston’s City Hall on city plaza. Usually, the flags are the American flag, Massachusetts’ flag, and Boston’s flag. However, Boston had allowed  groups to use the city plaza to hold events, and in accordance with those events, groups were permitted to fly a flag on the pole that flew Boston’s flag. Between 2005 and 2017, Boston approved the raising of 50 unique flags for 284 ceremonies, and a flag application had never been denied.

In 2017, Harold Shurtleff, the director of Camp Constitution, asked to hold a flag-raising event to “commemorate the civic and social contributions of the Christian community” where local clergy would speak. For the event application, Shurtleff attached a photo of the flag that featured a red cross on a blue field against a white background. Shurtleff described the flag as a “Christian flag.” Boston denied the application because it might violate the Establishment Clause, and there was no record of the city flying a similar flag.

The issue before the Court was whether Boston’s flag-flying program constituted government speech, or whether Boston, through use of its application process, had created a public forum subject to the First Amendment. If the raising of private flags was government speech, Shurtleff would lose because private citizens cannot force the government to speak. See Pleasant Grove City v. Summum (2009) (holding the decision over which monuments to put in a public park was government speech); Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) (holding that Texas’ specialty license plate system was government speech); but see Matal v. Tam (2017) (holding that trademarks are not government speech). 

In contrast, if Boston’s flag-raising program was a public forum subject to the First Amendment, Boston would lose because its decision to not fly the flag would constitute unconstitutional viewpoint discrimination. When the government opens a public forum, denying the ability of someone to speak because of a religious message constitutes unconstitutional viewpoint discrimination.

Why did Boston’s refusal to fly Shurtleff ‘s flag violate the First Amendment?

  • The Court considered three factors to determine whether the government speech doctrine applied: (1) history of the expression at issue; (2) the public’s likely perception as to whether the government or a private speaker is speaking; and (3) the extent to which the government has actively shaped or controlled the expression.
  • The first factor favored Boston because flag flying at the seat of government conveys important messages about government; and even when other flags are flown, sometimes it’s reflective of the government’s own message. 
  • The second factor was mixed because on an ordinary day, the public would see three flags raised, including Boston’s. However, when a private group’s flag was flown, the public would see an event going on at the plaza and associate the flag with the group, not Boston.
  • The third factor was decisive and favored Shurtleff because Boston exercised no control over the program. While it maintained control over an event’s time, date, and provided a crank so groups could raise their flag, it exercised no control otherwise. Boston told the public it would accommodate all applicants, and city officials had never requested to review a flag, requested changes to a flag in connection with approval, or even saw the flag before an event. There was no record of any denials before Shurtleff. 
  • Because Boston’s flag-raising program constituted a public forum, it was subject to the First Amendment. Boston chose not to fly Shurtleff’s flag because of its religious message. Under the First Amendment, this constituted unconstitutional viewpoint discrimination. In a public forum, the government cannot treat religious speech less favorably than secular speech.

Justice Alito’s concurrence in the judgment2 joined by Justices Clarence Thomas and Neil Gorsuch

  • Instead of engaging in a three-part test to determine whether the government is speaking, Justice Alito’s opinion argued the real test should be “whether the government is actually expressing its own views or the real speaker is a private party and the government is surreptitiously engaged in the regulation of private speech.”
  • In attacking the majority’s analysis, Justice Alito noted that even though two of the three factors debatably favored Boston, it still lost, and the Court failed to provide a clear explanation as to why.
  • In applying his test, Boston would lose because it did nothing to show it was sending a message by raising private flags, all sorts of different flags with different messages were flown that meant more than one speaker was speaking, and Boston had never rejected an application before Shurtleff’s. This indicated that Boston had opened a public forum and denying Shurtleff’s application because of its religious character therefore constituted unconstitutional viewpoint discrimination. 

Result: Boston violated the First Amendment when, in accordance with Camp Constitution’s event at city plaza, it refused to fly a flag that Harold Shurtleff, the group’s director, had described as a “Christian flag,” for fear that doing so might violate the Establishment Clause because the city’s flag-flying program was a public forum, not government speech as Boston had exercised no control over what flags were previously flown; and discriminating against speech because of its religious character therefore constituted unconstitutional viewpoint discrimination.

2There are two types of concurring opinions—concurrences and opinions concurring in the judgment. In a concurring opinion, the justice agrees with the majority opinion’s reasoning and result. The justice writes to add their own thoughts about the case. In an opinion concurring in the judgment, the justice does not agree with the majority’s reasoning but agrees with the result.

Federal Election Commission v. Ted Cruz For Senate. 6-3 decision with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

Facts: Under federal election law and the First Amendment, candidates for federal office can spend an unlimited amount of their own money to support their campaign. One way they can do this is by giving their campaign money. The campaign is a separate legal entity from the candidate. The campaign can borrow an unlimited amount from third-party lenders or the candidate. Under Section 304 of the Bipartisan Campaign Reform Act of 2002 (commonly known as McCain-Feingold), a candidate who lends money to his campaign may not be repaid more than $250,000 of such loans from contributions made to the campaign after the date of the election.

 To implement this requirement, the Federal Election Commission (FEC) promulgated three regulations. First, a campaign can repay up to $250k in candidate loans using contributions made “at any time before, on, or after the date of the election.” Second, if the loan exceeds $250k, a campaign can use pre-election funds to repay the portion exceeding $250k only if the repayment occurs “within 20 days of the election.” Third, if more than $250k remains unpaid after the 20-day post-election deadline expires, the campaign must treat the portion above $250k as a contribution to the campaign, precluding later repayment.

When Senator Ted Cruz (R-TX) ran for reelection in 2018, he loaned his campaign, Ted Cruz for Senate, $260k. When the election ended, the campaign owed $340k. It began repaying Cruz’s loans, but by that time, the 20-day post-election window for repayments over $250k closed. This left $10k of Cruz’s personal loan unpaid. 

The FEC first argued that Cruz did not have standing (i.e., did not suffer an injury) to sue because his injury was self-inflicted as he knowingly triggered the application of the loan-repayment limitation. Second, even if Cruz had standing, the statute and implementing regulations survive First Amendment scrutiny because of the government’s strong interest in preventing quid pro quo corruption or its appearance. Here, the government argued the contributions at issue are more concerning because of the use to which they are put—repaying a candidate’s personal loans. And post-election contributions are particularly troubling because the contributor will know that the recipient, having prevailed in the election, will be able to return a favor.  

Why did the FEC’s $250k candidate repayment cap violate the First Amendment?

  • Cruz met the requirement for standing because it was irrelevant whether the injury was knowingly incurred. Rather, standing is satisfied from “an injury resulting from the application or threatened application of an unlawful enactment…” See slip opinion at 4.
  • On standing, the FEC also argued that it should not be blamed for Cruz’s injury because his campaign had a legally available alternative—repaying Cruz’s loans in full with pre-election funds within 20 days of the election. The Court rejected this argument as irrelevant because under standing doctrine, courts accept as valid the merits of a legal claim because otherwise, a candidate would be required to forgo exercising his First Amendment rights because there is an alternative. 
  • On Cruz’s First Amendment claim, the Court agreed with Cruz that the law imposed a significant burden on a candidate’s right to fund his campaign. The unprecedented penalty that a candidate faces is a significant risk that he or she will not be repaid if they choose to give their campaign more than $250k. That risk will deter, if not prevent, candidates from lending money to their campaign that they otherwise would, reducing the amount of political speech.
  • The Court noted how important it is for new candidates and challengers to have the ability to fund their campaigns. Sometimes, personal loans will be the only way a challenger will be able to fund the campaign, at least at the outset. Moreover, early spending is often crucial both for winning a primary, and then the general election.
  • Responding to the FEC’s quid pro quo argument, the Court disagreed because individual contributions to candidates for federal office, including those made after the candidate has won, are already closely regulated. Contributions are capped at $2,900 per election.
  • Finally, the FEC could not identify a single case of quid pro quo corruption in this context, even though most states do not impose the post-election fund requirement that the FEC has. Instead, the FEC provided a handful of media reports and statements from members of Congress that the Court found unpersuasive for the serious burden on First Amendment rights the law imposed.

Result: Federal law and the Federal Election Commission’s implementing regulations prohibiting candidates for federal office that lend money to their campaign from being repaid more than $250,000 20 days after election day violated the First Amendment because it deterred or prevented candidates from spending money on political speech, and there was no evidence of quid pro quo corruption necessary to justify the prohibition. 

Kennedy v. Bremerton School District. (Free Speech holding) 6-3 result with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

Facts: Joseph Kennedy (Coach Kennedy) began working as a football coach at Bremerton High School in 2008. He would take a knee and pray on the 50-yard line for 30 seconds after the players and coaches shook hands after the game. Initially he did this on his own, but players on his team and the opposing team eventually joined. In addition, there were also short motivational speeches with his prayer and the team would engage in pre- or post-game prayers in the locker room. However, Coach Kennedy never told players they needed to pray nor pressured or encouraged them to join. This went on for seven years until an employee from another school commented positively about the after-game prayers to Bremerton’s principal. In response, the superintendent instructed Coach Kennedy to end the motivational talks with students that included religious expression, and instructed that all his prayers moving forward be “nondemonstrative” (not outwardly discernable as religious activity) if students would also be involved to avoid the perception of the school endorsing his prayer. Bremerton School District (the District) explained that an employee’s free exercise rights “must yield so far as necessary to avoid school endorsement of religious activities.”

In response, Coach Kennedy ended the locker room prayers and stopped incorporating religious references in his post-game motivational speeches. However, he asked the District to allow him to pray alone after the players had left the field. The District responded recognizing that Coach Kennedy complied with its previous letter, but forbade him from engaging in “any overt actions” that could “appear to a reasonable observer to endorse prayer while he is on duty as a district-paid coach” because anything less would lead to an Establishment Clause violation. 

When the next game ended, Coach Kennedy prayed at midfield. While he was alone at the beginning of the prayer, players from the other team and members of the community joined him. Before the next game, the District wrote another letter to Coach Kennedy explaining that a reasonable observer might think a government endorsement of religion occurred based on his actions in the last game, and made clear the only option it would offer him was to pray after the game, in a private location behind closed doors, so it was not observable to students or the public. After the next game ended, Coach Kennedy prayed at midfield; no one joined him. 

Finally, after one of the last games of the season, Coach Kennedy prayed as his team engaged in postgame traditions. During his prayer, other adults gathered around him. After that game, the District placed him on paid administrative leave and prohibited him from engaging in football program activities. The District criticized Coach Kennedy for not following its previous instructions, not being willing to pray behind closed doors, and engaging in “public and demonstrative religious conduct while still on duty as an assistant coach.” Before 2015, Coach Kennedy had received positive end-of-year evaluations, but because of his actions, he received a poor performance evaluation that advised he should not be rehired because he failed to follow District policy regarding religious expression and failing to supervise student-athletes after games.

The District argued that after games, Coach Kennedy was still in his official capacity as a coach and required to supervise student-athletes until they were off the field. It follows that by using his official time to engage in public prayer, the school might violate the Establishment Clause because it could be seen as endorsing his religion or religious practices. Coach Kennedy argued that his after-game prayers were during his private time, and by refusing to rehire him, the District punished him for exercising both his Free Speech and Free Exercise rights. 

Why did Bremerton School District, by refusing to rehire Coach Kennedy because of his after-game prayers, violate the First Amendment?

  • In balancing the Free Speech rights of government employees, the Court has employed a two-part test from Pickering v. Board of Education (1968) that asks (1) if the public official was speaking pursuant to their official duties or speaking on a matter of public concern. If it was pursuant to their official duties, the Free Speech Clause generally does not shield an individual from an employer’s discipline. If however, the speech is on a matter of public concern, the next step is (2) a balancing of the competing interests surrounding the speech and its consequences.
  • While the District and Coach Kennedy agreed that his prayers were a matter of public concern, they disagreed over whether the prayers occurred in his capacity as a private citizen or as a public official within the scope of his job duties.
  • The Court held that the prayers were as a private citizen because he did not speak pursuant to government policy; did not convey a government message; was not instructing players; was not discussing strategy; or was not engaged in any other speech he was paid to say as a coach.
  • The timing and circumstances of the prayers underscored that they were private speech. When he prayed after games, coaches attended to personal matters from checking their phones to greeting friends and family. In other words, coaches engaged in private activities when Coach Kennedy prayed. Moreover, the students sang the school fight song, and the prayers were never addressed to the team. Finally, Coach Kennedy’s job description left time for private moments after the game to call home, check a text message, socialize, or engage in other secular activities. 
  • Because the District’s arguments against Coach Kennedy’s prayers rest on Establishment Clause grounds, that discussion is found in the Free Exercise section below.

Result: Bremerton School District violated Coach Kennedy’s First Amendment rights when it refused to rehire him because of his after-game prayers because his prayers were private speech outside of his job duties, the District allowed other coaches to engage in secular activities during his prayer, and his contract stipulated that after games there was time to engage in secular activities. 

Kennedy’s Free Exercise of Religion Analysis

Why did Bremerton School District, by refusing to rehire Coach Kennedy because of his after-game prayers, violate the First Amendment?

  • The District acknowledged that Coach Kennedy’s prayer might be protected by the Free Speech and Free Exercise clauses, but that his prayer had to yield to the competing demands of the Establishment Clause.
  • Under Smith (see below), government action that is not neutral nor generally applicable toward religious conduct is unconstitutional. Here, the District’s policy was not neutral as it forbade employees from engaging in religious conduct while on duty. It was not generally applicable or applied in an evenhanded way because the policy permitted other coaches to forgo supervising students after the game ended and engage in activities such as visiting family or friends.. Therefore, it violated Coach Kennedy’s Free Exercise rights.
  • The Court attacked the District’s understanding of the Establishment Clause because the record showed that the prayer was private, the District never endorsed it, no one complained that it had, and the strong public reaction occurred only after the District tried to ban his prayers.
  • The District’s Establishment Clause argument relied on Lemon v. Kurtzman (1971) that the District believed forbade any activity if a “reasonable observer would consider the government’s challenged action an endorsement of religion.”
  • In response to the Lemon argument, the Court responded “this Court long ago abandoned Lemon and its endorsement test offshoot…This Court has since made plain, too, that the Establishment Clause does not include anything like a ‘modified heckler’s veto, in which religious activity can be proscribed’ based on ‘perceptions’ or “discomfort.’” See slip opinion at 22. Here, six justices went on record effectively overruling Lemon’s reasonable observer test.
  • After abandoning Lemon, the Court emphasized that the Establishment Clause “must be interpreted by reference to historical practices and understandings…The line that courts and governments must draw…has to accord with history and faithfully reflect the understanding of the Founding Fathers.” In other words, the Court’s interpretation of the Establishment Clause will now be focused on an originalist understanding where government coercion to engage in religious exercise violates the clause.
  • Finally, the Court rejected the District’s final theory that if it allowed Coach Kennedy to pray, other students would be coerced into praying because there was no evidence of coercion. The District never supplied any evidence in its correspondence with Coach Kennedy, and Coach Kennedy repeatedly said he never told any student they needed to pray with him. Finally, after the District’s first letter, not a single Bremerton High School student joined any of Coach Kennedy’s prayers.

Result: Bremerton School District violated Coach Kennedy’s First Amendment rights when it refused to rehire him for his after game prayers because it punished him for his religious actions, the District’s emphasis on avoiding an Establishment Clause violation under Lemon’s “reasonable observer” test was misplaced because Lemon has been abandoned in favor of an originalist understanding of the clause, and there was no evidence any student was coerced into prayer.

First Amendment Free Exercise of Religion

Because so many merits and shadow docket cases described in this review rely on this clause, a deeper explanation of the Court’s case law and the congressional response to it is necessary. The main case that governs this clause is Employment Division v. Smith (1990). In Smith, the Court held that the government can substantially burden religious exercise as long as it acts in a neutral and generally applicable manner. In other words, Smith reduced the Free Exercise Clause to a non-discrimination provision.If the government fails either neutrality or general applicability, the law, prosecution, or other action is subject to a standard of review called strict scrutiny. To simplify things, when the government’s action is subject to strict scrutiny, the government loses because it acted unconstitutionally. 

Government fails to act in a neutral way toward religious exercise when it is the object of the law, the law explicitly discriminates against religious exercise, or the law is specifically directed at a religious practice. For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) the Colorado City Commission failed to act in a neutral way toward Jack Phillips’ religious exercise (refusing to bake a wedding cake for a gay couple because his religion objected to gay marriage) when members of the commission expressed hostility and disdain for his religious beliefs, and treated bakers with objections to creating cakes with anti-gay messages in a different manner. Since Smith, there have been very few winning cases on neutrality grounds.

One way the government fails to act in a generally applicable way toward religious exercise is when it creates a system of individualized exemptions but fails to extend an exemption to cases of religious hardship. For example, in Sherbert v. Verner (1963), a Seventh-day Adventist was fired because her faith instructed her not to work on Saturdays. Being unable to find a job where she would not have to work on Saturdays, she filed for unemployment benefits. However, her application was denied because her religious hardship that prohibited her from working on Saturdays did not fall within the good-cause exception required if an applicant failed to accept suitable work. This good-cause standard failed general applicability because it allowed the government to grant exemptions based on circumstances underlying each application, and it did not extend that exemption to cases of religious hardship. Most of the Court’s Free Exercise cases are general applicability cases.

Smith was a very divisive decision because it reduced the protections of the Free Exercise Clause. In response, Congress almost unanimously passed the Religious Freedom Restoration Act (RFRA) under its power granted by Section 5 of the Fourteenth Amendment. Under that power, Congress has the authority to “enforce, by appropriate legislation, the provisions of this article.” And because the Free Exercise Clause is incorporated and applies to state and local governments via the Due Process Clause of the Fourteenth Amendment, Congress has the power to enforce the Free Exercise Clause. 

In passing RFRA, Congress attempted to overturn Smith. Instead of the government action that failed neutrality or general applicability applying strict scrutiny, RFRA required any government action that substantially burdened religious exercise to be subject to strict scrutiny. In other words, whenever government action substantially burdened someone’s sincerely-held religious beliefs, the government would most likely lose in court. See 42 U.S.C. § 2000bb–1(b)(1)-(2). However, in City of Boerne v. Flores (1997), the Court held that RFRA, as applied to state and local governments, was unconstitutional because Congress attempted to re-define the substance of the Free Exercise Clause. Congress can enforce provisions of the Bill of Rights via its Section 5 powers under the Fourteenth Amendment by passing legislation that is congruent and proportional to a constitutional injury Congress has identified, but it cannot redefine the constitutional protections set by the Court. In sum, RFRA’s protection still applies whenever the federal government substantially burdens religious exercise, but not if a state or local government does.

In response to Smith and City of Boerne, Congress also passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA was not passed pursuant to Section 5 of the Fourteenth Amendment but pursuant to Congress’ Spending and Commerce Clause power. Relevant here, under RLUIPA, is that whenever any government wants to substantially burden religious exercise of a person residing in or confined to an institution, in a program or activity that receives federal funds, the government must meet strict scrutiny (i.e., the government is likely to lose in court). Finally, religious exercise is defined broadly and encompasses “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” See 42 U.S.C. § 2000cc-5(7)(A). In sum, RLUIPA provides prisoners the same religious protections that RFRA provides against the federal government. As a result, in many state death penalty proceedings (like Ramirez below) the claimant brings a RLUIPA and a Free Exercise claim.

Ramirez v Collier. 8-1 result with Justice Clarence Thomas dissenting.

Facts: A Texas jury found John Ramirez guilty of murdering Pablo Castro in the course of committing or attempting to commit a crime. The jury sentenced him to death. Originally, Ramirez asked Texas to allow his pastor to be in the execution chamber, but Texas’ protocol allowed only prison chaplains. Texas employed only two types of prison chaplains—Christian and Muslim. While Ramirez’s request was ongoing, the Court in Murphy v. Collier (2019) held that Texas could carry out Murphy’s execution only if his Buddhist spiritual adviser was present in the chamber. In response, Texas changed its policy to prohibit all spiritual advisers. Several other intervening Court cases made clear that spiritual advisors (pastors) could be present in the execution chamber. In response, Texas changed its policy to allow spiritual advisors to be accompanied by a prison security escort.

However, Ramirez made two other requests. He asked that his pastor be able to pray aloud and lay hands on him while the execution took place. Texas denied this request.

In denying Ramirez’s request, Texas argued that (1) absolute silence was needed in the execution chamber to monitor the inmate’s condition; (2) if it allowed pastors to pray aloud during execution, the opportunity could be exploited to make a statement to the witnesses or officials rather than the inmate; (3) security is needed in the execution chamber and allowing the pastor to touch the inmate might place the pastor in harm’s way or the pastor might tamper with the prisoner’s restraints or yank out the IV line; (4) the pastor might accidentally interfere with an IV line that might affect the administration of the execution drugs in a way that results in more pain and suffering; and (5) allowing certain forms of religious touch might traumatize a victim’s family members who are present, reminding them their loved one received no such solace.

Why did Texas violate the Religious Land Use and Institutionalized Persons Act by prohibiting Ramirez’s pastor to pray aloud and lay hands on him during his execution? 

  • First, Texas did not dispute the sincerity of Ramirez’s religious beliefs in seeking accommodations to the execution procedure. Because Ramirez is a Baptist, prayer accompanied by touch is a significant part of his faith.
  • Next, the Court described the rich history of prayer at the time of a prisoner’s execution that goes back further than the founding of the United States, and was commonplace in the American Colonies. Moreover, it exists today as the Federal Bureau of Prisons allows pastors to speak or pray audibly with inmates during federal executions.
  • The Court disagreed with Texas that absolute silence was needed in the execution chamber because the federal government and Alabama allow audible prayer and previously, Texas allowed prison chaplains to audibly pray during executions.
  • Because RLUIPA calls for a case-by-case analysis, the Court rejected Texas’ argument that Ramirez’s pastor would disrupt the execution because Texas provided no evidence that this might happen. Moreover, prison officials could impose reasonable restrictions on audible prayer in the execution chamber like limiting the volume of the prayer, requiring silence during certain parts of the execution, and requiring removal if the pastor fails to meet these guidelines.
  • Texas’ argument for the importance of security also failed because under its policy, a security escort stands near and ready to intervene if something occurs. Therefore, allowing a pastor to stand closer than the three feet he already was allowed to stand would not meaningfully increase any security risk. Moreover, Ramirez said that his pastor touching his foot would be permissible under his religious exercise.
  • Texas’ concern that the pastor might accidentality interfere with the IV line was also misplaced because it could allow touch on a part of the body away from the line, the pastor might be required to stand in a way where the medical team has an unobstructed view of the line, or the pastor could undergo training to understand what precautions are necessary to avoid problems in the chamber.
  • Finally, the Court disagreed that forms of religious touch might traumatize a victim’s family because Texas was more concerned about more problematic requests down the line rather than Ramirez’s request. However, RLUIPA calls for a case by case inquiry and the more problematic requests were not before the Court.

Result: By prohibiting Ramirez’s pastor from laying hands on him and praying aloud during his execution, Texas violated the Religious Land Use and Institutionalized Persons Act because its categorical bans on both practices burdened Ramirez’s religious exercise, and Texas could achieve its compelling interest in security in the execution chamber and monitoring the inmate’s condition through other, less restrictive means.

Carson v. Makin. 6-3 result with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

Facts: Because of Maine’s rural geography, many districts in the state do not have public elementary, middle, or high schools. As a result, Maine enacted a tuition scholarship program so students that live in one of these districts can go to a school in any state or country and part of their tuition would be paid. Prior to 1981, the scholarship allowed payments to religious schools. However, Maine determined for its program to be in accordance with the First Amendment, the schools must be nonsectarian (i.e., not religious). In making the nonsectarian determination, Maine looks to see if the school “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of the faith.” If Maine determines the school is sectarian, there is no tuition payment. Importantly, religious affiliation or character is only one factor meaning that just because a school is private does not automatically mean it is excluded.

Maine argued that its nonsectarian requirement was required under the Establishment Clause because otherwise, public money would fund religious schools. However, Maine’s argument ran directly in the face of two very recent precedents. In Trinity Lutheran v. Comer (2017), the Court held unconstitutional Missouri’s generally applicable program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires because it excluded applicants owned or controlled by a church, sect, or other religious entity. Missouri violated the Free Exercise Clause by denying Trinity Lutheran, a church, from applying because of its religious character (status). In footnote three of the Court’s opinion, four justices said the opinion covered only discrimination based on religious identity (status), not religious use of funding or other discrimination. See Trinity Lutheran, slip opinion at 14, footnote 3. 

Similarly, in Espinoza v. Montana Department of Revenue (2020), a Montana program provided tax credits to donors who sponsored scholarships for private school tuition. But the Montana Supreme Court held the program unconstitutional because it violated the Montana Constitution that prevented government aid to schools controlled in whole or in part by a church, sect, or denomination. In reversing the Montana Supreme Court, the Court held that the application of the Montana Constitution was unconstitutional because it barred public funds solely because of the religious character (status) of the schools. If a state chooses to subsidize private education, it cannot disqualify schools solely because they are religious.

Both Trinity Lutheran and Espinoza held that when the government offers a generally applicable benefit, it cannot exclude groups because of their religious status or character. However, neither case dealt with a government program that excluded groups because they would use the money for religious use. Maine believed this distinction could separate them from the prior cases. Importantly, in Trinity Lutheran, Justice Neil Gorsuch wrote a concurring opinion joined by Justice Clarence Thomas that argued the religious status vs. use distinction was unstable, and the Free Exercise Clause doesn’t care because it protects the “free exercise of religion, not just the right to inward belief (or status).” See Trinity Lutheran, slip opinion at 1-2 (Gorsuch, J., concurring). Both justices refused to join footnote 3 (see above).

Why did Maine’s nonsectarian requirement violate the Free Exercise Clause? 

  • In Zelman v. Simmons-Harris (2002), the Court held that Ohio’s “benefit program under which private citizens direct government aid to religious schools wholly as a result of their own genuine independent private choice does not violate the Establishment Clause.” Because the parents of the student, and not the state, decide where the money went, Maine’s program was consistent with Zelman and did not violate the Establishment Clause.
  • Applying Trinity Lutheran and Espinoza, the Court held Maine’s nonsectarian requirement was unconstitutional. Maine offered a generally applicable benefit—tuition assistance payments for any family whose school district does not provide a secondary school. This was no different than the programs in Trinity Lutheran and Espinoza. Like those programs, Maine excluded schools because they were religious. 
  • The Court disagreed with Maine’s Establishment Clause argument holding that Maine cannot enforce the clause in a stricter way than the Constitution requires as to infringe on the Free Exercise rights of its citizens.
  • In responding to Maine’s status vs. use argument, the Court noted that Espinoza had expressly rejected the distinction because Montana had argued that its program was different from Trinity Lutheran’s because one of its goals was preventing religious organizations from using the aid for religious use. Moreover, the Court noted that Maine conceded it does not engage in careful analysis in deciding when to enforce the nonsectarian requirement, likely because if it did, it would raise serious constitutional questions as to whether Maine was telling religious schools how to pursue their educational mission. 

Result: Maine’s generally applicable tuition assistance program that prohibited state funds from going toward sectarian schools chosen by the student, if the student lived in a district with no public school, violated the Free Exercise Clause because the prohibition discriminated against the religious beliefs of the parents, students, and schools solely because of their religious character. 

Second Amendment—the Right to Keep and Bear Arms

While there is not a lot of Second Amendment case law, the cases leading up to Bruen are important to fully understand the case. In District of Columbia v. Heller (2008), the Court for the first time invalidated a law under the Second Amendment. Heller teaches several things. First, the Second Amendment codified an individual pre-existing right of self-defense. The amendment’s use of “right of the people” as in the First and Fourth Amendments and “keep and bear arms” were frequently used in nonmilitary contexts. The right was also well established before the amendment was adopted and was never confined to military contexts. Second, the analysis in Heller should not be read to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” See slip opinion at 54-55. This unqualified “sensitive places” and “longstanding prohibitions” sentence came with no historical analysis whatsoever and has nothing to do with the issues presented in Heller. As such, some read it as not being binding for purposes of the case.

Third, in line with the purpose of the Second Amendment being self-defense, the need for firearms for protection of self, family, and property is most important in the home. Fourth,

the government cannot ban an entire class of firearms under the argument that there are other firearms citizens can possess. Heller explicitly gave the handgun Second Amendment protection because it is one of the most popular firearms in the United States and overwhelmingly chosen by the American public for a lawful purpose. It was irrelevant whether the handgun existed at the time of the Second Amendment’s ratification. Among other things, Heller held that D.C.’s handgun ban was unconstitutional. However, the justices did not agree on a standard to review gun regulations in future cases. This caused much confusion in the lower courts.

Because Heller dealt with D.C.’s laws, the Court still needed to incorporate its understanding that the Second Amendment protects an individual right for purposes of self-defense. Two years after Heller, this happened in McDonald v. City of Chicago (2010). Between McDonald and Bruen, the Court refused to take another Second Amendment case as states and localities passed gun-control measures that were largely upheld by the U.S. Court of Appeals for the Ninth Circuit. Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Brett Kavanaugh at different times pleaded with the Court to take a case, but there was no appetite. Finally, in Caetano v. Massachusetts (2016), the Court invalidated a ruling by the Supreme Judicial Court of Massachusetts when it held that stun guns were not protected by the Second Amendment because they were not of common usage at the time the amendment was ratified, and they were unusual in character. 

New York State Rifle & Pistol Association Inc. v. Bruen. 6-3 result with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

Facts: To possess any firearm in or out of the home in New York, a license is required. A license applicant who wants to possess a firearm at his home or place of business must convince a licensing officer (judge or law enforcement officer) that, among other things, he or she (1) is of good moral character; (2) has no history of crime or mental illness; and (3) that no good cause exists for the denial of the license. For those that seek to possess a firearm outside the home or place of business, the applicant must show that proper cause exists to issue it. New York is one of six states with this subjective “proper cause” standard.

On the issue of concealed (or open) carry, the states were divided before this case. In 43 states–referred to as “shall issue” jurisdictions–-once an applicant has met the set of legal requirements, the state or locality must allow the applicant to carry a firearm outside the home. These are objective requirements like completing a class, paying a fee, passing a background check, etc. Six states were what is referred to as “may issue” jurisdictions where applicants must meet a subjective “proper cause” standard, which requires applicants to give a reason for carrying a firearm outside the home greater than self-defense; and usually, if not always, were denied a permit. New York is a “may issue” jurisdiction. 

Why did New York’s “proper cause” standard violate the Second Amendment?

  • The Court first affirmed the holding of Heller and the purpose of the Second Amendment: that it protects an individual right to keep and bear arms for self-defense. Self-defense is the key to this case because New York required applicants to provide a special reason to carry a firearm outside the home, and self-defense did not suffice.
  • Second, the Court provided a framework for lower courts to apply in Second Amendment cases. “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” See slip opinion at 8. 
  • To justify the historical analysis, the Court argued “reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is…more legitimate, and more administrable, than asking judges to make difficult empirical judgments about the costs and benefits of firearms restrictions, especially given their lack of expertise in the field.” See slip opinion at 16.
  • In explaining how courts should apply the historical analysis, the Court reaffirmed what it held in Heller and Caetano. The Second Amendment protects firearms that did not exist at the time of the founding just like the First Amendment protects speech on the internet. Importantly, the amendment protects modern instruments that facilitate armed self-defense. When judges or lawyers run into present-day firearm regulations, the historical inquiry will involve reasoning by analogy. Two of the most important metrics will be how and why the regulation burdens a law-abiding citizen’s right to armed self-defense.
  • In applying the historical test to New York’s proper cause standard, the Court found no historical evidence justifying the standard. The challengers were both law-abiding citizens, the weapons they sought to carry were in common use for self-defense, and the amendment’s use of “bear arms” protects conduct outside the home. “Bear” encompasses public carry and to hold it protects only possessing a firearm inside the home would render the word meaningless. It would also be nonsensical not to have the amendment apply outside the home considering the purpose of the amendment is self-defense, which is needed outside and inside the home.
  • Finally, footnote 9 on page 30 provided a warning that there might be situations where “shall issue” jurisdictions provide a standard that is unconstitutional. The Court noted that these regimes typically require a background check, a firearms safety course, etc. These are permissible to ensure the applicants are in fact law-abiding, responsible citizens. But even objective standards can be put to abusive and unconstitutional ends like lengthy wait times in processing applications or high licensing fees that ordinary citizens cannot pay.

Justice Brett Kavanaugh’s concurrence joined by Chief Justice John Roberts

  • Justice Kavanaugh’s concurrence first stressed that the Court’s decision does not affect the 43 states with “shall issue” requirements. States are still free to impose licensing requirements.
  • Second, he reiterated the “sensitive places” and “longstanding prohibitions” language from Heller and McDonald (see above). Lower courts have taken this language and applied it broadly to prohibit entire classes of people from owning firearms or possessing firearms in a particular place. As stated above, neither Heller nor McDonald explained the historical underpinnings of this Second Amendment limitation.

Result: New York’s “proper cause” standard, which required applicants seeking to carry a firearm outside the home to show a special need greater than typical self-defense, violated the Second Amendment because the purpose of the amendment is self-defense; the clause’s use of the word “bear” encompasses carrying a firearm outside the home as citizens can encounter danger both in and out of the home; and there was no historical evidence justifying the standard. 

Fourth Amendment: The Bivens Remedy.

The case below is of a different variety than a typical Fourth Amendment case that might challenge whether the government had probable cause before searching a car or arresting someone, or whether there were exigent circumstances that allowed the police to enter someone’s home without a warrant. Instead, the case rests on a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). In Bivens, several agents of the Federal Bureau of Narcotics entered Webster Bivens’ apartment and arrested him for alleged narcotics violations. During the arrest, agents used excessive force against him in front of his wife and children and searched his apartment. Bivens was then taken to a federal courthouse where he was interrogated, booked, and subjected to a visual strip search. He sued for money damages under the Fourth Amendment, and the Court allowed his lawsuit to proceed. The big takeaway is the Court invented an implied (i.e., not textual) cause of action for money damages under the Fourth Amendment.

Since that case, the Court has been asked to expand the Bivens remedy in several other contexts. In all, the Court has expanded it only twice, and rejected doing so 11 times. In Davis v. Passman (1979), the Court expanded Bivens to reach a former congressional staffer’s Fifth Amendment sex-discrimination claim. And in Carlson v. Green (1980), the Court expanded Bivens to reach a federal prisoner’s inadequate-care claim under the Eighth Amendment. Most recently however, in Hernandez v. Mesa (2020), the Court declined to expand Bivens to cover a cross-border shooting by a Border Patrol officer.

Egbert v. Boule. 6-3 result with Justice Neil Gorsuch concurring in the judgment, and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

Facts: Robert Boule lived and operated a run-down bed-and-breakfast named the Smuggler’s Inn (Inn). Located in Blaine, Washington, the Inn is located in the last town in the United States along U.S. Interstate Highway 5 before reaching Canada. The area around the property is known for cross-border smuggling of people, drugs, illicit money, and items of significance to criminal organizations. Federal agents have seized illegal drugs from the Inn in the past

Boule worked with federal agents to identify and apprehend persons engaged in unlawful cross-border activity on or near his property. In doing so, he would host persons who unlawfully entered the U.S. as guests, offer to drive them places, and pick up Canada-bound guests throughout the State and drive them north. Boule would inform federal law enforcement if he was scheduled to lodge or transport persons of interest. Then, Border Patrol would arrive to arrest the guests, usually within a few feet of the Inn.

Border Patrol Agent Erik Egbert was aware of the criminal activity at and around the Inn. In March 2014, Boule informed Egbert that a Turkish national, arriving in Seattle from New York, had scheduled transportation to the Inn later that day. Egbert then observed one of Boule’s vehicles returning to the Inn and suspected Boule’s Turkish guest was a passenger. He followed the car into Boule’s driveway so he could check the guest’s immigration status. According to Boule, he told Egbert to leave his property. Egbert not only declined but lifted him off the ground and threw him up against the car. From there, Egbert then threw Boule to the ground. After checking the guest’s immigration paperwork, Egbert determined there was no problem and left. However, the guest later unlawfully entered Canada from the Inn.

Boule filed a grievance with Egbert’s supervisor arguing Egbert used excessive force that caused him personal injury. He also filed an administrative claim with the Border Patrol pursuant to the Federal Tort Claims Act. Both claims were denied. Boule then sued Egbert alleging a Fourth Amendment violation for excessive force and a First Amendment violation for unlawful retaliation claiming that Egbert reported him to the Washington Department of Licensing andcontacted the Internal Revenue Service, which prompted an audit of Boule’s tax returns. Boule invoked Bivens and asked the court to recognize a new claim for money damages.

Why did the Court reject Boule’s claim for money damages and decline to extend Bivens?

  • First, the Court recognized it has not expanded Bivens since 1980 and has rejected expanding it several times since. Rather, Congress is the body to create causes of action for money damages. However, the Court did recognize that it has not (and likely will not) overrule Bivens, but that expanding it is a “disfavored judicial activity.” See slip opinion at 6.
  • Whether to expand Bivens is a two-step inquiry—(1) whether the case presents a new Bivens context, one that is meaningfully different from the three cases where a Bivens remedy exists; and (2) if the area is in a new context, whether there are special factors that indicate the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.
  • However, the two-step inquiry really boils down to one question—whether there is any reason to think Congress might be better equipped to create a damages remedy. In almost every circumstance, the answer is yes.
  • Fourth Amendment excessive force claim: Because Egbert was acting in his capacity as a Border Patrol official that involves foreign policy and national security implications, the Judiciary seldom gets involved. This was the case in Hernandez where the Court refused to authorize a claim against a Border Patrol officer in a different context. Moreover, there are two separate remedies available—(1) Border Patrol’s grievance program and (2) an Executive Branch investigation of the alleged misconduct. It is irrelevant whether anything comes from these potential remedies.
  • First Amendment retaliation claim: Unlike the excessive force claim, this claim presented a new Bivens context. In rejecting an expansion of Bivens, the Court was concerned that any adverse action can be turned into a retaliation claim, and federal employees might be deterred from performing their job if they were subject to claims for money damages. Therefore, Congress would be the better body to fashion a remedy, if any, in this context.

Justice Neil Gorsuch’s concurrence in the judgment

  • Justice Gorsuch asked why, in any context, the judiciary would be better fit to fashion a cause of action than Congress because creating a cause of action is an act of legislation that should always come from Congress.
  • He concluded that the Court should overrule Bivens and stop giving litigants false hope that it will ever be expanded into a different context. Justice Thomas concluded the same in Hernandez.

Result: Boule’s claim to expand Bivens to claims of Fourth Amendment excessive force and First Amendment retaliation failed because there was reason to think Congress might be better equipped than the Judiciary to create a damages remedy and weigh the costs and benefits involving situations that encompass foreign policy, national security, and retaliation.

Fifth Amendment Due Process Clause

Under the Fifth Amendment’s Due Process Clause, the federal government cannot deprive any person of “life, liberty, or property, without due process of law…” See U.S. Const. amend. V. To understand the case below, it is important to be familiar with the case of Bolling v. Sharpe (1954). In Bolling, the racial discrimination practices of public schools in Washington D.C. were challenged; but because Washington D.C. is not a “state” under the Fourteenth Amendment, it is not textually subject to the Equal Protection Clause. See U.S. Const. amend. XIV, § 1. As a result, the challengers in the case challenged the discriminatory program under the Fifth Amendment’s Due Process Clause. The Court held that D.C.’s racially discriminatory program was unconstitutional under the equal protection component within the Fifth Amendment’s Due Process Clause, but the clauses are not always interchangeable.

United States v. Vaello Madero. 8-1 result with Justice Sonia Sotomayor dissenting.

Facts: In 2013, Jose Luis Vaello Madero moved from New York to Puerto Rico. While residing in New York, he received Supplemental Security Income (SSI) benefits. After moving to Puerto Rico, he was no longer eligible for SSI because residents of Puerto Rico do not qualify for the program. However, the government was unaware of his move, and overpaid him $28,000. When the government learned of this, it sued him seeking repayment. 

Because Puerto Rico is a U.S. territory, the federal government’s control over it comes from the Territory Clause of the Constitution. That clause states Congress may “make all needful Rules and Regulations respecting the Territory…belonging to the United States.” See U.S. Const.  art. IV, §3, cl. 2. As a result, the U.S. has broad authority to legislate over the territories. Congress often legislates differently with respect to the territories than the states. For example, residents of Puerto Rico are exempt from most federal income, gift, estate, and excise taxes, but they generally pay Social Security, Medicare, and unemployment taxes. Residents are eligible for Social Security, Medicare, and federal unemployment benefits. Of relevance to this case, Puerto Rico residents do not qualify for SSI. Instead, the government provides a different benefit funded in part by the U.S. and in part by Puerto Rico.

Vaello Madero counter-sued the U.S., claiming that the congressional exclusion of residents of Puerto Rico from SSI was unconstitutional under the equal-protection component of the Fifth Amendment’s Due Process Clause.

Why does the U.S.’s exclusion of residents of Puerto Rico from the Supplemental Security Income program not violate the equal-protection component of the Fifth Amendment’s Due Process Clause?

  • In two prior cases, the Court upheld Congress’ decision to treat the residents of Puerto Rico differently from those in the states. The Court explained that based on the Territory Clause, Congress needed only a rational basis for its decision. This was met previously because Congress exempted residents of Puerto Rico from federal taxes. 
  • Applying the same deferential rational basis test, the Court upheld Congress’ decision. In devising the SSI program, it was reasonable for Congress to consider the benefits to and burdens on the residents of Puerto Rico. Moreover, Congress does not need to conduct a dollar-to-dollar comparison of how its tax and benefits programs apply in the States compared to the Territories.
  • If Vaello Madero’s argument prevailed, Congress would need to extend every benefits program to each federal territory, not just Puerto Rico. As a result, many in the states might ask their representatives to impose all federal taxes on residents of all the Territories.

Justice Clarence Thomas’ concurrence

  • Justice Thomas’ concurrence questioned whether the Fifth Amendment’s Due Process Clause had an equal protection component under the original meaning of the Constitution. 
  • He questioned the correctness of Bolling, recognizing that for decades before it, the Court refused to recognize an equal protection component in the Fifth Amendment. Based on the text of the amendment and historical practice, there is little evidence of an equal protection component in the Fifth Amendment’s Due Process Clause.
  • Instead, the Fourteenth Amendment’s Citizenship Clause might be the clause that prohibits the Federal Government from discriminating on the basis of race with respect to civil rights. That clause provides that “[a]l persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. See U.S. Const. Amend. XIV, §1, cl. 1.

Justice Neil Gorsuch’s concurrence

  •  Justice Gorsuch’s concurrence called on the Court to overturn The Insular Cases (1901). In these cases, the Court held that the Constitution did not protect residents of federal territories unless Congress directed. 
  • Later cases (and the current law) instruct that the Constitution protects residents of the territories only if Congress incorporates the territory into the United States. But if the territory is not incorporated, the Constitution might still provide some protections for “fundamental” aspects. The Court later ruled that even the right to a jury trial was not a fundamental aspect.
  • Justice Gorsuch hammered The Insular Cases, arguing that the Constitution does not mention incorporated or unincorporated territories, and it is irrelevant whether a constitutional guarantee is fundamental or not. As a result, these cases should be overruled to restore the original meaning of the Territory Clause. 

Result: The supplemental security income program’s exclusion of residents of Puerto Rico did not violate the Fifth Amendment’s Due Process Clause because based on the Court’s precedents, the Territory Clause’s text, and historical practice, Congress needed only a rational basis for its decision, which it had because it chose not to extend certain taxes to those same residents.

State Secrets Privilege

When private litigants seek U.S. (federal) government information during litigation, whether the case is against the federal government, a foreign government, or another private party, the government usually invokes the state secrets privilege to prevent discovery, disclosure, and use of the information. To simplify here, the privilege protects military and state secrets. Most famously, in Totten v. United States (1875), the Court held that the state secrets privilege prevented disclosure of a secret contract between President Lincoln and William Lloyd, where Lloyd was allegedly paid to spy on the Confederate government. If the privilege applies, the government does not need to disclose the information. This leads to a great many cases being dismissed.

In United States v. Reynolds (1953), the Court articulated how the state secrets privilege is invoked and what courts are required to do when reviewing the government’s request. The privilege belongs to the government, the government must assert it, and it cannot be asserted or waived by a private party. It must be a formal claim of privilege made by the head of the department that controls the information. The court itself then determines whether the circumstances are appropriate. It must be satisfied from all the evidence and circumstances, “from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” However, in some circumstances, a full disclosure to the court is not necessary. If the court is satisfied, the claim of privilege is accepted.

In each case, the court must determine the party’s need for the information. This determines how far the court should go in probing the government’s request (see the above paragraph). If there is a strong necessity showing, the claim of privilege “should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is…satisfied that military secrets are at stake.” If necessity is dubious, a formal privilege claim “will have to prevail.”

Finally, Department of the Navy v. Egan (1988) holds that the president’s role as head of the Executive Branch, and Commander in Chief of the military, provides the “authority to classify and control access to information bearing on national security…” Moreover, the government has a compelling interest in withholding national security information from those outside the Executive Branch, and the authority to protect this information falls on the president. The protection of national security information is “committed to the broad discretion of the agency responsible…[and] it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment…” Rather, courts defer to the president when making these determinations because they do not intrude into military and national security affairs, absent Congress explicitly providing otherwise. In sum, courts defer to the president and the Executive Branch over privilege determinations. 

United States v. Husayn, AKA Zudaydah. 6-3 result; Justice Clarence Thomas authored an opinion concurring in the judgment joined by Justice Samuel Alito; Justice Brett Kavanaugh authored a concurring opinion joined by Justice Amy Coney Barrett; Justice Elena Kagan wrote an opinion concurring and dissenting in part; and Justice Neil Gorsuch authored a dissenting opinion joined by Justice Sonia Sotomayor. 

Facts: Following the terrorist attacks on September 11, 2001, the Central Intelligence Agency (CIA) believed Abu Zudaydah was a senior al Qaeda lieutenant that had knowledge of future attacks against the United States. In March 2002, he was captured by the Pakistani government in conjunction with the CIA. The CIA transferred him to a detention site that some believe was in Thailand. Zudaydah claims that while he was there for several months, he was subject to “enhanced interrogation” such as waterboarding, stress positions, cramped confinement, and sleep deprivation. In December 2002, the CIA transferred Zudaydah to a different site. While the CIA has never confirmed where the site was (one of the subjects of this case), many believe it was in Poland. In September 2006, Zudaydah was transferred to the Guantánamo Bay Naval Base where he has remained.

In 2010, Zudaydah’s lawyers filed a criminal complaint in Poland asking prosecutors to hold accountable any Polish nationals that were involved in his alleged mistreatment. Because the U.S. refused to provide information, Poland closed the investigation. Later, Poland reopened the investigation. Zudaydah’s lawyers filed an action in U.S. federal district court seeking to serve certain former CIA contractors with information about his detention to appear for Polish depositions and produce documents regarding the detention facility and Zudaydah’s treatment. The government intervened and invoked the state secrets privilege to quash the subpoena in its entirety. To support its privilege claim, the government submitted a declaration from the CIA stating that the contractor’s response would confirm or deny whether Poland cooperated with the CIA, and that would significantly harm national security interests.

In the Court of Appeals for the Ninth Circuit (9th Circuit), the court granted the government’s state secret request in part. But it held the privilege did not apply to information already publicly known, disclosures from the CIA contractors because they were not employed by the government and therefore the government would not be confirming nor denying anything, and three other categories of information. 

Why did the Court grant the government’s request to invoke the state secrets privilege?

  • First, the Court noted that in Zudaydah discovery request, 12 of the 13 documents requested contain the word “Poland” or “Polish,” and if the contractors acknowledge the existence of documents responsive to those requests, it effectively acknowledges the existence of a detention facility there. In other words, if Zudaydah got what he requested, the government would confirm whether it had a detention site in Poland.
  • Because any responses to Zudaydah’s discovery request would confirm or deny whether there was a detention site in Poland, the Court held that all the information was protected by the privilege.
  • In invoking the privilege, the CIA director stated that the detention site needed to be kept secret because the Agency’s counterterrorism efforts rely on clandestine relationships with foreign intelligence services. These services are a critical intelligence source used to collect intelligence and thwart terrorist attacks. Moreover, these relationships are sensitive and based on mutual trust that the existence and nature of the relationship will not be made public. To disclose such relationships would breach that trust, have serious negative consequences, and prevent the U.S. from engaging in these efforts with other countries. The Court agreed with the CIA about the seriousness of this information and recognized that no contrary evidence rebutted the CIA’s claim.
  • While the Court agreed with the government that information known to the public can still be a state secret, the key question is whether the government has confirmed the validity of the information. Here, the government had not.
  • The Court disagreed with the 9th Circuit’s determination that the contractors were not government employees so their testimony would not require the government to confirm nor deny the information. Rather, they worked directly for the CIA and their confirmation or denial would be tantamount to the CIA disclosing the information because Zudaydah believed they personally interrogated him and played a central role.
  • Near the end of the opinion, the Court noted Zudaydah’s need for the information was not great. The need to find out that the interrogation happened in Poland was only secondary to his need to find out what happened there. Moreover, some of the information he was seeking is publicly available from other sources; and the government might allow him to send a declaration to Polish prosecutors, subject to a security review.

Justice Clarence Thomas’ concurrence in the judgment joined by Justice Samuel Alito

  • Justice Thomas fundamentally disagreed with how the Court applied the Reynolds framework. Specifically, it was wrong for the Court to first analyze the government’s reasons for invoking the privilege.
  • The first step in a Reynolds analysis is the party’s need for the information. If the need is dubious, the privilege claim prevails without judicial inquiry into the basis of the government’s claim. A party’s claim is dubious if there is an available alternative to the material. 
  • If a party shows a strong need for the information, the Court then asks if there is a reasonable danger military secrets are at stake; and in camera review of the documents (i.e. the court reviewing the material to confirm the government’s concern) is only a last resort. In all cases, the Court must give deference to the Executive Branch’s assessment of national security threats, see Egan (above).
  • Here, the Court wrongly asked if the government had a valid reason for the privilege, and then evaluated the government’s reasons for invoking it. At step two, it questioned Zudaydah’s need for the information. This was backward. Zudaydah’s claim should have been dismissed as soon as the Court determined his need for the information was dubious, and that should have been the first thing the Court did.

Justice Brett Kavanagh’s concurrence joined by Justice Amy Coney Barrett  

  • Justice Kavanaugh’s concurrence argued that after the government invokes the privilege, the Court must “determine that the circumstances indicate a reasonable possibility that state secrets are involved.” Moreover, those circumstances are usually self-evident. This might be referred to as Reynolds step 0.
  • If state secrets are involved, that usually ends the case because the party seeking information will often show only a dubious need, and courts should not engage in a further inquiry otherwise. Bizarrely, the Court did not apply Reynolds this way, and yet, Justices Kavanaugh and Barrett joined almost the entirety of the opinion.

Result: Zudaydah was not entitled to any of the requested information because the government properly invoked the state secrets privilege; and any responses to his discovery request would confirm or deny whether there was a detention site in Poland, which would jeopardize U.S. counterterrorism efforts and lead to negative consequences for U.S. relationships with foreign countries that are premised on keeping the relationships secret.

Federal Bureau of Investigation v. Fazaga. 9-0 result.

Facts: Yassir Fazaga, Ali Malik, and Yasseer Abdel Rahim, three Muslim men in southern California, alleged that the Federal Bureau of Investigation (FBI) illegally surveilled them because of their religion. They believed that the FBI directed a confidential informant to gather information about Muslims, and was instructed to infiltrate their Muslim community and gather phone numbers, emails, video recordings inside mosques, homes, and other private locations of Muslims. They filed a class action lawsuit against the United States, the FBI, and several FBI agents arguing they violated their rights under the Establishment Clause, the Free Exercise Clause, the RFRA (see above), the Fourth Amendment, the Federal Tort Claims Act, and several others.

In response, the government moved to dismiss all claims under the state secrets privilege, and Attorney General Eric Holder filed a declaration invoking the privilege. Specifically, the privilege applied to information that could confirm or deny whether a particular individual was or was not the subject of an FBI counterterrorism investigation, information that might reveal the initial reasons of the investigation, and information that could reveal sources and methods used in the investigation. In addition, a high-ranking FBI official filed a declaration explaining why disclosure of any of these things would cause significant harm to national security. 

The 9th Circuit reversed the District Court’s dismissal of the claims with respect to a claim brought under the FISA Act. The court held that Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance. See 50 U.S.C. § 1806(f). FreedomWorks signed onto an amicus brief supporting Fazaga’s claim.

Why did the Court hold that the state secrets privilege was not overridden by the FISA Act?

  • First, the text of the FISA act weighed heavily against displacing the privilege because the statute makes no reference to the privilege. It does not mention it by name or otherwise. This absence was a strong indication that the privilege was not altered in any way. When Congress wants to abrogate well-known privileges, it must do so clearly. It didn’t here.
  • Second, in many cases where the provision at issue is triggered, the privilege will be irrelevant or not invoked. The provision is likely to come into play when the government seeks to use FISA evidence in a judicial proceeding, and the government won’t invoke the privilege to prevent itself from using the evidence. Because many people subject to FISA surveillance are unaware of it, it is rare, if ever, that an aggrieved person would use this statutory provision.
  • Moreover, there is no clash between the statutory provision at issue and the privilege because both involve fundamentally different inquiries. Under the statute, a court must determine the lawfulness of the surveillance; but when the privilege is asserted, the key question is whether the disclosure harms national security interests, not whether the evidence at issue was lawfully obtained. The privilege cannot be defeated arguing that the evidence was lawfully obtained.
  • The relief that both offer is also different. Under the statute, a court cannot grant relief to a claimant if it finds the evidence was lawfully obtained. In contrast, a court considering the privilege can order the disclosure of lawfully obtained evidence if it finds disclosure does not affect national security.
  • Finally, the procedures used to evaluate the information are different. Under the statute, there can be a review in camera and ex parte (i.e. the court can review the information, and the government can make its case without opposing counsel present) of materials necessary to determine whether the surveillance was lawful. But under the privilege, there are circumstances when the judge is not required to review the information if the government shows a reasonable danger that the information involved would significantly harm national security.   

Result: A provision of the FISA Act authorizing a court to determine the lawfulness of government surveillance in camera and ex parte if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States does not displace the state secrets privilege because the act does not mention the privilege, the act is compatible with the privilege, the act and the privilege provide different forms of relief, and they involve different procedures. 

Administrative Law—Immigration

Biden v. Texas. 5-4 result with a concurring opinion by Justice Brett Kavanaugh; a dissenting opinion by Justice Samuel Alito joined by Justices Clarence Thomas and Neil Gorsuch; and a dissenting opinion by Justice Amy Coney Barrett joined by Justices Thomas, Alito, and Gorsuch.

Facts: In late 2018, then-President Trump’s Department of Homeland Security (DHS) announced the Migrant Protection Protocols (MPP). It provided that certain non-Mexican nationals arriving by land from Mexico would be returned to Mexico to await the results of their removal proceedings. Mexico agreed it would cooperate with MPP. Under the Immigration and Nationality Act (INA), DHS has the authority to return aliens arriving by land from a foreign territory contiguous with the U.S. back to that territory to await further proceedings. By December 2020, DHS had enrolled 68,039 aliens in MPP.

On President Biden’s first day in office, the Acting Secretary of Homeland Security wrote that MPP would be suspended pending further review of the program. President Biden also signed an executive order directing DHS Secretary Alejandro Mayorkas to review MPP and determine whether to terminate or modify it. On June 1, 2022, Secretary Mayorkas issued a memorandum officially terminating MPP.

In response, Texas and Missouri sued, arguing the repeal of MPP violated both the INA and the Administrative Procedure Act (APA). A federal district court in Texas enjoined (prevented) DHS’s termination of MPP, and vacated the June 1st memorandum terminating the program. The injunction required DHS to implement MPP in good faith. In response to the lawsuit, Secretary Mayorkas provided a four-page memorandum announcing the termination of MPP with a thirty-nine page addendum explaining his reasoning in response to the district court’s order.

Why was the Department of Homeland Security’s repeal of President Trump’s Migrant Protection Protocol lawful?

  • Relying on 8 U.S.C. § 1225(b)(2)(C), the Court noted that DHS is not required to return aliens back to the territory from which they entered the United States. Rather, the language reads “[i]n the case of an alien…who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory…” The law specifically gives DHS discretionary authority to implement MPP.
  • The discretionary nature of the law is confirmed by the historical context. The provision was adopted in 1996, more than 90 years after federal law added other language that could be read to require DHS to keep MPP. Moreover, longstanding practice of the Immigration and Nationality Service was to require some aliens arriving at land border ports of entry to await their exclusion proceedings in Canada or Mexico. Congress responded to this by adding “may” to ensure that this practice was not required.
  • Since the statute’s use of “may” was enacted 26 years ago, every presidential administration has interpreted it as discretionary. Moreover, congressional funding is often well short of what would be required to detain all land-arriving inadmissible aliens at the border, but no administration has ever returned all aliens it could not detain.
  • In addition, interpreting the law to require MPP would entangle the Court in foreign policy as it would require the Executive to engage in direct diplomacy with foreign heads of state (in this case Mexico or Canada). 

Justice Brett Kavanaugh’s concurrence

  • First, he noted that six justices agreed with the merits of the Court’s opinion as Justice Barrett dissented only on a jurisdictional question as she believed the Court should not have heard the case.
  • Under his view of the INA, when there is insufficient detention capacity, DHS can grant aliens parole into the U.S. or choose to return them to Mexico. Every president since the late 1990’s employed the parole option; and because immigration law gives the president broad discretion, each administration can choose to exercise that authority differently.
  • Finally, the question of whether the termination of MPP violated the APA was not before the Court and will be answered by the U.S. Court of Appeals for the Fifth Circuit on remand. However, if the president determines that returning aliens to Mexico was not feasible for foreign policy reasons, courts should be deferential to that judgment under the APA.

Result: President Biden’s termination of President Trump’s Migrant Protection Protocols did not violate the Immigration and Nationality Act because while the law gives the Department of Homeland Security discretionary authority to return inadmissible aliens from a foreign territory contiguous to the United States back to the territory to await further proceedings, it does not mandate that the Department do so.

Administrative Law- Major Questions Doctrine 

NFIB v. OSHA. 6-3 result with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

Facts: Almost two years into the COVID-19 pandemic, the Occupational Health and Safety Administration (OSHA) promulgated an employer vaccine mandate that required employers with 100 or more employees to require their employees to be vaccinated or tested once a week at their own expense and wear a mask in the office. Employers were required to check their employees’ vaccination status and keep test results on file. The penalty for a standard violation was $13,653, and $136,532 for a willful violation. OSHA estimated its mandate would apply to 264,000 businesses and cover almost 85 million employees. Of those 85 million employees, 52.5 million of them were vaccinated while 31.7 million were not.

The statute OSHA relied on for this authority allowed OSHA to promulgate a regulation with immediate legal effect if the Secretary of Labor found “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger.” See 29 U.S.C. § 655(c)(1).

The National Federation of Independent Business (NFIB), a host of other businesses and associations, as well as many states sued OSHA, arguing the mandate was unlawful. FreedomWorks wrote a comment signed by 2,300 activists against the mandate, and provided an analysis of the Court’s decision here.

Why was OSHA’s employer vaccine or test mandate unlawful?

  • First, the Court held that the major questions doctrine applied (although it did not use its name) because the mandate affected 84 million Americans, it was not an “everyday exercise of federal power,” but was a “significant encroachment into the lives—and health—of a vast number of employees.” See slip opinion at 5-6.
  • Because the major questions doctrine applied, the question was whether the statute OSHA relied on (see above) “plainly authorize[d]” the mandate. The statute did not because it allows OSHA to enact occupational workplace safety standards. In contrast, OSHA’s mandate was a broad public health measure not tied to an occupational danger.
  • OSHA’s argument failed because it would allow anything to be regulated as many of the same dangers employees face in the workplace, they face out of it, like air pollution or many communicable diseases. Thus, OSHA’s mandate was not tied to an occupational hazard but was tied to the fact that employees face danger in the workplace. This reasoning was backwards. 
  • The Court agreed that with occupational specific COVID-19 risks, OSHA has the power to regulate–such as where the virus poses a special danger because of the features of an employee’s job or workplace. This included researchers who work with the virus, or those working in crowded or cramped environments. But it does not include every single employer with 100 or more employees.
  • Finally, the Court noted that in the half century OSHA has existed, it had never adopted a broad public health measure of this kind. The lack of precedent was a sign that OSHA had exceeded its statutory authority.

Result: OSHA’s COVID-19 employer vaccine mandate that required employers with 100 or more employees to require their employees to be vaccinated or tested once a week was unlawful because the statute did not plainly authorize the mandate, the mandate was a broad public health measure affecting the lives of 84 million Americans, and the statute allowed OSHA to regulate only occupational workplace hazards, and COVID-19 was not specifically tethered to the workplace.

Biden v. Missouri. 5-4 result with a dissent authored by Justice Clarence Thomas joined by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett, and a dissenting opinion authored by Justice Alito joined by Justices Thomas, Gorsuch, and Barrett.

Facts: Almost two years into the COVID-19 pandemic, the Secretary of Health and Human Services (HHS) announced a rule that facilities (i.e., hospitals, nursing homes, ambulatory surgical centers, hospices) receiving Medicare and Medicaid funds must ensure their staff is vaccinated. The rule provided a medical and religious exemption and did not reach staff that telework full-time. Facilities that did not comply with the rule would incur monetary penalties, denial of payment for new admissions, and/or termination from the Medicare and Medicaid programs. In other words, the rule essentially required recipients of funds to fire employees or contractors that were not vaccinated. 

Under federal law, the Secretary has general authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged. See 42 U.S.C. §1302(a). One function is to ensure that healthcare providers protect their patients’ health and safety. Federal law also allows the Secretary to promulgate, as a condition of a facility’s participation in Medicaid and Medicare, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” See Id. § 1395(x)(e)(9). Relying on these authorities and others, the Secretary conditioned the facilities’ Medicare and Medicaid participation on compliance with the vaccine mandate.

Why did the Court uphold HHS’s vaccine mandate for employees in facilities that participate in Medicare and Medicaid?

  • First, the Court took a broad view of the Secretary’s authority from the statutes cited above. Under those statutes, the Secretary has broad authority to impose conditions on Medicaid and Medicare recipients, especially when it comes to the safety of individuals who are furnished services in the program. Because the Secretary determined that mandating the vaccine would substantially reduce the likelihood employees would contract the virus, the Court deferred to his determination.  
  • Because Medicare and Medicaid recipients have always had to satisfy a host of conditions to receive funds, this requirement was not much different. And the Secretary has routinely imposed conditions of participation that relate to the qualifications and duties of healthcare workers. While the vaccine mandate went further than the Secretary had gone before, he had never been required to address a problem of this scale before.
  • The mandate was not surprising because vaccination requirements are a common feature for healthcare workers in America. Most, if not all, are required to be vaccinated against hepatitis B, influenza, measles, mumps, and rubella. 

Justice Clarence Thomas’ dissent joined by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett 

  • Justice Thomas fundamentally disagreed with the Court’s statutory argument. The primary focus of the statutes HHS relied on dealt with the administration of Medicare and Medicaid, which encompasses the management and direction of the programs. For the mandate to be valid under the statute, there needed to be a nexus to the management of both programs.
  • The rule here required at least 10 million healthcare workers to receive a vaccine that cannot be removed when they leave their shift. The connection of this rule to the operation of Medicare and Medicaid was “at most a tangential one.”
  • The other statutes that HHS argued allow them to promulgate this rule did not add up to a vaccine mandate because at most they constituted smaller or not noteworthy statutory provisions.  A vaccine mandate would be such an important detail, however, that Congress would have expressly authorized it. Moreover, Congress expressly authorized a vaccine mandate for Peace Corps volunteers, so it knows how to write the provision. See 22 U.S.C. §2504(e).
  • Finally, Justice Thomas believed that the major questions doctrine should have been implicated because the mandate is significant. It altered the balance between states and the federal government and required millions of healthcare workers to choose between losing their jobs or accepting a vaccine they rejected. Because Congress did not expressly authorize the mandate, the mandate should be unlawful.

Result: HHS’s COVID-19 vaccine mandate requiring facilities that receive Medicaid and Medicare funds to ensure their staffs are vaccinated against COVID-19 was lawful because HHS has broad legal authority to impose conditions on these recipients when it comes to the safety of individuals that receive services in the program, HHS routinely imposes conditions on the qualifications of healthcare workers, and the mandate was not surprising because vaccination requirements are a common feature for healthcare workers in America.

West Virginia v. Environmental Protection Agency. 6-3 result with Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

Facts: In 2015, the Obama Administration’s Environmental Protection Agency (EPA) promulgated a transformational rule called the Clean Power Plan (Plan). It sought to combat climate change by reducing carbon dioxide pollution from new and existing power plants. The goal was by 2030 that the nation’s overall mix of electricity generation would going from 38 percent to 27 percent coal and be replaced by renewable energy like solar or wind. According to the EPA, this shift would cost billions of dollars in compliance costs, render  dozens of coal-fired plants useless, and terminate tens of thousands of jobs across different sectors. The EPA believed that 42 U.S.C § 7411(d), a rarely-used statutory provision, gave it this extraordinary power. But the Plan never went into effect as the Supreme Court blocked it in 2016 in a 5-4 vote before Justice Scalia’s death.

The Trump Administration’s EPA repealed the Plan and implemented its own—the Affordable Clean Energy (ACE) Rule. Several states sued the EPA, arguing the repeal of the Plan was unlawful; and the ACE Rule was also unlawful. The U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) vacated the repeal of the Rule and remanded back to the EPA for further consideration. The Biden Administration’s EPA asked the D.C. Circuit to put a hold on its ruling so the Plan would not immediately go into effect. Finally, petitioners that supported the repeal of the Plan, and those that opposed it, asked the Court to hear the case to decide the lawfulness of the Plan. 

Why was the Obama Administration’s Clean Power Plan unlawful?

  • In outlining the major questions doctrine, the Court stressed that “our precedent teaches that there are ‘extraordinary cases’ that call for a different approach cases in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority.” See slip opinion at 17.
  • In surveying several cases where the Court applied the major questions doctrine (but did not say so by name), the Court explained that in each case, there was a colorable textual basis for the government’s argument; but given the various circumstances, it was highly unlikely that Congress had afforded the agency the power it believed it had. Rather, when Congress wants to give an agency sweeping power, it must do so clearly, not through vague terms or modest words. This is necessary out of respect for the separation of powers and to make clear legislative intent.
  • The Court explained that the major questions doctrine has gained prominence because of “an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we.” See slip opinion at 20.
  • This was a major questions case because the EPA argued it could restructure the American energy market, it found new authority in a statutory provision rarely used, and Congress had repeatedly rejected attempts to enact this plan in the past. As a result, the Court looked at the Plan with serious skepticism that Congress had given the agency the authority it claimed it had.
  • Previous EPA’s believed that the statutory provision was limited to ensuring the efficient pollution performance of each individual regulated source. If a source was operating at that level, EPA’s job was done. Under the Plan, however, EPA could demand much greater reductions in emissions simply because it determined that it would be better if coal made up a smaller share of the national electricity generation. 
  • There was no reason to think that Congress granted the EPA the authority to enact the plan. Indeed, EPA had admitted this when it requested special funding from Congress in 2016. It is also highly unlikely that Congress gave the EPA discretion to determine how much coal-based generation there should be in the coming decades because of the political significance of such a decision and the political tradeoffs that would accompany it. 
  • Finally, Congress had considered plans like the Plan and refused to adopt a similar cap-and-trade scheme or set of state cap-and-trade schemes for carbon. Congress  also rejected other plans to amend the Clean Air Act that would create a plan like this one.
  • After determining the major questions doctrine applied, the Court asked the EPA to point to “clear congressional authorization” that allowed it to enact the Plan. None existed.

Result: The Obama Administration’s Clean Power Plan that required a dramatic reduction of carbon dioxide pollution from new and existing coal power plants was unlawful. The Court applied the major questions doctrine because the plan was one of political and economic significance as it significantly restructured the American energy market based on rarely-used statutory provisions, and Congress had repeatedly rejected similar proposals. Therefore, because there was no clear statutory basis for implementing the plan, it was unlawful. 


As stated above, cases on the shadow docket are different from those on the merits docket. In these cases, the Court is being asked to reverse the lower court for a short period of time while the case is ongoing. Depending on the case, the Court is either being asked to put an injunction back in place, or to remove an injunction. It takes five votes to grant relief, and some justices do not publicly say how they voted. For example, if three justices dissent, we do not know the five that voted to grant relief. We know only that five of those six, or perhaps all six, voted to grant relief. Unless every justice goes on record, the only way we can learn how each justice voted is if four justices dissent, thereby identifying  the  five who supported relief . However, if five go on record granting relief, that does not tell us how the remaining four voted unless they all publicly dissent.

When considering granting relief, the Court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” See Nken v. Holder (2009). Out of these factors, the first, whether the applicant is likely to succeed on the merits, is by far the most important.

RELIEF DENIED (the Court kept the lower court’s order in place)

First Amendment Free Exercise of Religion

In the Court’s October 2019 and 2020 terms, there were several COVID-19 shadow docket cases over governments either completely closing or severely limiting how many people could go to church while allowing other places like casinos, grocery stores, clothing stores, malls, etc., to have at or near capacity. At the beginning of the pandemic, the Court refused to grant these churches relief with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh always dissenting. In South Bay United Pentecostal Church v. Newsom (2020), the Court denied relief when California told churches that they could limit capacity to 25 percent or 100 attendees, whichever is lower, even though secular businesses like factories, offices, supermarkets, restaurants, shopping malls, etc. were not subject to the rule. In Calvary Chapel Dayton Valley v. Sisolak (2020), the Court denied relief when Nevada told churches that they could not admit more than 50 people, but casinos and other businesses could admit 50 percent of their maximum capacity. So a church with capacity of 500 could admit 50 while a casino with that same capacity could admit 250.

In the Court’s 2020 term, after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, things dramatically changed. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the Court granted relief. The rule at issue limited churches in red zones to 10 people while essential businesses had no limits; in orange zones, churches could not admit more than 25 while non-essential businesses had no limits. Applying Smith, the Court held that New York’s rules were neither neutral nor generally applicable, and therefore unconstitutional. In two other cases from California, South Bay United Pentecostal Church v. Newsom (2021) and Tandon v. Newsome (2021), the Court reached the same result regarding similar policies. 

In Tandon, the Court explained that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” See slip opinion at 1. The key from Tandon is that if the government treats a comparable (or the same) secular activity more favorably than religious exercise, the action is unconstitutional. Applying that rule in Tandon, the Court held California’s policy that prevented more than three households from gathering for in-home prayer and Bible studies was unconstitutional because California did not cap how many people could enter a home for other activities.

Importantly, in Fulton v. City of Philadelphia (2021), the Court’s most prominent religious liberty merits decision in October Term 2020, the Court did not cite the comparable secular activity rule from Tandon. It is unclear whether that rule will be applied outside of the COVID-19 shadow docket cases. 

John Does 1-3 v. Mills. Justice Neil Gorsuch wrote a dissenting opinion joined by Justices Clarence Thomas and Samuel Alito.

Facts: In August 2021, Governor Mills of Maine announced that healthcare workers must be vaccinated against COVID-19. Employers that refused to enforce this law would have their business licenses revoked. While there was no religious exemption, there was a medical exemption. 

A physician that operated a medical practice and eight other healthcare workers sued, arguing that the mandate violated their sincerely held religious beliefs because of what they viewed as the impermissible connection between the vaccines and cell lines of aborted fetuses. The U.S. Court of Appeals for the First Circuit held that Maine’s mandate did not violate the Free Exercise Clause.

Justice Amy Comey Barrett’s concurring opinion joined by Justice Brett Kavanaugh

  • In shadow docket cases, Justice Barrett and Justice Kavanaugh believe that one of the factors the justices need to consider along with the likelihood of success is a discretionary judgment over whether four justices are likely to grant review in the case (the Court needs four justices to agree to grant certiorari).
  • Based on that, Justices Barrett and Kavanagh denied relief because they did not think there were four justices who would support certiorari, and this was the first case to address this question.

Why would Justice Neil Gorsuch have granted relief?

  • Relying on Smith (see above), because Maine’s program allowed for individualized exemptions for medical reasons but not religious reasons, strict scrutiny applied. To receive a medical exemption, employees must produce a written statement from a doctor arguing that the vaccine “may be” medically inadvisable. No explanation as to why was required, nor must the reason be a valid medical reason.
  • Relying on Tandon, strict scrutiny applied because Maine treats a secular activity (exemption from the vaccine for medical reasons) greater than religious exercise (exemption from the vaccine for religious reasons). 
  • While Maine recognized that unvaccinated employees could take alternative measures like protective gear and regular testing, it refused to extend those precautions to those seeking a religious exemption. Maine did not argue that unvaccinated employees for medical reasons are less likely to spread COVID than those not vaccinated for religious reasons, nor that protections for medical exemptions will work better than for those seeking religious exemptions.
  • Justice Gorsuch also argued that the majority of states have provided a religious exemption and there was no good reason for Maine not to grant one.

Result: The Court denied relief, allowed Maine’s COVID-19 vaccine mandate to go into effect, and later denied the petition for certiorari (petition on the merits) with no noted dissents.

Dr. A v. Hochul. Justice Clarence Thomas would have granted relief; Justice Neil Gorsuch wrote a dissenting opinion joined by Justice Samuel Alito.

Facts: In August 2021, then-Governor Cuomo of New York announced that healthcare workers must be vaccinated against COVID-19. There were two exemptions—medical and religious. However, after Governor Cuomo resigned, Governor Hochul quickly changed course and removed the religious exemption. There was no discussion or reasons given for removing the exemption. New York also altered its unemployment insurance scheme so healthcare workers that failed to comply with the mandate would be ineligible for unemployment benefits. In December 2021 (when the case got to the Court), New York was one of three states (see Maine above) without a religious exemption.

Twelve days before the mandate took effect, Governor Hochul explained why the exemption was removed. There is no “sanctioned religious exemption from any organized religion,” organized religions were “encouraging the opposite” and “everybody from the Pope on down is encouraging people to get vaccinated.” Speaking to a different group, she explained, “[h]ow can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media.” And the day before the mandate went into effect she exclaimed, “All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.” See slip opinion at 4.

Several doctors and nurses sued arguing without a religious exemption, their Free Exercise beliefs were violated “because their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing.” See id. at 2.

Why would Justice Neil Gorsuch have granted relief?

  • First, relying on Masterpiece Cakeshop (see above), Gorsuch explained that when there is suspicion or concern that government officials enacted a policy because of religious hostility or animosity, the policy or action is unconstitutional. Here, while Governor Hochul removed the religious exemption with no explanation, it was accompanied by three different public comments questioning the religious beliefs of those that believe their religion teaches them not to receive the vaccine. 
  • Second, relying on Smith’s (see above) test of neutrality, government policy cannot discriminate against religion on its face or be specifically directed at a religious practice. Here, the policy fails neutrality because based on Governor Hochul’s comments, New York intentionally targeted those with beliefs that fail to follow an organized religion. 
  • Third, relying on Smith’s (see above) test of general applicability, the policy cannot permit secular conduct that undermines the government’s interest in the same way. Here, whether a healthcare worker is unvaccinated for healthcare or religious reasons undermines New York’s public health goals in the same exact way. While New York argued more people might take advantage of a religious exemption, the Free Exercise Clause does not care. The point is that allowing exemptions for anyone undermines the government’s public health goal. It is irrelevant why the exemption is provided.
  • Applying strict scrutiny, New York’s mandate was unconstitutional; petitioners should be granted relief because 47 other states allow for religious exemptions, New York has not provided what percentage of its healthcare force needed to be vaccinated and between 90 and 96 percent currently are, and New York provided no evidence why accommodating religious objectors would make a meaningful difference to public health.

Result: The Court denied relief, allowed New York’s COVID-19 vaccine mandate to go into effect, and later denied the petition for certiorari with a dissent from Justice Thomas that was joined by Justices Alito and Gorsuch. Since the Court denied relief in December, every plaintiff in the suit has been fired, forced to resign, lost admitting privileges, or was coerced into taking the vaccine. The dissent made the same points as Justice Gorsuch but added a critical point—the Courts of Appeals are split on this question. Three said a COVID-19 vaccine mandate with no religious exemptions is constitutional while four said it was unconstitutional. 

Election Law—the Independent State Legislature Doctrine 

The U.S. Constitution contains two different election clauses. The first, found in Article I, provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…” See U.S. Const. art. I § 4, cl. 1. This clause specifically gives the state legislature authority over how to run its elections, subject to changes by Congress. The second clause, found in Article II, provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…” See U.S. Const. art. II § 1, cl. 2. This clause specifically gives the state legislature authority in how it chooses to award its presidential electors. Both clauses are important because they establish the importance of the state legislature in the arena of elections, not states generally, and not state courts.

Two Court decisions emphasize reading the Constitutional text with the focus on the power of the state legislature. First, in McPherson v. Blacker (1892), the Court explained that “[t]his power is conferred upon the legislatures of the states by the Constitution of the United States, and cannot be taken from them or modified by their state constitutions…Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.” Second, a concurring opinion by Chief Justice Rehnquist, joined by Justices Scalia and Thomas, in Bush v. Gore (2000) discussed the elections clause of Article II:there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them… the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance…. In order to determine whether a state court has infringed upon the legislature’s authority, we necessarily must examine the law of the State as it existed prior to the action of the court.” Thus, McPherson and the concurrence in Bush both stand for the proposition that the state legislature has constitutional significance in the election space with respect to federal elections. The actions of state courts or executives that infringe, hamper, or prevent the laws that a state legislature passed from being given full effect raise serious constitutional questions.

That brings us to the 2020 election. There were two different cases—one from Pennsylvania and the other from North Carolina–that implicated the independent state legislature doctrine (ISL), but the Court did not grant relief sought by the legislature. In Pennsylvania, the law allowed all voters to vote by mail, but those ballots needed to be received by election day to be counted. In March of 2020, during the height of the pandemic, the legislature addressed other election issues but did not change the requirement that ballots needed to be received by election day. The Pennsylvania Supreme Court, under the Pennsylvania Constitution’s Free and Fair Elections Clause, held that ballots received three days after the elections needed to be counted.

When the Republican Party of Pennsylvania asked the Court for a stay of the Pennsylvania Supreme Court’s ruling, the Court split four-four with Justices Thomas, Alito, Gorsuch, and Kavanaugh ready to grant relief. Later, the Republican Party of Pennsylvania asked the Court to grant certiorari; it didn’t, but it held on to the case. Justice Alito wrote a statement joined by Justices Thomas and Gorsuch arguing that the Pennsylvania Supreme Court had violated ISL. “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.” See slip opinion at 3 (Statement of Alito, J.).

In the summer of 2020, the North Carolina legislature reduced the absentee ballot witness requirement from two to one, enabled voters to request absentee ballots online, increased funding so the State’s in-person and absentee voting infrastructure could withstand the pandemic, among other things. But the legislature kept the deadline for receipt of absentee ballots in place; they must be received no later than three days after the election. The State Board of Elections extended that three-day requirement to six. The Court denied relief to the legislature, but Justice Thomas would have granted it. Moreover, in a dissent by Justice Gorsuch joined by Justice Alito, he argued that ISL had likely been violated, and the Board’s authority over elections extends only so far as to not conflict with state law. 

Moore v. Harper. Justice Samuel Alito wrote a dissenting opinion joined by Justices Clarence Thomas and Neil Gorsuch.

Facts: As a result of the 2020 census, North Carolina gained a seat in the U.S. House of Representatives. In response, the North Carolina legislature drew a new congressional district map twice. Both were rejected by the North Carolina Supreme Court as purportedly violating the North Carolina Constitution’s Free and Fair Elections Clause. However, that clause has existed since 1776, and before this case, had never been interpreted to prohibit partisan gerrymandering. In fact, in 2015, the North Carolina Supreme Court explicitly denied that it could engage in a partisan gerrymandering analysis for lack of a judicially manageable standard. 

Members of the North Carolina Legislature sued, arguing the State Supreme Court violated ISL because it decided the “Manner” in which the State’s congressional elections would be held. 

Justice Brett Kavanaugh’s Concurrence

  • Instead of granting relief on the shadow docket, Justice Kavanaugh believed that the better route was for one of the parties to petition the Court to grant certiorari so the arguments could be fully laid out with full briefing and oral argument.
  • In denying relief, Justice Kavanaugh stuck to his view that federal courts should not get involved in election-related controversies in periods close to elections. That was satisfied here because the primaries were roughly two months away.

Why would Justice Samuel Alito have granted relief to the North Carolina legislature?

  • Justice Alito reiterated his comments on ISL from the Pennsylvania and North Carolina cases in 2020 above.
  • Members of the legislature should have been granted relief because “if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.” See slip opinion at 4 (Alito, J., dissenting).
  • Moreover, if the legislature is likely to win in this case, it would be wrong to run an entire congressional election in 2022 based on the State Supreme Court’s map later held unconstitutional.

Result: In denying relief, the Court permitted the congressional redistricting map the North Carolina Supreme Court believed passed muster under the North Carolina Constitution’s Free and Fair Elections clause to go into effect. However, the Court later granted certiorari and the case will be heard this term.

Administrative Law—Immigration

United States v. Texas. Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson dissenting.

Facts: In September 2021, the Department of Homeland Security (DHS) released a memorandum outlining its enforcement guidelines for civil immigration law. First, the guidelines noted the importance of prosecutorial discretion (i.e., not enforcing the law to the fullest extent) in this area because DHS does not have the resources to seek the removal of the more than 11 million illegal immigrants in the United States. Second, the guidelines outlined the civil immigration enforcement priorities. The categories it prioritized are (A) threats to national security (i.e., suspected of terrorism); (B) threats to public safety because of serious criminal conduct; or (C) threats to border security (i.e., apprehended at the border or port of entry). Third, the guidelines establish that DHS cannot consider an alien’s race, religion, gender, sexual orientation, gender identity, national origin, or political association in deciding whether to remove them. Moreover, how an alien exercises his or her First Amendment rights also cannot be considered. In sum, the memorandum stresses the need not to enforce immigration law unless DHS encounters an alien(s) that fits a category for prioritization.

Texas and Louisiana sued, arguing that the guidelines violated federal immigration law. A federal district court in Texas held that the guidelines were unlawful, and the U.S. Court of Appeals for the Fifth Circuit (5th Circuit) refused to grant the government relief from the ruling. However, Arizona, Montana, and Ohio sued in a different court, and the U.S. Court of Appeals for the Sixth Circuit held for DHS. In response to the 5th Circuit’s ruling, DHS sought relief from the Supreme Court, which did not grant it. 

Result: In a 5-4 vote, and Justice Jackson’s first, the Court denied DHS’s request to allow it to enforce its immigration priorities. No justice in the majority or minority explained their reasoning. In denying relief, the Court also granted certiorari and the case will be heard this term.

RELIEF GRANTED (the Court overturned the lower court’s order)

First Amendment Free Exercise of Religion

Austin v. U.S. Navy Seals. Justice Clarence Thomas would not have granted relief; Justice Samuel Alito wrote a dissenting opinion joined by Justice Neil Gorsuch.

Facts: In late August 2021, Secretary of Defense Lloyd Austin released a memorandum requiring “full vaccination of all members of the Armed Forces under Department of Defense authority on active duty or in the Ready Reserve…” In November 2021, the Navy released guidance that if any service member had not received one shot of the COVID vaccine by November 28th, he or she would receive a general discharge. While the policy purportedly allowed for religious exemptions, the guidance also stated that servicemembers, if denied an exemption, had five days to receive a vaccination or they would be processed for discharge.

The Navy’s policy allows for medical objections—some permanent, others temporary. To date, it has granted 19 permanent and 189 temporary exemptions for active duty servicemembers, and 3 permanent and 65 temporary for Ready Reserve service service members. In January 2022, the Navy admitted that over 99 percent of servicemembers are vaccinated. Of the 4,244 pending requests for religious exemptions, however, none have been granted.

For those who apply for a religious exemption, the Navy employs a 6-phase, 50-step process. At step 1, an administrator fills out a completed template denying an exemption with the same rationale. After the disapproval letter is written, it is sent to 7 offices to review. After the offices review the letter, the administrator prepares an internal memo to Vice Admiral John Nowell asking him to sign the letter disapproving the religious exemption. At step 35 the administrator is told to read the religious accommodation request for the first time, even though the disapproval letter has already been written, the disapproval letter has been reviewed by several officers, and an internal memo signed by the Vice Admiral denying the exemption has been drafted. At no point in the process is the administrator given the opportunity to recommend anything other than disapproval. 

A handful of Navy SEALS and service members sued under the Free Exercise Clause and RFRA (see above) arguing this policy is unconstitutional and illegal. A federal district court in Texas agreed and enjoined (prohibited) the Navy from enforcing the policy. FreedomWorks wrote about that opinion here. The 5th Circuit affirmed the district court’s ruling. The Navy then appealed to the Court. 

Justice Brett Kavanaugh’s Concurrence

  • Relying on the president’s Commander-in-Chief power under Article II, Justice Kavanaugh believed that he should be given the utmost deference on questions of military and national security affairs. Moreover, courts should not second-guess complex decisions based on professional military judgment. The vaccine mandate entails both issues.
  • Justice Kavanaugh then accused the district court of “insert[ing] itself into the Navy’s chain of command, overriding the military commanders’ professional military judgements. See slip opinion at 2.
  • Finally, even assuming that RFRA (see above) does apply, Justice Kavanaugh believed that the Navy would survive review because of its “extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel… [a]nd no less restrictive means would satisfy that interest in this context.” See id.

Why did Justice Samuel Alito disagree with granting the Department of Defense’s request?

  • First, Justice Alito described the onerous 50-step process for receiving a religious exemption, recognizing that not until step 35 does anyone in the process have authority to grant one. Moreover, he questioned whether an approval template even exists as none was supplied by the Navy to the Court, and none was provided to any courts below.
  • Applying RFRA, while the Navy has a compelling interest in preventing COVID-19 infection, the Navy has less restrictive means of achieving its goal. First, there is no evidence the Navy considered anyone’s religious objection. Second, the relief sought by the Navy was overbroad. The Navy needs to show the reasons for its mandate “in light of the present nature of the pandemic, what is known about the spread of the virus and the effectiveness of the vaccines, prevalent practices, and the physical characteristics of Navy Seals and others in the Special Warfare community.” See slip opinion at 6, (Alito, J., dissenting).
  • Alito favored giving the Navy some relief in prohibiting unvaccinated SEALs from going on certain missions, but the government asked the Court to allow it to use vaccination status with respect to deployment, assignment, and other operational decisions. This relief is too broad and likely allows the Navy to do just about anything short of discharge, i.e.,putting unvaccinated sailors in a room pushing paper or reading manuals until the litigation ends.
  • On the service members’ free exercise claim, the Navy should lose as well because it treats a secular activity via a medical exemption more favorably than it does religious exercise for those seeing a religious exemption. While both permanent and temporary medical exemptions have been granted, no religious exemptions have been.

Result: In reversing the 5th Circuit, the Court allowed the Navy to use “vaccination status in making deployment, assignment, and other operational decisions…” The case now continues in the 5th Circuit, which will hear arguments in the coming weeks and likely render a decision in the late fall.

First Amendment Freedom of Speech

NetChoice v Paxton. Justice Elena Kagan would not have granted relief; Justice Samuel Alito wrote a dissenting opinion joined by Justices Clarence Thomas and Neil Gorsuch.

Facts: In the spring of 2021, the Texas legislature passed, and Governor Abbot signed into law HB20. Among other things, it prohibits social media platforms with 50 million users in the United States in a month from discriminating against users based on viewpoint. In other words, platforms like Facebook, Twitter, Instagram, and YouTube can decide what topics are discussed on their platform, but once they do, they cannot discriminate (i.e., deplatform) against users because of their  viewpoints on the topic. This general rule is subject to certain exceptions. Platforms are also required to establish procedures so users can appeal a platform’s decision to remove their content.

A federal district court in Texas enjoined (prohibited enforcement) the law, arguing it violated the platform’s First Amendment rights. The 5th Circuit reversed that ruling but did not explain why.

Why did Justice Samuel Alito vote to deny relief?

  • First, Justice Alito recognized the uniqueness of the situation. Not only is the Texas law of recent vintage, the business model of the platforms–that allows users to speak while claiming they do not agree or endorse any of the speech they host–is also of recent vintage.
  • The dissent recognized that First Amendment precedents are conflicting. In some cases, a law requiring private entities to host speech was permissible; in others, it was unconstitutional.
  • However, those precedents have never been applied by the Court to the internet. Moreover, the law applies to social media platforms that claim they do not endorse the ideas they convey and thus are arguably similar to phone companies or cable operators. Texas also argued the 50-million-user requirement was enough to reach only platforms with “some measure of common carrier-like market power…” See slip opinion at 4. (Alito, J., dissenting). 
  • In addition, the platforms’ argument that  they are like newspapers and enjoy an unfettered right of editorial discretion to remove content or users for any reason (or no reason) should be viewed skeptically.  Under 47 U.S.C. § 230 (Section 230), the platforms have argued for years that none of the speech on their platform is theirs, and they serve merely as neutral, non-discriminatory hosts for third parties.
  • In conclusion, Justice Alito asserted that his views on this question are not yet settled, and because of that reason, granting relief at this early stage was unwarranted.

Result: In a 5-4 vote, the Court enjoined (prohibited) Texas from enforcing HB20. After several months, the 5th Circuit held in a lengthy written opinion that HB20 does not violate the First Amendment, and has lifted the Court’s injunction. It is likely there are four justices that will vote to grant cert on this question and it will be argued and decided this term.