Now that the Supreme Court’s 2020 term has concluded, it is time to review it.
This was the first term we saw Justice Amy Coney Barrett, who joined the court in October 2020, in action. Hopefully it’s the last term that has telephonic oral arguments (although we hope that Justice Clarence Thomas continues to ask questions when in-person oral arguments resume).
So, what happened? What were the big cases the court weighed in on? And, how did the justices rule?
There’s too much to cover here (so watch or attend The Heritage Foundation’s “Scholars and Scribes” event), but below is a summary of five important cases the court decided.
1. Fulton v. City of Philadelphia
This religious liberty case involved a dispute between Catholic Social Services and Philadelphia. Catholic Social Services, one of 30 foster care agencies in Philadelphia, has one-year contracts with the city’s Department of Human Services. Catholic Social Services does not place foster children with same-sex couples due to the agency’s deeply held religious convictions.
Because of this, Philadelphia decided not to renew its contract and stopped referring children to Catholic Social Services. Notwithstanding the fact that no same-sex couple ever approached Catholic Social Services, or the fact that Catholic Social Services would have referred same-sex couples to another agency that would place a foster child with them, Philadelphia still described the agency’s conduct as discriminatory.
So, Catholic Social Services filed suit against Philadelphia alleging that city officials violated its First Amendment guarantee of free exercise.
The Supreme Court agreed.
But the court decided the case on very narrow grounds. Chief Justice John Roberts, writing for a unanimous court, said under Employment Division v. Smith, “strict scrutiny” applies in free exercise cases when the government fails to act in a “neutral and generally applicable” manner.
Because the city’s foster care contract gave “sole discretion” to a city official to make exceptions to the requirement that agencies include same-sex couples, the court said the city’s policy was not generally applicable and triggered strict scrutiny analysis, under which it failed.
Since the court found that the city’s policy was not generally applicable, the court did not revisit its controversial Employment Division v. Smith decision. While Justice Samuel Alito, joined by Thomas and Justice Neil Gorsuch, made a compelling case in a lengthy concurring opinion that Employment Division v. Smith should be overruled, other justices were more skeptical.
Barrett, joined by Justice Brett Kavanaugh and in part by Justice Stephen Breyer, asked, “What should replace Smith?” Barrett said the textual and structural arguments against Employment Division v. Smith were more compelling than the historical arguments cited by Alito in his concurrence.
The debate over whether Employment Division v. Smith should be overruled, as Barrett said, and what should replace it remains for another day.
2. Brnovich v. Democratic National Committee
The court decided an election law case that involved a dispute between the Democratic National Committee and Arizona. The Democratic National Committee and others challenged two provisions of Arizona’s election laws.
First, the Democratic National Committee challenged Arizona’s “out-of-precinct” policy, which provides that a ballot cast by someone on Election Day will not be counted if cast outside of that person’s assigned precinct.
The Democratic National Committee also challenged Arizona’s prohibition on ballot trafficking (often referred to as vote harvesting), which makes it a crime for anyone other than an election official, a mail carrier, or a voter’s family member, household member, or caregiver to collect and deliver someone’s mail-in ballot.
In a 6-to-3 opinion written by Alito, the court said neither of these provisions violated Section 2 of the Voting Rights Act, and that the anti-ballot trafficking measure did not violate the 15th Amendment.
While the court upheld the challenged provisions, it declined “to announce a test to govern all VRA [Voting Rights Act] § [Section] 2 claims involving rules … that specify time, place, or manner for casting ballots.”
Instead, it identified “certain guideposts” for lower courts to utilize in future cases. Specifically, the court identified five of them.
First, “[T]he size of the burden imposed by a challenged rule is highly relevant.”
Second, the “degree to which a voting rule departs from what was standard practice when § [Section] 2 was amended in 1982 is a highly relevant decision.”
Third, “The size of any disparities in a rule’s impact on members of different racial or ethnic groups is also an important factor to consider.”
Fourth, courts “must consider the opportunities provided by a State’s entire system of voting when assessing the burden imposed by a challenged provision.”
Fifth, “The strength of the state interests served by a challenged voting rule is also an important factor that must be taken into account.”
Justice Elena Kagan wrote a blistering dissent, joined by Breyer and Justice Sonia Sotomayor, accusing the majority of rewriting and weakening Section 2 of the Voting Rights Act.
With this case, the seemingly never-ending legal saga of the Affordable Care Act—more commonly known as Obamacare—continued.
When the court first heard a challenge to the Affordable Care Act in 2012, it upheld the individual mandate—the requirement that individuals have health coverage or pay a penalty—on the grounds that the penalty could be recharacterized as a tax, which Congress has the authority to enact under the taxing and spending clause.
But after Congress later removed this revenue-producing penalty from the Affordable Care Act, several states and individuals argued that the constitutional justification for the law no longer existed and that it should be struck down, along with any other provisions that were not severable from that provision. A federal trial judge in Texas and the 5th U.S. Circuit Court of Appeals agreed.
But the Supreme Court did not reach the merits of this claim. In a 7-to-2 decision by Breyer, the court held that the challengers lacked standing to challenge the law.
While the individual plaintiffs claimed an injury in the form of past and future payments to comply with the minimum coverage mandated by the Affordable Care Act, the court held that this was no injury at all because the mandate is now, for all intents and purposes, unenforceable since there is no penalty for noncompliance.
The state plaintiffs claimed injury in the form of increased costs to run state-operated insurance programs. The court also rejected those arguments on the grounds that the harms claimed by the states were speculative and because increased administrative expenses claimed by the states were created by other provisions of the Affordable Care Act, not the mandate.
Accordingly, the court remanded the case to the lower courts with instructions to dismiss.
Alito filed a dissenting opinion, joined by Gorsuch, contending that the state plaintiffs had standing to challenge the individual mandate, and that it was unconstitutional.
Will Obamacare be back at the court in the future? Only time will tell.
4. Americans for Prosperity Foundation v. Bonta and Thomas More Law Center v. Bonta
In 2010, California required nonprofit organizations to submit an IRS Schedule B form, which contains the names and addresses of their major donors. Over the next five years, it sent 8,000 deficiency letters to different charities on an ad hoc basis.
Although California had promised to keep organizations’ Schedule B forms confidential, and even had a law on the books prohibiting disclosure of donor information it received, the state had a bad track record in this regard, having publicly disclosed such information in the past.
Moreover, a security breach in the state’s files also exposed the Schedule B forms that had been collected by California’s attorney general.
Two nonprofit organizations, Americans for Prosperity Foundation and Thomas More Law Center, challenged California’s donor-disclosure requirement as violating the First Amendment. They received support in the form of “friend of the court” briefs filed by a wide array of interest groups spanning the ideological spectrum.
In a 6-to-3 decision by Roberts, the court held that California’s disclosure policy violated the First Amendment because of the “chilling effect” the policy would have on individuals who might otherwise donate to or associate with the nonprofit organizations that were being forced to provide this information.
The court held that the disclosure regime was not narrowly tailored to achieving California’s stated interest (preventing fraud). The majority believed there was a “dramatic mismatch” between the state’s “dragnet for sensitive donor information” and its stated objective.
The court concluded that the state’s real interest in collecting the information was “less investigating fraud and more in ease of administration,” and that such a nebulous interest “cannot justify the disclosure requirement.”
In a dissenting opinion, Sotomayor, joined by Kagan and Breyer, contended that the challengers’ fears were unproven and likely overblown, and that the state’s claimed interest was a close-enough fit to justify the disclosure requirement.
One question that remains unresolved is whether “exacting scrutiny”—however defined by the court—or strict scrutiny should apply in future First Amendment challenges to compelled disclosure requirements.
While Roberts, Kavanaugh, and Barrett thought the former was the correct standard, Thomas contends that the latter is the proper standard, while Alito and Gorsuch were content to leave a resolution of that issue for another day.
Finally, Collins v. Yellen, a separation of powers case, involved a dispute between the Federal Housing Finance Agency and private shareholders of two mortgage loan companies, Fannie Mae and Freddie Mac.
The Federal Housing Finance Agency is an independent government agency that oversees Fannie Mae and Freddie Mac. Congress put a single director at the head of the Federal Housing Finance Agency and added a “for cause” removal restriction—meaning the president could only remove the director for certain specified reasons.
The dispute in this case revolved around the fact that, as the court phrased it, shortly “after the Federal Housing Finance Agency came into existence, it placed Fannie Mae and Freddie Mac into conservatorship and negotiated agreements for the companies with the Department of Treasury.”
One of these agreements, referred to by the parties as the “third amendment,” caused “the companies to transfer enormous amounts of wealth to” the Treasury Department. So, a group of Fannie Mae and Freddie Mac’s shareholders sued challenging this third amendment on both statutory and constitutional grounds.
In an opinion by Alito, the court held that the for-cause removal restriction violated separation of powers principles and was, therefore, unconstitutional, meaning that the president did not need a reason to fire the director.
The court stated that the statutory removal restriction “lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.” It added, “Our decision last Term in Seila Law is all but dispositive.”
Although the court held that the “shareholders’ statutory claim is barred” by the relevant provisions of the Recovery Act, which allowed the Federal Housing Finance Agency to act as conservator for Fannie Mae and Freddie Mac, the court remanded the case for further proceedings in the lower courts “to determine what remedy, if any, shareholders are entitled to receive on their constitutional claim.”
This piece originally appeared in The Daily Signal.
