Advisory Opinions - Little Sisters 2: Vacated and Remanded

Episode Date: July 9, 2020

The Supreme Court has released two more religious liberty rulings into the world. Our Lady of Guadalupe School v. Morrissey Berru ended up being a blow to employment discrimination laws in favor of First Amendment religious liberty concerns. In Little Sisters of the Poor, the Court upheld a regulation allowing employers with religious objections to ignore the Affordable Care Act's birth control mandate. David and Sarah take a closer look at both cases, and on the battle between religious liberty and gay rights, David shares his theory on the emerging pattern from the Supreme Court. Show Notes: -Monmouth poll on Trump’s slim reelection chances. -Our Lady of Guadalupe School v. Morrissey Berru SCOTUS opinion, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission case from 2012, Utah compromise, Obergefell v. Hodges, fairness for all law, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Bostock v. Clayton County. -Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania ruling. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and I wish listeners you could see right now, Sarah and I have on our desks a red siren that is rotating to signify Emergency Advisory Opinions Podcast. Massive religious liberties decisions rendered on a day that the Supreme Court doesn't ordinarily render decisions. And yeah, we could have waited. We could have waited till our podcast taping tomorrow morning. We could have done that. But that is not what the people want. What the people want is analysis now. So here's what we're going to do. We're going to talk about the Guadalupe decision that

was just handed down, Little Sisters of the Poor decision that was just handed down. I'm going to spin for you a unified theory of what is happening that I think is being vindicated in real time. But before we do that, we're going to get into a little polling just just for a little political spice at the start of this podcast. And then we're going to dive into two incredibly consequential religious liberty decision decisions that are going to have a huge impact on our American culture war going forward. So, Sarah, will they? I well, you know, it'll just mean that our culture war might be exclusively over masking from now on. We'll see.

We'll be leaving by... No, I think it's going to have an impact. Okay. We'll, yeah. We'll get into it. We'll get into it. All right, but before we do that, Sarah, you're our numbers person.

You're our former math major. You have some polling that is of interest. Yeah. So look, we're in July. November is November. Yada, yada, yada. All the caveats that I normally give about polling and why it is a good snapshot, why it's a bad snapshot, and what we don't know. But here's what I found interesting today. In Pennsylvania, Michigan, Wisconsin, Florida, the president won by less than four points in all of those states. And the third-party candidates, Jill Stein, for instance, took about 1% to 3% in those states, which is all to say, um, that is very small, but important. Like, uh, to quote the Patriot aim small, miss small.

Right. So Monmouth comes out with a poll today that shows that in for basically third party candidates, not going to be a thing in 2020 for a few reasons. Obviously in 2016, Jill Stein was a bigger name and the, uh, libertarian candidates were, you know, former governors, Gary Johnson. Um, what's the other guy's name? Who was his VP? Oh, uh, Johnson Weld. Yes, yes. Weld. So, you know, here we are in 2020, and basically the appetite for third-party candidates has just dropped off. People see this as a two-party race, and really, as we discussed on the Dispatch podcast,

people see this as a one-party race, a one-person race. This is a referendum on Donald Trump. The Economist YouGov poll today saw that a majority of voters see this as voting for or against Donald Trump and not really for or against Joe Biden at all. So the Monmouth poll said that for candidates who have an unfavorable view of both candidates, which in 2016 was actually a decent predictor that they would vote for a third party or that they would vote for Donald Trump. Donald Trump won those voters in 2016.

This time around in 2020, Joe Biden leads those voters 55 percent to 21 percent. David, that's if that holds. I mean, there's just no if that holds Trump as to quote Jonah in the Dispatch podcast, Trump is toast. Of course, the really important part of that sentence is not so much Trump is toast. It's if that holds. That's right. And, you know, back in 2016, it was a referendum on Trump through most of October. I remember the Access Hollywood tape, but there were plenty of other things

that made it a referendum on him. It was when Jim Comey gave that next press conference. In those last few days, it became a referendum on Hillary Clinton. And then Trump pulled ahead with the people who disliked both candidates. The rest is history. So for me, it's not that these numbers

will necessarily hold through November. Not at all. Right. But as long as it's a referendum on Trump, that's the number they should be looking at. 55-21 if it's a referendum on Trump for voters who dislike both candidates. Yeah, that's fascinating. And, you know, it felt like with 2016 that whoever had the last bad news cycle was going to lose. Because they both were extremely disliked presidential candidates. Extremely disliked.

The two most disliked candidates in American political history. Right, exactly. And I think Biden has more of a cushion than Hillary because I'm sure his negatives, his unfavorables will go up as negative campaigning really gets into swing later in the year. But he's beginning with a greater reservoir of goodwill, I believe, than Hillary Clinton. And there's just not the visceral reaction to him. Right. There's just there's not like a, you know, decades long buildup of thoughts and feelings about Joe Biden. True. Very, very true. Well, Sarah, after that little tiny taste of politics,

shall we move on to the main event? Oh, let's do it. So your choice, Little Sisters of the Poor or Guadalupe, which one first? Oh, gosh. So let's just summarize them both. The reason on my top 10 list that Guadalupe was number seven and Little Sisters was number eight, and so I will go in that order today, was that really the Little Sisters case I thought might become just a well of administrative procedures act love that is pretty difficult to follow and may not have a lot of implications moving forward outside of the APA, which I know our listeners are very into APA law at this point, almost as much as they're into severability. But I'm not that into APA law until we get down to Chevron or ouruer and we're ready to overturn those, which we did not do today. So let's start with Guadalupe. All right. This is why David loves this case so, so much. Was this your favorite case of the term? I can't remember if this was my favorite. If it was not my favorite, it was number two. It was definitely one or two without

question. So this is a question of what types of employees at religious schools and institutions are exempted from employment discrimination laws. We're dealing with two teachers at two different Catholic schools. Both claim to be fired for reasons that would have been covered by employment discrimination laws. One said age. The other said disability because she was getting treated for breast cancer. Neither school required its teachers to be Catholic. And both classrooms, the teachers

did teach some religion out of workbooks or textbooks that they've been provided. They both prayed with their students, brought them to church, to the chapel, or prayed in the classroom, but said they didn't lead the prayer necessarily, but prayed alongside them. And this all was like the extension of a 2012 case called Hosanna Tabor, which was pretty similar. Also a Catholic school, also a teacher. Lutheran. Lutheran. Sorry. Sorry. Lutheran. Don't restart the wars of religion, Sarah.

Oh my gosh, sorry. But in that case, the teacher, it was far more clear that that teacher was a called teacher, as they described it, not a lay teacher. She had the title of minister. That one was like the obvious case. And then now we're getting into some more of the gray areas. Eight years later, fun times. So who gets the exception of being a minister? At the arguments, you know, really, it was very clear it was going to turn on Hosanna Tabor and what that test was. And you and I had a nice discussion over titles versus what the person does. And I believe we talked about a concurrence in that Hosanna Tabor 2012 opinion that was written by

one Samuel Alito. Yes. Well, guess who wrote today's opinion? That would be one Samuel Alito. And it will not surprise listeners to hear that Samuel Alito very much liked his concurrence from 2012. In fact, he cites it. And it's kind of delightful. He actually cites Thomas's concurrence from that case first. And it's like, Justice Thomas had this great concurrence. Here's what it said, blah, blah, blah. And the next paragraph is, there was another concurrence. And it just doesn't really mention who wrote that concurrence, but it's him. So self-citation is fun when you're a Supreme Court justice. So the opinion is seven, two Kagan and Breyer join the five Sotomayor in Ginsburg dissent. Uh, Thomas and Gorsuch,

by the way, have, um have a concurrence that they write that we can get into a little bit. But here's the line. Here's the punchline from the whole case, David. Yes. Quote, what matters at bottom is what an employee does. Yes.

So he says titles, for instance, are neither necessary nor sufficient. And he goes through a lot of other things that are neither necessary nor sufficient and says the Ninth Circuit misunderstood our decision in Hosanna Tabor. Both panels treated the circumstances that we found relevant in that case as a checklist of items to be assessed and weighed against each other in every case. And the dissent does much the same. Snap, snap, snap. Spicy Alito? A little bit spicy. I thought,

especially when it came to the ninth circuit, I, if you read between the lines, it looks like he believes that the ninth circuit intentionally misapplied the Hosanna Tabor analysis, whether they did or not. I don't know. Um,

so, and he also does, I thought maybe not as well tackle the pushback that one of the teachers, for instance, said that she was not a member of this faith. Right. And why that wasn't even like really part of the analysis moving forward. He discounts that shouldn't have any real weight. And he said, would the test depend on whether the person is no longer considered himself or herself to be a member of a particular faith? Or would the test run on whether the faith tradition in question still regarded the person as a member in some sense?

Was Guadalupe supposed to interrogate the teacher in this case to confirm that she attended mass every Sunday? I mean, okay, but, you know, it does seem, it seems to have some relevance, right? Like, we're just not looking at that anymore. He had a, there were lots of footnotes, by the way. So many footnotes. Yeah. But footnote 26 really took on the dissent. So if you want to see, you know, if you go read the dissent in this case,

and then you want to see the pushback, go to footnote 26. And this one I did find pretty persuasive. The footnote says that you should have to have a leadership position. Sorry, the dissent says that you should have to have a leadership position. And he's pretty clear that, like, well, what about a nun or a monk? Like, they clearly would be part of any ministerial exception, but are they leaders of their organization? Well, no, probably not. And then why isn't a religious teacher regarded as a leader of the students in the class? And so he discusses why basically each of the dissent's proposed tests doesn't work, though the dissent is very clear that his test doesn't work because it's not a test at all. It's just deference. And that gets us to the concurrence by Thomas

signed on by Gorsuch. Because Thomas's point is, yep, you're right. It's not a particularly great test because what we should be doing is simply deferring to the religious organization's good faith claims that certain employees' position is ministerial. We're kind of parsing some fine stuff here because Alito's test is, are they ministerial? And Thomas's test would be, does the religious organization have a good faith claim that they're ministerial? At some point, I think those collapse onto each other. There's a high degree of overlap, but they're not identical. They're not.

They're not. Right. But, you know, if you're not a lawyer who's super into this, don't be concerned that you think those might be the same test. Okay, last thing. Interesting note on the dissent.

Sotomayor, and by the way, in Little Sisters, the line is the same test. Okay, last thing, interesting note on the dissent. Sotomayor, and by the way, in Little Sisters, the line is the same, 7-2 with Sotomayor and Ginsburg dissenting. So we're dealing with some very similar jurisprudential outcomes here. Sotomayor, I thought it was interesting, used the term unfair in her dissent many times. This sweeping result is profoundly unfair. The inherent injustice in the court's conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours. One must hope that a decision deft enough to remold Hosanna Tabor to fit the result reached today reflects the court's capacity to cabin the consequences tomorrow. Fairness and unfairness is, I think, an interesting dynamic

going on in the progressive left right now versus due process speech issues. And so it struck my ear, interestingly, in 2020 in a way that it might not have in, for instance, 2012 when Hosanna Tabor first came out. David, okay, I've given a very

long summary. This is your Christmas, if you will. Yeah, and let me explain why. So, Hosanna Tabor, in my view, is one of the most overlooked yet most important recent Supreme Court decisions involving the Bill of Rights in general and the First Amendment specifically. Because essentially what it does is it says that, yeah, okay, we have this expanding administrative state. We have this, you know, we're trying to, we're introducing increasing amounts of regulation into all kinds of nooks and crannies of life. But there are still some places where the church is sovereign. And this goes back, in my view, to really some of the founding principles and founding realities of this nation.

I mean, when you're talking about people fleeing religious persecution to come to these shores and the primacy of the first, you know, the primacy of the rights in the First Amendment, you know, in a position of real importance so necessary that there are those who wouldn't want to ratify the Constitution unless the First Amendment was there. And then the core, the core of religious liberty, if religious liberty means anything, it has to mean that a church selects its own ministers. That's what it has to mean. And yet employment law kept growing and growing and growing and growing and growing in scope.

And what Hosanna Tabor did was said, 9-0, and this is something really important to remember, 9-0, no, not here, not in the core part of the sovereignty of a religious body, the selection of its ministers. Now, because of the facts of Hosanna Tabor, it was a relatively easy case. That 9-0 is quite telling. I mean, this was a person that, although that wasn't an actual pastor, it was a called teacher. So it was a very, there was a combination of title, training, et cetera, all the little ducks lined up in a row. But the reality of American religion is not that ministers are so easily defined. The reality of American religion is,

in particular, in Protestant American religion, is that ministers are defined by their function, is that ministers are defined by their function, not by their title. And so what had to happen after Hosanna Tabor, what had to happen is we had to get a further refinement of that definition. And so to me, the way it was refined in this opinion reflects reality. And that reality is that people are defined

not by titles, not even by training. I mean, the number of storefront churches, Sarah, you can find in this country where the pastor who is up there in the pulpit every Sunday has not taken a single theology class in their life cannot be counted. The number of youth leaders, of student groups, of the number of people who are leading evangelistic ministries. Now, whether that's wise or not, whether that's smart for a religious movement to have so many people who've had zero theological training thundering from the pulpit, that's another discussion. But the fact of the matter is that in American religion, religious function is decided by function, not by title.

And what I think is really heartening about this decision is, A, it recognizes the reality of free exercise as it is exercised, but also it's 7-2. This wasn't a 5-4. It wasn't 9-0. I never expected it to be a 9-0 because it wasn't one of those perfect little 9-0 cases with all the ducks lined up in a row. But it was a 7-2. And this is a point that I've been making for some time, which is when you're talking about core liberties protected by the First Amendment, frequently the majorities in the Supreme Court are much broader than you think. And that much broader than sort of like the popular imagination suggests,

which lasers in on the 5-4 decisions, like Guadalupe, for example. But we have had 7-2 here that I think is a very significant 7-2. So that's why, in a nutshell, I feel like this is a decision that recognizes the meaning of the original public meaning of the First Amendment and not just the free exercise clause, but also

the establishment clause, because that's what a lot of people forget. Hosanna Tabor rested on the interlocking interplay between free exercise and establishment, and that there was an establishment clause concern raised if the state began to get involved in employment decisions involving ministerial employees. So to me, what we're talking about here with this case, Sarah, is this is free exercise as free exercise exists in the United States. That's why I thought this was so important. That's why the 7-2 majority is so heartening to me. And now, to be very, very, very clear, this does not mean in any way, shape, or form

that I think that a religious school should be firing teachers when they get cancer or that religious schools should be firing teachers when they get old. That is wrong. That's bad. They should not do that. They should receive, if those are the actual facts, if that's what actually occurred, because we're going by allegations,

if that's what actually occurred, there should be strong criticism. But there is a difference between bad and wrong and unlawful. And I think the court drew the right line here. Let me make two points from the argument. So Justice Thomas, his question that he raised that I found most interesting to your free exercise and establishment point, would exactly what these teachers were doing be a violation if they did it in a public school? Wouldn't that be a violation of the establishment clause? And so that's not the line that they drew here. That's not the test. Um, and so that's not the line that they drew here. That's not the test, but it's an interesting thought exercise that, you know, the teachers were praying next to their

students. Okay. They weren't leading the prayer. If that's a violation of the establishment clause, do we then necessarily put it into this free exercise bucket of a ministerial exception? Um, an interesting question too. And this was very much in the Thomas Gorsuch concurrence, Justice Gorsuch at argument talked a lot about entanglement, judicial entanglement with religion, an inquiry into how important the plaintiff's religious belief is or how central it is to their faith. Wouldn't that cause, you know, entangle courts and making religious judgments and discriminate against minority religions that may have views about what's important that are unusual or different from our own? Doesn't your argument create just exactly the sort of entanglement problems that we've tried to avoid elsewhere and discriminate against these religions?

And that's really what their concurrence was about. So I'd be interested whether you were maybe disappointed that that concurrence didn't get more votes. No, no. Results matter to you. What's the old Southern lawyers saying, Sarah? Pigs get fat, hogs get slaughtered. I'm not greedy. I'm not a greedy man. This decision is good. It is fine. It's better than fine.

It is good. Sure, are there ways in which it could have been better? Yeah, maybe. But the bottom line is, if you're a religious school and you have teachers involved in a religious function, they're going to be brought under the ministerial exception. The amount of fear and concern out there in the American, particularly the evangelical community, parts of the Catholic community, that our religious schools were in danger, has at a stroke been relieved. At a stroke. Because

if you're a semi-competent headmaster and you have a semi-competent board, what you do is you sit down and you read this decision and you open up the employee handbook and you match the decision and you match the handbook and your core, your ministerial employees are going to enjoy all of the religious liberty that they're entitled to and that they need to carry out their religious function. And so I think that that's why, yeah, at the margins, would I change this paragraph or that paragraph? Really, you know, at that point, it's kind of splitting hairs. So, you know, when I originally approached this case, I absolutely thought it was a problem that these schools, that these religious institutions in

general, basically were just going to get a free pass out of employment discrimination laws because it will affect thousands of people across the country that are now not protected by those laws. And the dissent takes that very much to heart, and you can go read that. But I guess at the end of the day, I am left thinking that, yeah, I mean, I think anyone who says that this is not a blow to anti-discrimination laws is fooling themselves and simply wants to justify the outcome. It is. It's a huge blow to anti-discrimination employment law protection. Yeah, I think there's no doubt about that. Yeah. But the court has simply prioritized religious freedom over anti-discrimination employment laws. And if you accept that and think that, you know, and grapple with that and decide like, well, these two are in conflict. And so the First Amendment is the First Amendment for a reason. And so, yep, we are simply

going to protect free exercise over other compelling interests that we may have as citizens, as a government, et cetera. But that's the way this had to come out. I think I'm more satisfied with that. Well, and also to remember, this is not the primacy of the First Amendment over anti-discrimination laws in all contexts. That's correct. I mean, we have Newman v. Piggy Park going all the way back to the civil rights era that says if you're trying to assert a religious liberty interest as a private employer, a non-religious employer or a non-religious business establishment to engage in racial discrimination, no. That was under strict scrutiny that the Supreme Court just kind of laughed that off that that no, if you're running a restaurant, you can't deny service to people on the basis of race and then claim your faith told you to do that. So there are certain this is a this is a when you're talking about religious employers with employees engaged in core religious functions. Yes, it's a blow to nondiscrimination laws. However, it's in a limited context.

And Sarah, you know what? That is a perfect segue to my grand unifying theory. Yes. Are you ready? Okay, you've already heard it. You've already heard it, but I now have a very compelling piece of evidence in support, an additional compelling piece of evidence.

But it's only got, it locked in, in a moment of clarity at approximately 1 p.m. Eastern time today. And that was Justice Kennedy gave us the roadmap for the next five years in the Obergefell decision. And that roadmap. Love is love is love? No, no. Different roadmap. I'm not talking about his Hallmark card ode to love part of

his decision. Because I've been trying to get Caleb, our producer, on that roadmap. The love is love is love. He doesn't have a potted plant in his apartment right now. No pets, no plants. I just feel like I should send him, you know, like unkillable,

maybe those mother-in-law plants that you really can't kill off. And with a little note that says, love is love is love, Caleb. So it is not love is love is love. By the way, he's made clear he's cutting all of this from the podcast. I saw that.

I saw that. Okay. So listeners may remember that I talked about earlier that the court after the Bostock case has said, huh, what if the court is moving us in this nation towards the Utah compromise? that it's not gay rights or religious liberty, it's gay rights and religious liberty. In secular workplaces and secular places of business, there is going to be broad non-discrimination protections. Within religious spaces, there is going to be a general hands-off principle,

more autonomy for religious organizations. That's, in a nutshell, the Utah Compromise. That, in a nutshell, is the guts of something called Fairness for All, a proposed law that's basically made it nowhere in Congress. And the reason why it's made it nowhere is the Utah Compromise doesn't make anybody happy in the two sides who are fighting over this issue. LGBT activists look at the big carve-outs for religious organizations and say, how is that fair for the employees of the religious organizations?

Religious folks look at the broad anti-discrimination protection in the secular workplace and they say, well, wait a minute. What about the religious couple who runs a small business and who wants to express their values in that business? And so it doesn't make very many people happy. But what's happening is we're beginning to see the law moving in that direction pretty decisively. And I just had this thought. This is what came back to me with absolute clarity at 1 p.m. today. It's this excerpt from Obergefell that a lot of people just dismissed as a rhetorical flourish.

So this is what Kennedy says. Finally, it must be emphasized that religions and those who adhere to religious doctrines may continue to advocate with utmost sincere conviction that by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper

protection as they seek to teach the principles. Does this not sound somewhat familiar? Teach the principles that are so fulfilling and so central to their lives and faiths and to their own deep aspirations to continue the family structure they have long revered. The same is true, he says, of those who oppose same-sex marriage for other reasons. In other words, this decision does not trump the First Amendment. Now, what is, a lot of people read that and they're like, ah, it's just, you know, dicta, who cares, whatever. But then what happens? So you have Obergefell. Then you have Masterpiece Cake Shop, 7-2, for religious liberty. Then you have Bostock, 6-3, expanding Title VII.

And now you have Guadalupe, 7-2, religious liberty. Are you beginning to detect a pattern here, Sarah? I do see a pattern. So I think what is happening is that the Supreme Court is stepping into this incredibly contentious arena and is saying, I reject the choice, gay rights or religious liberty. Instead, we say gay rights and religious liberty. That's what I think is happening. I think that's a really interesting thesis. I do not have a lot of pushback to that because i think that is what's happening and i think there's um i think that's why you see kagan joining a lot of these opinions because i think that's

exactly how she sees this uh and so in that sense she is you know carrying the kennedy flag down the field perhaps when and here's my Kaganizing theory. Okay, so I've got another one. This one might be more of a stretch. And you tell me because you know Justice Kagan. You were there in the Kagan regime in the law school. Yes. I think at a pretty fundamental level,

she believes that people of faith, conservative people of faith, and secular progressive people can in fact live and flourish together in the same community. And that one of the things that she did when she was a dean is she immediately made the environment far more hospitable to ideological diversity than it was, say, when I was there. And that there's this sort of, you know, the Kaganizing aspect of this is, I think there is a, that we do not have to play this zero-sum game. And I think in that way, she's sort of the torchbearer of that section of the Obergefell opinion.

And if you look at a lot of her jurisprudence, she's been kind of a leader in the, it's not always 5-4 on these religious liberty and free speech issues. She's going to be, when it's a 7-2, you almost always know there's a Kagan in the 7. And so I do think that there's this kind of- And note Bostock on the reverse side. Right. Right. So I think that there is an element

here. It's almost like the animating spirit, this is my stretch, but just bear with me. It's a podcast. We can engage in speculation. The same kind of animating sort of ethos and spirit that she displayed at Harvard Law School that made it a more welcoming and pluralistic place is manifesting itself in some of these opinions where the 5-4 alignment is... That 5-4 alignment is being altered. So that's my stretch.

I think that's super interesting because most people read the Kagan opinions as being highly political, and I don't mean partisan, R versus D. I mean political, you know, I'll scratch your back, you scratch mine. I'll get votes for Bostock, and then I'll, in exchange,

join with the religious liberty side as well, and, you know, that her textualism, that it's all basically this pre text to get her way. That's, you know, the wall street journal calling her the co chief justice. Um, but I think your version is actually more accurate about who she,

she sees herself as this. Isn't, um, a cynical ploy to get her way on Bostock in exchange for Guadalupe, but in fact, that she sees them not in conflict and sees sort of a flourishing on all sides that is possible to live in harmony, which you're right, was exactly what she did at Harvard when she was dean, to great effect. We were joking in the green room, we had these t-shirts made up and just said in quotes, I love the Federalist Society, Elena Kagan. And that was the joke because she actually said that, and I believe meant it because she thought it helped the law

school that we had the largest chapter of the Federalist Society that, you know, attracted these top tier conservative students. At the same time, she also very much supported the other groups on campus. And her idea was like all these thriving voices create a great academic environment. And I think she sees that for a pluralistic country and society as well. That being said, I think it is incredibly smart politically, again, political with a small court P because, uh, I think she is able to win people over to her view of that instead of having these all be five, four fraught decisions, you know, expanding the culture war into the Supreme court. I think part of what she has done is push some of that outside the Supreme court by saying, this is not a war. This is a win-win, not a zero-sum game. Yeah. When you just see case after case after case after case starting to fit

a particular pattern, you start to think, wait a minute, there might be a pattern. And when you see the same justice moving in exactly in that pattern in between kagan and briar i see kagan is much more the leader of this than briar i think that kagan kind of is briar's dispositionally sympathetic to kagan on a lot of things but i uh so you know it doesn't surprise me but i she seems like much more of a leader on the court than Justice Breyer is. Well, and don't forget, this is basically a balancing test at the end of the day, and Breyer does love his balancing tests. Oh, doesn't he, though? Doesn't he, though? So that's my grand theory. number eight on Little Sisters because in some ways it is the um it's like another good interesting example of this because the Little Sisters case pits Alito versus Kagan even though neither of

them write the majority opinion or the dissent walk us through it Sarah take us through be our guide uh I feel like Charlie and the Chocolate Factory. Like we're just opening the door to Willy Wonka's Little Sisters of the Poor Factory. So this case has been going on forever. So long. Seven years, I believe now. At least seven years. Okay.

It almost doesn't matter how we got here, but let me go through it really quickly. The Affordable Care Act is passed by Congress. All it really says is that this part of Health and Human Services called the Health Resources Services Administration is going to define what, quote, additional preventative healthcare and screenings for women means. for women means. HRSA includes contraceptive methods approved by the FDA, but it exempts healthcare plans

associated with churches from that mandate. All right? You with me so far? There's an exemption for churches. With you. Okay. But there's all these organizations

that aren't churches, like Little Sisters of the Poor. HRSA created an accommodation for those guys. Basically, you raise your hand, you opt out, and your insurance company will keep providing contraception to your employees, but you will not be paying for it, kind of, kind of. It's all mysterious.

It's a little fungible. Yeah. So the Little Sisters sue and claim that this accommodation would violate their religious beliefs because they believe that even under the accommodation they are still knowingly like getting contraceptive pills to their employees basically and the government pushes back and says, that's not a real religious objection. All you have to do is raise your hand. And for that matter,

we won't even make you raise your hand. Like, fine, you've kind of already raised your hand by suing us, let's say. So whatever. Okay, so this gets to the Supreme Court for the first time in 2016. They issue a per curiam opinion, basically directing

the parties to resolve the dispute amongst themselves. Yep. They didn't. I know that will come as a shock. Okay. 2017, Donald Trump wins the White House. HRSA now expands the original exemption, not the accommodation. The accommodation stays in place, but the exemption now includes conscientious objectors. Pennsylvania and New Jersey, who joins a little later, but it doesn't matter, sues. They get a nationwide injunction for under a lot of different theories, actually. Congress didn't let HRSA do this in the first place. The exemption can't be expanded under the Administrative Procedures Act. They didn't follow notice and comment. It's arbitrary and capricious. Also, no, we hate it.

Okay. So Thomas writes the opinion here. And short version, Thomas just says, absolutely, Congress did not provide any particular guidance. So yes, this went to HRSA in the first place. Two, there's no problem with HRSA considering the Religious Freedom Restoration Act, RFRA, because we basically told them to do that. Remember Hobby Lobby? Yeah. Remember Zubik is the 2016

work it out amongst yourself case. And we basically told them to consider RFRA. So they did consider RFRA. We're not going to tell them they can't consider it now. And then he says they followed the APA just fine in terms of promulgating this in the first place. But then, David, he stops short.

It's reversed and remanded for consideration at the lower court again. Okay. So, I mean, that's like an exhausting outcome. And thus enters Alito and Kagan. Oh, quick note on the Thomas opinion. Here's a line from it. No party has pressed a constitutional challenge to the breadth of the delegation involved here. Hint, hint, hint. Justice Thomas wishes that you had let him do some non-delegation doctrine, but you didn't.

You suck at this. You gotta love him. Okay. So Alito's concurrence, I would bring the little sister's legal odyssey to an end. And he basically says, uh, the little sisters have a,

uh, sincerely held belief, whether you, the government think that this accommodation should have violated their religious beliefs. They clearly believe that it does, which is why they were willing to go through all of this lawsuit and for seven years, et cetera. So quit arguing over whether it's a, the accommodation should violate their religious beliefs or does not violate their religious beliefs. Uh, And he also says that clearly the government

doesn't have a compelling interest or else the ACA, first of all, Congress could have spoken to it. They didn't. And it doesn't cover women who work at home. It's not in the text. It doesn't cover people who work at small businesses. So his point is, we could have

just resolved this whole case. I understand they didn't very, very technically ask us to, but at some point, this is getting silly. A woman who does not have the benefit of contraceptive coverage under her employer's plan is not the victim of a burden imposed by the rule or her employer. She is simply not the beneficiary of something that federal law does not provide. She is in the same position as a woman who does not work outside the home or a woman whose health insurance is provided by a grandfathered plan that does not pay for contraceptives or a woman who works for a small business that may not provide any health insurance at all under the ACA. He also notes that under the dissent's RFRA analysis, while RFRA requires the government

to employ the least restrictive means of furthering a compelling interest that burdens religious beliefs, it does not require the converse that an accommodation of religious belief be narrowly tailored to further a compelling interest. The latter approach, advocated by the states, gets RFRA entirely backwards. His point is, dear district court and third circuit, when this gets back to you, this better come out the right way. Right. Okay. Then you get to Kagan. And you know what, David? Not surprisingly, it's a delightful concurrence and you just enjoy reading it. She says, referring to the majority and the dissent, all the two opinions have in common is equal certainty that they are right. Try as I might, I do not find that kind of clarity in the statute. Sometimes when I squint,

I read the law as giving HRSA discretion over all coverage issues. At other times, I see the statute as putting the agency in charge of only the what and not the who. If I had to, I would of course decide, which is marginally a better reading, but Chevron deference was built for cases like these. And she basically says, when it gets sent back down, dear district court, dear Third Circuit, you should not let the Little Sisters wriggle out of this. And you should find that it was arbitrary and capricious. And so really, these two concurrences are going at each other on how this actually will get resolved on remand. And David, I think there's a chance this comes up for a third round in a couple of years.

Oh, especially if Biden wins. I mean, you know, because, uh, and Sarah, I have this, this is going to, you're going to, I'm taking out my, my, I have got a stack of albums next to, um, my desk. I'm pulling out my album on broken Congress. I'm putting the needle on. And Thomas is now like singing your song on broken Congress. There are so many great lines on broken Congress in the majority opinion. Yeah. This is my album side on broken Congress as applied to the Affordable Care Act. Why are we here again? Why will we be here again in a couple of years? The answer is Congress passed a law that did not specify,

it did not specify the kinds of coverage that are applicable, that are required, applicable to this situation. It left it to the regulatory agencies. Can I read one? Here's Thomas' singing on your album. Thus, contrary to the dissent's protestations, it was Congress, not the departments, that declined to expressly require contraceptive coverage in the ACA itself.

And it was Congress's deliberate choice to issue an extraordinary broad general directive that was in quotes to HRSA to craft the guidelines without any qualifications as to the substance of the guidelines or whether exemptions were permissible. Thus, it is Congress, not the departments, that has failed to provide the protection for contraceptive coverage that the dissent seeks. Mic drop. Exactly. On my album, that came forward in a very rich baritone. Not my voice.

So that's Thomas singing my song. Yeah, I mean, this is a case where, and I have enormous sympathy for the Alito position. This is, can this just not, can we just not stop this but part of the problem is this is bad drafting and this is goes to the one of the questions that that has been swirling around uh about do we live in this like juristocracy um and is it a problem that the court has so much power? Yes. Okay, yes.

But guess what? Guess what? It is not always, and it might not even be principally, the court's fault that it is exerting such power because statutes are poorly drafted. Statutes are not drafted. Inaction occurs at the legislative level as life rolls on and what happens you file lawsuits to handle the disputes rather than going to your legislature to fix the disputes that are arising in the course of a life in a pluralistic republic that legislature is not doing jack

or squat and so what do you do you go to court court. And guess what? Under the rules, court has to respond. Filing a complaint in a U.S. federal district court has this cardinal virtue to it. One way or another, you're going to hear from a federal judge. He might grant your request for relief. He might reject your request for relief. He might grant it in part, reject it in part, but you're going to hear from a federal judge. Or seven years later, you'll get reversed and remanded for the 50th time. Well, it goes back to that old lawyer's joke. The great thing about America is that everybody gets their decade in court. But here we are. A bad, a poorly drafted statute has put us here. And it's going to keep putting us here.

And so, uh, Sarah, let's see. It's, it's July 8th, 2020. Um,

I'm going to peg the next time we talk about little sisters as somewhere in the June 20s. Yeah. Of 2023. Oh no. Cause we'll have the circuit. We'll have a district court and a circuit opinion before that. No, no, but, oh, well, yeah, we'll talk about the district. We'll talk about probably the circuit

opinion. Yeah, we will mention the district, but once it gets back to the third circuit, yeah. So I would have said 2022, maybe. Maybe late 22. Okay. Yeah, that's fair. So see you then. See you then then sarah here's the one thing i'll take issue with though i don't think it was poorly drafted in the sense that it was very

intentionally drafted to pass the buck to the administration that they controlled at that point right the democrats in congress didn't want to take the heat for a contraceptive mandate. They thought they were passing it off to the Obama HHS, which they were at the time. Yes. And which goes to another issue of all of these people who crow and celebrate over regulatory wins when their administration is in power. I just, you know,

I'm like, you shake my dead hand. Yep. Yeah. my dead hand. Yep. Yeah. Here we are. Okay. So, and I don't think anyone should particularly care about the APA niceties of arbitrary and capricious standards, but in 2023, we'll get to it.

But David, I do have some rank speculation to share with you. But David, I do have some rank speculation to share with you. Please. So as we discussed, Alito wrote Guadalupe and Thomas wrote Little Sisters. So it's time for some bingo. Oh, nice. Oh, please. I'm already excited.

Okay. So for the May opinions, what we're getting tomorrow are the two Trump finance cases, Mazars and Vance, and whether half of Oklahoma turns out not to be Oklahoma anymore in a case called McGirt, which will be interesting if it's not Oklahoma, and it won't be that interesting

if it is Oklahoma, which is why I didn't make my top 10. Here's who's left to right. Roberts, Breyer, Sotomayor, and Gorsuch. So normally that would tell us nothing on our bingo card. But David, here's my rank speculation. Speculate. Kavanaugh ended up writing two opinions for May.

Okay. That's unusual. Not unheard of. We've seen it before, which is why my rank speculation may be silly. But one of the reasons why you might write two opinions is that a vote switched. Fine. It's a little hard to see how a vote would have switched, though. So what if instead it's that basically, that Breyer and Ginsburg simply weren't in the majority for these cases. And so the only two people left who could write are Roberts and Gorsuch.

Gorsuch is from the Tenth Circuit. He has a particular vested interest in whether Oklahoma is Oklahoma. Okay, so my purely rank speculation is Roberts is going to take both Mazars and Vance and that Gorsuch takes McGirt and that Ginsburg and Breyer

do not end up with opinions for May. Fascinating. Now, if Roberts has Mazars and Vance, then we have a couple of competing issues here. One is the sort of cautious institutionalist of Roberts saying, ooh, how much do we want to create a giant political crap storm by making Trump produce financial records in the middle of a presidential campaign

versus he's over it. He is over it. But I think there's a way to split the baby. And that is to say that there is some bar that Congress and New York for that matter, but really Congress has to jump over. And while they could have met that bar here, they didn't. And they can go back and meet it, basically, if Trump wins reelection. If you remember, the Democrats in the House just at every step of the way failed to do the smart thing that would have resulted in pinning in Roberts to on a case like this. They didn't tie it to impeachment. They explicitly exempted impeachment from their powers and were like, we're not talking about impeachment.

We're just talking about our normal congressional powers. Why? Why would you do that? Why? And then the subpoenas themselves are overbroad and underbroad. And then New York copies that subpoena verbatim, except in addition to ask for the tax returns. So I just feel like if you're a house Democrat, uh, just a huge missed opportunity.

And I'm not quite sure why they were so bad at this because I think they just saw the political like day-to-day news cycle and they were not getting either. They weren't getting good legal advice or they refused to follow good legal advice for how to tee this up in what could have just been like t-ball for the court. Impeachment, t-ball. To leaving impeachment on the side, I'm trying to think of a good analogy for the non-lawyer listeners as to the magnitude of that mistake. Imagine... It's leaving Tom Brady on the bench. I was going to say it's playing the 93 Suns and you're the Bulls without Michael Jordan. I was going to say it's playing the 93 Suns and you're the Bulls without Michael Jordan. Great minds think alike, Sarah.

You went to the football goat. I went to the second best basketball player. And yeah, I remember one of the really great pieces of advice from, again, a retired federal judge who was a colleague who taught me a lot of stuff when I was a young lawyer. And he said, if you're not going to win with your best argument, you're probably not going to win. And if you don't make your best argument, I wonder what he would say. Well, well, Mr. Retired Judge, what if I just go ahead and don't make my best argument? How's that as a strategy? Anyway, well, this is, this is, I'm fascinated by your speculation. Okay. You know, the other, there are many ways that could be wrong, but one of the ways could also be that Vance and Mazars were not consolidated cases.

They are still very much separate cases. So you could have two different justices write them. And one way to kind of, one way that this could resolve is the way that I kind of thought it would resolve after oral arguments, which is Vance gets what he wants for his grand jury, which is secret, allegedly, and Congress has to go through more hoops. is held accountable. It's not above the law. It's going to have to provide documents to a valid, validly initiated state criminal investigation, which was in, which is in line with, I think, the Clinton, the Clinton and Nixon precedents. I think that that result is compelled by those precedents, but it goes to secret grand jury. Whereas the Supreme Court says to Congress, huh, you can get them. You just got to do it the right way. And I feel like that

that might be the way, you know, that that might be the conference. That's what I'm projecting. That's my official prediction. And I've been pretty good on the official prediction, Sarah. I've been I have a very solid recent record. We also have the looming potential retirement questions that we have every term. And generally speaking, listeners, if that is to happen, it happens usually not on the same day as the last day of the term. That day is sort of considered its own day. But it usually does happen within, let's call it, five days of the last day of the term. So if you and I are talking Monday and we haven't heard anything, that to me would be a pretty good indication. And if we haven't heard anything by our midweek podcast next week, I think there are no retirements. Good call. Can I just say this? If it is a spicy retirement,

you know who would, I would hope just would then after the completion of the spicy retirement would jump on to Twitter with a spicy account. That would be fun. One day. One day. Well, and we haven't talked about this, but if there is a retirement,

are we having an emergency podcast? Oh, of course. Of course. And we'll have two red sirens. Caleb just put his hand in his head. And speaking of that, it's important to know that with this term ending tomorrow, we're putting up

this podcast as soon as Caleb can do it. Poor Caleb. Poor Caleb is like, he's like in the galley just rowing. Yeah. Caleb is like, he's like in the galley just rowing. Yeah. Could you like, can you throw like some meat down there,

Sarah, just so I can keep some? That's why I'm giving him the house plant so he has a friend. Nice. In his pandemic apartment where he hasn't been able

to leave for like four months. So we will, we will have a normal podcast tomorrow which will function also as an emergency podcast because the term ends and big, big stuff is going to be decided.

So are we foregoing our normal scintillating cultural discussion for the emergency podcast? I think so. This was just an emergency session. Yeah. We'll have a, we'll have a better one tomorrow. Yeah.

We'll have, we'll have only an hour today. Yeah. We'll make it up. Tomorrow's at least three hours. So get ready. But until then, thank you so much for listening to this emergency edition of Advisory Opinions. And we will talk to you tomorrow. Bye.