Advisory Opinions - Supreme Court Dismisses Obamacare Challenge

Episode Date: June 17, 2021

The big Supreme Court rulings have finally arrived! On today’s podcast, David and Sarah discuss two unexpected majorities in California v. Texas, which upheld the constitutionality of Obamacare (again!), and Fulton v. City of Philadelphia, which unanimously protected the religious liberty of Catholic Social Services after the city of Philadelphia excluded CSS from its foster parent program for refusing to certify same-sex couples as foster parents. Our hosts analyze how the Supreme Court denied standing to the states challenging the ACA and then dive into two spicy opinions from Alito. Plus, some “palace intrigue” discussion about whether Alito was denied his chance to write a majority opinion. Show Notes: -California v. Texas -Fulton v. City of Philadelphia Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And Sarah, I'm going to start with a question. Wee-oo, wee-oo, wee-oo. Here's my question, Sarah. Go to siren. When you want to express exuberance through GIF form, is your favorite the baby

in the Pittsburgh Penguins uniform saying yes, or is it Napoleon Dynamite's brother saying yes? No, definitely neither. Those are David specific. No, neither. I do. I make songs, David. My heart sings,

and that heart song comes out. No, neither. I do. I make songs, David. My heart sings. And that heart song comes out. I suspect your heart is singing today because holy smokes. It's singing for so many reasons today. Not only did we get two of our hit parade cases, but the way they came down, even though I actually don't agree with them, was interesting, fascinating, lots of AO conversation to be had. And David, I think we can officially say that there is a 3-3-3 court as predicted on AO and that the lineup is pretty much what we said. Yeah. So there's so much to talk about. I'm safe to say, I think probably 99% of our listeners already know by the time they get this podcast in their feed that the Supreme Court decided today, California v. Texas,

better known as the Obamacare case, and Fulton v. the City of Philadelphia, which is the religious liberty case challenging Smith, but on behalf of Catholic Social Services. Both cases came down. Both cases came down with really interesting alignments. So Obamacare was upheld on standing grounds 7-2 with, in the dissent, Alito and Gorsuch. And that's it. In California v. Texas, Thomas had a concurrence. With a Thomas concurrence.

Yes. I think that's important. A Thomas concurrence. Thomas concurrence. With, of course, the three Democratic-nominated justices in the majority, along with Roberts, Barrett, and Kavanaugh. So two of the three Trump appointees voted to uphold Obamacare. So that was one, and we're going to talk about it. And the other one was Fulton v. Philadelphia, and that case was unanimous-ish,

which is remarkable. So that means it was nine justices concurred in the outcome and the result of the case on behalf of upholding the religious liberty of Catholic social services on pretty limited grounds. We're going to talk about that. We're going to talk about that. But again, that confounded a lot of people. So in other words, Kagan, Breyer, and Sotomayor, and Sotomayor voted with Catholic social services in this case. So there's so much to talk about on the outcome of the cases. There's a lot to talk about with the outcome of the cases. There's a lot to talk about with the reasoning of the cases, and there's so much to talk about with the alignment of these cases. Let's start. Wait, wait, David. What? What? You forgot our little, you know, stepchild here.

Nestle USA, Inc. Vido. That's's right the alien tort statute right yes there were three cases decided today and we'll table nestle i think well we'll table big win for child slave traffickers uh that would be the top line headline And we'll just leave that as a teaser for Monday. How about that? Sounds good. Sounds good. Okay. Sarah, do you want to launch us on California v. Texas, better known as Obamacare, the concluding episode of the Obamacare trilogy? I really do. Except is it the concluding one? This is a cliffhanger, I think. Yeah. Yeah. I mean, we'll see the box office. That's going to be determined by the box office, I think.

So true. So let's back up a little bit about what this case was. You have the individual mandate zeroed out by Congress in 2017. Zeroed out, meaning there is no penalty if you fail to buy insurance, health insurance. Well, that was a bummer for Obamacare 1. That was the Sibelius NFIB, NFIB, NFIB, I'm saying that right, NFIB case decided in 2012, where Roberts wrote for the majority of the court upholding the individual mandate as a tax. The Congress of the court upholding the individual mandate as a tax. The Congress had the power to have the individual mandate because of their taxing power. But once they zeroed out the penalty, it was no longer a tax. Therefore, states and two individuals argued it was unconstitutional now. They also argued that

you couldn't sever the individual mandate from the rest of the law. Therefore, poof, there goes Obamacare. A district judge in Texas agreed with them. The Fifth Circuit kind of went. And it went to the Supreme Court. Here's what is that? Is that a doctrine? Yeah. I mean, kind of, but they sent it back basically. And then on interlocutory appeal,

which is when you appeal something before the case has been fully resolved, uh, at the, uh, circuit level, you try to take it up to the Supreme court. There were questions of whether they would even take it on that interlocutory positioning, and they did. Well, well, well. This is a surprise maybe only to me. I will say my husband was less surprised, but I am surprised. I am surprised, too. I am surprised.

I'm not surprised by the outcome. I'm surprised by the reasoning. I'm not angry. I'm just disappointed. Okay. So let's talk about standing. We've already said this gets kicked on standing. Standing is an article three issue here. That means it's jurisdictional. That means it can't be waived. A court can reach standing on its own, regardless if the parties argue it. So let's say plaintiff and defendant both go in and they're so hot to trot arguing about their, you know, who owns the property or whatever. And no one's noticed that, you know, they have no business being in federal court. The federal judge actually not only can, but has the duty to first figure out if they have the jurisdiction to hear the case.

So it doesn't matter that the defendant never raised standing. The judge has to raise it on their own. Okay, so what are the elements of Article 3 standing? One, an injury in fact. Two, that that injury, and this becomes real important, is fairly traceable to the challenged conduct of the defendant. And three, that the injury is likely to be redressed by a favorable judicial decision. Okay, so let's walk through these. An injury in fact. Yeah, real quick, I think it's really important to emphasize this for the non-lawyer listeners. What this means is you just can't go into court if you have a legal dispute. The court is not the place that handles legal disputes. That's what they call, if that's

all that's being handled, it's called an advisory opinion. And that's what podcasts are for. handled, it's called an advisory opinion, and that's what podcasts are for. So you have to have an injury. You have to be hurt by something in the law before you're going to have your case or claim that you've been hurt by something before you're going to have your case heard. So I just wanted to get the advisory opinion. Clever philosophical arguments over scotch between lawyers do not a case or controversy make. Right. That's why you have to go find that plaintiff who actually is injured by your theoretical argument. Okay, but as I said, you have two different types of plaintiffs here.

You have states and you have individuals. David, when we talked about this case, I was actually incredibly sympathetic to the standing of the government says I must do X, regardless of whether the government then has a financial penalty if I don't do X, it's still the law. Do you know how many justices agreed with me on that? Zero. The answer is zero justices. Zero justices. I was unanimously rejected. An over. Whoa. I just want to say that clearly smart lawyers brought those plaintiffs. So I'm not totally alone, but I am alone in terms of those who wear robes. Okay. So their argument for that one is that there is no injury in fact, that one is that there is no injury in fact, that my moral injury is stupid.

They didn't say that, but they did. I mean, it's there in between the lines. Yeah, basically, once the penalty was zeroed out, it doesn't matter that they'd already bought health insurance. They could stop buying health insurance. Even if they had to spend a dollar, that would be injury. But here, they don't have to spend anything. And it would be an advisory opinion for the court to strike down as unconstitutional the individual mandate on these grounds because these people haven't actually been injured. Okay, so I disagree with that, obviously. But 9-0, I won't dwell on it. Because here's where the rubber hit the judicial robes. Get it? Ha ha.

Ha ha. The states. So the states have a interesting argument here. They argue that they've definitely been injured. No question. They have to pay tons of money every year because of Obamacare. Every state, you know, gave a little receipt of how much money we spend to comply with Obamacare every

year. Okay, so number one, injury in fact, satisfied. Check. Let's skip to number three real quick. That's that it's redressable by a favorable judicial decision. No question, right? If Obamacare is entirely tossed out, they don't have to pay this money. Check. No one disputes that and so we are left with number two that this injury quote is fairly traceable to the challenged conduct of the defendant now that's not the constitution we're getting this from other cases and we're gonna have a bit of a disagreement over what should be in those quotation marks. And what traceable means, what challenged conduct means. I mean, frankly, what defendant means. Basically, every word except is to the of the.

Those we seem to agree on. All right. But not in context. Correct. Well, we had a whole episode on the word as, so I figured, you know, we should, we should. And an episode on the word so. Yeah, that's right. So, yeah. Okay. I'm sorry. Go ahead. Okay. So the majority here, and as you said, the majority actually in terms of outcome includes

everyone but Alito and Gorsuch. We'll get to the Thomas concurrence in a moment. The majority believes that the injury has to be fairly traceable to conduct of the defendant caused by the section in question. So it has to be caused by the individual mandate. Well, that's not what's been causing the injury to these states. It's all the other provisions. Alito and Gorsuch say that's crazy town. So they point to the court quoting from an Allen case. And the quote that the majority uses is, the government's conduct in question is fairly traceable to enforcement of the allegedly unlawful provision of which the plaintiffs complain.

But Alito, what Allen actually requires, it's the actually with a K by the way, I mean, not really, but you can feel it, is, quote, a personal injury fairly traceable to the defendant's allegedly unlawful conduct. And so the question becomes, does it need to be traceable to Obamacare as a whole, or does it need to be traceable just to the provision that they claim is unlawful? The majority's point is, if you're just saying that Part C is the unconstitutional part, then all of your standing needs to be based

on part C. Your injury needs to be part C, and the states don't have an injury from the individual mandate. They have injury from parts A and B. Well, that's kind of weird, I will say, because the law is parts A, B, and C. And so the only way that you can really say that their injury, that it matters whether their injury only comes from part C, is if part C is severable. But this is where things get weird, David. Yep. Article 3 standing, as we said, is jurisdictional. You can't proceed to the merits of a case until you've determined that the parties have standing. So how are you supposed to know whether something is severable

or inseverable until you get to the merit stage? So this whole thing gets kind of jumbled. And this is Alito's point, and I find it to be incredibly persuasive if you can't tell. So I want to get your reaction to that. But also, I want to make one other point. Remember how I said that standing is like the judge or justice has to address standing before anything else, even if neither party has raised it? has to address standing before anything else, even if neither party has raised it. Well, Thomas's point in his concurrence,

and he sides with the majority, he basically is like, Alito, I love you, dude. You're my ride or die. But I gotta- Did you say, you're my ride or die? Yeah, totally. I mean, there's no other reason for this concurrence other than Alito, you're my ride or die die but I just can't go with you on this one

There's nothing in Thomas's concurrence that's like not already in the majority except the like I heart Alito that is in there Is it too Gen X of me not to know what a ride or die is? Oh David how do you know what based or cringe is but a ride or die is? Oh, David, how do you know what based or cringe is, but not ride or die? No, I didn't know what based or cringe was until I got into the based or cringe group. Okay, you're going to take a moment here and you're going to Urban Dictionary ride or die while I explain forfeiture.

Okay. So Thomas's concurrence, aside from the I heart Alito, you're my ride or die, is that the plaintiffs, he doesn't use the term forfeiture, but forfeited this argument about the inseverability, if you will, that you don't need, you can't get to whether C is severable from A or B, that they needed to argue that. Here's the problem. He's like, they didn't argue in the district court. They didn't argue in the circuit court. They didn't argue in the original brief to this court. They kind of argued it in the reply brief, but not well enough.

And we're just not the court of first review. This wasn't briefed well enough. This wasn't argued well enough. If they wanted to do this, they needed to do it down below. That is 100% the law when it comes to merits. But it is simply not the case in standing because judges have to raise standing on their own. So how can a plaintiff forfeit their standing argument if a defendant can't forfeit a standing argument? And here's the remedy. If you really don't think something was well enough brief that the issue that actually decides this case simply wasn't discovered until too late in the process, you dig it. And we've talked about this before. I am not using the 70s term, do you dig it? But DIG, dismissed as improvidently granted. So after you hear argument, you're like, oof,

bummer, but we just didn't get what we needed to. It turns out this case has an issue we didn't know about or whatever else. And you dig the case. That's what you could do if you don't think it was briefed well enough below, but you can't forfeit article three standing. No, no, no, no, no. So that is why Thomas joins with the majority and leaves his ride or die behind. And I just looked it up. It's a great, it's a great phrase. I'm just going to use it constantly now. Yeah.

So why don't you read us the urban dictionary definition? Ride or die. When you are willing to do anything for someone you love or someone you really appreciate in your life, the person who you stand by in any problem and vice versa, the term ride to the end or die trying. And here's the use in a sentence, Sarah. We are BFFs who will ride or die.

And that's Thomas and Alito right now. Not completely though. Not completely, though. He did not ride. He did not actually ride. And instead, there's Gorsuch in the shotgun seat. That's right. So let me just read this one part of Alito's point on this. And he's talking about the plaintiffs. First, they contend that the

individual mandate is unconstitutional because it does not fall within any power granted to Congress by the Constitution. Second, they argue that costly obligations imposed on them by other provisions of the ACA cannot be severed from the mandate. If both steps of the state's arguments that the challenge enforcement actions are unlawful are correct, it follows that the government cannot lawfully enforce those obligations against the state. There can be no question that this argument is conceptually sound. Imagine statute ABC. Provision A imposes enforceable legal obligations on the plaintiff. Great. Provision B imposes a legal obligation on a different party. And provision C provides that a party is not obligated to comply with provision A if provision B is held to be unconstitutional.

Based on the plain text of this law, a party subject to provision A should be able to obtain relief from the enforcement of provision A if it can show that provision B is unconstitutional. To hold otherwise would be directly contrary to the statutory text. But the court's reasoning would make such a claim impossible. The plaintiff would be thrown out of court at the outset of the case for lack of standing. All right, so that's my summary of the majority, the dissent, and a little bit of Thomas's forfeiture argument there in the middle. There's lots more to get to in this case, but David, handing it over to you for reaction. Yeah. So the outcome Obamacare upheld, I think we were both basically dismissive,

and we've been dismissive all along of the chances that Texas would win ultimately and get rid of all of Obamacare. I will admit freely that I did not see this coming on the basis of standing, especially given the extremely expansive way in which courts had granted standing to states in a number of very controversial cases before this. And so that's what I find most interesting about this decision. And I also find interesting Justice Alito, hashtag Spicy Alito, as people were already sending us on Twitter,

displeased, displeased. But I just want to read a little bit of the Alito spice. Today's decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same patterns as installments one and two in all three episodes with the Affordable Care Act facing serious threat. The court has pulled off an improbable rescue. It's as if every single movie in the trilogy ends with like a surprise cavalry charge. Wait, that is how all superhero movies end.

You think the superhero is going to lose and then, oh, look, they win. This is literally your genre, David. Oh, I know. I know. I mean, think about the end of the two towers. At the very end, here comes Gandalf with the riders of scattered riders of Rohan that he has collected, come charging over the hillside. Then the end of the return of the king, you have not only do you have the riders of Rohan charging to rescue Minas Tirith, but at the very end, when the ring goes in, the entire army of Sauron falls in. Well, anyway, we could do this all day. Anyway, but there is an improbable rescue. And at the very end of the case, I don't want to read all of these paragraphs, but at the very end of the case, Alito has this summary.

No one can fail to be impressed by the lengths to which this court has been willing to go to defend the ACA against all threats. A penalty is a tax. The United States is a state. And 18 states who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest government programs in our nation's history. Fans of judicial inventiveness will applaud once again, but I must respectfully dissent. Burn! Burn. Burn is correct. You know, it's interesting.

As I evaluate this, I found this statement from Alito to be interesting and compelling. Now, again, I've long believed that Obamacare would prevail and should prevail because after Congress reenacted Obamacare with a zero penalty, we were no longer dealing with Obamacare 1.0. We were dealing with Obamacare 2.0, where Congress had declared that the individual mandate was not necessary for the statutory scheme by zeroing out the penalty. But anyway, what I find interesting and compelling about Alito's dissent, he says,

can this be correct? So he says, instead of defending the constitutionality of the individual mandate, the court simply ducks the issue and holds that none of the act's challengers, including the 18 states that think the act saddles them with huge financial costs, is entitled to sue. Can this be correct? The ACA imposes many burdensome obligations on states and their capacities as employers, and the 18 states in question collectively have more than a million employees. in question collectively have more than a million employees. Even $1 in harm is enough to support standing, yet no state has standing? It's a pretty good question, Sarah. It's a pretty good question. And I also, what really stood out to me was exactly what stood out to you, in the majority opinion,

is they really did dive into the merits to determine standing. Which is a problem. That's not how that works. Yeah. So I found that to be very interesting. And again, after a string of cases over the last five years granting states an expansive ability, often under strained readings of damage or harm to the state. Can I read? To sue.

Can I read? Yes, read. Oh, because like, I mean, we've talked about distortion here. I think you're about to see. Which way the distortion might run? In prior cases, I'm reading from Alito's dissent. In prior cases, the court has been selectively generous in allowing states to sue. Just recently, New York and certain other states were permitted to challenge the inclusion of a citizenship question in the 2020 census, even though any effect on them depended on a speculative chain of events. The state's theory was that the citizenship question might cause some residents to violate their obligation to complete a census questionnaire,

and that this, in turn, might decrease the state's allocation of house seats and their federal funds. That was sufficient for standing. Last term, Pennsylvania and New Jersey were permitted to contest a rule exempting the Little Sisters of the Poor and other religious employers funds. That was sufficient for standing. Last term, Pennsylvania and New Jersey were permitted to contest a rule exempting the Little Sisters of the Poor and other religious employers from Obamacare's contraceptive mandate. There, the theory was that some affected employees might not be able to afford contraceptives and might therefore turn to the state-funded sources to pay for their contraceptives or the expenses of an unwanted pregnancy. Some years ago, Massachusetts was allowed to sue and force the Environmental Protection Agency to regulate greenhouse gases on the theory that failure to do so

would cause the ocean to rise and reduce the size of the Commonwealth. On the other hand, and this is an interesting sentence, David. This is the one I texted you about in Slack and was like, whoa, page four. On the other hand, when Texas recently tried to sue to press different legal issues in an original action, the court would not even allow it to file its complaint. Oh, oh, what are you talking about, Justice Alito? A different legal issue? That's delicately put. That would be Texas filing to contest the 2020 election, the Ken Paxton crazy pants lawsuit that they just filed directly at the Supreme Court and was dismissed. directly at the Supreme Court and was dismissed.

He's using this here to point out that, yeah, the court seems to be using this selectively of which cases it wants to consider. Hmm. But just to clarify, because, you know, we're dealing with very precise legal terms of art here sarah a crazy pants lawsuit is one that is most likely to trigger application of the gnaw dog doctrine correct correct and look i do think alito's being a little unfair and including that in his list yes because that was a gnaw dog like yeah sure they said that they weren't going to take it on original jurisdiction,

but that's not why. It's because it was a gnaw dog doctrine case. These other ones, though, they are tenuous. There's multiple mites. Like, do I think those should have standing? Actually, I do. But if those have standing, this definitely has standing. Alito in a different part. A plaintiff's standing, and thus the court's Article 3 jurisdiction, does not require a demonstration that the defendant's conduct is in fact unlawful. That is a merits issue. If Article 3's standing required a showing that the plaintiff's alleged injury is traceable to, i.e. in some way caused by, an unconstitutional provision, then whenever a claim of unconstitutionality was ultimately held to lack legal merit, even after a full trial, the consequence would be that the court lacked jurisdiction to entertain the suit in the first place? That would be absurd. That's his words, not mine. Absurd.

Not yours, but your emphasis. It is my emphasis added. Yeah, emphasis added. Yeah, I mean, I got to say, I think Alito's right here. Now, here's the way that you and I disagree with Alito. So we agree on standing, but Alito then goes on to consider the merits. So he's like, okay, so we have standing. So now I'm just going to write the rest of the opinion that should have been the majority. And he basically finds that it's not separable, that the entire law has to fall. And that the remedy for that is that, um, Obamacare's provisions are not enforceable against the states on that.

not enforceable against the states. On that, we disagree. Yes, disagree strongly with that one. Disagree strongly with that one. And again, I keep going back to this is not Obamacare 1.0. Congress has weighed in since Obamacare 1.0 and it has essentially ratified the existence of Obamacare without an enforceable mandate. It has reenacted, it's in essence reenacted Obamacare without an enforceable mandate. And it strikes me that it's a bit of judicial inventiveness, to use Alito's words right back at him, Inventiveness, to use Alito's words right back at him, it's a bit of judicial inventiveness to be so stingy with severability in that circumstance. But I do think, you know, it's interesting. We always go back to judges are people too. And, you know, I think Alito's exactly right about some of the reasoning in Obamacare 1.0. I mean,

Obamacare, the first case, and Obamacare, the second case, Obamacare 1 and Obamacare 2, there is an enormous amount of judicial inventiveness designed to turn a mandate into a tax and to turn the federal government into a state. Those were fascinating legal doctrines applied that upheld Obamacare. And I also think there's kind of a, maybe there's an unwritten rule here, Sarah, that there's behind this. And the unwritten rule is, if you lose politically and there is a very large federal program passed as a result, don't look to the Supreme Court to undo it. Unless it's under the Trump years, in which case, meh.

Well, which very large? No, none of those. In other words, this is a big social welfare program. Yeah, you're saying it needs to be done by the other two branches of government, not just the executive branch. I think that's a fair rule, actually. It's pretty specific, but fair nonetheless. You know, I guess you could even apply it to potentially the travel ban in a way. Right.

Travel ban. But, you know, going back to Obama years, DACA never, you know going back to obama years dapa daca never you know daca didn't make it in the obama years up to the supreme court but dapa did and well it was four four but essentially the end result was it was done even though it applied to millions of people but yeah i think what you're dealing with here is... So if the two branches do something big and it's political, yeah, don't look to the third branch to fix that. Interesting. I'm going to marinate on that, David.

Yeah, marinate on that. I think that might be the unwritten rule behind all of this. Speaking of which, let's marinate then a little on ACA. There may be some other things we want to talk about on Monday as we continue to dig through some footnotes and otherwise, but we have another huge case and we have to get to it because if you thought Alito was spicy in Obamacare, you ain't seen nothing yet. Yeah. Okay. So this is Fulton. This is a case that anyone who listens to advisory opinions knows that I believe the Darth Vader of American constitutional doctrine. Well, I would say the Emperor Palpatine of constitutional doctrine is Ro Division v. Smith, which is the case that Scalia decision, Scalia opinion, by the way, that gutted much of the free exercise clause

that the court has been sort of chipping away at ever since. And in this case, the applicability of Smith was brought straight up front and center, or the validity of Smith was brought up straight up front and center to the Supreme Court of the United States in a case called Fulton v. City of Philadelphia. services would, Catholic Social Services was one of more than 20 agencies that would certify couples for foster care services, to render foster care services. And Catholic Social Services, in keeping with the religious doctrines of the Catholic Church, would not certify same-sex of the Catholic Church would not certify same-sex couples. This is a quote from the opinion. The religious views of CSS inform its work in this system.

CSS believes that, quote, marriage is a sacred bond between a man and a woman because the agency understands the certification of prospective foster families to be an endorsement of their relationships. It will not certify unmarried couples regardless of their sexual orientation. So this is a no unmarried couples and marriage is defined as a man and a woman regardless of their sexual orientation or same-sex married couples. CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. Now same-sex, and now this is interesting, no same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of more than 20 other agencies in the city, all of which currently certify same-sex couples.

So to make a long story short, the city found out from a newspaper article that this was the policy of CSS, and then it excluded CSS from its foster care system because of that policy. sort of the home run goal of the litigants in the case was to reverse employment division v smith which holds which um holds that a religious liberty claim will fail if the challenge regulation is neutral and generally applicable um so sarah you and i we analyzed to death this oral argument and i'll say this we we missed that standing was going to be the ruling in Texas, in California v. Texas or Texas v. California. It was going to be, we missed it. It was standing. We thought it'd be severability. We nailed the outcome here. After the oral argument, it was pretty clear that a majority of the court was not going to overrule Employment Division v. Smith. They were going to protect the free exercise rights of CSS,

but they weren't going to overrule Smith. What I did not see happening is that this was going to be a basically unanimous decision in outcome, if not in reasoning. Now, what was the reasoning of the majority? The reasoning of the majority was really pretty simple. We don't need to reach Employment Division v. Smith because the city of Philadelphia's actions fail under Smith. Why do they fail under Smith? Because the rule gives the city the discretion. There is a discretion that is granted within the non-discrimination rule to grant exceptions. So if you're going to have a rule that allows for the ability of a government official to grant exceptions to the general rule, it's by definition

not generally applicable anymore. So this is actually a more specifically, a standard more specifically applied to Catholic social services. Therefore, strict scrutiny applies. And as we've talked many times, strict in theory, fatal in fact, Philadelphia is going to lose. Now, before I turn you loose on the dissents, which are super interesting, I think what was interesting about this case was less the application of Smith, which we both saw coming from a mile away from the oral argument. What was more interesting to me was how the court, which in court majority, which included Sotomayor, which included Kagan, which included Breyer, steamrolled this idea that the state was advancing, that it's going to have an enhanced ability to regulate CSS because CSS

was essentially a government contractor in a government program. And that when the government was acting as manager of a government program, it was going to have greater degree of leeway. And the court just stampeded through that, which is very interesting. It actually touches on some other issues that we can get into later. But it's very interesting. And for those of us who are concerned about liberty as sort of government grows and financial scope and reach and touches

many different areas of, you know, touches many different private contractors and private entities, the court was seeming to say here, look, the same free exercise claims are going to apply whether you're a government contractor or not a government contractor, which I think was a very interesting part of this holding. And then we turned to the dissents, which were fascinating and the alignment was fascinating a lot to really unwind there. Not dissents. a lot to really unwind there. Not dissents. Well, not dissents, concurrences.

That's important. Yes, concurrences that pretty dramatically disagreed with the reasoning of the holding. So I wonder whether, can we get to some palace intrigue? No, let's not. Let's go through the dissents and then some palace intrigue? No, let's not. Let's go through the dissents and then do palace intrigue. Concurrences. Yeah, let's do the concurrences first. Yes, yes. So, well, now you've got me intrigued on palace intrigue. Well, fine, fine. We'll do some palace intrigue.

So the opinion of the court is 15 pages long. That's incredibly short for an opinion of this magnitude. And as you said, a pretty shocking, unanimous opinion. So basically, you got nine justices to agree to these 15 pages and these 15 pages only. That's not, I mean, there's not too much to read into that. When you've got a unanimous opinion, there's only so much you're going to be able to agree on as the concurrences make quite clear. Then you've got Justice Barrett, with whom Justice Kavanaugh and Justice Breyer joins to all but one the first paragraph. won the first paragraph. We'll get to what's in that paragraph. But that's only three pages. So far, so good. It's looking like a normal opinion. But then we have Justice Alito,

with whom Justice Thomas and Justice Gorsuch join concurring in the judgment, which really should say like concurring in the judgment with like a little parentheses, but really dissenting in all caps. And here's where things get intriguing. It's a 77 page concurrence. I can't think of another time where there was a 77 page concurrence in anything like this posture where the majority opinion is so short. But David, you know my Supreme Court bingo, which everyone thinks is just like a fun game that I play? What if it's not a fun game? What if it might help us here? So this was argued in November. And as we said, the justices, generally speaking, and it's not hard and fast, November. And as we said, the justices, generally speaking, and it's not hard and fast, everyone gets one opinion per sitting. And so as we get to these hot button cases, you can see who's left to write. Well, before today, when you had Obamacare and Fulton outstanding from November, we had three justices left, Roberts, Breyer, and Alito. Breyer wrote Obamacare. He's

known that since November. That means it was always going to be Roberts or Alito writing the Fulton case. What if the 77 pages wasn't a concurring opinion? What if it was the majority opinion? And then once Roberts realized that he could get a unanimous court on a much narrower non-Smith holding, because Kagan, by the way, was never, ever, ever going to overturn Smith.

And there was going to be a fiery dissent from Justice Kagan on that topic if they did it. What if there was some vote switching? And Roberts was able to convince Barrett and Kavanaugh to come with him. In exchange, they got to write their own concurrence with Breyer joining all but the first paragraph, as we saw. And that created a unanimous opinion, 15 pages, because perhaps they didn't have a whole lot of time to write it. And perhaps there wasn't a whole lot else they could say that they could get all nine to agree on. And that left Alito holding his 77 pages of a majority opinion that no longer had a majority.

And then you get a very cranky Alito and just the last paragraph here. After receiving more than 2,500 pages of briefing and after more than a half year of post-argument cogitation, and I'm just going to underline that as my main evidence aside from the 77 pages, half year of post-argument cogitation means there was some vote changing. The court has omitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this court to stand up for the First Amendment have every right to be disappointed, as am I. So I think that is fascinating. I think that is fascinating i think that is fascinating and i can imagine something that goes a little bit like this now number one i'm going to say that this does not leave religious

liberty in a confused and vulnerable state it doesn't answer all of the religious liberty questions that are outstanding that that much i agree with, but religious liberty is on a one whopper of a winning streak at the Supreme Court. But anyway, this is interesting. Interesting. This is all speculation, y'all. This is all speculation. Because Roberts couldn't do this alone he had to have he had to have barrett and cavanaugh come with him and so if you look at justice barrett's concurrence

it says yet what should replace Smith, she asks. The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith's categorical anti-discrimination approach for an equally categorical strict scrutiny regime, particularly when this court's resolution of conflicts between generally applicable laws and other First Amendment rights like speech and assembly has been much more nuanced. What if Barrett and Kavanaugh read the 70-something pages and said,

Nodog, Nodog, I'm not all the way there with you. By the way, has there ever been a sentence that Justice Breyer loves more than I am skeptical of a categorical approach? He's like, oh, yes, tell me more, Justice Barrett. I love it. Yeah, it's funny that he explicitly does not join with the paragraph immediately preceding that but he's going to join the one that says i'm skeptical about the categorical approach for sure by the way just to quickly uh visit that paragraph that he didn't join here's why uh i find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally

applicable laws in at least some circumstances. In my view, the textual and structural arguments against Smith are more compelling. That's what he didn't want to join. He doesn't want to join anything that explicitly says that he has a vote to overturn Smith. But he's more than willing to talk about how we need a six-part balancing test with part three having four more parts. True. But the interesting thing about this is because it did not overrule Smith

and because the holding is pretty much confined to some pretty specific facts of this case, with the only really sort of notable, more sweeping holding of it being that, look, just because you create a government contracting scheme, you're not going to have sort of a free hand to deal with your government contractors, your private contractors that are part of your contracting scheme, which is important, which is definitely important. There's a lot of other cases out there. For example, Arlene's Flowers, cases that have been held in abeyance awaiting the outcome

of Fulton. And a lot of the smart money was saying that what's going to happen in Fulton is some sort of much more sweeping holding, which you would then GVR, grant, vacate, and remand Arlene's flowers. This is the one where a florist refused to do a custom flower arrangement for a same-sex wedding and send it back for essentially a redo under the newly announced free exercise standard. Well, there's no newly announced free exercise standard right now. So what happens to Arlene's flowers? What happens to there was just recently a negative ruling against Jack Phillips and another Masterpiece Cake Shop case decision.

What happens in those cases if they're coming back up with a record that is free of targeted anti-religious conduct or anti-religious state action and is where they're facing more or less, well, it'd have to be very, very much more and not at any at all less, a neutral law of general applicability, what's going to happen there? So I think the Supreme Court has punted a little bit here

on some of these cases. They punted a lot. And by the way, if you're at all sympathetic to what David just said, you and Justice Gorsuch have a lot to talk about over your next cocktails because Justice Gorsuch wrote his own concurrence. And let me just read you a portion of it. This litigation is only getting started.

As the final arbiter of state law, the Pennsylvania Supreme Court can effectively overrule the majority's reading of the Commonwealth's public accommodation law. The city can revise its FPO to make even plainer still that its law does encompass foster services, or with a flick of a pen, municipal lawyers may rewrite the city's contract to close the loophole. Once any of that happens, Catholic services will find itself back where it started. The city has made it clear that it will never tolerate Catholic services carrying out its foster care mission in accordance with its sincerely held religious beliefs. To the city, it makes no difference that Catholic services has not denied service

to a single same-sex couple, that dozens of other foster agencies stand willing to serve same-sex couples, or that Catholic services is committed to help any inquiring same-sex couple find those other agencies. The city has expressed its determination to put Catholic Services to a choice. Give up your sincerely held religious beliefs or give up serving foster children and families. If CSS is unwilling to provide foster care services to same-sex couples, the city prefers

that Catholic Services provide no foster care service at all. This litigation thus promises to slog on for years to come, consuming time and resources in court that could be better spent serving children. And throughout it all, the opacity of the majority's professed endorsement of Catholic services arguments ensure the parties will be forced to devote resources to the unenviable task of debating what it even means. I mean, yes, CEG, so many other cases that have gone up and come back down and gone up and come back down. I mean, Little Sisters. I think the Jack Phillips case is a decent example of that. Yeah.

But David, I'm curious if you think this was a case where the lawyering mattered. We thought when they went into court that they were going to explicitly and only argue that you had to overturn Smith to fine for Catholic services. And it felt like there was a little bit of a last minute switcheroo where they said, well, you don't have to overturn Smith to find in our favor. There is this other option. And the court, not surprisingly, took the narrower option. If they had said, no, Smith only, do you think A, the court would have done this anyway because they could have on their own? Or B, this was a lawyering choice where they got kind of nervous and they maybe missed the big win? So I'm really skeptical after reading the Barrett-Kavanaugh-Brier, well,

Barrett-Kavanaugh more than Breyer. I'm really skeptical after reading the Barrett-Kavanaugh concurrence that the home run was there. In which case it was brilliant lawyer in the other direction. Because the bottom line is you lawyer in the other direction. You know, because the bottom line is you go in to win your case, right? If you're a lawyer, you're representing a client, not a cause. It's something that I told young aspiring cause lawyers all the time. As soon as you take a case, your fiduciary duty, your ethical obligation is attaching to that client. And you are trying to win your case for your clientuciary duty, your ethical obligation is attaching to that client. And you are trying to win your case for your client. That is your absolute priority. And if you go in and you try to swing for the fences because the cause trumps the client in some ways,

that's wrong. That's bad. You do not do that. And so I think that the way I perceive the oral argument is that I felt like it was the kind of thing where if you're the lawyer, you put your toe in the water of the big argument and you found the water a little too chilly for your liking. And you took it right back out and you went for a more hospitable pool. And in this case, I think the low-hanging fruit here was winning under Smith. That was the low-hanging fruit. And look, the fact of the matter is that if you go back and you look at the last decade of religious liberty cases, it is not a story of home run win after home run win after home run win. It is single, double, single, double, single, double. In large part because time and time again, the state has overreached so much.

It has been so plain in its anti-religious discrimination that you haven't had to knock down Smith to win. that you haven't had to knock down Smith to win. And the Supreme Court as a general matter isn't going to knock down major doctrines if it doesn't have to to reach an outcome in a case. And so that's one reason why, on the one hand, you've had 10, 15 years of unbroken victory in support of free exercise religion. And then at the same time, people still feel sort of dissatisfied

about some of the fundamental underlying doctrines because there has not been the home run, much less a grand slam. I mean, overruling Smith, reversing Smith, and ruling for the Catholic social services here wouldn't have been a home run. I'm underestimating it. It would have been the grand slam. And so once again, you have another single. And a lot of people get upset about that. And I understand it. I mean,

Masterpiece Cake Shop was a single, arguably a double. This was a single, maybe more like a double. But a win is a win. And you can't look at these things in isolation. You have to look at them in context. And essentially what you're looking at in context is if you're going to try to limit religious liberty and rely on Smith and the neutral law of general applicability standard to support your action against a religious litigant, you better be darn sure that there is not either in law or fact any sort of exception, discretion, anything that makes it look like you're targeting religion. Because if there is, you are toast. And that's been well established at this point. So given all of this, I want to revisit another case that came out in April. This was a shadow docket case. This was the Tandon case. It was about whether California could continue to mandate churches closed under their COVID restrictions. And it was 5-4,

Roberts siding with the other three. And so you had Barrett and Kavanaugh joining in this opinion. And I just want to read a portion of it. First, 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. So in this case, if you remember, California was allowing pedicures or bars or whatever else to be open, but not churches. And what they said here is, if there's other comparable secular activities, you have to treat churches the same. So it's

what I think people have disparagingly called most favored nation status. But David, what makes this interesting for me is it came out in April of this year. They've known since November that they were finding for Catholic services. If my Smith flipping Alito concurrence theory is at all correct, what you have here is Kavanaugh and Barrett basically charting their own path of how you're going to do these post-Fulton, pre-us knowing what Fulton says, post-them knowing what Fulton says. And I would say this probably happened after they left Alito's opinion and joined in the Roberts' opinion. And interestingly, Roberts, who did not join in Tandon, it means probably never was a vote

to overturn Smith. No. No, I've never gotten the sense that Smith was truly in play for Roberts. I've always gotten the sense that Roberts was a pretty reliable vote for religious liberty with a pretty watered down... There's a difference between robust smith and anemic smith and smith has

just been getting more anemic with every ruling in in other words the ability of the state to argue that a law is neutral and generally applicable uh and and the scrutiny attached to the assertion that a law is neutral and generally applicable is just grown and grown and grown and grown. And that's been some of the source of the disagreement between Kagan and the new sort of that 5-4 majority since Barrett came on the court on some of these points is that she has just a different view. She's going to give more deference to the state, saying here's what generally applicable means. What's the universe of things that we're going to look at to say generally applicable?

But here in Fulton, she and Sotomayor and Breyer looked at the Philadelphia regime and said, look, it's not even that hard. And when you look at the facts of the case, again, as we talked about when we were analyzing the oral argument, we both said, wait a minute, this isn't necessarily the vehicle for overturning Smith because there is a path to victory, not just a path to victory applying Smith, a superhighway to victory applying Smith. Because Philadelphia had such bad facts on their side. Bad facts. They screwed this up from the get and thereby lost the case before they got into court. and thereby lost the case before they got into court. But you go back to Barrett's concurrence, the one from Fulton today. The prevailing assumption seems to be that strict scrutiny would apply

whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith's categorical anti-discrimination approach for an equally categorical strict scrutiny regime. And then you go to Tanden and, you know, it's strict scrutiny with Barrett's vote. So I guess it's not categorical under all previous Smith applications, but it looks pretty categorical. I mean, it says it's categorical whenever they, the state,

treat any comparable secular activity more favorably than religious exercise. So we've got our answer on one post-Fulton category. Yeah, yeah, absolutely. You know, so it seems to be, you know, what she, if, and the other thing about the Tandon, we're talking about, if you were going to discuss a core, the core of the core of the core of free exercise would be worship at church. You know, that this is something where if you're going to talk about state intervention into worship at church, you talk about the level of state interest there. Now, in a pandemic, obviously much greater. But when you have the situation like existed in California, where you're permitting a wide variety of personal interactions, including extended in-person close personal interactions, but not church services, that really goes to this Barrett skepticism that she says, look, should entities like Catholic social services, which is an arm of the Catholic church, be treated differently than individuals? Should there be distinction between indirect and direct burdens of religious exercise?

What forms of scrutiny should apply? And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden variety laws come out the same way? So, yeah, one of the other interesting aspects of pre-Smith strict scrutiny, it wasn't pre-Smith strict scrutiny wasn't as strict as you might think. Also true. And then you visit Kagan's descent in Tandon. I think you see that this will be the last Fulton will be the last unanimous decision of its kind on something like this in a post-Smith world. Because really, again, this came out April 9th, the Tandon decision. We should never consider it a pre-Fulton decision. It is a post-Fulton decision. And Kagan is staking out her ground in the dissent as well.

Justice Breyer and Sotomayor dissenting here with her. dissenting here with her, that what is comparable is now going to be the test for her. In this way, she says, a religious service that only allows three people is comparable to any grouping of three people in the home. And that is what California's rule was. But you should not compare it to hardware stores and hair salons. That's not the same as being at home. So the post-Fulton battle lines are being drawn, and I think everyone should just re-read Tandon post-Fulton. Right. Well, this is an interesting... Boy, so much interesting about this. I mean, one of the things, look, if you were walking into post-Barrett confirmation, post-Trump presidency saying, this is a predictable 6-3 court, well, the court has news for you. The court has news for you. The court has news for you. These are not nine automatons with an R or a D by their name who spit out, as I've called it, you know, they're not opinion bot 9000 spitting out opinions according to the desires

of their partisan, the partisans who appointed them. These are nine human beings with nine judicial philosophies, and the outcomes are not always super predictable. You know, I mean, this is something that you always have to recognize. I mean, we watch the court and read every word of the oral arguments, um, much closer than the average person. And then when I saw standing in the Obamacare case, my jaw hit the floor. I, maybe that's an exaggeration but it was certainly more than a raised eyebrow it was surprising uh when i saw the alignment and the current in the fulton case when i saw that there was not a dissent that i double raised eyebrows that was fascinating um so it's it's why

you litigate the heck out of these cases. You try not to make too many assumptions and you just got to wait and see. And it's interesting, we have turned a lot of our presidential contests into battles over what we perceive a Supreme Court will be if a president wins? And how many times, how many times does that have to not be the case before we realize that, yeah, while that's going to be a factor to put everything on that, hmm, yeah. Yeah, I see a lot of people on Twitter, you know, other people adopting our 3-3-3 court prediction, and then sort of the left saying like, well, it's, you know, three conservatives and then three like

totally insane conservatives. Okay, well, you just had a unanimous opinion in Fulton. So Justice Barrett was not the difference. Justice Kavanaugh was not the difference. And by the way, they weren't in Obamacare either. So today's not the day to be complaining about the Trump appointees if you're on the left. Well, and especially after the election contest. I mean, especially after the election contest. I mean, look, I mean, as I wrote, as I've written many times before, when you really look at it, it was the conservative legal movement and both many of the attorneys by their refusal to participate in a lot of these election contests and the judges by their decisive rejection of the election contests that in many ways saved this election and saved the peaceful transition of power because that was a 6-3 Republican-dominated court, Republican nominee-dominated court that stopped the election contest in their tracks.

So how many times do you need evidence that these folks have their own mind? But we're going to go through this all again, Sarah. We're going to go through it all again in the run-up to the gun rights arguments, and especially in the run-up to the arguments over the Mississippi abortion case, that this is all preset, this is all predetermined, it's all partisan. And just wait till they take affirmative action, which they're going to do. Hey, David, before we leave, can I just have a moment of joy that I share with you and listeners? Yes. For the first time since 1865, the United States, all of you will get to celebrate a Texas holiday. Juneteenth is going to be celebrated this year

as a federal holiday. And Juneteenth, for those of you who don't know, is the date in which the news of the Emancipation Proclamation reached slaves in Galveston, Texas. And it is such a wonderful, important holiday. And I'm so glad that it's a federal holiday as of today. This is huge. And let me just explain a little bit about why I think this holiday may beat all other federal holidays. Because, David, it recognizes this incredibly dark part of our history and our story as Americans, while also the celebration is that we were moving forward from it. We can move in a better direction. It is the Emancipation Celebration of 1865. And I think that is something that as we argue about school curriculum and about race in this country,

which I think are important conversations, all of them, all over the place. Juneteenth is a way we can, I think, come together and say, yeah, but we are still recognizing that history. We're not going to pretend it didn't happen. And we're going to find joy in that part of our history ending. Yeah, that's a great point. That's a great point. And frankly, Sarah, you Texans needed a W.

This is a good W for Texas. This is a good win for Texas. This is a great win for Texas. It's a great win for Texas because your attorney general has led the ship of Texas under the rocky shoals of the Supreme Court more than once in recent months. So this is a good, long-lasting victory for the Lone Star State. All right. Next up, Go Texan Day being a national holiday as well. I'll fight for that one, too.

The what day? Go Texan Day. It's March 2nd every year. And in Houston, it's also the day that the rodeo parades, like they shut the freeways down and you have a cattle drive on like I-45 South heading into downtown and everyone dresses up in like traditional Texas gear. And my favorite thing that has maybe ever happened is I was at the original

Nymph is on Navigation, a Houston standby. And it's Go Texan Day. Everyone's kind of dressed up. And there are clearly some out-of-towners at a table nearby. And they're saying to themselves, I just had no idea people really dressed like that down here. But it's not Halloween for us, but it's like a costume day,

you know? Yeah, yeah. So, I just think everyone would really also enjoy it if we had federal Go Texan day. I'm going to go out

on a limb and say never. That will never happen. That's so sad that you think that. I'm just not seeing it. But we're going to be back on Monday, and we literally recorded this 45 minutes

after I first began to read through Texas v. California, the Obamacare case, 25 minutes after I first started to read Fulton. So this is, I'm not going to say this is the definition of a hot take podcast. We'll call this almost like an emergency podcast, but we're going to be able to marinate in it and sit in it and think about it. So we're going to be back on Monday with more Supreme Court opinions, in all likelihood, maybe some worth talking about. We're going to actually talk a little bit about the Nestle case that we didn't mention at all.

Alien Tort Act! Woohoo! Yeah, and then we're going to have some further reflections on these cases, because, wow, there's a lot to chew on here. This is a lot. So we'll be back on Monday. More Supreme Court, more Obamacare, more religious liberty. And then, you know, there's been some interesting other court developments this week that we might have a chance to chat about. So please come back. But before you come back on Monday, rate us on Apple Podcasts, subscribe on Apple Podcasts and check out thedispatch.com. And Sarah, I'm beginning to worry about our siney die sign

off yeah i mean it's always been a little bit a little bit weird because like siney die we should use for like our very last podcast when we never do another podcast again or if we were like seasonal in our podcasting so okay i mean so if like we if we had yeah if we had season so the end of season four right of right but you know we would have i enjoyed it until we got that email i've always had some questions about it i didn't you have with you yeah i didn't share them with you i was okay i took too much joy in it but i knew that there was a problem deep in my heart. It's no, no, it's not fun anymore. Okay. Anyway, we'll think of a better sign off.

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