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SCOTUS 2021 Finale-Part 1

Supreme Court Wrap Up June, 2021 – Part One June 23, 2021


June. It’s the month considered by most Americans to be for school graduations and weddings. However, in the U.S. legal-political world, June remains the month when SCOTUS (the Supreme Court of the United States) issues its final opinions as its term ends. These decisions usually constitute blockbuster and often landmark cases. The drafts of these decisions are repeatedly argued about among the nine Justices, and often get re-written several times before they become final. The 2021 SCOTUS term finale had its share of pre-July 4th legal fireworks. Most SCOTUS observers were paying attention to how the newly “fortified” conservative High Court, with three Trump-appointed Justices, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett would align themselves. Let’s discuss the SCOTUS Justices’ views and analyze their major opinions in this and in my following blogpost.


Is the “third time the charm” for upholding the Affordable Care Act (ACA), aka Obamacare? Let’s hope so. To paraphrase Shakespeare’s “Julius Caesar,” “three times did right wing GOPers offer the Court the ‘destroyer of Obamacare’ crown, and three times did SCOTUS refuse it.” In 2012, the first general challenge to the 2010 Congressionally-passed Obamacare was heard by SCOTUS. In a 5-4 opinion, “National Federation of Independent Businesses v. Sebelius,” Chief Justice (CJ) Roberts joined his then four liberal colleagues, Justices Ginsburg, Breyer, Sotomayor, and Kagan. This SCOTUS majority upheld the power of Congress to pass this law because it viewed Obamacare’s individual mandate as a legitimate power to tax under the U.S. Constitution (Trachtman, “The Supremes’ Greatest Hits, 2016). CJ Roberts, like the four conservative dissenters in this 2012 opinion, believed that the individual mandate was not a constitutionally-permitted regulation of commerce. No other lower appellate courts had previously bought the concept that the mandate was really a tax. However, then influential D.C. Circuit Appellate Judge, Brett Kavanaugh, a W Bush appointee and friend of CJ Roberts, had written an opinion arguing for treating the mandate as a permissible tax law, not a regulation of commerce. CJ Roberts’ s 2012 opinion followed Kavanaugh’s reasoning. At the time of this 2012 SCOTUS ruling, LA Times reporter David Savage was one of the few High Court analysts who called the tax option a way to uphold the mandate and the ACA law (latimes.com, 6/25/12).


In 6/2015, SCOTUS ruled 6-3, with original dissenter Justice Kennedy joining CJ Roberts and the liberal camp, against a second attempt to destroy Obamacare. In the “King v. Burwell” opinion, SCOTUS rejected an argument by Obamacare foes that would have gutted federal subsidies that helped millions of Americans buy health insurance. Obamacare opponents pointed to words buried deeply in the 900-page ACA law that stated that subsidies were given only to exchanges “established by the State,”not federal ones.” ACA foes argued that that meant that federal exchange markets were, therefore, not viable. CJ Roberts’ opinion called such an interpretation “untenable in light of (the statute) as a whole.” CJ Roberts stated that “Congress had passed the Affordable Care Act to improve health insurance markets, not destroy them.” Had the SCOTUS ruled for these ACA opponents, CJ Roberts noted that this law would have gone into a “death spiral” and millions of Americans would have lost their ability to buy health insurance (Opinion of the Court, NY Times Editorial, 6/25/15, Cohn, J., “The Ten Year War,” 2021). “

Finally, Obamacare opponents failed for a third time. On 6/17/2021, in a 7-2 opinion, SCOTUS struck down a challenge brought by 20 state GOP officials. GOPers now argued that Donald and his Republican Congress in 2017 had repealed the individual mandate tax for people not buying health insurance to zero. Since SCOTUS had upheld Obamacare as a tax and there now was no tax, Obamacare, according to this “reasoning,” must be overturned (See huffpost.com, Cohn, J., 6/17/21). In this opinion authored by Justice Breyer and joined by Trump appointees, Kavanaugh and Coney Barrett, as well as arch-reactionary H.W. Bush appointee Clarence Thomas, SCOTUS upheld Obamacare. Its reasoning? SCOTUS rejected this lawsuit on the grounds that the opponents of the ACA had no “standing.” “Standing,” in legal terms, means that the plaintiffs, (Obamacare’s foes who brought the lawsuit), could not show an injury that required a ruling on the merits (huffpos.com, Cohn). How can one be hurt when the tax has been reduced to zero? CJ Roberts was also in this 7-2 majority.


One can see CJ Roberts’s strong beliefs in Breyer’s opinion that near consensus in cases should be aimed for (only Gorsuch and Alito dissented) and that opinions should be decided, if possible, on narrow, not constitutional grounds. CJ Roberts is following the standard for deciding cases that Justice Brandeis set forth in his comments in the “Ashwander v. Tennessee Valley Authority” 1936 case. Brandeis argued that rulings on constitutional issues should at best be avoided by SCOTUS if it can rule on narrower issues. One of those narrower guidelines Brandeis suggested was not to determine a statute’s validity unless the person has been injured by it, basically requiring standing (Hall & Ely Jr., “United States Supreme Court Decisions,” Second Edition, 2009). Yes, Obamacare’s foes brought this case hoping that the Supreme Ct., with three new Trump appointees would rule in its favor. They failed “bigly.” Although attorneys often say that the questions at oral arguments from SCOTUS Justices do not necessarily indicate how they will ultimately rule, in this case, CJ Roberts and Trump appointee Kavanaugh ‘s comments at the argument did forecast their decision. Roberts spoke critically of letting people “not injured by the provision challenged sort of roam through those thousand pages and pick out whichever ones he wants to attack.” Translation: Roberts was looking at throwing this ACA challenge out under the standing doctrine. CJ Roberts, according to SCOTUS observers, seemed agitated that an attack on the ACA was before the Court again (See cnn.com, Berman & Luhby, 11/10/20). Justice Kavanaugh, on SCOTUS since 2018, also indicated he was not thrilled with throwing out the entire ACA law even if the individual mandate was found invalid, based on SCOTUS’ prior precedents on severing an unconstitutional provision from a statute (cnn.com, Berman & Lubhy). Kavanaugh was, in effect, talking about stare decisis or letting decisions on previous cases stand. Kavanaugh helped save the ACA twice, by influencing CJ Roberts in his 2012 Obamacare decision as an appellate judge and now on SCOTUS. Message to GOP Obamacare foes, every time you’ve challenged Obamacare before SCOTUS, you’ve lost by bigger margins. And now, even Justice Thomas has joined the preserve Obamacare majority. After challenging Obamacare three times in a decade (latimes.com, 6/20/21, Alonso-Zaldivar), it’s time to move on. Obamacare now covers 31 million Americans. Had this legislation been overturned by SCOTUS’ latest ruling, 133 million Americans could have been denied coverage or had their benefits delayed or curtailed (cnn.com, Luhby, 6/17/21). CJ Roberts does not want to go down in history like the ultra-reactionary anti-New Deal 1930’s Supreme Court (“Supreme Power,” Shesol, 2010).


CJ Roberts’s view on achieving SCOTUS consensus was also evident in a 9-0 religious issue case. In “Fulton vs. City of Philadelphia,” the High Court ruled that Catholic Social Services could participate in that city’s foster care program even though that organization discriminates against placing children in foster homes that have same-sex couples. The Catholic organization stated its religious beliefs under the 1st Amendment Free Exercise Clause prevent it from providing inspections of same-sex couples homes as well as placing children with them. Lower federal courts ruled that this Catholic agency was violating anti-discrimination laws that included protection for sexual orientation. SCOTUS, however, stated that since Philadelphia law allowed for exceptions and, therefore, allowed discretion in how agencies could use their foster care placement power, the Catholic group should have been allowed to work with the city on foster care, despite its discriminating against same-sex couples. (latimes.com, 6/17/21, Chemerinsky). Yes, IMHO, the result here is a bad one in denying same-sex couples the right to have this Catholic group work with them. However, SCOTUS did not make this right to discriminate on the basis of sexual orientation under the Free Exercise Clause a broad constitutional right. It is very similar to when SCOTUS allowed a baker to discriminate against baking a wedding cake for a same-sex couple in CO a few years ago. There, SCOTUS ruled for the baker not on religious constitutional grounds, but on the fact that the CO agency treated that baker with strong pre-conceived bias. The liberal Justices, no doubt, went along with this narrow non-constitutional Philadelphia ruling because a broader holding would have been far worse. However, this Philadelphia Catholic foster agency case does indicate that the Roberts Court is giving religious groups the ability in many cases to discriminate because of their religious beliefs. We should not have been surprised that SCOTUS ruled this way in the Philadelphia case. SCOTUS recently found that CA and NY violated the Free Exercise of religion when it limited the size of religious gatherings in houses of worship and homes during the COVID-19 pandemic, even though secular gatherings of the same size were restricted (latimes.com, 6/17/21, Chemerinsky, Savage, latimes.com, 11/26/20).


On 6/21/2021, in another strong consensual opinion, ”NCAA vs. Alston,” SCOTUS unanimously ruled 9-0 against the National Collegiate Athletic Association (NCAA). The NCAA is a non-profit organization that regulates student athletes from up to 1,268 North American institutions and colleges. The NCAA deals with over 480,000 college student-athletes who compete in college sports (wikipedia). In an opinion written by hard-liner Trump appointee Neil Gorsuch, SCOTUS ruled against the NCAA’s strict obsession with amateurism. This obsession bans schools from providing perks to college athletes including paid internships, postgraduate scholarships, and free laptops. SCOTUS stated that the NCAA was violating antitrust law in setting limits on athletes’ education-related benefits. SCOTUS hinted that further change was inevitable (latimes.com, 6/22/21, McCollough). The NCAA went to SCOTUS hoping for a ruling to bolster its regulatory authority and give it “immunity from the normal operation of anti-trust laws that other businesses normally face.” Instead, Justice Gorsuch and his fellow justices stated the NCAA has no legal shield from a price-fixing claim. Gorsuch rightly referred to the NCAA as a “sprawling enterprise” and “massive business” that enriches many. He noted that “the president of the NCAA is paid about $4 million per year. The commissioners of the top conferences take home between $2million to $5million… and the annual salaries of the top Division 1 college football coaches approach $11 million.” Gorsuch stated that student-athletes had an “unusually strong case. Put simply, this involves admitted horizontal price fixing in a market where defendants exert monopoly control… and student-athletes have nowhere else to sell their labor.” Although ruling for the student-athletes, Gorsuch stressed that the lower court’s ruling was quite limited. It did not prevent the NCAA from enforcing rules against giving athletes “phony internships…or lavish luxury cars to help them get to classes. Nothing stops it (the NCAA) from enforcing a ‘no Lamborghini’ rule (Savage, latimes.com, 6/22/21).”


Justice Brett Kavanaugh went even further. He issued a concurring opinion in the Alston case. A concurring opinion is one written by a Justice who agrees with the outcome of the decision in a case, but disagrees with the logic or reasons for that decision (Hall & Ely Jr., “United States Supreme Court Decisions,” Second Edition). In Kavanaugh’s concurrence, he declared, “the revered tradition of amateur athletics cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student-athletes who are not fairly compensated.” Kavanaugh further added, “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market share on the theory that their product is defined by not paying their workers a fair market rate…It is not evident why college sports should be any different. The NCAA is not above the law (latimes.com, 6/22/21, Savage).” NY attorney Jeffrey Kessler, who led the suit against the NCAA said, “This historic decision is about the athletes, especially those who will never join the pros (most of them). Hopefully, it will also swing the doors open to further change (latimes.com, 6/22/21).” UCLA men’s basketball coach Mick Cronin stated, “We’ve become a multi-billion -dollar business. The first thing people are going to say is well, what about the employees?” Cronin noted, “The days of Kareem Abdul-Jabbar just being thankful to play at UCLA are over. The days of Bill Walton just playing at UCLA and being thankful for the scholarship are over (McCollough, latimes.com, 6/22/21).” IMHO, it’s about time. What a good decision from this normally pro-business/anti-labor SCOTUS.



And the conservative SCOTUS even handed down a key decision upholding free speech. In an 8-1 opinion, with only Justice Clarence Thomas dissenting, SCOTUS ruled for then PA high school student Brandi Levy against her school district. It has been more than 50 years since a high school student won a free-speech case before the High Court. (cnn.com, de Vogue & Cole, 6/23/21, nytimes.com, Liptak, 6/23/21). After failing to make her school’s varsity cheerleading squad, Levy sent a message on a weekend via Snapchat to about 250 people. She did it off campus. Her message, indicated her extreme disappointment with the school’s decision to exclude her from the varsity squad. It showed Ms. Levy and a friend with their middle fingers raised. Levy, in this message, went on to use the word “F-word” four times, cursing “school,” “softball,” “cheer,” and “everything (nytimes.com, Liptak, cnn.com de Vogue & Cole).” The school suspended Levy from junior varsity cheerleading for a year. It claimed that this punishment was needed to “avoid chaos” and maintain a “teamlike environment (nytimes.com).” In his majority opinion, Justice Breyer disagreed with the school district. He defended the speech rights of some 50 million public school children and upheld, in this case, the rights of off-campus and online speech over the school’s concerns that their “mission” had been disrupted or that bullying and threats were involved (See cnn.com de Vogue & Cole).


Breyer wrote, “America’s public schools are nurseries of democracy. Our representative democracy only works if we protect the ‘marketplace of ideas’”. Breyer added, “Schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’” Breyer noted, however, that in some circumstances, schools can still regulate student speech that takes place off campus. Such cases include “severe bullying or harassment targeting particular individuals, threats aimed at teachers or other students, the failure to allow rules concerning lesson, writing papers, and using computers, and breaches of school security devices.” Breyer found that none of these matters were involved in Ms. Levy’s comments. She did not identify the school or target any member of the school community. She transmitted her comments outside the school on a personal cellphone off campus and outside school hours and her comments were made to an audience consisting of her private circle of friends (nytimes.com, Liptak, 6/23/21). David Cole, the legal director of the ACLU (American Civil Liberties Union) which represented Ms. Levy rightly called this case a “triumph for the First Amendment,” freedom of speech (nytimes.com, Liptak, 6/23/21).


In a criminal procedure case, Justice Elena Kagan wrote the majority opinion for a unanimous SCOTUS. The High Court held that unless there is an emergency, police must evaluate on a case-by-case basis whether officers need a warrant before pursuing an individual suspected of committing a minor offense into his/her home (cnn.com, de Vogue & Cole, 6/23/21). In 2016, a CA highway patrolman, Aaron Weikert, saw a car that was playing loud music and needlessly honking its horn. Officer Weikert followed the car driven by Arthur Lange, because he believed that Lange may have committed a noise infraction. As Officer Weikert pulled into Lange’s driveway, he activated his lights, but Lange did not stop. Lange pulled into his own garage and tried to shut the door. Officer Weikert put his foot in front of the garage door sensor, forced the door to open, and entered the garage. He pursued Lange for failing to stop when the police lights flashed. Weikert questioned Lange about his actions. Seeing signs that Lange was intoxicated, Officer Weikert ordered a sobriety test. Lange was later charged with driving while intoxicated and his attorneys moved to suppress the evidence against him (cnn.com, De Vogue & Cole). The CA Court of Appeal held that no warrant was ever required in such a circumstance. Kagan rejected this categorical reasoning. She stated, “The flight of a suspected misdemeanant (non-felony offender) does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.” Kagan added, “On many occasions, the officer will have good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled (De Vogue & Cole, cnn.com).” In general, law enforcement must obtain a warrant before entering a person’s home, although SCOTUS has held that under certain exigent circumstances, a warrant is not required. If an officer is in “hot pursuit” of a driver or if emergency aid is needed, a warrant may not be necessary. The Lange case is the first time that the SCOTUS justices have looked at the scope of the “hot pursuit” doctrine when a minor violation is involved. It is reassuring that the Roberts Court still requires the police to get warrants under the Fourth Amendment when emergency circumstances are not in play. Although SCOTUS sent this case back to the CA Ct. of Appeal for further reconsideration, the requirement for warrants, a bedrock of our democracy and civil liberties, remains in force.


These initial term-ending decisions by the current SCOTUS indicate, as I previously stated, that CJ Roberts tries to aim for consensus and despite his conservative leanings not go too far ahead of public, congressional, and legal opinion. However, CJ Roberts and his new 6-3 conservative majority are strongly pro-business and anti-labor and have no regrets about coming down on the side of the top 1%. In my next blogpost, I will continue analyzing these final 2021 SCOTUS decisions.