Just before departing for their summer recess, the justices on Friday added 10 new cases to their docket for next term, including a high-profile dispute involving public funding for private schools that provide religious instruction.
The busy order list was in some ways was a microcosm of the 2020-21 term as a whole. Although the decision to hear the school-funding case suggested that the court as a whole will continue to move to the right, the justices turned down another request to weigh in on the interaction between religious rights and laws protecting LGBTQ people, suggesting that the court may not move to the right as far or as quickly as some justices might like.
A new case on public funding and religious education
Last year, in Espinoza v. Montana Department of Revenue, the Supreme Court ruled that although states are not required to subsidize private education, states that choose to do so cannot exclude religious schools from receiving funding simply because they are religious. In Carson v. Makin, the justices will take up a question that they did not resolve in Espinoza: Does a state violate the Constitution when it operates a program that provides students with money to attend private schools but bars them from attending schools that provide religious instruction?
The question comes to the court in a case from Maine, where over half of the school districts don’t operate their own high schools and instead pay for students to attend public or private schools, both inside and outside the state. The tuition-assistance program only allows the funds to be used, however, at “nonsectarian” schools. The challengers in the case are two sets of parents, David and Amy Carson and Troy and Angela Nelson, who want to use funds from the program to send their children to private Christian schools that the state has labeled “sectarian,” so that the families do not qualify for funding. (The parents cite Cardigan Mountain School, a private boys’ school in New Hampshire attended by the son of Chief Justice John Roberts, as an example of a “nominally religious” school that was approved to participate in the program.)
The parents went to federal court, where they argued that their exclusion from the program violated their constitutional rights, including their rights to exercise their religion. The U.S. Court of Appeals for the 1st Circuit upheld the program, reasoning that the exclusion of religious schools hinged on whether the money was used for religious instruction and to proselytize, rather than simply on whether the school was religious. The parents came to the Supreme Court in February, asking the justices to weigh in, and on Friday the justices agreed to do so. The case will be argued sometime next fall.
The end of the road for Arlene’s Flowers
Three years after the Supreme Court issued a narrow ruling in favor of Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex wedding because he believed that doing so would violate his religious beliefs, the justices on Friday declined to weigh in on the question that Phillips’ case left unanswered: Does the state violate an artist’s First Amendment right when it requires her to create custom art celebrating a same-sex wedding? This time the question comes to the court in the case of Barronelle Stutzman, a Washington florist and devout Christian who believes in the traditional notion of marriage.
The events leading to this case began back in 2013, when Robert Ingersoll, a longtime client of Stutzman’s at her business, Arlene’s Flowers, asked Stutzman to create flower arrangements for his same-sex wedding. Stutzman declined, telling him she could not “be a part of his event” because of her “relationship with Jesus Christ.” After the Washington attorney general learned about Stutzman’s refusal, he sued her for violating the state’s antidiscrimination laws, as did Ingersoll and his husband.
The Washington Supreme Court ruled for the state, rejecting Stutzman’s argument that requiring her to provide custom flowers for same-sex weddings would violate her rights under the First Amendment to freely exercise her religion and to free expression. Stutzman came to the U.S. Supreme Court in 2017, but the justices sent the case back for another look after their ruling in Masterpiece Cakeshop, the Colorado case. When her case returned to the Washington Supreme Court, Stutzman argued both that the state courts’ orders would require her to participate in same-sex wedding ceremonies, which would violate her religious beliefs, and that the attorney general singled her out for punishment for her religious beliefs, while at the same time failing to sanction a gay man who kicked a group of Christians out of the coffee shop that he owned.
The Washington Supreme Court again ruled for the state, prompting Stutzman to return to the U.S. Supreme Court. She asked the justices to weigh in “to ensure that people of faith have the freedom to live according to their beliefs about marriage, and to bar governments from mandating which sacred events merit celebration.” After considering the case at four consecutive conferences last winter, the justices put the case on hold, presumably until they issued their decision in Fulton v. City of Philadelphia, the challenge to the city’s refusal to make referrals to Catholic Social Services because the faith-based agency won’t certify same-sex couples as potential foster parents. On Friday the justices turned down Stutzman’s case, with three justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – indicating in a brief note that they would have granted Stutzman’s petition for review. Because the court will grant a petition for review when there are four votes to do so, the fact that three justices publicly announced that they would have heard the case means that none of the remaining six justices voted to grant review.
Other grants on Friday’s order list
The court added nine other cases to its docket for the 2021-22 term, on issues ranging from securities litigation to interstate water disputes. Those cases (which, like the Maine school-funding case, are likely to be heard in the fall) are:
- Cummings v. Premier Rehab Keller, a lawsuit filed in federal court in 2018 by Jane Cummings, who has been deaf since birth and is legally blind. Cummings, whose primary means of communications is American Sign Language, alleges that Premier Rehab Keller, a company that provides physical therapy services and receives federal funding, violated federal anti-discrimination laws when it refused to provide her with an ASL interpreter. She sought compensatory damages for “humiliation, frustration, and emotional distress.” At issue in the case is whether federal disability laws allow Cummings to recover damages for emotional distress.
- Hughes v. Northwestern University, involving whether allegations that a retirement plan charged excessive fees when there were cheaper options is enough to bring a lawsuit alleging that the plan’s administrators violated their duty under the Employee Retirement Income Security Act to make prudent decisions. Justice Amy Coney Barrett recused herself from participating in this case.
- American Hospital Association v. Becerra, a challenge to a Department of Health and Human Services rule that cut Medicare reimbursement rates for prescription drugs for hospitals that participate in a program for underserved communities. The U.S. Court of Appeals for the District of Columbia Circuit ruled that the reimbursement cut was a reasonable interpretation of the Medicare statute; the justices on Friday agreed to weigh in on whether that deference is appropriate in this case. The court also asked both sides to discuss whether the challenge is barred by a provision of federal law that limits judicial review of certain Medicare-related calculations.
- Gallardo v. Marstiller, in which the court will decide whether a state Medicaid program can get reimbursed for past medical expenses that it has paid by taking money from a settlement or jury award that is intended to compensate for future expenses.
- Becerra v. Empire Health Foundation, a dispute over how to calculate additional payments under the federal Medicare program for hospitals with a large number of low-income patients.
- CVS Pharmacy v. Doe, in which the court will consider whether the Rehabilitation Act, which bars discrimination on the basis of disability by any program or activity receiving federal funding, and the Affordable Care Act allow plaintiffs to bring claims alleging that a policy or practice disproportionately affects people with disabilities.
- United States v. Taylor, involving whether attempted robbery under the Hobbs Act qualifies as a “crime of violence” for purposes of a federal law that imposes a mandatory minimum sentence of five years for the use of a gun during a crime of violence.
- Pivotal Software v. Tran, involving whether the “discovery-stay provision” of the Private Securities Litigation Reform Act, which provides (as the name suggests) for a stay of discovery while a motion to dismiss is pending “[i]n any private action arising under” the Securities Act of 1933 applies to private cases in federal and state courts, or only to private cases in federal courts. [Disclosure: Goldstein & Russell, P.C., whose lawyers contribute to SCOTUSblog in various capacities, is counsel to the respondents in this case.]
- Mississippi v. Tennessee, a long-running dispute between the two states over groundwater in an aquifer. A lawyer and former judge appointed by the Supreme Court to review the case recommended that Mississippi’s case be dismissed; now the justices will hear oral argument in the case.
A summary reversal in a capital case
The justices also issued a summary ruling in in the case of Matthew Reeves, who was sentenced to death for the 1996 murder of Willie Johnson, who had offered to help Reeves when the car in which Reeves and his companions were riding broke down. After the U.S. Court of Appeals for the 11th Circuit ruled that Reeves’ trial lawyers should have hired an expert to evaluate him for an intellectual disability, and that the jury might not have sentenced him to death if they had, Alabama appealed to the Supreme Court, asking the justices to weigh in.
In a brief unsigned opinion on Friday, the justices reversed. Because the case came to them as part of Reeves’ quest for federal post-conviction relief, rather than as a direct appeal of Reeves’ state-court conviction, the Supreme Court framed the question before it as whether the Alabama state court violated clearly established federal law when it rejected Reeves’ claim that his lawyers should have hired an expert. In this case, the Supreme Court reasoned, Reeves had alleged many errors in his lawyers’ choices, but he didn’t provide testimony from those lawyers, so there is no way to know with any certainty why the lawyers made the decisions that they did. The Alabama court, the justices explained, therefore “reasonably concluded that the incomplete evidentiary record” “doomed Reeves’ belated efforts to second-guess his attorneys.” The 11th Circuit’s ruling in favor of Reeves mischaracterized that decision, the court concluded, so the majority reversed that ruling.
Justice Stephen Breyer noted, without comment, that he dissented from Friday’s ruling. Justice Sonia Sotomayor also dissented, in an opinion joined by Justice Elena Kagan. Arguing that the Alabama court applied exactly the kind of blanket rule that the majority says it did not, Sotomayor complained that Friday’s decision “rescues the state court’s decision” through “linguistic contortion.” “The lengths to which this Court goes to ensure that Reeves remains on death row are,” she concluded, “extraordinary.”
Separate opinions on religious rights, “actual malice” and property rights
The justices sent the case of a Minnesota Amish community challenging the requirement that they install a septic system back to the lower courts for another look in light of last month’s Fulton decision. Two justices wrote separately regarding their agreement with the court’s disposition of the case, Mast v. Fillmore County. In a one-paragraph opinion, Alito wrote that the lower court “plainly misinterpreted and misapplied the Religious Land Use and Institutionalized Persons Act,” a federal law intended to protect religious institutions from discriminatory or burdensome land-use regulations.
Gorsuch authored a seven-page opinion in which he listed some of the issues that he believed the lower courts and local government authorities should consider going forward. For example, he stressed that courts should look not at the county’s general interest in promoting sanitation, but at what the harm would be from denying an exemption to the septic-system requirement to the Amish community. The county must also explain, he added, why it can’t give an exemption to the Amish community when it gives one to others – such as campers, hunters, and owners of rustic cabins. Gorsuch was sharply critical of the county officials involved in this case, noting that the dispute had “staggered on in various forms for over six years,” during which time the Amish community has been subjected “to threats of reprisals and inspections of their homes and farms.” Gorsuch urged the lower courts and government authorities to “bring this matter to a swift conclusion.” “In this country,” he concluded, “neither the Amish nor anyone else should have to choose between their farms and their faith.”
Thomas and Gorsuch separately dissented from the denial of a petition filed by Shkelzen Berisha, the son of a former prime minister of Albania. Berisha contended that a 2015 book by Guy Lawson defamed him by accusing him (in brief references) of being involved in an arms-dealing scandal. The U.S. Court of Appeals for the 11th Circuit agreed that Berisha is a public figure and could therefore only prevail in a lawsuit for defamation if he could show that Lawson acted with “actual malice” (that is, knowledge that the information was false, or a reckless disregard for whether it was true or false) – which, the court of appeals concluded, Berisha had not. Berisha came to the Supreme Court in February, asking the justices to overrule the “actual malice” requirement for public figures in defamation cases.
In a three-page opinion, Thomas wrote that, in his view, the court should “reconsider the ‘actual malice’ requirement as it applies to public figures.” The Supreme Court’s rule, outlined in the landmark case New York Times v. Sullivan, he said, “bears ‘no relation to the text, history, or structure of the Constitution.” To the contrary, he argued, at the time the Constitution was drafted, false statements about public figures were regarded as more serious and damaging than other false statements. And although the “lack of historical support for this Court’s actual-malice requirement is reason enough” to reconsider it, “the doctrine’s real-world effects” underscore the need to take another look. Thomas cited (among others) a case in which one of the women who accused Bill Cosby of sexual assault later sued Cosby for defamation. The woman was ruled a public figure, and her defamation claim was dismissed for failing to meet the “actual malice” standard. Thomas concluded that “[p]ublic figure or private, lies impose real harm.”
In a longer opinion, Gorsuch suggested that even if Sullivan may have made sense in 1964, when “[c]omparatively large companies dominated the press, often employing legions of investigative reporters, editors, and fact-checkers,” times have changed. Now, Gorsuch emphasized, “virtually anyone in the country can publish virtually anything for immediate consumption virtually anywhere in the world.” Although there may be “many virtues” to this “new media world,” Gorsuch conceded, it may also result in “the spread of disinformation.” And if the court in 1964 “may have thought the actual malice standard justified in part because other safeguards existed to deter the dissemination of defamatory falsehoods and misinformation,” Gorsuch posited, it isn’t clear whether these justifications still exist if those safeguards do not. Moreover, Gorsuch lamented, given how hard it now is to win a defamation case, “[i]t seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy.” Gorsuch ended by stressing that he did not have any “sure answers” and was in fact “not even certain of all the questions we should be asking.” But, he concluded, “I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”
Finally, the justices turned down a request by a Chicago man to review the city’s use of eminent domain to take his property, which was designated a “conservation area” in Chicago’s River West neighborhood, for use by a chocolate factory. The state courts rejected Fred Eychaner’s challenge, holding that the city had properly taken the property to prevent it from becoming dilapidated or unsafe in the future and to promote economic redevelopment. A jury eventually awarded him $7.1 million for the property.
Eychaner came to the Supreme Court, asking the justices to weigh in on two different questions: whether the prospect of future blight is enough for the government to take private property and give it to a private party for private use, and whether the Supreme Court should reconsider its 2005 decision in Kelo v. City of New London, in which the court ruled that the city’s taking of private property to sell to private developers for an economic development plan qualified as a “public use” within the meaning of the Constitution’s takings clause. Breyer is the only one of the five justices in the majority in Kelo who is still on the court, while Thomas is the only remaining justice of the four dissenters.
In a brief notation, Justice Brett Kavanaugh indicated that he would have granted Eychaner’s petition for review. Thomas also dissented from the denial of review, in a brief opinion joined by Gorsuch. Thomas made clear that, in his view, Kelo “was wrong the day it was decided” and “remains wrong today.” “Public use,” he wrote, “means something more than any conceivable ‘public purpose.’” But even if Kelo is good law, he continued, the court should have granted review to clarify exactly what the “remaining limits” are on the “public use” requirement. The denial of review, he complained, “not only disserves the Constitution and our precedent, but also leaves in place a legal regime that benefits” the politically powerful – as in this case, in which the chocolate factory that benefited from Eychaner’s land is owned by a company worth three-quarters of a billion dollars.
Update (July 2, 2:53 p.m.): This article has been updated with information about the full list of cases granted for oral argument next term, as well as analysis of a summary reversal and other separate opinions on Friday’s order list.
This post is also published on SCOTUSblog.