After adding two new cases to their merits docket on Friday, the justices issued more orders from their Oct. 29 conference on Monday morning. As expected, they did not add any additional cases to their docket, but they did clear away several of the high-profile petitions that they have repeatedly considered since returning from their summer recess. The justices once again did not act, however, on the petition for rehearing filed by Washington state florist Barronnelle Stutzman, who declined to make custom flower arrangements for a same-sex wedding because of her religious beliefs.
Abortion coverage by employers
The justices sent Roman Catholic Diocese v. Emami, a challenge to a New York regulation that requires employers to fund abortions through their employee health plans, back to the lower courts for another look. The regulation carves out an exemption for religious employers that primarily serve and employ people of the same religion, but that exemption does not extend to other religious groups, such as Catholic Charities. The diocese, represented by former U.S. Solicitor General Noel Francisco, went to federal court, arguing that the regulation violates the Constitution. An intermediate state appellate court upheld the regulation, concluding that it is a “neutral and generally applicable” rule that can survive under the court’s 1990 decision in Employment Division v. Smith.
Telling the court that the regulation “imposes enormous burdens” because of the religious groups’ opposition to abortion, the diocese urged the court to weigh in on whether the regulation is neutral and generally applicable when it “burdens a subset of religious organizations by forcing them to cover abortions” and whether the regulation interferes with the autonomy of religious entities. And if the regulation passes muster under current law, the diocese added, the court should consider whether to overrule Smith. “It cannot be,” the diocese concluded, that the “Constitution allows New York to require religious groups to participate in a practice so fundamentally in conflict with their religious beliefs.”
New York countered that the justices should deny review because the requirement only applies to insurance companies who provide insurance in New York. Employers don’t have to provide health insurance at all, New York stressed, and in any event adding coverage for abortions doesn’t impose any additional costs for insurance coverage. Moreover, New York added, the diocese didn’t raise its religious autonomy claims in the lower courts.
The justices considered the case at four consecutive conferences before issuing an order on Monday that vacated the state court’s ruling and sent the case back to the lower court for reconsideration in light of last summer’s decision in Fulton v. City of Philadelphia, in which the court ruled that Philadelphia’s refusal to make referrals to a faith-based foster-care agency that refused to certify same-sex couples as potential foster parents violated the Constitution. Three justices – one vote short of the four needed to review the case on the merits – indicated that they would have granted the diocese’s petition: Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.
Hospital care for transgender patients
The justices denied review in Dignity Health v. Minton, in which they had been asked to weigh in on whether and when a Catholic hospital can be required to allow procedures that violate its religious beliefs. The question came to the court in a case filed by a transgender patient, Evan Minton, who wanted a hysterectomy and alleges that the hospital, Mercy San Juan Medical Center in Carmichael, California, refused to allow the doctor to perform it, in violation of state civil rights laws. In its defense, the hospital countered that requiring it to perform procedures that conflict with its religious beliefs would violate the Constitution’s free exercise clause.
A California appeals court rejected the hospital’s defense, pointing to the Supreme Court’s decision in Smith.
Mercy went to the Supreme Court in March 2020, telling the justices that the “case poses a profound threat to faith-based health care institutions’ ability to advance their healing ministries consistent with the teachings of their faith.” At that point, the court had already granted review in Fulton.
Minton urged the Supreme Court to stay out of the dispute, stressing that there was no final state court judgment on the federal questions in the case. But the court still held the case until it issued its decision in Fulton on June 17. The court then considered the Mercy’s petition several times before finally denying review on Monday, with Thomas, Alito, and Gorsuch indicating that they would have granted review.
Public access to surveillance rulings
In 1978, Congress created the Foreign Intelligence Surveillance Court, currently made up of 11 federal district court judges, to rule on the federal government’s applications for electronic surveillance orders in foreign intelligence investigations. Appeals from the FISC’s rulings go to the Foreign Intelligence Surveillance Court of Review, made up of three more federal judges. The justices on Monday declined to hear an important case involving public access to the FISC’s rulings, over a dissent by justices from both ends of the ideological spectrum.
The dispute in American Civil Liberties Union v. United States stemmed from a motion that the ACLU filed with the FISC five years ago, seeking “opinions and orders containing novel or significant interpretations of law issued” over a 15-year period regarding the federal government’s online surveillance activities after the Sept. 11 attacks. A FISC judge dismissed the motion, reasoning that the FISC lacked the power to review the motion, and the FISCR agreed that it too lacked jurisdiction to consider the request.
Represented by Ted Olson, a former solicitor general during the George W. Bush administration, the ACLU came to the Supreme Court in April, asking the justices to weigh in on both whether the FISC has the power to review its motion and whether the First Amendment provides a right for the public to have access to at least some of the FISC’s significant opinions. The ACLU explained that although the FISC’s role may have originally been relatively narrow, that role has “changed fundamentally — due to both Congress’s expansion of” the Foreign Intelligence Surveillance Act “and the exponential growth in the capabilities of powerful surveillance technologies.” As a result, the ACLU wrote, the FISC now “writes opinions that include significant interpretations of FISA, other federal statutes, and the Constitution,” which “sometimes authorize broad surveillance regimes, with far-reaching implications for U.S. citizens and residents who are not the ostensible targets of the government’s surveillance.”
The federal government urged the justices to deny review, stressing that (among other things) federal law only allows them to grant review of cases that hail from the “courts of appeals” – which the FISCR is not. And in any event, the government concluded, the ACLU has other ways to get the FISC opinions it is seeking – for example, through the executive branch itself, or by filing requests under the Freedom of Information Act.
Gorsuch dissented from the denial of review, in an opinion joined by Justice Sonia Sotomayor. Gorsuch noted that the government “does not merely argue that the lower court rulings should be left undisturbed because they are correct,” but also “presses the extraordinary claim that this Court is powerless to review the lower court decisions even if they are mistaken.” Stressing that the case “presents questions about the right of public access to Article III judicial proceedings of grave national importance,” but also about “the power of this Court to review the work of Article III judges in a subordinate court,” Gorsuch asked, “If these matters are not worthy of our time, what is?”
Capital punishment and intellectual disability
The court’s decision not to grant review in Coonce v. United States also drew a dissent from Sotomayor. Wesley Coonce, who sustained a severe brain injury when he was 20 and was later convicted of killing a federal inmate at the age of 29, had asked the justices to take up two issues: whether the Constitution allows the federal government to execute a defendant who was intellectually disabled when he committed his crime, because he became intellectually disabled after the age of 18, and whether and to what extent the Sixth Amendment right to confront adverse witnesses applies in capital sentencing hearings. The Department of Justice agreed with Coonce that the Supreme Court should send the case back to the lower courts for another look in light of the American Association of Intellectual and Developmental Disabilities’ recent change to its definition of intellectual disability, but the court on Monday denied review.
Sotomayor described the court’s refusal to send the case back to the lower courts as “deeply concerning, especially given the strength of Coonce’s claim.” To the best of her knowledge, she noted, the Supreme Court has always sent capital cases back to the lower courts for another look when both sides have agreed that it is the best course of action, particularly when “a new development has cast the decision below into such doubt.” The Supreme Court, she concluded, “has long emphasized the ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’” Sending the case back to the lower courts, she reiterated, “was the least the Court could have done to protect this life-or-death interest.”
This post is also published on SCOTUSblog.