Yeomans Work

The Rookie

February 20, 2019

The opening of spring training signals the beginning of the peak months for Supreme Court action. This is the time for fans to indulge in predictions about the performance of newly acquired players and old stalwarts. On the Supreme Court, attention will focus on the performance of the rookie, Brett Kavanaugh, and the veteran Chief Justice Roberts.

The bases for assessing the rookie are aligning. Already, Kavanaugh has weighed in on two defining issues buried in the Court’s “shadow docket,” the dusky realm of Court actions that do not address the merits of cases, but can prove consequential in themselves or provide major hints on the final resolution of major issues. One involved abortion and the second combined religion and the death penalty. The Court will decide a major religion case involving a large cross on public property and whether a citizenship question can be added to the census. Finally, the President announced his national emergency wall-funding plan, which will almost certainly reach the Court eventually. Each of these matters addresses an issue raised in Kavanaugh’s confirmation and is likely to shed light on the validity of those concerns.

In June Medical Services v. Gee, the Court voted 5-4 to stay implementation of a Louisiana statute that required doctors performing abortions to have hospital admitting privileges within 30 miles of the clinic where they perform abortions. The district court blocked the law, but the Fifth Circuit cleared it to go into effect. The law closely resembles the Texas law struck down 5-3 (Justice Scalia’s seat had not been filled) in 2016 in Whole Woman’s Health v. Hellerstedt, in which Justice Kennedy joined the majority in concluding that the law burdened women’s access to abortions without compensating health benefits.

Justice Kavanaugh wrote in dissent, arguing that the Court should wait to allow the three doctors at issue to seek admitting privileges during the 45-day regulatory transition period. As others have noted, his approach is eerily reminiscent of his handling of Garza v. Hargan, reversed en banc, in which he would have imposed a procedural hurdle that would delay an abortion for an undocumented minor.

Having put the law on hold, the Court is likely to hear the case on the merits next term. Justice Kavanaugh will almost certainly vote to allow the law to take effect. Chief Justice Roberts dissented in Hellerstedt, but supported the stay of the Louisiana law. Doubtless, he blinked at the appearance of disrespecting a recent precedent when the only difference was a change in personnel. It is not clear whether he will continue to blink.

In Dunn v. Ray, a 5-4 majority, including Justice Kavanaugh, refused to stay the execution of Domineque Ray, who had asked to have his Muslim spiritual advisor at his side, rather than the Christian chaplain, who was a prison employee. While the majority concluded Ray’s petition was too late, Justice Kagan wrote a scathing dissent accusing the majority of disregarding the core principle that government cannot play favorites among religions. The stay denial featured twin trends of a majority on the Court to reject late challenges to executions and to show greater solicitude for the religious rights of Christians than members of other denominations or no denomination.

This latter trend will be tested in Maryland National Capital Park and Planning Commission v. American Humanist Association, a challenge to a giant cross that sits on public land in a traffic median in Maryland. The cross was erected as a private memorial to local soldiers who died in World War I and was transferred to public ownership in 1961. After the district court allowed the cross to stay, the Fourth Circuit held that it had the primary effect of endorsing religion and excessively entangled the state in religious matters in violation of the Establishment Clause. The Supreme Court has wrestled repeatedly with large crosses and displays of the Ten Commandments on public property. It has produced a series of confusing results (e.g., Ten Commandments ok in a public park, but not a courthouse) and standards. The Court took this case after Justice Kavanaugh joined the Court. His vote may be crucial in concluding that a 40-foot cross does not endorse Christianity over other religions or otherwise impermissibly establish religion.

Kavanaugh’s record as a lawyer and Bush administration official and his confirmation performance revealed a strongly held partisan commitment. At his confirmation, he railed against Democrats and unnamed conspirators who had something to do with the Clintons, raising serious doubts that he could put aside his partisan views on the bench. He recognized that he had revealed too much and tried to take some of it back in an op-ed.

His neutrality will be severely tested when the Court considers whether the census can add a citizenship question. The district court said no and the Court reached down to pluck the case away from the Second Circuit so that it could issue a decision by June. The Commerce Department engaged in procedural irregularity to add the question and the Secretary of Commerce was caught lying about the origin of the initiative. The question will deter participation, resulting in an undercount of the number of people in blue areas, which will affect the distribution of everything from congressional seats to economic benefits. It appears to be a Republican power grab.

Kavanaugh’s view of expansive executive power chafed opponents of his confirmation. His opposition to investigating and prosecuting a sitting president understandably gained the most attention, but Trump’s declaration of a national emergency at the border may prove the more immediate test. While the lawsuits still are being filed, it is impossible to predict accurately when the issue might reach the Court or what the precise issues will be. The challenges will be more complex than initially portrayed, likely turning ostensibly on the interpretation of statutory language. They will, however, revolve around views of the scope of presidential power and the extent to which courts should defer to a presidential declaration of a national emergency. Trump’s declaration plainly does not survive common sense scrutiny. Illegal border crossings are declining and apprehensions are at their lowest in several decades. Trump openly acknowledged that his declaration is unnecessary; he just wanted to bypass Congress to speed things along. It is safe to predict that a court or courts will enjoin some portion of Trump’s wall spending and that injunction will reach the Supreme Court, probably next term. Trump openly is predicting that the Ninth Circuit will rule against him, but he’ll win in the Supreme Court. He’s counting on the rookie

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.