The court’s delay in issuing opinions — both cases were argued in November — conjured understandable fears of dueling, angry and fractured opinions. Justices’ tempers can be short at the end of a term, but some particularly sharp sniping between two liberals, Sonia Sotomayor and Elena Kagan, and conservative Brett M. Kavanaugh, added further to the suggestion that something momentous was afoot behind the scenes.
Instead, both cases were decided on narrow grounds and with solid majorities. In the Affordable Care Act case, the court, ruling 7 to 2, found that those challenging the law hadn’t been injured and therefore didn’t have standing to sue. In the foster parents case, the court was unanimous in concluding that Philadelphia had violated the religious rights of the Catholic group, but six justices (three liberal, three conservative) declined to take the additional step of overruling a controversial precedent.
At a moment when the court’s conservative majority has been bolstered, this reticence — this judiciousness — is a welcome development. That’s not to pretend some damage hasn’t already been done or to predict that this restraint will last: The court has important opinions still to come this term, on the Voting Rights Act, union organizing, anonymous charitable contributions and the First Amendment rights of students.
Next term promises to be even more consequential, with abortion and gun-rights cases already accepted, and the court weighing whether to review a challenge to affirmative action in higher education. No one should be under the impression that this is anything but a distinctly conservative bench. But how far and how fast the six-justice conservative majority is willing to go remains unknown.
Notably, the newest justice, Amy Coney Barrett, did not join with the two dissenters in the ACA case — Justices Samuel A. Alito Jr. and Neil M. Gorsuch — and she staked out a middle-ground position in the foster-care case as well. I’ve been a Barrett worrier, especially about her willingness to overturn precedents that she believes were wrongly decided. But to the extent that Barrett may be aligning with the Chief Justice John G. Roberts Jr. and Kavanaugh conservative faction of the court, not with the more extreme Thomas-Alito-Gorsuch wing, that is good, if tentative, news.
In the ACA case, California v. Texas, the dissenters not only would have found that the plaintiffs in the case had standing to sue, notwithstanding the flimsiness of the supposed injury to them, they would have gone even further, ruling that the individual mandate to obtain coverage was unconstitutional and that the entire law had to fall as a result. This is a radical position inconsistent with the court’s own precedents on when an unconstitutional provision should be severed from the rest of the law.
It is a welcome signal that Barrett balked at going along, nor did she sign on to a grudging concurrence by Justice Clarence Thomas, who said he would have agreed with the dissenters on the issues of constitutionality and severability if the plaintiffs had shown they had standing to challenge the law.
Behind the 9-to-0 outcome, the Philadelphia foster care case, pitting rights of religious freedom against those of same-sex couples, was even more fraught. Barrett again opted against joining the most conservative faction, a surprising development given her academic writings that justices should be willing to jettison constitutional cases they believe were wrongly decided.
The dispute presented a tempting opportunity to overturn Employment Division v. Smith, a 1990 case that has come in for considerable conservative criticism, despite its having been authored by Antonin Scalia and generating a dissent from liberal justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun.
That case involved Oregon employees denied unemployment benefits after being fired for using peyote, part of the religious practices of the Native American Church to which they belonged but illegal under Oregon law. The court held that laws that “incidentally” burden religion do not violate the Constitution as long as they are “neutral” and “generally applicable.”
In the foster-care case, Fulton v. Philadelphia, the three most conservative justices (Alito, Gorsuch and Thomas), argued that the court should take the plunge and overrule Smith. The six-justice majority, in an opinion by the chief justice, said the court didn’t need to go that far, because Philadelphia’s rule wasn’t, in fact, generally applicable. “The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures,” Roberts wrote.
Barrett, in a concurring opinion joined by Kavanaugh, expressed her doubts about Smith but said that since all the justices agreed that Philadelphia’s conduct violated religious rights in any event, there was “no reason to decide in this case whether Smith should be overruled, much less what should replace it.”
I may not have much occasion to say this, but here goes: Good for you, Justice Barrett.