Judging the justices’ 2020 term
The Supreme Court has wrapped up its 2020 term — and what a term it was. The court handed down major cases involving religious liberty, the freedom of association, property rights, election law and the Affordable Care Act (“Obamacare”), among others.
Most of the cases didn’t make headlines. My comments here focus on the high-profile cases because they are the ones most people are familiar with. In my judgment, this was a good, but not great, Supreme Court term. If I gave the court a letter grade, I’d give it a B.
On the First Amendment (religious liberty, speech, freedom of association), the court gets decent marks. Although it initially permitted state and local governments to restrict religious liberty because of the COVID-19 pandemic, it quickly corrected course after Justice Amy Coney Barrett joined the court and stood up for the proposition that our fundamental rights do not disappear during an emergency. This is cause for celebration because, in the past, the court has often failed to do so.
In another religious liberty case, Fulton v. City of Philadelphia, the court unanimously held that the city violated a Catholic charity’s right to freely exercise its religion by excluding it from participating in the city’s foster care system unless it agreed to place children with same-sex couples. The case dodged the broader legal issue of whether facially neutral laws that discriminate against religion are permissible. They are not, in my opinion, and the court ought to have said so because that question will come before it again. In fact, we will likely see this very same case return to the court in the next year or two.
In another First Amendment case, the court struck down a California policy that forced nonprofits to disclose the names and addresses of their major donors. The case attracted one of the broadest left-right coalitions in recent memory with groups as diverse as conservative think tanks, the ACLU, the NAACP, PETA and pro-life organizations all arguing against the California policy. This case was an important victory for the right of association.
On property rights, the court gets a solid A. One important decision reaffirmed the Constitution’s protections for property rights against government takings. The court struck down a California law that allowed union organizers to enter private farmland without permission for up to three hours a day, 120 days a year, to try to organize workers. In striking down the law, the court rightly reminded us that protecting property rights “empowers persons to shape and plan their own destiny in the world, where governments are always eager to do so for them.”
In election law, the court gets an A. In Brnovich v. Democratic National Committee, it upheld two of Arizona’s election integrity laws. The first prevents counting provisional ballots cast in the wrong precinct, and the second prevents ballot harvesting by allowing only certain people, like family and caregivers, from sending in someone else’s mail-in ballot. The opinion will likely prevent Democrats from using the courts to block every election integrity law they don’t like. To prevail in such suits, they will now have to present evidence that an election law has a real discriminatory effect on minority voters. Alarmist language simply won’t be enough. That’s a victory for the integrity of our elections.
The Obamacare case, however, was a disappointment. On that score, the court gets a D. The court held that state challengers to the law lacked standing to sue. In other words, regardless of the merits of their claim, the courthouse doors are closed to them. It was a disappointing opinion because it looked like an unprincipled way to dodge the politically fraught merits. The court ought to apply its rules consistently and confront politically fraught issues if that is where its rules lead.
The upside of this case, however, was that it exposed the lie that Democrats leveled against Justice Barrett’s confirmation that she was a “judicial torpedo” designed to kill Obamacare. No serious legal thinker ever thought so, but Democrats hooted and hollered about it, nonetheless. Now, the next time they say a Republican judicial nominee will spell doom for the country, we can all take them less seriously.
On the whole, this term was characterized by few big moves, but a reasonably consistent adherence to the Constitution and to the text of written laws. Notably, we saw a little less of the politicking that we have come to expect from Chief Justice John Roberts, but at the same time, we have seen Justices Brett Kavanaugh and Barrett reliably join him in some of his familiar dodges.
On the whole, the court has earned a B.