This week the Supreme Court issued five opinions.  Putting aside a case about when [generic term].com can be trademarked, the other four cases represent two big wins for conservatives and two narrow wins for progressives in which the reasoning adopted by the controlling vote — in both cases, the Chief Justice — signals bad news for progressives in future cases.

But first, there are some housekeeping details.  This week’s opinion finished the outstanding cases from January and February.  The only cases left are from May, but we still have eight of the ten cases left.  As a result, it is practically wide open as for as which justice has which case.  Justice Gorsuch and Justice Ginsburg have both authored six opinions for the Court this year (implying that they are probably done, but Justice Gorsuch still has an outside chance at picking up one of the May cases).  Justice Thomas has only authored four opinions for the Court, so he may get two May opinions.  Everybody else appears to be due for one May opinion.

This past week, the Supreme Court issued opinions on the Consumer Finance Protection Bureau, abortion, tax credits for religious schools, and conditions on aid to foreign non-governmental organizations.  In all of these cases, the controlling opinion established rules that conservatives will love, even if they hate the result in the individual case.

Let’s start with the abortion case.  The decision in the abortion case was a 4-1-4 split.  Now, in a split of this type, there is no “Opinion of the Court” which is binding precedent on lower courts.  However, the Supreme Court has previously suggested  (for lower courts and those who have “safe harbor” provisions that allow them to avoid liability by following current law) that the holding in such a case comes from the opinion in the majority that creates the narrowest ground.  In other words, if there are two opinions in the majority — one saying you win if one of three things are true and the other saying that you win only if all three are true and the dissent says that you need those three things plus something else not present in the case — the controlling opinion would be the one saying that you need to prove all three elements of the claim.  For the abortion case, the plurality (composed of the four liberal justices) followed the rule created in the similar case from Texas several years back.  Under that rule, in determining whether a new law unduly burdens abortion rights, you take into account whether there is an actual benefit to the patients from the law.  (In other words, how much of a burden is permissible depends upon if there is a good reason for the law.  A law enacted solely to make abortion more difficult is more likely to qualify as an undue burden).  As the Louisiana law in this case is almost exactly the same as the Texas law previously rejected, it is also unconstitutional.

Back when the Supreme Court found that the Texas law (which among other things required abortion providers to have admitting privileges at a nearby hospital) was unconstitutional, Justice Kennedy was still on the Supreme Court and provided the fifth vote in favor of that test.  In a surprise to nobody but a certain Senator from Maine who may be retired this fall,  Justice Kavanaugh voted the opposite way in this case. That left it up to the Chief Justice who decided that — as the findings by the trial court in this case are similar to the findings in the Texas case — respect for precedent required the same result.  However, at the same time, the Chief Justice stood by his opinion in the Texas case that the majority in the Texas case were not following the proper analysis of the undue burden test.  In his view, since any legislative enactment is presumptively valid under the rational basis test, courts should not be reweighing the legislative conclusion that the new law is necessary to protect patients.  Instead, courts should merely consider the impact of the law on the ability of patients to obtain abortions and that burden needs to be significant.   Needless to say, allowing courts to disregard the lack of factual support for the necessity of a new regulation makes it easier for courts to hold that the new regulation will have only a small impact on abortion allowing further and further regulations until you reach the proverbial straw that breaks the proverbial camels back.

The Consumer Finance Protection Bureau case is even worse.  Here, we have a 3-4-2 opinion.  There are five justice who join in most of the opinion.  In that part of the opinion, the majority rewrites the rules for independent agencies.  As noted in prior posts, there has been general support in the law for creating terms for executive branch officials (like the FBI director) and insulating such officials from removal without cause.  The new conservative revolution, however, believes in a very powerful executive branch at the complete control of the elected president-dictator (as long as the president is a conservative).    As such, the majority in this case narrows the prior decisions to only allow such removal for cause provisions if one of two things are true:  the agency is run by a group of commissioners/directors (e.g., Federal Reserve or Federal Elections Commission or Securities Exchange Commission) or the appointee does not exercise significant executive power (e.g., a special prosecutor).   If an agency head is a single person and that person can set policy, the director must be removable at will by the President.    As such, in the long-run, this decision is a win for conservatives who hate independent agencies that make decisions on the facts under statutory guidelines rather than putting politics above facts.

In the short run, this decision looks like a win because it finds that the removal for cause provision can be struck from the statute as unconstitutional without striking down the rest of the law creating the Consumer Finance Protection Bureau.  The plurality sends the case back to the lower court to determine if the Bureau still wants to pursue the subpoena against the company that brought this case.  (The four justices think the removal clause is constitutional but agree that, if it is unconstitutional, the remainder of the statute stays intact.  The two justices — part of the five who find that it is unconstitutional — think that the entire statute must be struck.  The one silver lining in this case is that the severability analysis may hint at the result in the latest challenge to the Affordable Care Act (due to be argued in the Fall) suggesting that the elimination of the tax for failing to comply with the individual mandate makes the entire Act unconstitutional — a theory that is contrary to the normal rules of statutory construction.

On to the two clearly bad decisions.  The First Amendment has two religion clauses — the Free Exercise Clause and the Establishment Clause.  Combined, they hold that government may neither promote religion nor try to eliminate religion.  There is a natural gap between the two were government is “neutral” toward religion.  Over the years, however, there has been substantial debate over whether government can provide some funding of religions without violating the Establishment Clause.  At the national level, some such funding is permissible.  At the state level, however, many states have enacted a super-establishment clause barring any funding of religions.  In recent years, as revealed by this case, the Supreme Court has found that such provisions — effectively disallowing religious groups from participating in programs open to non-religious groups and institutions — violate the Free Exercise Clause.  In this case, the Supreme Court reversed a decision by the Montana Supreme Court.  The curious thing in this case is the ruling by the Montana Supreme Court.  The case involves a tax credit program related to private schools.  The Montana Supreme Court struck down the program — as to both religious schools and non-religious schools — because of the state’s bar on aid to religions.  As such, the effect of the lower court ruling was to bar discrimination against religion.  The majority essentially finds that this was the wrong remedy.  The problem is not the tax program according to the majority.  The problem is the state constitution’s requirement that religions are treated differently.  This majority approach basically holds that sole restriction on aid to religion is the federal establishment clause.  (This case is complicated by the fact that three of the five justices who joined the majority opinion wrote separate concurring opinions.  Justice Alito believes that — if it is appropriate to consider the bigotry of those who drafted laws in other cases — we should strike down these state constitutional amendments because of the anti-Catholic bigotry that led to these provisions.  While the argument of bigotry is not entirely wrong, it ignores that the rule in these provisions represented a giving up of power by the majority for fear that they might lose that power while the other provisions restricted the power of the minority to block the will of the majority.   Justice Thomas would disincorporate the Establishment Clause so that states could establish state churches.  Justice Gorsuch’s opinion disagrees with some of the language suggesting a distinction between religious activities and religious status — potentially signaling a willingness to consider his predecessor’s wrong-headed opinion in Smith that led to the fiasco that is the Religious Freedom Restoration Act.

Finally, the last of these 5-4 disasters (actually 5-3 as the dispute dates back to when Justice Kagan was still solicitor general — involves aid to foreign groups that involves speech mandates.  Earlier this decade, the Supreme Court found that such restriction on aid to domestic groups violates the First Amendment.  (The underlying program funds efforts to combat HIV.  The funding is conditioned on the recipients officially opposing prostitution.  While there are some good reasons for such a condition — viewing prostitution as bad in itself and also believing that it contributes to the spread of HIV — some of these groups do not think that fighting prostitution is a fight that they can win in certain countries and that, making the effort, could hinder their ability to pursue other strategies for fighting HIV.)  The majority basically takes a very narrow view of its corporations as people theory.  In this case, for legal reasons, many charities have formed separate corporate entities for different countries, but all such entities are connected to the parent company.  The majority finds that the foreign affiliates are legally separate persons, and thus, the government can infringe on their ability to speak freely (because the Constitution stops at the border) even if it can’t impose that restriction on the parent company (which is incorporated in the U.S.).  Such hairsplitting puts form over substance, but it follows logically from bringing corporate law into the Constitution with little regard for the different purposes of the two fields of law.

All in all, this week is a reminder why the Supreme Court should matter to progressive voters.  Everything that we want is eventually subject to Supreme Court review.  Allowing the far right to get even more justices who want a revolution in the law will make it harder for us to succeed even if we control the White House and Congress.  Four more years of Trump would be a disaster for may reasons.  But twenty years of Trumpian justices having four votes on the Supreme Court would be a rolling disaster that never ends.