If it seems like an arcane detail of local government, keep in mind that a measure going before voters next month could have made a big difference if it had been in place 16 years ago.Read more

Stockdale High School Advanced Placement science teacher Kate Adamson had little expectation that she would be selected by the National Geographic Society and Lindblad Expeditions as one of just 36 educators across North America to be part of the prestigious…Read more

Backers of Congressional candidate Randy Villegas decried a national group’s backing of his Democratic rival, Dr. Jasmeet Bains, less than a month ahead of a highly contested primary election.Read more

On an early spring evening in Glendale, a 37-year-old woman is withdrawn and weak from refusing food and water for several days. Her mother calls for help. She tells a crisis counselor her daughter has been hearing voices, and has…Read more

Justice, Democracy, and Law is a recurring series by Edward B. Foley that focuses on election law and the relationship of law and democracy.Last week, the Supreme Court announced its decision in Louisiana v. Callais, striking down the state’s congressional map as an unconstitutional racial gerrymander, and – in doing so – obliterated the commitment of the Voting Rights Act to racial equality in elections. Although I had several immediate reactions to the decision, I wanted to allow for some time to reflect upon and absorb the court’s ruling. But my bottom line has changed very little from my first impression of Callais: It is a singularly horrendous decision, which misunderstands what the Constitution requires in this context and directly contradicts the text and purpose of the VRA.***Justice Elena Kagan’s dissent in Callais describes the court’s decision as the third of a trilogy that eviscerates the VRA, the first two cases being 2013’s Shelby County v. Holder and 2021’s Brnovich v. DNC. But lumping Callais with these other two cases risks concealing how truly egregious Callais is compared to the other two.Unlike many other election law scholars, I did not find either Shelby County or Brnovich problematic. Shelby County, you will recall, is the 2013 case where the court invalidated the formula that Congress used to determine which states and localities were subject to the so-called “preclearance” provision in Section 5 of the VRA – meaning that these covered jurisdictions were required to submit to the federal Department of Justice or a federal court any proposed changes to their election laws and procedures. The coverage formula, as the court ruled, was indeed woefully out-of-date (having been passed in 1965 and not revised since 1975), with Congress failing to update it at all when reenacting the preclearance provision in 2006. What is more, the court had warned Congress in a 2009 case, NAMUDNO v. Holder, that the court likely would find the coverage formula unconstitutional unless Congress revised it. But Congress refused to heed the court’s warning.Moreover, the reasoning of the Shelby County majority opinion was defensible. Preclearance is an especially intrusive burden on state sovereignty: ordinarily sovereign states are not required to get preapproval for the laws that they enact. If an enacted law is invalid, its enforcement can be enjoined subsequently; that’s the way the system generally works. Making the states plead in advance “Mother, may I …” to the federal government is out-of-sync with the principles of federalism upon which the United States is founded.Even more significantly, this arduous preclearance obligation was selective, applying to only some states and not others – that selectivity, after all, was the whole point of the coverage formula. The court was willing to tolerate that selectivity, but only if it was justified for truly problematic state actors. In this respect, the court relied on a kind of equal-protection principle applicable to the states themselves – the states in the union deserve to be treated equally by Congress unless there is a good reason for treating them differently. Many have criticized the court for articulating this equal-treatment-of-states principle, but it is well-grounded in the text and structure of the Constitution, which requires all new states to enter the union on equal terms with existing states. Likewise, the unamendable requirement that each state have the same number of senators (unless a state consents otherwise) signals a core constitutional principle, whether one likes it or not, that states are equal in their sovereignty.Thus, it was appropriate for the court – especially after its warning – to hold in Shelby County that Congress could not keep imposing preclearance on some states and not others without reconsidering its basis for determining which states were, and were not, subjected to this imposition. After all, by 2013, many uncovered states – like my own state of Ohio – were imposing just as onerous voting restrictions, such as new voter ID requirements, as the states of the former Confederacy.Brnovich was an even easier decision to defend. That case involved a challenge under Section 2 of the VRA to two Arizona voting rules: first, the obligation of voters living in some Arizona counties who choose to vote in person (rather than by mail) to cast their ballots in their neighborhood precinct rather than some other polling location; and second, the prohibition on a voter’s completed absentee ballot to be mailed or otherwise delivered by anyone other than the voter, a family member, or certain other very narrow categories of individuals. The claim in the case was that these voting rules had the effect of discriminating on the basis of race against minority voters and thus violated the “results” provision of VRA’s Section 2 (which we shall shortly return to), which prohibits any “voting qualification” or “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.”This claim was extremely weak, and the plaintiffs and their attorneys were urged by voting rights groups not to bring such a weak claim to the Supreme Court. The evidence showed that at most only a tiny fraction of all voters, regardless of race, were adversely affected by either rule. To be sure, the miniscule percentages of minority voters harmed by the precinct rule were slightly higher than the comparable percentage of white voters harmed, but this disparity could not be enough to establish that the rules operated as a denial of equal “opportunity” regardless of race “to participate in the political process,” as required by the relevant language of the statute.And the evidence of any racial disparity caused by the restriction on transmitting absentee ballots was literally nonexistent. As the majority in Brnovich noted, “The plaintiffs were unable to provide statistical evidence showing that [this restriction] had a disparate impact on minority voters.” They argued instead that minority voters used “third-party ballot collection” more often than non-minority voters did. But differential usage rates on a method of delivering ballots, as the court explained, were not enough to conclude that the rule “results in less opportunity to participate in the political process.”More generally, the court’s opinion in Brnovich was a reasonable response to a statute that was exceptionally unclear in relevant respects. If Section 2 of the VRA had been construed to prohibit any voting rule or procedure that resulted in any differential rates of electoral participation by minority and minority voters, virtually all voting rules and procedures would be vulnerable to invalidation, and that could not have been what Congress intended. For example, suppose it could be shown that keeping the polls open one hour longer on election day would increase the rate of minority voter turnout more than white voter turnout. Does that mean that closing the polls one hour earlier – perhaps reverting to an earlier schedule that had been expanded subsequently – violates Section 2 of the VRA? Not necessarily. As Alito sensibly wrote for the court in Brnovich, “the degree to which a voting rule departs from what was standard practice when § 2 was amended in 1982 is a relevant consideration.” Because all voting rules are burdensome to at least some extent, Alito explained, “burdens associated with the rules in widespread use when § 2 was adopted are therefore useful in gauging whether the burdens imposed by a challenged rule are sufficient to prevent voting from being equally ‘open’ or furnishing an equal ‘opportunity’ to vote in the sense meant by § 2.” Based on the considerations described above, Alito reasonably found “the modest evidence of racially disparate burdens caused by [Arizona law], in light of the State’s justifications, [compels] the conclusion that the law does not violate §2 of the VRA.”***Alito’s opinion for the court in Callais is an altogether different matter. Unlike Shelby County or Brnovich, Callais is an abomination.Callais purports to interpret VRA’s Section 2, but it destroys the central meaning of the section, converting it into the exact opposite of what Congress meant for it to do. The one thing that is unambiguous about Section 2 is that the 1982 amendment to the section’s text creates a “results” test for determining whether there is liability under the section, replacing the “intent” test that the Supreme Court had previously adopted for Section 2 claims. As the text states, no “standard, practice, or procedure shall be imposed … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” Yet Callais defiantly converts Section 2 back to an intent inquiry rather than a results analysis.In various passages in the Callais majority opinion, Alito denies substituting an intent test for the statute’s explicit “results” standard, saying that evidence of intent is only to be considered as relevant to the results determination. Specifically, he says that the court’s “interpretation does not demand a finding of intentional dis­crimination,” while acknowledging that “it imposes liability only when the circum­stances give rise to a strong inference that intentional dis­crimination occurred.” But the bulk of Alito’s opinion belies that the consideration of intent is at all limited in the way he suggests. Instead, it is manifest that intent has become the touchstone of the entire Section 2 inquiry. When discussing the specific facts of the case, Alito faults the Section 2 claimants for “fail[ing] to show an objective likelihood of intentional discrimination based on the totality of circumstances.” Moreover, when setting forth the threshold perquisites that any Section 2 plaintiff must establish before having any chance of prevailing, Alito categorically states that plaintiffs must “demon­strate that the State’s chosen map was driven by racial con­siderations rather than permissible aims.” It’s undeniable that “driven by racial considerations” is an intent, not results, requirement.What is worse, Alito sloppily conflates proof of a statutory violation under Section 2 with proof of a constitutional violation under the equal protection clause of the 14th Amendment. Since the 1982 amendment to Section 2, the court has considered claims brought under that section according to an analysis first set forth in a 1986 case called Thornburg v. Gingles. That analysis, which determines whether a legislative map “results” in minority vote dilution, is very different from a separate analysis of intentional racial gerrymandering. Yet, when discussing the Gingles analysis in Callais, Alito asserts that in attempting to show minority vote dilution with “illustrative maps” containing “their desired number of majority-minority districts,” “plaintiffs cannot use race as a districting criterion” because, in Alito’s words (with his own emphasis) “that illustrative map sheds no light on whether the State acted unconstitutionally by not adopting such a map.”But the issue under Section 2 is not “whether the State acted unconstitutionally” – it’s whether the state violated the statute by failing to adopt a map with an additional district that enables minority voters, in the statute’s words, “to elect representatives of their choice.” This passage in the Callais majority opinion indicates that Alito, and thus the majority of the court, completely lost sight of the actual provision that the opinion purports to interpret.Even if Callais could be considered as refining a “results” test for Section 2, it’s a test that is entirely inconsistent with the reason why this section was amended in 1982. The amendment was based on the recognition that a legislative districting map may be motivated by wholly valid considerations and still cause minority vote dilution that needs to be undone in order for there to be fair representation regardless of race. For example, districts may be drawn to keep cities and counties intact, or to make the shape of districts compact, or to protect incumbent members of Congress that advantage their constituents with their seniority. But the consequence of these valid considerations may nonetheless be that minority voters have “less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice,” in which case Section 2 requires altering the map to remedy this “violation” of its prohibition against the “denial or abridgement of the right of any citizen of the United State to vote on account of race.” The court’s opinion in Callais, however, obliterates this obligation, allowing states to avoid any Section 2 liability as long as they base their districting on permissible nonracial factors.Indeed, the court in Callais is explicit on this point, touting that its “interpretation” of Section 2 “does not intrude on States’ prerogative to draw districts based on nonracial factors.” And the court makes a mockery of the VRA by repeatedly proclaiming, based on the 2019 case of Rucho v. Common Cause, that the goal of partisan vote dilution – endeavoring to give members of one political party less opportunity to elect candidates of their choice than members of another party – is a perfectly permissible nonracial factor. For instance, the court asserts that “in considering the constitu­tionality of a districting scheme, courts must treat partisan advantage like any other race-neutral aim: a constitution­ally permissible criterion that States may rely on as de­sired.”And then comes the kicker: Only if a Section 2 plaintiff provides “an alternative map that achieves all the State’s objectives—including partisan advantage and any of the State’s other political goals—at least as well as the State’s map,” might the plaintiff be able to prevail. But as a practical matter that will be an impossible burden for a plaintiff to sustain – and one that altogether undermines the purpose of the 1982 amendment – because, following the court’s decision in Rucho, a state can simply justify its minority vote dilution as partisan vote dilution. (Put concretely: because Black voters overwhelmingly vote for Democrats, states can camouflage the disempowerment of Black voters as a desire to disempower Democrats.) In this way, Callais renders Section 2 a nullity.***Finally, the majority opinion in Callais makes little sense as a matter of constitutional law. Alito is candid that his purported “interpretation” of Section 2 is based on a desire to avoid rendering the provision unconstitutional. This issue arises from the source of Congress’ authority to enact the VRA’s prohibition against minority vote dilution in the first place. Alito treats this as a 15th Amendment issue, viewing that provision of the Constitution as the only one on which Congress may rely.The canon of constitutional avoidance – that is, to avoid striking a statute as unconstitutional when another plausible reading can uphold it – is a longstanding and salutary principle of statutory interpretation. But the canon has its limits. Indeed, it was Alito himself who said for the court (in Jenning v. Rodriquez) that “spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.” Yet that is exactly what he does for the court in Callais.According to the 15th Amendment, the ability to “vote shall not be denied or abridged by the United States or by any State on account of race.” As Alito correctly observes, the court has long construed this constitutional language to prohibit only intentional discrimination and not voting rules and procedures that have a racially discriminatory effect. But the court also has long held that Congress, pursuant to its explicitly granted “power to enforce” the amendment “by appropriate legislation,” can enact statutes that go beyond just the elimination of intentional discrimination and instead outlaw results-based discrimination as well. Alito contradicts this longstanding precedent when he asserts that “a law that seeks to enforce the Fifteenth Amendment by prohibiting mere disparate impact would fail to enforce a right that the Amendment secures” and thus be beyond the scope of Congress’ power to enact “appropriate legislation” pursuant to the amendment.The precedent that clearly established the point that Alito flagrantly contradicts is a unanimous 1976 case, Fitzpatrick v. Bitzer, involving Title VII of the Civil Rights Act of 1964, which prohibits both intentional discrimination and disparate impacts in employment. There, the court had no difficulty concluding that Congress is empowered to impose both types of Title VII liability (intentional and results based) as a means of enforcing the 14th Amendment’s antidiscrimination provision. It would be truly bizarre if Congress had less expansive enforcement power under the 15th Amendment than the 14th, since racial discrimination with respect to voting is an especially pernicious form of discrimination – which is why it is singled out for eradication in the 15th amendment. But Alito’s pronouncement that Congress is powerless to prohibit “mere disparate impact” either implies this inferiority of congressional authority under the 15th amendment relative to the 14th – or else, more ominously, means that the 50-year-old precedent of Fitzpatrick v. Bitzer is no longer good law. Either way, Alito’s pronouncement is incredibly unsettling – and unwarranted. The court in Callais did not need to consider the question of congressional power to enforce the 15th Amendment. That is because the power of Congress to enact Section 2 of the VRA for the purposes of Callais could have been sustained, not under the 15th Amendment, but under Article I, Section 4 of the Constitution. Congress has full power under Article I, Section 4 to enact laws governing the “time, place, and manner” of congressional elections. Thus, Congress can enact a prohibition against minority vote dilution for congressional districts under a disparate impact theory, without any consideration of discriminatory intent, and not rely on the 15th Amendment at all.To be sure, for Congress to prohibit minority vote dilution in the districting of state legislatures or city councils requires reliance on the 15th Amendment (since Article I, Section 4 applies only to congressional elections), but Callais did not involve districts for state legislatures or city councils. Because the Supreme Court is supposed to sustain the constitutionality of a congressional statute if Congress has any source of authority to enact it, the court in Callais should have viewed the VRA’s Section 2 as an exercise of power under Article I, Section 4, and set aside any issues involving congressional power under the 15th Amendment for a future case not involving congressional districts.If the court in Callais had gone that route, it would then have confronted a different constitutional question. As Alito’s opinion emphasizes from start to finish, looming over Callais was the court’s belief in “the general rule that the Constitution almost never permits the Federal Government or a State to dis­criminate on the basis of race,” which according to the court encompasses “allowing race to play any part in government decisionmaking.” Thus, if the effect of minority vote dilution caused a map to violate Section 2 of the VRA, the court feared, as happened in Louisiana, that the state would be required to intentionally create a new district based on race and that doing so would “force[]” the state “to engage in the very race-based discrimination that the Constitution forbids.” Treating Section 2 of the VRA as legislation empowered by Article I, Section 4, in other words, would have required the court to consider another application of the canon of constitutional avoidance: namely, whether Section 2 could and should be construed to avoid running afoul of the Constitution’s paramount prohibition, according to the court, against any government decisions based on race.But if the court had entertained this separate constitutional avoidance question, it could have done much less damage to Section 2. The constitutional prohibition on race-based decisions by government actors implicates the remedies that may be imposed for a finding of minority vote dilution. It does not implicate the substantive liability standard, which is to forbid maps that “result” in minority vote dilution. The grave constitutional concern, as Alito sees it, is having to draw a map based on race in order to undo the minority vote dilution. But that grave constitutional concern is about the remedy, not the finding of minority vote dilution itself.Moreover, it is possible to remedy minority vote dilution without ordering government officials to engage in new race-based districting. (One way is to have the voters themselves choose which congressional districts they wish to join, a system that I have called “self-districting.”) Thus, as an exercise of constitutional avoidance, the court could have disallowed race-based districting as a remedy for a Section 2 violation, but still left untouched the substantive standard of liability for minority vote dilution under it.But the court did not do that. Instead, by invoking the 15th Amendment as its basis for constitutional avoidance, the court gutted Section 2. This evisceration of Section 2’s fundamental purpose in protecting minority voting rights was totally gratuitous – and thus a travesty of the judicial imperative to effectuate the will of Congress embodied in the text of the statute as much as possible.For all these reasons, Callais – in sharp contrast to Shelby County and Brnovich – is an indefensible act of judicial overreach. That the court unnecessarily destroyed one of the most important congressional achievements in American history is all the more unconscionable. The only consolation is that there are still race-neutral ways to eradicate congressional districting that unintentionally results in minority vote dilution. But those ways will now have to come in the form of state laws or a new congressional enactment explicitly pursuant to Article I, Section 4, as unlikely as those measures are to occur in the near term.Read more

On April 20, the Supreme Court announced that it will hear argument next term in St. Mary Catholic Parish v. Roy, in which a Catholic preschool is challenging its exclusion from Colorado’s “universal preschool” program by arguing that Colorado must allow it to deny admission to LGBTQ children and children with LGBTQ parents because the state offers other types of exemptions from the program’s non-discrimination rules.Nevertheless, the justices did not agree to answer every question raised in the Catholic school’s petition for review. In particular, they declined to revisit – and potentially overrule – 1990’s Employment Division v. Smith, a much-debated decision that limits the reach of the First Amendment’s free exercise clause.For some court watchers, that adjustment may have triggered an episode of déjà vu. The justices made the same move just over four years ago, when they agreed to hear argument in 303 Creative LLC v. Elenis, a challenge to a Colorado anti-discrimination law by a graphic designer who planned to add wedding websites to her company’s offerings but opposed doing so for same-sex marriages on religious grounds. The court took up the designer’s free speech claim, but not her free exercise claim or the question of whether Smith should be overruled.Because it’s relatively rare, it’s always notable when the court takes up a petition but alters the question or questions presented. But it was especially interesting in St. Mary Catholic Parish and 303 Creative, as the court seemed to be protecting a precedent that’s been at death’s door since 2021. That’s when five of the current justices “indicated that they are considering overruling Smith,” as SCOTUSblog contributor Stephanie Barclay has observed.So why does Smith live on, not as a zombie precedent, but as a precedent that continues to be acknowledged and applied – even by justices who have said they don’t like it? There are several plausible explanations, including that the justices believe there’s no need to formally overrule a precedent that’s been narrowed so much that it doesn’t cause them any problems. At a time when commentators are debating the Roberts court’s willingness to overturn precedent, Smith’s journey illustrates just how complicated that process can be.Employment Division v. SmithThe Smith case originated in the mid-1980s, when Alfred Smith and Galen Black were fired by a private drug rehabilitation organization for ingesting peyote, a hallucinogenic drug. The two men applied for unemployment benefits from the Employment Division of Oregon’s Department of Human Resources, but the division determined they were ineligible because they had been fired for “work-related ‘misconduct.’”Smith and Black challenged this decision on First Amendment grounds, contending that they had ingested peyote as part of a Native American Church ceremony and that the Employment Division could not regard religious activity as misconduct. The Oregon Court of Appeals and Oregon Supreme Court both sided with Smith and Black, concluding that they should not have been denied unemployment benefits. The Oregon Supreme Court explained that the denial of benefits violated the First Amendment’s free exercise clause, which states that “Congress shall make no law … prohibiting the free exercise” of religion, because the Employment Division could have accomplished its goal of discouraging workplace misconduct while still offering a religious exemption.But in 1988, the Supreme Court sent the Smith case back to the Oregon Supreme Court for another look, holding that the lower court had erred by focusing on the department’s policy for drug use and not addressing the state’s controlled substances law, which outlawed peyote possession and use.On remand, the Oregon Supreme Court again ruled for Smith and Black, holding that the state law violated the free exercise clause because it could achieve its goal of reducing access to and use of illegal drugs while still allowing the use of controlled substances in religious ceremonies.The Supreme Court reviewed this ruling during its 1989-90 term and ultimately rejected it in April 1990. In an opinion by Justice Antonin Scalia, the court dispatched with the balancing test that it had previously used in free exercise cases, in which the government had to show that it had a compelling interest in upholding a challenged law and that the law was the least restrictive means through which to achieve this goal.Scalia said that using that test across the free exercise context would “court[] anarchy” by “open[ing] the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” He went on to explain instead that the First Amendment offers no protection from “a neutral, generally applicable law” – that is, a law that applies to everyone and was not written to target a specific faith group or religious practice – and thus courts should not apply the compelling interest test in cases involving such laws. Oregon’s controlled substances law fit that category, he continued, because it was aimed at promoting public safety, rather than interfering with religious practice, and because it barred everyone, not just members of the Native American Church, from using peyote.The backlash to SmithThe Smith decision sent shockwaves through the legal landscape and American religious groups, which had come to rely on courts to apply the compelling interest test and sometimes force changes to laws when complaints to legislators fell on deaf ears. Critics contended that the Supreme Court had hollowed out the First Amendment’s religious exercise protections by severely limiting the circumstances under which those protections would apply. Moving forward, these critics said, lawmakers would have little incentive to address a policy’s indirect impact on religious practice, because, under Smith, all they had to worry about was meeting the neutral and generally applicable standard. In other words, even if a law burdened a specific religious organization, it was now constitutional as long as it didn’t single out that particular group but applied to everyone.In 1993, Congress responded to the outcry over the Smith decision by passing the Religious Freedom Restoration Act, which restored the compelling interest test. At a signing ceremony for the law in November 1993, President Bill Clinton praised lawmakers for taking action to correct what he saw as the Supreme Court’s mistake. He noted that religious groups and individuals had lost more than 50 free exercise cases in the three-and-a-half years that had passed since the court decided Smith. “The power to reverse by legislation a decision of the United States Supreme Court is a power that is rightly hesitantly and infrequently exercised by the United States Congress,” Clinton said. “But this is an issue in which that extraordinary measure was clearly called for.”Smith was effectively overruled – but not for long. In 1997, it escaped irrelevancy when the Supreme Court held in City of Boerne v. Flores that RFRA did not apply to state actions, only to actions by the federal government. In other words, free exercise lawsuits over state laws and regulations would proceed under the Smith standard, meaning neutral and generally applicable policies would not be subject to the compelling interest test. (Except in states that passed their own versions of RFRA in response to City of Boerne, but that’s a story for another day.)The battle continuesAlthough the federal RFRA has proven to be a powerful tool for religious individuals and groups, calls for Smith to be overturned have not gone away. So far, the Supreme Court has not heeded them, although it has expanded the reach of the free exercise clause – and limited Smith’s impact – in other ways, most notably by limiting what types of laws qualify as “neutral and generally applicable,” as the court’s conservative majority has grown (to some extent in a more libertarian direction).The two most significant developments both happened approximately five years ago. First, in interim docket cases addressing COVID-19-related restrictions on religious gatherings, a majority of justices embraced what’s sometimes referred to as the “most-favored-nation” approach to religious freedom. In the COVID context, this meant that state governments could not prohibit people from gathering together for worship if the same number of people would have been allowed to gather had they been in a secular space, like a liquor store or at the acupuncturist. As the majority put it in Tandon v. Newsom, which addressed California’s decision to prohibit in-home religious gatherings of more than three households but not gatherings of the same size at secular locations, such as restaurants, “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” The upshot of Tandon was that, moving forward, very few laws would qualify as “neutral and generally applicable.”Second, the court further refined the definition of “generally applicable” in Fulton v. City of Philadelphia, Pennsylvania. The case centered on a Catholic foster-care agency that, for religious reasons, refused to assess whether unmarried or same-sex couples were qualified to be foster parents. When they became aware of this policy, city officials instructed the Department of Human Services to stop partnering with the Catholic agency, and the department did so, informing the foster-care agency that it had violated non-discrimination protections. The foster-care agency and three foster parents sued, alleging that the city had infringed upon their First Amendment rights. In June 2021, the Supreme Court unanimously ruled against the city. In an opinion by Chief Justice John Roberts, it held that, in refusing to contract with the foster-care agency over its religious beliefs, the city had violated the free exercise clause. While the court did not overrule Smith, it greatly limited its application by clarifying that a law cannot be considered “neutral and generally applicable” if it allows for any exceptions – even if no one has ever received an exception. Roberts emphasized that Philadelphia’s non-discrimination rules included “a mechanism for individualized exemptions.” It didn’t matter, according to Roberts, that no exemptions had ever before been granted.What’s next for Smith?The separate writings in Fulton made it clear that Smith had only narrowly escaped that case with its life. However, they also made it clear why there were not five votes to overturn it.This latter conclusion can be extracted from Justice Amy Coney Barrett’s three-page concurring opinion, which was joined in full by Justice Brett Kavanaugh and in part by Justice Stephen Breyer. Barrett, in a section joined only by Kavanaugh, expressed doubts about Smith, questioning why the reach of the free exercise clause should be so limited compared to other First Amendment rights, such as free speech. But Barrett noted that Smith cannot be overruled without something to “replace it,” and that swapping it with a “categorical strict scrutiny regime” would raise “a number of issues,” including how courts would determine that a burden on religious exercise is significant enough to require changes to a challenged law. In other words, Barrett and Kavanaugh acknowledged that they were dissatisfied with Smith, but also that they, along with Breyer, had concluded that overruling Smith would not be as easy as it might seem and that finding the right solution should be left for another day.In his 77-page opinion in which he agreed with the result, if not the reasoning, Justice Samuel Alito – joined by Justices Clarence Thomas and Neil Gorsuch – went a step farther than expressing dissatisfaction. He openly criticized Smith and said it was “[r]egrettabl[e]” that his colleagues had declined to face the question of overruling it head on.Alito characterized Smith as a “severe holding” that poses a significant threat to religious groups. He outlined a variety of hypothetical laws that could meet the “neutral and generally applicable” standard and yet would disrupt religious practice in “startling” ways, such as a nationwide ban on alcohol that makes it impossible for Catholics to celebrate Mass. Alito acknowledged that RFRA “restored part of the protection that Smith withdrew,” but he noted that RFRA “can be weakened or repealed by Congress at any time.” For that reason and others, Alito urged his colleagues to “reconsider Smith without further delay.”Approximately five years have passed since Alito wrote those words, and most of the justices have apparently still not accepted that proposal. Instead, in 303 Creative, the court side-stepped the Smith question, and then it did so again in St. Mary Catholic Parish, in which the justices will continue the work of Tandon and Fulton, refining the meaning of “generally applicable.”So will Smith ever be overruled? It’s certainly possible, since three current justices – Alito, Thomas, and Gorsuch – have called on the court to revisit it, and two others – Barrett and Kavanaugh – have acknowledged their frustration with Smith. As David French discussed during the April 23 episode of the Advisory Opinions podcast, the court may be waiting for a free exercise case on a law that’s undeniably neutral and generally applicable – in other words, a case in which hesitant justices will be willing to directly confront Smith. These hesitant justices might also be spurred into action if Congress updates RFRA to prevent it from being used to challenge health care or LGBTQ non-discrimination policies – changes that have been proposed by Democratic lawmakers in recent years, as I reported in 2023 for the Deseret News. Until either of those developments happen, though, expect Smith to live on – to die another day.Read more

On Monday, Justice Clarence Thomas moved up the list of longest-serving Supreme Court justices, taking spot No. 3. And on Thursday, he will move up again to the second position. “If Thomas remains until May 20, 2028, he would set the court’s longevity record,” according to Reuters.At the CourtYesterday was a fairly busy day at the court.Danco Laboratories and GenBioPro, two companies that manufacture the abortion pill mifepristone, came to the court on Saturday and asked the justices to pause a ruling by the U.S. Court of Appeals for the 5th Circuit in a lawsuit by Louisiana that reinstated the requirement that the drug be dispensed only in person. On Monday, Justice Samuel Alito, who handles emergency requests from the 5th Circuit, agreed to do so temporarily. Responses from Louisiana and the FDA to the companies’ requests are due on Thursday, and the temporary stay will expire on May 11.Also on Monday, the court released a list of orders from the justices’ private conference on Friday. No new cases were taken up, but several petitions for review were denied. For more on Monday’s order list, see the On Site section below.Then, later on Monday, Apple asked the court on its interim docket to stay a mandate from the U.S. Court of Appeals for the 9th Circuit affirming a district court ruling holding Apple in civil contempt for violating an injunction related to its App Store policies by charging a commission on purchases of digital goods in apps running on Apple’s operating system and downloaded from the App Store, but which take place on a third-party payment system.Finally, on Monday night, the court granted a request to immediately finalize its opinion in Louisiana v. Callais, in which it struck down that state’s congressional map, to allow Louisiana to draw a new map in time for the 2026 elections. See the On Site section for Amy’s analysis of the order.The court has not yet indicated when it will next release opinions.Morning ReadsAs Clarence Thomas hits a milestone, his conservative stamp on US Supreme Court enduresJan Wolfe, Reuters (paywalled)In its coverage of Justice Clarence Thomas’ move up the list of longest-serving justices, Reuters highlighted his “important role in guiding the court on a rightward course” over the past 35 years, “even if he has not gotten everything he has advocated” for, including in this term’s tariffs case, where he was in dissent, and in past cases on the freedom of the press, which Thomas would limit. “Thomas has helped the court’s 6-3 conservative majority, in place since 2020, to act assertively. On back-to-back days in June 2022, he was the author of a landmark ruling expanding gun rights protected by the U.S. Constitution’s Second Amendment and joined other conservative justices in overturning the 1973 Roe v. Wade decision that had legalized abortion nationwide.” Reuters noted that “Thomas, who turns 78 on June 23, has given no indication of planning to retire.”Scalia Clerks Argued in Half the Supreme Court Cases This TermJustin Wise and Jordan Fischer, Bloomberg LawA new Bloomberg Law analysis found that “[f]ormer clerks to the late Justice Antonin Scalia argued in nearly three dozen cases—or 52% of the docket—before the US Supreme Court this term, far more than clerks from any other chambers.” Specifically, it found that “12 former Scalia clerks, all of whom are men, appeared in 31 arguments. … Six cases featured two Scalia alumni taking the lectern, often on opposite sides.” One reason for the high percentage, according to Bloomberg Law, is that “Solicitor General D. John Sauer, who clerked for Scalia between 2005-06, filled out his office with other former clerks.”Justice Neil Gorsuch: ‘Aspirations for Power Need To Be Checked’Nick Gillespie, ReasonJustice Neil Gorsuch appeared on Monday’s episode of Nick Gillespie’s podcast for Reason “to discuss his new children’s book, Heroes of 1776: The Story of the Declaration of Independence, co-authored with Janie Nitze.” Gorsuch also reflected on originalism and the recent decline in public support for the Supreme Court, and he acknowledged that, in some cases, he’ll never convince some of his colleagues to see the issues the same way he does. “[T]he judicial branch, it isn’t a popularity contest, right?,” he said, noting that the founders wanted judges to be independent. Gorsuch argued that the current justices are doing a good job reaching resolutions in “the 70 hardest cases in the country” each year, despite the fact that each one approaches each case in a slightly different way. “I’m an originalist. My friend Sonia Sotomayor is not an originalist. I’m never going to persuade her. She’s never going to persuade me. We know that. That’s part of our job. We accept that. Lawyers and judges acknowledge there’s disagreement. That’s the nature of our profession, but we can be friends.”Rep. Olszewski to introduce ROBE Act to establish term limits for Supreme Court justicesWBFF StaffRep. Johnny Olszewski, a Democrat from Maryland, “is introducing a constitutional amendment that would establish term limits for Supreme Court justices,” according to WBFF, a news station in Baltimore. His Reform of Bench Eligibility, or ROBE, Act, “would establish 18-year term limits for justices.” In his press release on the proposal, Olszewski pointed to last week’s decision in Louisiana v. Callais as one reason why he believes it’s time to change the rules for Supreme Court service. “By establishing term limits, we can reduce the political gamesmanship surrounding appointments, restore balance to the process, and strengthen the integrity of the Court,” he said.Southern state Republicans look to capitalize on Supreme Court ruling weakening Voting Rights ActKim Chandler, Travis Loller, and David A. Lieb, Associated PressAlabama lawmakers began meeting on Monday to consider how to respond to the Supreme Court’s ruling in Louisiana v. Callais, and Tennessee lawmakers will begin their own special legislative session today. The states are among several in the South weighing last-minute redistricting efforts ahead of this year’s elections, according to the Associated Press. “Louisiana lawmakers, who already are in session, also are looking at how to redraw their congressional districts,” and “Trump on Sunday encouraged more states to join in,” claiming “that Republicans could gain 20 House seats.” One state that has declined to take part is South Carolina, where Gov. Henry McMaster has chosen not to “call a special session to redraw the state’s only Democratic-occupied House seat.”On SiteFrom the SCOTUSblog TeamCourt agrees to immediately finalize Voting Rights Act decision The court on Monday agreed to immediately finalize its April 29 decision on the Voting Rights Act, which is expected to make it easier for the Louisiana Legislature to adopt a new congressional map in time for the 2026 elections. Justice Ketanji Brown Jackson was the lone dissenter, arguing that the court’s ruling “has spawned chaos in the State of Louisiana.” Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote a concurring opinion that responded to Jackson with equally sharp words, countering that her rhetoric “lacks restraint.”From the SCOTUSblog TeamSupreme Court turns down COVID-19 vaccine case brought by John StocktonThe Supreme Court on Monday turned down a request from NBA Hall of Famer John Stockton to weigh in on whether his lawsuit against the Washington Medical Commission, arguing that the agency’s efforts to investigate and sanction licensed physicians in the state who discourage COVID-19 vaccination and promote treatments such as ivermectin violate the First Amendment, can go forward. The denial of review in Stockton v. Brown was part of a list of orders released from the justices’ private conference on Friday, May 1.Contributor CornerThe docket that cannot be namedIn their Controlling Opinions column, Maureen E. Brady and Richard Re explored the debate over what to “call the court’s expanded practice of ruling on cases in an unusually expedited fashion,” which is often referred to as the shadow docket, emergency docket, or interim docket. Questions about its name, they wrote, “strike at some of the central difficulties in our legal system at present.”A Closer LookThe Evolving Role of the Amicus BriefIn a previous Closer Look, we explored the first amicus brief. In this one, we delve into the nature and history of such briefs – which should not only be of interest to Supreme Court obsessives, but to anyone fascinated by the workings of the court.The original function of an amicus brief, filed by an amicus curiae (“friend of the court”), was to assist the presiding judge by providing additional, relevant legal or factual information that would prevent errors – that is, to make sure the court wasn’t getting anything obvious (or not so obvious) wrong.The modern amicus brief has evolved considerably from that neutral, court-assisting role, instead serving as an “amicus [of] advocacy.” (Indeed some scholars and judges have described the practice as a form of judicial lobbying, with organizations and individuals using briefs to try and shape, rather than inform, the court.)Although merits-stage amicus briefs are more common, they can also be filed at the cert stage. Here, the amicus briefs opine on whether the court should take the case at all. Over time such briefs have gotten considerably more popular: between 1982 and 2014, the share of cert petitions accompanied by at least one amicus brief more than doubled (from 6% to 14%).Since the 1950s, the number of amicus briefs filed each term has increased more than 800 percent, and post-2011, there has been a decade-long “explosion” of amicus briefs at the court. Recent terms have seen between 600 and 1,000 amicus briefs, filed in approximately 90% of the court’s cases. By contrast, that figure was 35% during the 1965–66 term.Before 2022, anyone seeking to file an amicus brief was required to obtain consent from both sides of a dispute; if consent was refused, the would-be amicus had to seek the court’s permission. In December 2022, the court announced that it was eliminating that consent requirement altogether, effective Jan. 1, 2023. In commentary accompanying the rule change, the clerk of the court explained that while the consent requirement “may have served a useful gatekeeping function in the past,” it “no longer d[id] so” since consent was almost universally granted. The same rule update also added new language specifically discouraging amicus briefs related to emergency applications, stating they should only be filed if they bring relevant matter to the court’s attention that will be of “considerable help.”Today’s amicus briefs come from a wide range of groups: special interest groups, trade organizations, government entities, non-litigants potentially affected by a case, law professors, bar organizations, and parties in similar cases. The United States, as of 2019, was the most frequent amicus filer before the court, followed by groups like the U.S. Chamber of Commerce. Unlike private parties, the federal government did not need consent from the parties to file before the 2022 rule change. And for those wondering, because the volume of filings is so high, the justices “tend not to read each [amicus] brief” in the first instance, but instead assign that task to their clerks.SCOTUS Quote“We have no concern with the future. It has not come yet.”— Justice Oliver Wendell Holmes, Jr. in Union Trust Co. v. Grosman (1918)Read more