After a blockbuster last term, the Supreme Court looks to the future

Each year, the Supreme Court of the United States receives thousands of applications from appellants wishing for their case to be heard by the nation’s highest legal body. Of those, only around seventy are chosen, argued, and decided. The term beginning in October 2019 had several major decisions handed down, affecting such varied and important areas of the law as abortion, LGBT rights, and the separation of church and state. Here are some of the highlights from last term, summarized:

June Medical Services, LLC v. Russo

June Medical dealt with a law in the state of Louisiana that required doctors at abortion clinics to obtain admitting privileges in a nearby hospital or risk being shut down. Such a law is very similar to the Texas statute that was struck down in 2016 in Whole Woman’s Health v. Hellerstedt. Writing for a four-member plurality, Justice Stephen Breyer wrote that the “findings [in June Medical] mirror those made in Whole Woman’s Health in every relevant respect and require the same result.” Thus, the Court held that the law “places a substantial obstacle in the path of women seeking an abortion,” and thus was unconstitutional under the “undue burden” balancing test adopted in 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey.

Chief Justice John Roberts, who dissented in Whole Woman’s Health, did not join the Breyer opinion but concurred in the judgment only. While he “continue[s] to believe  that the case was wrongly decided,” Roberts wrote that “the legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike…therefore  Louisiana’s law cannot stand under our precedents.”

Each of the remaining four conservative justices authored their own dissenting opinion, with Justice Samuel Alito’s opinion being joined (at least in part) by all four. Alito questioned whether the Louisiana law had such a drastic effect on access to abortion in the state as the appellants claimed, while Justice Clarence Thomas, in his solo dissent, maintained that “our abortion precedents are grievously wrong and should be overruled.”

Bostock v. Clayton County, Georgia

In perhaps the greatest surprise of the term, conservative Justice Neil Gorusch authored an opinion, joined by the Court’s four Democratic appointees and Chief Justice Roberts, holding that Title VII of the Civil Rights Act of 1964’s provision barring discrimination because of “sex” also bars discrimination on the basis of sexual orientation or gender identity.

Bostock consolidated the cases of two men who claim they were fired from their jobs for being gay, as well as the case of Aimee Stephens, a transgender woman who was hired when male and claims to have been fired after informing her workplace that she planned to “live and work full-time as a woman.”

In a departure from his usual view that courts should not wade into policy disputes, as he has argued in the past, Gorsuch’s opinion said that while “those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result…the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” This case differed from the many others brought under Title VII “because to discriminate on these grounds [sexual orientation and gender identity] requires an employer to intentionally treat individual employees differently because of their sex.” 

Justice Alito, joined by Justice Thomas, opened his dissent saying, “There is only one word for what the Court has done today: legislation.” He lamented the majority’s inclusion of sexual orientation and gender identity in the category of “sex,” quoting the late Justice Antonin Scalia in saying that the words of statutes should be interpreted “to “mean what they conveyed to reasonable people at the time they were written.” He then argued that no such people in 1964 would have interpreted “sex” to include sexual orientation and gender identity, especially since the latter is “a concept that was essentially unknown at the time.”

The decision was hailed by LGBT rights groups, who called it a “landmark victory” for equality, while conservatives warned that the ruling could have unintended consequences everywhere from dress codes to school bathrooms to women’s-only sports.

Espinoza v. Montana Department of Revenue

Sean Tehan covered this case in detail in the pages of this very edition of the Rover, as Notre Dame’s very own Tocqueville Associate Professor of Political Science, Vincent Philip Muñoz, was cited in Chief Justice Roberts’ majority opinion striking down a Montana constitutional provision that barred public funds from being appropriated to a religious school as part of a tax-incentive scholarship program for needy students. This provision is known as a “Blaine Amendment,” named for U. S. Representative James Blaine of Maine, who wished to prevent any public funds from being allocated to “sectarian” institutions, which, as Justice Thomas has argued in the past, was simply a term used to distinguish private Catholic schools from the Protestant-dominated public school system. With the decision, it is possible that Blaine Amendments—which remain on the books in 37 states—will be effectively nullified, and thus the Court may be much more favorable to public funds being used by religious institutions in future cases.

While the upcoming October 2020 term is not poised to have as many of the same blockbuster cases as the last, there are still several that have the possibility to have wide-ranging effects, especially if Judge Amy Coney Barrett, recently announced as President Trump’s nominee to fill the seat vacated by Justice Ruth Bader Ginsburg, is confirmed.

Fulton v. City of Philadelphia

This case arose after Philadelphia ended its partnership with several Catholic adoption agencies after those groups refused to place children with same-sex couples, citing their religious beliefs.

The Court will consider three questions: whether the appellants must prove a particular discrimination case in order to succeed, whether the Court should overrule its 1990 decision in Employment Division v. Smith, which held that religious beliefs could not be used as justification for noncompliance with “neutral laws of general applicability,” and whether the city’s action violated the First Amendment’s guarantee of the free exercise of religion.

California v. Texas

This case is the result of many years of litigation surrounding the Affordable Care Act’s “individual mandate” to purchase health insurance. It pits two coalitions of states against each other: on one side, mostly Democratic-controlled states led by California are defending the law, while a group of Republican-controlled states led by Texas are claiming the individual mandate is unconstitutional.

Further complicating the case is the fact that the penalty for noncompliance with the individual mandate, upheld in 2012’s National Federation of Independent Business v. Sebelius as a “tax,” is now zero due to the 2017 Tax Cuts and Jobs Act passed by the GOP-controlled Congress. The court will consider not only if the mandate is unconstitutional, but also if the mandate is “severable” from the rest of the law, meaning that if the mandate is struck down, the rest of the Affordable Care Act would still stand.

With the ongoing coronavirus pandemic, and with over two-thirds of voters saying that healthcare is a “very important” issue to them, this case will be one to watch.

Additionally, the Court will hold its post-summer recess conference this week, dubbed by court-watchers as the “long conference,” as it is where the justices go over the petitions submitted over the summer, as well as any other petitions that had been held over for further deliberation.

With such a contentious presidential election just a few weeks away, the Court under the stewardship of Chief Justice Roberts may attempt to fly “under the radar.” Roberts has been known to care deeply about the image of the Court and rejects its characterization as a political institution, as exemplified in the Chief Justice’s public rebukes of both President Trump and Senate Minority Leader Chuck Schumer for comments which questioned or threatened the independence of the federal judiciary.  Roberts’ hand may be forced, however: with the 2020 election being held under circumstances unlike any in our nation’s history, the result is almost sure to be thrown into question as the counting of mail-in ballots will take several weeks past Election Day. The Supreme Court may end up having to rule on the inevitable legal conflicts that will arise from the disputed election, as occurred in the controversial 2000 case Bush v. Gore. Until then, at least for the Justices, life goes on.

Luke Koenigsknecht is a sophomore from Grand Rapids, Michigan studying electrical engineering. In his spare time, he enjoys reading as well as playing games or solving puzzles. He also fancies himself an amateur baker. He can be reached at