U.S. SUPREME COURT

Erwin Chemerinsky. Photo by Jim Block.

On Jan. 22, the U.S. Supreme Court took three actions that did not involve deciding a case, yet nonetheless provided a likely harbinger of the future. The actions reflect the court’s new composition and surely please conservatives but are very troubling to liberals.

TRANSGENDER MILITARY BAN

One action by the court, in a 5-4 ruling split along ideological lines, was to allow President Donald Trump’s ban on military service by transgender people to go into effect. Trump overturned an Obama administration policy to permit such military service. Three federal district courts—in Washington state, California and the District of Columbia—issued preliminary injunctions against the Trump ban in Trump v. Karoski, Trump v. Stockman and Trump v. Jane Doe 2, respectively.

The Trump administration asked the Supreme Court to take the cases before review in the U.S. Court of Appeals. The high court declined but did stay the preliminary injunctions so that the ban on military service by transgender people can go into effect immediately. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

It is unusual for the Supreme Court to lift preliminary injunctions issued by a district court because preliminary injunctions are to be overturned only for “abuse of discretion.” Moreover, doing so requires that the higher court conclude that the party seeking such relief is likely to prevail on the merits.

The court’s coming to this conclusion undoubtedly reflects the absence of Justice Anthony Kennedy. The majority opinion in every important Supreme Court decision expanding rights for gays and lesbians was written by Kennedy: Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013) and Obergefell v. Hodges (2015). Without Kennedy it is hard to count five votes for LGBT rights. Some have suggested that Chief Justice John Roberts might now be a “swing vote.” But not in this area, as evidenced by his dissents in Windsor and Obergefell. Indeed, in Obergefell—which declared unconstitutional state laws prohibiting same-sex marriage—Roberts wrote a vehement dissent. It is the only dissent Roberts has read from the bench since coming on to the court in 2005.

The court’s choice to allow Trump to ban transgender people from serving in the military could well forecast what it will do when the case comes before it on the merits. It also may reflect a new majority much more hostile to LGBT rights more generally.

GUNS

Also on Jan. 22, the court granted certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York. The case involves a New York City law that limits handgun owners to possessing their guns at the address listed on their handgun license, with the sole exception of transporting the gun “directly to and from” one of approximately seven “authorized small arms range/shooting club[s], unloaded, in a locked container, the ammunition to be carried separately.”

From 1791 until 2008, the court always interpreted the Second Amendment—and there weren’t that many cases—as protecting only a right to have guns for militia service. In District of Columbia v. Heller (2008), the court held that the Second Amendment protects a right of individuals to have guns in the home for the sake of security. The court struck down a D.C. ordinance that prohibited private ownership or possession of handguns. In McDonald v. City of Chicago (2010), the court held that the Second Amendment applies to state and local governments.

But in many instances since 2010, the high court has denied certiorari in cases involving gun rights. There are basic unanswered questions: What level of scrutiny is to be used for the Second Amendment? Does the Second Amendment protect a right to have guns outside the home? If so, what types of regulations are permissible?

All of these questions underlie the court’s consideration of the New York law. Interestingly, although the case had been on earlier conference lists and could have been taken for this term, the court waited until after the docket for this year was full, and it appears that the case will not be argued until October.

FREE SPEECH AND FREE EXERCISE OF RELIGION

Joseph Kennedy was the football coach at Bremerton High School in Washington state. After football games, he would kneel at the 50-yard line and pray. He was asked by the school to cease this practice, but he continued to do so. The superintendent of schools explained why this was prohibited: First, “in praying on the field after the game, [Kennedy] neglected his responsibility to supervise what his players were doing at that time and, second, that [his] conduct would lead a reasonable observer to think that the district was endorsing religion because he had prayed while ‘on the field, under the game lights, in BHS-logoed attire, in front of an audience of event attendees.’ ”

Kennedy sued and the federal district court ruled against him. The 9th U.S. Circuit Court of Appeals affirmed. Kennedy sought certiorari, but on Jan. 22. it was denied. Justice Samuel Alito wrote an opinion respecting the denial of certiorari, joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. They said the court was right to deny certiorari because of ambiguity in the facts of the case; it was not possible to tell whether Kennedy was fired for not supervising his students or for praying.

But Alito wrote an opinion quite supportive of Kennedy. Alito criticized the 9th Circuit’s ruling as failing to provide sufficient support for Kennedy’s speech rights. But the most important part of Alito’s opinion came near the end where he stated: “While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964. Petitioner’s decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this court.

“In Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), the court drastically cut back on the protection provided by the free exercise clause, and in Trans World Airlines, Inc. v. Hardison (1977), the court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.”

In Employment Div. v. Smith, the court, in an opinion by Justice Antonin Scalia, held that the free exercise clause cannot be used to challenge a neutral law of general applicability. So long as the law is neutral, not intended to interfere with religious freedom, and so long as it is of general applicability and does not target a religion or religions, it cannot be found to violate free exercise of religion.

But in recent years, it is the conservatives who have wanted much more aggressive judicial protection of religious freedom, such as in the ability of employers to deny contraceptive coverage for female employees and for businesses to refuse to provide services for same-sex couples. Alito’s opinion in Kennedy v. Bremerton School District strongly indicates that there are at least four justices who want to reconsider Employment Div. v. Smith and greatly expand the protections of the free exercise clause.

In conclusion, because the court has decided few cases this term, there has been little chance to observe the impact of the resignation of Kennedy and the confirmation of Kavanaugh. I predict that in many areas of constitutional law, it will be a profound change. The court’s actions on Jan. 22 gave us an indication of some of what to expect in the future.


Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His new book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in November.