Linda Greenhouse – October 10, 2013

Ms. Greenhouse began by noting that it is an under appreciated aspect of the Supreme Court that the Court gets to decide which cases it wants to decide.  There are some cases where the Court is more likely to intervene, such as with Sebelius because there was a circuit conflict, or Windsor because lower courts had struck down an act of Congress, but in many cases the Court gets to decide on the case.  Notably, a lot of cases the Roberts Court has taken have not had circuit conflicts or any other indicia.  Ms. Greenhouse put forth the thesis that the Roberts Court is using this discretionary jurisdiction to decide where the Court wants to reshape the law.  She specifically identified four areas: (1) Race, (2) Religious Accommodation, (3) Abortion, and (4) First Amendment.

Regarding race, Ms. Greenhouse believes that the Roberts Court is trying to get the government “out of the business of race”.  For example, she notes that Shelby County is one of the most “activist” and “astonishing” decisions of the Court because they wretched out the meaning of the 15th Amendment and ignored precedent.  She frames Shelby County as an enormous judicial power grab, which was ironic because the Majority in Shelby County was in the minority in Windsor saying that the Court should defer to Congress.  In Fisher, she said that there was no circuit split and that there were a number of problems with the case, including the issue of standing.  She considers Fisher to be an overreach by the Court – 4 justices granted cert on the assumption that they could get Kennedy, but they couldn’t get him all the way.  She noted that in both Fisher and Shelby County that there was very little legal analysis and the opinions boil down to simply that the Court could get 5 justices.  Further, when the conservative justices realized in mid-spring that Fisher wouldn’t be a vehicle to overturn affirmative action, they granted cert to Schuette for this current term. It’s obvious that these justices want to overturn the 6th Circuit and finish what they couldn’t in Fisher.

Second, Ms. Greenhouse identified the Court’s goal of expanding the scope of religion.  This term is the case of Greece, where volunteer chaplains were used by the town to start meetings and the chaplains gave explicit Christian prayers.  The 2nd Circuit distinguished Marshall v. Chambers, which ruled that nondenominational prayers in Congress were ok, on the grounds that there’s passive observance in Congress by the public, but in Greece the public is forced to be active in the meetings.  Cert was granted by the Court and it has attracted a large amount of amici briefs.  The pro-religion groups want O’Connor’s Establishment Clause test to be scrapped and replaced with a more flexible test.  Ms. Greenhouse isn’t sure that there are 5 votes on that issue, and so it’s puzzling that the Court took this case.

Third, the Court has had a limited chance to deal with abortion.  In 2007, the Court decided Gonzales v. Carhart, which allowed bans on partial birth abortion.  It’s clear in this case, according to Ms. Greenhouse, that the switch from Justice O’Connor to Justice Alito flipped the decision of the Court.  The question in Gonzales, as is the question in Cline for this term, is: What is an undue burden on the access to abortion?  This is under the framework established in Casey (1992).  In Gonzales, the Court ruled that there was no undue burden because alternative abortion procedures could be used.  In Cline the critical issue is whether a state law effectively imposing a ban on medical abortion pills in the early term is an undue burden.  Ms. Greenhouse noted that Casey has been law for 21 years, but we still don’t know what an undue burden is.  She sees Cline as essentially up to Kennedy to define undue burden.  She doesn’t believe Kennedy will abandon the Casey framework, but she has no idea why Cline was granted cert given that hypothesis considering the Oklahoma Supreme court found that the law imposed an undue burden.  Interestingly, Ms. Greenhouse noted that the Oklahoma Supreme Court tried to “cert proof” the case by giving an extremely short opinion, but that the Supreme Court, after granting cert, then asked the Oklahoma Supreme court for more reasoning in the case.  The Roberts Court wouldn’t have granted cert if it wasn’t interested, so the Court will decide the case on the merits.

Ms. Greenhouse also noted the case of McCullen v. Coakley, which deals with the issue of buffer zones around reproductive health clinics to stop anti-abortion proponents from speaking to women entering the clinic.  She noted that the Court has dealt with this issue twice already, and both times upheld the buffer zone.  However, it’s a different First Amendment now, as it’s very likely the Court will find a robust First Amendment right in the case.

The last Roberts Court Project, according to Ms. Greenhouse, is on First Amendment issues.  She believes that liberals haven’t really caught onto this because everyone is programmed to approve of broad free speech rights.  However, she believes the Roberts Court is using the first amendment as a powerful tool of deregulation, such as in Citizens United.  She also noted that this view of the First Amendment is even creeping into basic administrative law cases, such as in Sorrell v. IMS Health, where the Court invalidated a New Hampshire law that prohibited the names of doctors prescribing medications to big pharma.  She noted that the Court’s view of the First Amendment is even causing the Obama Administration to decline to appeal cases to the SC, for example a recent DC Circuit case the struck down tobacco regulations that require graphic labeling on First Amendment grounds.  Ms. Greenhouse views this as a new Lochner regime, where deregulation is being clothed as First Amendment jurisprudence.

In conclusion, Ms. Greenhouse noted that the court is reaching out to take cases that fit their objections with the law.  She believes that the conservatives on the Court view the present as being as good as it will get for them because they have 5 votes for a lot.