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A Big Month for SCOTUS: CWSL Professors Comment

Professors Fink, Aceves, and Smith

The New York Times calls June “peak season” for U.S. Supreme Court (SCOTUS) decisions.

The month of June will see the Supreme Court releasing opinions in cases involving the Affordable Care Act, voting rights, religious freedom vs. same-sex-marriage rights, and a challenge to off-campus regulation of student speech. The possible outcomes in these cases—and the impact the newest justice, Amy Coney Barrett, might have on the cases—will undoubtedly affect virtually every American.

Calling on the expertise of California Western’s faculty to provide context in these cases, we asked Constitutional Law experts Professors Jessica Fink, William Aceves, and Glenn Smith to comment on the potential outcomes of these decisions as the SCOTUS term concludes.

California v. Texas
The Affordable Care Act is once more in front of the SCOTUS, with conservative lawyers and state officials asking the justices to render the Act unconstitutional as the individual mandate—the tax penalty for not buying insurance—has been zeroed out.

“While the Court seems likely to deem the individual mandate portion of the ACA to no longer fall within Congress's Taxing Power (and therefore to be unconstitutional), the Court seems unlikely to strike down the Act as a whole,” says Professor Fink. “Rather the Court likely will ‘sever’ this now-invalid portion of the law out of the Act and leave the remainder intact.”

“While Justice Barrett unsurprisingly seemed to be on board with the idea that Congress' changes to the Act's ‘shared responsibility payment’ might well render the individual mandate to be unconstitutional,” adds Professor Fink, “she too seemed to push back on the idea that it should lay with the Court to take the additional step of striking down the entire Act.”

Brnovich v. Democratic National Committee
This voting rights case centers on whether Arizona’s out-of-precinct ballot-counting and ballot-collection prohibitions violates the Voting Rights Act.

Professor Smith observes that this decision could significantly impact the effectiveness of voting-rights protections, and therefore could play a significant role in the current debate over state power to restrict voting.

“Along the way to resolving this factually complicated case,” continues Smith, “the Court will decide whether a Ninth Circuit ruling is as out of the mainstream as the challengers claim and whether strong congressional voting-rights protection pushes up against constitutional limits.”

Fulton v. City of Philadelphia, Pennsylvania
Contrary to the City of Philadelphia’s anti-discrimination policies, a social services agency associated with a religious group refuses to place foster children with same-sex couples. Essentially, the Supreme Court must now rule on religious freedom vs. LGBTQ rights. Many commentators believe the Court will uphold the religious freedom claim.

This framing troubles Professor Aceves. “Religious freedom is no more, nor less important than equality.” In addition, Professor Aceves points out another concern. “The Court’s recent jurisprudence fails to acknowledge that equality, dignity, and fairness are essential principles in many religious systems. Thus, the protection of LGBTQ rights is itself a religious value to many people.” For these reasons, Professor Aceves hopes the Court’s decision will frame the issues in a way that minimizes conflict between fundamental rights. “Otherwise, it will only deepen the schisms that now separate so many Americans.”

Professor Smith believes the case has the potential to make a major change in the constitutional balance between government protection of important civil rights and the right of religious dissenters not to follow the regulatory dictates.

“It will be especially interesting to watch new Justice Barrett,” continues Professor Smith, “as she will likely be the pivotal vote on overturning a several-decades-old precedent (ironically, written by Justice Scalia, Barrett’s self-described mentor).”

Mahanoy Area School District v. B.L.
Another high-profile case that has garnered intense public interest centers on whether public school officials may regulate speech occurring off-campus even when it is not clear whether the speech materially and substantially disrupted the school discipline.

Professor Aceves notes that social media has profoundly impacted the way in which people communicate, and on some occasions, it has required the development of new laws.

“But in Mahanoy, existing constitutional principles can easily resolve the issue before the Court,” he adds. “Thus, we should not anticipate a profound change to free speech principles in educational settings. In all likelihood, the Court will simply apply existing principles to regulate student social media posts.”

“Free speech cases are always interesting because they do not typically divide along liberal/conservative polarities,” says Professor Smith.

The Court has a wide array of options on resolving this case, continues Professor Smith, from narrowly deciding in the student speaker’s favor, ruling for the school, or broadly declaring the rights of schools to regulate off-campus speech.

“If the Court goes for the last option, this will be an interesting example of an overreacting lower court luring the Court into an unnecessary overreach.”