That’s a wrap! OT19 went out with a bang this morning, as the Court issued its hotly anticipated decisions in Trump v. Vance (No. 19-635) and Trump v. Mazars USA (No. 19-715), concerning ability of the Manhattan District Attorney and the House of Representatives, respectively, to subpoena the President’s financial records. Both 7-2 decisions were authored by the Chief Justice, joined by the four more liberal justices and Trump’s two appointees, Gorsuch and Kavanaugh. In Vance, the Court squarely rejected the President’s argument that Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of state criminal subpoenas to a sitting president. However, it noted that the President could raise the same arguments against the District Attorney’s subpoena as any other party and remanded for consideration of those arguments. In Mazars, the Court issued something of a compromise decision, holding that the lower courts had not taken adequate account of significant separation of powers concerns when they approved of the House subpoenas, but also rejecting the President’s arguments that the House must show that its subpoenas are “demonstrably critical” to a legislative purpose. In short, we might be in for some angry tweets today, but there is still much more legal wrangling to come before anyone can expect to actually see the contents of the President’s financial information.

While these marquee decisions are likely to garner the most attention today, the “undercard” was also a biggie. In McGirt v. Oklahoma (No. 18-9526), the Court (5-4 with Justice Gorsuch joining and writing for the liberals), the Court held that land reserved for the Creek Nation since the 19th Century remains “Indian country” for purposes of the Major Crimes Act, meaning that enrolled members of Tribal nations who commit certain offenses in the Creek Reservation—which includes much of Oklahoma—can be prosecuted only in federal court. The Court’s holding invalidates not only the criminal conviction of Jimcy McGirt, but also those of possibly hundreds or thousands of other offenders who were prosecuted in state court.

We’ll be back with much more on these cases as soon as we’ve had the opportunity to digest all 200+ pages. In the meantime, read on for summaries of yesterday’s decisions: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431) and Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267).

The Little Sisters are first up. The Patient Protection and Affordable Care Act of 2010 (“ACA”) requires covered employers to provide women with “preventive care and screenings” without copayments or deductible, and delegates the authority to determine what is encompassed in “preventive care and screenings” to the Departments of Health and Human Services, Labor, and the Treasury (the “Departments”). Under President Obama, the Departments issued the so-called “contraceptive mandate,” which required health plans to provide coverage for various contraceptive methods and sterilization procedures. As regular readers (either of the Update or really any newspaper) are well aware, that mandate has been the subject to two prior visits to the Supreme Court. In Burwell v. Hobby Lobby Stores (2014), the Court held that the Religious Freedom Restoration Act (“RFRA”) required the government to exempt for-profit corporations that objected to direct coverage of contraceptive care from the mandate, just as it exempted religious non-profits. And in Zubik v. Burwell (2016), the Court took up a challenge by the Little Sisters to the particulars of the exemption process, which they argued forced them to indirectly cause others (namely insurance carriers) to provide contraceptive care to their employees. Hobbled by the absence of a ninth justice, the Court in Zubik remanded the case for the Obama Administration and the Little Sisters (et al.) to work out a proposed compromise. (Ah, the Kennedy days….)

Within months, however, the Obama Administration ceded to the Trump Administration, which took a very different view of the contraceptive mandate. In 2017, now under Republican control, the Departments promulgated a new set of rules that expanded the previous exemptions to include employers—including for-profit and publicly traded companies—with objections based on sincerely held religious or moral beliefs. The States of Pennsylvania and New Jersey swiftly challenged the new rules, alleging that the Departments lacked statutory authority to promulgate the exemptions and departed from required rulemaking procedures. A district court in the Third Circuit agreed with the states and issued a nationwide preliminary injunction against the implementation of the rules. On appeal, the Third Circuit affirmed.

In an opinion authored by Justice Thomas, the Supreme Court reversed. The Court found that the ACA’s sparse text delegated broad authority to the Departments, allowing them the discretion to craft exemptions as well as guidelines for preventative care and screenings. Further, the Department was right to consider RFRA—especially as glossed in Hobby Lobby and Zubik—when drafting accommodations for religious objectors. The states’ procedural objections were equally unavailing: The final rules provided ample notice, gave interested parties the opportunity to submit their views for consideration, offered a concise general statement of their basis and purpose, and were published well before going into effect. Accordingly, the Court upheld both the religious and moral exemptions and remanded the case to the Third Circuit.

Justice Alito concurred, joined by Justice Gorsuch. He noted that the battle is not over: Pennsylvania and New Jersey can still argue on remand that the final rules are arbitrary and capricious. Alito would have preempted that argument by expressly holding that RFRA requires the broad exemptions because government services can provide equivalent contraceptive care without substantially burdening religious exercise. This holding—which the Court did not reach—would have brought the Little Sisters’ “legal odyssey to an end.”

Justice Kagan, joined by Justice Breyer, concurred in the judgment. Kagan found the ACA’s delegation of authority to the Departments ambiguous in its breadth, but she deferred to the implementing agencies’ reasonable interpretation that they could craft exemptions to their guidelines. On remand, however, Justice Kagan suggested that the new rules might well be found arbitrary and capricious because they exempt not only the Little Sisters, but allgood-faith religious and moral objectors, even publicly traded corporations.

Justice Ginsburg dissented, joined by Justice Sotomayor. Ginsburg read the enabling provision of the ACA to grant agency discretion only over what services are mandated, not who must provide those services (or opt out). Moreover, that discretion is primarily vested in a single agency—the Health Resources and Services Administration, or HRSA—not the Departments responsible for formulating the exemptions at issue. Justice Ginsburg also objected to a religious exemption granted at the expense of women who would no longer have seamless contraceptive coverage through their employers’ group plans. By contrast, the self-certification accommodation sufficiently alleviated any substantial burden on religious exercise without shifting costs to third parties. That’s where she and Sotomayor would have drawn the line.

And so the “legal odyssey” continues, with the potential for yet another sharp turn come November…

Religious rights—and, by some lights, wrongs—were also at issue in Morrissey-Berru, where the Court addressed the scope of the so-called “ministerial exception” to employment laws, which bars courts from entertaining employment-discrimination claims against religious employers where the employee in question serves in a “ministerial” capacity. The Court adopted the ministerial-exception in Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012), where it found that a teacher, Cheryl Perich, whose title (“Minister of Religion, Commissioned”), educational training, and job responsibilities suggested that she served a ministerial function, could not, consistent with the First amendment, bring an employment-discrimination claim against her religious school.

In this case, the Court considered the employment-discrimination claims of two additional Catholic elementary school teachers, Morrisey-Berru and Biel. Both were employed by schools in the Archdiocese of Los Angeles under agreements that set out their schools’ mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of faith; and explained that teachers’ performances would be reviewed on those bases. Both teachers taught religion in the classroom; worshipped and prayed with their students; and were evaluated in part on these bases. But neither had the title of “minister,” and neither had formal religious training like Perich had. Each of them sued their school after being terminated, Morrisey-Berru alleging age discrimination and Biel alleging disability discrimination. In each case, a district court granted summary judgment for the school under the ministerial exception, but the Ninth Circuit reversed.

The Supreme Court sided with the schools, 7-2. Writing for the majority (all but Ginsburg and Sotomayor), Justice Alito stressed that the independence of religious institutions in matters of “faith and doctrine” is an essential part of the Court’s First Amendment jurisprudence. The Court looked to precedent when it first considered the ministerial exception in Hosanna-Tabor and unanimously concluded that the First Amendment foreclosed certain employment-discrimination claims brought against religious organizations. Although the Court in Hosanna-Tabor declined “to adopt a rigid formula for deciding when an employee qualifies as a minister,” it identified four relevant circumstances of Perich’s employment that put her discrimination claim off limits: her title, her religious training, the fact that she held herself out as a minister and claimed related tax benefits, and her job duties, which included conveying the church’s message and carrying out its mission. But Justice Alito cautioned that the recognition of these factors in Perich’s case did not mean that they must be met in all other cases. Instead, what matters is what an employee does. In particular, Hosanna-Tabor recognized that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a religious school’s mission. Applying that understanding, Alito concluded easily that Morrisey-Berru and Biel did qualify as “ministers,” as the record made clear that they performed vital religious duties, including educating their students in the Catholic faith and guiding them to live their lives in accordance with that faith. Though the Ninth Circuit was correct that Morrisey-Berru were not identical to Perich (in particular they were not called “ministers” and lacked Perich’s religious training), it was wrong to treat the circumstances of Perich’s case as a checklist of items necessary in every case.  

Justice Thomas, joined by Justice Gorsuch filed a concurring opinion reiterating his view (expressed in Hosanna-Tabor) that courts must defer to religious institutions’ good-faith claims that a particular employee’s position is “ministerial,” without undertaking a searching inquiry into various factors.

Justice Sotomayor dissented, joined by Justice Ginsburg. She decried the Court’s insulation of religious employers from facing employment-discrimination claims—even those based on bigotry—merely because some aspect of their job duties may touch upon religion. Although both Justices were in the majority in Hosanna-Tabor, they insisted that the Court in this case “ignore[d] the applicable standard of review and collapse[d] Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role.” That test, they maintained, was far too simplistic and would strip thousands of religious-school teachers of their legal protections.

Finally, just as we were about to go to press, the Court issued the results of its “mop-up” conference (its last conference before the end of the OT2019 term). Most notably, the Court granted cert in six cases (four after consolidation):

• Collins v. Mnuchin (No. 19-422) and Mnuchin v. Collins (No. 19-563), where the Court will review various aspects of a Fifth Circuit en banc decision involving the Federal Housing Finance Agency. Those include (1) whether its structure—it’s led by a single director who can be removed only for cause—is unconstitutional; (2) if so, what’s the appropriate remedy (severing the provision or setting aside all agency action taken under the unconstitutional structure); and (3) whether the Fifth Circuit had the authority to invalidate the FHFA’s funding arrangement with the Department of Treasury.

• AMG Capital Management, LLC v. FTC (No. 19-508) and Federal Trade Commission v. Credit Bureau Center, LLC (No. 19-825), two consolidated cases asking whether the FTC’s authority to seek and obtain “injunctions” allows it to seek an injunction ordering the return of unlawfully obtained funds.

• Facebook, Inc. v. Duguid (No. 19-511) addresses whether the TCPA’s definition of an automatic telephone dialing system includes a device that can store and automatically dial telephone numbers but that does not use a random or sequential number generator.

• And Uzuegbunam v. Preczewski (No. 19-968), where the Court will consider whether the government’s change of an unconstitutional policy after the filing of a lawsuit moots claims for nominal damages seeking to vindicate the government’s completed violation of a constitutional right.