Tuesday, April 24, 2018
Will this Term see the unmistakable end of Chief Justice Roberts's decade-plus streak of outcome agreement with the U.S. Conference of Catholic Bishops?
This Term, we are likely to see the umistakable end of Chief Justice Roberts's decade-plus streak of outcome agreement with the U.S. Conference of Catholic Bishops in Supreme Court cases in which the USCCB has filed or joined an amicus brief and the Court has issued signed opinions. The outcome-agreement streak almost certainly ended two years ago in United States v. Texas, in which the USCCB joined an amicus curiae brief with several other religious organizations supporting reversal but the Supreme Court affirmed by an equally divided vote. The names of the Justices on each side of the four-four split were not published, but Chief Justice Roberts was almost certainly one of the four votes for respondent Texas. (No reason to think Ginsburg, Breyer, Sotomayor, or Kagan voted for Texas.)
In a law review symposium article a few years ago, I examined the votes of Supreme Court Justices for outcome agreement in cases from the beginning of the Rehnquist Court in October Term 1986 through October Term 2013 in which the United States Conference of Catholic Bishops had filed an amicus brief.
From the beginning of the Roberts Court in OT 2005 until the end of that study (June 2014), Chief Justice Roberts was the only Justice with a perfect record of outcome agreement with the USCCB (eleven cases out of eleven). In those same eleven cases, Justices Scalia and Thomas were at ten of eleven. Some of those cases pre-dated Justice Alito's time on the bench, but he was six out of seven in USCCB cases. (The table and parts of the discussion in the article if you click through to it are outdated because of a lag time between acceptance and final publication in which I failed to update for Hobby Lobby and Holt v. Hobbs; my bad.)
The difference-maker was Arizona v. United States. Chief Justice Roberts joined a six-Justice majority holding three provisions of an Arizona law dealing with immigration enforcement to be preempted by federal law. The USSCB filed an amicus brief in support of respondent United States. Roberts sided with the respondent while Scalia, Thomas, and Alito sided with petitioner Arizona.
By my count, the USCCB has filed or joined an amicus curiae brief in nine more cases since the end of OT 2013:
Obergefell v. Hodges (OT 2014)
Whole Women's Health v. Hellerstedt (OT 2015)
Zubik v. Burwell (OT 2015)
Trinity Lutheran Church of Columbia v. Pauley (OT 2015)
United States v. Texas (OT 2015)
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (OT 2017)
National Institute of Family and Life Advocates v. Becerra (OT 2017)
Janus v. American Federation of State, County, and Municipal Employees (OT 2017)
Trump v. Hawaii (OT 2017)
As previously noted, the Court affirmed by an equally divided vote in one of those cases (United States v. Texas). Four remain pending for decision this Term. In the other four, though, Chief Justice Roberts voted for the outcome favoring the same side that the USCCB argued in favor of. (Those cases were Obergefell, Whole Women's Health, Zubik, and Trinity Lutheran.)
The most likely candidate for a case in which Chief Justice Roberts votes against the party supported by the USCCB as amicus is Janus v. American Federation of State, County, and Municipal Employees. The USCCB's brief supports the respondent public-sector union, while Chief Justice Roberts is likely to vote in favor of the petitioner. This is a First Amendment challenge to "agency fees" for public-sector unions. Chief Justice Roberts has signaled willingness to support such a challenge (by joining an opinion suggesting as much in Harris v. Quinn and likely voting for the petitioner in Friedrichs v. California Teacher Association, a 4-4 split).
Another possibility is Trump v. Hawaii, which is being argued tomorrow, but for which I don't have a good predictive sense of how the Chief Justice is likely to vote.