As part of its commitment to constitutional legal scholarship, BYU Law hosted its annual Supreme Court Review—an examination of important cases, notable decisions, and changes to the composition of the Court. This year we were joined by students, alumni attending Reunion Weekend events, and faculty as we discussed 2018’s most important legal developments.
Judge Kavanaugh: An Overview
Professor Aaron Nielson—professor of administrative law and D.C. Circuit commentator for the D.C. Circuit Review-Reviewed—opened the session with a presentation on Judge Kavanaugh and his nomination to the Supreme Court. Professor Nielson served as a clerk on the D.C. Circuit Court and to Justice Alito on the Supreme Court; he has studied and commented on Judge Kavanaugh’s decisions extensively.
“What you’re getting with Kavanaugh is someone very similar to Justice Scalia—he’s a textualist. But he’s also a dissenter, ” Professor Nielson explained. Because of this similarity to Justice Scalia, many worry that Kavanaugh’s appointment to the Court will lead to the overturn of cases related to climate change, LBGTQ rights, reproductive rights, and more. Professor Nielson, however, disagrees: “Based on his past decisions, I believe that he will not attempt to overturn these cases, but will rather work to cabin them.”
“Ultimately,” Professor Nielson says, “none of us have a crystal ball to predict what Judge Kavanaugh will do… except when it comes to justiciability issues. I think I have a pretty good idea there.” Those predictions are explored in more depth on Nielson’s SCOTUSblog commentary (available here).
Our Supreme Court Review continued with an overview of four cases decided this year: Ohio v. American Express; Trump v. Hawaii; Janus v. State, County, and Municipal Employees; and South Dakota v. Wayfair. Professors Paul Stancil, Carolina Núñez, Justin Collings, and Gladriel Shobe explained the significance of each of these cases as they apply to different legal fields.
American Express, a case focused on antitrust law, revealed the tension between “getting things done versus getting things right,” according to Professor Stancil. The issue at stake is the common policy of many credit card companies to include contract provisions that prevent businesses from steering customers to certain cards. While some contend that this is a violation of antitrust law, the Court ultimately decided that the steering policies are permissible.
Trump v. Hawaii, one of this year’s most publicized cases, addressed current immigration law. Professor Núñez explained the many issues at stake in the case, including whether or not the President may issue executive orders making immigration policy and whether the administration’s policy violates the establishment clause. She concluded that the Court’s decision to uphold the third version President’s executive order was a significant affirmation of executive power in immigration.
Turning to the topic of compelled speech, Professor Collings described the significance of the Janus case. The question before the Court was whether public sector unions may collect fees from non-union members. Because union activities can be considered political activity, Professor Collings explained, many consider this practice a violation of the First Amendment because it “compels speech” by requiring individuals to pay for speech they may not agree with. The Court agreed, ruling that no public sector employee can be compelled to pay union dues.
Professor Shobe finished the panel by turning to the field of tax law. Wayfair addresses the long-standing question of whether online retailers are subject to state sales tax, even if they have no physical presence in that state. In concluding that the physical presence requirement established in Quill Corp. v. North Dakota was incorrect, the Court’s decision overturned a significant piece of precedent. Because this decision changes the rules that govern e-commerce, “This case impacts nearly everyone,” Professor Shobe concluded.
Our review finished with a panel discussion by Professors Stephanie Barclay, Frederick Gedicks, Brett Scharffs, and Elizabeth Clark regarding the recent decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. It was perhaps 2018’s most publicized Supreme Court case, and it has important implications for First Amendment interpretation.
Professor Gedicks first agreed that the justices were “right to reject Phillip’s compelled speech argument in their holding,” but also suggested that they “bungled the remedy.” Instead of the decision as it was issued, Professor Gedicks proposed that the Court should have vacated the trial court verdict and remanded the case for retrial.
Professor Clark gave a clear background of the case, explaining that Jack Philips, the baker in the case, had a history of refusing to make certain kinds of cakes that conflicted with his religious beliefs on other issues in addition to gay marriage. In the Masterpiece case, he had expressed a willingness to sell the couple one of his non-specialty pieces but was unwilling to make a specialty, ‘artisan’ cake. While many hoped that this would tee up an opinion from the court on free speech and religious exercise, the Court instead focused on the hearing process involved.
Members of the Colorado Civil Rights Commission, in concluding that Mr. Phillips was in violation of state anti-discrimination law, made statements that indicated anti-religious bias in their decision-making. While the opinion did not answer the free speech and exercise questions many hoped it would, Professor Scharffs noted that “the Masterpiece case sets the standard that the application of law cannot be hostile or show animus toward religious belief.” This, he says, is a significant holding of the case.
This issue of religious freedom, Professors Barclay explained, was the larger issue at play in this case. “Are we going to allow religious vendors to make the same moral decisions other businesses do? Are we going to be neutral and fair in how we allow people to make value judgements?” Professor Barclay asked. She outlined potential test cases in which the questions Masterpiece Cakeshop left unanswered might appear before the Court again.
Given the lack of clear answers, our panel agreed that this will certainly not be the last time the Supreme Court will need to address these issues.