The Volokh Conspiracy

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Of Crosses, Deference and Delegation

A day of relatively small opinions from SCOTUS suggests big doctrinal developments may be on the horizon


Today the Supreme Court issued four more opinions, with more expected tomorrow and next week. As with Monday's opinions, today's decisions featured some interesting line-ups and lots of clues about how existing doctrine may evolve in the coming years.

The highest profile case decided today was American Humanist Association v. American Legion, a First Amendment Establishment Clause challenge to the maintenance of the Bladensburg Cross in Maryland. Unsurprisingly, the Court rejected the AHA's claim that the cross constituted an Establishment Clause violation by a vote of 7-2. There was not  much question that this decades-old World War I memorial was permissible under current doctrine. Nonetheless, the case produced numerous opinions and divisions on the Court.

Justice Alito wrote the majority opinion. He was joined in full by the Chief Justice, and Justices Kavanaugh and Breyer, and in part by Justice Kagan. Justices Breyer and Kagan also wrote separate concurring opinions, as did Justice Kavanaugh. Justices Thomas and Gorsuch also wrote opinions concurring in the judgment, suggesting the case should not have been heard, either because the plaintiffs lacked standing (Gorsuch, joined by Thomas) or because the Establishment Clause shouldn't apply to the states or to monuments (Thomas). Justice Ginsburg dissented, joined by Justice Sotomayor.

One reason this "easy" case divided the justices so much is because there is disagreement over the proper test to apply in Establishment Clause cases, as well as how to apply it. The conservatives are skeptical of the so-called "Lemon test," while Justices Breyer and Kagan would like to keep it. So while there was some agreement the cross would satisfy Lemon, there was not agreement that this is how the cross should be invalidated. This division virtually ensures the Court will reconsider Lemon in an appropriate case.

While the cross case may capture the most headlines, some of the other cases may be more important. As Ilya Somin notes in a post below, the Court rejected a non-delegation challenge to the Sex Offender Registration and Notification Act (SORNA), 5-3 in Gundy v. United States, although no opinion commanded a majority of the Court. There were only eight votes in Gundy because Justice Kavanaugh did not participate, having joined the Court after the Gundy argument. Indeed, Gundy was argued on the first day of the Court's term, so we'd been waiting for this one for a while.

Although some of the Court's liberal justices seemed uncomfortable with the idea that Congress could delegate authority to the Attorney General to decide when SORNA's registration requirements apply, all of the Court's liberals joined Justice Kagan's opinion for the Gundy majority.

The crucial fifth vote for the federal government in Gundy came from an apparently reluctant Justice Alito, who noted in a separate opinion concurring in the judgment that he was open to reconsidering the non-delegation doctrine, but would not support the selective application of the doctrine to criminal law statutes such as SORNA. Put another way, Justice Alito seemed to be saying that if the nondelegation doctrine is on the table, he's game, but only if it is to be applied across the board. Justice Gorsuch dissented in Gundy, joined by the Chief Justice and Justice Thomas, arguing that the SORNA crosses the line and constitutes an impermissible delegation.

Although we don't know what Justice Kavanaugh thinks of the delegation issue, Gundy suggests there are at least four justices willing to consider reinvigorating the nondelegation doctrine. We also might not need to wait too long to learn whether this is so, as there cases presenting plausible nondelegation arguments against some Trump Administration actions working their way up through the courts, including a challenge to the imposition of steel tariffs and the Administration's declaration of a "national emergency" to build a wall along the Mexican border.

The Court issued another administrative law ruling in PDR Network v. Carlton & Harris Chiropractic. Here the Court was unanimous in the judgment, vacating a lower court decision that deferred to the FCC's interpretation of language in the Telephone Consumer Protection Act (TCPA), but split on whether deference was actually due. Justice Breyer wrote for five justices—the other liberals and the Chief Justice—to hold narrowly that the lower court needed to determine the nature of the FCC's action (i.e. whether it was a legislative or interpretative rule under the Administrative Procedure Act) and whether the FCC's determination could be challenged in the context of an enforcement proceeding. In Justice Breyer's view, a remand was in order so the lower court could answer these questions. In other words, he punted.

Justice Kavanaugh, joined by Justices Thomas, Alito and Gorsuch, saw no need to wait for the resolution of such questions. Concurring in the judgment, Justice Kavanaugh would have held that PDR Network was not precluded from challenging the FCC's interpretation of the relevant statutory provisions, and that the FCC's interpretation was not due binding deference from the lower court. Justice Thomas also wrote separately, joined by justice Gorsuch, suggesting an additional reason to reject the FCC's statutory interpretation: Chevron was wrong and should be reconsidered.

The final opinion of the day was McDonough v. Smith, in which a six-justice majority crossing traditional ideological lines, held that the statute of limitations for a criminal defendant's Section 1983 claim alleging the fabrication of evidence did not begin to run until the end of the proceedings against him. Justice Sotomayor wrote the majority, joined by the Chief Justice, and Justices Breyer, Ginsburg, Alito, and Kavanaugh. Justice Thomas dissented, joined by Justices Kagan and Gorsuch.

McDonough is potentially important because it makes it easier for criminal defendants to sue police or prosecutors who engage in misconduct against them. It also produced a most unusual line-up. It's not very often Justice Alito joins a pro-criminal defendant majority in a divided case, particularly when at least one of the Court's liberals (here, Justice Kagan) is on the other side.

Something else interesting about today's opinions is that (as on Monday) the Chief Justice and Justice Breyer stuck together in three of the four cases, either because one of them "crossed over" (Breyer in the cross case, the Chief Justice in PDR Network) or because they were on the same side in a case featuring an untraditional split (McDonough). Unlike Monday, Justice Alito was not part of this pattern, as he split with Breyer and the Chief in PDR Network. Nonetheless, as I noted on Monday, it is worth watching to see whether this pragmatist bloc continues to appear in other cases.

That's all for today. There are still 16 cases to be decided, and only ten days left in June. This means we'll get lots of opinions within the next week, including one or more tomorrow. Stay tuned.