The Volokh Conspiracy

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A Rosy End to Blue June

Is Espinoza enough to make conservatives look past the Chief's never-ending chess match?


I have now finished reading the Court's 92-page decision in Espinoza v. Montana Dept. of Revenue. (If you'd like a 21-page edited version, please email me: josh-at-josh-blackman-dot-com.) My final prediction for the pre-Corona cases was very, very wrong. I speculated that Chief Justice Roberts or Justice Breyer would write Espinoza, and reach some sort of narrow ruling. I completely whiffed here.

Chief Justice Roberts's majority opinion is a full and resounding victory for the Petitioners. There is some uncertainty about the remedy–what exactly is the Montana Supreme Court supposed to do on remand? But Roberts touches all the bases, and does not squish out on any of the key points. I will have much more to say about the specific mechanics in later posts. (I still have several other posts still in the hopper about June Medical and Seila Law).

Here, I'd like to place Espinoza in the larger context of Blue June. To date, social conservatives lost every big case: immigration (DACA), abortion (June Medical), and Title VII (Bostock). And in each case, the Chief was in the majority with the Court's four progressives. But on the last day of June, the Chief authored a solid opinion that will have tangible benefits for people of faith in 30-odd states. This decision puts Blaine Amendments nationwide in constitutional doubt. Coupled with the Chief's whittling away of Whole Woman's Health in June Medical, some conservatives may feel a shot of adrenaline. A rosy end to Blue June, indeed.

There are about eight remaining cases, including the Little Sisters of the Poor latest challenge to the ACA. On Sunday, I was fairly confident the Chief would hold the administration's feet to the fire and demand some precise level of APA-inspired seppuku to disembowel the Obama-era regulations. But my predictions have shifted. I think the Court reverses the Third Circuit.

What about the tax return cases? After the Chief's unitarian decision in Seila Law, I don't think he'll find that the House's subpoena is enforceable. I still think he will split the difference and allow the state grand jury proceeding to go forward. Roberts knows well that the grand jury proceedings will likely not be unsealed until Trump is out of office, and can be indicted. At that point, no one will really care.

Finally, my prediction about the other case decided today was on point. Justice Ginsburg wrote the majority decision in Patent and Trademark Office v. B. V. I'm sure she was happy to give her former clerk, Lisa Blatt, another win. It was an excellent argument.

Much more to come.