The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We are now about seven hours away from the fourth installment in Joan Biskupic's series about leaks from the Supreme Court. Here, I will try to predict the content, and narrative of the final installment. I assure you, I have no insights. I am only going to use the process of elimination.
Part I focused on the DACA case, Public.Resource.Org, NYS Rifle & Pistol, the Public Charge Rule case, and the Court's procedures after the COVID-19 lockdown. Part II considered Bostock and Ramos. (Some of my predictions at the end of Part II were on point). Part III analyzed Mazars, Vance, and June Medical.
What is left over? Biskupic has not written about the three major religious liberty cases: Our Lady of Guadalupe, Little Sisters of the Poor, and Espinoza. It is not difficult to ferret out the pro-Kagan narrative in those three cases. Let's give it a go.
First, in Our Lady of Guadalupe, the Chief assigned the majority to Alito. Kagan and Alito had previously written a separate concurrence in Hosannah-Tabor. Kagan and Breyer ensured that the majority closely tracked that opinion, and did not go farther, but also left some wiggle room for the lower courts to exclude some border-line positions from the ministerial exception. A 7-2 vote is far better than a 5-4 vote, especially in a religious liberty case. Kagan-narrative, check.
Second, in Little Sisters of the Poor, Breyer and Kagan agreed to concur in judgment if the majority wrote a narrow, admin-centric opinion. In other words, to ensure the Court remained 7-2, rather than 5-4, the majority did not resolve the RFRA issue. I'm sure that assignment was tough for Justice Thomas. But he did't want to lose the Chief, who could have fractured off, and created a messy plurality opinion. And it will all be for naught. Kagan's concurrence provides a roadmap for the District Court to rule against the Little Sisters on remand. I bet Thomas would have much rather joined Justice Alito's RFRA concurrence, but he was addled with the assignment, and had to stick to it. Kagan-narrative, double-check.
Third we get to Espinoza. It was never clear to me how there was a live case or controversy. And I'm certain Justice Kagan lobbied the Chief to dismiss the case outright. But he was so stubborn. Blaine Amendment and all. And she couldn't persuade the Chief. So Kagan joined Justice Ginsburg's dissent on jurisdiction. Kagan did not join Breyer's dissent on the merits, leaving that issue open. Kagan-narrative, triple-check.
There are a few other candidates for Part IV, but they are not as juicy. Kagan could grouse about Seila Law. After some reflection, the tone of her dissent was so overwrought. She kicked ass this term. That was her only defeat. And it was such a slight defeat because she concurred in the judgment to sever the for-cause provision. Now, she writes for the casebooks. (I'll be teaching Seila Law in the fourth week of the semester). I would like to learn more about the conservative divide on severability. In Barr v. AAPC as well. The right is really fractured on severability.
Biskupic may also write about the the faithless electors cases, which were unanimous. Perhaps we will get some details on how Justice Sotomayor finally realized she had to recuse. Or maybe will will learn about Justice Gorsuch's over-confidence in McGirt. We learned Thomas had a heart-to-heart in Bostock. I suspect CT had similar words over McGirt.
Till Thursday morning. Let's see how I do.