Introduction
Despite the obstacles, the Court issued a number of consequential decisions, affecting high-profile subjects like immigration,5 sexual orientation and gender identity,6 abortion,7 and President Trump’s tax records.8 The Court also decided cases that will affect individuals’ ability to obtain relief from the courts when their rights are violated—which we refer to in this article as access to court.
The Supreme Court has recognized that access to court is “indispensable to a free government.”9 Going to court is “the alternative of force. In an organized society, it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship.”10 Since its inception, the Supreme Court recognized the “invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.”11 However, beginning in the late 1980s, under Chief Justice Rehnquist, the Supreme Court began to make it more and more difficult for individuals to access the courts, particularly when seeking to assert claims against the government.12 This trend continues today.
The particular subject matter of the Court’s access-to-court decisions varies somewhat from year to year, depending on the issues contained in the petitions for certiorari that reach the Court. This article will focus on access-to-court rulings from the 2019–2020 Term, which saw the Court address the following issues: state sovereign immunity, discrimination claims, statutory construction, suits against religious employers, the Administrative Procedure Act, severability, statutes of limitation, and finality. In each of these areas, the Court made decisions that will broadly affect whether and how individuals can obtain relief from a court. The article concludes by previewing potentially significant access-to-court cases of the 2020–2021 Term.
Blackbeard the Pirate set the stage for the Court to decide Allen v. Cooper.14 Blackbeard commandeered a slave ship and renamed her the Queen Anne’s Revenge in 1717.15 A year later, the ship ran aground off the coast of North Carolina.16 Queen Anne’s Revenge lay there until 1996 when a marine salvage company discovered it.17 North Carolina assumed ownership, as the ship was discovered along its coastline, and contracted with the salvage company to recover it.18 The company hired Frederick Allen, a local of North Carolina, to take photos of the salvage effort.19 Mr. Allen did his job and registered copyrights of all his work. After North Carolina published some of Allen’s photographs, he sued the State, alleging copyright infringement and seeking money damages.20 North Carolina moved to dismiss based on sovereign immunity.21 Although the district court allowed the infringement claim to proceed, the United States Court of Appeals for the Fourth Circuit agreed with North Carolina’s arguments and reversed.22 The Supreme Court granted certiorari.23
Despite calling copyright infringement “a modern form of piracy,”24 the Court found North Carolina immune from suit based on the Eleventh Amendment, which states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”25 The Court acknowledged that the text of the Eleventh Amendment generally bars suits against a state by citizens of another state, but noted that, despite this, the Supreme Court has long applied the amendment more broadly to also preclude suits by a state’s own citizens.26 Thus, the Court held that amendment applied in Mr. Allen’s case.
There are exceptions to state immunity, but over the last couple of decades, the Court has significantly narrowed them. Mr. Allen could not navigate these narrow straits. One exception allows a state to be sued if Congress has abrogated, or removed, the state’s immunity.27 For this to occur, Congress first has to clearly state its intention to abrogate in a statute, and it must also have the constitutional authority to take that step.28
In Mr. Allen’s case, there could be no doubt that Congress abrogated the state’s immunity. “The Copyright Remedy Clarification Act (CRCA) provides that a state ‘shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court’ for copyright infringement.”29 However, the case foundered on the shoals of the second requirement—that Congress must have the constitutional authority to abrogate. The Court looked at this requirement in an analogous case and that case controlled, thus leaving the “slate . . . anything but clean.”30
Mr. Allen argued in defense of congressional authority; first, that Article I of the Constitution empowered Congress to legislate copyright protection and that to abrogate states’ immunity from suit was necessarily a valid exercise of that power.31 However, the Court had rejected that argument twenty years prior in a patent infringement case under the Patent Remedy Act, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank.32 It rejected the argument here, too, finding the Patent Remedy Act and the CRCA to be “basically identical statutes.”33 To decide for Allen, the Court would have had to overrule Florida Prepaid. It refused, stating that stare decisis is “a ‘foundation stone rule of law’” and to overturn a decision requires a “‘special justification,’ over and above the belief ‘that the precedent was wrongly decided.’”34 Justice Thomas disagreed with this discussion of stare decisis, stating that the Court has a duty to correct erroneous precedents, and no “special justification” is needed.35
Next, Mr. Allen argued that Congress could abrogate the State’s immunity under section 5 of the Fourteenth Amendment.36 This provision unquestionably shifted the balance of power between state and federal governments. However, a couple of decades ago, the Court introduced what amounts to a strict scrutiny test that drastically heightened the requirements for using this power.37 This test requires Congress to tailor the abrogation to remedy a pattern of intentional or at least reckless infringement by states of individuals’ Fourteenth Amendment protections and to ensure “congruence and proportionality” between the injury to be prevented and the remedy Congress uses.38 The Florida Prepaid Court applied this test to reject abrogation in the Patent Remedy Act, and the Allen Court found that precedent controlled the CRCA.39 As occurred in Florida Prepaid, the Court found little evidence of systemic statutory infringement by the states: “In this case as in [Florida Prepaid], the statute aims to ‘provide a uniform remedy’ for statutory infringement, rather than to redress or prevent unconstitutional conduct.”40 As a result, Mr. Allen could not sue the state.
As this case illustrates, in recent times, the Supreme Court has narrowed congressional power to abrogate state sovereign immunity. Its decisions “create an odd discrepancy between Congress’ considerable substantive power to enact legislation that imposes requirements on states and its inability to enforce those standards by authorizing private parties to sue states when they breach valid requirements.”41 In other words, individuals who are harmed by state government violations of federal laws are being left without a remedy.
Though the plaintiffs argued that § 1981 provided an exception to the but-for causation requirement, the Court disagreed, stating that “taken collectively, clues from the statute’s text, its history, and our precedent persuade us that § 1981 follows the general rule.”50 The Court also found that the burden to show such causation exists at the pleading stage and throughout the case.51 Only Justice Ginsburg broke rank to express disagreement with Comcast’s assertion that § 1981 only governs the decision to enter into a contract, writing that § 1981 also prohibits discrimination in the earlier phases of contract formulation:52
An equal ‘right . . . to make . . . contracts, is an empty promise without equal opportunities to present or receive offers and negotiate over terms. . . . It is implausible that a law ‘intended to . . . secure . . . practical freedom,’ would condone discriminatory barriers to contract formation.53
This decision resolved a circuit split between the Ninth Circuit and others, such as the Seventh, which imposed the stricter but-for causation standard on § 1981 plaintiffs.54 While the decision disappointed lawyers fighting race discrimination, it did not adopt the narrowest definition of actionable conduct under § 1981, averting the outcome advocates most feared.55
The Supreme Court considered whether the lower courts were correct that the ADEA imposed liability only when age was a but-for cause of the employment decision.60 The VA argued that it should prevail even if Babb showed that age played a part in their decision and that Babb should be required to show that, but for her age, the adverse decision would not have occurred.61 Babb countered that she should prevail if age played some role in the decision.62 Justice Alito, writing for an eight-member majority, held that the federal-sector employer section of the ADEA (which applies to the VA) does not require a showing of but-for causation.63 Rather, the statute requires that personnel decisions “shall be made free from any discrimination based on age[;]” therefore, its “plain meaning” is that “personnel actions be untainted by any consideration of age.”64
On the other hand, once discrimination under the ADEA is shown, the Court held that but-for causation must still be considered when formulating the appropriate remedy. To obtain reinstatement, back pay, compensatory damages, or similar forms of relief, the plaintiff must show that the adverse decision would not have occurred but for age discrimination.65 If the employee shows that discrimination was a factor, but did not ultimately cause the outcome, they are limited to “injunctive or other forward-looking relief.”66 While this means it is easier to make an initial showing of discrimination under the ADEA than under § 1981, ADEA plaintiffs still must show but-for causation to receive most kinds of relief.
A third discrimination case, Bostock v. Clayton County, Georgia, involving discrimination on the basis of sexual orientation and identity, is a blockbuster opinion breaking new ground in sex discrimination law by making clear that discrimination against homosexual and transgender people is a form of illicit sex discrimination.67 The Bostock opinion considers the nature of the prohibited discrimination itself, based on the text of the applicable statute, and has already had an enormous impact on how sex discrimination is understood under federal law.68 It is an important statutory interpretation case and will be discussed in that section. In contrast, the Comcast and Babb decisions were relatively narrow, technical opinions in nearly unanimous decisions without major implications for race or age discrimination. But, for court access purposes, they are significant, demonstrating the importance of closely examining the wording of statutes governing causation.
In this vein, several statutory construction cases emphasized the importance of relying on the plain language of the statute at issue. For example, in Intel Corporation Investment Policy Committee v. Sulyma, the Court unanimously emphasized that: “‘[w]e must enforce plain and unambiguous statutory language’ in . . . any statute, ‘according to its terms.’”70 And in Rotkiske v. Klemm, Justice Thomas wrote, “We must presume that Congress ‘says in a statute what it means and means in a statute what it says there.’”71 The majority in Bostock v. Clayton County, Georgia stated this proposition even more forcefully: “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”72
Bostock was a significant statutory interpretation case as well as perhaps the most important discrimination case of the Term. The consolidated case involved gay men who were fired because of their sexual orientation and a transgender woman who was fired because of her gender identity.73 Writing for a five-member majority, Justice Gorsuch held that the fact that Congress did not specify whether the phrase “discrimination because of sex” included discrimination based on homosexual or transgender identity meant that Title VII did include such discrimination, since “homosexuality and transgender status are inextricably bound up with a person’s sex.”74 The Court explained that where the statutory language is clear, Congress’s intent in drafting that statute is not dispositive to its interpretation.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, . . . But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.75
Thus, the Court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex . . . because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”76
This case demonstrated that even a conservative Court would hold that anti-discrimination laws protect homosexual and transgender people when it found that the statutory language was clear. Other plaintiffs seeking to redress discrimination should therefore look closely at the statutory language to argue that it sets out clear protections against the discrimination at issue.
The county of Maui, joined by the solicitor general as amicus curiae, argued that any travel through groundwater means that a pollutant is no longer fairly traceable to the point source and thus the discharge must be excluded from the permitting program.83 The Court largely upheld the Ninth Circuit’s decision, citing the statute’s language, structure, and purpose as well as legislative history and congressional intent.84 Justice Breyer’s 6-3 majority opinion, joined by all but Justices Thomas, Gorsuch, and Alito, found the Ninth Circuit’s holding too broad because requiring only that a pollutant be “fairly traceable” to a source could allow the EPA “to assert permitting authority over the release of pollutants that reach navigable waters many years after their release . . . and in highly diluted forms.”85 The majority suggested factors courts can use to determine when a discharge through groundwater is the functional equivalent of a direct discharge, such as:
(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.86
The Court remanded the case to the Ninth Circuit to apply these factors.87 Justice Alito, in his separate dissent, accused the court of “devis[ing] its own legal rules” that cannot “be applied with a modicum of consistency.”88 Justice Thomas chastised the majority for failing to closely adhere to the text of the statute in order to effectuate its apparent purpose.89
This case is notable because a six-member majority relies as much on the statute’s purpose as it does the text and structure.90 The majority even cites the legislative history of the statute for support.91 Thus, it is an exception to the prevalence of textualism in federal statutory interpretation cases.92
A seven-member majority, led by Justice Thomas, concluded that where Congress failed to be specific in writing a statute, interpretation required a narrow reading.97 The majority held that because Congress did not specify that the Department of the Interior’s assignment of responsibility for the Appalachian Trail to the National Park Service converted the land through which the trail passes into national park land, there was no such conversion.98
The Court emphasized that the case involved private property rights, noting that “[o]ur precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property.”99 While the respondents argued that the delegation of authority over the trail changed the character of the adjoining land, the Court disagreed, noting that:
Congress has used express language in other statutes when it wished to transfer lands between agencies. Congress not only failed to enact similar language in the Trails Act, but . . . [t]he entire Trails Act must be read against the backdrop of the Weeks Act, which states that lands acquired for the National Forest System—including the George Washington National Forest—“shall be permanently reserved, held, and administered as national forest lands.”100
Since, in the Trails Act, Congress failed to use “unequivocal and direct language . . . to transfer land from one agency to another, just as one would expect if a property owner conveyed land in fee simple to another private property owner[,]” the Court concluded there was no transfer of land, and the Department of the Interior retained authority to grant pipeline rights-of-way through the land.101 This decision suggests that the Court is inclined to read statutes to protect private property interests, even when those interests run up against significant environmental concerns. Moreover, it illustrates that the Court is unwilling to read an intent to protect the environment, as opposed to private property, into a statute unless the statute provides for such protection with exacting specificity—especially against a government actor.
The ACA expanded health care coverage for millions who did not have it.105 Among other things, the law established online exchanges where health insurers sell plans, provided tax credits to help people buy those plans, and prohibited insurers from discrimination based on health conditions.106 At issue in this lawsuit was a provision of the ACA that provided protection to insurers that covered patients with higher needs that may incur significant losses.107 Section 1342 of the ACA created a “Risk Corridors” program that limited insurer profits and losses during the first three years of the exchanges.108 This provision required insurers to pay the U.S. Department of Health and Human Services (HHS) if plan profits exceeded a certain limit and provided for HHS to pay insurers that had losses over certain limits.109 The ACA did not appropriate funds for the program, nor did it place a ceiling on the amount that HHS might have to pay.110
At the end of each year of the program, the federal government owed billions more to insurers with unprofitable plans than profitable insurers owed the government.111 Each year, however, a hostile Congress attached a rider to the appropriations bill preventing the use of funds for risk corridor payments.112 Four health insurers sued the federal government to recoup damages for their losses.113 The United States Court of Appeals for the Federal Circuit ruled against them, holding that the appropriations riders had implicitly “repealed or suspended” § 1342’s requirement that the government cover losses.114
The Supreme Court granted certiorari and reversed in a decision by Justice Sotomayor, joined in full by the Chief Justice and Justices Ginsburg, Breyer, Kagan, and Kavanaugh, and in part by Justices Thomas and Gorsuch.115 It held that § 1342 obligated the federal government to pay insurers in full, and neither Congress’s failure to provide details about how the obligation must be satisfied nor the subsequent riders negated the obligation.116 The statute created an obligation, the Court held, citing the plain language that stated that the federal government “shall pay” an amount determined by formula to plans that lose money.117 The mandatory nature of the term “shall” was underscored by adjacent provisions, which differentiate between when HHS “shall” take certain actions and when it “may” exercise discretion.118 “Thus, without ‘any indication’ that [the statute] allows the Government to lessen its obligation, we must ‘give effect to [its] plain command.’ That is, the statute meant what it said: The Government ‘shall pay’ the sum that § 1342 prescribes.”119
Next, the Court held that Congress did not repeal by implication the obligation to pay the insurers when it refused to fund the risk corridors program in its appropriations riders.120 It cited the long-standing principle that “repeals by implication” are rare and disfavored, particularly in the appropriations context.121 The Court also pointed out that other sections of the ACA indicate that they are “subject to the availability of appropriations,” while § 1342 does not.122 “This Court generally presumes that ‘when Congress includes particular language in one section of a statute but omits it in another,’ Congress ‘intended a difference of meaning.’”123 The majority refused to find persuasive the legislative history offered by the United States, which consisted of a congressional floor statement and unpublished Government Accountability Office statement “doubt[ing] that either source could ever evince the kind of clear congressional intent required to repeal a statutory obligation through an appropriations rider.”124
Finally, the Court found that the Tucker Act authorized the plaintiffs’ suit for damages. The Tucker Act provides jurisdiction to the Court of Claims to hear non-tort claims for damages against the United States based on the Constitution, statutes, regulations, or contract.125 While acknowledging that it is rare to find a law that implicitly authorizes a damages suit under the Tucker Act, the Court concluded that § 1342 does.126 Though it contains no substantive rights, the Tucker Act provides a means to enforce a statute that “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained,” even if that statute does not explicitly provide for damages.127 The statute’s plain language says the government “shall pay,” and that language “often reflects a congressional intent ‘to create both a right and a remedy’ under the Tucker Act.”128 Moreover, the statutory provision focuses on the compensation of insurers for past injuries, further indicating that it imposes an enforceable obligation.129 Section 1342 contains no judicial remedies of its own nor any comprehensive remedial scheme supplanting a remedy through the Tucker Act.130
Justice Alito disagreed with the majority’s decision to find an implied right of action to enforce the risk corridor provision. His dissent highlights recent Supreme Court precedent making it more difficult for individuals to obtain relief in federal court, specifically Court decisions limiting individual enforcement of statutory rights.131 He notes that “[t]wice this Term, we have made the point that we have basically gotten out of the business of recognizing private rights of action not expressly created by Congress.”132 He refers disparagingly to the “period when the Court often ‘assumed it to be a proper judicial function to provide such remedies as are necessary to make effective a statute’s purpose.’”133 Now, he asserts, quoting recent concurrences by himself and Justices Thomas and Gorsuch, “we have come to appreciate that, ‘[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress[.]’”134 Justice Alito overstates the case, as federal courts continue to regularly allow individuals to enforce statutes through 42 U.S.C. § 1983, for example.135 He is correct, however, that the Court has steadily moved away from the remedial imperative over the past twenty years as it has become more conservative.136 Now that the Court tilts strongly to the right, it appears this trend is likely to continue.
This Term’s statutory interpretation holdings broke little new ground, and there were no blockbusters among them. The Court largely followed the textualist path that it has taken in recent decades. These decisions are more notable for their substantive holdings on the meaning of the statutes rather than the means the Court employed to reach those conclusions.
The Court considered whether two former religious school teachers could pursue employment discrimination claims under the ADEA and the Americans with Disabilities Act.137 One employee alleged she was fired because of her age; the other, because she had breast cancer.138 The majority, led by Justice Alito, held that the First Amendment’s Religion Clauses barred their claims.139 The Court expanded upon a 2012 decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which established that the Religion Clauses bar courts from hearing employment discrimination claims against a religious school based on a “ministerial exception,” where claims could not be brought by a staff member who acted in a ministerial capacity.140 While declining to “adopt a rigid formula for [who] qualifies as a minister,” the Hosanna-Tabor Court identified four factors in deciding that the exception applied to that teacher: (1) her title of “minister,” (2) her significant degree of religious training, (3) the fact that she “held herself out as a minister[,]” and (4) her role carrying out the Church’s mission and message.141
In two separate cases, the Ninth Circuit held that the religious employers could not take advantage of the ministerial exception under the Hosanna-Tabor factors, noting that, among other things, the teachers were not given the title of minister and did not have extensive religious training.142 The majority acknowledged these facts but held that the Ninth Circuit had not given appropriate deference to the school’s determination that the teachers’ duties were ministerial.143 Here, the majority reasoned, the ministerial exception applied to bar their suit because the teachers participated in the religious education and formation of students, which is the essential mission of a private religious school.144 The Court held that “[j]udicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”145
Justices Sotomayor and Ginsburg dissented, arguing that the majority opinion “collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role.”146 They criticized this as a “simplistic approach” that “has no basis in law and strips thousands of schoolteachers of their legal protections.”147 Justice Sotomayor cautioned that this decision could extend to a wide variety of laypeople who happen to work for religious institutions, with dire consequences. She argued that, in an attempt to combat “a perceived ‘discrimination against religion’ . . . [the Court] swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs.”148 While this decision applies to a relatively narrow group of employees, as Justice Sotomayor cautions, it has the potential to sweep in a wide variety of employees with only a tenuous connection to the essential religious function of the employer.
In 2012, DHS issued a memorandum that established the DACA program to provide immigration relief for young immigrants and then expanded this program in 2014.154 Soon after the Trump Administration took office, the Attorney General recommended rescinding the program, claiming it was illegal, and, in September 2017, DHS did so through a memorandum (2017 Memorandum).155 Several groups sued, and the Supreme Court took up the question of whether DHS’s termination of the DACA program violated the APA.156
The United States District Court for the District of Columbia vacated the 2017 rescission and instructed DHS to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.”157 In response, DHS issued a second memorandum in 2018 (2018 Memorandum) that provided additional reasons for the rescission.158
When the issue reached the Supreme Court, DHS first argued that its decision to terminate DACA was “unreviewable under the APA and outside th[e] Court's jurisdiction[,]” by analogy to the statute’s ruling on the enforceability of individual decisions.159 DHS emphasized that the DACA policy was a nonenforcement policy, rather than a new program, and under the APA, 5 U.S.C. § 701(a)(2), individual decisions about whether to enforce a particular law against a particular individual are within an agency’s discretion and not subject to judicial review.160 DHS contended that, similarly, a general policy of non-enforcement, and by corollary, the termination of such policy, was not subject to review because it is just like an individual non-enforcement decision.161 The Court disagreed, finding that “the [2012] DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an ‘action [subject to review under the APA].’”162
Next, the Court considered whether DHS “adequately explained” its 2017 policy change.163 The APA instructs courts to hold unlawful and set aside agency actions that are arbitrary and capricious.164 The Court has determined whether an agency’s action is arbitrary and capricious by evaluating whether the agency provided an adequate explanation for its action, demonstrating that it engaged in reasoned decision-making.165 The Court considered whether DHS could refer to the 2018 Memorandum as part of the agency’s explanation for the change, but emphasized the familiar APA principle “that judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action.’”166 Thus, the Court reasoned, in the 2018 Memorandum, DHS “was limited to the agency’s original reasons, and [its] explanation ‘must be viewed critically’ to ensure that the rescission is not upheld on the basis of impermissible ‘post hoc rationalization.’”167 Because the reasons set forth in the 2018 Memorandum were “nowhere to be found” in the 2017 Memorandum, the Court could not consider them.168 This portion of the decision reaffirms long-standing APA precedent, which makes clear that an arbitrary and capricious inquiry only considers the agency’s rationale as stated when a policy is adopted, not later justifications.
DHS protested that it should not have to revisit the question again to provide a justification for the policy in advance of rescinding the program; it claimed that requiring it to go back to provide its reasons before the rescission before it could finally terminate the program would be “an idle and useless formality.”169 The Court majority rejected this argument and also disputed Justice Kavanaugh’s dissenting opinion suggesting that the prohibition on post hoc rationalizations only barred courts from considering later policy justifications offered by attorneys in the course of litigation, not later explanations from the agency.
While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves.170
The majority thus emphasized that “[t]his is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.”171
Finally, the Court considered whether the 2017 Memorandum could stand alone as having “adequately explained” agency policy and gave two reasons why it had not.172 First, the 2017 Memorandum “failed to consider . . . important aspect[s] of the problem” by only considering whether the DACA program improperly made undocumented immigrants eligible for certain public benefits but not whether deferred immigration action was appropriate.173 Second, the policy failed to consider whether DACA recipients and others legitimately relied on the 2012 and 2014 policies that established and expanded the DACA program.174
It is now well-settled that an agency has the discretion to change its policy, even to do a complete reversal, so long as it provides a reasonable justification for the change.175 This decision makes clear, however, that in considering such a policy change, an agency must consider whether the prior policy created reliance interests, such as people’s decisions about work, school, and family, and if so, consider whether and how to accommodate those interests.176 Moreover, the case makes clear that these considerations must take place before the agency changes the policy, and the agency may not announce its reasons for the change later after the new policy is in effect.177
The Court first considered whether the statute authorized the departments to enact final rules interpreting the statute.183 Justice Thomas’s majority opinion held that it did, noting that “a plain reading of the statute [shows] that the ACA gives [the Health Resources and Services Administration] broad discretion to [issue regulations defining] preventive care and screenings and to create the religious and moral exemptions” to the ACA’s mandate to cover contraception.184
Next, the Court considered whether the APA allows agencies to issue interim final rules that request notice and comment at the same time the rule takes effect, rather than promulgating a “General Notice of Proposed Rulemaking” followed later by a final rule, as is more common.185 Justice Thomas again determined that it does—as long as the agency provides adequate notice and an opportunity to comment before adopting the ultimate final rules.186 While the Court agreed that the “APA requires agencies to publish a notice of proposed rulemaking in the Federal Register before promulgating a rule that has legal force,” the fact that the final rules were preceded by interim final rules (which had immediate full legal force) rather than a notice of proposed rulemaking did not violate the procedural requirements of the APA, since ultimately the agency adopted a final rule after an adequate notice and comment period187 Thus, Little Sisters of the Poor showed that, to the extent that the agency failed to perfectly follow the procedural requirements of the APA, that error was harmless and not prejudicial, concluding, “[f]ormal labels aside, the rules contained all of the elements of a notice of proposed rulemaking as required by the APA.”188
The Court next addressed respondents’ argument that the agency had not adequately considered the comments it received, given that it made almost no changes between the interim final rules and the final rules.189 The Court rejected the respondents’ argument and concluded that the agency met the requirements of the APA.190 The United States Court of Appeals for the Third Circuit invalidated the rule because “[t]he notice and comment exercise surrounding the Final Rules [does] not reflect any real open-mindedness” toward the position set forth in the interim final rules, emphasizing the fact that the final rules were “virtually identical” to the interim final rules.191 The Court rejected this “open-mindedness” test, holding that “the text of the APA provides the ‘maximum procedural requirements’ that an agency must follow in order to promulgate a rule” and that the agency comported with those requirements in this case.192 The majority also noted that “the Third Circuit did not identify any specific public comments to which the agency did not appropriately respond[,]”193 insinuating that such a finding might have led to a different result. Thus, where an agency generally follows the appropriate administrative procedures, a mere showing that an agency’s final rule is identical to the version published to solicit comments will not by itself establish that the agency failed to adequately consider the comments.
In both of these APA cases, the Trump Administration reversed course on prior Obama-era policies. But the results were quite different. It is worth noting that the question presented to the Court in Little Sisters of the Poor was procedural, not whether the rule was arbitrary and capricious. The Court upheld the final rule because it found that the agency complied with the basic procedural requirements of the APA, even if it did so imperfectly.194 In the DACA case, the fact that the agency changed its policy so completely, and with inadequate reasoning, informed the Court’s decision that the policy change was arbitrary and capricious. The agency’s failure to fully justify the change and to consider potential reliance interests on the prior policy meant that it failed to consider an important aspect of the problem and that the new policy was arbitrary and capricious.195 As these cases suggest, future litigants considering whether to challenge a change to an administrative rule should look closely at the process by which administrative rules were adopted to determine whether they are susceptible to a legal challenge and also at the reasoning the agency put forth to justify that change.
In Barr v. American Association of Political Consultants, the Court decided the constitutionality of a provision in the Telephone Consumer Protection Act of 1991 (TCPA), a statute that prohibits most robocalls to cell phones and home phones.196 The challenged provision was an amendment to the TCPA added in 2015 to allow an exception for calls made to collect debts owed to the United States.197 The American Association of Political Consultants (AAPC) wanted to make robocalls to solicit donations, conduct polls, and weigh in on candidates and issues, but these types of calls were not included in the 2015 amendment and thus were barred under the TCPA.198 Citing the First Amendment, AAPC challenged the 2015 amendment as unconstitutionally favoring debt collection over political speech and asked the Court to invalidate the TCPA in its entirety.199 Finding the amendment unconstitutional, the Court turned to the question of severability—whether to invalidate the TCPA in its entirety or to invalidate and sever only the government-debt exception.200
As Justice Kavanaugh’s opinion for the Court points out, the TCPA is itself an amendment to the Communications Act, and the Communications Act contains an express severability clause.201 That decided the matter. When Congress includes a severability clause in a statute, “absent extraordinary circumstances the Court should adhere to the text” of that clause for all provisions within the statute, including amendments.202 Such extraordinary circumstances did not exist here, and Justice Kavanaugh discounted any thought of ignoring the text of the clause, noting “[t]hat kind of argument may have carried some force back when courts paid less attention to statutory text as the definitive expression of Congress’s will.”203 The opinion could have stopped at upholding the express severability clause, but Justice Kavanaugh spends significant time discussing the general “presumption of severability” even in the absence of a severability clause.204 He notes that “[t]he Court’s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause[,]” and as a result, “it is fairly unusual for the remainder of a law not to be operative.”205
Chief Justice Roberts authored the other severability case, Seila Law LLC v. Consumer Financial Protection Bureau.206 After the recession of 2008, Congress amended the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) to establish the Consumer Financial Protection Bureau (CFPB), “an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent.”207 In an effort to ensure the independence of the CFPB, Congress determined that a single director would lead the Bureau, serve a term longer than that of the President, and be removable by the President only for “inefficiency, neglect, or malfeasance.”208
Seila Law offers legal services to clients who are experiencing problems with debt. In 2017, the CFPB issued an investigative demand letter to Seila Law.209 Seila Law objected to the demand, arguing that the CFPB’s single-director set-up violated the separation of powers.210 This case resulted, and the Supreme Court ultimately held that with “no boss, peers, or voters to report to . . . [y]et . . . wield[ing] vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy[,]” the structure of the CFPB violated the requisite separation of powers.211
The Court then decided whether the provision establishing the director’s authority was severable from the other provisions of Dodd-Frank establishing the CFPB.212 Citing precedent, Chief Justice Roberts’s plurality opinion severed the unconstitutional provision from the remainder of the law.213 He determined that the provision was severable because the surviving provisions were capable of “functioning independently” and “nothing in the statute’s text or historical context [made] it evident that Congress . . . would have preferred a dependent CFPB to no agency at all.”214 The Chief Justice concluded by rejecting Justice Thomas’s suggestion in his partial dissent to “junk our settled severability doctrine and start afresh,” finding it clear that “Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect we identify today.”215
To sum up, the 2019–2020 severability cases maintained the Court’s settled severability doctrine. When there is “a constitutional flaw in a statute, [the Court will] try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.”216 This “presumption of severability . . . allows courts to avoid [the] judicial policymaking” that will arise as a court decides how much of the statute to invalidate.217 It “recognizes that plaintiffs who successfully challenge one provision of a law may lack standing to challenge other provisions of that law.”218 The approach also avoids, whenever possible, the major disruption that wholesale destruction of the law would cause for individuals and entities whose actions are affected by it.219
In an opinion with lessons for all plaintiffs’ attorneys, the Court dealt consumers and their advocates a defeat in Rotkiske v. Klemm.222 The Court considered when a statute of limitations begins to run in Fair Debt Collection Practices Act (FDCPA) cases.223 The FDCPA imposes requirements on debt collectors and prohibits certain activities in an attempt to eliminate abusive debt collection practices.224 Klemm, a collection agency, sued Rotkiske to collect an unpaid credit card debt.225 Klemm attempted to serve Rotkiske at an address where he no longer lived, leading to Rotkiske failing to receive notice or respond and, thus, allowing Klemm to obtain a default judgment.226 Rotkiske later brought suit under the FDCPA, alleging that the attempt to collect was unlawful.227 Moreover, he argued, the statute of limitations under the FDCPA should be equitably tolled because Klemm purposely served the complaint at the wrong address.228
Rotkiske argued that the statute of limitations should run from the date that the FDCPA violation is discovered, not the day it occurs.229 He cited Ninth Circuit law, which held that “under the ‘discovery rule,’ limitations periods in federal litigation generally begin to run when plaintiffs know or have reason to know of their injury.”230 The Third Circuit disagreed, however, ruling against Rotkiske and holding that the one-year limitations period runs from the date on which the violation occurred.231 The Court granted certiorari to resolve this split among the circuits and, in a majority opinion from Justice Thomas joined by all but Justice Ginsberg, held for the defendant.232
The majority held that the statute, which provides that an FDCPA action “‘may be brought . . . within one year from the date on which a violation occurs’ . . . unambiguously sets the date of the violation as the event that starts the one-year limitations period.”233 The Court rejected Rotkiske’s argument that the statute should be read to include a general “discovery rule,” because “[i]t is a fundamental principle of statutory interpretation that ‘absent provision[s] cannot be supplied by the courts.’” 234It acknowledged Rotkiske’s allegation that he did not discover the violation because the creditor served notice of its debt collection suit in a way that intentionally ensured he did not actually receive notice but refused to consider whether an “equitable tolling” exception for fraud should apply, upholding the Third Circuit’s finding that this issue was not preserved for appeal.235
Justice Ginsburg dissented. While agreeing that the “discovery rule” does not apply to the statute of limitations in the FDCPA, she would have held that the conventional “time trigger” would not apply when creditor fraud accounts for the debtor’s failure to file a timely suit.236 Here, the debtor alleged that the creditor purposely arranged for service at an address where the debtor no longer lived, then filed a false affidavit of service.237 Thus, fraud prevented Rotkiske from complying with the one-year statute of limitation and, under these narrow circumstances, she argued, the typical rule that a claim accrues when an injury occurs should not apply.238
This is a frustrating outcome for Rotkiske, as the machinations of the creditor prevented him from filing within the statutory period, and a disappointment for consumer advocates. However, it is likely that the impact of this opinion will be limited if future litigants more carefully plead equitable tolling.
The case arose when Mr. Ritzen sued Jackson Masonry in state court for breach of a contract to sell land.241 Just before the trial was to begin, Jackson filed for Chapter 11 bankruptcy in federal bankruptcy court.242 The Bankruptcy Code’s automatic stay provision put the state court case on hold during the pendency of the federal bankruptcy case.243 Mr. Ritzen filed a motion seeking relief from the stay so that he could pursue his state court case, arguing that the relief “would promote judicial economy and that Jackson had filed [the] bankruptcy [action] in bad faith.”244 The bankruptcy court denied the stay-relief motion.245 Ritzen did not appeal within the prescribed period; rather, he pursued his breach of contract claim against the bankruptcy estate.246 Unfortunately, he, not Jackson, was held in breach of contract, and his claims against the bankruptcy estate were rejected.247 Ritzen then appealed the denial of his stay-relief motion and the decision rejecting his breach of contract claim.248 The Supreme Court granted certiorari and focused on the appeal of the stay-relief motion.249
As noted above, under general rules of civil litigation, a party can only appeal “final decisions” of district courts.250 A decision is final when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”251 The rules of finality differ for bankruptcy cases because these cases typically bring numerous, distinct individual claims against a debtor together under one umbrella.252 As a result, orders in bankruptcy cases become “final” when they definitively resolve “discrete disputes” within the case.253 The issue in Ritzen Group was whether the stay-relief motion was a discrete proceeding that resulted in a final, appealable order when the bankruptcy court conclusively decided it.254 Writing for a unanimous Court, Justice Ginsburg held that it was and that Mr. Ritzen’s appeal was correctly dismissed as untimely.255
The Court found the text of the governing statute clear on the matter of finality.256 Unlike 28 U.S.C. § 1291, which governs civil litigation generally and allows appeals from “final decisions,” the bankruptcy code authorizes appeals from “final judgments, orders, and decrees” “in cases and proceedings.”257 A neighboring provision lists motions to terminate or modify the automatic stay as “core proceedings.”258 The Court found this drafting provided a strong “textual clue” that Congress viewed stay-relief motions as “proceedings” that were immediately appealable.259 Second, the Court built upon its previous cases, which recognized that “Congress made ‘orders in bankruptcy cases . . . immediately appeal[able] if they finally dispose of discrete disputes within the larger [bankruptcy] case.”260 The Court found that Ritzen’s stay-relief motion was a “discrete proceeding” because it was “a procedural unit anterior to, and separate from, claims-resolution proceedings[,]” deciding for example whether a creditor would be able to isolate its claim from others and “go it alone outside bankruptcy.”261
Finally, the Court rejected Ritzen’s argument that holding for Jackson Masonry would encourage piecemeal litigation, finding instead that Mr. Ritzen was attempting a second bite at the apple. The Court found his appeal of the stay-relief motion to be an effort to “return to square one” and relitigate the contract claim in state court after he lost the stay-relief motion and subsequently litigated and lost his breach of contract claim during the bankruptcy proceeding.262 According to Justice Ginsburg, “[t]he second bite Ritzen seeks scarcely advances the finality principle.”263 As this case illustrates, as plaintiffs formulate and litigate their claims, they must consider how and when core access-to-court principles may come into play, including those defining when the court has issued a final, immediately appealable order.
Looking forward, the 2020–2021 Term opened with the COVID-19 pandemic continuing to control operations. Once again, the Court heard oral arguments through telephone conference calls, with the public listening to live audio broadcasts of the arguments. As in previous years, the Court will decide a number of potentially significant access-to-court cases. Plaintiffs’ standing, and thus their ability to be in court at all, is under attack.264 As it did during the 2019–2020 Term, the Court will be assessing what it takes to prove a discrimination claim.265 The Court also agreed to consider whether the Secretary of HHS has the authority to condition Medicaid coverage on a requirement that the individual work a certain amount. Citing the APA and rules of statutory construction, the lower courts concluded that the Secretary did not have this authority.266 The Court will also decide when the federal government can keep pre-decisional information secret and when the Freedom of Information Act compels disclosure.267 Another case addresses when Social Security claimants can question whether their hearing officer was properly appointed.268
On November 10, 2020, the Court heard two hours of argument in California v. Texas, a case with the potential for significant substantive and access-to-court rulings.269 A group of Republican state attorneys general and individual taxpayers, supported by the Trump Administration, argued that the ACA’s provision requiring individuals to have minimum insurance coverage or pay a tax penalty is harming them and is unconstitutional.270 They asked the Court to find that the provision cannot be severed and that the entire ACA should fall. If the plaintiffs are found to have the standing to bring the case, and their claims are successful, the challenge would affect the health and public health of hundreds of millions of Americans because the ACA addresses everything from pre-existing health conditions to nutritional labeling and expanding Medicaid to adults and former foster youth.271
Those seeking to protect and preserve individuals’ access to court will need to monitor the Court’s decisions. Significantly, the composition of the 2020–2021 Supreme Court has changed. Added to the mix, newly installed Justice Coney Barrett provides conservatives with a clear 6-3 advantage.272 Justice Ginsburg’s absence is sure to be felt as the Court continues to limit entry to individual litigants.
* Jane Perkins, J.D., M.P.H., is the Legal Director at the National Health Law Program (NHeLP). Sarah Somers, J.D., M.P.H., is a Managing Attorney at NHeLP. Abigail Coursolle, J.D., is a Senior Attorney at NHeLP. The attorneys participate in NHeLP’s Federal Court Access Group.
1 10th Annual Supreme Court Term in Review, U.C. Irvine Sch. L. (July 23, 2020) https://www.law.uci.edu/news/videos/supreme-court-review-2020.html.
2 Id.
3 Id.
4 Id.
5 See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020).
6 See Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020).
7 See June Med. Servs. v. Russo, 140 S. Ct. 2103 (2020).
8 See Trump v. Vance, 140 S. Ct. 2412 (2020).
9 Downes v. Bidwell, 182 U.S. 244, 282–83 (1901).
10 Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907).
11 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803) (citing William Blackstone, Commentaries on the Laws of England 109 (1765)).
12 See, e.g., Matthew Diller et al., Decisions on Federal Court Access During the Supreme Court’s 1999-2000 Term: Some Social Security, a Little Federalism, and More of the Usual, 34 Clearinghouse Rev. 405, 408–11 (Nov.–Dec. 2000).
13 See, e.g., Alden v. Maine, 527 U.S. 706, 713 (1999) (“[T]he States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today. . . .”); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (overruling Pennsylvania v. Union Gas, 491 U.S. 1 (1989)).
14 Allen v. Cooper, 140 S. Ct. 994 (2020).
15 Id. at 999.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018).
23 Allen v. Cooper, 139 S. Ct. 2664 (2019) (granting certiorari).
24 Allen v. Cooper, 140 S. Ct. at 999 (2020).
25 U.S. Const. amend. XI; Allen, 140 S. Ct. at 999.
26 Allen, 140 S. Ct. at 1000.
27 Id. at 1000–01.
28 Id. at 1000–01 (citing Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 78 (2000)).
29 Id. at 999 (quoting Copyright Remedy Clarification Act of 1990, 17 U.S.C. § 511(a)).
30 Id. at 1001.
31 Id. (citing U.S. Const. art. I, § 8, cl. 8) (“Congress has power under Article I ‘[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’”).
32 Fla. Prepaid Postsecondary Ed. Expense Bd. v. Coll. Savings Bank, 527 U.S. 627 (1999); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (holding Congress cannot use Article I to circumvent limits that state sovereign immunity places on federal jurisdiction).
33 Allen, 140 S. Ct. at 998, 1001–02 (citing Fla. Prepaid). The Court refused to extend a holding that Article I’s bankruptcy clause allows Congress to abrogate state immunity in bankruptcy proceedings, labeling that case a “good-for-one-clause-only holding” due to “bankruptcy exceptionalism.” Id. at 1002–03 (citing Central Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006)).
34 Allen, 140 S. Ct. at 1003 (first quoting Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014); then quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).
35 Id. at 1007–08 (Thomas, J., concurring in part and concurring in the judgment). See also Ramos v. Louisiana, 140 S. Ct. 1390, 1421–22 (2020) (overruling, by a “badly fractured majority[,]” two precedent cases and explaining positions on stare decisis, with Justice Alito’s dissent complaining that the majority gave the doctrine “rough treatment . . . [l]owering the bar for overruling our precedents. . . .” Id. at 1425 (Alito, Roberts, JJ., dissenting; Kagan, J., dissenting in part)).
36 Allen, 140 S. Ct. at 1001. Section 5 of the Fourteenth Amendment gives Congress the “power to enforce, by appropriate legislation” Section 1 of the Fourteenth Amendment, which prohibits states from depriving “any person of life, liberty, or property, without due process of law.” Id. at 1003 (quoting U.S. Const. amend. XIV, §§ 1, 5).
37 See City of Boerne v. Flores, 521 U.S. 507 (1997).
38 Allen, 140 S. Ct. at 1004 (citing City of Boerne, 521 U.S. at 520). The Court has looked to the legislative record leading up to the passage of the law for evidence of infringement. Id.
39 Id. at 1005.
40 Id. at 1007 (quoting Fla. Prepaid, 527 U.S. 627, 647 (1999)).
41 Gill Deford et al., The Supreme Court’s 1998-1999 Term: Federalism, State Act, and Other Cases Affecting Access to Justice, 33 Clearinghouse Rev. 375, 375–76 (1999).
42 Comcast Corp. v. Nat’l Ass’n of African-American Owned Media, 140 S. Ct. 1009 (2020); Babb v. Wilkie, 140 S. Ct. 1168 (2020).
43 Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020).
44 See Comcast Corp., 140 S. Ct. at 1013 (2020) (quoting 42 U.S.C. § 1981).
45 Id.
46 Id. at 1013.
47 Id. at 1014.
48 Id. at 1019.
49 Id. at 1012, 1014.
50 Id. at 1014.
51 Id. at 1014–15.
52 Id. at 1020 (Ginsburg, J., concurring in part and concurring in the judgment).
53 Id. (citations omitted).
54 Id. at 1013–14.
55 See, e.g., Press Release, NAACP Legal Defense and Educational Fund, Supreme Court Increases Burden for Claims of Race Discrimination Under Crucial Civil Rights Statute (Mar. 23, 2020), https://www.naacpldf.org/wp-content/uploads/Comcast-Decision-Statement.pdf.
56 See Babb v. Wilkie, 140 S. Ct. 1168 (2020).
57 Id. at 1171.
58 Id. at 1172.
59 Id. at 1172 (quoting Babb v. Sec’y, Dep’t of Veterans Affs., 743 Fed. App’x 280, 287 (11th Cir. 2018)) (internal quotation marks omitted).
60 Id. at 1171; 743 F. App’x at 287–88.
61 Babb, 140 S. Ct. at 1172.
62 Id.
63 Id. at 1170–71.
64 Id. at 1171 (quoting 29 U.S.C. § 633a(a)).
65 Id. at 1177–78.
66 Id. at 1178.
67 Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020).
68 See, e.g., Rigel C. Oliveri, Sexual Orientation and Gender Identity Discrimination Claims Under the Fair Housing Act After Bostock v. Clayton County, 69 Kan. L. Rev. 409 (2021).
69 See, e.g., Anita S. Krishnakumar, Textualism and Statutory Precedents, 104 Va. L. Rev. 157 (2018) (reviewing a number of such cases); Nina A. Mendelson, Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court’s First Decade, 117 Mich. L. Rev. 71 (2018).
70 Intel Corp. Inv. Pol’y Comm. v. Sulyma, 140 S. Ct. 768, 776 (2020) (quoting Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010)).
71 Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019) (internal citation omitted).
72 Bostock, 140 S. Ct. at 1737.
73 Id. at 1738–39.
74 Id. at 1742, 1744.
75 Id. at 1737.
76 Id. at 1742.
77 See Cnty. of Maui v. Hawai’i Wildlife Fund, 140 S. Ct. 1462 (2020).
78 Id. at 1468 (citing 33 U.S.C. §§ 1311(a), 1362(12)(A)).
79 Id.
80 Id. at 1469 (quoting 886 F.3d 737, 749 (2018)).
81 Id. at 1468–69.
82 Id. at 1470.
83 Id.
84 Id. at 1470–72.
85 Id. at 1470.
86 Id. at 1476–77.
87 Id. at 1477–78.
88 Id. at 1482 (Alito, J., dissenting).
89 Id. at 1479.
90 See id. at 1471–72.
91 Id.
92 See Tara Leigh Grove, Note, Which Textualism? 134 Harv. L. Rev. 265, 265 n.1 (Nov. 2020) (noting textualism “has in recent decades gained considerable prominence within the federal judiciary”) (citing Elena Kagan, Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Kagan in the Reading of Statutes, YouTube (Nov. 15, 2015), https://youtu.be/dpEtszFToTg (at 8:28, noting “w[e are] all textualists now.”)). Scholars have also observed “a discernable decline in the rate at which the Court invokes legislative history.” See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1277 n.1 (Mar. 2020) (citing additional scholarship).
93 See U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1843 (2020).
94 Id. at 1841–42.
95 Id. at 1842, 1848 (citing Mineral Leasing Act, 30 U.S.C. §§ 181–287, and National Trails System Act, 16 U.S.C. § 1244(a)(1)).
96 U.S. Forest Serv., 140 S. Ct. at 1843–44.
97 Id. at 1847–48.
98 Id.
99 Id. at 1849–50.
100 Id. at 1850 (quoting 16 U.S.C. § 521).
101 Id. at 1847.
102 Patient Protection and Affordable Care Act, 42 U.S.C. 18001 (2010).
103 See Me. Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020).
104 Id.; 28 U.S.C. § 1491(a)(1).
105 See Rachel Garfield et al., Henry J. Kaiser Fam. Found., The Uninsured and the ACA: A Primer – Key Facts About Health Insurance and the Uninsured Amidst Changes to the Affordable Care Act (2019), http://files.kff.org/attachment/The-Uninsured-and-the-ACA-A-Primer-Key-Facts-about-Health-Insurance-and-the-Uninsured-amidst-Changes-to-the-Affordable-Care-Act (describing health insurance coverage gains resulting from the ACA).
106 Me. Cmty. Health Options, 140 S. Ct. at 1315. See 26 U.S.C. § 36B (providing for tax credits as premium assistance); 42 U.S.C. §§ 300gg-3, -11 (imposing consumer protections including prohibiting lifetime or annual limits and guaranteeing coverage for individuals with pre-existing conditions); 42 U.S.C. §§ 18031–18044, 18071 (establishing exchanges and imposing limits on cost sharing).
107 Me. Cmty. Health Options, 140 S. Ct. at 1315–16.
108 Id. at 1316 (citing § 1342, 124 Stat. 211 (codified at 42 U.S.C. § 18062)).
109 Id. at 1316.
110 Id.
111 Id. at 1317.
112 Id.
113 Id. at 1318.
114 Id.
115 Id. at 1314.
116 Id. at 1319–20.
117 Id. at 1320–21 (citing 42 U.S.C. § 18062(a), (b)(1)).
118 Id. at 1321 (citing §§ 1341(b)(2), 1343(b)).
119 Id. at 1321 (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach et al., 523 U.S. 26, 35 (1998)).
120 Id. at 1323
121 Id.
122 Id. at 1322.
123 Id. at 1323 (citations omitted).
124 Id. at 1326 (citations omitted).
125 28 U.S.C. § 1491.
126 Me. Cmty. Health Options, 140 S. Ct. at 1329.
127 Id. at 1327–28 (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) and discussing Tucker Act, 20 U.S.C. § 1491).
128 Id. at 1329.
129 Id.
130 Id. at 1329–30.
131 Id. at 1331–32 (Alito, J., dissenting); see Jane Perkins, Pin the Tail on the Donkey: Beneficiary Enforcement of the Medicaid Act Over Time, 9 St. Louis J. Health L. & Pol’y 207 (2016) (discussing history of cutbacks to individual enforcement of the Medicaid Act and other laws).
132 Me. Cmty. Health Options, 140 S. Ct. at 1331–32 (Alito, J., dissenting) (citing dicta in Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009, 1015–16 (2020) and Hernandez v. Mesa, 140 S. Ct. 735 (2020)).
133 Id.
134 Id. at 1332 (quoting Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001)) (alteration in original).
135 See Perkins, supra note 131, at 208–09.
136 See id.; Diller et al., supra note 12 (reviewing the Supreme Court’s 1999–2000 Term access-to-courts decisions).
137 See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020).
138 Id. at 2058–59.
139 Id. at 2055.
140 Id. at 2055 (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012)).
141 Id. at 2062.
142 Id. at 2058–60 (citing Our Lady of Guadalupe Sch. v. Morrissey-Berru, 769 Fed. App’x 460, 461 (9th Cir. 2019), and Biel v. St. James Sch., 911 F.3d 603, 608 (9th Cir. 2018)).
143 Id. at 2066–67.
144 Id.
145 Id. at 2055.
146 Id. at 2072 (Sotomayor & Ginsburg, JJ., dissenting).
147 Id.
148 Id. at 2082 (quoting Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2257 (2020)).
149 See 5 U.S.C. § 706.
150 Id. § 706(2)(A)–(D).
151 See, e.g., Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) (citizenship question on census); Weyerhaeuser Co. v. U.S. Fish & Wildlife, 139 S. Ct. 361 (2018) (endangered species).
152 See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) (Justice Sotomayor did not join Part IV of the opinion on Equal Protection, which is not discussed here.).
153 Id. at 1901.
154 Id. at 1901–02.
155 Id. at 1903.
156 Id.
157 NAACP v. Trump, 298 F. Supp. 3d 209, 245 (D.D.C. 2018).
158 Regents of the Univ. of Cal., 140 S. Ct. at 1904.
159 Id. at 1905.
160 Id. at 1905–06 (quoting Heckler v. Chaney, 470 U.S. 821, 831–832 (1985)).
161 Id. at 1906.
162 Id. (quoting Heckler).
163 Id. at 1907.
164 5 U.S.C. § 706(2)(A).
165 See Motor Vehicle Mfrs. Ass’n v. State Farm Auto Mut. Ins. Co., 463 U.S. 29, 52 (1983).
166 Regents of the Univ. of Cal., 140 S. Ct. at 1907 (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)).
167 Id. at 1908 (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)).
168 Id. at 1908–09.
169 Id. at 1909 (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969) (plurality opinion)).
170 Id. (citations omitted).
171 Id. at 1909–10.
172 Id. at 1907
173 Id. at 1910–12 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (alterations in original).
174 Id. at 1913–14.
175 See, e.g., Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (“Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.”).
176 140 S. Ct. at 1914–15 (noting that, when changing policy, an agency must “assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns”).
177 Id. at 1909.
178 Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).
179 See id. at 2372–73.
180 Id. at 2373. The ACA’s contraceptive coverage provision first came to the Court in Burwell v. Hobby Lobby Stores, where the Court held that the Obama Administration implementing regulation’s failure to provide an exception to the provision’s compliance for closely held corporations with sincere religious objections to providing employees with contraception substantially burdened their free exercise. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). The provision came before the Court again in Zubik v. Burwell, where the Court remanded consolidated cases challenging the Obama Administration’s revised regulation implementing the contraceptive coverage provision that included a self-certification accommodation and instructed the agency to develop an approach that would accommodate employers’ concerns while providing women full and equal coverage. Zubik v. Burwell, 136 S. Ct. 1557 (2016). The regulation at issue in this case resulted from the Court’s direction in Zubik. Little Sisters of the Poor, 140 S. Ct. at 2377; see also Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838 (Oct. 13, 2017) (interim final rule).
181 Little Sisters of the Poor, 140 S. Ct. at 2376.
182 Id. at 2378.
183 Id. at 2379.
184 Id. at 2381.
185 Id. at 2384.
186 Id. at 2385.
187 Id. at 2384–85 (citing 5 U.S.C. § 553(b)).
188 Id. at 2384–85.
189 Id. at 2385.
190 Id. at 2385–86.
191 Pennsylvania v. President of the U.S., 930 F.3d 543, 568–69 (3d Cir. 2019), as amended (July 18, 2019), cert. granted sub nom. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 918 (2020) (first alteration in original).
192 Little Sisters of the Poor, 140 S. Ct. at 2385–86 (quoting Perez v. Mortg. Bankers Ass’n, 575 U.S. 92 (2015)).
193 Id. at 2379.
194 Id. at 2385–86.
195 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1912–13 (2020).
196 Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2344–45 (2020) (discussing 47 U.S.C. § 227(b)(1)(A)(iii)).
197 Id. at 2343.
198 Id. at 2345.
199 Id. at 2343.
200 Id. at 2348.
201 Id. at 2352 (citing 47 U.S.C. § 608).
202 Id. at 2349, 2352–53.
203 Id. at 2349.
204 Id. at 2350–51.
205 Id. at 2350–52. Cf. id. at 2352 n.9 (“On occasion, of course, it may be [necessary to sever] a particular surrounding or connected provision . . . even though the rest of the law would be operative . . . . [C]ourts address that scenario as it arises.”).
206 See Seila Law v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020).
207 Seila Law, 140 S. Ct. at 2191.
208 Id.
209 Id. at 2194.
210 Id.
211 Id. at 2191–92.
212 Id. at 2207–11.
213 Id. at 2209–11.
214 Id. at 2209–10 (citing Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010)) (first alteration in original).
215 Id. at 2210, 2222–24 (Thomas & Gorsuch, JJ., concurring in part and dissenting in part).
216 Id. at 2209 (quoting Free Enter. Fund, 561 U.S. at 508).
217 Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2351 (2020).
218 Id.
219 See Seila Law, 140 S. Ct. at 2210.
220 Statute of Limitations, Black’s Law Dictionary (11th ed. 2019).
221 Id.; see also, e.g., Rotkiske v. Klemm, 140 S. Ct. 355, 359 (2019).
222 Rotkiske, 140 S. Ct. 355.
223 Id. at 358.
224 Id.
225 Id. at 358–59.
226 Id. at 359.
227 Id.
228 Id.
229 Id.
230 Id. (citing Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 940–41 (9th Cir. 2009)).
231 Id.
232 Id. at 358.
233 Id. at 360.
234 Id. at 360–61 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 94 (2012) (second alteration in original).
235 Id. at 361.
236 Id. at 363.
237 Id. at 362.
238 Id. at 362–63.
239 See, e.g., 28 U.S.C. § 1291 (authorizing appeals from “final decisions” in general district court litigation); 28 U.S.C. § 158 (authorizing appeals from “final judgments, orders, and decrees” in bankruptcy litigation).
240 Ritzen Group, Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582 (2020).
241 Ritzen Grp., 140 S. Ct. at 587.
242 Id.
243 Id. (citing 11 U.S.C. § 362(a)).
244 Id.
245 Id.
246 Id.
247 Id.
248 Id. at 588.
249 Id. (citing Ritzen Grp., Inc. v. Jackson Masonry, LLC, 139 S. Ct. 2614 (2019) (mem.)).
250 28 U.S.C. § 1291.
251 140 S. Ct. at 586 (quoting Gelboim v. Bank of Am. Corp., 574 U.S. 405, 409 (2015)).
252 Id. at 586.
253 Id. (citation omitted).
254 Id. at 586.
255 Id. at 592.
256 Id. at 587, 590.
257 Id. at 586–87 (quoting 28 U.S.C. § 158(a)).
258 Id. at 590 (quoting 28 U.S.C. § 157(b)(2)).
259 Id.
260 Id. at 587 (quoting Bullard v. Blue Hills Bank, 575 U.S. 496, 501 (2015) (alterations in original) (some citations omitted).
261 Id. at 589–90.
262 Id. at 591.
263 Id.
264 See, e.g., Sierra Club v. Trump, 963 F.3d 974 (9th Cir. 2020), cert. granted, 141 S. Ct. 618 (2020) (questioning organization’s standing to challenge Trump administration’s redirection of appropriated funds to build border wall); Carney v. Adams, 922 F.3d 166 (3d Cir. 2019), cert. granted, 140 S. Ct. 602 (2020) (questioning whether judicial candidate has standing to challenge state constitutional provision limiting state court judges to members of two major political parties).
265 Fulton v. City of Phil., Penn., 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020) (questioning standard of proof in case alleging religious discrimination after city did not contract with foster care agency that refused to comply with all-comers provisions, including those for married same-sex couples).
266 See Gresham v. Azar, 950 F.3d 93 (D.C. Cir. 2020), cert. granted sub nom., Azar v. Gresham, 141 S. Ct. 890 (2020) (mem.).
267 Sierra Club v. U.S. Fish & Wildlife Serv., 925 F.3d 1000 (9th Cir. 2019), cert. granted, 140 S. Ct. 1262 (2020).
268 Carr v. Saul, 961 F.3d 1267 (10th Cir. 2020) (refusing to allow claimant to raise constitutional appointment clause claim on appeal), cert. granted, 141 S. Ct. 813 (2020) (mem.), and Davis v. Saul, 963 F.3d 790 (8th Cir. 2020) (refusing same), cert. granted, 141 S. Ct. 811 (2020) (mem.).
269 See Texas v. United States, 340 F. Supp. 3d 579 (N.D. Tex. 2018) (invalidating the ACA in its entirety), aff’d in part, vacated in part and remanded, 945 F.3d 355 (5th Cir. 2020) (remanding for reassessing severability), cert. granted sub nom., California v. Texas, 140 S. Ct. 1262 (2020) (mem.); Oral Argument, California v. Texas, 140 S. Ct. 1262 (argued Nov. 10, 2020) (Nos. 19-840 & 19-1019), https://www.oyez.org/cases/2020/19-840 (transcript and audio recording).
270 Brief for Respondent/Cross-Petitioner States at 30, California, 140 S. Ct. 1262 (Nos. 19-840 & 19-1019), 2020 WL 3579860 at ∗30.
271 Patient Protection and Affordable Care Act, 42 U.S.C. § 18001, amended by Tax Cuts and Jobs Act of 2017, 26 U.S.C. § 5000A.
272 See Adam Liptak, Barrett’s Record: A Conservative Who Would Push the Supreme Court to the Right, N.Y. Times (Nov. 2, 2020), https://www.nytimes.com/2020/10/12/us/politics/barretts-record-a-conservative-who-would-push-the-supreme-court-to-the-right.html.