The just-completed Supreme Court term was a blockbuster for state legislatures—and the next one is shaping up to be more of the same, litigator Morgan Ratner said during a session at NCSL’s Legislative Summit.
Religion on a Roll
The recent term “really was a banner year for religion at the court,” Ratner, a special counsel in Sullivan & Cromwell’s litigation group and former assistant to the U.S. solicitor general, told the audience. In the Boston flag case, city officials didn’t want to fly a religious flag outside City Hall “because they didn’t want to deal with the (Constitution’s) establishment clause. But the idea of not wanting to be connected to the establishment clause is not something the court has tolerated.”
Ratner described Carson v. Makin, in which the court held that Maine’s refusal to provide tuition assistance payments to schools that teach religion violates the First Amendment’s free exercise clause, as “quite significant.” In some cases, Maine provides funding to public schools in very rural areas and in other areas allows students to attend private schools and reimburses them. But the state excluded sectarian schools. “Maine tried to get its programs into the religious-use buckets but said, ‘We’re looking at those schools and some of what they do is teach religion.’ The Supreme Court said you can’t do that.”
Kennedy v. Bremerton School District, involving the praying coach in Washington state, “ended up being a pretty factually contested case,” she said. “The conclusion was, this is a high school football coach at the end of a game in which he’s technically on duty but allowed to do personal stuff, like greet his wife in the stands or scroll through his phone, and in that time he drops to his knee and says a quiet prayer, that that’s permissible. There have been more hotly contested issues that the court didn’t touch. What if he really was more on duty, at a time when he should have been doing other things, but he still felt compelled to pray? Did the individuals on the football team feel coerced?
“The big takeaway is once upon a time there was breathing space between the establishment clause and the free exercise clause. I think that space is pretty much gone. There is a much smaller perception of the establishment clause … Especially for funding cases, if you’re open to all comers, you have to be open to religion, too.”
(Ratner’s examination of the court’s abortion ruling is covered in a separate State Legislatures News story.)
On the Upcoming Docket
“Affirmative action is on the chopping block,” Ratner said. “The court will consider the constitutionality of affirmative action at both Harvard and (the University of) North Carolina. That is obviously going to affect many of your cases.”
Two big election cases are in the upcoming docket, she said: Moore v. Harper, from North Carolina, in which the court will consider the “independent state legislature theory,” and a “big one out of Alabama involving Section 2 of the Voting Rights Act.”
In what Ratner described as a follow-up to the 2017 Masterpiece Cakeshop case, 303 Creative LLC v. Elenis will be another test of free speech: “someone who designs websites but doesn’t want to design them for people who are going to have a same-sex marriage.”
Ratner also noted a “very important” commerce case involving a California requirement that all pork sold in the state come from hogs raised under certain conditions. “It has the practical effect, at least arguably, of setting the conditions for raising hogs nationwide, when almost none of them are raised in California,” she said. The question will be, “Do five justices think the dormant commerce clause exists, and if they do, do they think it applies in circumstances like this where it feels like a state regulation is having a big effect elsewhere.”
Caginess in the Court?
Ratner, who clerked for Chief Justice John Roberts—and Justice Brett Kavanaugh when he was on the U.S. Court of Appeals for the D.C. Circuit—responded to a question about Justice Samuel Alito’s draft opinion overturning Roe v. Wade being leaked nearly two months before the final decision.
“The early sign is the court’s probably not going to do anything formal about the way clerks have access to things,” she said. “One of the things as a law clerk at the court is that the justices don’t meet to talk about a case until it’s argued. At that point, the die is often kind of cast or at least the important themes have come out. So what you do as a clerk in advance of an argument is you go around and talk to the other clerks. ‘What’s on your justice’s mind? Are you leaning one way or another?’ So you can go tell your boss, ‘Here’s the lay of the land. Everybody thinks it’s going to be an easy case or this is going to be tough. People want to figure out this particular aspect.’
“I wonder if there’s going to be a little less of this, because there will be a little bit of distrust. Hopefully that won’t be true, but in the short term I wouldn’t be surprised if there was a little more caginess with respect to the people around you.”
Mark Wolf is a senior editor at NCSL.