Publications

Greetings, Court Fans!

On Tuesday, the Court continued its quick pace through the rest of its docket, issuing decisions in five argued cases:

• In Carson v. Makin (No. 20-1088), a 6-3 Court held that Maine’s provision of tuition assistance only to “nonsectarian” schools violates the Free Exercise Clause;

• United States v. Taylor (No. 1459) held 7-2 that attempted Hobbs Act robbery is not a “crime of violence” for purposes of 18 USC 924(c);

• A unanimous Court held in United States v. Washington (No. 21-404) that a Washington workers’ compensation law that applies only to certain federal contractors working at the Hanford nuclear site violates the Supremacy Clause by discriminating against the federal government;

• In Marietta v. DaVita, Inc. (No. 20-1641), the Court held 7-2 that the Medicare Secondary Payer statute does not authorize disparate-impact liability against health plans that arguably discriminate against end-stage renal disease patients;

• And in Shoop v. Twyford (No. 21-511), a 5-4 majority held that a district court lacked jurisdiction under the All Writs Act to order Ohio to transport a state inmate to a medical facility for neurological testing in aid of his federal habeas petition.

But that’s not all this week has in store. Shortly after the Court handed down these decisions, it announced that it would be issuing more opinions on Thursday and Friday. That makes for a busy week. To kick it off, we have summaries for you now of Carson, Marietta,and Shoop. And we’ll be back later this week to give you the run down on the remaining Tuesday cases, as well as give you a quick preview of the Thursday and Friday decisions.

First up, in Carson v. Makin (No. 20-1088), the Court restated a “basic principle” that states cannot exclude religious observers from otherwise available public benefits (if you agree with the majority opinion) or took another step toward “dismantling” the wall of separation between church and state (if you agree with the dissents). By a 6-3 vote, the Court held that Maine could not, consistent with the Free Exercise Clause, exclude religious schools from its program of tuition assistance for parents who live in school districts without a secondary school of their own.

Maine’s constitution requires the state’s towns to provide a “suitable” public education to all residents. But it is also the most rural state in the nation, and its low population density makes it impractical for every school district to provide secondary education. Maine has addressed this problem by creating a program of tuition assistance for families residing in areas without public secondary schools. Under the program, if a district neither operates its own secondary school nor contracts with a particular public or private school, then the district must “pay the tuition at the public school or the approved private school of the parent’s choice at which the student is accepted.” To be approved for funding, private schools must either be certified by a New England association of schools and colleges or separately “approv[ed] for attendance purposes” by the Maine Department of Education. Nonaccredited schools must meet certain curricular requirements to be approved for attendance purposes; accredited schools are exempted from many of these requirements. And, since 1981, parents have been prohibited by statute from applying tuition assistance to “sectarian” schools, defined as those “with particular faith or belief system,” which “in addition to teaching academic subjects, promote[] the faith or belief system with which [they are] associated.”

Two Maine families who wished to enroll their children in religious schools challenged the “nonsectarian” requirement in federal court. The district court, applying First Circuit precedent that had previously upheld the requirement, rejected the families’ constitutional claims. While their appeal was pending, the Supreme Court decided Espinoza v. Montana Department of Revenue (2020), which held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination” violated the Free Exercise Clause. The First Circuit recognized that Espinoza abrogated its prior precedent but nevertheless concluded that Maine’s program was distinguishable from Montana’s constitutional requirement and thus permissible.

The Supreme Court reversed. Writing for the majority, Chief Justice Roberts insisted that “[t]he ‘unremarkable’ principles applied” in two recent cases, “suffice to resolve this case.” First, in Trinity Lutheran Church of Columbia v. Comer (2017), the Court held that a Missouri policy prohibiting public grants for cushioning playground surfaces from going to religious schools violated the Free Exercise Clause. Then, in Espinoza, the Court held a Montana policy providing tax credits to donors who sponsored scholarships for private-school tuition could not exclude scholarships for religious schools. These cases reflect the baseline proposition that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” A law that does so, the Chief continued, is subject to strict scrutiny.

Applying these principles here, the Chief had little difficultly concluding that Maine’s law violates the Free Exercise Clause. The principle interest that Maine purported to advance in excluding religious schools from receiving public tuition funds was its interest in not violating the Establishment Clause. But, the Chief noted, “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the establishment clause.” And a state’s professed interest in separating church and state “more fiercely than the Federal Constitution cannot qualify as compelling in the face of the infringement of free exercise.”

The Chief batted away the two grounds on which Maine (and the First Circuit) sought to distinguish this case from Espinoza and Trinity Lutheran. Maine argued that its nonsectarian requirement was not properly viewed as tuition assistance but rather as funding for “the rough equivalent of the public school education that Maine may permissibly require to be secular.” But the Chief didn’t view it that way: “The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the ‘private school’ must somehow provide a ‘public education.’” And in practice, the Chief pointed out, the private schools that received these tuition dollars often provided nothing like a “free public education.” Accredited schools were not required to provide the same curriculum as that taught in Maine public schools, and many were far more expensive than the tuition allotment provided and therefore not “free.” The only way in which Maine required private schools to be similar to public schools was that they be secular.

Second, Maine argued that its program was different from those at issue in Espinoza and Trinity Lutheran in that it excluded sectarian schools not due to their “religious identity,” but rather based on the expected religious use of public funds. A sectarian school could technically qualify for public tuition funds even if it was sponsored or run by a church, so long as it did not espouse or promote a specific religious belief system. But the Chief found that this use/status distinction was not actually found in the Court’s precedents. While it is true that Espinoza and Trinity Lutheran involved status-based discrimination, “those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.” And while the Court had held in Locke v. Davey (2004) that a state may preclude parents from designating a religious school to receive direct tuition-assistance payments, that case concerned tuition for overt religious training; it did not adopt a general rule that public tuition funds can never go to religious schools.

Justice Breyer penned the principal dissent, joined by Justice Kagan and, in part, by Justice Sotomayor. He criticized the majority opinion for paying insufficient attention to the Establishment Clause in its application of the Free Exercise Clause. Because those two clauses are often in tension, the Court has recognized that there must be some “play in the joints” between them. In his view, it’s one thing to say that a state may allow public funds to flow to religious schools and quite another to say that it must. “What happens once ‘may’ becomes ‘must’? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? . . . What other social benefits are there the States’ provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided.” To prevent an Establishment Clause parade of horribles, Breyer insisted that states must be permitted to try to strike a balance between the religion clauses. More may, less must. In his view, Maine had done just that. In an effort to avoid violating the Establishment Clause, it elected to preclude parents from using public tuition assistance for schools that advance particular religious views. Perhaps the Establishment Clause did not compel it to do that, but neither does the Free Exercise Clause forbid it.

Breyer is known to have particularly nuanced views on the religion clauses and was once a swing vote in these cases. Justice Sotomayor (who joined all but a portion of Breyer’s opinion expressing his view that the religion clauses should be read to avoid religious division) was more direct in her own dissent: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” In her view, the Court took a wrong turn five years ago in Trinity Lutheran. Before then, the Court had generally “understood the Establishment Clause to prohibit government funding from religious exercise.” While the Court had eroded that principle overtime, it “veered sharply away from that understanding” in Trinity Lutheran. In her Trinity Lutheran dissent, Sotomayor “feared that the Court was ‘leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” But the majority’s opinion here “leads us to a place where separation of church and state becomes a constitutional violation.” Thus, “with growing concern for where this Court will lead us next,” she dissented.

One significant difference between the majority and dissenting opinions in Carson is the dates of the cases cited in support. While the Chief’s opinion relied almost entirely on decisions from the last twenty-odd years (and in particular on decisions from his own tenure), the dissenters relied principally on Warren and Burger Court decisions, which have not been overturned, but appear to have lost their bite over time. 

Out next case for today is Marietta v. DaVita, Inc. (No. 20-1641), where the Court took on whether a health insurer could shift the cost of outpatient dialysis to Medicare without violating a statutory provision barring discrimination against patients who have end-stage renal disease. A majority of seven found that a health insurer’s plan did not run afoul of that provision because it did not treat individuals with end-stage renal disease differently than those without it.

Medicare spends $50 billion a year on treatment for patients with end-stage renal disease. Given the high cost of dialysis, insurers have an incentive to provide low reimbursement rates to incentivize patients to cancel their private insurance and go on Medicare. Congress passed the Medicare Secondary Payer statute to prevent that by barring any insurance plan from “differentiat[ing] between individuals having end stage renal disease and other individuals covered by such plan on the basis of the existence of end stage renal disease, the need for renal dialysis, or in any other manner.” Marietta, a group health plan, provided low reimbursement rates for outpatient dialysis. It also had no in-network dialysis providers, which effectively required patients to pay up front and then seek reimbursement for dialysis treatments. DaVita, a large dialysis provider, claimed Marietta’s plan violated the statute, and the Sixth Circuit agreed.

Justice Kavanaugh, writing for a seven-Justice majority, reversed in a short opinion. Marietta’s plan provided the same limited benefits for all dialysis patients; it did not distinguish between patients with end-stage renal disease and other renal patients requiring dialysis. Because, on the majority’s reading, this differential treatment is the only thing the statutory language prohibits, the “inquiry ends there.” Kavanaugh then rejected DaVita’s main argument: that the statute authorizes liability even for plans that limit benefits in a uniform way if the limitation has a disparate impact on individuals with end-stage renal disease. Nothing in the statutory text supported that “disparate impact” approach. Moreover, a disparate-impact theory would be “all but impossible to fairly implement” because, in the absence of some statutory benchmark, courts would have no reasonable way to determine what level of benefits for outpatient dialysis would be adequate to satisfy the statute. Congress could write a statute that set such standards, but it didn’t do so here.

Justice Kagan, joined by Justice Sotomayor, dissented. Like the majority, Kagan rejected DaVita’s disparate-impact argument. But she found merit in one of its alternative theories: that outpatient dialysis is an almost perfect proxy for end-stage renal disease, so by providing low reimbursement rates for that service, Marietta’s plan was effectively treating end-stage renal disease patients differently. She found further support for this approach in the statutory text, which doesn’t just prohibit plans that provide different benefits for patients who have end-stage renal disease; it also prohibits differentiation of patients “on the basis of . . . the need for renal dialysis, or in any other manner.” (The majority answered this argument in a footnote, concluding that the statutory language doesn’t alter the statute’s prohibition but merely describes one of the ways a plan might differentiate patients who have end-stage renal disease.) Finally, she concluded that the majority’s interpretation allowed Marietta to “foist[] the cost of dialysis onto Medicare,” undermining the entire purpose of the statute.

Finally, we have Shoop v. Twyford (No. 21-511). It addressed one of the more confounding jurisdictional statutes out there: the All Writs Act, which authorizes federal courts to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” By a vote of 5 to 4, the Court concluded that this Act did not give a federal district court the power to order a state to facilitate the development of evidence in aid of a state inmate’s federal habeas petition unless the district court first determines that the evidence sought would be admissible under the Antiterrorism and Effective Death Penalty Act (AEDPA).

Raymond Twyford was convicted by an Ohio jury of aggravated murder and related offenses and sentenced to death. After his conviction became final, he sought postconviction relief in the Ohio state courts, arguing that his trial counsel was ineffective for failing to present evidence that Twyford had suffered a serious head injury as a teenager, which left him unable to make rational and voluntary choices. But the Ohio courts rejected this claim, finding that his trial counsel had reasonably chosen to present a different defense (one inconsistent with the head-injury theory). Twyford then sought federal habeas relief. After the district court allowed his ineffective assistance of counsel claim to proceed, he sought an order compelling the state to transport him to a nearby medical center for neurological testing, testing that he claimed would establish his neurological defects. Relying on the All Writs Act, the district court entered the order. And on appeal, the Sixth Circuit affirmed, reasoning that the order was a permissible exercise of the district court’s authority because it might establish evidence that plausibly related to Twyford’s habeas claims.

The Court reversed in a decision written by the Chief Justice and joined by Justices Thomas, Alito, Kavanaugh, and Barrett. On appeal, Ohio argued that district courts never have authority under the All Writs Act to order a state to transport an inmate for medical testing. But even if they did, Ohio contended that this order was not “necessary or appropriate in aid of” the district court’s jurisdiction—as the All Writs Act requires—because Twyford had not shown how the medical testing would advance his habeas case. The majority agreed with the second point so found it unnecessary to reach the first. AEDPA, the federal statute governing most habeas claims, generally prevents federal courts from granting habeas relief based on evidence that was not developed and presented in state-court postconviction proceedings. While there are some narrow exceptions to that rule, a district court must decide whether one of those exceptions applies before granting a federal habeas petitioner an evidentiary hearing to develop the new evidence. The Chief concluded that this same AEDPA limitation applies when the All Writs Act is the vehicle for gathering the new evidence. But neither Twyford nor the district court had ever concretely explained how the evidence obtained from medical testing would be admissible in Twyford’s federal habeas proceeding. As a result, any evidence collected from that testing might be entirely irrelevant, so the transportation order could not be an appropriate exercise of the district court’s authority under the All Writs Act to issue orders in aid of its jurisdiction.

Justice Breyer, joined by Justices Sotomayor and Kagan, dissented. They would not have reached the merits of the question presented, concluding instead that the Sixth Circuit lacked appellate jurisdiction to review the transportation order. Courts of appeals usually have jurisdiction only over final decisions of district courts, precluding them from hearing interlocutory appeals. An exception to this rule exists for “collateral orders,” a narrow category of orders that “finally determine” some issue that is “separable from and collateral to” the main issue asserted in the litigation. But discovery orders issued during the pendency of a case generally don’t meet the collateral-order doctrine’s requirements, because they aren’t important enough to justify a mid-case appeal. The dissenters saw no reason why this order—which simply required Ohio to transport Twyford for purposes of collecting evidence—should be any different, so they would have declined to decide the merits of the district courts’ authority.

Justice Gorsuch wrote his own dissent, again over appellate jurisdiction. In his mind, the Court granted cert to decide whether and when a district court can order a state to transport a state prisoner to a hospital for testing. But once the Court granted cert, it became apparent that there was a substantial (and previously unrecognized) question of appellate jurisdiction. Because the Court didn’t take up the case to decide a latent issue regarding appellate jurisdiction, he would have dismissed the case as improvidently granted, declining to decide either the jurisdictional issue or the merits.

That’s it for today. We’ll be back tomorrow to give you the rundown on the Court’s Thursday opinions as well as to summarize the outstanding cases from Tuesday.

Dave and Tadhg