About the Supreme Court's unanimous decisions

Unanimity can — and often does — hide conflict. Also: What's left from SCOTUS? And, for paid subscribers: Closing my tabs.

Unanimous decisions from the U.S. Supreme Court are the thing dreams are made of. They are the idyllic manifestation of a non-political court. Or so those seeking to advance that conception of the court would have us believe.

In reality, unanimous decisions can — and often do — hide conflict or, at least, the possibility of future conflict.

The court can want this for itself for many reasons. Institutionally, the court is stronger when it presents a united front — and it is almost certain that many of the decisions still to be issued will not be unanimous. Additionally, decisions in recent years have challenged the court’s standing with the public. And, of course, President Donald Trump adds further reasons for the justices to seek unanimity when they can.

This past week provided great examples of that unanimity — and what it hides. The court issued six rulings issued on June 12. Four were unanimous and the other two were 8-1 decisions with Justice Neil Gorsuch dissenting. Of the six, four addressed jurisdictional or deadline-related questions. I’d like to spend a little time this Sunday on the final two — both of which were unanimous and yet included writings that told us there was much more going on beneath that unanimity.

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In A.J.T. v. Osseo Area Schools, the Supreme Court took a simple step, ruling that people who bring disability cases in the school context need not show that school officials acted with “bad faith or gross misjudgment” — a standard found nowhere in the text of the Americans with Disabilities Act or the Rehabilitation Act but used by some courts.

“There is no textual indication that the protections of either disability discrimination statute apply with lesser force to certain qualified individuals bringing certain kinds of claims,“ Chief Justice John Roberts wrote for the unanimous court in rejecting the heightened standard, which had been applied by the U.S. Court of Appeals for the Eighth Circuit in the case.

Hidden behind that unanimity, however, was the next case. Not a specific case, but a clear acknowledgement that this decision could lead to a potential landscape-shifting case.

“The District now contends instead that bad faith or gross misjudgment is ‘the correct standard across the board’ for injunctive relief and damages, ‘both in schools and out,’” Roberts wrote — a dramatic expansion of the potential effect of the case. Essentially, the school district was arguing that while it now agreed that the same standard should apply across disability cases, the standard should be the heightened “bad faith or gross misjudgment“ standard.

Roberts sidestepped the question. Explaining that the court does not generally address issues not first addressed by the lower courts or raised in the question on which the Supreme Court granted review, the chief justice concluded, “We will not entertain the District’s invitation to inject into this case significant issues that have not been fully presented.”

Justice Clarence Thomas wrote a concurring opinion, as he often does in such situations, explicitly raising what Roberts only nodded at. Although Thomas agreed that Roberts’s opinion “correctly resolves” the case before the court, he added, “I write separately to note that in an appropriate case, I would be willing to consider the additional issues raised by the respondents (collectively, the District) at the merits stage. Although those issues were not properly before us in this case, they are important and merit our attention in the future.”

Most notably, he was not writing for himself alone in the opinion, being joined by Justice Brett Kavanaugh.

Although Thomas claimed that he was “express[ing] no definitive views” on the question, his 5-page concurrence for him and Kavanaugh suggested otherwise. “Whether federal courts are applying the correct legal standard under two widely utilized federal statutes is an issue of national importance, and the District has raised serious arguments that the prevailing standards are incorrect,” he wrote for the pair, urging lower courts to “carefully consider whether the existing standards comport with the Constitution and the underlying statutory text“ in the meantime.

Justice Sonia Sotomayor saw what was going on. In her own 5-page concurrence — in which she was joined by Justice Ketanji Brown Jackson — she wrote that “there is good reason no court of appeals has adopted [the school district’s] eleventh-hour argument.“

Pushing the heightened standard to all of disability law would make no sense, she explained. Discussing “one of the paradigmatic applications of these two laws,“ Sotomayor wrote about ‘elimination of architectural barriers’ to provide access for individuals with disabilities” — or, stairs. Looking at the school district’s argument (and Thomas’s concurring opinion), she continued:

Architectural barriers like stairs are rarely (if ever) “erected with the aim or intent of excluding the handicapped.” Yet if respondents’ novel rule were the law, ADA and Rehabilitation Act claimants would have to show that a building’s architect acted with “animus” toward those with disabilities in sketching out her designs. It is hard to imagine any architectural-barrier claim succeeding under such a standard.

For now, though, the school district — which had been represented, in a heated argument, by Lisa Blatt before the justices — lost in that expansive effort, which even Thomas acknowledged “could have significant ramifications for both disability law and discrimination law more generally.”

It is, however, an important reminder to look at what is happening below the surface in unanimous opinions.

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In Martin v. U.S. — the case over a lawsuit that followed the FBI’s 2017 wrong-house raid in Atlanta — we got another example of how unanimous decisions can be less illuminating than they appear.

In that case, the court was unanimous that the U.S. Court of Appeals for the Eleventh Circuit was wrong — on multiple fronts — in how it addressed the overlapping questions and exceptions that apply to when people can sue the federal government for wrongdoing. (It’s a complex path over the exception to the exceptions to a law — the Federal Tort Claims Act — that itself is an exception to the general rule that government is immune from such lawsuits.)

Although the decision — authored by Justice Neil Gorsuch — resurrected the lawsuit filed by the people whose house was improperly raided, Part IV of Gosuch’s opinion made clear both how little the Supreme Court resolved and how far away any relief is.

When a justice begins the final section of an opinion by asking “Where does all that leave the case before us?“ — that’s a pretty good sign that court has pushed off something significant. When the next sentence begins, “We can say this much,“ they left much of the work for the lower courts and the future.

Here, although the court resurrected the lawsuit, Gorsuch made clear that the lower court needs to now consider whether an additional exception — that would block the lawsuit — applies here. If Martin and her family get past that — the “discretionary-function” exception — then the Supreme Court’s opinion makes her case stronger when it comes to how the U.S. can defend itself against the lawsuit.

Did the Supreme Court explain how to apply the “discretionary-function” exception to the FTCA? Of course not. Instead, Gorsuch wrote:

We readily acknowledge that different lower courts have taken different views of the discretionary-function exception. We acknowledge, too, that important questions surround whether and under what circumstances that exception may ever foreclose a suit like this one. But those questions lie well beyond the two we granted certiorari to address.

Noting that the Supreme Court “would benefit” from the appeals court’s “reexamination” of the case, Gorsuch asserted, “It is work enough for the day to answer the questions we took this case to resolve, clear away the two faulty assumptions on which that court has relied in the past, and redirect it to the proper inquiry.”

Although she didn’t disagree, Sotomayor — again, joined by Jackson — wrote a concurring opinion. This time, rather than offsetting another concurrence, Sotomayor was providing her guidance for addressing that major unanswered question of the majority opinion.

In addition to writing that “it is long past time for this Court to weigh in on the [discretionary-function] exception’s scope,” Sotomayor wrote how — even under current precedent — she believed there was ample information to help the lower court in resolving this case.

Noting that a 1973 wrong-house raid led Congress to amend the FTCA to allow for those very lawsuits in the context of one of the exceptions to the FTCA, Sotomayor wrote, “Whatever else is true of [the discretionary-function] exception, any interpretation should allow for liability in the very cases Congress amended the FTCA to remedy.”

Meanwhile, Curtina Martin waits and her son, who was 7 years old at the time the FBI improperly stormed his home in 2017, will likely have his driver’s license before the case is resolved.

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What’s left?

Of the 21 cases remaining, I’m focused on about half of them. Eight of the 11 key cases that I was most closely watching at the start of the month remain to be decided. They are:

• Kennedy v. Braidwood Management — the Affordable Care Act’s preventative care coverage requirements — Law Dork coverage

• Trump v. CASA — the nationwide scope of injunctions blocking Trump’s executive order to end birthright citizenship — Law Dork coverage

• FCC v. Consumers’ Research — the Federal Communications Commission’s Universal Service Fund and the nondelegation doctrine — SCOTUSblog coverage (Amy Howe)

• Free Speech Coalition v. Paxton — age-verification internet regulation and the First Amendment — Law Dork coverage

• Louisiana v. Callais — redistricting and equal protection — The Preamble coverage (Leah Litman)¹

• Mahmoud v. Taylor — religious rights surrounding gender and sexuality discussions in schools — Law Dork coverage

• Medina v. Planned Parenthood South Atlantic — “any qualified provider” Medicaid challenge relating to abortion opposition — Law Dork coverage

• U.S. v. Skrmetti — challenge to Tennessee’s gender-affirming medical care ban for transgender minors — Law Dork coverage (additional)

In addition to those cases, three of the five other cases that I said I was watching because they could be significant depending on their outcome also remain. They are:

• Gutierrez v. Saenz — standing and redressability

• Nuclear Regulatory Commission v. Texas — nonparties and review of agency decisions

• Stanley v. City of Sanford, Florida — Americans with Disability Act rights for former employees

The next Supreme Court decision day is Wednesday.

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Closing my tabs

This Sunday, these are the tabs I am closing: