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  • Writer's pictureElizabeth Slattery

Recapped: Let Your Freak Flag Fly

Please excuse the lengthy intermission since our last post. As you may know, a certain SCOTUS Lady recently returned to Pacific Legal Foundation after a stint at the Cato Institute.

She's not the first to return to the trenches of fighting for individual liberty. In fact, it's so common, we have a nickname for returning colleagues: the PLF boomerangs.


There has certainly been plenty of Supreme Court related news since we last met —most notably FlagGate. If you aren't familiar, check out this article by Dan McLaughlin of National Review Online recapping the various flag stories.

I don't have much to add on the subject though one thing that grinds my gears is treating Martha-Ann Alito as an extension of her husband, aka Justice Samuel Alito. It's 2024. Aren't women separate individuals entitled to their own opinions, activities, merits, and flaws? Nevertheless, the tenor of the national conversation has tiptoed up to the line of suggesting "Justice Alito get his wife in line." As a fellow strong-willed (and occasionally misbehaving) woman, I bristle at the notion. 


With that out of the way, let's dig into some of the recent opinions. Admittedly, we are not yet in blockbuster territory. The coming weeks will be action-packed as the justices release a flurry of decisions before high-tailing it out of Washington, DC for the summer. Here are a few recent decisions that piqued my interest. 


First up is Becerra v. San Carlos Apache Tribe & Becerra v. Northern Arapaho Tribe, a case concerning funding for Native American tribe members' healthcare. In the 1970s, Congress enacted two laws aimed at improving healthcare for members of Indian tribes. One allows tribes to contract with the federal government for healthcare services that were previously provided by a government agency, the Indian Health Service. When tribes opt to contract with the government to administer healthcare services directly, they receive the appropriated funds the Indian Health Service would have spent.


Tribes also are reimbursed for administrative expenses called "contract support services." Another federal law authorizes Indian Health Service facilities (operated by the government or contracting tribes) to collect "program income" from Medicare, Medicaid, and private insurers for services provided to Indian patients. Tribes use this income to expand and improve services. The question in the San Carlos Apache and Northern Arapaho Tribes' cases was whether the government must reimburse tribes for contract support services they incur in the course of collecting program income from third parties. 


In an opinion written by Chief Justice John Roberts, the Court held that the government is obligated to pay up for these additional expenses. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson joined the majority opinion. A SCOTUS line up like this takes some of the air out of the "they’re just politicians in robes and vote for 'their team'" balloon. 


Justice Brett Kavanaugh wrote a dissent, joined by Justices Clarence Thomas, Amy Coney Barrett, and Mr. Martha-Ann Alito (I kid!). Justice Kavanaugh explained:

For the past 30 years, the Executive Branch has interpreted the relevant statutory provisions … to require tribes to pay those overhead costs out of the third-party income collected from Medicare, Medicaid, and private insurers. And Congress has never overturned that consistent Executive Branch practice.

This decision "upends that long-settled understanding and requires the Federal Government to furnish additional funding to the tribes for the costs of spending the third-party income." That additional funding would be an estimated $800 million to $2 billion per year, and Justice Kavanaugh mused this may lead to tax hikes, diverting money from other federal programs, and other "difficult appropriations decisions and tradeoffs" that are better left to Congress and the President, not the Supreme Court. Touché


But, as the Chief explained, the tribes' reading of the statute is the better one and "complaints about costs are the domain of Congress, not this Court." Double touché!



Another decision that further deflates the "politicized court" balloon was National Rifle Association v. Vullo. The Court held the NRA plausibly alleged the New York’s Department of Financial Services violated the First Amendment by coercing insurance companies and other regulated entities to sever ties with the NRA in order to punish or suppress its gun rights advocacy. The unanimous majority opinion by Justice Sotomayor began: 

Six decades ago, this Court held that a government entity's 'threat of invoking legal sanctions and other means of coercion' against a third party 'to achieve the suppression' of disfavored speech violates the First Amendment… Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that.

Another recent unanimous decision was Harrow v. Department of Defense. Perhaps because my colleagues at Pacific Legal Foundation won a case involving a similar issue last term, there's a special spot in my heart for cases looking at whether courts lack jurisdiction to hear claims that have been filed after a statutory filing deadline has passed. (Don't judge me. The heart wants what it wants. And this SCOTUS Lady's heart wants courthouse doors to remain wide open.)


In recent years, the Court has steadily marched through the U.S. Code, determining that statutes of limitation in laws ranging from copyrights to tort claims to quiet title actions are not jurisdictional. In other words, missing a filing deadline doesn't deprive a court of its ability to hear your case because the court could excuse the tardiness if there are really good reasons to do soaka equitable tolling. And in this case there were some compelling reasons for a court to toll the statute of limitations (check out my argument preview for the details).  


Now the march continues. The Court unanimously held that missing the filing deadline for an appeal from a Merit Systems Protection Board decision does not deprive a federal court of jurisdiction to hear that appeal. Writing for the Court, Justice Kagan explained (in a brief, 11-page opinion) that Congress "legislates against the backdrop of judicial doctrines creating exceptions" for procedural requirements. Thus, the Court will "treat a procedural requirement as jurisdictional only if Congress 'clearly states' that it is." That wasn't the case with the relevant federal law, so that's the end of the story. One interesting note for bean-counters: Wilkins (PLF's win last term) was decided 6-3 whereas Harrow was unanimous. 


The last decision I'll mention is Alexander v. South Carolina State Conference of the NAACP, a challenge to the congressional district map drawn by South Carolina legislature's following the 2020 Census. A three-judge district court threw out the map, finding race played a predominant role and certain districts unconstitutionally diluted black voting power. The Supreme Court reversed in a 6-3 decision.


Writing for the majority, Justice Alito noted there are two lines of redistricting case law that "collide when race and partisan preference are highly correlated." (For example, ninety percent of black South Carolina voters cast a ballot for Joe Biden in 2020.) To deal with this collison, the Court has previously mandated that (1) courts begin with a presumption that the legislature acted in good faith and (2) the party challenging a map must "disentangle race and politics if it wishes to prove that the legislature was motivated by race as opposed to partisanship." (Legislators are always at least somewhat motivated by partisanship.) Yet the district court "paid only lip service to these propositions." Further, the district court relied on flawed expert reports and the challengers failed to carry their burden of providing direct or circumstantial evidence of racial gerrymandering.


The justices had a lot more to say in over one hundred pages of majority, concurring, and dissenting opinions. Justice Thomas observed in a concurrence that the Court's doctrines "indulge in race-based reasoning inimical to the Constitution" and perhaps the Court should "abandon [its] misguided efforts."


Political gerrymandering is as old as our nation. (Look up Elbridge Gerry if you don't know the backstory). It seems to me that Justice Felix Frankfurter was right when he cautioned against courts entering "the political thicket" that is redistricting. Alas, federal courts have been drawn into that thicket repeatedly for the past several decades with no end in sight. 

That's all for now. Check back for updates as decisions in the biggest cases of the term start coming down.

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