//  10/17/18  //  In-Depth Analysis

Brett Kavanaugh’s confirmation will push an already conservative Supreme Court even further to the right. Progressives can expect to be on the losing end of several landmark decisions over the next few years. Frustration will ensue, and justifiably so. Hopefully that frustration will mobilize progressives to vote in elections, volunteer on campaigns, open their checkbooks, and run for office—and thereby ensure that progressives control the White House and the Senate when the next several Supreme Court vacancies arise.

What to do in the meantime? We could try to pack the Court, though we won’t make progress on that front until after the 2020 elections (and even then, the prospects for a progressive majority on the Senate side are bleak). We could try to impose 18-year term limits, though it’s doubtful that we can accomplish that result without a constitutional amendment and even less likely that such an amendment would garner the support of three-quarters of the states. We could attack the legitimacy of judicial review, though we’ll have to cope with cognitive dissonance if we do. After all, most of us think that nine unelected justices can legitimately strike down federal and state laws that violate the Constitution. It would be very hard for us to defend—much less extol—decisions such as Brown v. Board, Roe v. Wade, and Obergefell v. Hodges if we thought otherwise.

Or we can do what most of the writers for this blog (and many of the readers too) have trained for years to do. We can continue to pursue incremental change through litigation in state and federal courts. When cases reach One First Street, we can press our arguments there, with the understanding that we are likelier to lose than we were before but we are sure to lose if we don’t show up.

Our strategies will change with the shifting jurisprudential landscape. We will continue to litigate in federal court—with the hope of drawing a sympathetic district judge or appellate panel at least some of the time—but we ought to pay more attention to state constitutions and state courts, where we still can win significant victories that are immune from Supreme Court review. We should also look for areas in which doctrines favored by the Court’s conservatives point toward substantive results sought by progressives. At worst, we will lose while exposing inconsistencies in the Court’s application of its own decisions. At best, we will actually advance a few important progressive priorities even as we struggle to hold the line on other fronts.

Here are a few tentative suggestions for the sorts of claims that might stand a chance of garnering five votes on the current Court:

Commerce Clause challenge to the Partial-Birth Abortion Ban Act. The federal Partial-Birth Abortion Ban Act of 2003 makes it a crime, punishable by up to two years in prison, for a physician to perform an abortion using a method known as “intact dilation and evacuation.” Intact D&E is a rare procedure, but it may be medically necessary under certain circumstances. Physicians and reproductive rights advocacy groups initially challenged the law on the grounds that it was unconstitutionally vague and that it imposed an undue burden on a woman’s right to choose. The Supreme Court, in the 2007 case Gonzales v. Carhart, rejected those claims and upheld the law. In a curious concurrence, Justice Thomas—joined by Justice Scalia—wrote:

“I also note that whether the Partial-Birth Abortion Ban Act of 2003 constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

How often does an avowedly anti-abortion jurist flag a potential argument for reproductive rights advocates? What is even more curious about Justice Thomas’s concurrence is that progressive litigators have largely ignored it, even after five justices in NFIB v. Sebelius endorsed a narrow view of Congress’s Commerce Clause power to regulate health care. To be sure, it’s not clear that we could count to five here: Justice Thomas’s concurrence does not commit him to striking down the 2003 law; other pro-life conservatives might not go along with him even if he does; and the Court’s more liberal justices might decide that their commitment to an expansive interpretation of Congress’s Commerce Clause power trumps their support for reproductive rights. But it would not be hypocritical for Justices Ginsburg, Breyer, Sotomayor, and Kagan to vote to invalidate the Partial-Birth Abortion Ban Act. They could acknowledge that they prefer a wider view of Congress’s Commerce Clause power but that they will nonetheless apply the more restrictive reading of the Commerce Clause set forth in precedential decisions such as United States v. Lopez and United States v. Morrison, as well as by five justices in NFIB.

Compelled-speech challenge to abortion-provider “disclosure” mandates. The Commerce Clause is not the only doctrinal lever that progressives can use to advance reproductive rights before a Roberts Court. First Amendment compelled speech jurisprudence offers an additional tool. The Court’s decision last Term in National Institute of Family and Life Advocates v. Becerra—in which five conservative justices voted to strike down a California law requiring pro-life “crisis pregnancy centers” to notify patients about the availability of low-cost abortions—actually may have laid the doctrinal foundation for abortion providers to advance their own free speech claims.

More specifically, several states have passed onerous laws that require abortion providers to make inaccurate and misleading disclosures to patients in the ostensible interest of “informed consent.” South Dakota’s law is among the worst: It requires physicians to tell pregnant women that an abortion “will terminate the life of a whole, separate, unique, living human being,” and that an abortion will increase the risk of suicidal ideation and suicide. The first claim is a statement of opinion rather than fact; the second is a statement of fact that the facts do not support.

The Eighth Circuit upheld the South Dakota law in a 2008 opinion that was dubious under then-current doctrine. The Court’s decision last Term in National Institute of Family and Life Advocates makes the Eighth Circuit’s position unsustainable. The Court in NIFLA held that disclosure requirements for care providers are entitled to deference only if they are “factual and uncontroversial,” which the South Dakota disclosures clearly aren’t. (Indeed, the Court went on to note that abortion is “anything but an ‘uncontroversial’ topic.”) The NIFLA opinion all but invited physicians to bring new challenges to state disclosure mandates like South Dakota’s. Progressive lawyers should help their physician friends take up the invitation.

Free speech challenge to labor union secondary activity ban. Section 8(b)(4) of the National Labor Relations Act prohibits labor unions from engaging in so-called “secondary” boycotts and pickets. For example, if a building manager hires a janitorial service company to clean the building and the janitorial service company mistreats its workers, the janitorial service company’s workers generally cannot picket against the building manager. If Walmart sources from a factory that engages in unfair labor practices, unions can picket the factory but not Walmart.

This ban on secondary activity is a serious obstacle to labor organizers and further tilts the balance of power in management’s favor. It’s also constitutionally suspect in light of recent Supreme Court commercial speech and labor free speech cases. The Court waved aside a First Amendment challenge to the prohibition in 1980, but it is doubtful that conservative justices could uphold the ban on stare decisis grounds while maintaining a straight face. After all, if the stare decisis effect of a 1977 labor free speech decision was not enough to save fair-share fee laws in last Term’s Janus v. AFSCME, it’s hard to see how the stare decisis effect of a 1980 labor free speech decision could do the trick here.

Religious Freedom Restoration Act challenges to anti-immigrant laws. The Religious Freedom Restoration Act provides that the federal government “shall not substantially burden a person’s exercise of religion” except when furthering a “compelling government interest” by the “least restrictive means” available. This was the law that the Court’s conservatives used to pare back the Affordable Care Act’s contraception mandate in Burwell v. Hobby Lobby Stores, Inc. But the Court’s religious freedom decisions are not always ideologically tinted: for example, Justice Alito relied on a similar statute, the Religious Land Use and Institutionalized Persons Act, when in 2015 he held (in a unanimous opinion) that an Arkansas prison could not compel a Muslim inmate to shave his beard. Decisions like that have prompted progressive lawyers to look to RFRA as a way to defend the rights of the most marginalized members of society.

One RFRA case that is coming up through the courts involves a member of a Unitarian Universalist ministry in Arizona who faces criminal charges for providing humanitarian aid to undocumented immigrants in the Sonoran Desert. The defendant, Scott Warren, argues that his religious beliefs compel him to provide aid to people who are suffering and dying in the desert and that federal prosecutors are imposing a substantial burden on his exercise of religion. It’s far from a surefire claim, but arguments like Warren’s will force conservative judges and justices to consider whether RFRA decisions such as Hobby Lobby also afford protection to individuals with more progressive but equally sincere religious beliefs.

There’s more. Blue states and progressive municipal leaders already are invoking Rehnquist and Roberts Court federalism decisions to defend their “sanctuary state” and “sanctuary city” laws. We’ll likely also see California invoke federalism values in defense of its state-level “net neutrality” legislation, which the Federal Communications Commission has purported to “preempt” through a declaratory ruling. California will likewise appeal to Justice Thomas’s skepticism of “conflict preemption” as well as Justice Gorsuch’s and Justice Kavanaugh’s apparent resistance to agency deference claims, in its net neutrality defense.

The list is far from exhaustive. The broader point is that Roberts Court doctrines regarding the Commerce Clause, compelled speech, commercial speech, RFRA, federalism, and agency deference don’t always tilt toward the right. Lawyers on the left can and likely will look for opportunities to use these doctrines for progressive ends.

There are, to be sure, two categories of risks that this approach entails. The first—and less serious—are the risks of losing. Progressives may discover that the Roberts Court umpires only call strikes on the right side of home plate. No matter how clear it is that abortion providers challenging compelled speech laws like South Dakota’s ought to prevail post-NIFLA, they may find that ideological purity trumps doctrinal purity in some justices’ decisionmaking. That would be a disappointing outcome—though no worse than not trying in the first place. Maybe we’ll ultimately find that our time is better spent, say, canvassing for progressive candidates on street corners than arguing for progressive causes in the courtroom. But for most of us, the choice is not either-or, and—moreover—litigation and politics can be complements rather than substitutes. If all our litigation strategy serves to accomplish is the exposure of judicial one-sidedness, then that in itself may mobilize key constituencies. (I am cautiously optimistic that we can accomplish even more than that.)

The second set of risks are the risks of winning. On the whole, most progressives don’t want to narrow the scope of Congress’s Commerce Clause power or pare back regulations of commercial speech. Most of us are reticent to embrace states’ rights claims and supportive of agency deference. Moreover, by teeing up cases in which conservative justices can deal small victories to progressives, we may be allowing the Roberts Court to take some of the edge off doctrines that ought to elicit criticism and pushback.

These risks are real but, I think, worth it. The immediate gains are potentially meaningful—for women seeking medically necessary abortions, for workers protesting unfair labor practices, for religiously motivated humanitarian aid workers and the undocumented immigrants whom they serve, and for others too. At the same time, progressive legal scholars should continue to work to articulate visions of the Commerce Clause, the First Amendment, and the federal-state relationship that vindicate constitutional values and attract broad support. We can fight tactical battles on the Roberts Court’s doctrinal terrain without conceding the correctness of those doctrines as a matter of first principles.

None of this is as headline-grabbing as court-packing. But while it’s less provocative, I expect that it will be more productive. Yes, by all means, let’s win elections—and gradually change the composition of the federal judiciary as we do. But in the meantime, let’s win some cases—or, at least, let’s show why we have the better of the argument. That, after all, is progressives’ best weapon.


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