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10/07/2020

The Supreme Court's 2020 Term: Cases of Originalist Interest
Michael Ramsey

As the Court begins its 2020 Term, I see only a few cases of originalist interest.  Potentially the most important is Fulton v. City of Philadelphia (argument 11/4/20), in which the petitioners ask the Court to overturn Employment Division v. Smith on originalist grounds.  (Smith is the 1990 opinion by Justice Scalia holding that a neutral law of general applicability does not violate the free exercise clause even if it incidentally restricts a religious practice.)  Here is SCOTUSblog's description of the case:

[Fulton is] a challenge by several foster parents and Catholic Social Services to the city’s policy of cutting off referrals of foster children to CSS for placement because the agency would not certify same-sex couples as foster parents. After they lost in the lower courts, the challengers went to the Supreme Court, where they asked the justices to weigh in on three questions: what kind of showing plaintiffs must make to succeed on this kind of religious discrimination claim; whether the Supreme Court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce laws that burden religious beliefs or practices as long as the laws are “neutral” or “generally applicable”; and whether the government violates the First Amendment when it makes participation by a religious social-services agency in the foster-care system contingent on actions and statements by the agency that conflict with the agency’s religious beliefs.

Petitioners' brief, in attacking Smith (pp. 42-50), relies heavily on originalist scholars Michael McConnell, Stephanie Barclay and Kurt Lash, among others, in contesting Justice Scalia's view of the clause's original meaning.

Torres v. Madrid (argument 10/14/20) poses a simple question that ought to have a simple originalist answer: 

Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.

The substantive part of petitioner's brief opens with the claim that:

The original meaning of seizure in the Fourth Amendment included common law arrests, which did not require the
suspect to submit in response to intentional physical force.

This should be easy to demonstrate and largely conclusive (if true).  The U.S. brief supporting the petitioner adds that the decision below seems inconsistent with Justice Scalia's opinion for the Court in California v. Hodari D., 499 U.S. 621 (1991) (holding that “application of physical force to restrain movement” is a seizure under the Fourth Amendment “even when it is ultimately unsuccessful”).  Respondent's brief relies mostly on policy and precedent, and does not materially engage the originalist sources.  Though it's not my area, this case appears to invite a liberal-originalist alliance (9-0 doesn't seem unlikely).

Collins v. Mnuchin (argument 12/9/20), a follow-up to the Seila Law case from last term, involves the constitutionality of the Federal Housing Finance Agency (FHFA),  The questions presented are: 

(1) Whether the Federal Housing Finance Agency’s structure violates the separation of powers; and (2) whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.

Since the FHFA is structured similarly to the Consumer Finance Protection Bureau, whose structure was held unconstitutional in Seila Law, I assume the answer to the first question is yes and that the case is really about the second question.  And I'm not sure there's an originalist take on the second question.  But the Justices might have more to say on the original meaning of executive power in answering the first question.

Finally, although it's not a constitutional case, Nestle USA v. Doe (consolidated with Cargill v. Doe) (argument 12/1/20) is a case about the Alien Tort Statute.  The questions presented are:

(1) Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity; and (2) whether the judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations.

The case is likely to lead the Justices into a discussion of the original meaning and purposes of the Alien Tort Statute, which given the statute's age (first enacted in 1789) often ends up looking like an originalist constitutional inquiry.  I joined a professors' amicus -- prepared by Samuel Estreicher of NYU) -- supporting the petitioner.

RELATED:  Although I doubt the personal jurisdiction case Ford Motor Company v. Montana Eighth Judicial District Court (argument today) will produce much originalist analysis from the Court, Larry Solum at Legal Theory Blog has some thoughts about what an originalist approach might look like.