Amicus With Dahlia Lithwick | Law, justice, and the courts

Episode: Fulton: Bigger Than We Thought?

Date: June 18, 2021

Host: Dahlia Lithwick

Guest: Dean Erwin Chemerinsky

Episode Overview

This special episode tackles two major 2021 Supreme Court decisions announced the previous Thursday:

• California v. Texas (Affordable Care Act case)
• Fulton v. City of Philadelphia (religious liberty vs. anti-discrimination)

Dahlia Lithwick is joined by Dean Erwin Chemerinsky (Berkeley Law) for incisive analysis of how these cases impact the law—especially in the realms of religious freedom, civil rights, and Supreme Court precedent. The second half touches on Justice Breyer and the dynamics of the current Court.

Key Discussion Points & Insights

1. Supreme Court and the 2020 Term: Stakes and Court Dynamics

• Dahlia introduces a monumental week at the Supreme Court, emphasizing the surprise in both decisions and vote alignments.
• Chemerinsky’s expertise is framed as vital for untangling the doctrine and broader impacts ([02:00]).

2. The Affordable Care Act (ACA) Case: California v. Texas

Background & What Was at Stake ([03:07]–[06:04])

• The ACA’s individual mandate, previously upheld as a tax in 2012, lost its penalty in 2017.
• Texas and other red states challenged the law as unconstitutional.
• The Trump administration sided with the challengers; blue states defended the law.

Supreme Court’s Decision and Reasoning

• Ruling: 7-2, the challengers lacked standing; the Court did not reach the merits.
• “The importance of the case, as you say, is what the court didn’t do. It didn’t strike down the Affordable Care Act.” — Chemerinsky ([04:11])
• Justice Breyer’s majority: No concrete injury to individual or state plaintiffs.
• “Bottom line, the Affordable Care Act is constitutional, 21 million people get to keep their health insurance.” — Chemerinsky ([05:58])

Standing Issues and Doctrinal Shifts ([06:04]–[08:20])

• Alito’s dissent referenced Massachusetts v. EPA and shifting standards for state standing.
• Chemerinsky notes the Court is tightening standing requirements for states; the special status given to states in previous cases likely won’t return.

Political and Doctrinal Future of the ACA ([08:20]–[10:44])

• Dahlia asks if this ends major ACA challenges, politically and legally.
• Chemerinsky: Political opposition has faded, the law is more entrenched, and it’s hard to foresee another plausible legal attack reaching SCOTUS.

John Roberts’ Approach ([10:44]–[13:38])

• Dahlia observes Roberts’ knack for dismissing “goofy” legal claims.
• “This feels very much of a piece with that… looks like he’s taking a centrist position, when in fact what he’s saying is, don’t bring me your completely unsupportable crazy theories.” — Lithwick ([11:15])
• Chemerinsky agrees but tempers praise—Roberts did significant harm by narrowing the commerce clause and limiting Medicaid expansion in 2012.

3. Fulton v. City of Philadelphia

Case Overview ([13:38]–[14:34])

• Philadelphia contracts with social service agencies to place foster children if they adhere to non-discrimination policies.
• Catholic Social Services (CSS) refused to serve same-sex couples, citing religious beliefs.
• Lower courts sided with Philadelphia.

The Opinion’s Scope: Narrow or Not? ([15:14]–[17:56])

• Dahlia’s View: The decision seems “narrow and fact specific,” much like Masterpiece Cakeshop.
• Chemerinsky’s Rebuttal: It’s less narrow than it appears—introduces a shift by holding that mere discretion for exceptions in secular law requires strict scrutiny for religious exceptions:
  • “What the Court is saying is that any law that is the possibility of exceptions is going to be amenable to a challenge based on free exercise of religion and is going to have to meet strict scrutiny. And I don’t think the Supreme Court ever said that before.” ([16:31])

“Most Favored Nation” Status for Religion ([17:39]–[20:35])

• The ruling continues the logic from COVID “shadow docket” religious liberty cases—if there are any exceptions, religious or not, a religious exemption must be granted.
• “What’s the law that doesn’t have some discretion?” — Chemerinsky ([19:24])
• Chemerinsky finds this “a very troubling holding,” echoing the rise of “most favored nation” theory for religion.

Employment Division v. Smith: Will It Be Overturned? ([20:35]–[22:51])

• A significant contingent on the Court is signaling readiness to overturn Smith, which limits religious exemptions.
• Alito’s 77-page concurrence (joined by Thomas & Gorsuch) calls for outright reversal of Smith.
• Barrett and Kavanaugh show hesitation, requesting more briefing but are not moderate on substance.

Diminishing Visibility of LGBTQ Harm ([22:51]–[26:03])

• Lithwick notes the lack of acknowledgment of LGBTQ dignitary harm, in contrast to Kennedy’s opinions (“it writes the entirety of the LGBTQ claims out of the opinion” — Lithwick [24:45]).
• Chemerinsky responds: “Once the court has opened this door, they really then said, we favor religious liberty over stopping discrimination against gays, lesbians, or any other group.” ([25:39])

Shadow Docket vs. Full Opinions ([26:03]–[28:55])

• While the COVID religious liberty shadow docket cases were significant, Chemerinsky argues Fulton goes further because the mere possibility of exceptions triggers strict scrutiny—even absent actual disparate treatment.

What Comes Next? ([28:55]–[31:02])

• Catholic Social Services (and for-profit vendors in similar disputes) now have more leverage to seek religious exemptions.
• Expect a surge in cases involving businesses refusing services to LGBTQ customers.
• Conflict looms between Bostock v. Clayton County (protecting LGBTQ workers) and religious objections—those unresolved questions will soon return to the Court.

Barrett, Kavanaugh, and the “Moderate” Myth ([31:02]–[32:55])

• Lithwick asks about Barrett and Kavanaugh’s motives for not joining Alito’s full concurrence.
• Chemerinsky’s read: Their result-focused pragmatism, not moderation, explains their approach; when the time comes, they may well vote to overturn Smith.

Ideological Swings on Religious Freedom ([32:55]–[33:39])

• Notable reversal: Smith was once a conservative (Scalia) decision criticized by liberals, now it’s championed by liberals and opposed by conservatives seeking more religious exemptions.

4. Justice Breyer and the Politics of Retirement ([33:39]–[38:52])

• Chemerinsky discusses his public call (with others) for Breyer to step down to ensure a Biden nominee, citing the precarious Senate balance.
• Lithwick reflects on Chemerinsky’s prescience regarding Ginsburg’s retirement.
• Speculation about Roberts assigning the ACA opinion to Breyer—no clear consensus on whether it’s a send-off or an incentive to stay.
• Chemerinsky: “This is a case that’s most significant because what it doesn’t do; it doesn’t invalidate the Affordable Care Act. So I’m a little hesitant in reading a lot into Roberts assigning this to Breyer.” ([38:40])

5. Looking Ahead: Is This the Calm Before the Storm? ([38:52]–[41:22])

• Next term will feature decisive cases on guns, abortion, possibly affirmative action.
• The Court may have purposely avoided seismic decisions this term for political optics.
• Chemerinsky warns, “It’s always dangerous to draw conclusions based on a limited data set.” ([40:21])
• Expect big shifts when the Court addresses these major issues—conservatives’ 6–3 power will be clearer.

Notable Quotes & Memorable Moments

• “The very possibility of exceptions is what makes this religious discrimination. And that, to me, is a very troubling holding.”
  — Erwin Chemerinsky ([00:05]; also [18:37])
• “Bottom line, the Affordable Care Act is constitutional, 21 million people get to keep their health insurance.”
  — Erwin Chemerinsky ([05:58])
• “This feels very much of a piece with that… what he’s saying is, don’t bring me your completely unsupportable crazy theories.”
  — Dahlia Lithwick on Chief Justice Roberts ([11:15])
• “I’m willing to give John Roberts two cheers for upholding the Affordable Care act, but not all three.”
  — Erwin Chemerinsky ([13:21])
• “Once the court has opened this door, they really then said, we favor religious liberty over stopping discrimination against gays, lesbians, or any other group.”
  — Erwin Chemerinsky ([25:39])
• “But now, thirty some years later… it’s conservatives who have attacked [Smith], especially because they want to allow discrimination [on] grounds of sexual orientation. And it’s liberals who are saying, you know, employment v. Smith is a good thing.”
  — Erwin Chemerinsky ([32:55])
• “The Roberts court isn’t so conservative… and I think that’s exactly the wrong lesson to draw.”
  — Erwin Chemerinsky ([40:10])

Timestamps for Important Segments

• [03:07] ACA case background
• [05:58] ACA standing and upshot
• [10:44] John Roberts and the “center”
• [13:38] Discussion of Fulton v. City of Philadelphia
• [16:31] Chemerinsky: Fulton is less narrow than it seems
• [18:37] “The very possibility of exceptions is what makes this religious discrimination”
• [24:45] Lithwick: Opinion erases LGBTQ dignitary harm
• [28:55] What’s next after Fulton?
• [33:39] Chemerinsky on Justice Breyer and calls for retirement
• [38:52] “Calm before the storm” and next term’s seismic cases
• [40:10] Chemerinsky warns not to misunderstand this term’s moderation

Conclusion

This episode provides a lucid, urgent dissection of the week’s Supreme Court decisions, their underlying logic, and their consequences for constitutional and civil rights law. Dahlia Lithwick’s questioning and Erwin Chemerinsky’s clarity give listeners not only doctrinal answers but also sharp commentary on the Court’s direction and the major battles on the horizon—especially concerning religious liberty, anti-discrimination law, and the political fate of the Court itself.