We have previously discussed the disconnect between the rhetoric for court packing and the reality of the court itself. As senators like Elizabeth Warren have called to pack the Court with a liberal majority and others have described it as hopelessly and ideologically divided, the Court itself continues to crank out unanimous or nearly unanimous decisions. This week saw two major cases touching on free exercise and free speech with only one dissenting vote. While justices have publicly condemned the Democratic court packing efforts, the court seems to be again speaking through its opinions. The cases are Ramirez v. Collier and Houston Community College System v. David Buren Wilson.
The Supreme Court ruled 8-1 this week in favor of death row inmate John Henry Ramirez, who challenged a rule barring his pastor from audibly praying and physically touching him while he is being executed. Despite a 2019 policy of the Texas Department of Criminal Justice, the Court ruled that Baptist Pastor Dana Moore must be allowed to audibly pray over Ramirez and “lay hands upon him at the time of his death.”
Writing for the Court, Chief Justice John Roberts held that Ramirez “is likely to succeed in proving that his religious requests are ‘sincerely based on a religious belief’” as required by the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc. Roberts cited the “rich history of clerical prayer at the time of a prisoner’s execution, dating back well before the founding of our Nation.”
The most interesting portion of the majority and concurring opinions came from Justice Brett Kavanaugh on the strict scrutiny standard (and is incorporated into the RLUIPA):
[T]he Court’s holding implicates significant issues about how the Court decides whether a State’s asserted interest is sufficiently “compelling” and how the Court assesses whether less restrictive means could satisfy that compelling interest. This case illustrates both the difficulty of those inquiries and the important role that history and state practice often play in the analysis.
Justice Clarence Thomas filed a 23-page dissent that portrayed the challenge as a transparent effort to delay the execution: “Unsurprisingly, death-row inmates generally employ any means available to stave off their sentences and therefore often engage in abusive litigation.” He added:
All told, Ramirez’s 11th-hour gambit in January 2017 bought him more than three years of delay. In the end, none of Ramirez’s federal habeas claims merited even a single certificate of appealability, let alone relief. Yet, through ceaseless litigation, strategic delay, and a “[l]ast-minute” blitz on the District Court, Ramirez parlayed his federal habeas petition into a 7-year deferral of his lawfully imposed sentence. We should interpret Ramirez’s actions in the instant litigation in light of that history, recognize that his shifting in-chambers-touching claim is just another chapter in that history, and reject his most recent attempt to delay his execution.
The second case produced an unanimous ruling in Houston Community College System v. David Buren Wilson. That case involved a claim from an elected official who claimed that his formal censure by other members of the HCC Board of Trustees was a violation of the First Amendment.
David Wilson has been a member of the HCC Board of Trustees since he was first elected to the position in 2013 and has filed repeated lawsuits against the board.
Writing for the Court, Justice Neil Gorsuch, noted that Wilson had been disruptive and confrontational throughout his tenure. That led to a public censure resolution for conduct that was “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” It also imposed some penalties like cutting off access to certain board funds.
While the district court ruled against Wilson, the United States Court of Appeals for the Fifth Circuit reversed and found a violation of the First Amendment.
In his opinion, Gorsuch traced the use of censure from colonial times and noted that “elected bodies in this country have long exercised the power to censure their members. In fact, no one before us has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment.”
“[T]he only adverse action at issue before us is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”
Gorsuch seemed to leave the door open to future, more substantive claims under the First Amendment: “‘deprivations less harsh than dismissal’ can sometimes qualify too. At the same time, no one would think that a mere frown from a supervisor constitutes a sufficiently adverse action to give rise to an actionable First Amendment claim.”
Our case is a narrow one. It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. The Board’s censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties. Even the censured member concedes the content of the censure would not have offended the First Amendment if it had been packaged differently. Neither the history placed before us nor this Court’s precedents support finding a viable First Amendment claim on these facts. Argument and “counterargument,” not litigation, are the “weapons available” for resolving this dispute. Wood v. Georgia, 370 U. S. 375, 389 (1962).
The results in these two cases were not surprises. Indeed, my two Supreme Court classes considered both cases and not only decided them the same way but predicted these outcomes.
What is notable is that, again, the Court seems to be speaking loudly through its own decisions. Law Deans like Erwin Chemerinksy have called the justice “partisan hacks” while Democratic senators have issued public threats to the justices to vote in line with their own views. Justice Stephen Breyer and other colleagues have swatted back such claims that this is a “conservative court” driven by ideology. This week’s decisions further support that position.