Don’t assume partisanship lies beneath justices’ decisions

Written by William C. Duncan

September 16, 2022

On Sept. 9, Justice Sonia Sotomayor issued an order that allowed a religious university to continue upholding its religious mission despite a state court ruling that the school’s policy violated the state’s anti-discrimination law. A few days later, the full Supreme Court narrowly decided to reverse that decision.

Some commentators expressed surprise that a judge considered liberal would rule in favor of a religious liberty claim.

This tendency to assume that the best explanation for the court’s actions is the same partisan approach taken by politicians and the general public is misleading, and Sotomayor’s latest action illustrated this.

The case from New York on which Sotomayor ruled involves a Jewish school, Yeshiva University. As described by a state trial court, the dispute involves a decision by the university to deny recognition to the “YU Pride Alliance, an LGBT student organization.” The alliance argued that the university is a “place of public accommodation” that is prohibited from discriminating on the basis of sexual orientation under state law. The university said it was exempt from that law as a religious organization.

Though the state court recognized that “Yeshiva is an educational institution with a proud and rich Jewish heritage and a self-described mission to combine ‘the spirit of Torah’ with strong secular studies,” it concluded the university was not really a “religious corporation.” The court’s reasoning was that the university’s real purpose is to provide “secular multi-disciplinary degrees” rather than to advance religious purposes.

The court also held that since the discrimination law applied to religious and nonreligious groups alike, it did not violate the U.S. Constitution. For this reason, the university has appealed the state court’s decision to the U.S. Supreme Court.

While that appeal is waiting to be heard, the New York court’s ruling was scheduled to go into effect, hence the emergency appeal to Sotomayor. Each justice has the responsibility for a geographic portion of the country and is the first contact for emergency appeals for these regions, which is why Sotomayor was the justice to rule.

Sometimes the justices ask for the input of the entire court, but they need not do so. This is particularly true when an issue the court is asked to address is somewhat routine.

Regardless of opinions about the underlying dispute, Sotomayor’s actions represented an appropriate application of relevant law.

When, as here, a party to a lawsuit is ordered to do something based on a ruling that is being appealed, there must be some way for that party to seek relief. If the appeal results in the lower court ruling being reversed, it would be unjust to have that opinion go into effect and impact the party’s actions, only later to establish that the ruling on which the order was based was mistaken.

This is illustrated by a simple example. Imagine the federal government passes a law that fines newspapers for printing editorials critical of Congress. A newspaper then sues, but the trial court determines the law is justifiable and orders the newspaper to start paying the fines. Knowing this decision is clearly contrary to the Constitution, the newspaper appeals the ruling. It would be unfair to make the newspaper pay before its challenge to the lower court ruling could be heard.

In this case, the religious university was asking Sotomayor to act so the school would not have to proceed in a way inconsistent with its religious mission by recognizing a student group whose purpose is inconsistent with that mission. Sotomayor’s action thus preserved the status quo until the correctness of the lower court’s ruling could be assessed.

In this case, the need to preserve the status quo was particularly important: The lower court ruling is arguably at odds with Fulton v. Philadelphia, a recent U.S. Supreme Court decision saying that a similar state discrimination law could not be applied to require Catholic Charities to act contrary to its religious mission.

The court ruled unanimously on Fulton, so it was not surprising that Sotomayor would want to allow Yeshiva University to make its argument.

Partisanship can explain some things, but it is often unhelpful in explaining the work of the Supreme Court. The court acts consistent with other principles, like respect for precedent, preventing injustices, and providing a fair hearing to parties before the court.

In this case, it is reasonable to assume that Sotomayor was not acting out of character – but was, in fact, acting consistent with her judicial responsibilities in a conscientious way.

Ultimately – as mentioned above – others on the court disagreed, including some conservative justices whose opinions surprised commentators. This just underlines the limitations of partisan labeling.

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