How far will the Supreme Court’s new conservative supermajority go?
With President-elect Joe Biden’s victory and the potential for Democrats to control the Senate, it’s the question on the mind of everyone who cares about the court. If the conservative justices lurch the law to the right, calls to retaliate by adding liberal justices will surely grow. That pressure would subside, however, if the conservatives reach moderate outcomes in divisive cases.
Surprisingly, comments in three major oral arguments held since Justice Amy Coney Barrett took her seat offer significant clues. Across these cases, several conservative justices asked questions revealing a desire to find compromises that, to some degree, could satisfy both sides of the partisan divide.
Start with Fulton vs. City of Philadelphia. The case arises out of Philadelphia’s decision to stop referring foster children to Catholic Social Services, a private agency with a religious objection to certifying same-sex couples as foster parents. Catholic Social Services sued, arguing that the city’s decision violated its religious freedom.
In recent years, conservative justices have issued a string of religious freedom rulings in favor of Christian challengers. Progressives accordingly fear a ruling in Fulton that might eviscerate protections for the LGBTQ community. But in exchanges at oral argument Nov. 4, Justice Brett M. Kavanaugh made clear he would have none of this.
“It seems like this case requires us to think about the balance between two very important rights recognized by this court,” Kavanaugh observed, “the religious exercise and belief right … and the same-sex marriage right.” Given this, he continued, “we should be looking, where possible, for win-win answers.”
Kavanaugh offered one possibility. If the court rules against Philadelphia, he wondered, couldn’t the city still protect the right of same-sex couples to participate in the foster system by forbidding Catholic Social Services to reject LGBTQ applicants outright, instead requiring the agency to “refer any same-sex couple to one of the  other agencies” that would gladly serve them? However, another city would be free to require a Catholic agency to serve same-sex couples if no other agencies were available.
Next consider Jones vs. Mississippi. The question here is what a judge must do before sentencing a juvenile offender to life without the possibility of parole. In a pair of prior rulings, the Supreme Court suggested that under the 8th Amendment, only juvenile offenders “whose crimes reflect permanent incorrigibility” could receive this punishment. Yet in Mississippi, trial judges hand down such sentences without specifically finding juveniles incorrigible.
Mississippi’s lawyer argued that no incorrigibility finding should be necessary because all the 8th Amendment requires is an individualized sentencing hearing where an offender’s youth can be considered. Chief Justice John G. Roberts Jr. and Barrett were unsympathetic.
“I have to say,” the chief observed, “it [doesn’t] seem like very much” to ask a trial judge to utter “one sentence” to make it clear that an incorrigibility finding had been made. Barrett joined in almost incredulously: “So your objection here is really that it’s making the state jump through too many hoops to put something actually formally on the record?”
The implication was clear. A ruling against Mississippi would still leave state prosecutors free to pursue life without parole for juvenile offenders as long as prosecutors convinced judges of their incorrigibility. On the other hand, a ruling against the petitioner in the case (one Brett Jones) would leave juvenile offenders with virtually no recourse. Even if at some point they could show they’d rehabilitated in prison — proving they’d never been incorrigible — they would still be barred from pleading their cases before a parole board.
The conservative justices weighed similar concerns during oral arguments in the Affordable Care Act case Nov. 10. Originally, the ACA provided that certain individuals “shall” purchase health insurance or pay a tax penalty. In 2017, Congress zeroed out the tax. Several challengers sued, arguing that the remaining command to purchase insurance was unconstitutional and the entire act should be invalidated as a result.
At the heart of the court’s skepticism with this argument is the following fact: Once the tax penalty is eliminated, there is nothing pressuring individuals to purchase unwanted insurance. Justice Clarence Thomas put it: People who refuse to buy insurance no longer face a “threat” of enforcement. Or as Justice Neil M. Gorsuch mused, “I guess I’m a little unclear who exactly [the challengers] want me to enjoin and what exactly they want me to enjoin them from doing” given that the government is already powerless to punish them for refusing to buy insurance.
In other words, even if the challengers lose the case, they could still easily avoid the harm at the heart of their complaint — the command to buy insurance. The harm of a ruling in the opposite direction, however, would be far harder to avoid. What choice, for instance, would individuals with pre-existing conditions have if the ACA were invalidated and insurers were suddenly free to deny them coverage?
Taken together, these comments signal a laudable centrist pivot by key conservative justices using an emerging judicial philosophy I call the least harm principle. Under this principle, the court does not resolve hard cases by rendering some best guess as to our Constitution’s centuries-old meaning or to our evolving societal values. Instead, it rules against the side that can most easily minimize its harm.
The Supreme Court has relied on the least harm principle in a number of high-profile cases, including several last term. For example, it upheld a subpoena seeking President Trump’s financial records by explaining that the president had “the same protections available to every other citizen” for avoiding undue harassment. Similarly, in rejecting the president’s attempt to rescind the Deferred Action for Childhood Arrivals program (DACA), the court made clear his administration still had ways to achieve its ends: As the decision noted, the administration’s failure to “provide a reasoned explanation for its action” was a mistake it could correct.
Least harm reasoning can preserve public confidence in the court because it avoids creating full-on losers. It won’t apply in every case, but in this dangerous and partisan moment, the kind of sensible middle-ground rulings it yields are precisely what our country needs.
Aaron Tang is a professor of law at UC Davis and a former law clerk to Justice Sonia Sotomayor. His article “Harm-Avoider Constitutionalism” is available online at SSRN and forthcoming in the California Law Review. @AaronTangLaw
This story originally appeared in Los Angeles Times.