This Supreme Court term brought many interesting timelines. After a contentious round of Supreme Court confirmation hearings, this was Justice Brett Kavanaugh’s first term on the United States Supreme Court. Many have considered him closest to Chief Justice John Roberts on the ideological spectrum. The departure of Justice Anthony Kennedy this term was realized with a more aggressive position taken by some jurists such as Justice Thomas to question long-standing precedent whether in majority opinions or dissents.  There were many notable cases this term, however here are some that stood out on some of the charged issues in society today.

American Legion v American Humanist Association (Establishment Clause)

This case considered a WWI memorial cross in Maryland on government land. An atheist entity sought its removal as a violation of the Establishment Clause and brought suit. The 4^th Circuit ordered it to be removed, redesigned or relocated. The Supreme Court in a 7-2 decision reversed the order of the 4^th Circuit. The cross had stood since 1925, first on private land, then sold to the government in 1961.

Justice Alito, in his majority opinion, recognized prior Supreme Court precedent that acknowledged that displays can take on a historical meaning with the passage of time. This monument was erected to recognize the WWI fallen. He also noted that the cross is clearly a Christian symbol, however, it possesses other meanings such as grounds for war memorial events and reflection. Destroying the cross would not be considered a neutral action.

Box v. Planned Parenthood (Abortion)

This case considered the Indiana law regarding abortion that was signed into law by then-governor Mike Pence. The court’s opinion focused on two aspects of the law – the provision requiring the remains of fetal tissues to be either buried or cremated and the provision of the law barring abortions based on disability, sex or race of the fetus.

The court upheld the first provision of the law, but declined review on the second provision that was not upheld by the 7^th Circuit. The 7^th Circuit decision invalidating the provision remains in effect. The Court stated that other circuit courts outside the 7^th Circuit did not consider that issue as a legal question, thus it would not make a decision on it.

Justice Thomas concurred in the unsigned opinion and provided an in-depth history of the eugenics movement. He explained that although the Court did not reach a decision on the merits on the second provision at the present time, eventually the Court will not be able to avoid it. Abortions on the basis of disability, sex and race of the fetus reflect the position of the eugenics movement. He left the door open for the Court to address the heart of the issue and scope of abortion at a later time.

Department of Commerce v. New York (Census Question)

In this case, the Supreme Court considered the issue of including the citizenship question on the 2020 census. This case has several different layers including assessing the correct authority as to whether the question can be included and whether including the question would be appropriate for the 2020 census.

There are several parts of this opinion with the judges concurring and dissenting in many areas of the opinion, however, on the major issue of incorporation for the present census, Chief Justice Roberts in writing for the 5-4 court ordered remand and further explanation required as to why including the question was necessary at the present time. It was noted, however, that the Department of Commerce did not violate the Enumeration Clause or Census Act in deciding to reinstate the question. Chief Justice Roberts’ major opinion, however, focused on an issue of inadequate evidentiary support to back up Secretary Wilbur Ross’ explanation as to the inclusion of the question on the present census. It required further evaluation and assessment, thus is upheld the lower court’s ruling to remand for further agency review.

Kisor v. Wolkie (Administrative Law and Agencies)

This was the signature administrative law case of the Supreme Court’s term. A Vietnam war veteran filed a claim for disability benefits with the VA, arguing he had suffered PTSD from his service in Vietnam. The VA had previously denied his claim and he sought its reopening in 2006.

Under 38 C.F.R. 3.156(a), the plaintiff was allowed to reopen the initial denial based on the standard accepting new evidence. There were questions, however, as to whether the evidence he presented supported his claim. Plaintiff’s claim was not officially reconsidered under Section 3.156(c) because the VA argued the evidence submitted did not establish “relevancy” to plaintiff’s PTSD disability. The lower courts upheld this determination and accepted the agency’s reading of its ambiguous regulation.

The Supreme Court then considered the question as to whether prior cases such as Auer v. Robbins that gave deference to agency reading of its own genuinely ambiguous written regulations should be overruled. The Supreme Court did not overrule the prior cases but provided various opinions to how the issue should be assessed. All the judges agreed on reversing and remanding the plaintiff’s case back to the lower courts to more closely assess the agency reading, but differed on how to view the Auer standard. The liberal wing led by Justice Kagan and joined by Chief Justice Roberts did not believe it necessary to overturn the Auer precedent. In contrast, the conservative judges led by Justice Gorsuch in concurrence and joined by Justice Thomas, Alito and Kavanaugh showed more of an openness to challenge the standard.

Overall, in assessing the various sources of commentary on this topic and reading the opinion it is clear that a full scale back on the administrative state is still some time away despite the challenge Kisor presented.