Amicus Curiae Brief — Eunice Medina, Director, South Carolina Department of Health and Human Services, Petitioner v. Planned Parenthood South Atlantic, et al.

No. 23-1275

In the

Supreme Court of the United States

________________________________________________

EUNICE MEDINA, Interim Director, South

Carolina Department of Health and Human

Services,

Petitioner,

v.

PLANNED PARENTHOOD SOUTH

ATLANTIC, ET AL.,

Respondents.

____________________________________________________

On Writ of Certiorari to the

United States Court of Appeals for the Fourth

Circuit

________________________________________________

BRIEF OF AMICUS CURIAE

LIFE LEGAL DEFENSE FOUNDATION

IN SUPPORT OF PETITIONER

________________________________________________

CATHERINE SHORT

Counsel of Record

SHEILA A. GREEN

LIFE LEGAL DEFENSE FOUNDATION

PO Box 2105

Napa, CA 94558

(707) 224-6675

kshort@lifelegal.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................ i

TABLE OF AUTHORITIES ..................................... ii

INTERESTS OF AMICUS CURIAE ........................ 1

SUMMARY OF ARGUMENT .................................. 1

ARGUMENT ............................................................. 4

I.

The confusion created by the long-lived

Chevron doctrine illustrates the need for

the Court to explicitly overturn

precedent. ....................................................... 4

II.
Miranda v. Arizona and its progeny

similarly illustrate the confusion that

results when the Court fails to explicitly

overturn or adhere to precedent. ................... 9

III.
Lemon v. Kurtzman also exemplifies the

need for consistency in Supreme Court

jurisprudence. ............................................... 17

IV.
To resolve the split in the circuits, this

Court should clarify whether the

Blessing/Wilder line of cases has been

overruled. ...................................................... 26

CONCLUSION ........................................................ 27

ii

TABLE OF AUTHORITIES

Cases

Adams Fruit Co. v. Barrett,

494 U.S. 638 (1990) ............................................... 8

Agostini v. Felton,

521 U.S. 203 (1997) ............................................. 20

Alaska Stock, LLC v. Houghton Mifflin

Harcourt Publ’g. Co.,

747 F.3d 673 (9th Cir. 2014) ................................. 9

Am. Legion v. Am. Humanist Ass’n,

588 U.S. 19 (2019) ......................................... 22, 23

Ams. United for Separation of Church & St. v.

City of Grand Rapids,

980 F.2d 1538 (6th Cir. 1992) ............................. 24

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) ............................................... 4

Blessing v. Freestone,

520 U.S. 329 (1997) ................................. 3, 4, 5, 26

Buchanan v. Jumpstart S.C.,

No. 1:21-cv-00385, 2022 U.S. Dist. LEXIS

157191 (D. S.C. 2022) .......................................... 26

Carroll v. Tobesman,

No. PX-20-2110, 2023 U.S. Dist. LEXIS

29253 (D. Md. 2023) ............................................ 25

Chabad-Lubavitch of Ga. v. Miller,

5 F.3d 1383 (11th Cir. 1993) ............................... 24

iii

Chevron U.S.A. Inc., v. Nat. Res. Def. Council,

Inc.,

467 U.S. 837 (1984) ........................................... 5, 6

Cnty. of Allegheny v. ACLU,

492 U.S. 573 (1989) ............................................. 20

Cnty. of Amador v. U.S. DOI,

872 F. 3d 1012 (9th Cir. 2017) .............................. 9

Comm. for Pub. Educ. & Religious Liberty v.

Nyquist,

413 U.S. 756 (1973) ............................................. 19

Cutter v. Wilkinson,

349 F.3d 257 (6th Cir. 2003) ............................... 22

Dobbs v. Jackson Women’s Health Org., 597

U.S. 215 (2022) .................................................... 27

Doe v. Small,

964 F.2d 611 (7th Cir. 1992) ............................... 24

Does v. Gillespie,

867 F.3d 1034 (8th Cir. 2017) ............................. 27

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ............................................... 8

Estrada-Rodriguez v. Lynch,

825 F.3d 397 (8th Cir. 2016) ................................. 9

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S 120 (2000) ............................................ 7, 8

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002) ............................................... 3

Harris v. New York,

401 U.S. 222 (1971) ............................................. 12

iv

Health & Hosp. Corp. v. Talevski,

599 U.S. 166 (2023) ......................................... 4, 26

Kaplan v. Burlington,

891 F.2d 1024 (2d Cir. 1989) .............................. 24

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................................. 23, 25, 26

King v. Burwell,

576 U. S. 473 (2015) .............................................. 7

Kreisner v. City of San Diego,

1 F.3d 775 (9th Cir. 1993) ................................... 24

Lee v. Weisman,

505 U.S. 577 (1992) ............................................. 21

Lemon v. Kurtzman,

403 U.S. 602 (1971) ......... 17, 18, 20, 21, 23, 25, 26

Loper Bright Enters. v. Raimondo,

603 U.S 369 (2024) ...................................... 5, 6, 26

Marbury v. Madison,

5 U.S. 137 (1803) ................................................... 2

Marsh v. Chambers,

463 U.S. 783 (1983) ............................................. 22

Miranda v. Arizona,

384 U.S. 436 (1966) ............................................. 10

Missouri v. Seibert,

542 U.S. 600 (2004) ................................. 14, 15, 16

Monteer v. ALB Mgmt.,

No. 4:21-CV-7562022 U.S. Dist. LEXIS

155993 (E.D. Mo. 2022) ....................................... 26

New York v. Quarles,

467 U.S. 649 (1984) ....................................... 12, 13

v

Oregon v. Elstad,

470 U.S. 298 (1985) ................................. 14, 15, 16

Planned Parenthood Ariz., Inc. v. Betlach,

727 F.3d 960 (9th Cir. 2013) ............................... 27

Planned Parenthood of Greater Tex. Fam.

Plan. & Preventative Health Servs., Inc. v.

Kauffman,

981 F.3d 347, 350 (5th Cir. 2020) ....................... 27

Planned Parenthood of Ind., Inc. v. Comm’r of

Ind. State Dep’t of Health,

699 F.3d 962 (7th Cir. 2012) ............................... 27

Planned Parenthood of Kan. v. Andersen,

882 F.3d 1205 (10th Cir. 2018) ........................... 27

Rhode Island v. Innis,

446 U.S. 291 (1980) ............................................. 14

Roemer v. Bd. of Pub. Works,

426 U.S. 736 (1976) ............................................. 19

Sackett v. EPA,

598 U.S. 651 (2023) ............................................... 6

Shurtleff v. City of Bos.,

986 F.3d 78 (1st Cir. 2021) ................................. 25

Shurtleff v. City of Bos.,

596 U.S. 243 (2022) ............................................. 25

Simmons-Harris v. Zelman,

234 F.3d 945 (6th Cir. 2000) ............................... 21

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ............................................... 6

Smith v. Cnty. of Albemarle,

895 F.2d 953 (4th Cir. 1990) ............................... 24

vi

Town of Greece v. Galloway,

572 U.S. 565 (2014) ............................................. 22

United States v. Dickerson,

166 F.3d 667 (4th Cir. 1999) ............................... 13

United States v. Dickerson,

530 U.S. 428 (2000) ....................................... 13, 16

United States v. Mead Corp.,

533 U. S. 218 (2001) .............................................. 7

United States v. Patane,

542 U.S. 630 (2004) ....................................... 15, 16

Van Orden v. Perry,

351 F.3d 173 (5th Cir. 2003) ............................... 21

Vega v. Tekoh,

597 U.S. 134 (2022) ............................................. 16

Wallace v. Jaffree,

472 U.S. 38 (1985) ......................................... 19, 20

West Virginia v. EPA,

597 U.S. 69 (2022) ................................................. 8

Wilder v. Va. Hosp. Ass’n,

496 U.S. 498 (1990) ................................. 3, 4, 5, 26

Statutes

26 U.S.C. § 36B ......................................................... 7

42 U.S.C. § 1983 .................................. 3, 4, 16, 27, 28

Constitutional Provisions

U.S. Const. Art. III, §1 .............................................. 2

vii

Other Authorities

Barry Friedman, The Wages of Stealth

Overruling (With Particular Attention to

Miranda v. Arizona), N.Y.U. Sch. of Law

Public Law & Legal Theory Rsch. Paper

Series (July 2010) .......................... 5, 14, 15, 16, 17

Howard Slugh, When the Court Takes Away

Lemon: What the Praying Coach Ruling

Means for Religious Americans, Religious

Freedom Institute (Jul. 2, 2022) ......................... 23

Ilya Shapiro, There’s No Juice Left in Lemon,

Cato Institute (Jun. 22, 2021) ............................ 18

Michael Vitiello, Miranda Is Dead. Long Live

Miranda, 54 Tex. Tech L. Rev. 59, 87 (2021) ..... 17

Noah Feldman, Supreme Court is Eroding the

Wall Between Church and State, Bloomberg

(Jun. 27, 2022) ..................................................... 23

Samantha Thompson Lipp, The Rise of

Public School Prayer with the Demise of

Lemon v. Kurtzman, 74 Mercer L. Rev.

1221 (2023) ........................................ 18, 19, 20, 23

1

INTERESTS OF AMICUS CURIAE1

Amicus Life Legal Defense Foundation (“Life

Legal”) is a California non-profit 501(c)(3) public

interest legal and educational organization that

works to assist and support those who advocate in

defense of life. Its mission is to give innocent and

helpless human beings of any age, particularly

unborn children, a trained and committed defense

against the threat of death, and to support their

advocates in the nation’s courtrooms. Life Legal

litigates cases to protect human life, from preborn

babies targeted by a billion-dollar abortion industry

to the elderly, disabled, and medically vulnerable

denied life-sustaining care. Because money is

fungible, Life Legal opposes taxpayer funding of

abortion providers, including Planned Parenthood,

which is the largest provider of abortion services in

the United States.

Life Legal is concerned that lack of clarity by

the Court as to whether precedent has been

overruled creates uncertainty in the law and allows

lower courts to impose their personal preferences in

cases that involve ideological matters, such as

abortion and its funding.

SUMMARY OF ARGUMENT

“It is emphatically the province and duty of

the judicial department to say what the law is.”

Marbury v. Madison, 5 U.S. 137, 177 (1803).

1 No counsel for any party authored this brief in whole or in

part; no party counsel or party made a monetary contribution

intended to fund its preparation or submission; and no person

other than amicus or its counsel funded it.

2

Furthermore, “The judicial Power of the United

States [is] vested in one Supreme Court, and in such

inferior Courts as the Congress may from time to

time ordain and establish.” U.S. Const. Art. III, §1.

Necessarily, the “inferior” courts look to the

Supreme Court for a clear explanation of what the

law is, so that they can faithfully execute their

responsibilities in the judicial system. Clearly

announced rules enhance uniformity in application

of the law across jurisdictions, predictability in

judicial decision-making, and respect for the

judiciary in the eyes of the public and those

entrusted with executing the Court’s decisions.

When the Court fails to state clearly whether

it is overruling precedent, the ambiguity opens the

door to myriad problems. It creates confusion in the

legal system. It allows lower courts to pick and

choose which legal rules they will apply, sometimes

favoring their own ideological preferences. When the

Court disregards precedent without clearly stating

that it is overruling it and without providing the

reasons for that decision, that failure undermines

the doctrine of stare decisis and erodes confidence in

the legitimacy of the Court.

These weighty concerns are all at issue in this

case. In Gonzaga University v. Doe, 536 U.S. 273

(2002) (“Gonzaga”), after a review of cases

discussing whether Spending Clause statutes create

private rights of action under 42 U.S.C. § 1983, this

Court stated:

We now reject the notion that

our cases permit anything short of an

unambiguously conferred right to

support a cause of action brought under

3

§ 1983. . . . [I]t is rights, not the broader

or vaguer ‘benefits’ or ‘interests,’ that

may be enforced under the authority of

that section.

Id. at 283 (original emphasis). This statement

appears to repudiate the test employed in Blessing

v. Freestone, 520 U.S. 329 (1997) (“Blessing”) and

Wilder v. Virginia Hospital Association, 496 U.S.

498 (1990) (“Wilder”). These cases employed three

factors to find a conferral: 1) that Congress must

have intended that the relevant statute benefit the

plaintiff, 2) that the right is not so “vague and

amorphous” that enforcement would strain judicial

competence, and 3) that the statute must

unambiguously impose a binding obligation on the

states. Blessing, 520 U.S. at 340-41; Wilder, 496 U.S.

at 510-11.

Later, in Armstrong v. Exceptional Child

Center, Inc., 575 U.S. 320 (2015) the Court, citing

Gonzaga, specifically repudiated Wilder: “our later

opinions plainly repudiate the ready implication of a

§ 1983 action that Wilder exemplified. Armstrong,

575 U.S. at 330, n.*. Yet the Court never specifically

said it had overturned Blessing/Wilder.

In Health & Hospital Corp. v. Talevski, 599

U.S. 166 (2023) (“Talevski”), the Court reaffirmed

that the relevant test for a § 1983 private right of

action had been announced in Gonzaga, stating that

the statutory provision must be “phrased in terms of

the persons benefited” and contain “rights-creating”

individual-centric language with an “unmistakable

focus on the benefited class.” Id. at 183. Justice

Barrett in her concurrence acknowledged Wilder as

one of only two cases that interpreted a Spending

4

Clause statute to confer a private right of action

under § 1983. Id. at 194 (Barrett, J., concurring).

She said nothing to indicate that Wilder was no

longer valid law.

This lack of clarity has predictably resulted in

a 5-2 split in the circuits over the correct test for

determining the existence of a private right of action

for a Spending Clause statute under § 1983. Pet.

Cert. 24-28.

The present case is not the first time that the

Court’s unwillingness to explicitly overturn

precedent has caused confusion in the lower courts.

One legal commentator refers to the practice as

“stealth overruling.”2 A review of three of these

examples of “stealth overruling” will illustrate the

problems that it creates for the judicial system and

those that interact with it. The rule of law requires

that the Court clearly state the status of prior

precedent called into question, and this case offers a

prime opportunity for the Court to do just that with

respect to the current status of the Blessing/Wilder

line of cases.

ARGUMENT

I.

The confusion created by the long-lived

Chevron doctrine illustrates the need for

the Court to explicitly overturn

precedent.

Last term, this Court held that courts must

exercise their “independent judgment” in deciding

Barry Friedman, The Wages of Stealth Overruling (With

Particular Attention to Miranda v. Arizona), N.Y.U. Sch. of Law

Public Law & Legal Theory Rsch. Paper Series (July 2010).

2

5

whether an agency action was within the scope of its

authority. Loper Bright Enters. v. Raimondo, 603

U.S 369, 412 (2024). Loper overturned Chevron

U.S.A. Inc., v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), a forty-year precedent that

created the so-called “Chevron doctrine.” This

controversial doctrine required courts to use a twostep (at least) analysis when confronted with a

dispute over the meaning of a statute administered

by a federal agency.

First the reviewing court would determine

whether Congress had directly spoken to the

question at issue. If Congress’s intent was clear, that

decided the matter. The court and the agency must

adhere to the intent of Congress. If, however,

Congress had not directly addressed the matter, and

the statute was silent or ambiguous, then the court

proceeded to the second step, in which it decided

whether the agency’s interpretation was based on a

permissible construction of the statute. If it was a

permissible construction, then the court could not

substitute its own construction of a statutory

provision but had to defer to the agency. Chevron,

467 U.S. at 842-44.

Chevron replaced Skidmore v. Swift & Co.,

323 U.S. 134 (1944). Skidmore held that the ruling

of an agency was not controlling on the courts but

should be accorded weight depending upon the “the

thoroughness evident in its consideration, the

validity of its reasoning, its consistency with earlier

and later pronouncements, and all those factors

which give it power to persuade, if lacking power to

control.” Id. at 140.

The pro-bureaucracy “fiction” underlying

Chevron, namely, that statutory ambiguities are

6

always intended by Congress to favor governmental

interpretations over those of courts, led to

continuous modifications of the doctrine. Loper, 603

U.S. at 404. Indeed, the Court had not itself

employed the doctrine since 2016.3 Id. at 406.

This Court has made numerous fixes to

Chevron over the years. For instance, in United

States v. Mead Corp., 533 U. S. 218 (2001) the Court

added an additional initial step to the two-step

Chevron doctrine, which came to be known as “step

zero.” Mead held that

administrative implementation of a

particular

statutory

provision

qualifies for Chevron deference when

it appears that Congress delegated

authority to the agency generally to

make rules carrying the force of law,

and that the agency interpretation

claiming deference was promulgated

in exercise of that authority.

Id. at 226-27 (emphasis added). The agency’s

authority would not be binding, however, if it was

“procedurally defective, arbitrary or capricious in

3 For example, in Sackett v. EPA, 598 U.S. 651 (2023), without

referencing Chevron, the Court asserted that a clear statement

from Congress is necessary when it wished to alter the

federal/state balance or the federal government’s power over

private property. The Court refused to defer to the EPA’s

interpretation of “waters of the United States” in the Clean

Water Act as including wetlands with a “significant nexus” to

traditional navigable waters, instead requiring that the

wetlands have “a continuous surface connection” to waters of

the United States.

7

substance, or manifestly contrary to the statute.” Id.

at 227.

The Court also limited the application of

Chevron substantively. In King v. Burwell, 576 U. S.

473 (2015), the Court held that Chevron deference to

the Internal Revenue Service interpretation of 26

U.S.C. § 36B was inappropriate because Chevron

does not apply to “questions of deep ‘economic and

political significance’”. Id. at 486. Similarly, in FDA

v. Brown & Williamson Tobacco Corp., 529 U.S 120

(2000), applying step one of Chevron, the Court

rejected the FDA’s position that it had authority to

regulate the “safety” of tobacco products as a drug

under the Food, Drug and Cosmetic Act since

Congress had enacted other tobacco-specific

legislation and because “we are confident that

Congress could not have intended to delegate a

decision of such economic and political significance

to an agency in so cryptic a fashion”. Id. at 160.

These cases having “deep economic and political

significance” came to be decided under the “major

questions doctrine” and required that the agency

show clear congressional authorization. West

Virginia v. EPA, 597 U.S. 697, 721-23 (2022)

(rejecting the EPA’s interpretation in a case

involving capping carbon dioxide emissions which

would have substantially restructured the American

energy market and holding that the agency must

point to “clear congressional authorization” in

“extraordinary cases” of “economic and political

significance”).

Furthermore, this Court declined to apply

Chevron to cases involving judicial review

provisions. Adams Fruit Co. v. Barrett, 494 U.S. 638,

649 (1990) (holding that under the Migrant and

8

Seasonal Agricultural Worker Protection Act,

Congress had established the judiciary and not the

Department of Labor, as the adjudicator of private

rights of action under that statute). It also held that

the Chevron doctrine did not apply to an agency’s

interpretation of a statute it does not administer.

Epic Sys. Corp. v. Lewis, 584 U.S. 497, 519-20 (2018)

(holding that no Chevron deference was due in a case

involving

arbitration

agreements

between

employers and employees that called for

individualized proceedings since the National Labor

Relations Board does not administer the Arbitration

Act).

The result of the Court’s attempts to clarify

and limit without overruling Chevron was confusion

in the lower courts as to how or when to apply the

Chevron doctrine. “[T]he many refinements . . . made

in an effort to match Chevron’s presumption to

reality” have caused some lower courts to “simply

bypass[] Chevron, saying it makes no difference for

one reason or another.” Loper, 603 U.S. at 404-05;

id. at 406 (noting even courts that did cite Chevron

“did not always heed the various steps and nuances

of that evolving doctrine”)

For example, in County of Amador v. United

States DOI, 872 F. 3d 1012, 1021-22 (9th Cir. 2017),

cert. denied, No. 17-1432, 2018 U.S. LEXIS 4224, the

lower court refused to apply the Chevron doctrine, as

the county requested, because it agreed with the

DOI’s interpretation of the meaning of the Indian

Reorganization Act. “But we need not decide

whether Chevron deference (or any other level of

deference) is appropriate, because we reach the

same conclusion as Interior when we review the

timing-of-recognition issue de novo.” Id. This

9

decision could be interpreted as applying step one of

Chevron to find no ambiguity, but the court declined

to characterize it that way.4

After decades of confusion, this Court finally

overturned Chevron in Loper, citing the same

concerns with inconsistency and confusion that are

at issue in this case. The Court should not wait so

long this time to put to rest the issue presented in

the instant case.

II.

Miranda v. Arizona and its progeny

similarly illustrate the confusion that

results when the Court fails to explicitly

overturn or adhere to precedent.

The landmark case of Miranda v. Arizona,

384 U.S. 436 (1966) held that the Fifth Amendment

required procedural safeguards to protect persons in

custody from incriminating themselves during an

interrogation. The Court said the safeguards were

necessary because of the “inherently compelling

pressures which work to undermine the individual's

will to resist and to compel him to speak where he

4 See also Estrada-Rodriguez v. Lynch, 825 F.3d 397 (8th Cir.

2016), cert. denied, No. 16-304, 2016 U.S. LEXIS 6523 (without

invoking Chevron, denying the petition of an alien to review a

decision of the Board of Immigration Appeals ordering him

removed from the United States because the agency’s

unpublished decision by a single-member panel did not carry

the force of law); Alaska Stock, LLC v. Houghton Mifflin

Harcourt Publ’g. Co., 747 F.3d 673, 685 (9th Cir. 2014)

(applying Skidmore deference and deciding that the Copyright

Office’s interpretation of the Copyright Act was “persuasive”

because it was a “longstanding administrative interpretation

upon which private actors had relied”).

10

would not otherwise do so freely.” Id. at 467.

Although the Court acknowledged the possibility of

alternative means of protecting criminal suspects’

privilege against self-incrimination, and that its

“decision in no way creates a constitutional

straitjacket which will handicap sound efforts at

reform,” the Court nonetheless declared that the

police “must” inform the person in custody of his

rights prior to engaging in interrogations. Id. The

individual must be informed that he has the right to

remain silent, that anything he says can and will be

used against him in court, that he has the right to

counsel during any questioning, and that, if he is

indigent, an attorney will be provided for him. Id. at

467-73. Furthermore, the Court required that if the

person indicated at any time that he wished to

invoke his Fifth Amendment privilege against selfincrimination or wanted an attorney, all

interrogation must cease. Id. at 473-74. The Court

held that before any statements could be admissible

in court, the government must meet a high burden

of proof to show a defendant waived his

constitutional rights. Id. at 475. “The warnings

required and the waiver necessary in accordance

with our opinion today are, in the absence of a fully

effective

equivalent,

prerequisites

to

the

admissibility of any statement made by a defendant.”

Id. at 476 (emphasis added).

Therefore,

while

acknowledging

the

possibility of alternative methods of protecting the

rights of persons in custody, the Miranda Court

nonetheless required the police to inform any person

in custody of his rights prior to engaging in

interrogation. The penalty for failure to follow the

Court’s

procedural

safeguards

was

the

11

inadmissibility in court of any evidence, including

“fruits” of any statements resulting from the

interrogation. Id. at 500 (Clark, J., dissenting).

In several subsequent cases, however, the

Court has backed away from the requirement that

persons in custody must be read their Miranda

rights for any of their statements made under

interrogation to be admissible in court. Yet, the

Court has never specifically overruled Miranda.

In Harris v. New York, 401 U.S. 222 (1971) the

Court allowed evidence presumptively inadmissible

under Miranda to be used at trial to impeach the

defendant’s credibility. The defendant had made

certain statements while in custody before being

warned of a right to counsel. Id. at 223-24. This

contradicted Miranda’s clear directive that “The

requirement of warnings and waiver of rights is

fundamental with respect to the Fifth Amendment

privilege” and are “prerequisites to the admissibility

of any statement made by a defendant.” Miranda,

384 U.S. at 476. The Miranda Court made no

distinction between statements used to establish the

truth of the matter and those used to impeach a

defendant. Both uses of a statement can be

incriminating to a defendant, and thus Harris

undermined the core reasoning of Miranda.

In New York v. Quarles, 467 U.S. 649 (1984)

(“Quarles”), the Court allowed into evidence a

respondent’s statement and a gun located as a result

of his statement, citing a concern for public safety as

a new exception to the inadmissibility of evidence

obtained in violation of Miranda. Although the

respondent was handcuffed in the presence of four

officers, and the officers did not read him his rights

before questioning him about the whereabouts of the

12

gun, the Court said there was “no claim that

respondent’s statements were actually compelled by

police conduct which overcame his will to resist.”

Quarles, 467 U.S. at 654. The Court weakened the

existing requirement from Miranda that police use

procedural safeguards and instead stated, “The

prophylactic Miranda warnings therefore are ‘not

themselves rights protected by the Constitution but

[are] instead measures to ensure that the right

against

compulsory

self-incrimination

[is]

protected.’” Id. (quoting Michigan v. Tucker, 417

U.S. 433, 444 (1974)). The Court reasoned that

because the issuance of the Miranda warnings

might have deterred the suspect from telling the

officers where the gun was, the need to protect the

public safety overrode “the prophylactic rule

protecting the Fifth Amendment’s privilege against

self-incrimination.” Id. at 657. Justice Marshall

disagreed, questioning whether, once the gun was

retrieved, and the public safety concern had abated,

it was still necessary to allow the evidence at trial.

Id. at 686 (Marshall, J., dissenting). He concluded

there was no immediate public safety concern in

allowing the evidence in, even if the officers’

unwillingness to read the respondent his rights in

that situation was understandable. Id. (Marshall, J.,

dissenting).

Relying on Quarles, the Fourth Circuit in

United States v. Dickerson, 166 F.3d 667 (4th Cir.

1999), upheld a statute enacted by Congress

intended to overrule Miranda and replace it with a

voluntariness test for admissibility of evidence. The

court held that Congress could “overrule judicially

created rules of evidence and procedure that are not

required by the Constitution” and that the reading

13

of the Miranda rights was not constitutionally

required but was only “prophylactic.” Id. at 672. But

this Court reversed, ruling the suspect’s confession

inadmissible, and stating that “Miranda announced

a constitutional rule that Congress may not

supersede legislatively.” United States v. Dickerson,

530 U.S. 428, 444 (2000).

The Court’s assertion in Dickerson that

“Miranda announced a constitutional rule” was an

apparent contradiction of a prior precedent. In

Oregon v. Elstad, 470 U.S. 298 (1985) (“Elstad”) the

defendant made an incriminating admission prior to

being read his rights. Once the officers read him his

rights, he confessed to the crime of burglary. The

Court held that the subsequent confession given

after the Miranda warning was not the “‘tainted

fruit of the poisonous tree’ of the Miranda violation”

and was therefore admissible since there was no

evidence it had not been voluntary. Id. at 303-04.

Unfortunately, police officers and those training

them could well read Elstad as a playbook for

evading Miranda by obtaining confessions from

defendants, reading them their rights, then

obtaining second confessions which would then be

admissible under Elstad. See Rhode Island v. Innis,

446 U.S. 291 (1980) (holding that a voluntary

statement by a defendant in custody who has

invoked his right to counsel, but before counsel had

been obtained, was admissible).5

Even after Dickerson, the Court continued to

weaken the “constitutional rule” of Miranda. In

Missouri v. Seibert, 542 U.S. 600 (2004) (“Seibert”),

the defendant was convicted of second-degree

5 Friedman, supra note 2, at 22-23, note 105.

14

murder in a case where the officer intentionally

withheld Miranda warnings, successfully obtained a

confession, gave her the warnings, and obtained a

second confession. While disallowing both

confessions, the Court gave a list of factors that

lower courts should consider in determining

whether “Miranda warnings delivered midstream

could be effective enough to accomplish their object.”

Id. at 615. The Court thereby provided police officers

with a more-detailed playbook on how to circumvent

Miranda’s ban on admitting “fruit of the poisonous

tree.”6 The factors identified by the Court included

the level of detail and completeness of the questions

and answers in the first interrogation; whether the

contents of the two confessions overlapped; the

timing and setting of the two confessions; the

continued presence of police personnel; and the

extent to which the second round of questions were

continuous with the first. Seibert, 542 U.S. at 615.

The Court went further in United States v.

Patane, 542 U.S. 630 (2004) (“Patane”), by holding

that nontestimonial evidence—in this case a gun,

obtained as a result of a voluntary statement—is

admissible. The Court interpreted Elstad as

standing for the proposition that “a blanket

suppression rule could not be justified by reference

to the ‘Fifth Amendment goal of assuring

trustworthy evidence’ or by any deterrence

rationale.” Patane, 542 U.S. at 639-40. The Court

stated that the Fifth Amendment was “selfexecuting” in its protection of those subject to

coercive police interrogations and that this “explicit

textual protection supports a strong presumption

6 Friedman, supra note 2, at 23.

15

against expanding the Miranda rule any further. . .

. Our cases also make clear the related point that a

mere failure to give Miranda warnings does not, by

itself, violate a suspect’s constitutional rights or even

the Miranda rule.” Id. at 640 (emphasis added). This

reasoning is difficult to square with the language of

Miranda itself which virtually equated the Fifth

Amendment’s protections with the reading of the

Miranda rights before any in-custody statements

could be admitted into evidence. Miranda, 384 U.S.

at 476.

The Court affirmed its reasoning in Patane

when it held in Vega v. Tekoh, 597 U.S. 134 (2022)

that the use of a petitioner’s un-Mirandized

statement could not provide a basis for a claim under

42 U.S.C. § 1983 because a violation of Miranda was

not a violation of the Fifth Amendment.

Confusion resulting from the evolution of

Miranda jurisprudence is also reflected in lower

court decisions which, when applying Seibert in

cases decided after December 31, 2005, are split

ideologically as to whether evidence is admissible or

not. As Professor Friedman noted:

Using the political party of the

appointing president as a proxy for

ideology, for federal Courts of Appeals

on which Republican-appointed judges

constitute a majority of the appellate

panel, evidence is admitted in 88.9% of

the cases, whereas it is admitted in

only 70.0% of cases decided by majority

Democrat-appointed panels.7

7 Friedman, supra note 2, at 49.

16

Patane also noted the split in the circuits regarding

admissibility of “fruits” after the Court’s decisions in

Elstad and Dickerson. Patane, 542 U.S. at 634.

In light of all the case law chipping away at

Miranda, it is unclear why the Court has not

explicitly overruled it, perhaps making the reading

of a suspect’s rights simply one factor to consider

when determining if a confession was voluntary or

coerced. Some commentators have taken the

position that Miranda has in fact been overruled or

at least abandoned,8 with the result that “Cops

ignore Miranda; courts then ignore the failure to

adhere to Miranda.”9 This double-messaging does

nothing to enhance uniformity in application of the

law across jurisdictions or predictability in judicial

decision-making.10

Regardless of what one thinks about the

merits of Miranda, an explicit overruling, if that is

what the Court intends, explaining that the Fifth

Amendment is not abrogated by the overturning of

Miranda, would be transparent and would address

the public’s concerns. In fact, one commentator has

opined that the reason for “stealth overruling” is in

fact avoidance of bad publicity.11 Avoiding difficult

issues does not promote the legitimacy of the Court.

The Court’s modifications of Miranda combined with

its unwillingness to overrule it weakens the doctrine

of stare decisis and respect for precedent.

Friedman, supra note 2, at 25 (citing multiple examples);

Michael Vitiello, Miranda Is Dead. Long Live Miranda, 54 Tex.

Tech L. Rev. 59, 87 (2021).

9 Friedman, supra note 2, at 51.

10 Id. at 51.

11 Friedman, supra note 2, at 34.

8

III.

17

Lemon v. Kurtzman also exemplifies the

need for consistency in Supreme Court

jurisprudence.

In 1971, the Court issued its ruling in Lemon

v. Kurtzman, 403 U.S. 602 (1971). Lemon involved

two state statutes providing public aid to churchrelated elementary and secondary schools. The

Court announced a three-part test to decide if a

statute violates the Establishment Clause: 1) the

statute must have a secular legislative purpose, 2)

its principal or primary effect must neither advance

nor inhibit religion, and 3) it must not foster an

excessive government entanglement with religion.

Id. at 612-13. In applying the test to the statutes at

issue, the Court found that they were

unconstitutional because “the cumulative impact of

the entire relationship arising under the statutes in

each State involves excessive entanglement between

government and religion.” Id. at 614.

The Lemon test has been controversial since

the day it was announced, with some commentators

decrying its ahistorical nature. Some scholars noted

that Lemon turned the Establishment Clause from a

prohibition on the establishment of a state religion

in order to protect liberty of conscience into a “sword

to be used against innocuous symbols and subjective

‘entanglements’ that don’t impinge on anyone’s

18

freedom.”12 This alchemy, they argue, betrayed the

Founders’ intentions.13

In fact, Lemon was criticized not only by legal

scholars, but also by other members of the Supreme

Court itself, with pointed barbs appearing in

concurring

and

dissenting

opinions

in

Establishment Clause cases. For example, in

Committee for Public Education & Religious Liberty

v. Nyquist, 413 U.S. 756 (1973), the Court, relying

on Lemon, invalidated state statutes providing for

maintenance and repair and tuition reimbursement

grants for nonpublic schools as well as tax benefits

for parents of children attending nonpublic schools.

Chief Justice Burger, in a dissent joined by Associate

Justices White and Rehnquist, stated, “I am quite

unreconciled to the Court’s decision in Lemon v.

Kurtzman. . . . I thought then, and I think now, that

the Court's conclusion there was not required by the

First Amendment and is contrary to the long-range

interests of the country.” Id. at 820 (Burger, C.J.,

dissenting).14

Three years later, in 1976 the Court affirmed

a state statute providing for annual grants to private

12 Ilya Shapiro, There’s No Juice Left in Lemon, Cato Institute

(Jun. 22, 2021), https://www.cato.org/commentary/theres-nojuice-left-lemon. See Samantha Thompson Lipp, The Rise of

Public School Prayer with the Demise of Lemon v. Kurtzman,

74 Mercer L. Rev. 1221, 1228-29 (2023). (“[A]ccommodationists

fundamentally opposed the Lemon test because they believed

‘[t]his view of the Establishment Clause reflect[ed] an

unjustified hostility toward religion, a hostility inconsistent

with our history and our precedents.’” (quoting Cnty. of

Allegheny v. ACLU Greater Pitt. Chapter, 492 U.S. 573, 655

(1989) (Kennedy, J., concurring in part, dissenting in part).

13 Shapiro, supra note 12.

14 See also Lipp, supra note 12, at 1231.

19

colleges as long as the funds were not used for

sectarian purposes. Roemer v. Bd. of Pub. Works, 426

U.S. 736 (1976), Justice White, joined by Chief

Justice Rehnquist, concurred in the judgment, but

stated “I am no more reconciled now to Lemon than

I was when it was decided.” Id. at 768 (White, J.,

concurring).

In Wallace v. Jaffree, 472 U.S. 38 (1985), the

Court invalidated state statutes that authorized a

period of silence for meditation or voluntary prayer

while also allowing teachers to lead willing students

in a prescribed prayer. In a concurring opinion,

Justice O’Connor stated, “Despite its initial promise,

the Lemon test has proved problematic. The

required inquiry into ‘entanglement’ has been

modified and questioned . . . and in one case we have

upheld state action against an Establishment

Clause challenge without applying the Lemon test at

all.” Id. at 68 (O’Connor, J., concurring.) Justice

Rehnquist in his dissent stated that the Lemon test

“has no more grounding in the history of the First

Amendment than does the wall theory upon which it

rests.” Id. at 110 (Rehnquist, J., dissenting).

Subsequent Supreme Court decisions altered

the Lemon test without explicitly overruling it. In

County of Allegheny v. ACLU, 492 U.S. 573 (1989),

the Court upheld a recurring holiday display on

public property of a Menorah and a Christmas tree

with “a sign bearing the mayor’s name and entitled

“‘Salute to Liberty.’” Id. at 582. The Court elaborated

on the purposes and effects prong of the Lemon test

by asking whether a reasonable observer would

conclude that the government action constituted an

endorsement of religion. Id. at 592, 620.

20

At one point the Court even modified the

Lemon test by combining the second and third

prongs into one that explored whether the

government “entanglement” had the effect of

promoting religion. Agostini v. Felton, 521 U.S. 203,

233 (1997) (“[I]t is simplest to recognize why

entanglement is significant and treat it . . . as an

aspect of the inquiry into a statute's effect.”) The

Court determined that the government aid in

question did not 1) result in governmental

indoctrination, 2) define its recipients by reference

to religion, or 3) create an excessive entanglement.

Id. at 234-35. This restating of the three-prong

Lemon test arguably made government aid of

religious schools less restricted.15

Eventually, in other cases involving the

Establishment Clause, the Court simply declined to

employ the Lemon test at all and/or questioned its

usefulness. The first such case was Lee v. Weisman,

505 U.S. 577 (1992). Without explicitly doing a

Lemon analysis, the Court invalidated the practice

of public schools in Providence, Rhode Island, of

inviting members of the clergy to give prayers at

school graduation ceremonies. Justice Scalia’s

dissent, joined by Chief Justice Rehnquist and

Justices White and Thomas, stated, “Our Religion

Clause jurisprudence has become bedeviled (so to

speak) by reliance on formulaic abstractions that are

not derived from, but positively conflict with, our

long-accepted constitutional traditions. Foremost

among these has been the so-called Lemon test.” Id.

at 644 (Scalia, J., dissenting). The dissent accused

the Court of ignoring Lemon and substituting

15 See Lipp, supra note 12, at 1228-29.

21

instead a “psycho-coercion test” having no roots in

our history and being “infinitely expandable.” Id.

(Scalia, J., dissenting).

In some cases, this Court eschewed a Lemon

analysis, even when the lower courts relied upon it.

In Simmons-Harris v. Zelman, 234 F.3d 945 (6th

Cir. 2000), the Sixth Circuit employed a Lemon

analysis in holding that a state voucher program,

which contained no restriction on religious schools

as to their use of the funds, violated the

Establishment Clause. This Court reversed without

citing Lemon in the majority opinion. SimmonsHarris v. Zelman, 536 U.S. 639 (2002).

The Fifth Circuit in Van Orden v. Perry, 351

F.3d 173 (5th Cir. 2003), aff’d. 545 U.S. 677 (2005),

relying on Lemon, held that the placement of a Ten

Commandment monument on the Texas State

Capitol grounds did not violate the Establishment

Clause. The Court stated, “we think [the Lemon test

is] not useful in dealing with the sort of passive

monument that Texas has erected on its Capitol

grounds. Instead, our analysis is driven both by the

nature of the monument and by our Nation's

history.” Id. at 685-86.

The Sixth Circuit again relied upon Lemon in

Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003),

rev’d 544 U.S. 709 (2005), when it invalidated

Section 3 of the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”)

(Religious Land Use and Institutionalized Persons

Act of 2000, 42 U.S.C. §§2000-cc-2000cc-5) on the

basis of the Establishment Clause. Without relying

on Lemon, this Court reversed, reasoning that giving

greater protections to religious rights does not

automatically create an Establishment Clause

22

violation unless such accommodations are excessive,

impose unjustified burdens on other persons, or

jeopardize the functioning of the institution. Id. at

724-25.

Numerous other cases through the years have

also treated Lemon as irrelevant. See Marsh v.

Chambers, 463 U.S. 783 (1983) (upholding Nebraska

Legislature’s practice of opening its session with a

prayer by a chaplain paid by the state without

referencing the Lemon test); Town of Greece v.

Galloway, 572 U.S. 565 (2014) (upholding the

practice of opening town board meetings with a

prayer given by local clergy, citing historical

practices rather than Lemon); Am. Legion v. Am.

Humanist Ass’n, 588 U.S. 19 (2019) (upholding

retaining the display of a Bladensburg Cross on

state-owned land and maintained with public funds

as a memorial for the county’s soldiers who died in

World War I, citing history rather than Lemon for

guidance); see also Am. Legion, 588 U.S. at 49

(listing cases that either declined to apply Lemon or

ignored it).

The apparent end of Lemon—in the eyes of the

Supreme Court, at least—came in Kennedy v.

Bremerton School District, 597 U.S. 507 (2022)

(“Bremerton”). The Court upheld the right of a high

school football coach to pray at midfield after games

because his speech was private and not ordinarily

within the scope of his duties as a coach. In so doing,

the Court stated that it had “long ago abandoned

Lemon and its endorsement test offshoot” and had

instead “instructed that the Establishment Clause

must be interpreted by reference to historical

practices and understanding.” Id. at 534-35.

Significantly, the Court did not specifically say that

23

Lemon had been “overruled,” but legal analysts have

interpreted the language in Bremerton as essentially

accomplishing the same result.16

One of the reasons the Bremerton Court gave

for abandoning the Lemon test was that, as in the

instant case, the test had “‘invited chaos’ in lower

courts, led to ‘differing results’ in materially

identical cases, and created a ‘minefield’ for

legislators.” Bremerton, 597 U.S. at 534 (quoting

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753, 768-69, n.3 (plurality opinion) (1995)

A brief comparison of circuit courts decisions leading

up to Bremerton proves this to be true. Many

Circuits, upon applying Lemon, had found no

Establishment Clause violations in cases of private

groups erecting private religious displays on public

property. See, e.g., Chabad-Lubavitch of Ga. v.

Miller, 5 F.3d 1383 (11th Cir. 1993) (allowing

religious group to erect and maintain a menorah

display in a public forum within a government

building for the duration of Chanukah); Kreisner v.

City of San Diego, 1 F.3d 775 (9th Cir. 1993)

(upholding granting of a city permit to erect a

Christmas display consisting of scenes from the New

Testament on public property when the permit was

given on a first-come, first-served basis); Ams.

16 Lipp, supra note 12, at 1235; Noah Feldman, Supreme Court

is Eroding the Wall Between Church and State, Bloomberg

(Jun. 27, 2022), https://www.bloomberg.com/opinion/articles/

2022-0627/supreme-court-upends-church-state-law-in-case-ofpraying-coach; Howard Slugh, When the Court Takes Away

Lemon: What the Praying Coach Ruling Means for Religious

Americans, Religious Freedom Institute (Jul. 2, 2022),

https://religiousfreedominstitute.org/when-the-court-takesaway-lemon-what-the-praying-coach-ruling-means-forreligious-americans/.

24

United for Separation of Church & St. v. City of

Grand Rapids, 980 F.2d 1538 (6th Cir. 1992)

(allowing a privately funded menorah display in a

downtown public plaza during Chanukah); Doe v.

Small, 964 F.2d 611 (7th Cir. 1992) (permitting the

display of religious paintings at a public park).

Conversely, also applying Lemon, other lower

court decisions of the same era had found

Establishment Clause violations when private

citizens were permitted to erect religious displays in

public places. See, e.g., Smith v. Cnty. of Albemarle,

895 F.2d 953 (4th Cir. 1990) (holding that the Board

of Supervisors had violated the Establishment

Clause by permitting the Jaycees to erect a crèche

on the front lawn of the County Office Building);

Kaplan v. Burlington, 891 F.2d 1024 (2d Cir. 1989)

(disallowing a menorah display in a public park

during the holiday season).

Even if the “chaos” could be attributed to the

difficulty in applying the test itself, the fact remains

that lower courts continued to apply Lemon even

long after this Court began moving away from it in

the 1990s. In Shurtleff v. City of Boston, 986 F.3d 78

(1st Cir. 2021), rev’d and remanded, 596 U.S. 243

(2022), the First Circuit cited Lemon to justify the

City’s refusal to fly a private Christian flag on a

flagpole at City Hall, although other groups were

allowed to display their flags. This Court overturned

the judgment in the same term as the Bremerton

case was decided, with the concurring opinion

criticizing the use of Lemon to reach the underlying

erroneous decision: “this Court . . . abandoned

Lemon[] and returned to a more humble

jurisprudence centered on the Constitution’s

original meaning. Yet in this case, the city chose to

25

follow Lemon anyway.” Shurtleff v. City of Bos., 596

U.S. 243, 277 (2022) (Gorsuch, J., concurring).

Unfortunately despite this Court admitting to

“abandon[ing]” Lemon in Bremerton, some lower

courts continue to apply it, underscoring the need for

this Court to explicitly overrule precedent rather

than using alternative language that leaves lower

courts unsure of which standard to apply. While the

Court may believe its language disparaging Lemon

was explicit enough, many lower courts have

continued to rely on Lemon (all while not even

mentioning Bremerton.) See, e.g., Carroll v.

Tobesman, No. PX-20-2110, 2023 U.S. Dist. LEXIS

29253, at *7 (D. Md. 2023) (citing Lemon test in

finding that denial of kosher meals to a prisoner

violated the Establishment Clause); Buchanan v.

Jumpstart S.C., No. 1:21-cv-00385, 2022 U.S. Dist.

LEXIS 157191, at *34 (D. S.C. 2022) (employing the

Lemon test and holding that the South Carolina

Department of Corrections’ agreement with

Jumpstart, a non-profit religious organization

dedicated to helping inmates reenter the community

did not violate the Establishment Clause); Monteer

v. ALB Mgmt., No. 4:21-CV-756, 2022 U.S. Dist.

LEXIS 155993, at *24-25 (E.D. Mo. 2022) (citing

Lemon test and holding that the act of serving

holiday meals at Christmas and Thanksgiving and

handing out Bibles to a Muslim jail detainee did not

violate the Establishment Clause.)

IV.

26

To resolve the split in the circuits, this

Court should clarify whether the

Blessing/Wilder line of cases has been

overruled.

In overturning Chevron, this Court did not

shy away from noting the adverse consequences of

its failure to explicitly overrule what was

increasingly seen to be an erroneous and

unworkable precedent. Loper, 603 U.S. at 405-06.

Bremerton, too, cited the disarray in the lower courts

as one important reason to reject Lemon.

Bremerton, 597 U.S. at 534. A similar state of affairs

in the Court’s Miranda jurisprudence has resulted

in circuit courts appearing to take sides along

ideological lines over the question of admitting

evidence under the Seibert factors. See, supra, Sec.

I.

The concurrence by Judge Richardson in the

Fourth Circuit decision below rightly noted the need

for clarity on the precedential status of Wilder and

Blessing after Talevski in order to provide guidance

to the lower courts. App. to Pet. Cert 35a-36a. To

avoid the continued confusion surrounding the

existence of a § 1983 private right of action under a

Spending Clause statute, this Court should resolve

the current 5-2 circuit split that exists regarding the

continued vitality of Blessing/Wilder. Pet. Cert. 4.

Notably, six of the cases creating this split

involve the abortion provider Planned Parenthood.17

The current case and Planned Parenthood of Kan. v.

Andersen, 882 F.3d 1205 (10th Cir. 2018); Planned Parenthood

Ariz., Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013); Planned

17

(continues)

27

Historically, decisions in abortion-related cases have

“led to the distortion of many important but

unrelated legal doctrines”—typically in ways that

favor abortion and abortion providers. Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215, 286-87

(2022). The potential for distortion here would be

best checked by an unambiguous decision that

leaves no room for lower courts to discern a

rejuvenation of the Blessing/Wilder line of cases,

and no need to harmonize the old rule with the new,

as the Fourth Circuit tried to do here. App. to Pet.

Cert. 15a – 21a.

An unambiguous overruling of Blessing and

Wilder would create uniformity and predictability in

judicial decision making and disincentivize suits by

proxy plaintiffs asserting baseless private rights of

action under § 1983. Clearly explaining the reasons

for overruling Blessing/Wilder would honor stare

decisis. In the end, respect for the rule of law and for

the Court would be enhanced.

CONCLUSION

For the foregoing reasons, amicus urges the

Court to clearly state that Talevski has overruled

the Blessing/Wilder line of cases and enunciate the

proper legal rule to apply in private rights of action

brought under § 1983.

Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health,

699 F.3d 962 (7th Cir. 2012); Planned Parenthood of Greater

Tex. Fam. Plan. & Preventative Health Servs., Inc. v.

Kauffman, 981 F.3d 347, 350 (5th Cir. 2020) (en banc); and

Does v. Gillespie, 867 F.3d 1034 (8th Cir. 2017).

28

Respectfully submitted,

CATHERINE SHORT

Counsel of Record

SHEILA A. GREEN

LIFE LEGAL DEFENSE FOUNDATION

PO Box 2105

Napa, CA 94558

(707) 224-6675

kshort@lifelegal.org

Counsel for Amicus Curiae