# Supreme Court October Term 2018: A Review of Selected Major Rulings

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR45884

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** August 23, 2019
- **Citation:** R45884

## Text

Supreme Court October Term 2018:
A Review of Selected Major Rulings
Andrew Nolan, Coordinator
Section Research Manager
Valerie C. Brannon
Legislative Attorney
Daniel J. Sheffner
Legislative Attorney
Linda Tsang
Legislative Attorney
L. Paige Whitaker
Legislative Attorney
August 23, 2019

Congressional Research Service
7-....
www.crs.gov
R45884

SUMMARY

Supreme Court October Term 2018:
A Review of Selected Major Rulings
The Supreme Court term that began on October 1, 2018, was a term of transition, with the Court
issuing a number of rulings that, at times, suggested but did not fully adopt broader
transformations in its jurisprudence. The term followed the retirement of Justice Kennedy, who
was a critical vote on the Court for much of his 30-year tenure and who had been widely viewed
as the Court’s median or “swing” Justice. As a result, the question looming over the October
2018 Term was how the replacement of Justice Kennedy with Justice Kavanaugh would alter the
Court’s jurisprudence going forward.
Notwithstanding the alteration in the Court’s makeup, observers have generally agreed that the
October 2018 Term largely did not produce broad changes to the Court’s jurisprudence.
Although a number of cases presented the Court with the opportunity to rethink various areas of
law, the Court largely declined those invitations. In other cases, a majority of the Justices did not
resolve potentially far-reaching questions, resulting in the Court either issuing more narrow
rulings or simply not issuing an opinion in a given case. Nonetheless, much of the low-key nature
of the October 2018 Term was a product of the Court’s decisions to not hear certain matters. And
for a number of closely watched cases that it did agree to hear, the Court opted to schedule
arguments for the next term.

R45884
August 23, 2019
Andrew Nolan,
Coordinator
Section Research Manager
-redacted-@crs.loc.gov
Valerie C. Brannon
Legislative Attorney
-redacted-@crs.loc.gov
Daniel J. Sheffner
Legislative Attorney
-redacted-@crs.loc.gov
Linda Tsang
Legislative Attorney
-redacted-@crs.loc.gov
L. Paige Whitaker
Legislative Attorney
-redacted-@crs.loc.gov
For a copy of the full report,

While the Supreme Court’s latest term generally did not result in wholesale changes to the law,
please call 7-.... or visit
its rulings were nonetheless important, in large part, because they provide insight into how the
www.crs.gov.
Court may function following Justice Kennedy’s retirement. For the fourth straight year at the
Court, the number of opinions decided by a bare majority increased, with 29% of the Court’s decisions being issued by a
five-Justice majority. While a number of decisions saw the Court divided along what are perceived to be the typical
ideological lines, the bulk of the Court’s closely divided cases involved heterodox lineups in which Justices with divergent
judicial philosophies joined to form a majority in a given case. Collectively, the voting patterns of the October 2018 Term
have led some commentators to suggest that the Court has transformed from an institution that was largely defined by the
vote of Justice Kennedy to one in which multiple Justices are now perceived to be the Court’s swing votes.

Beyond the general dynamics of the October 2018 Term, the Court issued a number of opinions of importance for Congress.
Of particular note are five opinions from the October Term 2018: (1) Kisor v. Wilkie, which considered the continued
viability of the Auer-Seminole Rock doctrine governing judicial deference to an agency’s interpretation of its own ambiguous
regulation; (2) Department of Commerce v. New York, a challenge to the addition of a citizenship question to the 2020 census
questionnaire; (3) Rucho v. Common Cause, which considered whether federal courts have jurisdiction to adjudicate claims
of excessive partisanship in drawing electoral districts; (4) American Legion v. American Humanist Association, a challenge
to the constitutionality of a state’s display of a Latin cross as a World War I memorial; and (5) Gundy v. United States, which
considered the scope of the long-dormant nondelegation doctrine.

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Supreme Court October Term 2018: A Review of Selected Major Rulings

Contents
Administrative Law ......................................................................................................................... 4
Deference and Agency Regulations: Kisor v. Wilkie ................................................................. 4
Election Law.................................................................................................................................. 10
Census: Department of Commerce v. New York ...................................................................... 10
Redistricting: Rucho v. Common Cause and Lamone v. Benisek............................................. 17
First Amendment ........................................................................................................................... 23
Religious Displays: American Legion v. American Humanist Association ............................. 23
Separation of Powers ..................................................................................................................... 27
Nondelegation Doctrine: Gundy v. United States .................................................................... 27

Tables
Table 1. Cases Heard by the Supreme Court in the October 2018 Term ....................................... 33
Table 2. Per Curiam Opinions Issued During the Supreme Court’s 2018 Term............................ 53

Contacts
Author Contact Information .......................................................................................................... 54

Congressional Research Service

Supreme Court October Term 2018: A Review of Selected Major Rulings

he Supreme Court term that began on October 1, 2018,1 was a term of transition, with the
Court issuing a number of rulings that, at times, signaled but did not fully adopt broader
transformations in its jurisprudence. The term followed the retirement of Justice Kennedy,2
who was a critical vote on the Court for much of his 30-year tenure and who had been widely
viewed as the Court’s median or “swing” Justice.3 In nine out of the last 12 terms of the Roberts
Court, he voted for the winning side in a case more often than any of his colleagues.4 Justice Brett
Kavanaugh replaced Justice Kennedy one week into the October 2018 Term.5 The Court’s newest
member had served on the U.S. Court of Appeals for the District of Columbia (D.C. Circuit)6 for
over a decade before his elevation to the Supreme Court.7 Empirical evidence suggests the Court
can change with the retirement and replacement of one its members.8 As a result, the question
looming over the October 2018 Term was how Justice Kennedy’s departure and Justice
Kavanaugh’s arrival would alter the Court’s jurisprudence going forward. Indeed, one member of
the Court, Justice Ruth Bader Ginsburg, predicted Justice Kennedy’s retirement to be “the event
of greatest consequence for the current Term, and perhaps for many Terms ahead.”9

T

Notwithstanding the alteration in the Court’s makeup, observers have generally agreed that the
October 2018 Term largely did not produce broad changes to the Court’s jurisprudence.10
Although a number of cases presented the Court with the opportunity to rethink various areas of
law, the Court largely declined those invitations. For instance, the Court in Gamble v. United
States opted not to overrule a 170-year old doctrine concerning the reach of the Double Jeopardy
Clause of the Fifth Amendment.11 In other cases, a majority of the Justices did not resolve

1 See J. OF THE SUPREME COURT OF THE UNITED STATES 1 (Oct. 1, 2018), https://www.supremecourt.gov/orders/journal/

Jnl18.pdf.
2 See Kennedy, Anthony M., BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR., https://www.fjc.gov/
history/judges/kennedy-anthony-mcleod (last visited Aug. 21, 2019) (indicating that Justice Kennedy assumed senior
status on July 31, 2018).
3 See CRS Report R45256, Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, by Andrew
Nolan, Kevin M. Lewis, and Valerie C. Brannon, at 1-2.
4 See CRS Legal Sidebar LSB10159, Justice Kennedy Retires: Initial Considerations for Congress, by Andrew Nolan
and Michael John Garcia (noting that, save for the October 2017, 2014, and 2007 terms, Justice Kennedy was the most
frequent Justice to be part of the deciding majority in cases decided each term by the Roberts Court).
5 See SUPREME COURT NOMINATIONS, PRESENT-1789, U.S. SENATE, https://www.senate.gov/pagelayout/reference/
nominations/Nominations.htm (last visited Aug. 21, 2019) (indicating that the Senate confirmed Justice Kavanaugh on
October 6, 2018).
6 This report references a significant number of decisions by federal appellate courts of various regional circuits. For
purposes of brevity, references to a particular circuit in the body of this report (e.g., the D.C. Circuit) refer to the U.S.
Court of Appeals for that particular circuit.
7 Kavanaugh, Brett M., BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, FED. JUDICIAL CTR., https://www.fjc.gov/
history/judges/kavanaugh-brett-m (last visited Aug. 21, 2019).
8 See Nolan, Lewis, & Brannon, supra note 3, at 30 (discussing the jurisprudential effects of the retirements of Justices
Lewis Powell and Sandra Day O’Connor).
9 Hon. Ruth Bader Ginsburg, Remarks for the Second Circuit Judicial Conference, (June 7, 2019),
https://www.supremecourt.gov/publicinfo/speeches/RBG%202019%20Second%20Circuit%20Judicial%20Conference
%20Remarks%20June%207%202019.pdf.
10 See, e.g., Mark Sherman and Jessica Gresko, Roberts’ Supreme Court Defies Easy Political Labels, ASSOC. PRESS
(June 29, 2019), https://www.apnews.com/222dd32b7609458f98a811cb00c44848 (noting the “lack of high-profile
cases” before the Court); Henry Glass, In the Shadows: Supreme Court’s Offstage Moves May Matter More, CHRISTIAN
SCIENCE MONITOR (July 2, 2019), https://www.csmonitor.com/USA/Justice/2019/0702/In-the-shadows-Supreme-Courts-offstage-moves-may-matter-more (maintaining that “the past term has been relatively quiet on merits cases”).
11 Gamble v. United States, 139 S. Ct. 1960, 1964 (2019).

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Supreme Court October Term 2018: A Review of Selected Major Rulings

potentially far-reaching questions, resulting in the Court either issuing more narrow rulings12 or
simply not issuing an opinion in a given case.13 Nonetheless, much of the low-key nature of the
October 2018 Term was a product of the Court’s decisions to not hear certain matters. For
instance, save for a three-page, per curiam opinion upholding an Indiana law regulating the
disposal of fetal remains,14 the Court refrained from hearing cases touching on the subject of
abortion during the October 2018 Term.15 The Court also declined to review cases addressing a
number of other high-profile matters, including a challenge to the federal ban on bumpstocks,16 a
dispute over whether business owners can decline on religious grounds to provide services for
same-sex weddings,17 a case concerning President Trump’s authority to impose tariffs on
imported steel,18 and a challenge to the continued detainment of enemy combatants at
Guantanamo Bay.19 And for a number of closely watched cases it did agree to hear, the Court
opted to schedule arguments for the October 2019 Term, including several cases concerning
whether federal law prohibits employers from discriminating on the basis of sexual orientation or
gender identity20 and the lawfulness of the Department of Homeland Security’s decision to wind
down the Deferred Action for Childhood Arrivals (DACA) policy.21
While the Supreme Court’s latest term generally did not result in wholesale changes to the law, its
rulings were nonetheless important, in large part, because they may provide insight into how the
Court will function following Justice Kennedy’s retirement. For the fourth straight year at the
Court, the number of opinions decided by a bare majority increased, with 29% of the Court’s
decisions being issued by a five-Justice majority.22
12 See, e.g., Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring) (declining to join a dissent that

wholly reconsidered the Court’s modern approach toward the nondelegation doctrine it has used “for the past 84 years”
because the Court lacked a fifth vote for the dissent’s view).
13 See, e.g., Carpenter v. Murphy, 139 S. Ct. 626 (2018) (asking for supplemental briefing prior to restoring the case for
reargument for the October 2019 Term).
14 See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1781-82 (2019) (upholding an Indiana law
regulating the disposition of fetal remains by abortion providers, while noting that the case did “not implicate our cases
applying the undue burden test to abortion regulations”).
15 See id. at 1782 (declining to hear an appeal of lower court decision invalidating an Indiana law prohibiting the
“knowing provision of sex-, race-, and disability selective abortions by abortion providers”); see also Harris v. W. Ala.
Women’s Ctr., 139 S. Ct. 2606, 2606 (2019) (declining a petition for a writ of certiorari to consider the constitutionality
of an Alabama law criminalizing a particular abortion procedure during the second trimester of a pregnancy); cf. Gee v.
Planned Parenthood of Gulf Coast, Inc., 139 S. Ct. 408, 408 (2018) (denying a request asking the Court to decide
whether Medicaid recipients have a private right of action to challenge a state’s determination as to who is a “qualified”
provider under the Medicaid Act, so that recipients could challenge a state’s decision to deny Medicaid funds to
Planned Parenthood).
16 See Guedes v. BATFE, 139 S. Ct. 1474, 1474 (2019).
17 See Klein v. Oregon Bureau of Labor & Indus., No. 18-547, 2019 WL 2493912, at *1 (U.S. June 17, 2019); see also
CRS Legal Sidebar LSB10311, Supreme Court Vacates Another Opinion Applying Antidiscrimination Laws to
Religious Objectors, by Valerie C. Brannon.
18 See Am. Inst. for Int’l Steel, Inc. v. United States, No. 18-1317, 2019 WL 1674342, at *1 (U.S. June 24, 2019).
19 See Al-Alwi v. Trump, 139 S. Ct. 1893, 1893 (2019).
20 See Bostock v. Clayton Cty., Ga., 139 S. Ct. 1599 (2019) (following the filing of a petition for certiorari in May
2018, granting certiorari in April 2019 and consolidating the case with Altitude Exp., Inc. v. Zarda and R.G. & G.R.
Harris Funeral Homes, Inc. v. E.E.O.C.).
21 See Dep’t of Homeland Sec. v. Regents of the Univ. of California, No. 18-587, 2019 WL 2649834, at *1 (U.S. June
28, 2019) (following the filing of a petition for certiorari in November 2018, granting certiorari in June 2019 and
consolidating the case with Trump v. NAACP and McAleenan v. Vidal).
22 See ADAM FELDMAN, SCOTUSBLOG, FINAL STAT PACK FOR OCTOBER TERM 2018 19 (Jun. 28, 2019, 5:59 PM),
https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_30_19.pdf. This count includes cases such

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Supreme Court October Term 2018: A Review of Selected Major Rulings

Some of these decisions saw the Court divided along what are perceived to be the typical
ideological lines, with Justices appointed by Republican presidents on one side and those
appointed by Democrats on the other.23 These 5-4 splits occurred in several appeals concerning
the death penalty24 and in three cases where the Court expressly or implicitly overturned several
of the Court’s previous precedents regarding sovereign immunity,25 property rights,26 and
redistricting.27
Nonetheless, such divisions proved to be the exception rather than the rule in closely divided
cases during the last term. Of the 21 cases decided by a single vote, seven cases saw 5-4 splits
between what have been viewed to be the conservative and liberal voting blocs on the Court.28
Instead, the October 2018 Term witnessed a number of heterodox lineups at the Court. For
instance, Justice Kavanaugh joined the perceived liberal wing of the Court in a major antitrust
dispute,29 and Justice Gorsuch voted with that same voting bloc in several cases involving
Indian30 and criminal law.31 Justice Breyer joined the more conservative wing of the Court in the
term’s biggest Fourth Amendment case.32 And, as discussed in more detail below, in cases
concerning the inclusion of a citizenship question on the 2020 Census questionnaire33 and judicial
as Gundy v. United States, 139 S. Ct. 2116 (2019), that were rendered by an eight-member Court.
23 See id.
24 See, e.g., Bucklew v. Precythe, 139 S. Ct. 1112, 1116 (2019) (rejecting by a 5-4 vote petitioner’s Eighth Amendment
challenge to the method of his execution); Dunn v. Ray, 139 S. Ct. 661, 661 (2019) (rejecting by a 5-4 vote a
petitioner’s request to stay his execution on the grounds that the prison refused to allow a Muslim imam to be at his
side during the execution).
25 See Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1490 (2019) (holding by a 5-4 vote that the Constitution
prohibits a state from being sued by a private party without its consent in the courts of a different state and overruling
Nevada v. Hall, 440 U.S. 410 (1979)).
26 Knick v. Twp. of Scott, 139 S. Ct. 2162, 2167 (2019) (holding by a 5-4 vote that a property owner maintaining a
Taking Clause lawsuit against a local government need not first seek a remedy in a state court before pursuing his claim
in federal court and overruling Williamson Cty. Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473
U.S. 172 (1985)).
27 Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019) (holding by a 5-4 vote that claims of excessive partisanship
in districting are nonjusticable and overruling sub silentio Davis v. Bandemer, 478 U.S. 109 (1986)).
28 See FELDMAN, supra note 22, at 44-47.
29 See Apple Inc. v. Pepper, 139 S. Ct. 1514, 1519 (2019) (holding that consumers of iPhone apps could pursue an
antitrust lawsuit against Apple, notwithstanding the direct purchaser rule set forth in Illinois Brick Co. v. Illinois, 431
U.S. 720 (1977)).
30 See, e.g., Herrera v. Wyoming, 139 S. Ct. 1686, 1691 (2019) (holding that a treaty providing the Crow Tribe with
certain hunting rights survived Wyoming’s entrance into the Union as a state and that the federal government’s
establishment of a national reserve on the land in question did not result in the land becoming occupied as a categorical
matter); Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1004 (2019) (concluding that an 1855
treaty between the United States and the Yakama Nation forbids the State of Washington from imposing a tax upon
fuel importers who are members of the Yakama Nation).
31 See, e.g., United States v. Davis, 139 S. Ct. 2319, 2324 (2019) (holding that the residual clause of 18 U.S.C.
§ 924(c)(3)(B) is unconstitutionally vague); United States v. Haymond, 139 S. Ct. 2369, 2373 (2019) (concluding that,
as applied to the case before the Court, 18 U.S.C. § 3583(k), which required the imposition of a mandatory minimum
sentence upon a judicial finding by the preponderance of the evidence that a criminal defendant on supervised release
committed certain crimes, violated the Fifth and Sixth Amendments).
32 See Mitchell v. Wisconsin, 139 S. Ct. 2525, 2531 (2019) (concluding that the exigent-circumstances exception to
Fourth Amendment’s warrant requirement generally permits warrantless blood tests where driver suspected of drunk
driving is unconscious and therefore cannot be given a breath test).
33 See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019) (affirming the lower court’s decision to vacate
the challenged administrative action because the evidence before the agency told “a story that does not match the
Secretary’s explanation for his decision.”).

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deference afforded to interpretations of agency regulations,34 the Chief Justice voted with the
perceived liberal voting bloc. Underscoring the new dynamics of the Roberts Court, three Justices
with fairly distinct judicial approaches voted most frequently with the majority of the Court last
term: Justice Kavanaugh (voting with the majority 88% of the time), Chief Justice Roberts (85%),
and Justice Kagan (83%).35 Collectively, the voting patterns of the October 2018 Term have led
some legal commentators to suggest that the Court has transformed from an institution that was
largely defined by the vote of Justice Kennedy to one in which multiple Justices are now the
Court’s swing votes.36
Beyond the general dynamics of October 2018 Term, the Court issued a number of opinions of
particular importance for Congress. While a full discussion of every ruling from the last Supreme
Court term is beyond the scope of this report, Table 1 and Table 2 provide brief summaries of the
Court’s written opinions issued during the October 2018 Term. The bulk of this report highlights
five notable opinions from the October Term 2018 that could affect the work of Congress: (1)
Kisor v. Wilkie, which considered the continued viability of the Auer-Seminole Rock doctrine
governing judicial deference to an agency’s interpretation of its own ambiguous regulation; (2)
Department of Commerce v. New York, a challenge to the addition of a citizenship question to the
2020 census questionnaire; (3) Rucho v. Common Cause, which considered whether federal courts
have jurisdiction to adjudicate claims of excessive partisanship in drawing electoral districts; (4)
American Legion v. American Humanist Association, a challenge to the constitutionality of a
state’s display of a Latin cross as a World War I memorial; and (5) Gundy v. United States, which
considered the scope of the long-dormant nondelegation doctrine.

Administrative Law
Deference and Agency Regulations: Kisor v. Wilkie37
In Kisor v. Wilkie,38 the Supreme Court considered whether to overrule the Auer doctrine (also
known as the Seminole Rock doctrine),39 which generally instructs courts to defer to agencies’
reasonable constructions of ambiguous regulatory language.40 In a 5-4 decision, the Supreme
Court upheld the deference doctrine on stare decisis grounds.41 However, while the Court in
34 See Kisor v. Wilkie, 139 S. Ct. 2400, 2424 (2019) (declining to overturn Auer v. Robbins, 519 U.S 452 (1997), but

remanding the case to the lower court to reexamine whether Auer deference should be afforded to the challenged
interpretation of the agency’s regulation).
35 See FELDMAN, supra note 22, at 17.
36 See, e.g., Amelia Thomson-Devaux, The Supreme Court Might Have Three Swing Justices Now, FIVETHIRTYEIGHT
(July, 2, 2019), https://fivethirtyeight.com/features/the-supreme-court-might-have-three-swing-justices-now/ (“Based
on how they have ruled this year, there are now three justices who could reasonably be seen as ‘swing’ votes of one
kind or another: Roberts, Kavanaugh and Gorsuch. And it’s possible to argue that all—or none—of these justices have
replaced Kennedy as the court’s ‘swing’ justice.”); Jacqueline Thomsen, Conservative Justices Surprise Court
Watchers with Swing Votes, THE HILL (July 2, 2019), https://thehill.com/regulation/court-battles/451262-conservativejustices-surprise-court-watchers-with-swing-votes (“Collectively, we may have the three of them [Chief Justice Roberts
and Justices Gorsuch and Kavanaugh] acting as swing votes in a number of different areas”) (quoting Georgetown
University Law Professor Susan Bloch).
37 Legislative Attorney Daniel Sheffner authored this section.
38 139 S. Ct. 2400 (2019).
39 See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
40 See Kisor, 139 S. Ct. at 2408.
41 Id. at 2422-23.

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Kisor declined to overrule Auer, it emphasized that the doctrine applies only in limited
circumstances.42 These limitations on the doctrine’s scope could bear consequences for future
courts’ review of agency action and affect the manner in which agencies approach their
decisionmaking.
Background: The Supreme Court has established several doctrines that guide judicial review of
agency action.43 Perhaps the most well known is the Chevron doctrine, which generally instructs
courts to defer to an agency’s reasonable interpretation of an ambiguous statute that it
administers.44 Auer deference, which takes its name from the Supreme Court’s 1997 decision in
Auer v. Robbins,45 has roots in the Court’s 1945 decision in Bowles v. Seminole Rock & Sand
Co.46 Auer generally instructs courts to defer to an agency’s interpretation of ambiguous
regulatory language “unless,” as the Court framed the test in Seminole Rock, that interpretation
“is plainly erroneous or inconsistent with the regulation.”47 While Chevron deference applies to
agency interpretations of statutes that are contained in agency statements that have the force of
law (e.g., regulations promulgated following notice-and-comment rulemaking procedures),48 Auer
deference has been applied to a range of nonbinding agency memoranda and other materials that
construe ambiguous regulatory language.49 While the doctrine has long-standing roots, in the
wake of Auer, several Members of the Court began to criticize the doctrine on policy, statutory,
and constitutional grounds.50
42 Id. at 2414-18.
43 See CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.
44 See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984). For more information on the Chevron

doctrine, see CRS Report R44954, Chevron Deference: A Primer, by Valerie C. Brannon and Jared P. Cole.
45 519 U.S. 452 (1997).
46 According to some Members of the Court, the doctrine may have even earlier antecedents. See Kisor, 139 S. Ct. at
2411-2412 (plurality opinion) (writing that “[b]efore the doctrine was called Auer deference, it was called Seminole
Rock deference,” and remarking that “[d]eference to administrative agencies traces back to the late nineteenth century,
and perhaps beyond”) (citing United States v. Eaton, 169 U.S. 331, 343 (1898)).
47 Seminole Rock, 325 U.S. at 414. Prior to Kisor, the Court had limited the application of Auer in various cases. For
example, the Court had previously held that deference is not owed when an agency interprets a regulation that simply
“restate[s] the terms of the statute” being administered. Gonzales v. Oregon, 546 U.S. 243, 257 (2007). This limitation
is known as the “anti-parroting canon.” See Hanah Metchis Volokh, The Anti-Parroting Canon, 6 NYU J. L. & LIBERTY
290, 290 (2011). In addition, the Court had, prior to Kisor, explained that deference is not warranted when an agency’s
interpretation is not the product of its “fair and considered judgment.” Christopher v. SmithKline Beecham Corp., 567
U.S. 142, 155 (2012) (internal quotation marks and citation omitted).
48 United States v. Mead Corp., 533 U.S. 218, 226-27 (2001); see 5 U.S.C. § 553.
49 See, e.g., Seminole Rock, 325 U.S. at 417 (bulletin issued by Office of Price Administration); Auer, 519 U.S. at 461
(amicus brief submitted by Secretary of Labor); Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261,
283-84 (2009) (Environmental Protection Agency memorandum).
50 Justice Scalia, the author of Auer, see 519 U.S. 452, eventually became one of the doctrine’s most outspoken critics.
Explaining his concerns in a concurring opinion in Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50
(2011), Justice Scalia wrote that “[i]t seems contrary to fundamental principles of separation of powers to permit the
person who promulgates a law to interpret it as well.” Id. at 68 (Scalia, J., concurring). He further opined that Auer
“frustrates the notice and predictability purposes of rulemaking[] and promotes arbitrary government” by
“encourag[ing] . . . agenc[ies] to enact vague rules which give [them] the power, in future adjudications, to do what
[they] please[].” Id. at 68-69. For an overview of Justice Scalia’s evolving views on Auer, see Kevin O. Leske, A Rock
Unturned: Justice Scalia’s (Unfinished) Crusade Against the Seminole Rock Deference Doctrine, 69 ADMIN. L. REV. 1
(2017).
Prior to Kisor, several current Members of the Court criticized or expressed possible interest in reconsidering Auer.
See, e.g., Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 615-16 (2013) (Roberts, C.J., concurring in part); Perez v.
Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1225 (2015) (Thomas, J., concurring in the judgment); id. at 1210-11 (Alito, J.,
concurring in part and concurring in the judgment). Last year, Justice Gorsuch joined Justice Thomas’s dissent from a

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Supreme Court October Term 2018: A Review of Selected Major Rulings

The Kisor case arose after the Department of Veterans Affairs (VA) denied James L. Kisor’s
request for retroactive disability compensation benefits.51 The agency determined that records he
supplied were not “relevant” within the meaning of the governing regulation.52 On appeal, the
Federal Circuit held that the term “relevant” as used in that regulation was ambiguous and,
applying Auer deference to the VA’s interpretation, affirmed the agency’s decision.53 The
Supreme Court granted the petitioner’s request for review to consider whether to overturn Auer.54
Supreme Court’s Decision: While the Supreme Court unanimously agreed to vacate the Federal
Circuit’s decision, the Justices fractured on whether to overrule Auer, with a bare majority voting
to uphold it. Writing on behalf of five Members of the Court, Justice Kagan—joined by Chief
Justice Roberts and Justices Breyer, Ginsburg, and Sotomayor—grounded the decision to uphold
Auer on stare decisis principles.55 The doctrine of stare decisis typically leads the Court to follow
rules set forth in prior decisions unless there is a “special justification” or “strong grounds” for
overruling that precedent.56 Justice Kagan concluded that the petitioner’s arguments did not
justify abandoning Auer deference in light of the extensive body of precedent, going back at least
to Seminole Rock, which supported the continued use of a doctrine that “pervades the whole
corpus of administrative law.”57 The Kisor majority also expressed concern that abandonment of
Auer deference could result in litigants revisiting any of the myriad cases that applied the
doctrine.58 And, the Court continued, “particularly ‘special justification[s],’” which had not been
offered by the petitioner, were necessary to overturn Auer, given that Congress has left the
doctrine undisturbed for so long, despite the Court’s repeated assertions that the doctrine rests on
a presumption “that Congress intended for courts to defer to agencies when they interpret their
own ambiguous rules.”59
Although the Court did not overrule Auer, it took “the opportunity to restate, and somewhat
expand on,” the doctrine’s limitations.60 In so doing, the Court formulated a multistep process for
determining whether Auer deference should be afforded to an agency’s interpretation of a
regulation. First, a reviewing court may defer under Auer only after determining that the
regulation is “genuinely ambiguous,” a conclusion the court may reach only after “exhaust[ing]

denial of certiorari that asked the Court to overrule Auer. Garco Construction, Inc. v. Speer, 138 S. Ct. 1052 (2018)
(Thomas, J., dissenting from denial of certiorari). And prior to joining the High Court, Justice Kavanaugh once
predicted favorably that the Court would one day overrule the doctrine. See Brett M. Kavanaugh, Justice Scalia and
Deference, Keynote Address at the C. Boyden Gray Center for the Study of the Administrative State, Rethinking
Judicial Deference: History, Structure, and Accountability, at 17:28-19:12 (June 2, 2016), https://vimeo.com/
169758593.
51 Kisor v. Shulkin, 869 F.3d 1360, 1362-65 (Fed. Cir. 2017), vacated & remanded, 139 S. Ct. 2400.
52 Id. at 1364-65; 38 C.F.R. § 3.156(c)(1).
53 Kisor, 869 F.3d at 1367-69.
54 Kisor v. Wilkie, 139 S. Ct. 657 (2018) (order granting certiorari).
55 Kisor, 139 S. Ct. at 2422-23.
56 Arizona v. Rumsey, 467 U.S. 203, 212 (1984); Janus v. Am. Fed. of State, Cty. & Mun. Emps., 138 S. Ct. 2448,
2478 (2018). See also CRS Report R45319, The Supreme Court’s Overruling of Constitutional Precedent, by Brandon
J. Murrill, at 4.
57 Kisor, 139 S. Ct. at 2422.
58 Id.
59 Id. at 2415; id. at 2422-23 (citing Martin v. Occup. Safety & Health Rev. Comm’n, 499 U.S. 144, 151 (1991)). The
Court also deemed it notable that Congress had left Auer undisturbed “even after Members of th[e] Court began to raise
questions about the doctrine.” Id. at 2423 (citing Talk America, 564 U.S. at 67-69 (Scalia, J., concurring)).
60 Id. at 2415.

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all the ‘traditional tools’ of construction.”61 Second, even if ambiguity exists, Auer will not apply
unless the court determines that the agency’s interpretation is “reasonable”—that is, the
interpretation “must come within the zone of ambiguity” that the court uncovered in its
interpretation of the regulation.62 And third, even if a court determines that the agency has
reasonably interpreted a genuinely ambiguous regulation, it must still independently assess
“whether the character and context of the agency interpretation entitles it to controlling weight.”63
Though the Court cautioned that this examination is unable to be reduced “to any exhaustive
test,”64 the Court indicated that Auer deference shall not extend to interpretations that (1) are not
the official or authoritative position of the agency;65 (2) do not somehow “implicate [the
agency’s] substantive expertise”;66 or (3) do not represent the agency’s “fair and considered
judgment.”67 The Court remanded the case to the Federal Circuit after concluding that the court of
appeals did not adequately assess whether the regulation at issue was ambiguous, nor “whether
the [VA’s] interpretation is of the sort that Congress would want to receive deference.”68
Two portions of Justice Kagan’s opinion defended Auer on grounds other than stare decisis
principles but did not gain the support of a majority of the Court. Joined by Justices Breyer,
Ginsburg, and Sotomayor, Justice Kagan argued that Auer deference follows from “a presumption
that Congress would generally want [agencies] to play the primary role in resolving regulatory
ambiguities.”69 Justice Kagan wrote that this presumption was justified on several grounds,
including agencies’ significant substantive expertise, the relative political accountability of
agencies subordinate to the President, and the view that the agency responsible for issuing a
regulation is often best situated to determine the meaning of that regulation.70 The four Justices
also disagreed with the petitioner’s statutory, policy, and constitutional arguments for overruling
Auer.71
61 Id.
62 Id. at 2415-16.
63 Id. at 2416.
64 Id.
65 Id. The Court acknowledged that not all agency interpretations stem from the head of the agency or his or her “chief

advisers,” but wrote that, for Auer to apply, an “interpretation must at the least emanate from those actors, using those
vehicles, understood to make authoritative policy in the relevant context.” Id.
66 Id. at 2417. The Court said that deference will not apply “[w]hen the agency has no comparative expertise in
resolving a regulatory ambiguity” in relation to a federal court. Id. The Court cited the anti-parroting canon mentioned
above, supra note 47, in support of this point, Kisor, 139 S. Ct. at 2417 n.5.
67 Kisor, 139 S. Ct. at 2417 (internal quotation marks and citation omitted). The Court explained that, under this
standard, courts should not accord deference to interpretations that simply represent a “convenient litigating position”
or “post hoc rationalizatio[n]” intended “to defend past agency action against attack.” Id. (internal quotation marks and
citation omitted) (alteration in original). The Court explained that “[t]he general rule,” therefore, is that courts should
refrain from deferring “to agency interpretations advanced for the first time in legal briefs.” Id. at 2417 n.6. It stopped
short, however, from removing such interpretations from Auer’s ambit in all cases. Id.
The Court also explained that the “fair and considered judgment” limitation applies to interpretations that cause “unfair
surprise.” Id. at 2417-18; cf. Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 144 (2012). For this reason, the
Court explained that it has not often deferred to agency interpretations that are contrary to earlier interpretations. Kisor,
139 S. Ct. at 2418. Cf. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007) (declaring that “as long as
interpretive changes create no unfair surprise . . . the change in interpretation alone presents no separate ground for
disregarding the Department’s present interpretation”).
68 Kisor, 139 S. Ct. at 2423-24.
69 Id. at 2412 (plurality opinion).
70 Id. at 2412-13.
71 Id. at 2418-2422. In short, the petitioner in Kisor argued that the Court should overrule Auer because, in his view, the

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Concurring Opinions: Justice Gorsuch authored an opinion in which he disagreed with the
majority’s refusal to overrule Auer.72 Justice Gorsuch agreed with the petitioner that Auer violates
the Constitution, arguing that the doctrine runs afoul of the separation of powers by demanding
that courts accede to the legal judgments of the executive branch and placing “the powers of
making, enforcing, and interpreting laws . . . in the same hands.”73 He also agreed with the
petitioner that Auer violates the judicial review and rulemaking provisions of the Administrative
Procedure Act (APA).74 Instead of affording deference under Auer, Justice Gorsuch argued that
judges should employ the so-called “Skidmore doctrine” when attempting to discern the meaning
of an agency regulation.75 Under that doctrine—named after the Court’s 1944 decision in
Skidmore v. Swift & Co.76—courts independently interpret the text of a regulation, but may accord
nonbinding weight to an administrative interpretation, consistent with “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.”77
The Chief Justice, who provided the crucial fifth vote to uphold Auer, authored a partial
concurrence contending that the “distance” between the controlling portion of Justice Kagan’s
opinion and the position put forth by Justice Gorsuch “is not as great as it may initially appear.”78
He noted that the limitations on Auer deference announced by the Kisor majority—that an
interpretation must, among other things, be based on the agency’s “authoritative, expertise-based,
and fair and considered judgment”—were not so different from those factors that Justice Gorsuch
believed may persuade a court to follow an interpretation under Skidmore.79 And, perhaps
anticipating a future legal challenge to the continuing viability of the Chevron doctrine, the Chief
Justice also wrote that the Auer and Chevron doctrines are analytically distinct,80 maintaining that
the Court’s refusal to overrule Auer had no bearing on the distinct issues associated with
Chevron.81
doctrine was inconsistent with the rulemaking and judicial review provisions of the Administrative Procedure Act, 5
U.S.C. §§ 553, 706, encouraged agencies to draft vague regulations, and violated the constitutional separation of
powers by allowing agencies to both write and authoritatively interpret laws, see Brief for Petitioner at 26-36, 37-40,
43-45, Kisor, 139 S. Ct. 2400. Justice Kagan rejected all of these arguments. Kisor, 139 S. Ct. at 2418-2422 (plurality
opinion).
72 Kisor, 139 S. Ct. at 2425 (Gorsuch, J., concurring in the judgment). The opinion was joined in full by Justice Thomas
and in substantial part by Justices Alito and Kavanaugh.
73 Id. at 2438-39.
74 Id. at 2432-35 (citing 5 U.S.C. §§ 553, 706).
75 Id. at 2447.
76 23 U.S. 134 (1944).
77 Id. at 140.
78 Kisor, 139 S. Ct. at 2424 (Roberts, C.J., concurring in part).
79 Id.
80 Id. at 2425.
81 Id. The Chief Justice did not elaborate on the reasons he believed the doctrines are distinct. But the High Court has
recognized that Chevron is based on a presumption that Congress sometimes intends agencies to fill gaps in ambiguous
statutes they administer. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837. 843-44 (1984); Food &
Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000). Some commentators and Justices
have argued that Auer is not premised on a similar presumption about legislative intent. See Jonathan Adler,
Government Agencies Shouldn’t Get to Put a Thumb on the Scales, SCOTUSBLOG (Jan. 31, 2019),
https://www.scotusblog.com/2019/01/symposium-government-agencies-shouldnt-get-to-put-a-thumb-on-the-scales/;
Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 619-20 (2013) (Scalia, J., concurring in part and dissenting in part).
Notably, the Chief Justice did not join the portion of Justice Kagan’s opinion that argued that Auer deference is based
on such a presumption. See Kisor, 139 S. Ct. at 2412 (plurality opinion); id. at 2424 (Roberts, C.J., concurring in part).

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Implications for Congress: While the Court did not overrule the Auer doctrine in Kisor, the
framework it elucidated for assessing whether deference is appropriate may provide further
guidance and, perhaps, constrain lower courts deciding whether to defer to an agency’s regulatory
interpretation.82 Legal commentators have drawn various conclusions about Kisor’s potential
impact,83 but it ultimately remains to be seen whether courts will be more hesitant to conclude
that deference is warranted after Kisor, and whether the Kisor Court’s elaborations on the limits
on Auer deference will inform agency decisionmaking.84 In any event, the Court in Kisor made
clear that Auer deference is not constitutionally required, and Congress may opt to memorialize,
abrogate, or modify application of the doctrine by statute.85 For example, Congress could amend
the judicial review provision of the APA to explicitly provide that judicial review of agency
interpretations of regulations shall be accorded no deference (i.e., shall be reviewed “de novo”)86
or instead be subject to some other standard.87 More narrowly, Congress could also provide in
In addition, Justice Kavanaugh filed an opinion, joined by Justice Alito, concurring in the judgment. See Kisor, 139 S.
Ct. at 2448 (Kavanaugh, J., concurring in the judgment). Like Justice Gorsuch, Justice Kavanaugh believed that Auer
should be overruled. Id. He also agreed with the Chief Justice that the Kisor majority and Justice Gorsuch’s approaches
may not be that far apart. Id. Justice Kavanaugh contended that the Kisor majority’s instruction that courts exhaust the
traditional canons of construction before concluding that a regulation is ambiguous “will almost always [lead a court
to] reach a conclusion about the best interpretation of the regulation at issue.” Id. In addition, he agreed with the Chief
Justice that the majority’s refusal to overturn Auer is not relevant to the issue of Chevron. Id. at 2449.
82 See Christopher J. Walker, Procedural Politicking and Auer Deference, 36 YALE J. ON REG.: NOTICE & COMMENT
(2019), https://yalejreg.com/nc/procedural-politicking-and-auer-deference/ (suggesting that Kisor “will lead lower
courts to be much less deferential to agency regulatory interpretations going forward”). But see Jennifer Huddleston,
Kisor and the Future of Agency Deference, MERCATUS CENTER (June 27, 2019), https://www.mercatus.org/bridge/
commentary/kisor-and-future-agency-deference (writing that Kisor “changes the way the courts will consider
administrative actions by putting new emphasis on determining if and when such deference is appropriate,” but noting
that “[w]hether this change truly impacts the way courts consider such decisions by the administrative state remains to
be seen”).
83 See, e.g., Thomas Merrill, Shadow Boxing with the Administrative State, SCOTUSBLOG (June 27, 2019),
https://www.scotusblog.com/2019/06/symposium-shadow-boxing-with-the-administrative-state/ (remarking that Justice
“Kagan’s new contextualized Auer, although it draws upon roughly the same factors as Skidmore, is an unknown
animal at this point” and “[c]onsequently, it is likely to produce significant uncertainty among lower court judges,
agencies and persons contemplating a challenge to agency interpretations”); Daniel E. Walters, A Turning Point in the
Deference Wars, REG. REV. (July 9, 2019), https://www.theregreview.org/2019/07/09/walters-turning-point-deferencewars/ (writing that “there does not appear to be anything genuinely new about any of this except the clarity the [Kisor]
opinion engrafts on the doctrine”); Walker, supra note 82 (predicting that “courts [will] be less deferential” after
Kisor). Cf. Ronald Levin, Auer Deference—Supreme Court Chooses Evolution, not Revolution, SCOTUSBLOG (June
27, 2019), https://www.scotusblog.com/2019/06/symposium-auer-deference-supreme-court-chooses-evolution-notrevolution/ (opining that the types of limitations imposed on Auer by Kisor “are an inherent feature of the doctrine” and
that “the doctrine has proved susceptible of gradual evolution over the years”); Aaron Nielson, Kisor Deference, 36
YALE J. ON REG.: NOTICE & COMMENT (2019), https://yalejreg.com/nc/kisor-deference/ (writing “that Kisor deference
differs from Auer deference” and that “[w]hat we have [now] . . . is Kisor deference”).
84 Lower courts have already begun to apply Kisor to agency regulatory interpretations. See, e.g., Am. Tunaboat Ass’n
v. Ross, Case No. 1:19-cv-01011 (TNM), 2019 WL 3458641, at *7-10 (D.D.C. July 31, 2019) (deferring to agency’s
regulatory interpretation after applying Kisor’s multistep test); Spencer v. Macado’s, Inc., Case No. 6:18-cv-00005,
2019 WL 2931304, at *5-6 (W.D. Va. July 8, 2019) (determining that agency’s interpretation did not stem from its
“fair and considered judgment” and remarking that, under Kisor, “it would be inappropriate to apply Auer deference” in
the case) (internal quotation marks and citation omitted).
85 See Kisor, 139 S. Ct. at 2422-23.
86 Id.; 5 U.S.C. § 706.
87 There is legislation in Congress that would require de novo review of agency interpretations. See Separation of
Powers Restoration Act, H.R. 1927, 116th Cong. § 2(3) (2019) (amending § 706 to require that courts “decide de novo
all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by
agencies”); Separation of Powers Restoration Act, S. 909, 116th Cong. § 2(2)(B) (2019) (amending § 706 to provide de
novo review of agency interpretations and state that, “[i]f the reviewing court determines that a statutory or regulatory

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particular statutes governing specific agency actions whether Auer deference or some other
standard of judicial review should be applied to regulatory interpretations.88

Election Law
Census: Department of Commerce v. New York89
On the last day that the Supreme Court sat for the October 2018 Term, the Court issued its
decision in Department of Commerce v. New York90—a case involving the legal challenges to the
decision by the Secretary of the Department of Commerce, Wilbur Ross, to add a citizenship
question to the 2020 census questionnaire.91 The Court’s opinion resolved important questions of
constitutional, statutory, and administrative law. The Court concluded that adding a citizenship
question to the 2020 census questionnaire did not violate the Enumeration Clause of the U.S.
Constitution or the Census Act. But the Court also—at least temporarily—prohibited the
Department of Commerce from adding the citizenship question to the 2020 census questionnaire
because it determined that Secretary Ross had violated the APA by failing to disclose his actual
reason for doing so.
Background: Article I, § 2 of the U.S. Constitution, as amended by the Fourteenth Amendment,
requires Congress to take an “actual Enumeration” of “the whole Number of . . . persons” in each
State “every . . . Term of ten Years, in such Manner as [Congress] shall by Law direct.”92 Through
the Census Act,93 Congress delegated this responsibility to the Secretary of Commerce. That law
requires the Secretary of Commerce to “take a decennial census of population” and grants the
Secretary discretion to do so “in such form and content as he may determine” and to “obtain such
other census information as necessary.”94
The Census Act places limits on how the Secretary of Commerce may conduct the census.
Though the Secretary is authorized to “determine the inquires” and to “prepare questionnaires”
for obtaining demographic or other information,95 Section 6(c) of the Census Act instructs the
Secretary to first attempt to obtain such information from federal, state, or local government
administrative sources “[t]o the maximum extent possible” and “consistent with the kind,
timeliness, quality and scope” of the information needed.96 Moreover, to facilitate congressional
oversight, Section 141(f) of the act directs the Secretary to “submit [reports] to the [appropriate]
committees of Congress” (1) identifying the “subjects proposed to be included” and “types of

provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an
implicit delegation to the agency of legislative rule making authority and shall not rely on the gap or ambiguity as a
justification for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question
of law”).
88 Kisor, 139 S. Ct. at 2422-23.
89 Legislative Attorney Benjamin Hayes authored this section.
90 139 S. Ct. 2551 (2019).
91 Id. at 2561-62.
92 U.S. CONST. art. I, § 2, cl. 3; id. amend. XIV, § 2.
93 13 U.S.C. §§ 1-402.
94 Id. § 141(a).
95 Id. § 5.
96 Id. § 6(c).

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information to be compiled”; (2) describing “the questions proposed to be included in [the]
census”; and (3) if “new circumstances exist,” modifying the prior two reports.97
On March 26, 2018, Secretary Ross issued a memorandum stating that the Census Bureau would
add a citizenship question to the 2020 decennial census questionnaire.98 Secretary Ross stated that
he made this decision because the Department of Justice (DOJ) had asked that the citizenship
question be added to the 2020 census to obtain citizenship data that would be used for
enforcement of Section 2 of the Voting Rights Act (VRA).99 In the memorandum, Secretary Ross
explained that he had considered four options in deciding how to respond to DOJ’s request: (A)
not adding the citizenship question; (B) adding the citizenship question; (C) relying solely on
administrative records to obtain citizenship data; and (D) relying on both administrative records
and a citizenship question to obtain citizenship data.100
While the Census Bureau concluded that Option C would produce the most accurate citizenship
information because noncitizens and Hispanics would be less likely to respond to a census
questionnaire including a citizenship question,101 Secretary Ross chose option D.102 He stated that
reliance on administrative records alone was “a potentially appealing solution,” but noted that it
would provide “an incomplete picture” because the Census Bureau did not have a complete set of
administrative records for the entire population.103 In response to concerns that “reinstatement of
the citizenship question . . . would depress response rate[s]” among Hispanics and noncitizens,104
Secretary Ross stated the Department of Commerce had “not [been] able to determine definitively
how inclusion of a citizenship question . . . will impact responsiveness” and determined that, in
any event, “the value of more complete and accurate data derived from surveying the entire
population outweighs such concerns.”105
Secretary Ross’s decision was challenged in federal district courts in California,106 Maryland,107
and New York.108 Two of these courts concluded that the addition of a citizenship question
violated the Enumeration Clause109 of the U.S. Constitution because “its inclusion would
materially harm the accuracy of the census without advancing any legitimate governmental

97 Id. § 141(f).
98 Memorandum of Secretary Wilbur Ross, U.S. Department of Commerce, Reinstatement of a Citizenship Question on

the 2020 Decennial Census Questionnaire (Mar. 26, 2018), https://www.commerce.gov/sites/default/files/2018-0326_2.pdf.
99 Id. at 1. Section 2 of the VRA prohibits voting practices that dilute minority voting power. 52 U.S.C. § 10301; see
Thornburg v. Gingles, 478 U.S. 30, 47-48 (1986). A plaintiff making a “vote dilution” claim must show, among other
things, that the “eligible voters” of a minority group are “sufficiently large and geographically compact to constitute a
majority in a single-member district” capable of electing their candidate of choice. See LULAC v. Perry, 548 U.S. 399,
425, 429 (2006). Because (generally) only citizens may vote, improved citizenship data could theoretically assist with
Section 2 enforcement.
100 Memorandum of Secretary Wilbur Ross, supra note 98, at 2-5.
101 See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2750 (2019); see also id. at 2588-89 (Breyer, J., dissenting).
102 Memorandum of Secretary Wilbur Ross, supra note 98, at 5.
103 Id. at 4.
104 Id. at 5.
105 Id. at 7.
106 See California v. Ross, 358 F. Supp. 3d 965 (N.D. Cal. 2019).
107 See Kravitz v. Dep’t of Commerce, 366 F. Supp. 3d 681 (D. Md. 2019).
108 See New York v. Dep’t of Commerce, 351 F. Supp. 3d 502 (S.D.N.Y. 2019).
109 See supra note 92 and accompanying text.

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interest.”110 Two courts also determined that Secretary Ross violated Sections 6(c) and 141(f) of
the Census Act.111 As to Section 6, those courts found that administrative records alone would
produce more accurate citizenship data than when used in combination with a citizenship
question, and therefore the addition of a citizenship question would violate Section 6(c)’s
directive to rely on administrative records “[t]o the maximum extent possible.”112 The same two
courts also determined that Secretary Ross violated Section 141(f) because he had not included
citizenship as a “subject” in the first report that he submitted to Congress.113 Finally, all three
district courts held that Secretary Ross had violated the APA—the law requiring that agency
action be based on “‘reasoned decisionmaking.’”114 In particular, these courts concluded that
Secretary Ross’s decision was—among other things—contrary to the evidence before him.115
They also determined that the Secretary’s decision was unlawful because his sole stated reason
for adding the citizenship question—providing DOJ with citizenship data for VRA
enforcement—was pretextual.116
Supreme Court’s Decision: Chief Justice Roberts wrote the opinion for the Court in Department
of Commerce v. New York.117 Though this opinion garnered a majority for each issue addressed,
the Justices comprising the majority for each issue varied.
On the merits,118 Chief Justice Roberts—joined by Justices Thomas, Alito, Gorsuch, and
Kavanaugh—concluded that adding a citizenship question to the census did not violate the
Enumeration Clause.119 Noting that the Court’s “interpretation of the Constitution is guided by
Government practice that ‘has been open, widespread, and unchallenged since the early days of
the Republic,’”120 the Court observed that “demographic questions have been asked in every
110 Kravitz, 366 F. Supp. 3d at 751-52; California, 358 F. Supp. 3d at 1046-49.
111 New York, 351 F. Supp. 3d at 636-47; California, 358 F. Supp. 3d at 1037-40; see also Kravitz, 366 F. Supp. 3d at

748-49 (finding an APA violation because Secretary Ross did not “acknowledge or comply with” Section 6(c)).
112 New York, 351 F. Supp. 3d at 636-41; California, 358 F. Supp. 3d at 1037-38.
113 New York, 351 F. Supp. 3d at 641-43; California, 358 F. Supp. 3d at 1038-40. Secretary Ross submitted the first
report required by Section 141(f) prior to DOJ’s request to add a citizenship question. Dep’t of Commerce v. New
York, 139 S. Ct. 2551, 2572 (2019). He submitted the second report required by Section 141(f) after DOJ’s request,
and that report did identify citizenship as a “question.” Id.
114 Dep’t of Commerce, 139 S. Ct. at 2569 (quoting Baltimore Gas & Elec. Co. v. Nat’l Res. Def. Council, Inc., 462
U.S. 87, 105 (1983)). The APA authorizes judicial review of agency action and allows courts to overturn agency action
that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2).
115 New York, 351 F. Supp. 3d at 647-51; California, 358 F. Supp. 3d at 1041-44; Kravitz, 366 F. Supp. 3d at 744-47.
116 New York, 351 F. Supp. 3d at 660-64; California, 358 F. Supp. 3d at 1040, 1044; Kravitz, 366 F. Supp. 3d at 74951.
117 139 S. Ct. 2551 (2019). The Supreme Court agreed to directly review the New York court’s decision—rather than
requiring that it first be reviewed by the Second Circuit—based on the United States’ representation that the census
questionnaire had to be finalized by the end of June 2019. See Dep’t of Commerce v. New York, 139 S. Ct. 953, 953
(2019) (granting certiorari); Brief for Petitioner at 13-14, Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019)
(No. 18-966) (“[T]he government must finalize the decennial questionnaire for printing by end of June 2019.”). After
federal district courts in California and Maryland issued their decisions, both of which found an Enumeration Clause
violation, the Supreme Court ordered the parties in the New York case to also address the Enumeration Clause issue.
See Orders in Pending Cases, No. 18-966, Dep’t of Commerce v. New York (Mar. 15, 2019).
118 The Court began by concluding that the plaintiffs had satisfied Article III’s standing requirements. Dep’t of
Commerce, 139 S. Ct. at 2565-66. The Court also concluded that the Secretary’s decision to add a citizenship question
to the census was reviewable under the APA because it was not “committed to agency discretion by law.” Id. at 256769 (citing 5 U.S.C. § 701(a)).
119 Id. at 2566-67. No member of the Court authored a written dissent with respect to this part of the Court’s opinion.
120 Id. at 2567 (quoting NLRB v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J., concurring in the judgment)).

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census since 1790” and that “questions about citizenship in particular have been asked for nearly
as long.”121 Relying on this “early understanding” and “long practice,” the Court determined that
the Enumeration Clause does not prohibit inquiring about citizenship on the census
questionnaire.122
These same Justices also determined that Secretary Ross’s decision was supported by the
evidence before him and therefore did not violate the APA on that ground.123 The Court ruled that
the Secretary’s decision to rely on both administrative records and a citizenship question to obtain
citizenship data for DOJ was a reasonable exercise of his discretion in light of the available
evidence.124 While the Census Bureau had found that administrative records alone would produce
the most accurate citizenship data, it acknowledged that each option “entailed tradeoffs between
accuracy and completeness,” and that it “was not able to ‘quantify the relative magnitude of the
errors” in each of Options C and D.125 The Court concluded that where the “choice [is] between
reasonable policy alternatives in the face of uncertainty,” the Secretary has discretion to
choose.126
The Court also determined that the Secretary reasonably weighed the costs and benefits of
reinstating the citizenship question, particularly “the risk that inquiring about citizenship would
depress census response rates . . . among noncitizen households.”127 The Court observed that the
Secretary had explained why the “risk[s] w[ere] difficult to assess,” concluding that he had
reasonably “[w]eigh[ed] that uncertainty against the value of obtaining more complete and
accurate citizenship data” through a citizenship question.128 In the end, and “in light of the long
history of the citizenship question on the census,” the Court was unwilling to second-guess the
Secretary’s conclusion as “the evidence before [him] hardly led ineluctably to just one reasonable
course of action.”129
The same Justices also ruled that the Secretary’s decision did not violate the Census Act.130 The
Court first determined, “for essentially the same reasons” underlying its ruling that Secretary
Ross’s decision was supported by the evidence,131 that Secretary Ross reasonably concluded that
relying solely on administrative records to obtain citizenship data “would not . . . provide the
121 Id. at 2566-67.
122 Id. at 2567. The Court also determined that it would not review the addition of a citizenship question under the

standard that it applied to assess “decisions about the population count itself”—asking whether the challenged action
“b[ears] a ‘reasonable relationship to the accomplishment of an actual enumeration.’” Id. at 2566 (quoting Wisconsin v.
City of New York, 517 U.S. 1, 19 (1996)). The Court determined that applying this standard to evaluate the
constitutionality of demographic questions on the census questionnaire “‘would lead to the conclusion that it is
unconstitutional to ask any demographic question on the census’ because ‘asking such questions bears no relationship
whatsoever to the goal of an accurate headcount.’” Id. The Court was thus unwilling to “measure the constitutionality
of the citizenship question by a standard that would seem to render every census since 1790 unconstitutional.” Id. at
2567.
123 Id. at 2569-71.
124 Id. at 2569.
125 Id. at 2569, 2570. While the Census Bureau had stated that it could develop “an accurate model for estimating the
citizenship of the 35 million people for whom administrative records were not available,” that model had not been
developed by the time the Secretary was making his decision. Id. at 2570.
126 Id. at 2570.
127 Id.
128 Id. at 2570, 2571.
129 Id. at 2571.
130 Id. at 2571-73.
131 Id. at 2572.

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more complete and accurate data that DOJ sought.”132 Thus, because administrative records alone
would not supply the “kind,” “quality,” and “scope” of “‘statistics required,’” the Court held that
Secretary Ross had complied with Section 6(c)’s requirement to rely “[t]o the maximum extent
possible” on administrative records.133 The Court also determined that the Secretary complied
with Section 141(f) of the Census Act.134 Though Secretary Ross had not included “citizenship”
as a “subject” in his initial report to Congress, the Court determined that by listing “citizenship”
as a “question” in the second report, the Secretary had adequately “informed Congress that he
proposed to modify the original list of subjects” from his initial report.135
Finally, the Chief Justice—joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—held
that the Secretary’s decision violated the APA because his sole stated reason for adding the
citizenship question to the census questionnaire was not the real reason for his decision.136 The
Court began by reaffirming the “settled proposition[]” that “in order to permit meaningful judicial
review, an agency must ‘disclose the basis’ of its action.”137 Moreover, while acknowledging that
courts normally accept an agency’s stated reason for its action, the Court recognized that courts
may review evidence outside the agency record to probe the justifications of an agency’s decision
when there is a strong showing of bad faith or improper behavior.138
After concluding that it could review the extra-record evidence on which the district court had
relied,139 the Court conducted its own review of the evidence regarding Secretary Ross’s reason
for adding the citizenship question to the census. It began by noting that while the Secretary had
“tak[en] steps to reinstate a citizenship question about a week into his tenure,” there was “no hint
that he was considering VRA enforcement” at that time.140 In addition, the Court observed that
the Department of Commerce had itself gone “to great lengths to elicit the request from DOJ (or
any other willing agency)” to add the citizenship question.141 In the end, “viewing the evidence as
a whole,” the Court concluded that “the decision to reinstate a citizenship question [could not] be
adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the
VRA.”142 Given this “disconnect between the decision made and the explanation given,” the
Court held that the Secretary’s decision violated the APA.143 However, the Court was clear that it
132 Id.
133 Id.; 13 U.S.C. § 6(c).
134 Dep’t of Commerce, 139 S. Ct. at 2572-73.
135 Id. at 2572. The Court also reasoned that any violation “would surely be harmless,” as “the Secretary nonetheless

fully informed Congress of, and explained, his decision.” Id. at 2573.
136 Id. at 2573-76.
137 Id. at 2573 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-69 (1962)).
138 Id. at 2573-74.
139 Id. at 2574. During the district court proceedings, the plaintiffs had argued that the Department of Commerce did not
include all relevant materials in the administrative record, and, as a result, they asked that the district court (1) order the
Department of Commerce to complete the administrative record, and (2) allow extra-record discovery to further explore
whether Secretary Ross’s explanation for adding the citizenship question was pretextual. Id. The district court granted
both requests. Id. Though the Supreme Court ultimately determined that the district court should not have granted
extra-record discovery at the time it did, the Court also concluded that extra-record discovery was justified after the
administrative record had been completed, as the additional materials showed “that the VRA played an insignificant
role in the decisionmaking process.” Id. Thus, the Supreme Court “review[ed] the District Court’s ruling on pretext in
light of all the evidence in the record before the [district] court, including the extra-record discovery.” Id.
140 Id. at 2575.
141 Id.
142 Id.
143 Id.

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was “not hold[ing] that the [Secretary’s] decision . . . was substantively invalid,” but was only
requiring the Secretary to disclose the reason for that decision.144 And to give Secretary Ross that
opportunity, the Court directed the district court to remand the case back to the Department of
Commerce.145
Concurring and Dissenting Opinions: Every Justice (other than Chief Justice Roberts)
dissented from some portion of the Court’s opinion.146 Among the most notable dissents were
those of Justice Thomas and Justice Breyer.147 Justice Thomas—joined by Justices Gorsuch and
Kavanaugh—dissented from the Court’s holding that Secretary Ross’s decision was based on a
pretextual rationale.148 Justice Thomas began by criticizing the majority for relying on evidence
outside the administrative record.149 Under the APA, Justice Thomas explained, judicial review of
an agency decision is generally based on “‘the agency’s contemporaneous explanation’” for its
decision, and courts normally may not invalidate the agency’s action even if it “ha[d] other,
unstated reasons for the decision.”150 Justice Thomas acknowledged that review of extra-record
materials may be permissible upon a showing of bad faith,151 but he disagreed with the Court’s
assessment that this case met that standard.152 Even if review of extra-record materials were
appropriate, Justice Thomas concluded that none of the evidence established that Secretary
Ross’s stated basis for his decision “did not factor at all into [his] decision.”153 In his view, the
evidence showed “at most, that leadership at both the Department of Commerce and DOJ
believed it important—for a variety of reasons—to include a citizenship question on the
census.”154 Finally, Justice Thomas criticized the Court’s decision as being the “the first time the
Court has ever invalidated an agency action as ‘pretextual,’”155 contending that the Court had
“depart[ed] from traditional principles of administrative law.”156
Justice Breyer—joined by Justices Ginsburg, Sotomayor, and Kagan—dissented from the Court’s
conclusion that Secretary Ross’s decision was supported by the evidence before the agency.157
Justice Breyer contended that Secretary Ross inaccurately stated that he was “‘not able to
determine definitively how inclusion of a citizenship question on the decennial census will impact
144 Id. at 2576.
145 Id.
146 Id. at 2576-84 (Thomas, J., joined by Gorsuch and Kavanaugh, JJ., concurring in part and dissenting in part); id. at

2584-95 (Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., concurring in part and dissenting in part); id. at
2596-2606 (Alito, J., concurring in part and dissenting in part).
147 Justice Alito also dissented, but only from the Court’s holding that the Secretary’s decision to add a citizenship
question was reviewable under the APA. Id. at 2596-2606 (Alito, J., concurring in part and dissenting in part). In his
view, the decision of whether to add a citizenship question to the census was a choice “committed to agency discretion
by law”—specifically, the Census Act. Id.; 5 U.S.C. § 701(a)(2). However, assuming Secretary Ross’s decision was
reviewable, Justice Alito stated that he agreed with the Chief Justice’s opinion, with the exception of its conclusion on
pretext. Dep’t of Commerce, 139 S. Ct. at 2606 & n.15 (Alito, J., concurring in part and dissenting in part).
148 Id. at 2576-84 (Thomas, J., concurring in part and dissenting in part).
149 Id. at 2580-81.
150 Id. at 2578, 2579 (Thomas, J., concurring in part and dissenting in part).
151 Id. at 2579.
152 Id. at 2580-81.
153 Id. at 2581 (emphasis omitted).
154 Id. at 2582.
155 Id. at 2583.
156 Id. at 2584.
157 Id. at 2584-95 (Breyer, J., concurring in part and dissenting in part).

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responsiveness.’”158 Specifically, the dissent observed that the experts within the Census Bureau
itself had found that “adding the question would produce a less accurate count because
noncitizens and Hispanics would be less likely to respond to the questionnaire,”159 finding there
was “nothing significant” in the record “to the contrary.”160 Moreover, Justice Breyer criticized
Secretary Ross’s conclusion that the addition of the citizenship question would produce more
complete and accurate data.161 According to Justice Breyer, the administrative record showed that
inclusion of the citizenship question would, for a large segment of the population, “be no
improvement over using administrative records alone,” and for 35 million people, it “would be no
better, and in some respects would be worse, than using [only] statistical modeling.”162 On these
grounds, four Justices concluded that Secretary Ross’s decision was arbitrary and capricious.163
Implications for Congress: The Supreme Court’s decision in Department of Commerce is
significant, both for its immediate impact on the 2020 census and for how it may affect
administrative law more broadly. The Court’s decision barred the Trump Administration from
adding the citizenship question to the 2020 census without disclosing the Secretary’s actual
reason for doing so. Though the Trump Administration initially sought to cure the legal error
identified by Court’s opinion, it ultimately abandoned these efforts and confirmed that a
citizenship question will not be on the 2020 census questionnaire.164 Nonetheless, because the
Court did not deem the addition of a citizenship question “substantively” unlawful, it is possible
that the Department of Commerce could add a citizenship question to a future census
questionnaire, as long as the Secretary of Commerce discloses the actual reasons for doing so.165
Notably, the Trump Administration recently issued an executive order related to the collection of
citizenship data, which, among other things, instructs the Secretary of Commerce to “consider
initiating any administrative process necessary to include a citizenship question on the 2030
decennial census.”166
Separately, the Supreme Court’s decision could lay the groundwork for pretext-based challenges
to agency decisions. The Court’s opinion recognized that while “a court is ordinarily limited to
evaluating the agency’s contemporaneous explanation in light of the existing administrative
record,” it may inquire further into the motive underlying an agency’s action where there is “a
‘strong showing of bad faith or improper behavior.’”167 Though this rule preexisted the Court’s
decision in Department of Commerce, some plaintiffs could view that decision as signaling a
greater receptiveness by the Court to such challenges. This was the view taken by Justice
Thomas, who asserted in his dissenting opinion that the Court’s decision “opened a Pandora’s
box of pretext-based challenges” to agency action because “[v]irtually every significant agency
action is vulnerable to the kinds of allegations the Court credit[ed]” in its opinion.168 Some
158 Id. at 2587.
159 Id.
160 Id. at 2590.
161 Id. at 2590-92.
162 Id. at 2591-92.
163 Id. at 2595.
164 Id. at 2576 (majority opinion); see The White House, Remarks by President Trump on Citizenship and the Census

(July 11, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-citizenship-census/.
165 See Dep’t of Commerce, 139 S. Ct. at 2576.
166 See Exec. Order No. 13880, 84 Fed. Reg. 33,821, 33,825 (July 11, 2019).
167 Dep’t of Commerce, 139 S. Ct. at 2573-74.
168 Id. at 2583 (Thomas, J., concurring in part and dissenting in part).

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commentators have echoed Justice Thomas’s prediction.169 Perhaps responding to Justice
Thomas’s concerns, the Court’s opinion emphasized that judicial inquiry into an agency’s stated
reason for its decision should be “rare,” explaining that this case involved “unusual
circumstances” and was not “a typical case.”170 This limiting language could discourage potential
litigants from raising pretext-based challenges to agency action.171

Redistricting: Rucho v. Common Cause and Lamone v. Benisek172
Partisan gerrymandering, “the drawing of legislative district lines to subordinate adherents of one
political party and entrench a rival party in power,”173 is an issue that has vexed the federal courts
for more than three decades.174 On June 27, 2019, by a 5-to-4 vote, the Supreme Court ruled that
claims of unconstitutional partisan gerrymandering are not subject to federal court review because
they present nonjusticiable political questions, thereby removing the issue from federal courts’
purview.175 In Rucho v. Common Cause and Lamone v. Benisek (hereinafter Rucho), the Court
viewed the Elections Clause176 of the Constitution as solely assigning disputes about partisan
gerrymandering to the state legislatures, subject to a check by the U.S. Congress.177 Moreover, in
contrast to one-person, one-vote and racial gerrymandering claims, the Court determined that no
test exists for adjudicating partisan gerrymandering claims that is both judicially discernible and
manageable.178 However, the Court suggested that Congress, as well as state legislatures, could
play a role in regulating partisan gerrymandering going forward.179
Background: Prior to the 1960s, the Supreme Court had determined that challenges to
redistricting plans presented nonjusticiable political questions that were most appropriately
addressed by the political branches of government, not the judiciary.180 In 1962, however, in the
landmark ruling of Baker v. Carr, the Court held that a constitutional challenge to a redistricting
plan is justiciable, identifying factors for determining when a case presents a nonjusticiable
political question, including “a lack of [a] judicially discoverable and manageable standard[] for
resolving it.”181 Since then, while invalidating redistricting maps on equal protection grounds for
169 See, e.g., Chris Walker, What the Census Case Means for Administrative Law: Harder Look Review?, 36 YALE J. ON

REG.: NOTICE & COMMENT (June 27, 2019), https://yalejreg.com/nc/what-the-census-case-means-for-administrativelaw-harder-look-review/.
170 Dep’t of Commerce, 139 S. Ct. at 2575-76.
171 See Nicholas Bronni, Census Symposium: Unusual Facts Make for Unusual Decisions, SCOTUSBLOG (Jun. 28,
2019, 11:51 AM), https://www.scotusblog.com/2019/06/census-symposium-unusual-facts-make-for-unusual-decisions/
(“[T]he court’s analysis underscores just how hard it is to justify [examining an agency’s motives] because there will
rarely be such an extraordinarily extensive administrative record. Indeed, it’s highly unlikely ‘these unusual
circumstances’ will exist again.”).
172 Legislative Attorney L. Paige Whitaker authored this section.
173 Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015).
174 See, e.g., Davis v. Bandemer, 478 U. S. 109, 116-117 (1986) (plurality opinion) (holding that the case was
justiciable, but splintering as to the proper standard to apply with respect to partisan gerrymandering claims).
175 See Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
176 U.S. CONST. art. I, sec. 4, cl. 1.
177 See Rucho, 139 S. Ct. at 2496.
178 See id. at 2501.
179 See id. at 2508.
180 See, e.g., Colegrove v. Green, 328 U.S. 549, 556 (1946) (“To sustain this action would cut very deep into the very
being of Congress. Courts ought not to enter this political thicket.”).
181 369 U.S. 186, 217 (1962).

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other reasons—based on inequality of population among districts or one-person, one-vote and as
racial gerrymanders—the Court has not nullified a map because of partisan gerrymandering.182
In part, the Court has been reluctant to invalidate redistricting maps as impermissibly partisan
because redistricting has traditionally been viewed as an inherently political process.183 Moreover,
critics of federal court adjudication of partisan gerrymandering claims have argued that such
lawsuits would open the floodgates of litigation and that it would be judicially difficult to police
because it is unclear how much partisanship in redistricting is too much.184 On the other hand,
critics of this view have argued that extreme partisan gerrymandering is “incompatible with
democratic principles”185 by entrenching an unaccountable political class in power with the aid of
modern redistricting software—using “pinpoint precision” to maximize partisanship—thereby
necessitating some role by the unelected judiciary.186
In earlier cases presenting a claim of unconstitutional partisan gerrymandering, the Court left
open the possibility that such claims could be judicially reviewable, but did not ascertain a
discernible and manageable standard for adjudicating such claims.187 In those rulings, Justice
Kennedy cast the deciding vote, leaving open the possibility that claims could be held justiciable
in some future case, under a yet-to-be-determined standard.188 Last year, the Supreme Court
considered claims of partisan gerrymandering raising nearly identical questions to those in Rucho,
but ultimately issued narrow rulings on procedural grounds specific to those cases.189 Rucho
marked the first opinion on partisan gerrymandering since Justice Kennedy left the Court.
Prior to the Supreme Court’s consideration, three-judge federal district courts in North Carolina
and Maryland invalidated congressional districts as unconstitutional partisan gerrymanders under
standards they viewed to be judicially discernible and manageable.190 In the North Carolina case,
the court determined that a redistricting map violates the Equal Protection Clause as an
unconstitutional partisan gerrymander when (1) the map drawer’s predominant intent was to
entrench a specific political party’s power; (2) the resulting dilution of voting power by the
182 For discussion of Supreme Court’s redistricting case law addressing inequality of population among districts and

racial gerrymandering, see CRS Report R44798, Congressional Redistricting Law: Background and Recent Court
Rulings, by L. Paige Whitaker.
183 See Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy, J., concurring) (“A decision ordering the correction of
all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented
intervention in the American political process.”).
184 See Davis v. Bandemer, 478 U. S. 109, 133 (1986) (“Inviting attack on minor departures from some supposed norm
would too much embroil the judiciary in second-guessing what has consistently been referred to as a political task for
the legislature, a task that should not be monitored too closely unless the express or tacit goal is to effect its removal
from legislative halls.”).
185 Vieth, 541 U.S. at 292.
186 Gill v. Whitford, 138 S. Ct. 1916, 1941 (2018) (Kagan, J., concurring).
187 See Vieth, 541 U.S. at 305-06; League of United Latin Am. Citizens (LULAC) v. Perry 548 U.S. 399, 423 (2006).
188 See Vieth, 541 U.S. at 306 (Kennedy, J., concurring); LULAC, 548 U.S. at 492-511 (Roberts, C.J., concurring in
part, concurring in the judgment in part, & dissenting in part, joined by Alito, J.).
189 See Gill, 138 S. Ct. at 1933 (holding that to establish standing to sue for a claim of unconstitutional partisan
gerrymandering on the basis of vote dilution, challengers must allege injuries to their interests as voters in individual
districts); Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (per curiam) (holding that a district court did not abuse its
discretion by denying a preliminary injunction to challengers claiming that a Maryland congressional district was an
unconstitutional partisan gerrymander). See also CRS Legal Sidebar LSB10164, Partisan Gerrymandering: Supreme
Court Provides Guidance on Standing and Maintains Legal Status Quo, by L. Paige Whitaker.
190 For further discussion of the lower court rulings in this case, see CRS Legal Sidebar LSB10276, Supreme Court
Once Again Considers Partisan Gerrymandering: Implications and Legislative Options, by L. Paige Whitaker.

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disfavored party was likely to persist in later elections; and (3) the discriminatory effects were not
attributable to other legitimate interests.191 Further, the court determined that a partisan
gerrymandered map may violate provisions in Article I requiring “the People” to select their
representatives and limiting the states to determining only “neutral provisions” regarding the
“Times, Places, and Manner of holding Elections.”192 Both courts concluded that a redistricting
map violates the First Amendment if the challengers demonstrate that (1) the map drawers
specifically intended to disadvantage voters based on their party affiliation and voting history;
(2) the map burdened voters’ representational and associational rights; and (3) the map drawers’
intent to burden certain voters caused the “adverse impact.”193 Under a provision of federal law
providing for direct appeals to the Supreme Court in cases challenging the constitutionality of
redistricting maps, North Carolina legislators and Maryland officials appealed to the Supreme
Court.194
Supreme Court’s Decision: In Rucho, the Supreme Court held that, based on the political
question doctrine, federal courts lack jurisdiction to resolve claims of unconstitutional partisan
gerrymandering, vacating and remanding the North Carolina and Maryland lower court rulings
with instructions to dismiss for lack of jurisdiction.195 In an opinion written by Chief Justice
Roberts, the Court began by addressing the Framers’ views on gerrymandering.196 According to
the majority opinion, at the time of the Constitution’s drafting and ratification, the Framers were
well familiar with the controversies surrounding the practice of partisan gerrymandering.197 “At
no point” during the Framers’ debates, the Court observed, “was there a suggestion that the
federal courts had a role to play.”198 Instead, the Chief Justice viewed the Elections Clause as a
purposeful assignment of disputes over partisan gerrymandering to the state legislatures, subject
to a check by the U.S. Congress.199 In this vein, the Court noted that Congress has in fact
exercised its power under the Elections Clause to address partisan gerrymandering on several
occasions, such as by enacting laws to require single-member and compact districts.200
Nonetheless, the Court acknowledged that there are two areas relating to redistricting where the
Court has a unique role in policing the states—claims relating to (1) inequality of population
among districts or “one-person, one-vote” and (2) racial gerrymandering.201 However, the Court
distinguished those claims from claims of unconstitutional partisan gerrymandering, reasoning
that while judicially discernible and manageable standards exist for adjudicating claims relating
to one-person, one-vote and racial gerrymandering, partisan gerrymandering cases “have proved
far more difficult to adjudicate.”202 This difficulty stems from the fact, the Court explained, that
while it is illegal for a redistricting map to violate the one-person, one-vote principle or to engage
191 See Common Cause v. Rucho, 318 F. Supp. 3d 777, 861 (M.D.N.C. 2018).
192 Id. at 937-38.
193 Common Cause, 318 F. Supp. 3d at 929; Benisek v. Lamone, 348 F. Supp. 3d 493, 515 (D. Md. 2018).
194 28 U.S.C. § 1253.
195 See Rucho v. Common Cause, 139 S. Ct. 2484, 2508 (2019).
196 See id. at 2494-96.
197 See id. at 2494-95. Providing an example, the Court referenced the first congressional election cycle where George

Washington and his Federalist allies accused Patrick Henry of attempting to gerrymander Virginia districts. See id.
198 Id. at 2496.
199 See id.
200 See id. at 2495.
201 See id. at 2496-97.
202 Id. at 2497.

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in racial discrimination, at least some degree of partisan influence in the redistricting process is
inevitable and, as the Court has recognized, permissible.203 Hence, according to the Court, the
challenge has been to identify a standard for determining how much partisan gerrymandering is
“too much.”204
The Chief Justice’s opinion focused on three concerns regarding what he viewed as the central
argument for federal adjudication of partisan gerrymandering claims: “an instinct” that if a
political party garners a certain share of a statewide vote, as a matter of fairness, courts need to
ensure that the party also holds a proportional number of seats in the legislature.205 First, the
Court stated that this expectation “is based on a norm that does not exist in our electoral
system.”206 For example, noting her extensive experience in state and local politics, the Court
quoted Justice O’Connor’s 1986 concurrence that maintained that “[t]he opportunity to control
the drawing of electoral boundaries through the legislative process of apportionment is a critical
and traditional part of politics in the United States.”207 Furthermore, the Rucho Court observed
that the nation’s long history of states electing their congressional representatives through
“general ticket” or at-large elections typically resulted in single-party congressional
delegations.208 As a result, the Chief Justice explained, for an extended period of American
history, a party could achieve nearly half of the statewide vote, but not hold a single seat in the
House of Representatives, suggesting that proportional representation was not a value protected
by the Constitution.209 Second, even if proportional representation were a constitutional right,
determining how much representation political parties “deserve,” based on each party’s share of
the vote, would require courts to allocate political power, a power to which courts are, in the view
of the majority, not “equipped” to exercise.210 For the Court, resolving questions of fairness
presents “basic questions that are political, not legal.”211 Third, even if a court could establish a
standard of fairness, the Court determined that there is no discernible and manageable standard
for identifying when the amount of political gerrymandering in a redistricting map meets the
threshold of unconstitutionality.212
In so concluding, the Supreme Court rejected the tests that the district courts adopted in
ascertaining unconstitutional partisan gerrymandering in North Carolina and Maryland.213 As to
the North Carolina case, the Court criticized the “predominant intent” prong of the test adopted
by the district court in holding the map in violation of the Equal Protection Clause. 214 As the
Chief Justice explained, although this inquiry is proper in the context of racial gerrymandering
claims because drawing district lines based predominantly on race is inherently suspect, it does
not apply in the context of partisan gerrymandering where some degree of political influence is
203 See id.
204 Id. at 2501.
205 Id. at 2499.
206 Id.
207 Id. at 2498 (quoting Davis v. Bandemer, 478 U. S. 109, 145 (O’Connor, J., concurring)).
208 Id. at 2499.
209 See id. For example, the Court observed that in 1840, although the Whig Party in Alabama won 43% of the

statewide vote, it did not receive a single seat. See id.
210 Id.
211 Id. at 2498.
212 See id. at 2500.
213 See id. at 2502-05.
214 Id. at 2502-03.

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permissible.215 Moreover, responding to the aspect of the test requiring challengers to demonstrate
that partisan vote dilution “is likely to persist,” the Court concluded that it would require courts to
“forecast with unspecified certainty whether a prospective winner will have a margin of victory
sufficient to permit him to ignore the supporters of his defeated opponent.”216 That is, according
to the Court, judges under this test would “not only have to pick the winner—they have to beat
the point spread.”217 The Court also disapproved of the test the district courts adopted in both the
North Carolina and Maryland cases in holding that the maps violated the First Amendment’s
guarantee of freedom to associate.218 As a threshold matter, the Court determined that the subject
redistricting plans do not facially restrict speech, association, or any other First Amendment
guarantees, as voters in diluted districts remain free to associate and speak on political matters.219
More directly, the Court concluded that under the premise that partisan gerrymandering
constitutes retaliation because of an individual’s political views, “any level of partisanship in
districting would constitute an infringement of their First Amendment rights.”220 As a
consequence, the Court viewed the First Amendment standard as failing to provide a manageable
approach for determining when partisan activity has gone too far.221 In addition, the Court
rejected North Carolina’s reliance on Article I of the Constitution as the basis to invalidate a
redistricting map, concluding that the text of the Constitution provided no enforceable limit for
considering partisan gerrymandering claims.222
Nonetheless, Chief Justice Roberts acknowledged that excessive partisan gerrymandering
“reasonably seem[s] unjust,” stressing that the ruling “does not condone” the practice.223
However, he maintained that the Court cannot address the problem simply “because it must,”
viewing any solutions to extreme partisan gerrymandering to lie with Congress and the states, not
the courts.224 Characterizing the dissent and the challengers’ request that the Court ascertain a
standard for adjudication as seeking “an unprecedented expansion of judicial power,” the Chief
Justice cautioned that such an “intervention would be unlimited in scope and duration . . .
recur[ring] over and over again around the country with each new round of redistricting.”225
Instead, he observed that many states have constitutional provisions and laws providing standards
for state courts to address excessive partisan gerrymandering, which have been invoked with
successful results.226 Furthermore, citing examples of past and pending federal legislation, the
Court reiterated that “the Framers gave Congress the power to do something about partisan
gerrymandering in the Elections Clause.”227
Dissenting Opinion: Justice Kagan wrote a dissent on behalf of four Justices arguing that the
Court has the power to establish a standard for adjudicating unconstitutionally excessive partisan
215 See id.
216 Id. at 2503.
217 Id.
218 See id. at 2504-05.
219 See id. at 2504.
220 Id.
221 See id.
222 See id. at 2506.
223 Id. at 2506-07.
224 Id. at 2507.
225 Id.
226 See id. at 2507-08.
227 Id. at 2508.

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gerrymandering and that its “abdication” in Rucho “may irreparably damage our system of
government.”228 According to the dissent, the standards proposed by the challengers and the lower
courts are not “unsupported and out-of-date musings about the unpredictability of the American
voter,” but instead are “evidence-based, data-based, statistics-based.”229 Moreover, responding to
the Court’s suggestion that Congress and the states have the power to ameliorate excessive
partisan gerrymandering, the dissent maintained that the prospects for legislative reform are poor
because the legislators who currently hold power as a result of partisan gerrymandering are
unlikely to promote change.230 Instead, for the dissent, the solution to what they viewed as a crisis
of the political process is a means to challenge extreme partisan gerrymandering outside of that
process, through the unelected federal judiciary.231
Implications for Congress: As a result of Rucho, federal courts lack subject-matter jurisdiction
to resolve claims of unconstitutional partisan gerrymandering.232 However, Rucho suggests that
Congress and the states may have the power to address extreme partisan gerrymandering should
they so choose.233 For example, as observed by the Court, several bills that take various
approaches to address partisan gerrymandering have been introduced in the 116th Congress.234
For example, H.R. 1, the For the People Act of 2019, which passed the House of Representatives
on March 8, 2019, would eliminate legislatures from the redistricting process and require each
state to establish a nonpartisan, independent congressional redistricting commission, in
accordance with certain criteria.235 H.R. 44, the Coretta Scott King Mid-Decade Redistricting
Prohibition Act of 2019, would prohibit states from carrying out more than one congressional
redistricting following a decennial census and apportionment, unless a state is ordered by a court
to do so in order to comply with the Constitution or to enforce the Voting Rights Act of 1965.236
(At least one scholar has argued that limiting redistricting to once per decade renders it “less
likely that redistricting will occur under conditions favoring partisan gerrymandering.”)237 H.R.
131, the Redistricting Transparency Act of 2019, would, based on the view that public oversight
of redistricting may lessen partisan influence in the process, require state congressional
redistricting entities to establish and maintain a public internet site and conduct redistricting
under procedures that provide opportunities for public participation.238 Notably, the Court in
Rucho specifically stated that it expressed “no view” on any pending proposals, but observed
“that the avenue for reform established by the Framers, and used by Congress in the past, remains
open.”239
With regard to the states, Rucho does not preclude state courts from considering such claims
under applicable state constitutional provisions. For example, in 2015, the Florida Supreme Court
invalidated a Florida congressional redistricting map as violating a state constitutional provision
228 Id. at 2509 (Kagan, J., dissenting).
229 Id. at 2519.
230 See id. at 2524.
231 See id. at 2525.
232 See id. at 2508 (majority opinion).
233 See id. at 2507-08.
234 See id. at 2508.
235 For the People Act of 2019, H.R. 1, 116th Cong. §§ 2411-2413 (2019).
236 Coretta Scott King Mid-Decade Redistricting Prohibition Act of 2019, H.R. 44, 116th Cong. § 2 (2019).
237 See Adam Cox, Commentary: Partisan Fairness and Redistricting Politics, 79 N.Y.U.L. REV. 751, 755 (2004).
238 Redistricting Transparency Act of 2019, H.R. 131, 116th Cong. §§ 2-6 (2019).
239 See Rucho, 139 S. Ct. at 2508.

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addressing partisan gerrymandering.240 Similarly, in 2018, the Pennsylvania Supreme Court
struck down the state’s congressional redistricting map under a Pennsylvania constitutional
provision.241 Looking ahead, as a result of Rucho, such state remedies, coupled with any
congressional action, will likely be the primary means for regulating excessive partisan influence
in the redistricting process.

First Amendment
Religious Displays: American Legion v. American Humanist
Association242
In American Legion v. American Humanist Association, the Supreme Court held that the
Bladensburg Peace Cross, a public World War I memorial in the form of a Latin cross, did not
violate the First Amendment’s Establishment Clause.243 A divided Court also limited the
applicability of Lemon v. Kurtzman,244 a long-standing—but often-questioned245—precedent that
had previously supplied the primary standard for evaluating Establishment Clause claims.246
However, the separate opinions from the Court gave rise to a number of significant questions. In
particular, there was no single majority opinion agreeing on what test should apply in future
Establishment Clause claims.247 Further, the Court left open the possibility that the Lemon test,
and the specific considerations it suggests courts should take into account, may continue to
govern certain types of Establishment Clause challenges.248
Background: The First Amendment’s Establishment Clause provides that the government “shall
make no law respecting an establishment of religion.”249 The Court has long interpreted this
requirement to require the government to be “neutral” toward religion—but over the years, the
Supreme Court has employed a variety of different inquiries to determine whether challenged
government practices are sufficiently neutral.250 In Lemon, decided in 1971, the Court synthesized
240 See League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 413-14 (Fla. 2015).
241 See League of Women Voters of Pa. v. Commonwealth, 175 A. 3d 282, 284 (Pa. 2018) (per curiam).
242 Legislative Attorney Valerie Brannon authored this section.
243 139 S. Ct. 2067, 2074 (2019).
244 403 U.S. 602, 612–13 (1971).
245 See, e.g., Am. Legion, 139 S. Ct. at 2080 (plurality opinion) (citing cases where the Supreme Court “has either

expressly declined to apply the [Lemon] test or has simply ignored it”); Van Orden v. Perry, 545 U.S. 677, 685 (2005)
(plurality opinion) (stating that Lemon is “not useful” in analyzing a “passive monument”); Lee v. Weisman, 505 U.S.
577, 644 (1992) (Scalia, J., dissenting) (describing Lemon as a “formulaic abstraction[]” that is inconsistent with “our
long-accepted constitutional traditions”); Wallace v. Jaffree, 472 U.S. 38, 108–10 (1985) (Rehnquist, J., dissenting)
(arguing that Lemon is theoretically and practically flawed).
246 See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 668 (2002) (O’Connor, J., concurring) (describing Lemon as “a
central tool” in Establishment Clause analysis); Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th Cir. 2012) (stating
Lemon is the prevailing test for Establishment Clause claims); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007,
1017 (9th Cir. 2010) (same); Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 344 (5th Cir. 1999) (same).
247 Cf., e.g., Am. Legion, 139 S. Ct. at 2389 (plurality opinion).
248 Cf. id. at 2097 (Thomas, J., concurring in the judgment) (explaining that he did not join the plurality opinion
because it did not “overrule the Lemon test in all contexts”).
249 U.S. CONST. amend. I. The First Amendment was “made applicable to the states” by the Fourteenth Amendment.
Everson v. Bd. of Educ., 330 U.S. 1, 5 (1947).
250 See, e.g., McCreary Cty. v. ACLU, 545 U.S. 844, 860 (2005) (“When the government acts with the ostensible and
predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious

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its prior Establishment Clause decisions into a three-part test, saying that to be considered
constitutional, government action (1) “must have a secular legislative purpose”; (2) must have a
“principal or primary effect . . . that neither advances nor inhibits religion”; and (3) “must not
foster an excessive government entanglement with religion.”251
However, the Court has not always applied the Lemon test to analyze Establishment Clause
challenges.252 For instance, in cases evaluating the constitutionality of government-sponsored
prayer before legislative sessions, the Court has asked whether the disputed prayer practice “is
supported by this country’s history and tradition.”253 The Court has also adopted variations on
Lemon, most notably using an “endorsement” test254 that asks “whether the challenged
governmental practice either has the purpose or effect of ‘endorsing’ religion.”255 Thus, in 2018,
Justice Thomas said that the Court’s “Establishment Clause jurisprudence is in disarray.”256
Justice Thomas and other Justices have argued that the Court should abandon Lemon and instead
adopt a single approach to interpreting the Clause—one that can be applied consistently.257
The Court’s divergent approaches to evaluating Establishment Clause claims were apparent in
two cases, issued on the same day in 2005, that involved government-sponsored displays
containing religious symbols. In the first case, McCreary County v. ACLU, the Court applied the
Lemon test and held that Ten Commandments displays in two Kentucky courthouses likely
violated the Establishment Clause.258 In the second, Van Orden v. Perry, a plurality of the Court
argued that like legislative prayers, religious displays should be evaluated primarily by reference
to “our Nation’s history.”259 Justice Breyer concurred in the Court’s judgment in Van Orden,
providing the fifth vote to uphold a Ten Commandments display on the grounds of the Texas State

neutrality . . . .”); Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (describing factors that render “a government
aid program . . . neutral with respect to religion” and “not readily subject to challenge under the Establishment
Clause”); Everson, 330 U.S. at 18 (1947) (“[The First] Amendment requires the state to be a neutral in its relations with
groups of religious believers and non-believers . . . .”).
251 403 U.S. 602, 612–13 (1971).
252 See, e.g., Van Orden v. Perry, 545 U.S. 677, 685–86 (2005) (plurality opinion) (“Over the last 25 years, we have
sometimes pointed to Lemon v. Kurtzman as providing the governing test in Establishment Clause challenges. Yet, just
two years after Lemon was decided, we noted that the factors identified in Lemon serve as ‘no more than helpful
signposts.’” (quoting Hunt v. McNair, 413 U.S. 734, 741 (1973)) (citations omitted)); Lynch v. Donnelly, 465 U.S.
668, 679 (1984) (noting the Court’s “unwillingness to be confined to any single test or criterion in this sensitive area”).
253 Rowan Cty. v. Lund, 138 S. Ct. 2564, 2564–65 (2018) (Thomas, J., dissenting from denial of certiorari) (citing
Town of Greece v. Galloway, 572 U.S. 565 (2014), and Marsh v. Chambers, 463 U.S. 783 (1983)).
254 In Lynch v. Donnelly, Justice O’Connor wrote a concurring opinion saying that Lemon’s first prong “asks whether
government’s actual purpose is to endorse or disapprove of religion,” while the second “asks whether, irrespective of
government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” 465
U.S. 668, 690 (1984) (O’Connor, J., concurring). The Court as a whole later employed this “endorsement” analysis in a
number of decisions. E.g., Allegheny Cty. v. ACLU, 492 U.S. 573, 592–93 (1989) (describing decisions).
255 Allegheny Cty., 492 U.S. at 592.
256 Rowan Cty., 138 S. Ct. at 2564. See also, e.g., Kondrat’Yev v. City of Pensacola, 903 F.3d 1169, 1179 (11th Cir.
2018) (“The Court’s Establishment Clause jurisprudence is, to use a technical legal term of art, a hot mess.”).
257 See, e.g., Van Orden v. Perry, 545 U.S. 677, 692–93 (2005) (Thomas, J., concurring) (“This case would be easy if
the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause
challenges, and return to the original meaning of the Clause.”); supra note 245.
258 See McCreary Cty. v. ACLU, 545 U.S. 844, 871 (2005); see also id. at 861–63 (defending the continued use of the
“purpose” prong of Lemon test).
259 See Van Orden v. Perry, 545 U.S. 677, 685 (2005) (plurality opinion) (holding that a Ten Commandments display
did not violate the Establishment Clause under an analysis “driven both by the nature of the monument and by our
Nation’s history”).

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Capitol.260 Justice Breyer stated that that while he believed the particular monument did “satisfy
[the] Court’s more formal Establishment Clause tests,” including Lemon, his view of the case was
also driven by a number of other factors, including the monument’s history and physical
setting.261 In particular, he emphasized that the monument had gone legally unchallenged for 40
years.262 Under the circumstances, Justice Breyer argued that removing or altering the monument
would likely be “divisive” in a way that the monument itself was not, exhibiting “a hostility
toward religion that has no place in our Establishment Clause traditions.”263
The plaintiffs in American Legion argued that Maryland violated the Establishment Clause by
maintaining a war memorial known as the Bladensburg Peace Cross.264 The monument is a 32foot Latin cross that sits on a large base containing a plaque with the names of 49 Prince George’s
County soldiers who died in World War I.265 The Fourth Circuit had agreed with the challengers
and held that after looking to the Lemon test and giving “due consideration” to the “factors” set
forth in Justice Breyer’s Van Orden concurrence, the memorial violated the First Amendment.266
Supreme Court’s Decision: The Supreme Court reversed the Fourth Circuit’s decision.267 But
while seven Justices ultimately approved of the Peace Cross, they did so in six different
opinions,268 reflecting disagreement about how, exactly, to resolve the case. Justice Alito wrote
the opinion for the American Legion Court, although certain portions of that opinion represented
only a plurality. Writing for five members of the Court, Justice Alito’s majority opinion relied on
some of the factors highlighted by Justice Breyer’s concurring opinion in Van Orden—namely,
the fact that this particular monument had “stood undisturbed for nearly a century” and had
“acquired historical importance” to the community.269 The Court acknowledged that the cross is a
Christian symbol, but viewed the symbol as taking on “an added secular meaning when used in
World War I memorials.”270 Under these circumstances, the Court concluded that requiring the
state to “destroy[] or defac[e]” the Peace Cross “would not be neutral” with respect to religion
“and would not further the ideals of respect and tolerance embodied in the First Amendment.”271
Concurring and Dissenting Opinions: A different majority of Justices voted to limit the
applicability of the Lemon test—although no five Justices agreed just how far to limit Lemon.
Justice Alito, writing for a four-Justice plurality,272 suggested that “longstanding monuments,
260 Id. at 705 (Breyer, J., concurring in the judgment).
261 Id. at 701–03. Justice Breyer said that while Lemon’s three prongs might “provide useful guideposts,” he believed

that in the “fact-intensive” application of the Establishment Clause, there could be “no test-related substitute for the
exercise of legal judgment.” Id. at 700.
262 Id. at 702.
263 Id. at 703–04.
264 Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019).
265 Id. at 2077.
266 Am. Humanist Ass’n v. Md.-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195, 212 (4th Cir. 2017).
267 Am. Legion, 139 S. Ct. at 2074.
268 Justices Breyer, Kagan, and Kavanaugh each filed concurring opinions, while Justices Thomas and Gorsuch filed
opinions concurring in the judgment only.
269 Am. Legion, 139 S. Ct. at 2089–90.
270 Id. at 2089.
271 Id. at 2090.
272 Justice Kagan declined to join this portion of the opinion. Id. at 2094 (Kagan, J., concurring in part). While she
“agree[d] that rigid application of the Lemon test does not solve every Establishment Clause problem,” she defended
Lemon’s first two prongs, stating, “that test’s focus on purposes and effects is crucial in evaluating government action
in this sphere.” Id.

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symbols, and practices” should not be evaluated under Lemon,273 but should instead be considered
constitutional so long as they “follow in” a historical “tradition” of religious accommodation.274
Justices Thomas and Gorsuch wrote separate concurrences disapproving of Lemon more
generally.275 Justice Thomas argued that the Court should “overrule the Lemon test in all
contexts”276 and instead analyze Establishment Clause claims by reference to historical forms of
“coercion.”277 Justice Gorsuch viewed Lemon as a “misadventure,” expressing concerns about
that test and suggesting instead that the Court should look to historical practice and traditions in
Establishment Clause challenges.278 Therefore, it appears that Lemon will no longer be used to
assess the constitutionality of “longstanding monuments, symbols, and practices.”279
Justice Ginsburg dissented, joined by Justice Sotomayor. She stressed the cross’s religious nature,
observing that it has become a marker for Christian soldiers’ graves “precisely because” the cross
symbolizes “sectarian beliefs.”280 Her analysis did not expressly invoke the three-part Lemon test,
but applied the “endorsement” test developed from Lemon, asking whether the display conveyed
“a message that religion or a particular religious belief is favored or preferred.”281 Looking to the
memorial’s nature and history, Justice Ginsburg believed that the Peace Cross did convey a
message of endorsement.282 Ultimately, she concluded that by maintaining the monument, the
state impermissibly “elevate[d] Christianity over other faiths, and religion over nonreligion.”283
Implications for Congress: While American Legion was ostensibly concerned with the
constitutionality of a single monument, the Court’s decision raises a number of questions
273 Id. at 2081–82 (plurality opinion); see also id. at 2081 (“[T]he Lemon test presents particularly daunting problems in

cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes,
of words or symbols with religious associations.”). In his separate opinion, Justice Gorsuch expressed practical and
theoretical concerns about presuming that “longstanding monuments, symbols, and practices” are constitutional, stating
that both old and new practices should be assessed for their “compliance with ageless principles.” Id. at 2102 (Gorsuch,
J., concurring in the judgment) (emphasis added).
274 Id. at 2089 (plurality opinion). Justice Breyer joined this portion of the opinion. But while he agreed that “the Court
appropriately ‘looks to history for guidance,’” he emphasized in a separate opinion that he did not understand the
majority “to adopt a ‘history and tradition test’ that would permit any newly constructed religious memorial on public
land” to stand regardless of the monument’s “particular historical context.” Id. at 2091 (Breyer, J., concurring)
(citations omitted).
275 Justice Kavanaugh joined the plurality but also wrote separately to state his belief that Lemon “does not explain the
Court’s decisions” in Establishment Clause cases, suggesting that instead, the cases have looked to “principles based on
history, tradition, and precedent.” Id. at 2092, 2093 (Kavanaugh, J., concurring).
276 Id. at 2097 (Thomas, J., concurring in the judgment).
277 Id. at 2096. In his view, the display of the Peace Cross did not share “any of the historical characteristics of an
establishment of religion” because the state did not attempt “to control religious doctrine or personnel, compel religious
observance, single out a particular religious denomination for exclusive state subsidization, or punish dissenting
worship.” Id.
278 Id. at 2101–02 (Gorsuch, J., concurring in the judgment). While Justice Gorsuch expressed concerns about the
substance of the Lemon test, his primary objections to the decision were based on procedural grounds. See id. at 2102–
03. He argued that the plaintiff in Lemon, and any other plaintiffs alleging that they were “offended” by observing
religious displays, lacked standing to assert their claims. Id. at 2100–01.
279 Id. at 2081–82 (plurality opinion). The plurality opinion is narrower than the concurring opinions because it would
only have partially limited Lemon, likely making it controlling in the future. See Marks v. United States, 430 U.S. 188,
193 (1977) (explaining that when “no single rationale explaining the result [of a case] enjoys the assent of five
Justices,” the position representing the narrowest grounds is the holding of the Court).
280 American Legion, 139 S. Ct. at 2104 (Ginsburg, J., dissenting).
281 Id. at 2105 (quoting Allegheny Cty., 492 U.S. at 593) (internal quotation mark omitted).
282 Id. at 2106–07.
283 Id. at 2104.

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regarding future interpretations of the Establishment Clause. First, while the plurality opinion said
that “monuments, symbols, and practices with a longstanding history” should now be evaluated
by reference to historical practices rather than the Lemon test, it is not clear what qualifies as a
long-standing symbol or practice.284 Further, it is unclear whether the historical practice test will
apply outside of the context of challenges to monuments or legislative prayer. Indeed, two of the
Justices who joined the plurality opinion—Justices Breyer and Kavanaugh—wrote separate
opinions suggesting that other factors in addition to historical practice may be relevant to
evaluating Establishment Clause challenges.285 More broadly, however, regardless of the
particular test employed, the opinions in American Legion suggest that the Roberts Court may be
adopting a view of the Establishment Clause that is more accommodating of government
sponsorship of religious displays and practices—even where those practices are aligned with a
particular religion.286 Given that a majority of Justices agreed in American Legion that at least
with respect to government use of religious symbols, “[t]he passage of time gives rise to a strong
presumption of constitutionality,”287 it seems likely that courts will view Establishment Clause
challenges to long-standing monuments with significant skepticism moving forward.288

Separation of Powers
Nondelegation Doctrine: Gundy v. United States289
In affirming the petitioner’s conviction for violating the Sex Offender Registration and
Notification Act (SORNA), a divided Supreme Court in Gundy v. United States upheld the
constitutionality of Congress’s delegated authority to the U.S. Attorney General to apply
registration requirements to offenders convicted prior to SORNA’s enactment.290 In a plurality
opinion written on behalf of four Justices, Justice Kagan concluded that SORNA’s delegation
“easily passes constitutional muster” and was “distinctively small-bore” when compared to the
other broad delegations the Court has upheld since 1935.291 Justice Gorsuch’s dissent, joined by
Chief Justice Roberts and Justice Thomas, highlighted an emerging split on the Court’s approach
in reviewing authority Congress delegates to another branch of government.292 Providing the fifth
vote to affirm Gundy’s conviction, Justice Alito concurred in the judgment only, declining to join
Justice Kagan’s opinion and indicating his willingness to rethink the Court’s approach to the
284 Id. at 2089 (plurality opinion).
285 See id. at 2090–91 (Breyer, J., concurring) (reiterating that “there is no single formula for resolving Establishment

Clause challenges” and outlining relevant factual circumstances); id. at 2093, n* (Kavanaugh, J., concurring) (outlining
factors that create a “safe harbor” for government actions but stating that other factors may come into play).
286 See id. at 2090 (majority opinion) (“The cross is undoubtedly a Christian symbol, but that fact should not blind us to
everything else that the Bladensburg Cross has come to represent.”); see also Town of Greece v. Galloway, 572 U.S.
565, 578 (2014) (“An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with
the tradition of legislative prayer outlined in the Court’s cases.”).
287 Am. Legion, 139 S. Ct. at 2085 (majority opinion).
288 At least one federal court of appeals has since concluded that Lemon did not govern its analysis in an opinion
approving of a county seal containing a Latin cross, stating instead that American Legion created a presumption of
constitutionality for the seal. Freedom From Religion Found. v. Lehigh Cty., No. 17-3581, 2019 WL 3720709, at *1
(3d Cir. Aug. 8, 2019).
289 Legislative Attorney Linda Tsang authored this section.
290 139 S. Ct. 2116, 2121 (2019) (plurality opinion).
291 Id. at 2121, 2130.
292 Id. at 2131-48.

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nondelegation doctrine, which se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45884. Public record. Not legal advice.