Did Justice Jackson Lose The Majority In Landor To Justice Gorsuch?

Landor v. Louisiana Department of Corrections and Public Safety is an unexpectedly significant case. I thought this was going to be another unanimous religious liberty case like Holt v. Hobbs or Tanzin v. Tanvir, where the conservatives and liberals unite to rule for a non-Christian plaintiff. (Ramirez v. Collier was 8-1, with only Thomas in dissent.) My prediction about Landor was very wrong. The final vote was 6-3. Justice Gorsuch wrote the majority opinion for the six conservatives, ruling against the Rastafarian whose dreads were cut off. Justice Jackson wrote the dissent for the three liberals, finding that RLUIPA permits monetary damages against the prison guards.

As I read through opinion, and thought about the assignments so far, I speculated that something changed. I think Justice Jackson may have been assigned the majority opinion, with Justice Gorsuch in dissent, and the vote flipped at some point after the transgender sports cases were argued. Here is my evidence.

First, in the November sitting, nine cases were argued. Justice Gorsuch had two majority opinions (Landor and Rico), while Justice Jackson had none. Justice Barrett had two related cases (Fernandez and Rutherford), while Justice Kavanaugh had none. I can see the Chief Justice giving Justice Jackson the majority opinion to signal how the Court is unified on a religious liberty case. Moreover, Justice Gorsuch has seven majority opinions for the term, more than anyone else.

Second, all of the other November cases were decided at least a month ago. Justice Gorsuch’s majority opinion in only 18 pages, compared to Justice Jackson’s 33 page dissent. There were no other separate writings. A majority opinion of this length should have been ready some time ago, not the penultimate week in June. Something has been in the works.

Third, Justice Jackson’s dissent gives off a majority opinion vibe. She has a lot of detailed historical research that may not have been needed in a dissent. It is also, as noted above, nearly twice as long as the majority opinion. Jackson also responds to the majority opinion in footnotes. That seems backwards, as usually the majority opinion comes first. These opinions, I think, were written outside the usual sequence.

Fourth, Justice Gorsuch’s majority opinion connects RLUIPA with the pending Tile IX case:

On Mr. Landor’s theory, Congress could require coaches at universities that receive federal funds to permit transgender athletes to play women’s sports—or face personal liability in suits for damages.

Justice Jackson points out that this line relates to West Virginia, which was argued in January.

The majority warns that, if RLUIPA’s individual-capacity damages provision is constitutional, Congress could subject college coaches to liability if they refuse “to permit transgender athletes to play women’s sports,” or make doctors personally liable if they “administe[r] certain vaccines to children.” Ante, at 13. What the majority intends by these examples is not clear. Congress could of course impose these conditions on the colleges and medical practices themselves, assuming they receive federal funds and the laws are otherwise constitutional and not coercive.[FN11]

[FN11] 11A Title IX case currently pending before us asks whether Congress imposed the majority’s first “hypothetical” condition on federally funded educational institutions. See West Virginia v. B. P. J., No. 24–43.

I wonder if something is brewing in the Title IX case that helped flip Landor? Maybe Justice Gorsuch recognized that allowing damages under RLUIPA could allow the transgender athletes another way to sue coaches. My guess is that sometime after January, the majority flipped. That chronology would make sense of the timing for an end-of-June drop.

Fifth, I can see how Gorsuch persuaded several of his colleagues to jump ship based on the merits. One of the most consistent projects of the Roberts Court is to constrain causes of action. Just this term, the Court clawed back on causes of action in Exxon and Saba, plus there is a Bivens case on the docket for next term. Viewed in that context, Landor makes sense: Congress should make explicit to prison officials that they are subject to monetary damages. Moreover, for the first time since NFIB, the Court has imposed limits on Congress’s spending power and the Necessary and Proper Clause. Last week in Hemani, Justice Thomas wrote that “It has now been 26 years since a party has received relief in this Court based on a Commerce Clause challenge.” Yet only a few days later, a party has received relief based on the Spending Clause and the Necessary and Proper Clause. I can see how Justices Barrett and Kavanaugh could find this enterprise worth pursuing. Why did the Chief jump ship? Maybe he is still feeling some pangs of regret about NFIB. (I am still not over the case). Justice Jackson jabs the Chief hard on this point:

Taking this wisdom to heart, the Court usually exhibits a well-founded “reticence to invalidate the acts of the Nation’s elected leaders.” National Federation of Independent Business v. Sebelius, 567 U. S. 519, 537–538 (2012) (opinion of ROBERTS, C. J.). In my view, an ill-formed analogy to contract law is a regrettable basis on which to turn reticence into enthusiasm.

I will have a lot more to say about Landor. This might be the most important enumerated powers case since NFIB.