One of President Joe Biden’s top picks for the Supreme Court is undergoing increased scrutiny for an argument she made before the high court in 2010, one which asserted religious protections under the Constitution only had limited application when squared against anti-discrimination laws.
According to a Washington Post report Thursday, 45-year-old Leondra Kruger — currently a California Supreme Court justice — was a lawyer in the U.S. Office of the Solicitor General when she argued the government’s case in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission.
The case involved whether a teacher who lost her job with a religious school because of narcolepsy could sue for discrimination under the Americans With Disabilities Act.
The school argued the firing was covered under the “ministerial exception,” a legal precedent which argues the religious clauses of the Constitution bars the government from deciding who an organization decides can be involved in faith teaching.
However, it’s the extreme nature of Kruger’s arguments before the Supreme Court in the case that has some questioning whether or not she would defend religious liberty if appointed as a justice.
“The government’s brief said the Constitution’s religion clauses — prohibiting government establishment of religion and guaranteeing free exercise of faith — had only limited impact when anti-discrimination laws were involved,” the Post reported.
“More relevant, the government said, was the First Amendment’s right to free association. Under such a theory, Kruger said at argument, that would mean the ‘basic contours’ of analyzing [the teacher’s] complaint would be the same whether she was employed by a church or some other group with those rights, such as a labor union.”
Kruger’s argument resulted in a unanimous decision against Kruger and the Obama administration’s Equal Employment Opportunity Commission, which took the teacher’s side.
This included Justice Elena Kagan, who had been solicitor general — and Kruger’s boss — up until her nomination to the Supreme Court.
“Kagan termed the government’s argument ‘amazing,’ and not in a good way,” the Post’s Robert Barnes wrote.
Kruger’s arguments didn’t impress Justice Antonin Scalia, either.
“That is extraordinary,” Scalia said twice when Kruger argued constitutional religious protections had limited application on anti-discrimination laws.
“We’re talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application,” he said.
The case “became important because of the extreme position the solicitor general took,” said Michael W. McConnell, director of the Stanford Constitutional Law Center and an expert on religion and the law, arguing the lower court’s decision to reinstate the teacher’s lawsuit wasn’t “radical.”
The question for the Senate if Kruger is nominated, McConnell said, was “whether this was her position, or was she simply arguing a position that the solicitor general or possibly EEOC had given her.”
“Having been in that office, I know from experience it could be either way,” he added.
While the solicitor general at the time, Donald Verrilli Jr., said it was his decision — “Hosanna-Tabor was 100 percent on me,” he told the post, adding, “If I had one case to do over as solicitor general, it would be that case” — he wouldn’t discuss internal deliberation, or whether Kruger supported or helped formulate the position the administration took.
If she ends up getting nominated, you can bet that ends up getting discussed — and in great detail.