U.S. military’s newest weapon against China and Russia: Hot air

“The Pentagon is working on a new plan to rise above competition from China and Russia: balloons.

The high-altitude inflatables, flying at between 60,000 and 90,000 feet, would be added to the Pentagon’s extensive surveillance network and could eventually be used to track hypersonic weapons.”

““High or very high-altitude platforms have a lot of benefit for their endurance on station, maneuverability and also flexibility for multiple payloads,” said Tom Karako, senior fellow for the International Security Program and Missile Defense Project director at the Center for Strategic and International Studies.

The Pentagon continues to invest in these projects because the military could use the balloons for various missions.”

“Wind currents allow the balloon to float along a desired flight path, and the company takes advantage of different wind speeds and directions to move the balloon to the target area.

But that’s not all. Raven Aerostar uses a proprietary machine-learning algorithm that predicts wind directions and fuses incoming sensor data in real time, Van Der Werff said. The company also employs a software program to pilot and monitor its balloon fleet and has a mission operations center manned with trained flight engineers 24 hours a day, seven days a week, he added.

The balloons can supplement work performed by traditional aircraft and satellites, and stratospheric balloons can be built and launched at a fraction of the cost and time. For example, the cost to launch and operate balloons for weeks or months is in the hundreds of thousands of dollars, versus millions — or tens of millions — needed to launch and operate aircraft or satellites.”

How the Founders Intended to Check the Supreme Court’s Power

“Deeply ingrained in the Constitution genius are checks and balances. The president can veto legislation; Congress can override a veto. The Courts can invalidate an act of Congress or the president. And the executive and legislative branches enjoy checks against the judiciary.

The Constitution called for the establishment of a Supreme Court and lower federal courts. It left it to Congress and the president to decide just what shape the judiciary would take. They did so in the Judiciary Act of 1789, which created district courts, circuit (or appellate) courts, and a six-member Supreme Court. Over the years, Congress, with the president’s approval, has increased and decreased the number of justices on the Supreme Court, created and changed the jurisdiction of district and circuit courts, and adjusted the number of federal judges.

By now, it’s well-known that Congress can change the size, and thus the composition, of the Supreme Court by simple legislation. Court-packing, as it’s been called since 1937, when President Franklin Roosevelt unsuccessfully attempted to circumvent a hostile court by expanding its membership, is a deeply controversial practice.

Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters. Article III, Section 2 reads: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

At least one founder was clear about the intent of Section 2. Hamilton wrote, “From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”

Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the court’s jurisdiction.

In practice, so few instances exist of jurisdictional stripping that its meaning and scope are open to debate. But it has happened. In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act.

Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”

No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.”

“A world in which a highly partisan and increasingly unpopular Supreme Court found its jurisdiction routinely boxed out by Congress is hardly a recipe for political stability. With every change of control, a new Congress and president could overturn precedent and lock the court out of its intended role as a constitutional arbiter. Moreover, there would likely be widespread confusion over just what might happen, were Congress to strip the court of its jurisdiction over, say, the state legislative doctrine. Would it then be left to lower courts to adjudicate cases? And what if they disagreed?

Conversely, today’s court majority claims largely unchecked power.

John Marshall, the chief justice who first asserted the power of judicial review, was “notably cautious in dealing with cases that might excite Republican or popular sensibilities,” noted historian Charles Sellers. He sought consensus among the associate justices, Federalists and Republicans alike, operated with “restraint” (Sellers) and led with “lax, lounging manners” (Thomas Jefferson) rather than cutting partisanship. He did so because he understood that the court was a new institution, and were it to lose popular support, the powers it claimed for itself would become either unenforceable, or subject to congressional restraint.

Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary.

Judicial review is well-rooted in American political tradition. But so are checks and balances. To save the Supreme Court from itself, Congress might first have to shrink it.”

If aliens are calling, let it go to voicemail

“In a 2012 paper, the Russian transhumanist Alexey Turchin described what he called “global catastrophic risks of finding an extraterrestrial AI message” during the search for intelligent life. The scenario unfolds similarly to the plot of A for Andromeda. An alien civilization creates a signal beacon in space of clearly non-natural origin that draws our attention. A nearby radio transmitter sends a message containing instructions for how to build an impossibly advanced computer that could create an alien AI.

The result is a phishing attempt on a cosmic scale. Just like a malware attack that takes over a user’s computer, the advanced alien AI could quickly take over the Earth’s infrastructure — and us with it. (Others in the broader existential risk community have raised similar concerns that hostile aliens could target us with malicious information.)

What can we do to protect ourselves? Well, we could simply choose not to build the alien computer. But Turchin assumes that the message would also contain “bait” in the form of promises that the computer could, for example, solve our biggest existential challenges or provide unlimited power to those who control it.

Geopolitics would play a role as well. Just as international competition has led nations in the past to embrace dangerous technologies — like nuclear weapons — out of fear that their adversaries would do so first, the same could happen again in the event of a message from space. How confident would policymakers in Washington be that China would safely handle such a signal if it received one first — or vice versa?”

The Supreme Court tears a new hole in the wall separating church and state

“The specific program at issue in Carson is unusual to Maine. About 5,000 students in Maine’s most rural areas, where it is not cost-efficient for the state to operate a public school, receive tuition vouchers that can be used to pay for private education. Maine law provides that these vouchers may only be used at “nonsectarian” schools, not religious ones.

Carson struck down this law excluding religious schools from the Maine voucher program, and that decision could have broad implications far beyond the few thousand students in Maine who benefit from these tuition subsidies.

Not that long ago, the Court required the government to remain neutral on questions of religion — a requirement that flowed from the First Amendment’s command that the government “shall make no law respecting an establishment of religion.” In practice, that meant that the government could neither impose burdens on religious institutions that it didn’t impose on others, nor could it actively subsidize religion.

Carson turns this neutrality rule on its head, holding that government benefit programs that exclude religious institutions engage in “discrimination against religion” that violates the Constitution.

At the same time, however, Carson also contains significant language confining the scope of this new rule. If the government cannot create benefit programs that exclude religion, then under the most extreme version of this argument, it is unclear why traditional public schools — which provide secular but not religious education — are constitutional. Secular public schools, after all, are government institutions that maintain neutrality toward religion. And, under the new rule announced in Carson, neutrality is unconstitutional discrimination.

But Chief Justice John Roberts’s opinion in Carson states explicitly that “Maine may provide a strictly secular education in its public schools.” And it reaffirms the Court’s holding in a 2020 decision that “a State need not subsidize private education.” That means that most students who receive a state-subsidized education will not be indoctrinated into a faith.

Nevertheless, one upshot of the Carson decision is that Maine’s taxpayers will be forced to pay for education that many of them will view as offensive. As the state explained in its brief, the plaintiff families in this case want the state to pay at least part of the tuition at private schools that discriminate against LGBTQ teachers and students. One of these schools allegedly requires teachers to agree that “the Bible says that ‘God recognize[s] homosexuals and other deviants as perverted’” and that “[s]uch deviation from Scriptural standards is grounds for termination.’”

After Tuesday’s decision, these families are all but certain to get their wish — Maine would have to significantly rework its education policies to avoid such an outcome — and Maine’s taxpayers will soon have to fund education at schools with outlandish or even bigoted worldviews.”

The Supreme Court’s new gun ruling means virtually no gun regulation is safe

“The Second Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Thus, it is the rare constitutional provision that not only declares the existence of a right, but also states the reason why this right exists. The purpose of the Second Amendment is to protect “a well regulated Militia.” That’s what the plain text of the Constitution provides.
But Thomas’s opinion in Bruen, much like the Court’s earlier decision in District of Columbia v. Heller (2008), thumbs its nose at the text of the Constitution.”

“The immediate impact of Bruen is that handguns — which are responsible for the overwhelming majority of gun murders in the United States — are likely to proliferate on many American streets. That’s because Bruen strikes the types of laws that limit who can legally carry handguns in public, holding that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
The case involves a 109-year-old New York state law which requires anyone who wishes to carry a handgun in public, whether openly or concealed, to demonstrate “proper cause” before they can obtain a license to do so. An applicant must show “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Similar laws exist in five other states — California, Hawaii, Maryland, Massachusetts, and New Jersey — plus the District of Columbia. Together, these jurisdictions make up about a quarter of the US population, and a much higher percentage of the country’s urban population. In effect, that has meant very few residents of those states have been able to legally carry a handgun in public.

Writing solely for the Court’s Republican appointees, Justice Clarence Thomas strikes down New York’s century-old law. He also establishes a whole new (confusing) framework for evaluating gun control laws. Bruen establishes a “text, history, and tradition test” that purports to be rooted in, well, the text of the Constitution, and the history of English and early American gun laws.

In reality, however, Thomas’s new test takes extraordinary liberties with the text of the Second Amendment, which explicitly states that the purpose of the right to bear arms is to protect service in a militia.

And when it comes to “history,” “the Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical,” as Breyer chastises Thomas in dissent. That’s because judges are ill-equipped to conduct the kind of multi-century historical survey that Thomas’s new framework demands.

Worse, Thomas announces that the government bears the burden of showing that any gun law “is consistent with this Nation’s historical tradition of firearm regulation.” But if “tradition” is so important, why must New York’s 100-year-old law fall? As a practical matter, moreover, that Thomas places the burden of proof on the government means many gun laws are likely to fall because, when the historical record is unclear, the government loses.”

“As the Court explained in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”

But Heller upended that. And quoting from Heller, Thomas writes that “individual self-defense is ‘the central component’ of the Second Amendment right.” And therefore gun regulations should be judged according to whether they undermine this atextual purpose invented by Republican appointees to the Supreme Court.

Similarly, Thomas writes that courts should determine whether a modern-day gun regulation fits within the nation’s historical traditions by drawing “historical analogies” to early American gun laws.

Thomas’s opinion suggests that these analogies may need to be drawn to laws that existed in 1791, when the Second Amendment was ratified; or that they may need to be drawn to laws that existed in 1865 — when the Fourteenth Amendment, which requires states to comply with the Second Amendment, was ratified. It declines to resolve questions about which date matters, however, adding another layer of confusion for judges forced to apply Bruen.

In any event, there are fairly obvious reasons why it is hard to draw reliable analogies between modern-day regulations and laws from earlier centuries. Federal law, for example, prohibits civilian ownership of machine guns. But the machine gun was invented in 1884. So a judge searching for early American laws regulating automatic weapons will come up empty, because machine guns did not exist during either the Founding Era or the Reconstruction Era. Does this mean that a ban on machine guns is unconstitutional?

Thomas also writes that “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” In other words, modern gun laws that address problems that existed in the 1700s are likely to fall, unless similar laws existed in the 18th century.

For this reason, Thomas concludes that a handgun ban like the one struck down in Heller is unconstitutional because the framers did not ban handguns in order to combat the problem of “firearm violence in densely populated communities.”

But this reasoning is anachronistic. According to the 1790 census, New York City had only 33,131 residents around the time when the Second Amendment was ratified. The second-largest city, Philadelphia, had fewer than 29,000 residents.

Eighteenth-century Americans, in other words, simply did not confront the problem of “firearm violence in densely populated communities.” The most densely populated communities in the 18th-century United States had roughly the same number of people as a small town in modern-day America.”

“this litany of long-forgotten laws does little to clarify the question of what the framing generation (or perhaps people during Reconstruction) thought about the right to carry a firearm without a permit on city streets. The bottom line is that the six Republican appointees surveyed many centuries worth of gun laws and concluded that they support the Republican Party’s preferred stance on firearms; while the three Democratic appointees surveyed the same laws and concluded that they support the Democratic Party’s preferred stance on firearms.

In fairness, Thomas does offer a workaround for the problem that many modern weapons — from machine guns to intercontinental ballistic missiles — did not exist until very recently and therefore were not regulated by early American lawmakers.

The lesson of history, Thomas claims, is that the Second Amendment protects the right of civilians to carry weapons that “are ‘in common use at the time.’” So an amendment that may have protected the right to own a musket in 1790 now protects the right to own a handgun, because handguns are now commonly used by civilians. Similarly, even Thomas would likely concede that the Second Amendment does not permit civilians to own tanks, nuclear warheads, or other weapons that are not commonly possessed by civilians in 2022.

Judges will no doubt have an easier time determining what kinds of guns are in common use in 2022 than they will determining what 18th-century gun laws have to say about the B-2 stealth bomber. But Thomas’s need to rely on such a workaround from his “text, history, and tradition” framework only emphasizes the uselessness of that framework.”

What’s the best way to help extremely poor people? After 20 years, the evidence is in.

“On a certain level, it seems intuitive that doing more for people — giving assets and training and cash — will produce better outcomes than just giving one thing, like cash. But the downside is that it takes more time, effort, and money to run a more complex intervention.

So a major question looms over the graduation program: Is it worth spending that money on the program or is it more efficient to just give all the money directly to people in need? In other words, is it really useful to teach the person to fish or should you just give them the damn fish already?”

“In recent years, development experts have moved toward an important idea called “cash benchmarking,” which basically says that cash is the benchmark against which all other anti-poverty interventions should be judged. Since giving people cash is easy, efficient, and respectful of their autonomy, aid agencies should only run a different type of program if testing shows that it works better than cash would.
Nowadays, when studies come out showing positive results for graduation programs, there’s a tendency to think that this particular combination — cash plus assets plus training — does work better than simply giving cash. But just because the graduation approach works great in some scenarios doesn’t mean it’s always the most efficient approach.

For starters, though, let’s look at the evidence suggesting that cash-plus programs work better than simple cash programs. Three studies have run this sort of comparison.

In South Sudan, a study looked at what happened to 250 households that got a full graduation program, compared to 125 households that got only cash and 274 households that received neither. Both graduation and cash increased consumption, but only the graduation group saw a significant increase in assets, a sign of more durable wealth. Although the cash group shifted a bit from agriculture to other types of work, they didn’t set up their own lasting businesses that may have been higher-paying.

In Uganda, researchers evaluated a graduation-style program run by a group called Village Enterprise. It offered training and a capital grant to extremely poor people so they could start a small business. The researchers found that it worked well, increasing self-employment income and consumption. In fact, it outperformed cash on these measures. The authors speculate that, “left to themselves — without training and mentorship — beneficiaries [of cash transfers alone] struggled to make productive investments, maintain them, and derive sustained value from them.”

In Niger, a new randomized study has highlighted the benefits of taking a multifaceted approach to extreme poverty. The study evaluated women who were already enrolled in a government cash transfer program. The goal was to understand how psychosocial issues — like feeling depressed or disconnected from your community — might make it harder to seize economic opportunities. The study found that the women who got psychosocial support showed rates of returns that were higher than those who got only cash. Offering psychosocial support was the most cost-effective route 18 months after the intervention.”

“while graduation programs appear to work great in some places, they’re dependent on the market — and they can run into problems in places where the market is either too dysfunctional or, ironically, too functional.

One randomized trial in India, published in 2012, is an example of the latter. It found that a graduation program yielded no net impact. Although it shifted participants away from agricultural jobs to other sorts of work, they could’ve earned just as much in their original agricultural jobs. While those original jobs were far from big money-makers, wages for agricultural labor had been improving in India, thanks to programs like the ambitious National Rural Employment Guarantee, so adding in a graduation program didn’t really help.

Dysfunctional markets produce their own obstacles. Abed told me about his experience trying to run a graduation program in Balochistan, an extremely dry, desert-like province in southwestern Pakistan, where participants were taught how to run a small business. One problem: There wasn’t a functional market for the businesses to thrive in. “Once they graduated, there wasn’t much to go to,” said Abed. “And there wasn’t microfinance available. So it was very, very difficult.””

“Another way a graduation program can flop is if it fails to be cost-effective. In the huge 2015 randomized study that looked at graduation programs in six countries, Banerjee and his co-authors note that although the program proved extremely cost-effective in some places, easily paying for itself within 10 years, other countries don’t have such low costs and high benefits in the short run. In Peru, for example, such a program wouldn’t break even.”

“Abed is convinced that graduation is the best approach for the ultra-poor, but he acknowledges that what makes the most sense for the moderate poor is a somewhat open question. Also, while graduation may be best for ultra-poor people who are young and healthy enough to go start businesses if given half a chance, it may not work for those who are elderly or disabled. For those groups, the answer may well be cash transfers.”

The end of Roe will mean more children living in poverty

“Almost half the United States is ready to outlaw abortion now that the Supreme Court has overruled Roe v. Wade. But many of those states are not willing to give new babies and their families the educational, medical, or financial support they need to lead a healthy life. That could leave tens of thousands of future children unnecessarily disadvantaged and living in poverty.”

“Those births will predominately be in the states with the most draconian post-Roe abortion restrictions. And with a few exceptions, those 22 states rank in the bottom half of states in the comprehensive support they provide to children and their families, according to the State-by-State Spending on Kids Dataset compiled by Brown University’s Margot Jackson and her colleagues. The disparities can be enormous: Vermont spends three times as much money on education, health care, and other economic support for children as Utah.”

“The children born in these circumstances will start life a few steps behind, all because their political leaders strove to ban abortion without offering support to the children who would be born if their aims were achieved.”

Congress passes a landmark gun control package

“The Bipartisan Safer Communities Act, which passed the Senate 65-33 after weeks of negotiations, doesn’t go as far as many Democrats wanted. But it introduces tailored reforms meant to incentivize states to keep guns out of dangerous people’s hands, provide new protections for domestic violence victims, enhance screening for gun buyers under the age of 21, and crack down on illegal gun purchases and trafficking.

The bill also provides billions of dollars in additional funding for school safety and mental health resources. Democrats have stressed they don’t believe that America’s gun violence epidemic can be solved by investments in mental health resources, as Republicans have argued, but have said that they won’t pass up the opportunity to put more money toward mental health.”

“Ultimately, 15 Republicans and 50 members of the Democratic caucus ended up joining them in voting for the bill. The vote was bipartisan on the House side too, with 14 GOP lawmakers — including Rep. Tony Gonzales, whose district includes Uvalde — voting yes.”

5 ways abortion bans could hurt women in the workforce

“Perhaps most insidiously, lack of abortion access seriously restricts women’s hopes for their own careers. Building on her team’s research in the Turnaway Study, Foster found that women who were unable to get a desired abortion were significantly less likely to have one-year goals related to employment than those who did, likely because those goals would be much harder to achieve while taking care of a newborn. They were also less likely to have one-year or five-year aspirational goals in general.”

The Supreme Court hands the religious right a big victory by lying about the facts of a case

“The Supreme Court handed down a landmark decision in Kennedy v. Bremerton School District on Monday, overruling a 1971 case laying out how the government must keep its distance from religion.

But Justice Neil Gorsuch’s opinion for himself and his fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School in Washington state who ostentatiously prayed at the 50-yard line following football games — often joined by his players, members of the opposing team, and members of the general public — “offered his prayers quietly while his students were otherwise occupied.”

(Justice Brett Kavanaugh did not join a brief section of Gorsuch’s opinion concerning the Constitution’s free speech protections, but Gorsuch otherwise spoke for the Court’s entire Republican majority.)

Because Gorsuch misrepresents the facts of this case, it’s hard to assess many of its implications.

The Court’s decision to explicitly overrule Lemon v. Kurtzman, the 1971 decision that previously governed cases involving the Constitution’s language prohibiting “an establishment of religion,” has obvious implications for future lawsuits: Lower court judges will no longer apply Lemon’s framework to establishment clause cases.

But it’s not clear how those lower court judges should now navigate questions about the separation of church and state. Although the Court overrules Lemon, it does not announce a fleshed-out test that will replace Lemon. Instead, Kennedy announces a vague new rule that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer.

If the facts of Kennedy actually resembled the made-up facts laid out in Gorsuch’s opinion, then Kennedy would have reached the correct result. Even under Lemon, a public school employee is typically permitted to quietly pray while they are not actively engaged with students.

Gorsuch’s opinion, however, describes a very different case than the one that was actually before the Court.”

“In the real case that was actually before the Supreme Court, Coach Kennedy incorporated “motivational” prayers into his coaching. Eventually, these prayers matured into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer.

After games, Kennedy would also walk out to the 50-yard line, where he would kneel and pray in front of students and spectators. Initially, he did so alone, but after a few games students started to join him — eventually, a majority of his players did so. One parent complained to the school district that his son “felt compelled to participate,” despite being an atheist, because the student feared “he wouldn’t get to play as much if he didn’t participate.”

When the Bremerton school district learned of Kennedy’s behavior, it told him to knock it off — though it did offer to accommodate Kennedy if he wanted to pray when he wasn’t surrounded by students and spectators. And Kennedy did end some of his most extravagant behavior, such as the prayer sessions where he held up the helmets while surrounded by kneeling students.

But Kennedy also went on a media tour, presenting himself as a coach who “made a commitment with God” to outlets ranging from local newspapers to Good Morning America. And Kennedy’s lawyer informed the school district that the coach would resume praying at the 50-yard line immediately after games.

At the next game following this tour, coaches, players, and members of the public mobbed the field when Kennedy knelt to pray. A federal appeals court described this mob as a “stampede,” and the school principal said that he “saw people fall” and that, due to the crush of people, the district was unable “to keep kids safe.” Members of the school’s marching band were knocked over by the crowds.

And, contrary to Gorsuch’s repeated claims that Kennedy only wanted to offer a “short, private, personal prayer,” Kennedy was surrounded by players, reporters, and members of the public when he conducted his prayer session after that game. We know this because Justice Sonia Sotomayor includes a picture of the scene in her dissenting opinion.

Gorsuch dismisses this photographic evidence by claiming that “not a single Bremerton student joined Mr. Kennedy’s quiet prayers” after this game — he claims that the players depicted in this photograph are “from the opposing team.”

Whether those players are from the Bremerton school district or not, that doesn’t change the fact that Kennedy engaged in very public prayer sessions, and did so while acting as an official representative of a public school. Nor does it change the fact that, after he was ordered to cease this activity, Kennedy went on a media tour that seemed designed to turn his supposedly “quiet prayers” into a public political spectacle, a spectacle that both players and spectators eagerly participated in.”

“if the facts of this case resembled the false facts laid out in Gorsuch’s opinion, then Gorsuch would have a point. Public school employees may engage in private acts of devotion, such as saying a prayer over their lunch in a school cafeteria while they are on the job.

But there’s nothing private about a school employee conducting a media tour touting his plans to pray at the 50-yard line of a football field immediately after a game. There is nothing private about the coach carrying out that plan — especially when he does so surrounded by kneeling players, cameras, and members of the public.”

“Kennedy will no doubt inspire other teachers and coaches to behave similarly to Coach Kennedy, but those teachers and coaches will do so at their own peril. Gorsuch’s opinion doesn’t weigh whether a coach is allowed to do what Kennedy actually did. That remains an open question, because the Court did not actually decide that case.”