“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.”
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“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.”
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“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.”
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“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.”
“West Virginia v. Environmental Protection Agency strikes down a federal environmental regulation of power plants that never took effect, that the Biden administration has no intention of reinstating, and that would have accomplished absolutely nothing even if it had be enforced.
Nevertheless, the Court voted along ideological lines to strike down this regulation that the EPA drafted under authority granted by the Clean Air Act, claiming that it amounts to an “extraordinary” overreach by the EPA. And their decision has enormous implications both for the environment and for the federal government more broadly.
At the very least, the West Virginia decision strips the EPA of its authority to shift energy production away from dirty coal-fired plants and toward cleaner methods of energy production — although market forces have thus far accomplished much of this shift on their own, because coal-fired plants are often more expensive to operate than cleaner plants. The decision could also lead to additional limits on the EPA’s ability to regulate that industry going forward.
The West Virginia decision confirms something that has been implicit in the Supreme Court’s recent decisions governing federal agencies’ power to issue binding regulations under authority granted by Congress: When a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation — and it will do so by invoking something known as the “major questions doctrine.”
Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.
This doctrine comes from nowhere. Last week, the Court said that abortion is unprotected by the Constitution — leaning heavily on the fact that abortion is not mentioned in the Constitution. But the the major questions doctrine is also mentioned nowhere in the Constitution. Nor can it be found in any statute. The justices made it up. And, at least during President Joe Biden’s administration, the Court has wielded it quite aggressively to veto regulations that the Court’s conservative majority finds objectionable.
Roberts’s majority opinion in West Virginia does put some flesh on the fairly bare bones the justices have previously used to describe when they will declare something to be a “major question.” Roberts faults the EPA for issuing a novel kind of regulation pursuant to a “long-extant” statute that had not previously been used to justify similar actions. He claims that the EPA relied on an “ancillary provision” of the Clean Air Act, rather than a more central provision of that law. And he criticizes the EPA for issuing a regulation which resembles bills that Congress previously considered but did not enact.
But these judgments are divorced from the text of the Clean Air Act itself. And Roberts admits that the major questions doctrine can nuke a regulation even when there is a “colorable textual basis” supporting that regulation — that is, when the actual words of a federal law could support the action taken by a federal agency.
The bottom line after the West Virginia decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.”
“For a long time, the Supreme Court had been conceived in popular imagination and civic culture as a protector of minority rights. The legal circles of the twentieth century grappled with the theory of “counter-majoritarian difficulty,” which held that the judiciary was a necessarily antidemocratic institution because in declaring a statute or executive action unconstitutional, they overruled the will of the people as expressed through their representatives, while another camp asserted that the Court could continue to advance democracy if it devoted itself to reinforcing the representation of minorities in political process.
But in 2022, such theories are growing ever more distant from reality. As one scholar put it in the California Law Review, the U.S. electorate is becoming “more racially and ethnically diverse, more geographically concentrated and homogeneous, and more divided, not only in its partisan affiliations, but in its values and its prospects for the future.”
The Court, however, has used its power neither to serve as a countermajoritarian counterweight nor to reinforce representation of a growing multiracial electorate. The result: A court that enables the entrenchment of “a shrinking white, conservative, exurban numerical minority to exert substantial control over the national government and its policies.””
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““You have a situation in which a minority party is imposing an ideological agenda that has been rejected by a clear majority of the country,” he said. Today, only one of the five justices who signed onto Dobbs was nominated by a president who won the popular vote, and one of them only made it to the court because of Republicans’ unwillingness to give former president Barack Obama’s nominee, now-Attorney General Merrick Garland, a hearing.”
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“This year, the Court also invalidated a regulation that permitted large workplaces to establish vaccine-or-test requirements. It also struck down a Maine ban on using taxpayer money to fund private religious schools. One day before Dobbs, it threw out a 100-year-old New York law that required gun owners to show “proper cause” to obtain conceal-carry permits, making it easier to carry a concealed gun in public…it also sided with a Christian high school football coach, allowing him to pray at the 50-yard line, even though the Court had held in 1962 that school-sponsored prayer violated the separation of church and state.”
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“The decisions that came after were no less significant. While the Court did clear the way for Biden to end the Trump-era “Remain in Mexico” policy, it also expanded the power of states to prosecute crimes on Indigenous reservations based on a state’s interest in public safety within “its territory,” and it curtailed the power of the Environmental Protection Agency to reduce greenhouse emissions.
On the last day of its term, the Court also agreed to hear a case that could give state legislatures exclusive and near-absolute power to regulate federal elections in their states.”
“The U.S. Supreme Court’s 2021-2022 term is not yet over and it is already going down in the books as a terrible term for criminal justice reform. A pair of recent dissents by Justice Sonia Sotomayor spotlights the sorry state of affairs.
First, in Shinn v. Ramirez, the Court held that a death row inmate who received ineffective state-appointed counsel at both trial and postconviction state court proceedings is now barred from presenting new exculpatory evidence—evidence of actual innocence—in federal court. “Innocence isn’t enough,” declared the state attorney during oral arguments, insisting that the federal courts must defer to the flawed state proceedings.
“This decision is perverse,” wrote Sotomayor in dissent. “It is illogical.” She is right on both counts. As The Washington Post’s Radley Balko has detailed, “every court to consider the actual merits of [death row inmate] Barry Jones’s innocence claim has ruled that he never should have been convicted of murder. And every court to rule against Jones did so for procedural reasons without considering the new evidence. If Jones is executed, it will not be because there is overwhelming evidence of his guilt. It will be because of a technicality.””
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“The second notable Sotomayor dissent came in Egbert v. Boule, a ruling which shielded a border patrol agent from being sued in federal court for his alleged violations of the First and Fourth Amendments. Among its many sins, this outcome made a mockery of the Court’s 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which said that federal officers may indeed be sued in federal court for alleged Fourth Amendment violations.
“Bivens itself involved a U.S. citizen bringing a Fourth Amendment claim against individual, rank-and-file federal law enforcement officers who allegedly violated his constitutional rights within the United States by entering his property without a warrant and using excessive force. Those are precisely the facts of Boule’s complaint,” wrote Sotomayor in dissent.
She is again right on all counts. Innkeeper Robert Boule alleged that Border Patrol Agent Erik Egbert assaulted him on his own property after Boule asked Egbert to leave. That Fourth Amendment complaint does not differ in any meaningful way from the Fourth Amendment complaint at issue in Bivens.
Thanks to the Supreme Court’s flawed judgment, Sotomayor observed, Customs and Border Protection (CBP) “agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border.” So much for the Fourth Amendment when a federal officer is involved.”
“The federal government prosecuted Merle Denezpi twice for the same crime. It also punished him twice: the first time with 140 days in a federal detention center, the second time with a prison sentence more than 70 times as long.
Although that may seem like an obvious violation of the Fifth Amendment’s ban on double jeopardy, the Supreme Court..ruled that it wasn’t. As the six justices in the majority saw it, that puzzling conclusion was the logical result of the Court’s counterintuitive precedents on this subject.
The Fifth Amendment says no person will “be subject for the same offence to be twice put in jeopardy of life or limb.” But under the Court’s longstanding “dual-sovereignty” doctrine, an offense is not “the same” when it is criminalized by two different governments.
That doctrine allows serial state and federal prosecutions for the same crime, opening the door to double punishment or a second trial after an acquittal. Although neither seems just, the Court says both are perfectly constitutional.”
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“Gorsuch, joined by Justices Sonia Sotomayor and Elena Kagan, dissented…Even the “colossal exception” created by the dual-sovereignty doctrine, he said, is not big enough to encompass the two cases against Denezpi, both of which were pursued by the federal government under federal law.
In 2017, Denezpi and a woman identified as V.Y. in court papers, both members of the Navajo Nation, traveled to Towaoc, Colorado, a town within the Ute Mountain Ute Reservation where Denezpi’s girlfriend lived. V.Y. alleged that Denezpi sexually assaulted her during the trip, while he maintained that the encounter was consensual.
After federal officials charged Denezpi with three crimes, he pleaded no contest to assault and battery, which is defined by tribal law but also punishable under the Code of Federal Regulations by up to six months in jail. A Court of Indian Offenses, part of a system established by the Department of the Interior, sentenced Denezpi to time served: 140 days.
Accepting V.Y.’s allegations as true, most people would view that penalty as excessively lenient, and federal prosecutors in Colorado evidently agreed. Six months after Denezpi completed his Interior Department sentence, the Justice Department charged him with aggravated sexual abuse, which resulted in a 30-year federal prison term.”
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“Six justices nevertheless approved the second prosecution, tracing the authority for the first conviction to a distinct “sovereign”: the Ute Mountain Ute Tribe. But as Gorsuch notes, the first prosecution was not based on tribal law per se; it was based on a federal regulation that criminalizes “violation of an approved tribal ordinance.”
Although the two convictions involved the “same defendant,” the “same crime,” and the “same prosecuting authority,” Gorsuch observes, the Court implausibly concluded that “the Double Jeopardy Clause has nothing to say about this case.” Such reasoning amplifies the danger that Gorsuch decried in 2019, inviting the government to “try the same individual for the same crime until it’s happy with the result.””
“At the heart of the case was the question of whether the discretion that New York placed in the hands of local licensing officials was consistent with how constitutional rights are typically treated in the American system. New York’s licensing scheme failed that test. “We know of no other constitutional rights that an individual may exercise only after demonstrating to government officers some special need,” Thomas wrote. “That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.””
“The Supreme Court ruled..that if a police officer fails to inform you of your right to remain silent and avoid self-incrimination when you’re suspected of a crime, you can’t sue under federal law as a violation of your civil rights.
To be clear, the Court isn’t overturning Miranda v. Arizona, the 1966 Supreme Court ruling that determined that it’s a violation of a suspect’s Fifth Amendment rights for police to interrogate him or her about a crime without informing them they have the right to remain silent and the right to request an attorney. But what the Court ruled today is that if and when this right is violated, people can’t turn to Section 1983 of the U.S. code and file a civil action lawsuit against the police officer or law enforcement agency and seek redress or damages.”
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“Essentially, Alito’s opinion says that the purpose of Miranda is to serve as a safeguard against compelled self-incrimination by police or prosecutors. It was not intended to establish that it was inherently a Fifth Amendment violation if somebody voluntarily confesses or self-incriminates himself or herself prior to or absent of a Miranda warning.”
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“Alito concludes that because a violation of Miranda is not automatically a violation of the Fifth Amendment, there is no justification to permit a civil rights lawsuit. The opinion reverses a judgment in Tekoh’s favor and remands it back to the lower courts to revisit.
The dissent is written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor. Kagan observes the obvious in her dissent, that this ruling will make it harder for defendants to pursue legal remedies when their rights are violated”
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“the Supreme Court recognizes that these constitutional rights exist, but by shielding officers from liability for violating these rights, the Court undermines the necessary tools to make sure police take them seriously.”
“Kavanaugh stressed, the constitutional problem with New York’s licensing scheme for carrying handguns in public was that “it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.” By contrast, “43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.” Today’s decision by the Court, Kavanaugh emphasized, did not touch any of that in any of those 43 states. “Shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice.”
Kavanaugh’s second point was drawn straight from the Heller language that I quoted above. “Properly interpreted,” Kavanaugh wrote, invoking Scalia, “the Second Amendment allows a ‘variety’ of gun regulations.”
Why would Kavanaugh write such a concurrence if he also fully joined Thomas’ majority opinion? One possible reason is that Kavanaugh is looking ahead to future cases that will inevitably arise in the lower courts as legal challenges are levied against other gun control laws. Kavanaugh, joined by Roberts, may be signaling to the lower courts that, in his view, many such gun control regulations are presumptively constitutional, and lower court judges should therefore act accordingly. At the very least, many lawyers in future Second Amendment cases will be grappling with Kavanaugh’s concurrence.”
“Chief Justice John Roberts wrote for the majority in the case, which split the court cleanly along ideological lines. Roberts said the state’s interest in avoiding concerns about establishment of religion did not justify the policy that effectively blocked parents directing funding to religious schools.
“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” Roberts wrote. “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
Under the Maine “tuitioning” program the court struck down on Tuesday, local governments lacking the population to run schools at a certain grade level typically pay for students to be educated at public or private schools of their choice. But, to avoid government funds being used for religious purposes, since 1981 the program has refused to pay for schools providing religious education.
In a 2020 decision on an educational aid program out of Montana, the Supreme Court ruled 5-4 that states could not exclude families or schools from student aid programs simply because the schools were backed by religious institutions.
However, that decision left open the question of whether states could block the use of their funds for explicitly religious or “sectarian” classes.
But in the case decided Tuesday, Roberts explicitly rejected Maine’ arguments that it was only targeting religious teaching and not whether a school was run by a religious group.
“Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism,” the chief justice wrote.
In what is one of his final dissenting opinions before his planned retirement, Justice Stephen Breyer said the court seems to have lost all interest in enforcing the Constitution’s prohibition on establishment of religion.
“The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion.’ It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second,” Breyer wrote.
Breyer also said the court was opening a Pandora’s box with its decision, suggesting that it was simply a way station to requiring all communities to use taxpayer funds to pay for religious schooling.
“We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Breyer wrote.
“What happens once ‘may’ becomes ‘must’? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?” Breyer asked. “Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”
Justice Sonia Sotomayor also dissented, lamenting what she sees as a series of decisions bringing the government closer to direct sponsorship of religious activity.
“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor warned. “It is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.”
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“Forcing American taxpayers to fund private religious education — even when those private schools fail to meet education standards, intentionally discriminate against students, or use public funds to promote religious training, worship, and instruction — erodes the foundation of our democracy and harms students,” NEA President Becky Pringle said in a statement.
A national campaign sponsored by the Education Law Center and Southern Poverty Law Center meanwhile promised to pressure Maine’s legislature into repealing the state tuition program.
Still, the decision’s short-term reach appears to be limited — even if it creates new legal quandaries over the long term.
“Has anything enormous changed? No,” Derek Black, an education and civil rights professor at the University of South Carolina School of Law, said of Tuesday’s decision. “But what we are seeing is that all gray and ambiguous or open questions are being resolved to the benefit of religion.”
In the immediate aftermath, Black said the ruling poses serious challenges for states such as Maine and Vermont that have instituted private school voucher programs that prohibit funds from going to religious schools.”