Tag Archives: #SupremeCourt

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The Supreme Court destroys all chances of race-based ‘reparations’

It was 2003 when the Supreme Court released its decision in Grutter v Bollinger, 539 U. S. ____ (2003), in which a bare majority allowed the University of Michigan Law School to continue to consider race in its admissions decisions. Associate Justice Sandra Day O’Connor concluded, in something we have cited previously:

We take the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317ñ318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.[1]Grutter v Bollinger, Decision of the Court, page 31 of the .pdf file.

I have long said that it was internally both significant and stupid that the Supreme Court allowed something it said would be unconstitutional come June 23, 2028 to be allowable up until that time. Well, it has taken 20 of those 25 years, but the Supreme Court has finally righted that wrong. The Supreme Court finally released its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

To hear the principal dissent tell it, Grutter blessed such programs indefinitely, until “racial inequality will end.” Post, at 54 (opinion of SOTOMAYOR, J.). But Grutter did no such thing. It emphasized—not once or twice, but at least six separate times—that race-based admissions programs “must have reasonable durational limits” and that their “deviation from the norm of equal treatment” must be “a temporary matter.” 539 U. S., at 342. The Court also disclaimed “[e]nshrining a permanent justification for racial preferences.” Ibid. Yet the justification for race-based admissions that the dissent latches on to is just that—unceasing.[2]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 36-37 of the decision, and pages 44-45 of the .pdf file.

Chief Justice John Roberts, writing for the majority, emphasized what we have known all along: the racially biased admissions structure being used by colleges and universities was not moving steadily, or in any way at all, to a terminal date in 2028, and that the schools which were party to this case, Harvard University and the University of North Carolina made no claims that they were proceeding toward that end.

In what may be an underappreciated footnote number 9, the Chief Justice noted:

The principal dissent rebukes the Court for not considering adequately the reliance interests respondents and other universities had in Grutter. But as we have explained, Grutter itself limited the reliance that could be placed upon it by insisting, over and over again, that race-based admissions programs be limited in time. See supra, at 20. Grutter indeed went so far as to suggest a specific period of reliance — 25 years — precluding the indefinite reliance interests that the dissent articulates. Cf. post, at 2–4 (KAVANAUGH, J., concurring). Those interests are, moreover, vastly overstated on their own terms. Three out of every five American universities do not consider race in their admissions decisions. See Brief for Respondent in No. 20–1199, p. 40. And several States — including some of the most populous (California, Florida, and Michigan) — have prohibited race-based admissions outright. See Brief for Oklahoma et al. as Amici Curiae 9, n. 6.[3]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 38 of the decision, and page 46 of the .pdf file.

If roughly 60% of American colleges and universities do not consider race at all in their admissions decisions, then it becomes clear that the consideration of race is unnecessary.

Court decisions are difficult to read, in large part due to all of the internal citations, but also because lawyers are, let’s face it, not usually all that great with prose. Nevertheless, I’d invite all of my readers — both of them! — to follow the link and read the decision.

There will be thousands of articles about this decision, and at least in our nation’s professional media, most will be negative. Solomon Jones in The Philadelphia Inquirer has a column entitled “Affirmative action is racial justice. The Supreme Court ruling is a step backwards. To be blunt, right-wing activists aren’t fighting to abolish racial preferences. They’re fighting to maintain them.” Mr Jones went through many of the reasons he believes we need Affirmative Action, but his column is noteworthy in one major way: he made no argument at all that the Court’s decision was based on a faulty reading of the Constitution.[4]Actually, Mr Jones’ column reads very much as though it was written before the Court’s decision was released, and that he had not been able to read the decision before he wrote his piece.

In a mostly straight news article, Susan Snyder reported on how some Pennsylvania universities will deal with the decision, noting the sole exception the Chief Justice allowed, that in individual admission essays, the way racial discrimination impacted an individual applicant, and how he overcame them, could be considered. Count on admissions departments to start advising applicants to write about that!

The Editorial Board also weighed in on the subject.

But there was one brief point in the decision that seemed very important to me, and which I haven’t seen mentioned by anyone else:

The Court soon adopted Justice Powell’s analysis as its own. In the years after Bakke, the Court repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action. “[A]n effort to alleviate the effects of societal discrimination is not a compelling interest,” we said plainly in Hunt, a 1996 case about the Voting Rights Act. 517 U. S., at 909–910. We reached the same conclusion in Croson, a case that concerned a preferential government contracting program. Permitting “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group.” 488 U. S., at 505. Opening that door would shutter another—“[t]he dream of a Nation of equal citizens . . . would be lost,” we observed, “in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id., at 505–506. “[S]uch a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.”[5]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 35-36 of the decision, and pages 43-44 of the .pdf file.

The Chief Justice spent a significant amount of time, earlier in the decision, noting how the Fourteenth Amendment specified equal protection of the law, and that many subsequent decisions, as well as statements by elected officials and others, meant that equal protection of the law meant that all were equal under the law, regardless of race. With the paragraph above, the Court said that neither “ameliorating societal discrimination” nor allowing “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group” was constitutionally allowable, and that must certainly mean that payments or advantages given to black Americans, from the taxes of white Americans, for the enslavement of their distant ancestors, can be legal.

Robert Stacy McCain noted, amusingly enough, that only Donald Trump, among all living Presidents, is not the descendant of slave owners, as Mr Trump’s family did not arrive on these shores until after slavery had been ended. Since only direct injury, caused by a specifiable person or institution, is the basis for restorative payments, and there are no living Americans who were enslaved, it is impossible, under the Court’s standard to allow all black Americans, none of whom were directly injured by slavery, to be paid by white Americans, none of whom owned slaves and most of whom cannot be traced back to a slaveowner.

Naturally, the Usual Suspects are aghast that the Court said that racial preferences violate the Fourteenth Amendment, but the Court has, for at least 45 years since Regents of the University of California v Bakke tried to massage the Equal Protection Clause of the Fourteenth Amendment to mean something other than what it actually says. Now, at last, the Court has decided that yes, equal protection of the laws actually means equal protection of the laws.
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Also posted on American Free News Network. Check out American Free News Network for more well written and well reasoned conservative commentary.
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References

References
↑1 Grutter v Bollinger, Decision of the Court, page 31 of the .pdf file.
↑2 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 36-37 of the decision, and pages 44-45 of the .pdf file.
↑3 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 38 of the decision, and page 46 of the .pdf file.
↑4 Actually, Mr Jones’ column reads very much as though it was written before the Court’s decision was released, and that he had not been able to read the decision before he wrote his piece.
↑5 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 35-36 of the decision, and pages 43-44 of the .pdf file.
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The Supreme Court bitch-slaps a small school district in Pennsylvania Mahanoy Area School District should never have appealed the initial decision in the first place.

Have you ever been to Mahanoy City, Pennsylvania? It’s a bit more than a wide spot in the road, but only a bit, having an area of 0.5 mi² and a population of 3,944 people. Located in the Keystone State’s old anthracite coal mining region, it has fallen on hard times as the demand for coal has greatly waned. I have driven through Mahanoy City several times, as it was on Pennsylvania Route 54 just a mile from Exit 131 onto Interstate 81; that was my shortest route from our previous home in Jim Thorpe and the farm in the Bluegrass State.

I can’t say that I was impressed.

There have been a lot of people who’ve yelled, in anger, “I’ll take it all the way to the Supreme Court.” Well, taking something all the way to the Supreme Court costs money, lots of money, something Mahanoy City, and the Mahanoy Area School District do not have in abundance. From Wikipedia:

Mahanoy Area School District serves the borough and Mahanoy Township. The district operates: Mahanoy Area Elementary School (K-4), Mahanoy Area Middle School (5th-8th) and Mahanoy Area High School (9th-12). The district has provided full day kindergarten since 2004. In 2015, the Mahanoy Area School District’s enrollment declined to 1,004 students.[16] Mahanoy Area School District was ranked 433rd out of 493 Pennsylvania school districts, in 2015, by the Pittsburgh Business Times.[17] Mahanoy Area High School has been listed on the Commonwealth’s annual lowest achieving schools list.[18] In 2015, Mahanoy Area School District’s graduation rate was 91%. In 2012, Mahanoy Area School District declined to Warning Adequate Yearly Progress (AYP) status, due to a low graduation rate and lagging student academic achievement.[19]

Brandi Levy. Photo from tweet by WNEP.

Near the end of the 2016-17 school year, Brandi Levy,[1]Though the courts continued to refer to Miss Levy by her initials, they specify her father’s last name in the decision title, and her name is in the public domain on the Associated Press. I am … Continue reading who had tried out for the school’s varsity cheerleading squad, posted two angry messages, one of which was profane, on SnapChat; Miss Levy was not on school grounds, nor was school in session at the time she posted the messages. One of the SnapChat recipients, a cheerleader herself, took offense, and made a screencap of the self-deleting SnapChat message, and showed it around.[2]Justice Alito, in his concurrent opinion, made the greatest ‘Karen’ criticism of all: “(Miss Levy) did not send the messages to the school or to any administrator, teacher, or … Continue reading The school responded by suspending Miss Levy from participating in the junior varsity cheerleading squad for one year. Her parents filed a lawsuit on her behalf in federal court, arguing that the district had unconstitutionally punished her for speech made completely outside of the school that did not pose a risk of disruption.

Miss Levy won both a preliminary injunction, preventing the school from suspending her from cheerleading,[3]Preliminary injunction granted to plaintiff, B.L. v. Mahanoy Area School District, 289 F. Supp. 3d 607 (M.D. Pa., 2017). and then her case.[4]Summary judgment granted in favor of plaintiff, B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429 (M.D. Pa. 2019).

At that point, the Mahanoy Area School District appealed the decision. The judgement for Miss Levy had been in the whopping sum of $1.00, so it’s not as though the School District had lost a bunch of money. The School District lost again in the Court of Appeals for the Third District.

But, because the Third District’s ruling clashed with other rulings from other district Courts of Appeals, there was a justiciable split that the Supreme Court could, and did, address.

And so we come to Mahanoy Area School District v. B. L., a minor, by and through her father, Levy, et al., 594 U. S. ____ (2021). In the case, the 8-1 majority held that Miss Levy’s First Amendment rights had been violated by the School District, though the justices did not go as far as the Third District; the Court allowed that public schools had some authority over student speech, even if off of school grounds, such as when students are transiting to and from school, given that school attendance is compulsory. Justice Breyer concluded:

It might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary. See Tyson & Brother v. Banton, 273 U. S. 418, 447 (1927) (Holmes, J., dissenting). “We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.” Cohen, 403 U. S., at 25.

This, to me, is important, because it states that even the most trivial of speech is protected by the Constitution, and that officious little pricks have no authority to impose state punishment just because they don’t like what someone else has said.

Our representative democracy only works if we protect the “marketplace of ideas.” This free exchange facilitates an informed public opinion, which, when transmitted to lawmakers, helps produce laws that reflect the People’s will. That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.

In his concurring opinion, Justice Samuel Alito, with Justice Neil Gorsuch agreeing, wrote:

public school students, like all other Americans, have the right to express “unpopular” ideas on public issues, even when those ideas are expressed in language that some find “‘inappropriate ’” or “‘hurtful’”.

and:

But it is a “bedrock principle” that speech may not be suppressed simply because it expresses ideas that are “offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989); see also Matal v. Tam, 582 U. S. ___, ___–___ (2017) (slip op., at 1–2) (“Speech may not be banned on the ground that it expresses ideas that offend”); FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978) (opinion of Stevens, J.) (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it”); Young v. American Mini Theatres, Inc., 427 U. S 50, 63–64 (1976) (plurality opinion) (“Nor may speech be curtailed because it invites dispute, creates dissatisfaction with conditions the way they are, or even stirs people to anger”); Street v. New York, 394 U. S. 576, 592 (1969) (“It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers”).

The Court, in my opinion, gave less protection to Miss Levy’s speech than it should have. The justices reasoned that, though schools have a right to control some of what students say, such as not being allowed to be disruptive in class, what Miss Levy SnapChatted was be protected not because it was off campus — though they did allow that most off-campus speech did not fall under the school’s authority — but because it did no identifiable harm. It would have been far better to have stated simply that, once the student is out of school and off-campus, and not involved in any school-sanctioned event, his speech was protected, period.

More importantly, the freedom of speech must be protected, period. The left are doing everything they can to censor speech by conservatives, and though they are using mostly ‘private’ methods — if Twitter and Facebook can really be considered private entities anymore — we have reported on how even The New York Times and The Washington Post, among others, are now opposed to freedom of speech. The city of New York even has compulsory speech requirements. If these things are not fought, the freedom of speech will be lost.

The School District attempted to put lipstick on the pig of having lost:

The Mahanoy Area School District is pleased with and vindicated by today’s Supreme Court decision. The School District unanimously won the issue upon which it sought Supreme Court review: all 9 Justices rejected the Third Circuit’s conclusion that school districts lack authority to regulate off-campus speech. The Supreme Court held that it does “not agree with the reasoning of the Third Circuit.” The Supreme Court instead enumerated many examples of situations when school districts can regulate off-campus speech and made it clear that its list was not exclusive. So, although the Court upheld the $1 judgment in favor of Ms. Levy, we are very pleased that the Court agreed with our arguments about schools’ authority to address off-campus speech under a wide variety of situations. This decision is an important vindication of schools’ authority to protect students and staff and to fulfill schools’ educational missions.

https://www.thepiratescove.us/wp-content/plugins/wp-monalisa/icons/wpml_yahoo.gif The School District could have had that much had they simply not appealed the initial summary judgement. Instead they wasted scads of money, and wound up with eight Supreme Court Justices rhetorically bitch-slapping them for their rotten judgement.

I am amused. 🙂

References

References
↑1 Though the courts continued to refer to Miss Levy by her initials, they specify her father’s last name in the decision title, and her name is in the public domain on the Associated Press. I am not somehow ‘outing’ Miss Levy by the use of her name.
↑2 Justice Alito, in his concurrent opinion, made the greatest ‘Karen’ criticism of all: “(Miss Levy) did not send the messages to the school or to any administrator, teacher, or coach, and no member of the school staff would have even known about the messages if some of B. L.’s “friends” had not taken it upon themselves to spread the word”.
↑3 Preliminary injunction granted to plaintiff, B.L. v. Mahanoy Area School District, 289 F. Supp. 3d 607 (M.D. Pa., 2017).
↑4 Summary judgment granted in favor of plaintiff, B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429 (M.D. Pa. 2019).
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Alabama gets stupid about capital punishment A waste of time and money

Sometimes I have to wonder about the utter stupidity of some people. Willie B Smith III was sentenced to death in Alabama for the 1991 murder of Sharma Ruth Johnson in Birmingham. Mr Smith and his cronies abducted her at an ATM, forced her to withdraw $80 in cash, at which point they took her to a cemetery, upon which Mr Smith shot her in the back of the head.

The too-few readers of The First Street Journal know that I am opposed to capital punishment, but that is not the point of this article.

Mr Smith was scheduled to be executed, and requested that his pastor accompany him into the death chamber. The Department of Corrections refused, and Mr Smith’s attorney sued. The Court of Appeals for the Eleventh Circuit issued an injunction stating that Mr Smith had a right to have his pastor present. Alabama could have simply granted Mr Smith’s request, and proceeded with the execution, but no, the State had to get all high and mighty and appeal to the Supreme Court, where the state lost. From The Washington Post:

Supreme Court says Alabama cannot execute inmate without his pastor present

By Robert Barnes | February 12, 2021 | 8:12 AM EST

The Supreme Court said late Thursday night that Alabama could not execute a death row inmate without the man’s pastor by his side, and indicated that other states must find a way to honor final requests for a spiritual adviser in the death chamber.

The court’s order came an hour before Alabama’s self-imposed deadline of executing Willie B. Smith III, convicted of a 1991 robbery and murder. A lower court had put the execution on hold, and Alabama asked the Supreme Court to step in.

But the request divided the court’s conservative majority. For the first time since she joined the court in October, Justice Amy Coney Barrett sided with liberal colleagues in a capital punishment case, saying federal law requires states to make accommodations for prisoners like Smith.

Barrett joined an opinion by Justice Elena Kagan that said a federal law protecting the religious rights of prisoners set a high bar Alabama did not meet.

There’s more at the original.

I have to ask: why did the state not simply allow Mr Smith’s pastor into the execution chamber? If the pastor agreed to perform that onerous duty, and agreed not to be disruptive, there was no practical reason not to allow this. Faced with the injunction from the Eleventh Circuit, the State had to know that its legal position was shaky, and that if the Supreme Court declined to end the injunction, the execution date would pass with Mr Smith still breathing.

And that’s what happened. Mr Smith is still alive. As an opponent of capital punishment, I think that’s a good thing. More, it exposes just how stupid states can get when it comes to capital punishment. Pennsylvania, for instance, has 142 people on death row, but has actually executed only three men since the reinstatement of capital punishment in 1974 . . . and all three men “volunteered,” voluntarily dropped all of their appeals to just get it over. Despite all of the additional costs that come with a capital sentence, the Keystone State has not been able to put anyone to death against his will!

Governor Tom Wolf (D-PA) is an opponent of capital punishment, but does not have the authority to commute death sentences without the recommendation of the state Board of Pardons and Paroles. He can, and has, refused to advance any capital sentences toward execution. But, don’t blame Governor Wolf too much; the previous Governor, Republican Tom Corbett, a strong supporter of capital punishment, signed 47 death warrants during his four years in office, and there were still no executions during his term. Is not stupidity involved in maintaining capital punishment in the Keystone State?

California has 711 people on death row, but has executed only 13 since 1976, and the last one was in 2006. Is not stupidity involved in having capital punishment in the Pyrite State?

Alabama? Well, the state has been successful in carrying out executions, 67 of them since the restoration of capital punishment. But with the stupidity, and yes, stupidity is the right word, shown by Jefferson Dunn, Commissioner of the Department of Corrections, it’s amazing that he’s been so successful. It would have been far more efficient, and less expensive, to have simply granted Mr Smith’s last request. By doing that, the state would have been able to carry out the sentence; by fighting it, the state lost, and failed to carry out the execution.

Justice Brett Kavanaugh, who dissented from the decision not to vacate the injunction, wrote:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

But the Court has a different view and denies the State’s application. Given the stays of execution here and in Gutierrez v. Saenz, it seems apparent that States that want to avoid months or years of litigation delays because of this RLUIPA (Religious Land Use and Institutionalized Persons Act) issue should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done. Doing so not only would satisfy inmates’ requests, but also would avoid still further delays and bring long overdue closure for victims’ families.

In other words, Justice Kavanaugh said to states which still have the death penalty, don’t be stupid!

As the Post noted, while we know that Chief Justice John Roberts and Associate Justices Clarence Thomas and Kavanaugh sided with Alabama, the votes of Justices Neil Gorsuch and Samuel Alito are not mentioned. At least one of them must have voted along with Justices Elena Kagan, Sonia Sotomayor, Steven Breyer and Amy Barrett, to form a majority.

The easiest non-stupid thing to do would be to simply eliminate capital punishment. It’s actually cheaper to imprison someone for life than it is to execute him. And Alabama’s stupidity in this case is just one more in a long list of dumb behavior the courts have had to adjudicate as states have tried to put people to death.

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Rights delayed are rights denied — again!

As I noted in Rights delayed are rights denied, Governor Andy Beshear’s executive order closing all public and private Kindergarten through 12th grade schools had been expeditiously appealed, but the Supreme Court sat on the case. Now, in Danville Christian Academy v Beshear, the Court did just as I guessed it would: it let the case go moot.

On November 18, the Governor of Kentucky issued a temporary school-closing Order that effectively closes K–12 schools for in-person instruction until and through the upcoming holiday break, which starts Friday, December 18, for many Kentucky schools. All schools in Kentucky may reopen after the holiday break, on January 4. . . . .

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed.

Uhhh, yes, there is! Governor Beshear has already ‘recommended’ that schools delay opening another week, until January 11th, and while he did not make that an order, quite possibly because he knew it would impact the case and it contradicted his own Court filing, he is now free to make it an order.

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

In other words, the Court would entertain a new case, should the Governor issue another executive order, but all of that takes time, and money. With Christmas break about to start, the Governor could easily wait until Saturday, January 2nd, to issue another executive order. Since the Sixth Circuit’s order is the current precedent, a trial judge would have to deny another request for a stay, then it be appealed to the Sixth Circuit, which would almost certainly rule the same way, followed by an application to the Supreme Court, and how many weeks more would the free exercise of religion and freedom of assembly be denied to the people of the Bluegrass State?

In his dissent, Justice Samuel Alito noted that the delay was not the fault of the appellants:

(I)n my judgment, it is unfair to deny relief on this ground since this timing is in no way the applicants’ fault. They filed this action on November 20, 2020, just two days after the issuance of the Governor’s executive order. And when, on November 29, the Sixth Circuit granted a stay of the order that would have allowed classes to resume, the applicants sought relief in this Court just two days later, on December 1. It is hard to see how they could have proceeded more expeditiously.

Justice Neil Gorsuch also dissented:

Nor should a Governor be able to evade judicial review by issuing short-term edicts and then urging us to overlook their problems only because one edict is about to expire while the next has yet to arrive. Come January 4, a new school semester will be about to start, and the Governor has expressly told us that he reserves the right to issue more decrees like these if and when religious schools try to resume holding classes. Rather than telling the parties to renew their fight in a month, asking the Sixth Circuit to resolve the case now, under accurate legal rules, would be better for everyone—from the parents who might have to miss work and stay home should decrees like these be upheld, to the state public health officials who might have to plan for school if they are not.

Courts have a broader equity at stake here too. In their struggle to respond to the current pandemic, executive officials have sometimes treated constitutional rights with suspicion. In Kentucky, state troopers seeking to enforce gubernatorial orders even reprimanded and recorded the license plate numbers of worshippers who attended an Easter church service, some of whom were merely sitting in their cars listening to the service over a loudspeaker.

Recently, this Court made clear it would no longer tolerate such departures from the Constitution. We did so in a case where the challenged edict had arguably expired, explaining that our action remained appropriate given the Governor’s claim that he could revive his unconstitutional decree anytime. That was the proper course there, as I believe it is here. I would not leave in place yet another potentially unconstitutional decree, even for the next few weeks.

For these reasons, I respectfully dissent. I would grant the application, vacate the Sixth Circuit’s stay, and remand the matter for further consideration under the proper legal standards.

As Justice Gorsuch noted, the Court could have vacated the Sixth Circuit’s stay, and then the expiration of the Governor’s order would have been forced to stay expired. If the Governor wanted to close religious schools again, he’d have to go at it differently.

I will admit it: I had higher hopes for Justices Thomas, Kavanaugh and Barrett on this case.

Of course, the vast majority of students in the Commonwealth attend the public schools, over which the Governor indisputably has authority. If the Governor wanted to close down the public schools, he could do so. Since it was only the religious private schools seeking relief, the Governor’s order would also apply to secular private schools.

As I wrote previously, I do not trust Governor Beshear: with the Supreme Court having dismissed Danville Christian Academy’s case as moot, I have very little doubt that Mr Beshear will once again enact executive orders restricting religious private schools. He has already indicated, as noted above, that he believes the schools should stay closed yet another week, and he could issue an order to that effect without any fear that the Supreme Court would invalidate it, because of the time factor.

I am hoping that the General Assembly, which will begin the next session in January with Republicans holding veto-proof majorities in both chambers, will amend KRS 39A to greatly limit the Governor’s ’emergency powers’ in a way which will both protect all of our constitutional rights from such orders and limit what executive authority he has to issue such orders to a brief time, requiring consent from the legislature for any extensions.
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Cross-posted on RedState.

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Some good news from the Supreme Court on Freedom of Religion But we still need more

I have frequently harped on written about Governor Andy Beshear’s (D-KY) attack on religious freedom by closing down private religiously affiliated schools, and noted that the Supreme Court has still not acted upon Danville Christian Academy’s appeal of the Sixth Circuit Court of Appeals upholding the Governor’s orders.

Danville Christian Academy’s case is facially different, because the Governor’s orders close down all schools, public and private, and are thus not treating the private or religious schools differently from the public ones, and that may be why the Supreme Court has not issued an injunction based on Catholic Diocese of Brooklyn v Cuomo.

However, there is some good news from the Court today, as documented by Amy Howe in SCOTUSblog:

Justices revive religious groups’ attempts to block COVID-related restrictions in Colorado, New Jersey

by Amy Howe | Tuesday, December 15, 2020 | 3:21 PM EST

The Supreme Court on Tuesday tossed out a pair of lower-court rulings that had permitted states to enforce COVID-related restrictions at worship services. The two brief orders from the justices instruct the lower courts to take another look at religious groups’ challenges to restrictions in Colorado and New Jersey – and this time, the justices indicated, the lower courts should decide the challenges in light of the Supreme Court’s Nov. 25 ruling that lifted New York’s COVID-related limits on attendance at worship services.

Tuesday’s orders are further evidence of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.

In the Colorado case, the justices threw out an Aug. 10 order by a federal district court that denied a request by High Plains Harvest Church, a small church in northern Colorado, to bar the state from enforcing capacity limits. Justice Elena Kagan dissented from Tuesday’s order, penning a brief opinion – joined by Justices Stephen Breyer and Sonia Sotomayor – in which she argued that the case was moot because Colorado has already lifted the limits at issue.

There’s much more detail at the original, but one thing is becoming increasingly clear: thanks to the replacement of Associate Justice Ruth Bader Ginsburg with Amy Coney Barrett, there is now a Supreme Court majority which strongly believes in freedom of religion, at least as far as activity in church is concerned. There may be less of that strong belief when it comes to religious schools.

Thanks to Amy Coney Barrett replacing Ruth Bader Ginsburg, we now have a Supreme Court majority that actually believe in the Freedom of Religion.

As an update to my article noting that the Court’s inaction on the Danville Christian Academy case, while Governor Beshaer’s response included the claim that his order was “a time-limited executive order that is set to expire in just four weeks,” January 4th, he has now “recommended” that in-person classes not be resumed until January 11th. With the case about to go moot — the Christmas holidays will be beginning in less than a week, and regularly scheduled classes wouldn’t resume until January 4th anyway — the Governor has not yet made it an executive order, so, presumably, it would not change his filing in the case.

But I do not trust Governor Beshear: if the Supreme Court dismissed Danville Christian Academy’s case as moot, I have very little doubt that Mr Beshear would once again enact executive orders restricting religious private schools. I am hoping that the General Assembly, which will begin the next session in January with Republicans holding veto-proof majorities in both chambers, will amend KRS 39A to greatly limit the Governor’s ’emergency powers’ in a way which will both protect all of our constitutional rights from such orders and limit what executive authority he has to issue such orders to a brief time, requiring consent from the legislature for any extensions.

That is what the Republican leadership have promised. However, a Supreme Court decision that religious schools are also protected under the First Amendment would provide relief for religious schools across the nation, where action by the General Assembly would protect only Kentuckians.
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Cross-posted on RedState.

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The justification for the change

With just one clause, Associate Justice Sonia Sotomayor has told us why the appointment and confirmation of Amy Coney Barrett to the Supreme Court was so important. In her dissent in Catholic Diocese of Brooklyn v Cuomo,[1]Page 29 Justice Sotomayor wrote:

I see no justification for the Court’s change of heart.

The justification is that Justice Ruth Bader Ginsburg, who had twice voted to deny the religious freedom rights of certain churches, in South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, was replaced by someone who supports the free exercise of religion, the First Amendment, and the Constitution of the United States.

Justice Sotomayor wrote in the typical Supreme Court vein, with a pretense that political choices aren’t part of the equation. They are, and everybody knows that they are, and it’s a very good thing that President trump was able to nominate and get Justice Barrett confirmed. The Democrats wanted to delay the nomination until after the election, hoping that Joe Biden would get to make the pick, and nominate someone with leftist opinions. Justice Barrett is a conservative, and exactly who we needed on the Supreme Court.

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The Supreme Court cared nothing about our First Amendment rights . . . while Ruth Bader Ginsburg was still alive With her replacement by Amy Coney Barrett, perhaps our rights will now be respected

Is the First Amendment to the Constitution of the United States controversial? Apparently to some of our friends on the left, it is. During a virtual event with the Federalist Society’s National Lawyers Convention, Associate Justice Samuel Alito said:

For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry and can’t be tolerated, even when there is no evidence that anybody has been harmed. The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.

You can’t say that marriage is a union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.

Here’s the story from The New York Times:

In Unusually Political Speech, Alito Says Liberals Pose Threat to Liberties

The conservative justice’s pointed remarks, which he made in a speech to the Federalist Society, reflected thoughts he has expressed in his opinions.

By Adam Liptak | November 13, 2020

President Donald Trump, Justice Samuel Alito, and Senator Ted Cruz at te White House in 2019. Photo by Doug Mills/The New York Times

WASHINGTON — In an unusually caustic and politically tinged speech, Justice Samuel A. Alito Jr. told a conservative legal group that liberals posed a growing threat to religious liberty and free speech.

The remarks, made at the Federalist Society’s annual convention Thursday night, mirrored statements Justice Alito has made in his judicial opinions, which have lately been marked by bitterness and grievance even as the court has been moving to the right. While Chief Justice John G. Roberts Jr. has tried to signal that the Supreme Court is apolitical, Justice Alito’s comments sent a different message

Coming as they did just weeks after Justice Amy Coney Barrett succeeded Justice Ruth Bader Ginsburg, giving conservatives a 6 to 3 majority, the remarks alarmed some on the left. But legal experts said there were few clear lines governing what justices may say off the bench.

The left were never alarmed, of course, when Associate Justice Ruth Ginsburg criticized then-candidate Donald Trump, but that’s different, don’t you know?

Naturally, the left waxed wroth over Justice Alito’s remarks:

Uhhh, just because you don’t like what someone says does not make it illegal. The First Amendment specifies:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Back to the Times/’ article:

On Thursday, Justice Alito focused on the effects of the coronavirus, which he said “has resulted in previously unimaginable restrictions on individual liberty.”

“I am not diminishing the severity of the virus’s threat to public health,” he said. “All that I’m saying is this, and I think that it is an indisputable statement of fact: We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”

Justice Alito was particularly critical of a ruling from the Supreme Court in July that rejected a Nevada church’s challenge to state restrictions on attendance at religious services.

The state treated houses of worship less favorably than it did casinos, he said. Casinos were limited to 50 percent of their fire-code capacities, while houses of worship were subject to a flat 50-person limit.

“Deciding whether to allow this disparate treatment should not have been a very tough call,” Justice Alito said. “Take a quick look at the Constitution. You will see the free-exercise clause of the First Amendment, which protects religious liberty. You will not find a craps clause, or a blackjack clause, or a slot machine clause.”

The ruling was decided by a 5-to-4 vote, with Justice Ginsburg in the majority. Her replacement by Justice Barrett may alter the balance on the court in similar cases, including a pending one from Brooklyn.

Associate Justice Amy Coney Barrett (Photo by Olivier Douliery / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)

In Calvary Chapel, Dayton Valley v Steve Sisolak, Governor of Nevada, the Court’s four liberal Justices, joined by Chief Justice John Roberts, denied injunctive relief, but did not issue an opinion. The four conservatives, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Alito, strongly dissented. What Justice Alito stated at the Federalist Society’s meeting was essentially what he wrote in his dissent. In the upcoming case, Roman Catholic Diocese of Brooklyn v Andrew Cuomo, Justice Ginsburg has gone to her eternal reward, and Associate Justice Amy Coney Barrett, a devout Catholic, has replaced her. With the Brooklyn case, we can hope that the freedom of religion will once more be respected.

While no opinion was issued in Calvary Chapel v Sisolak, in a similar case, South Bay Pentecostal Church v Gavin Newsom, the Chief Justice wrote a concurring opinion, in which he simply deferred to the judgement of “local officials (who) are actively shaping their response to changing facts on the ground.” The fact that the free exercise of religion and the right of the people peaceably to assemble as they choose were of no moment to the Chief Justice.

I suspect that they will be of some moment to Justice Barrett.