Open Thread: SCOTUS Release Day 1 of 2

This is an open thread focused on Supreme Court orders and decisions expected to be released today, Tuesday June 21, 2022.

More will be released on Thursday, June 23.

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68 replies
  1. Rayne says:

    I feel terrorized waiting for Dobbs. I shouldn’t feel this way in my own country, the so-called land of the free.

    • Rugger9 says:

      Those antediluvians at the Heritage Foundation thoughtfully put out their guide for model legislation which also prayerfully includes what to do about those hysterical women (in their view, not mine) who are now condemned to carry children to term regardless of any consequences. Nothing of course about what to do with the dead which will surely pile up, the kids who cannot be cared for, including several nasty genetic defects that make to birth with severe disabilities for the children. Sometimes those defects (like trisomy) have short life spans but some run considerably longer. If the RWNJs insist on forced birth, they can provide full child support for their demands but being shameless hypocrites, they won’t because it’s more fun for them to shame others, even rape victims.

      They’ve already started questioning miscarriages, in some cases prosecuting those and legal abortions too. HIPAA protections about privacy will be swept aside as well.

  2. bmaz says:

    Surprising no one here is paying attention to the Carson v. Makin decision. It is HUGE. This can, and likely will end up in complete demolition of the was between church and state vis a vis public education. As Mark Stern notes:

    “Does this ruling mean that states must provide equal funding to private religious schools and public schools? Taken at face value, Roberts’ decision has the potential to dismantle secular public education.”

    It certainly does, and I think will soon.

    • Rayne says:

      I’m sorry, did you say something? I was busy barfing my guts out in the bathroom about federal tax dollars being used to support religious schools.

      • Disraeli56 says:

        So can I expect to see a madrassa on every corner?

        Oh – I’ve just been informed that is the wrong religion worshipping the wrong omnipotent deity.

        • Rayne says:

          I’m going to work with the local Satanic Temple to see if we can set up a School of Satan. There’s already an After School Satan Club, why not a school before the club? ~smh~

        • bmaz says:

          That is a duality the right wing six do not see or care about. Indeed, the zealot churches get tax money, but don’t pay any. It is sick.

        • Rayne says:

          Free as in free beer or as in free puppy? They can be financially responsible for their use of the commons.

        • bmaz says:

          As I recall, there is a previous decision that if governments are providing funds for rehabbing public school playgrounds and common areas, they must to these people as well.

        • Peterr says:

          Yes – Trinity Lutheran v Comer, from right here in Missouri.

          (The plaintiff in that case is part of the conservative Lutheran Church-Missouri Synod, not my more moderate/liberal branch of the Lutheran church, the Evangelical Lutheran Church in America.)

        • Franktoo says:

          In Zelman v Simmons-Harris, the SC already decided that school voucher programs are constitutional when they let parents choose whether to spend money from the state at a secular or religious schools.

        • Franktoo says:

          Bmaz: The idea in both cases is that parents are choosing to spend money given to them by the state on religious schools; the state isn’t choosing to fund religious schools. If you refuse to allow funds to go to religious organizations for the same purposes that you give funds to secular organizations, you are discriminating against religion; and if you give a penny to a religious organization, the state is establishing a religion. Both extremes seem to be unreasonable, but the latter is more unreasonable – until you remember how bad religion has been historically and still is for some groups. The Lemon test was a reasonable attempt to draw a line that doesn’t satisfy extremists on either side.

          I think we need a religion or two that THESE conservative justices would find revolting: The Church of White Supremacy? The Church of Polygamy? (Oops, we had that one.) The Church of Female Supremacy, which requires all men to take testosterone antagonists to tame male aggression (except when wives want to get pregnant)? OK Justices, do you REALLY want parents to be able to use public funds to send their child to THESE religious schools. For these Justices, religion is experienced as a force for good. When we feared being ruled by “Papists”, the SC placed more emphasis on the establishment clause.

    • Peterr says:

      I’m paying attention.


      As Sotomayor notes at the conclusion to her dissent (cited in my longer comment below), we’ve gone from the separation of church and state being a constitutional commitment to a constitutional slogan to a constitutional violation.

      • bmaz says:

        Blergh indeed. And ADF, Heritage and FedSoc are already hard at work preparing the final nail. It is coming.

    • dadidoc1 says:

      Might it also, more positively, mean the end of all voucher programs? I’d consider that a win.

  3. Peterr says:

    Carson v Makin is about a Maine law that requires — not just allows, but requires — local school districts to pay tuition to religious high schools chosen by a parent if the local district does not have a high school. First, what kind of place has no public high school? Second, you know where this was going to end up; the only question was the vote.

    6-3, requiring Maine to pay the church.

    Breyer, with the lead dissent:

    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.

    Sotomayor, who mostly agrees with Breyer but wants to emphasize a few things of her own:

    The Court’s increasingly expansive view of the Free Exercise Clause risks swallowing the space between the Religion Clauses that once “permit[ted] religious exercise to exist without sponsorship and without interference.”

    Also it would appear that no one writes a conclusion like Sotomayor:

    What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Trinity Lutheran, 582 U. S., at ___ (dissenting opinion) (slip op., at 27). Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic anti-establishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.

    I share her growing concern.

    • Bobby Gladd says:

      Decades ago, when I lived in Knoxville Tennessee, we had recurring news of this irritating Fundie troublemaker by the name of Vicki Frost. One of her perennial favorites was loudly objecting to Halloween festivities or artwork in public schools, claiming that it promoted “devil worship.“

      She then sued to force the state to pay for her kids to go to Fundie Evangelical Christian schools, arguing that they should not be exposed to the evils of “ secular” education. That she was free to do so on her own dime did not matter. To her, “equal protection” required the taxpayers to pay for her kids to be sheltered from all things secular.

      She lost. But, today is a whole new SCOTUS climate, is it not?

    • PieIsDamnGood says:

      Apparently half the school districts in Maine lack a high school! What appears to be a perfectly valid approach to dealing with an aging population in a rural state gets trashed, and we’re forced to finance the next generation of christian nationalists. Fuck.

      “The court’s ruling came in a case from Maine, a state so rural that half of its school districts have no public high school. The state deals with that problem by contracting with nearby high schools in other districts to take those students. The state pays the average cost of tuition, a bit over $11,000. In addition, it pays the same amount for nearly all of the 4,800 students who attend 11 private, non-sectarian academies, many of them located on the green at the center of the towns where they are located.”

      • Peterr says:

        In Illinois (and perhaps elsewhere), there are various places where the elementary school districts are separate from high school districts. The geographically smaller elementary districts feed into the larger high school districts. Taxpayers pay one tax to the elementary district and a separate tax to the high school district, which eliminates this whole “out of district tuition” trap that Maine has created for itself.

        This is not difficult to deal with.

        • P J Evans says:

          The elementary schools and the high school I went to were in separate districts until the mid-1960s. In California. It’s been a “Unified School District” since then. (At that point there were about six grade schools, three junior highs, and two high schools in the two districts.)

        • Epicurus says:

          Justice Roberts gave a tortuous opinion that reminded me of the box game Labyrinth with the steel ball rolling through tilting maze. The non-religious, non-public school funding problem is easy to solve in different ways, including Peterr’s suggestion. Justice Roberts gave Maine the blueprint. It is whether Maine wants to do some focused work to supersede their poor current funding criteria set-up.

          To Peter’s question below about RC justices not grasping whether they are Christian enough, I would say they not only grasp the concept they are acting to prove it. Justice Barrett, as an example, thinks the law and, I imagine, the SC itself are only mechanisms to institutionalize her belief that the fundamental purpose in life is to serve God – considering her 2006 ND Law School grad speech.

          I am reminded of a quote from Jacques Barzun in all this: “of these components (of the Puritan legacy in the US), the narrow moralism and the social repression of dissent were to affect the future United States for a long time and more deeply than their opposites.” It would seem still affecting us deeply.

        • Spencer Dawkins says:

          Peterr, re: “This is not difficult to deal with”.

          Spencer’s opinion is that most problems are solvable, and maybe solvable easier than we think, but the first step toward solving a problem is realizing that you .HAVE a problem.

          If I’m following this comment thread correctly, Maine SOLVED a problem by sending kids to (one hopes) better high schools with more resources than they would have had in small districts surrounded by an aging population, and didn’t realize that they HAD A NEW PROBLEM until, maybe, this afternoon?

    • Phil A says:

      “what kind of place has no public high school?”

      The kind of place that forces children into indoctrination mills.

      “Bend your knees to Jesus or home school your kids – your choice”

      • bmaz says:

        More garbage commentary from you. You need to give it a rest. That is not at all the reason, Peter explained why. Cut the BS out. Immediately.

    • Rugger9 says:

      What concerns me the most is that only ONE interpretation of religion will be allowed. Cuius regio, eius religio went out in the 18th century after several bloody religious wars were fought all over the world to do exactly what the majority wants to be done. We already have the USAFA (among other commands, but the USAF is the worst) problems with Dominionist proselytizing that keeps the MRFF in business, and I wonder whether these six are going after the military next.

      Don’t the Roman Catholics on SCOTUS grasp they’re not ‘christian’ enough for the Dominionists, even the Opus Dei faction? How about the Mormons? How about the the church of L. Ron Hubbard? All of these are quite conservative and serious about their religion too.

      So, I agree with others on this topic that the Satanists and everyone else should immediately set up their own schools and sue if they aren’t given the same goodies. It worked in OK when the Dominionists tried to set up a religious enclave at the state capitol.

      • Peterr says:

        “Don’t the Roman Catholics on SCOTUS grasp they’re not ‘christian’ enough for the Dominionists, even the Opus Dei faction?”

        Sotomayor certainly grasps this.

      • Peterr says:

        Back in the 1980s, church historian Martin Marty offered up an observation and a question, when the topic of “the Judeo-Christian heritage” of the country and the need to defend it or reassert it was brought up by those on the right.

        Observation: Jews and Christians really *do* believe different things.

        Question: even within the largest protestant denomination, Southern Baptists, whose vision of Judeo-Christian are you talking about: Jesse Jackson’s or Jesse Helms’?

        • Savage Librarian says:

          Which brings to mind: If churches receive federal funds (or state funds funneled from the federal government) then wouldn’t they also be subject to all federal civil rights laws? If I recall correctly, that’s why my case against the city ended up in federal court, because of how funds are disbursed. If so, then the church schools might be on the receiving end of some unforeseen civil suits eventually.

        • Rugger9 says:

          That is a very fair question. This is a principal motivation to be privately funded, to avoid the strings that are attached (i.e. Title IX, etc.) with accepting federal money. However, I would read into this decision that the majority thinks that even minimal requirements for federal money are unenforceable. However, IANAL.

          Thanks, Peterr, for reminding us that many denominations are a continuum of views which is why I usually refer to Dominionists specifically.

        • Peterr says:

          Following Hosanna-Tabor v EEOC and its interpretation of the Free Exercise clause, churches are given extremely wide latitude to determine which of their employees are considered “ministers” and are therefore exempt from all kinds of employment law. In Carson, they cited this case as they took the Free Exercise clause to another level.

          There’s no way that Carson will be used to somehow force churches to be subject to these laws and others like them. If anything, it will make it harder.

        • Savage Librarian says:

          I was thinking more about the rights of students and their parents. When I contacted the Dept. of Ed. Office for Civil Rights, they made the library change the special policy they made for a white supremacist group. Plus they mandated systemwide training on what constitutes harassment. If a student suffers from some kind of discrimination, they may have avenues they can pursue.

        • Peterr says:

          Given Hobby Lobby and its subjection of employee’s rights to employer’s rights, I think not.

        • Savage Librarian says:

          Again, I’m not talking about employees. Dept. of Ed. office for Civil Rights did NOTHING for me. I had to pursue my own legal avenue. But they did ensure the members of the community (students, parents, etc.) were better served by changing policy and making sure staff understood those rights.

  4. earlofhuntingdon says:

    If states are required to fund religious schools on par with state schools, then they should lose their tax exemption.

    This Court’s majority is not promoting “non-discrimination” against religious institutions. It is preferring them over state institutions, in order to prefer their own religion. Nothing about either position is remotely constitutional, but it’s what this majority wants, the Constitution be damned. Expand The Fucking Court.

    • dimmsdale says:

      If this is the wrong place to ask (because: too speculative or divergent) go ahead and delete my comment. BUT: let’s pretend, in say 3 years hence, we live in a country with Democratic pluralities in both houses, and somehow the Sup Court can be expanded to perhaps bring in some non-crazy voices. What’s the feasibility of reversing some of this radical theocratic Supreme Court hijacking? What would it take?

        • TobiasBaskin says:

          But how ‘stare’ is this dicision? Aren’t there dozens (hundreds) of decisions whose force is to prevent the government from funding religion? Overturning this case (assuming there is some way that could happen) would seem to uphold stare decisis, not the reverse.

        • bmaz says:

          Yeah, if a SCOTUS decision is on the books, it is stare decisis. But obviously such can be set aside and ignored these days.

        • Troutwaxer says:

          The Republicans have turned the Supreme Court into the Supreme Clown Posse. As far as I’m concerned the court lost it’s legitimacy the second McConnel refused to let Merrick Garland’s candidacy come up for a vote. Trump’s nomination of crazed religious fanatics made that legitimacy problem much worse. At this point my feeling is that the Supreme Clown Posse is composed of four judges and five whackjobs!

        • bmaz says:

          Except that they are, by definition, legally “legitimate” by the Constitution, and it is irrelevant how many people think they are not.

        • Troutwaxer says:

          Hopefully we won’t find out what happens when a really, really large number of people come to believe the Surpreme Court is illegitimate. But we’re very close to getting there – thank you Democratic inertia!!

        • Peterr says:

          The Roberts Court can both set precedent aside AND affirm the earlier opinion’s logic, all in the same case. See Trump v Hawaii where a 5-4 SCOTUS vigorously declared Korematsu overruled and at the same time employed its logic to support Trump’s travel ban.

          And no amount of Roberts’ whining about Sotomayor pointing this out in her dissent can change that fact.

    • Building Guy says:

      Hell Yes.

      This takes SCOTUS beyond any reasonable presumption of judicial restraint and down the rabbit hole of religious advocacy. All they left out is any logical tether to our constitutional order.

      Take this insanity to the next level. Are we going to provide property tax exemption or tax subsidies for home schooling? Sounds like our Christian patriarchs envision tapping taxpayer resources to penalize the teaching professions and reward their personal Handmaidens.

      Quoting my favorite grandfather, that’s a real “shit for brains” idea….

      • Spencer Dawkins says:

        Both of my grandfathers passed away while I was fairly young (one in elementary school, the other while I was still in high school).

        Re: Quoting my favorite grandfather, that’s a real “shit for brains” idea”

        If your favorite grandfather is still living, please tell him he’s also MY favorite grandfather.

  5. Doctor My Eyes says:

    Very hard day. I keep thinking of the Texas twitter comment: “We’re not a red state, we’re an oppressed state.” It’s amazing: they hate pubic schools, they hate the post office, they hate our military alliances, they hate women, they hate people of color, they hate . . . .

    • Doctor My Eyes says:

      I also keep thinking of Justice Thomas phrasing the abortion question in terms of winning and losing. Such an impoverished view of the law and society.

      • J R in WV says:

        Don’t you mean “Justice” Thomas? I think the quotes to indicate a total lack of the concept of justice from all of his opinions are quite necessary, essential, in fact. Same for beerboy and Amy — no justice allowed in their minds.

  6. Hug h says:

    When drumpf won the nomination my first thought was “this will eventually be seen as a last gasp “extinction burst” event for the formerly grand old party”. Here we are 6 yrs later (after the first non peaceful transfer of power in our Nations History) January 6th Hearings in the House and insane RWA “krischin” Nationalist Rulings dropping from SCOTUS.

    Maybe this is the apotheosis of it all, when the pendulum has swung WAY too far and the people finally say ENOUGH! I keep imagining a better a better day in the future for my daughter… our children… please…

  7. Ddub says:

    This court is the stuff of nightmares. Like the daguerreotypes of Civil War Justices.
    As a agnostic deist I am naturally leery of any belief system purporting to speak for God. Some members of this court seem to believe that God is guiding them, which to me is the most ancient fallacy of all. Or con.

  8. gmoke says:

    If this is too off-topic for this thread, I apologize as I am inquiring about a previous Supreme Court decision.

    Correct me if I’m wrong but doesn’t Egbert v. Boule, the Supremes’ decision that most Federal officials can violate any citizen’s Constitutional rights without fear of being held to account, mean that Trmp 2.0 or DeSantis 1.0 can run roughshod over anyone who disagrees with them without any legal recourse?

    If so, I would venture to say that it’s all over but the shouting and the Köpenick Massacre is our future as well as our past.

  9. Commentmonger says:

    scotusblog has a good general overview of the logic.
    I agree with Roberts. The State of Maine created the problem by funding private schools as an option, without having the private schools adhere to the same standards as the public ones. They shouldn’t be funding ANY private schools with public money, but if they do, they can’t discriminate against private religious schools. It could be Jewish, Christian, Satanic (I am so hoping they start a grade 1-12 program), Muslim, whatever.

    Because I can see that devolving into how religious is too religious? who decides what beliefs are taught? Just for religious schools who don’t discriminate??

    The best solution is to charge religious groups and entities the exact same way as private non/profit entities in terms of taxes, and also STOP funding private education in any form from public money.

    • bmaz says:

      Sure they can. One is secular, even if private. The other is religious zealot based and propagating. There is a very clear basis to distinguish the two.

  10. ernesto1581 says:

    a couple (further) thoughts re: Carson v Makin.

    Maine and Vermont are the only two (remaining) states which have historically tuitioned students from rural, sparsely populated regions to existing private schools or academies. The caveat has always been, however, that public dollars can only be used to pay tuition to private schools if the private schools are secular. This is longstanding practice, dating back well over a hundred years.

    In his dissent on Carson v Makin, Breyer noted that Bangor Christian School and Temple Academy, the two schools in question, “…have admissions policies that allow them to deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians.”

    In Vermont, things will undoubtedly be complicated by a clause in the state constitution prohibiting Vermonters from being forced to support a religion that is “contrary to the dictates of conscience.”

    Grace Christian School in Bennington VT, for example, a private school whose handbook for years has equated bestiality and homosexuality which it called “offensive to God.” (That paragraph has been recently removed but the sentiment and precept remains.)

    In June 2020, a federal appeals court ruled that four Vermont school districts which had no public high school were required to reimburse families for tuition paid to Rice Memorial High School, a Catholic school in South Burlington, largely following Espinoza v Montana Dept of Revenue. A strange finding given that the families in question all had the option of having their kids tuitioned to other, nonsectarian private schools, several in closer proximity to their homes.

    In addition, Vermont Board of Ed recently wrote new rules requiring publicly funded independent schools, including religious schools, to accept students receiving special education services. The ability to winnow out the expense (admittedly poorly-reimbursed by the Feds) of Special Ed students with such canards as “In Our school, All Students Are Special” has stuck in the craw of legislators and taxpayers alike for years. The same goes for the lack of oversight of private school instructors who are not required to hold state licensure.

    So where does it go from here — cut off public funding to independent schools in the state(s) entirely? contracts with “approved” independent schools only which bar discrimination against SPED/agnostic/LGBTQ+ students etc in order to receive public money? screwing down state regulations regarding school accreditation much tighter? Or will those things trespass in some way on “free exercise?”

    One thing: as every goddam tom, dick & harry preacher-man sets up shop in his garage with a couple of his neighbor’s children then gets in line with his hand out for state aid funds, will there be a “Test of Religious Authenticity” before the check is cut? Or will that also trespass on “free exercise?” Will the spigot open for religious schools, or only some? Will the dollars flow for a school set up by, say, a school established by The Church of the Flying Spaghetti Monster, or by The Green Mountain Anarchist Collective? (Murray Bookchin would have loved and hated that idea…)

  11. ernesto1581 says:

    correction: the Rice Memorial case cited above in fact involved a number of students from that high school who wished to take (state-subsidized) college classes under the Vermont Dual Enrollment program, but claimed to have been excluded because they attend a Catholic high school. 2nd Circuit reversed on appeal. boy, got that one wrong.

  12. Tom says:

    So I guess this decision means that whoever holds the office of President is not only Commander-in-Chief but also Defender of the Faith.

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