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We’re hosting a symposium on the Roberts court and the First Amendment’s religion clauses. In a series of six essays, scholars and commentators will analyze major decisions from the 2019-20 term and look to the future of the court’s religion jurisprudence. Click to follow along.

This article is part of a SCOTUSblog symposium on the Roberts court and the religion clauses.

Erwin Chemerinsky is the dean and Jesse H. Choper distinguished professor of law at University of California, Berkeley School of Law. Howard Gillman is the chancellor and a professor of political science and law at University of California, Irvine. Their book, “The Religion Clauses: The Case for Separating Church and State,” will be published by Oxford University Press in September.

Although there were a number of surprising victories for liberal positions in the 2019-20 Supreme Court term, there was one area where the conservative position consistently prevailed: the protection for religion.

It is becoming increasing clear that longstanding principles concerning the First Amendment’s religion clauses are being discarded by the conservative justices. These justices are bent on eliminating many of the limits on direct government involvement in religious activity. They are loosening restrictions on the use of tax dollars to support religious practice and instruction and, indeed, requiring government financial support for religious institutions. They are eager to exempt private religious individuals from the need to comply with general laws promoting public health and protecting against discrimination.

A year ago, the court signaled its shift with regard to the establishment clause. This term, a number of cases focused on free exercise. And the coming term again will give the conservative justices the opportunity to make even more dramatic changes. Continue reading »

Thursday round-up

By on Aug 6, 2020 at 7:00 am

In the latest entry on the Supreme Court’s unofficial coronavirus docket, the court divided 5-4 on Wednesday over health-and-safety protocols designed to curb the spread of COVID-19 in a California county jail. The five conservative justices voted to temporarily put a stop to a lower court’s injunction that had required the jail to take various specific steps, such as allowing inmates to engage in social distancing. SCOTUSblog’s full story on the emergency ruling is here. Additional coverages comes from Adam Liptak of the New York Times and Greg Stohr of Bloomberg. Continue reading »

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A divided Supreme Court on Wednesday revoked a lower-court order that required a California jail to implement stricter health and safety measures in response to the coronavirus pandemic. The 5-4 decision to undo the lower court’s injunction is the latest in a series of emergency rulings the justices have issued in disputes relating to the pandemic.

The decision drew an eight-page dissent from Justice Sonia Sotomayor, who accused the five-justice majority of disregarding the lower court’s factual findings and removing crucial judicial supervision of a jail that, she wrote, has “failed to safeguard the health of the inmates in its care.” Sotomayor also reiterated a concern that she raised last week about the court’s recent willingness to intervene on an emergency basis and second-guess lower courts’ judgments about how to manage pandemic-related litigation. Continue reading »

This article is part of a SCOTUSblog symposium on the Roberts court and the religion clauses.

Mark Rienzi is president of the Becket Fund for Religious Liberty, which represents parties or amici in many of the cases described below, including Bostock v. Clayton County, Little Sisters of the Poor v. Pennsylvania, Our Lady of Guadalupe School v. Morrissey-Berru, Espinoza v. Montana Department of Revenue, Fulton v. City of Philadelphia and Tanzin v. Tanvir. Rienzi is also a professor of law at the Catholic University of America Columbus School of Law, and a visiting professor at Harvard Law School.

This term had it all: blockbuster opinions, a presidential impeachment trial and a global pandemic that closed the court, necessitating historic oral arguments by telephone. It was a stormy year for the nine justices who — like the nation they serve — were often deeply divided over important questions and dealing with chaotic circumstances.

Amid the turmoil, there was one area of the law in which the justices seemed to be weaving together a set of precedents that could nurture some long-term peace. The term’s religious liberty decisions touched on a wide variety of subjects: teachers at religious schools, religious exemptions from federal mandates and state constitutional provisions rooted in anti-Catholic bigotry. But all of the court’s religion-related decisions harmonized around the principle that, despite all our honest and deep-seated disagreements about important questions, robust protection for religious dissenters is essential to our living together in a pluralistic society. Continue reading »

Wednesday round-up

By on Aug 5, 2020 at 7:00 am

The movement to impose term limits on Supreme Court justices gained a bit of traction this week with an endorsement from a prominent think tank with deep ties to the Democratic establishment. In a new report, the Center for American Progress argues that term limits would depoliticize the judicial confirmation process and make justices more responsive to the public, and in a Tuesday webinar tied to the report, a panel of experts explained various term-limit proposals. In a story for SCOTUSblog, Kalvis Golde provides a detailed summary of the webinar, including the panelists’ discussion of the constitutional issues raised by attempts to establish term limits by statute. At Bloomberg Law, Kimberly Strawbridge Robinson has additional coverage of the CAP report. The report comes at an important time for Democrats: They will soon be releasing a new party platform, and as Carl Hulse reports for the New York Times, they are promising to use the platform to fight for “structural court reforms,” which could include term limits. Continue reading »

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Term limits for Supreme Court justices, once a fringe idea, have seemingly entered the political and academic mainstream. Recently, both the conservative Federalist Society and the liberal American Constitution Society have hosted events and published scholarship on the question. The Center for American Progress joined the conversation on Tuesday with a virtual discussion of recent term limit proposals, their constitutionality and what it would take to enact them. Continue reading »


This article is the first entry in a SCOTUSblog symposium on the Roberts court and the religion clauses.

Leslie C. Griffin is the William S. Boyd professor of law at the University of Nevada, Las Vegas. She is the author of Law and Religion: Cases and Materials. She wrote amicus briefs in support of the respondents in Little Sisters of the Poor v. Pennsylvania and Our Lady of Guadalupe School v. Morrissey-Berru, and she is writing an amicus brief in support of the respondent in Fulton v. City of Philadelphia.

The First Amendment has two religion clauses: establishment and free exercise. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Religion won several cases during the Supreme Court’s 2019-20 term, and it could win more in the upcoming term.

That sounds like a great idea. But it is not.

Religion’s victories are bad for civil rights, especially for rights of women, LGBTQ individuals and people of color. As religion’s influence increases at the court, victories for civil rights decrease. The court’s recent cases confirm that some religious exemptions are incompatible with civil rights. Things could get even worse this coming term for civil rights, as religions appear to repeatedly trump civil rights — even those of religious people. Continue reading »

Tuesday round-up

By on Aug 4, 2020 at 8:16 am

This week marks the 10-year anniversary of Justice Elena Kagan’s confirmation to the Supreme Court, and USA Today’s Richard Wolf examines the heavy influence she has had during her first decade as a justice. Kagan’s ability to find common ground with conservative justices – and to pick her battles when she dissents – has helped the court maintain “most of its luster as the least political branch of the federal government,” Wolf writes.

At the same time, the political branches continue to focus on the court during this election year. Sahil Kapur of NBC News reports that “Democrats are warning Republicans not to fill a possible Supreme Court vacancy this year after denying President Barack Obama the chance in 2016, saying it would embolden a push on the left to add seats to the court whenever they regain power.” In a Washington Post column, Paul Waldman commends the Democrats’ threat to add seats to the court and calls on the party’s presumptive presidential nominee, Joe Biden, to support the threat if Republicans attempt to fill a last-minute vacancy. Continue reading »

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The Affordable Care Act will come before the Supreme Court this fall for the seventh time in eight years. Julie Rovner, the chief Washington correspondent for Kaiser Health News and a veteran health policy reporter, joins Amy Howe in the latest episode of SCOTUStalk to break down the case, California v. Texas. They talk about the history of ACA challenges and why this time is different. Amy and Julie also pick apart some potential clues from this past term about a key issue in the case: the severability doctrine.

Listen on: Spotify | Acast

Monday round-up

By on Aug 3, 2020 at 7:00 am

August is here and the Supreme Court is well into its summer recess, but the court has been anything but quiet. Since July 9, when the court handed down its final opinions in argued cases for the 2019-20 term, the justices have continued to issue a string of high-profile rulings in response to emergency requests in ongoing litigation. Most recently, as Amy Howe reports for SCOTUSblog (in a story first published at Howe on the Court), the court on Friday afternoon allowed the construction of President Donald Trump’s border wall to continue, despite lower-court rulings that said funding for the project was not authorized. One day earlier, the court intervened in an Idaho election dispute to reinstate stricter rules for gathering signatures as part of a ballot initiative. Jess Bravin of the Wall Street Journal has additional coverage of the border-wall ruling as well as a story that puts the Idaho ruling in the context of the court’s other recent election-related orders — in which, Bravin writes, the conservative justices have consistently voted to “overturn lower court directives to extend balloting or take other measures because of the pandemic.” In the Washington Post, Robert Barnes observes that the court’s “customary summer lull” is nowhere to be found this year, and the rapid pace of consequential emergency orders is likely to continue into the fall. Continue reading »

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