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Thursday round-up

Amy Howe analyzes yesterday’s argument in Espinoza v. Montana Department of Revenue, which asks whether Montana’s invalidation of a law that created tax credits to provide scholarships for families who send their children to private schools, including religious schools, was constitutional, for this blog, in a post that first appeared at Howe on the Court. Mark Walsh has a first-hand view of the argument for this blog. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel on an amicus brief in support of the respondents in this case.]

John Kruzel reports at The Hill that as the justices “grappled with whether religious schools can be excluded from government-backed scholarship programs in a case with potentially far-reaching implications for church-state relations,” the court “appeared to break along familiar ideological lines, with the more conservative justices expressing concerns about whether the Montana-based dispute amounted to religious discrimination.” Nina Totenberg reports at NPR that the court’s “conservative majority seemed ready to invalidate a provision of the Montana state constitution that bars aid to religious schools.” At Reuters, Andrew Chung reports that “Chief Justice John Roberts emerged as the possible pivotal vote in what will likely be a closely divided case, asking questions that reflected both the concern for public education and for the protection of religious people.” At Education Week’s School Law Blog, Mark Walsh reports that “several liberal members of the court questioned whether there was still a valid case because the entire Montana tax credit program had been struck down, so no scholarships were flowing to religious or secular private schools.” Jess Bravin reports for The Wall Street Journal (subscription required) that “[c]onservative groups backing the Montana suit hope it will pave the way for broader taxpayer subsidy of religious schools through vouchers and other programs.” Additional coverage comes from David Savage for the Los Angeles Times and Kevin Daley at the Daily Caller.

Mark Stern warns at Slate that “[h]owever this case turns out, it is only a matter of time before the court’s conservatives again manipulate the free exercise clause to finance religious exercise with taxpayer money.” At the Pacific Legal Foundation blog, Daniel Ortner urges the court “to once and for all repudiate anti-religious bigotry and to allow parents the option of sending their children to the school that is best for them.” Additional commentary comes from Leslie Griffin at Justia’s Verdict blog, and Joshua Davey in an op-ed for the New York Post.


  • This blog’s analysis of Tuesday’s argument in GE Energy Power Conversion v. Outokumpu Stainless, involving whether the international convention governing the enforcement of foreign arbitral awards allows someone who has not signed an arbitration agreement to nonetheless compel arbitration, comes from Ronald Mann.
  • For the Los Angeles Times, David Savage reports on Chief Justice John Roberts’ dual role this week presiding over Supreme Court arguments and the Senate impeachment trial, noting that “[d]espite some obvious differences in the two jobs, Roberts is playing a somewhat similar role in both places.”
  • At the Council of State Governments’ Knowledge Blog, Lisa Soronen weighs in on Lomax v. Ortiz-Marquez, arguing that “a dismissal without prejudice for failure to state a claim counts as a strike under the Prison Litigation Reform Act.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Jan. 23, 2020, 7:00 AM),