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Wednesday round-up

This morning the justices will close out the January session with one oral 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. Amy Howe previewed the case for this blog, in a post that first appeared at Howe on the Court. Gabrielle Kanter and Prachee Sawant have a preview at Cornell Law School’s Legal Information Institute. At Subscript Law, Mariam Morshedi provides a graphic explainer for the case.

At Reuters, Andrew Chung reports that “[t]hough the plaintiffs are asking the justices to rule in their favor on the tax credit program, Trump’s administration has a broader goal in mind: knocking out state constitution no-aid provisions,” known as Blaine Amendments, which prohibit state support of religious schools. At NPR, Nina Totenberg reports that, “[g]iven that Montana is one of 38 states with a ‘no-aid’ provision, the court’s eventual decision could have far-reaching consequences.” Steven Mazie takes a quick look at the case at The Economist’s Espresso blog. In an op-ed for Time (via How Appealing), Paul Clement and Jeanne Allen argue that the “absurd result” of the lower court’s decision, that “Montana is denying everyone a scholarship to prevent anyone from using funds at any school with a religious affiliation,” “reflects the broad hostility underlying the Blaine Amendment — it is better for everyone to lose a benefit than for a single dollar to find its way to a religious school.” Additional commentary comes from Jeremy Dys at The Daily Wire.

Yesterday the court issued additional orders from Friday’s conference; the justices did not add any cases to their merits docket, and they asked for the federal government’s views in four cases, two of which are consolidated. This blog’s coverage of the order list, which first appeared at Howe on the Court, comes from Amy Howe. For The Wall Street Journal (subscription required), Brent Kendall and Stephanie Armour report that the court “denied requests to quickly decide the fate of the Affordable Care Act, a move that could give the health-care law less political urgency ahead of the 2020 election.” At Bloomberg Environment, Ellen Gilmer reports that the court “won’t review a closely watched civil rights case stemming from the Flint water crisis.”


  • At CNN, Joan Biskupic reports that “[a]s Chief Justice John Roberts presides over the Senate trial of President Donald Trump, he has a highly public perch but little control.”
  • In a report at Take Back the Court, Patty Judge and Aaron Belkin “argue that the decline of small farms and rural communities has been, to a large degree, a result of Supreme Court and lower federal court decisions that favor corporate interests over those of small farmers.”
  • Leah Litman analyzes yesterday’s argument in Shular v. United States, involving how to determine what constitutes a “serious drug offense” under the Armed Career Criminal Act, for this blog.
  • At The National Law Journal, Tony Mauro reports that an essay written by Justice Robert Jackson, who “has long been revered by lawyers across the spectrum,” “nearly 70 years ago has just surfaced, and it casts a new light on his views about religion.”
  • At Reuters’ On the Case blog (via How Appealing), Alison Frankel looks at two cases the court agreed last week to hear “in which Ford is challenging rulings by state supreme courts that allowed state residents involved in in-state car accidents to proceed with product liability suits against Ford.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Jan. 22, 2020, 7:01 AM),