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Thursday round-up

Court-watchers are focusing on Espinoza v. Montana Department of Revenue, in which the court held on Tuesday that Montana’s exclusion of religious schools from a state-funded scholarship program for private schools violates the First Amendment. At Reason’s Volokh Conspiracy blog, Ilya Somin finds it “unfortunate” that the decision was “a close 5-4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting,” because “[s]triking down blatant government discrimination on the basis of religion should not be so controversial and divisive.” At National Review, Dan McLaughlin observes that “the case also likely marks a long-overdue death blow to openly anti-Catholic Blaine amendments adopted by many states in the 1870s and 1880s and defended by anti-religious progressives and public-school teachers’ unions to this day.”  In an op-ed for The Washington Post (subscription required), Adam Laats argues that the historical analysis in Espinoza ignores “the basic provision enshrined long before the 1870s: American public education should use tax dollars to teach children how to read, write and become better citizens, not to teach them any religious ideas.”

At Dorf on Law, Michael Dorf questions the majority’s conclusion that the plaintiffs were treated unequally even though the Montana Supreme Court eliminated the scholarship program for everyone. At Take Care, Ira Lupu and Robert Tuttle warn that after Espinoza, “those who still believe that the Constitution precludes state involvement in promoting religious thought and experience have some work cut out for them.” Also at Take Care, Caroline Mala Corbin agrees that “Espinoza leaves us with a gluttonous Free Exercise Clause, and a starved Establishment Clause.” The editors of National Review point to “the real stakes in Espinoza: fear that parents will vote with their feet to choose religious schools over the public-school monopoly.” Additional commentary comes from Richard Garnett at the Federalist Society blog and Scott Cosenza at Liberty Nation. [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.]

At ACS’ Expert Forum blog, Caroline Mala Corbin explains that, like Planned Parenthood v. Casey, June Medical Services v. Russo, in which the court struck down a Louisiana law requiring physicians who perform abortions to have admitting privileges at a local hospital, “reaffirms abortion is a constitutional right while cutting back protection for abortion.” At the Duke Center for Firearms Law’s Second Thoughts blog, Jake Charles discusses the implications of Chief Justice John Roberts’ concurring opinion in June Medical for “the fight over Second Amendment methodology.” In an op-ed for The New York Times, Linda Greenhouse suggests that “the chief justice means to leave the door open to abortion regulations that confer no medical benefit while imposing obstacles less drastic — perhaps less ‘substantial’ — than ridding a state of all but one abortion clinic.”


  • At The Economist’s Espresso blog, Steven Mazie observes that “[f]or the first time since 1996 it is July and the Supreme Court still has cases to rule on[; w]ith eight decisions to go in a term disrupted by covid-19, the justices are saving some closely watched cases for last.”
  • At USA Today, Richard Wolf reports on the role of Chief Justice John “Roberts, whose votes often are viewed both by conservatives and liberals as strategic in order to cast the court in the best possible light.”
  • Burnham and Gorokhov’s legal blog offers a post suggesting that Van Buren v. United States, in which the court will decide next term “what constitutes criminal “computer misuse” under 18 U.S.C. § 1030(a),” “has potentially far-reaching implications in the age of internet technology.”
  • At the Federalist Society blog, Adam Forester Griffin observes that although the court declined on Monday to review Lech v. Jackson, which asked whether there is a “categorical ‘police powers’ exception to the Fifth Amendment’s Just Compensation Clause,” “this issue is not likely to go away soon.”
  • At ACS’ Expert Forum blog, Dr. Adriana Galvan and others weigh in on the case of Billy Wardlow, a Texas death-row inmate who has petitioned the Supreme Court for a stay of execution for a murder committed when Wardlow was 18; they argue that because of “what science has now shown about the developing brain,” “the Texas statute under which Mr. Wardlow was sentenced to death turned on a determination that cannot be made in any objectively reliable or scientific manner.”
  • At AlterNet, Bill Blum worries that “[t]he limited fealty Roberts has demonstrated to the ACA in the past makes it impossible to accurately forecast how he will approach his task” next term in California v. Texas, which stems from a challenge to the constitutionality of the Affordable Care Act’s individual mandate.

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (Jul. 2, 2020, 6:42 AM),