At noon in Washington, D.C., on Wednesday, October 2, the day after the “long conference,” the Federalist Society will host a panel to preview the 2019 Supreme Court term, featuring Professor Josh Blackman of South Texas College of Law, Wiley Rein’s Megan Brown, Professor Robert Cottrol of George Washington Law, SCOTUSblog’s Amy Howe, and Carrie Lynn Severino of the Judicial Crisis Network and moderated by The Washington Post’s Robert Barnes. Click here for more information and to register.
The following is a series of questions posed by Ronald Collins to Jane Nitze and David Feder in connection with Justice Neil Gorsuch’s “A Republic, If You Can Keep It,” co-authored by Nitze and Feder.
Jane Nitze served as a law clerk to Justice Gorsuch on both the Supreme Court and the U.S. Court of Appeals for the 10th Circuit and to Justice Sonia Sotomayor. David Feder served as a law clerk to Justice Gorsuch on both the Supreme Court and the 10th Circuit.
Welcome Jane and David, and thank you for taking the time to participate in this question-and-answer for our readers. And congratulations to you and the justice on the publication of this thoughtful book.
This week we highlight petitions pending before the Supreme Court that address, among other things, whether a school district’s decision to educate a child with disabilities outside the regular classroom violates the Individuals with Disabilities Education Act’s mainstreaming mandate and whether a court evaluating prejudice under Strickland v. Washington may hypothesize that the jury may have disbelieved the state’s case, as well as four legal questions arising out of the Flint water crisis.
The petitions of the week are below the jump:
Briefly:
- For The Washington Post, Teddy Amenobar tells the story behind a new mural of Justice Ruth Bader Ginsburg on a Washington, D.C., wall that shows the justice “wearing her judicial robes with a signature decorative collar, smiling as she gazes toward the U Street corridor.”
- Trialdex previews Banister v. Davis, which asks whether and when a motion under Federal Rule of Civil Procedure 59(e), which sets out the procedures for a motion to alter or amend a judgment, should be treated as a second or successive petition for habeas corpus.
- At Take Care, David Strauss argues that in June Medical Services v. Gee, the court should reverse without briefing and oral argument a lower-court decision upholding Louisiana’s admitting-privileges requirement for physicians who perform abortions because the decision conflicts with a 2016 Supreme Court case, Whole Woman’s Health v. Hellerstedt, and “[t]he Court should not encourage – in fact, it should make it a point to discourage – the kind of adventurism shown by the Fifth Circuit here.”
- At The New Republic (via How Appealing), Melissa Gira Grant worries that if the workers lose in three upcoming cases that ask whether federal law protects employees from discrimination on the basis of sexual orientation or transgender identity, “then all workers could be subject to the stereotypes harbored by their employers about how men and women should appear, behave, and identify.”
We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!
Daniel Mach is Director of the ACLU Program on Freedom of Religion and Belief.
In Espinoza v. Montana Department of Revenue, the Supreme Court will address a question that would have been unthinkable even to ask until quite recently: Can a state be forced to underwrite religious education with taxpayer dollars? Although the court has previously allowed the government to adopt school-voucher programs that provide indirect government aid to religious schools, it has never suggested that the U.S. Constitution somehow requires doing so ― and certainly not in the face of state constitutional rules barring taxpayer funding of religious education. Yet that is essentially what the petitioners are seeking in Espinoza, the latest in a disturbing line of cases attacking the very foundations of the separation of church and state.
Eric Rassbach is Vice President and Senior Counsel at the Becket Fund for Religious Liberty. The opinions expressed here do not necessarily represent those of the Becket Fund or its clients.
In high-school history textbooks, Senator James G. Blaine’s claim to fame has long been the rhyme successfully deployed against his candidacy in the 1884 presidential election:
Blaine, Blaine, James G. Blaine, the continental liar from the State of Maine.
But Blaine was anything but a figure of fun. Indeed, Blaine’s most prominent contribution to American political history was to further a particularly ugly form of discrimination. It was Blaine who channeled much of the generally anti-immigrant and specifically anti-Catholic feeling prevalent in 19th-century American society into the state constitutional amendments that now bear his name: the Blaine Amendments.
At Reuters’ On the Case blog (via How Appealing), Alison Frankel writes that “[o]n Tuesday, the Consumer Financial Protection Bureau joined the Justice Department in a brief asking the U.S. Supreme Court to consider whether the CFPB’s structure is unconstitutional”; she notes that “the CFPB has never before argued that the statute creating the bureau is constitutionally flawed,” and that its new posture “places the bureau under a cloud of doubt that will linger until the Supreme Court resolves the question.” Additional commentary comes from Ian Millhiser at Vox and from Mark Joseph Stern at Slate.
Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law & Religion at Michigan State University College of Law.
In 2017, SCOTUSblog published a symposium on Trinity Lutheran Church v. Comer. In Trinity Lutheran, the Supreme Court invalidated a Missouri grant program for playground resurfacing that excluded religious schools. My piece for the symposium focused on the problems Trinity Lutheran might raise given the court’s 2002 decision in Zelman v. Simmons-Harris, which upheld a school-voucher program in Cleveland, Ohio, that overwhelmingly benefited religious schools. Does Trinity Lutheran mean that states must fund vouchers or provide other aid to religious schools in violation of state constitutions when they make aid available to nonreligious entities? Espinoza v. Montana Department of Revenue may be the case that answers this question.
The court should answer “no” and uphold the decision of the Montana Supreme Court to invalidate a tax-credit program under the state constitution. That program, while limited in scope, overwhelmingly would have benefited — and may have had the unstated (read: not openly stated) purpose of benefiting — religious private schools. The likelihood is, however, that the court will answer “yes,” and overturn the Montana Supreme Court’s decision. There are several reasons why this would be a mistake.
On Wednesday, September 25, from 12 noon until 1:20 p.m. EDT, American University Washington College of Law will host “On the Docket: Looking Ahead at the New Supreme Court Term.” Moderated by WCL Professor Stephen Wermiel, the panel will feature Professor Aderson Francois of Georgetown Law, Marcia Coyle from the National Law Journal, the Constitutional Accountability Center’s Brianne Gorod and Joshua Matz of Kaplan Hecker & Fink.
Registration is free but required. Click here for more info and to RSVP, and click here to watch the livestream.
Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.
A little over two years ago, concurring in Trinity Lutheran Church of Columbia, Inc. v. Comer, Justice Neil Gorsuch insisted – quoting the late Chief Justice William Rehnquist – that “our cases are ‘governed by general principles, rather than ad hoc improvisations.’” A case on the Supreme Court’s docket this term, Espinoza v. Montana Department of Revenue, will – among other things – put this claim to the test.
The question presented by the petitioners is one that many school-choice advocates and church-state scholars (including this author) have been pressing, with limited success, in litigation and academic writing for at least two decades: whether it violates the First Amendment “to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.” It does, and the justices should so rule.
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