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We're currently hosting a symposium on Tuesday's decision in Espinoza v. Montana Department of Revenue. Click to follow along.
We also hosted a symposium on Monday's decision in June Medical Services v. Russo. Click to read the submissions.

Briefly Mentioned :

Briefly Noted :

On Thursday, the court released orders from the July 1 conference. The justices granted five cases for a total of four hours of oral argument next term.
On Monday, we expect the court to release opinions at 10 a.m. We will be live-blogging starting at 9:20 a.m. at this link, where you can sign up for an email reminder when the live blog begins.

Symposium: How to count to one

By on Jul 1, 2020 at 12:13 pm

John Knepper is a private attorney based in Cheyenne, Wyoming. He previously was chief deputy attorney general of Wyoming. He filed an amicus brief on behalf of the Susan B. Anthony List in support of the respondent in June Medical Services v. Russo.

Marks v. United States instructs that when a majority of the justices cannot agree on more than the outcome, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Much of the immediate analysis of June Medical Services v. Russo has therefore focused on Chief Justice John Roberts’ concurring opinion. Indeed, the chief’s concurrence makes it difficult not to consider the effect of his opinion: He cites Marks in a footnote when discussing Planned Parenthood v. Casey.

The chief justice is not the most important jurist in this case, however. That honor goes to the district court judge in the Middle District of Louisiana. Both Justice Stephen Breyer, writing for a four-justice plurality, and the chief defer to the district judge’s findings of fact as dispositive. That judge’s view of the world-as-it-exists can be challenged only when “clearly erroneous.” And according to the five justices who voted to strike down Louisiana’s abortion law, the mistake made by the U.S. Court of Appeals for the 5th Circuit was a lack of proper respect for the district court’s findings of fact. Continue reading »

Mithun Mansinghani serves as solicitor general for the state of Oklahoma. Bryan Cleveland and Zach West, assistant solicitors general, also contributed to this article. The state of Oklahoma, through Attorney General Mike Hunter, led an 18-state amicus brief  in support of the petitioners in Espinoza v. Montana Department of Revenue.

On one level, the Supreme Court’s decision in Espinoza v. Montana Department of Revenue is entirely unsurprising—a straightforward application of precedent, both longstanding and recent. At the same time, it introduces something all too rare in recent court decisions and in the field of religious liberty in particular: clarity. Yesterday’s decision articulates an unmistakable rule of law: When the government creates a benefit program, it cannot seek to exclude persons and institutions of faith merely because they are religious.

At issue in Espinoza was a Montana tax credit for donations to scholarship programs assisting students with tuition in private schools. The Montana Supreme Court threw out the tax credit based on the state constitution’s “no-aid” provision or “Blaine Amendment,” which prohibits even indirect aid to “sectarian” schools. Montana’s tax credit program violated this state law, the state court held, because the scholarships were available for use at both religious and nonreligious private schools. In other words, Montana’s neutral and generally applicable program was struck down because a state law required discrimination against religious schools, students and their parents.

Continue reading »

Wednesday round-up

By on Jul 1, 2020 at 7:01 am

Yesterday the court issued two opinions, whittling its remaining cases down to eight. In Espinoza v. Montana Department of Revenue, the court held 5-4 that Montana’s exclusion of religious schools from a state-funded scholarship program for private schools violates the First Amendment. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. Mariam Marshedi has an analysis at Subscript Law. At NPR, Nina Totenberg and Brian Naylor report that “[t]he court’s decision is the latest in a series of recent rulings that have lowered the traditional wall separating church and state by requiring government entities to treat religious and nonreligious institutions more equally, even when that means sending public money to religious institutions.” At Fox News, Ronn Blitzer and others report that Chief Justice John “Roberts once again served as the swing vote in a 5-4 decision[; t]his time, he joined his fellow justices in the conservative wing of the court.” Mark Walsh reports at Education Week that “[t]he chief justice’s opinion appeared to cast doubt on provisions in as many as 30 state constitutions that bar aid to religious schools.” Additional coverage comes from Kevin Daley at The Washington Free Beacon.

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Posted in Round-up

When the digital travel company Booking.com sought to register its domain name as a service mark for hotel reservation services, the U.S. Patent and Trademark office denied registration under a longstanding policy that the combination of a generic term for goods and services with the “.com” suffix did not create a protectable trademark. Booking.com sought review of the PTO’s decision in federal district court, and introduced survey evidence supporting an inference that 74 percent of consumers recognized “Booking.com” as a brand name. The district court concluded that even though the word “booking” is an unprotectable generic term, combining that term with “.com” transformed it from an unprotectable generic term into a descriptive term that could be protected once it had acquired secondary meaning, and the survey evidence demonstrated that it had. The U.S. Court of Appeals for the 4th Circuit affirmed, and today the Supreme Court affirmed the 4th Circuit by a vote of 8-1 in U.S. Patent and Trademark Office v. Booking.com.

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Steven Green is the Fred H. Paulus Professor of Law and director of the Center for Religion, Law & Democracy at Willamette University College of Law. He filed an amicus brief on behalf of a number of religious groups in support of the respondents in Espinoza v. Montana Department of Revenue.

There is so much contained in the various opinions in Espinoza v. Montana Department of Revenue that a college instructor could use that one case to teach an entire course about American church-state law: discrimination based on religious free exercise; the private choice exception to the establishment clause; whether the establishment clause is incorporated to the states; the history of the common schools; 19th-century anti-Catholicism; and the origins and meanings of state no-aid provisions (state “Blaine Amendments”).  If that instructor used Espinoza to teach an accurate account of those various issues, however, it would be a pretty bad course.

Once again, a Supreme Court majority has gone to the edge of the cliff, ready to push the concept of no aid to religion over the side but stopping short. Even though the concept still exists (barely) in the form of making a distinction based on the “use” of tax funds rather than on the “status” of the recipient of those funds, the rule prohibiting government financial support for religion is all but dead. As Justice Ruth Bader Ginsburg observed in her dissent, even though the majority did not reach the ultimate conclusion, its opinion “seems to treat the [state’s] no aid provision itself as unconstitutional.”

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In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit for donations to private scholarship organizations. Those organizations used the money to fund scholarships for children to attend private schools – which, in Montana, are primarily religious schools. In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state constitution’s ban on aid for churches and religious schools.

Today the U.S. Supreme Court threw out the Montana Supreme Court’s decision. By a vote of 5-4, the justices ruled in Espinoza v. Montana Department of Revenue that the state court’s interpretation of the Montana constitution violated the U.S. Constitution, which protects the free exercise of religion. States are not required to subsidize private education, Chief Justice John Roberts explained in his opinion for the majority. But if they opt to do so, they cannot exclude religious schools from receiving those funds simply because they are religious. Continue reading »

Jane Schacter is the William Nelson Cromwell professor of law at Stanford Law School. She signed an amicus brief in support of the petitioners in June Medical Services v. Russo.

The headline from the 5-4 decision in June Medical Services v. Russo striking down Louisiana’s abortion restriction is unquestionably the vote of Chief Justice John Roberts. He determined the outcome. While he may have previewed his position a year ago when he voted to stay the ruling from the U.S. Court of Appeals for the 5th Circuit that upheld the law, he had never before voted to strike down a restriction on abortion, so Monday’s outcome was hardly inevitable.

The chief justice’s vote is significant both for this case and for the idea of stability in constitutional law. The decision is consequential and, by my lights, a welcome intervention in the arena of abortion. Much less clear is what it might portend for future legal developments in this area. In this commentary, I would like to focus on the stated rationale in the chief’s concurrence and explore what it might mean, going forward, for the constitutionally protected right to choose. My conclusions are two: First, although Roberts frames his opinion in terms of stare decisis and judicial restraint, there are many reasons for skepticism about the prospects for such restraint in the realm of abortion rights. Second, supporters of abortion rights won a significant victory in June Medical, but the Roberts concurrence by no means closes the doors to significant future restrictions on access to abortion. Continue reading »

Gretchen Borchelt is vice president for reproductive rights and health at the National Women’s Law Center. She filed an amicus brief on behalf of NWLC and 72 other organizations in support of the petitioners in June Medical Services v. Russo.

In June Medical Services v. Russo, a plurality of the Supreme Court struck down a Louisiana law that would have thwarted abortion access to such a degree that it would have left “thousands of Louisiana women with no practical means of obtaining a safe, legal abortion.” The decision is being reported as a victory. And it is a victory for people seeking abortion in Louisiana. It is a victory in that it does not completely obliterate the rule of law. But it is not the victory Roe v Wade and its progeny demand. And it’s not the victory we need and deserve.

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Erika Bachiochi is a Fellow at the Ethics and Public Policy Center and a Senior Fellow at the Abigail Adams Institute. Follow her at @erikabachiochi.

In comparison to the high court’s bombshell opinion in Bostock v. Clayton County earlier this month, June Medical Services v. Russo would seem relatively straightforward. The challenged admitting privileges requirement for Louisiana abortion providers is virtually the same as the law struck down in Whole Woman’s Health v. Hellerstedt just four years ago; because a basic hallmark of justice is that courts treat like cases alike, stare decisis dictates that the Louisiana law be found unconstitutional too. Chief Justice John Roberts replaces Justice Anthony Kennedy as the fifth vote striking down the law, and we call it a day.

But June Medical is not nearly so simple. Although five members of the court struck down the Louisiana law as “nearly identical” with the Texas statute in Whole Woman’s Health, Justice Stephen Breyer’s plurality opinion, resting as it does on his own majority opinion in Whole Woman’s Health, is not the one that ultimately governs the case. Rather, in yet another fragmented abortion decision, Roberts joins the plurality in reaffirming the basic determination of Whole Woman’s Health as to the admitting privileges law at issue, even as he corrects Whole Woman’s Health’s misinterpretation of Planned Parenthood v. Casey’s “undue burden” standard. And because Roberts’ concurrence rests on narrower grounds than the plurality does, his endorsement of Casey’s “substantial obstacle test” – which the four dissenting justices also support – will govern abortion regulations going forward.

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Relists Return

By on Jun 30, 2020 at 11:02 am

John Elwood reviews Monday’s relists.

After a couple of weeks with no new relists, the Supreme Court is back this week with a vengeance. The court has scheduled an impromptu conference for Wednesday, July 1. In most years, an impromptu conference scheduled for the last week of June would be the mop-up conference for the entire term in which all outstanding business for the term is resolved. But the court still has enough outstanding opinions in argued cases that things may continue for a while yet.

At most conferences, the justices actually discuss only a tiny subset of the cases distributed for that conference. But this conference is the rare exception when the justices seem likely to discuss all 25 distributed cases. 16 are newly relisted cases, and nine are cases the court had been holding for argued cases that it recently decided and that it must now dispose of. Continue reading »

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