The Volokh Conspiracy

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A Rosy End to Blue June

Is Espinoza enough to make conservatives look past the Chief's never-ending chess match?

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I have now finished reading the Court's 92-page decision in Espinoza v. Montana Dept. of Revenue. (If you'd like a 21-page edited version, please email me: josh-at-josh-blackman-dot-com.) My final prediction for the pre-Corona cases was very, very wrong. I speculated that Chief Justice Roberts or Justice Breyer would write Espinoza, and reach some sort of narrow ruling. I completely whiffed here.

Chief Justice Roberts's majority opinion is a full and resounding victory for the Petitioners. There is some uncertainty about the remedy–what exactly is the Montana Supreme Court supposed to do on remand? But Roberts touches all the bases, and does not squish out on any of the key points. I will have much more to say about the specific mechanics in later posts. (I still have several other posts still in the hopper about June Medical and Seila Law).

Here, I'd like to place Espinoza in the larger context of Blue June. To date, social conservatives lost every big case: immigration (DACA), abortion (June Medical), and Title VII (Bostock). And in each case, the Chief was in the majority with the Court's four progressives. But on the last day of June, the Chief authored a solid opinion that will have tangible benefits for people of faith in 30-odd states. This decision puts Blaine Amendments nationwide in constitutional doubt. Coupled with the Chief's whittling away of Whole Woman's Health in June Medical, some conservatives may feel a shot of adrenaline. A rosy end to Blue June, indeed.

There are about eight remaining cases, including the Little Sisters of the Poor latest challenge to the ACA. On Sunday, I was fairly confident the Chief would hold the administration's feet to the fire and demand some precise level of APA-inspired seppuku to disembowel the Obama-era regulations. But my predictions have shifted. I think the Court reverses the Third Circuit.

What about the tax return cases? After the Chief's unitarian decision in Seila Law, I don't think he'll find that the House's subpoena is enforceable. I still think he will split the difference and allow the state grand jury proceeding to go forward. Roberts knows well that the grand jury proceedings will likely not be unsealed until Trump is out of office, and can be indicted. At that point, no one will really care.

Finally, my prediction about the other case decided today was on point. Justice Ginsburg wrote the majority decision in Patent and Trademark Office v. Booking.com B. V. I'm sure she was happy to give her former clerk, Lisa Blatt, another win. It was an excellent argument.

Much more to come.

NEXT: Supreme Court Strikes Down Montana Blaine Amendment Barring State Aid to Religious Schools

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65 responses to “A Rosy End to Blue June

  1. Celebrate in style when your tax dollars are directed to religious schools whose religion you do not support.
    Yes, you freedom of religion is the freedom to make me pay for your children’s religious education, even though I consider that particular religion an anathema to all that is decent, compassionate and charitable.

    1. How about being directed to secular schools whose teaching are anthema to all I find decent, compassionate, and patriotic?

      1. To people who hate modern America, I say ‘open wider, clingers.’

        The future will bring plenty more of this damnable progress — education, science, modernity, inclusiveness, diminution of unearned privilege, reason — against your wishes and efforts.

        1. So much for your alleged civility standards, Prof. Volokh.

          Why not just admit the obvious — that you have repeatedly engaged in content-driven censorship, not enforcement of claimed civility standards?

          1. that you have repeatedly engaged in content-driven censorship

            Interestingly enough, Prof. Volokh himself just recently reposted some of your toxic drivel from the single incident many years ago you’re still “clinging” to.

            Maybe you can pull it up and read it when you’re feeling blue.

            1. Single incident?

              You don’t know what you are talking about.

              (1) Artie Ray was banned for making fun of conservatives — ‘low signal to noise ration,’ I believe, was the description of the reason for censorship.

              (2) The term “c0p su@@or” was censored several times, years later, allegedly for violation of a “civility standard” that somehow doesn’t address the comments directly preceding this one.

              (3) This blog later banned the use of the term “sl@ck-j@w” (and a few others, if I recall correctly) — again, for making fun of conservatives and because of ostensible violation of a civility standard.

              Other than that, great comment! Prof. Volokh likely welcomes your uninformed sycophancy. Maybe you’ll even get a figurative pat on the head.

      2. What are you talking about? Did you go to school in Bizarro Land?

        1. I actually taught in the NYC public school system.

          1. And what teachings there did you find to be anathema ‘to all I find decent, compassionate, and patriotic?’ I admit I was raised in another state, but I can’t think of *anything,* much less *all* they taught in that category.

            1. He might be talking about women attending graduate schools instead of having babies early and often; gays no longer being treated like dirt; prayer and creationism removed from legitimate classrooms; black men no longer required to lower their gaze in the company of white women; elimination of poll taxes and literacy tests — affronts to the good old days for which conservatives pine.

              1. Yeah, instead black men get to attack white women, cops, and anyone else with impunity!

                1. That’s a really interesting misperception of reality, isn’t it?

      3. Well you are certainly free to go to whichever school you want, or if you are of age, no school at all. But if you want to go to a religious school and have me pay for it the Constitution and freedom says I don’t have to.

        1. How about you don’t have to pay for my religious schools, and I don’t have to pay for your PrEP drugs? Deal?

          1. Whose PrEP drugs have you been paying for?

    2. Yes, I hope you do indeed forcing me to pay for *your* choices in so many fields, not just schools.

      Government is simply the most violent organization a territory, or at least the organization which is believed to threaten the most violence. Might makes right and all that. You like government taking my money and doing things I don’t like, apparently; it is unseemly for you to then complain when you get gored in turn by other statists.

      1. Does his lack of principle justify yours?

        1. What would that be? Did you misunderstand someone again?

          1. Is your point then that anyone who wants the state to do anything you don’t want can’t complain when the state does something they don’t like?

            1. The idiot complained of having to pay for something he didn’t like. A libertarian would have complained of paying, period. Obviously he’s a damned statist who wants everyone else to pay for his dreams, but not vice versa.

              What exactly is so unclear about that? What exactly are you trying to convince me you are complaining about?

              1. So if an anarchist complained about your support for government property protections then he could say when you complain about Medicaid spending the same thing you did?

  2. “Roberts knows well that the grand jury proceedings will likely not be unsealed until Trump is out of office, and can be indicted. At that point, no one will really care.”

    Do you really think the grand-jury proceedings will remain sealed for four-and-a-half years?

    1. Ha. I hate the idea, but it was a funny comment!!! 🙂

    2. IF Trump were guilty of anything, he’d pardon himself.

      1. From a case being prosecuted by the State of New York?

        That would be quite the trick.

      2. IF Trump were told he could get away with pardoning himself, he’d have already done it.

  3. Josh,
    (Re Trump’s taxes): Do you really think CJ Roberts would undercut congressional ability to conduct oversight in such a dramatic way? That seems wildly out of character for Roberts in terms of his judicial philosophy.

    1. If the oversight was for a legitimate purpose, then no.

      If the “oversight” is merely to exploit Congressional Powers and confidential information for political gain, then yes.

      The president has a right to privacy like every other American.

      If I was Roberts here, I would find a way to thread the needle, and allow Congress or Congressional representatives to inspect the tax returns, without being able to release them to the public.

      1. Who should decide the legitimate purpose? Unelected judges?

        1. Well, if there’s a conflict between two branches of government (Congress and the Executive), it’s a good thing we have a third branch to break the tie…

          1. One problem with that is the Executive signed the law in question, right?

          2. Armchair,
            I’d be fine with that (access to all his financial records, but no release to the public without court authorization). But you will acknowledge that the law does not allow for any wiggle room (“shall” means shall), so any lessening of Congressional access does mean reading in some wiggle room, which is certainly not a conservative principle. Thomas and Alito are generally such sticklers for the clear and unambiguous language in laws and in the Constitution, so it will be interesting to see how they evade that principle . . . since I have almost zero doubt that they’ll end up ruling in a way consistent with protecting Trump and helping him keep information from Congress and from the American people.

            1. “Shall” means Shall, until you’re before the Supreme Court and start getting into Constitutional Issues, like the 14th Amendment, rights to privacy, and separation of powers issues. Then, “shall” is often overruled. Like I said, I’m guessing Roberts will try to thread the needle as such.

              Moreover, the law in front of the Roberts Supreme Court, such as it is, can provide for a lot of wiggle room, if a tax can simultaneously be a tax and not be a tax, and a massive new policy can be implemented by prosecutorial discretion and without any rule making period under the APA, while being unable to be reversed.

              Further, Congress has plenty of experience with confidential information being available only to limited numbers, and without it being released. If I was Roberts, I might look to court decisions like NAACP v Alabama, where Alabama sought the NAACP’s membership lists for political purposes. And was shot down, under the 14th Amendment and due process clauses.

              Here’s a critical part of that Opinion…

              “Immunity from state scrutiny of petitioner’s membership lists is here so related to the right of petitioner’s members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment”

              Now, if you were to replace “membership lists” with “tax return information”…that’s pretty clear 14th Amendment right to privacy grounds.

              1. Watching birthers struggle to conceal Trump’s tax returns is a treat.

                And a strong foundation for strong measures by the victors in the culture war.

              2. But there are explicit rules that cover one’s taxes. In other situations, of course, we argue by analogy. But when the “shall” language specifically relates to tax returns . . . this does not seem like a persuasive argument.

                1. You appear to be arguing that a law passed (but rarely if every used) by Congress (originally in 1924) will supersede the Constitution and 14th amendment.

                  The Supreme Court has overturned plenty of laws passed by Congress in the past.

                  1. I’ll add on one quote from Watkins v United States.

                    “But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case.[8] Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to “punish” those investigated are indefensible.”

                  2. “You appear to be arguing that a law passed (but rarely if every used) by Congress (originally in 1924) will supersede the Constitution and 14th amendment. ”

                    The 16th came after the 14th (unsurprisingly). It expressly authorizes Congress to pass laws related to collecting a federal income tax.

              3. I’m unfamiliar with Trump’s arguments here.

                What part of the 14th Amendment is relevant?

                Regardless, it;s telling that a man whose major claimed qualification for the WH is his business acumen doggedly refuses to document said “acumen.”

                1. See NAACP v Alabama.

                  1. I don’t see what the tax case has to do with Trump’s freedom of association.

                2. “Regardless, it;s telling that a man whose major claimed qualification for the WH is his business acumen doggedly refuses to document said “acumen.””

                  His chief claimed qualification was not being named “Hillary”.

  4. Does anyone know if any Muslim schools have applied for such funds?

    1. Not in Montana, because that’s not how Montana’s program works. Schools don’t apply for funds. Parents do.

  5. No. Roberts is forever in the politician/would-be-dictator column now. If you follow the law half the time and issue thinly-veiled dictatorial decrees the other half, you don’t get any credit for doing your job right sometimes.

    Roberts ifs like a chef who only intentionally poisons some of the food.

  6. How messed up is the conservative movement in America if they go ‘well, alright, the federal government now says state monies will have to go to religious schools as well!’ as their snatching of victory from the jaws of defeat…

    1. It’s about stopping discrimination. Don’t you believe in stopping discrimination?

      1. His principles are principally in motion.

      2. So you were a big Ogberfell fan?

        1. No because that didn’t stop discrimination. Not one single guy on earth was prevented by law from getting married. Same with women.

          1. Didn’t stop discrimination? There was *nobody* who was treated differently that had to be treated similarly due to the ruling?

        2. Answering a question with a question?

  7. And yet, 5 – 4.
    Another case is on the way; whoever wins in November gets one or two shots at ‘changing’ things.

    1. Maybe sooner than clingers dare to imagine.

      One-vote House majority + one-vote Senate majority + lack of a veto = progress.

      1. That is if there is not one among the 50%+1 Democrats who are unwilling to sacrifice their seats for “progress” which their constituents don’t view that way. It’s easy to vote with the your party when they are in the minority – it’s harder when you are the deciding vote and you have to answer back home for that vote.

        “Progressives” would make little headway with such narrow Democratic majorities.

        1. I expect most Americans to applaud enlargement of the Supreme Court, particularly if former Pres. Obama is a likely prospect for one of the new positions.

          Who wouldn’t want Pres. Obama on that bench (other than the bigots)?

          1. Pres. Obama, for one, seems to have shown remarkably little interest in the proposition.

            1. Pres. Obama has answered the call to service before. Maybe just a quick few years this time, to dance on the exploding heads of bigoted Trump supporters.

              1. If you just want to watch Trump fans heads explode, Hillary would be first in line for a seat on the Court. Either that or replace the fallen Confederate statues with statues of Obama.

  8. I think the Espinosa case shows hypocrisy. Basically the govt can fund abstinence teaching but not abortion/sage sex. They consider that govt speech, not subject to the 1st amendment. But when it decides to fund one school but not the other then it violates the 1st amendment. How can this not be government speech? Let us at least be consistent with the 1st amendment decisions.

  9. Honestly, it looks like Roberts is being political in his decisions…

    1. And the wise Latina and former Harvard Dean are not?

      1. No they are being ruthlessly ideological.

      2. Not in the context of political (little p) that I meant.

  10. “I have now finished reading the Court’s 92-page decision in Espinoza v. Montana Dept. of Revenue.”

    Interesting that you consider it a “win” for conservatives, in the sense that the holding allows the federal government to tell states how they may (or may not) choose to spend state monies.