Final Supreme Court Opinions Tomorrow, Followed by Justice Breyer's Retirement at Noon

There are only two argued cases left for decision -- the last two to be decided with Justice Breyer on the Court.

Tomorrow is the last day of this momentous Supreme Court term. The Court has issued its standard release noting that the last opinions in argued cases from the term will be tomorrow: "This Court will announce all remaining opinions ready during this Term of Court on Thursday, June 30, 2022, beginning at 10 a.m."

The two argued cases remaining are West Virginia v. EPA, concerning the Environmental Protection Agency's authority to regulate greenhouse gases from power plants under Section 111 of the Clean Air Act, and Biden v. Texas, concerning the Biden Administration's effort to rescind the Trump Administration's Migrant Protection Protocol, also known as the "Remain in Mexico" policy. For a quick rundown of the West Virginia case, I recommend this webinar.

Also tomorrow, at noon, Justice Breyer will retire from the Court, as he announced in a letter to President Biden released today. The letter reads:

Dear Mr. President,

This past January, I wrote to inform you of my intent to retire from regular active service as an Associate Justice of the Supreme Court of the United States, upon the Court rising for summer recess. You have nominated and the United States Senate has confirmed the Honorable Ketanji Brown Jackson to succeed me in the office, and I understand that she is prepared to take the prescribed oaths to begin her service as the 116th member of this Court.

The Court has announced that tomorrow, beginning at 10 a.m., it will hand down all remaining opinions ready during this Term. Accordingly, my retirement from active service under the provisions of 28 U.S.C. §371(b) wll be effective on Thursday, June 30, 2022, at noon.

It has been my great honor to participate as a judge in the effort to maintain our Constitution and the Rule of Law.

Yours sincerely,

/s/

Stephen Breyer

The Court will also issue its final Order List of the term, most likely on Friday morning.

Comments

[Frank Drackman]

"Remain in May-He-Co" Sounds like a pretty good idea, at least wait until a more temperate time of year.

[Mr. Bumble]

So will it be a grand slam +1 after tomorrows decisions?

[Vaclav Matthess]

I would have thought that Justice Breyer would have remained for the final "clean-up" conference on Friday. Can't say that I blame him.

[Frank Drackman]

He didn't want to hear the "Hey Hey Good Bye" song
https://www.youtube.com/watch?v=JnEPTG6K4pY (Is that a young Judge Thomas in the back row???)

Frank

[Mr. Bumble]

...and in other news SC denied cert. in Mark Elias attempt to overturn LA congressional map.

[Bob from Ohio]

Not quite accurate. S/C stayed the TRO, granted cert before judgment and is holding it until next term, when it is hearing a similar Alabama case.

But he did lose for this election.

[JD85]

So are we not going to get a SINGLE volokh article on the Kennedy v. Bremerton decision, saying that it's okay for a coach to pray on the 50 yard line after a football game? I guess every writer here (including the ever present Mr. Blackmon) doesn't want to touch that case?

[Mr. Bumble]

Too busy sliding down slippery slopes.

[Rev. Arthur L. Kirkland]

That was only a vehicle for using a vile racial slur.

I am sad to report that I did not see that one coming.

It appears I should stop thinking so highly of Prof. Volokh.

[Frank Drackman]

Why wouldn't it be OK, what part of "prohibiting the free exercise thereof" don't you understand???
I mean, if Congress can have a Druid Priest give the opening Prayer at Congress, Coach Jockstraps can pray at the 50...
and remember when the Minn-uh-So-da mascot was slammed for "mocking" a praying Penn State player (if I had to play for Jerry Sandusky I'd pray to)
Of course the mascot was just praying with the player.
https://www.youtube.com/watch?v=_RYQuwJvQso

Frank "Hates Gophers"

[rswallen]

So far, it's just Blackman
https://reason.com/volokh/2022/06/27/red-flag-june-continues-as-lemon-is-finally-interred/

[Dan Schiavetta]

It was discussed in the comments to yesterday's "Today in Supreme Court History" post. But nothing from the VC yet.

I don't know why. Some of the VC'ers would at least call out Gorsuch's transparent hackery. He says the coach was engaged in "private prayer" right in the face of Sotomayor's dissent which includes pictures of the crowds gathered around him.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"Private" doesn't mean "alone" or "solitary". Private enterprise, for instance.

[bernard11]

I don't usually try to get newspapers to print stories about my plans for private activities.

And I usually don't engage in them on the 50-yard line right after a football game.

The majority opinion is based on a bunch of lies.

[bevis the lumberjack]

Well if you’re right it’s one lie, not a bunch.

But since it was so public and you (guessing here) believe it should have been ruled to be a violation of the Establishment Clause, please share with us what the content of his public prayer was. I haven’t seen it anywhere but I guess you have.

[Sebastian Cremmington]

Satanic rituals at the 50 yard line are now protected…so it’s not all bad. 😉

[bernard11]

I don't see why the precise content of the prayer matters in the least. No one disputes that it was a prayer. Kennedy felt compelled to give thanks after the games.

The decision says,

Mr. Kennedy has indicated repeatedly that he iswilling to “wai[t] until the game is over and the players have left the field” to “wal[k] to mid-field to say [his] short,private, personal prayer.”

The dissent tells us that the District was fine with this:

The District stated that it had no objection to Kennedyreturning to the stadium when he was off duty to pray atthe 50-yard line,

It tried to reach an accommodation:

Again, the District emphasized that it was happy to accommodate Kennedy’s desire to pray on the job in a way
that did not interfere with his duties or risk perceptions of endorsement. Stressing that “[d]evelopment of accommodations is an interactive process,” it invited Kennedy toreach out to discuss accommodations that might be mutually satisfactory, offering proposed accommodations and inviting Kennedy to raise others.

No luck:

Kennedy did not directly respond or suggest a satisfactory accommodation. Instead, his attorneys told the mediathat he would accept only demonstrative prayer on the 50yard line immediately after games.

So much for the majority's claim.

Gorsuch spends a lot of time discussing neutral rules of general applicability.

Nor does anyone question that, in forbidding Mr. Kennedy’s brief prayer, the District failed to act pursuant to aneutral and generally applicable rule. A government policywill not qualify as neutral if it is “specifically directed at . . . religious practice.”

This point escapes me. Of course a rule about religious observance isn't going to be neutral and generally applicable. Suppose the school had a rule that teachers could not begin their classes by having a student recite a prayer. Is that rule violation of the teacher's free exercise rights, because it is directed at religious practice? Of course not.

[bevis the lumberjack]

Compelling a student to lead a class in daily prayer is completely different thing than one guy silently praying to himself, even if it is visible. Obviously a violation of the EC.

What exactly does silence establish?

[tkamenick]

"risk perceptions of endorsement"

Did I miss an Endorsement Clause somewhere?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Just because the coach is a publicity hound doesn't make his private actions part of the school curricula.

[Armchair Lawyer]

So, how do you feel about the City of Minneapolis granting special permission for Islamic mosques blasting the call to prayer through external loudspeakers through the streets 5 times a day? Compared with a simple quiet prayer by a coach after a game?

https://www.usnews.com/news/us/articles/2022-06-01/muslim-call-to-prayer-arrives-to-minneapolis-soundscape#:~:text=This%20spring%20Minneapolis%20became%20the,be%20broadcast%20publicly%20on%20loudspeakers.&text=June%201%2C%202022%2C%20at%204%3A24%20p.m.

[WuzYoungOnceToo]

I don't know why. Some of the VC'ers would at least call out Gorsuch's transparent hackery. He says the coach was engaged in "private prayer" right in the face of Sotomayor's dissent which includes pictures of the crowds gathered around him.

I'm wondering how many more years it will take before you acquire a post-third grade understanding of English...assuming that is even a possibility given your cognitive limitations.

[Rev. Arthur L. Kirkland]

"Some of the VC'ers would at least call out Gorsuch's transparent hackery. "

Which one(s)?

[Rev. Arthur L. Kirkland]

That what I thought.

[Bob from Ohio]

"pictures of the crowds gathered around him"

The pictures are from only one stage of the saga. After being reprimanded, he did pray by himself.

Who is a hack now?

[HumanoidAnderoid.]

No, the pictures are literally from the last step of the saga, when he ***said*** he will pray by himself, and instead was joined by a crowd of people.

[WuzYoungOnceToo]

No, the pictures are literally from the last step of the saga, when he ***said*** he will pray by himself, and instead was joined by a crowd of people.

Did he assemble those individuals against their will or somehow coerce them into prayer? Or did they decide of their own accord to pray also?

[SomeGuy 2]

And the liberal position is, what, that he's supposed to hire private security or flee to an undisclosed location in a bunker so that if he prays nobody may join him? Maybe some snipers can take out any would-be second prayers, lots of guys getting out of the service now that Afghanistan and Iraq is winding down they could use the work.

It really shouldn't take the Supreme Court to tell us that the state doesn't establish a religion just because a state employees chooses to privately pray, even if other people decide for themselves to also pray at the same time.

[bernard11]

No. The liberal position is that he can wait until the field is clear and the players are on the way home.

Is his prayer less worthy if offered 20 minutes later?

[SomeGuy 2]

Got it, so prayer is banned if the players are in the vicinity and not enough time has passed since the game ended.

Okay, how many minutes and how far away must the closest player be before one can privately pray? How did you come up with those numbers?

[Sarcastr0]

That's not what bernard said. You're working hard to turn a modest restriction into an onerous one.

[WuzYoungOnceToo]

That's not what bernard said.

That's exactly what he said:

"he can wait until the field is clear and the players are on the way home."

Just because you're reliant on straw men it doesn't mean that everyone else is.

[bernard11]

Okay, how many minutes and how far away must the closest player be before one can privately pray? How did you come up with those numbers?

Oh wow. What a tough questioner you are. I'm quaking.

The answer is simple.

From the dissent, after one game,

He returned to pray in the stadium alone after his duties were over and everyone had left the stadium, to which the District had no objection.

Seems fair, and in accordance with what the majority claims Kennedy was willing to do.

Seems he lied, or the majority has it wrong, or he changed his mind. Maybe he had a revelation?

[SomeGuy 2]

So he did that one time, therefore prayer is banned until the stadium is entirely clear, and the existence of one other person on the field makes prayer banned, because if that person starts praying too the state has established a religion. So his private security needs to either stop the second prayer or patrol the perimeter to make sure the field REMAINS clear, because what if someone comes back? Sounds like an amazing, totally workable regime.

[bevis the lumberjack]

Bernard is saying that a person in a school leadership position visibly displaying a religious act in front of people over which he has authority and influence is on the wrong side of the EC line. That’s it. I disagree with his opinion as to this case, but it’s not unreasonable and there’s no point in exaggerating it to make it something that it’s not.

[David Nieporent]

It really shouldn't take a Supreme Court dissent to point out that he and the majority are lying when they characterize it as him "privately" praying.

[SomeGuy 2]

He was praying privately, as the undisputed facts show. Other people chose to join him, but that gets us back to private security being the only realistic remedy. If one person praying becomes the state establishing a religion the instant a second person also decides to pray, then the original prayer has to hire security to prevent anybody else from praying, otherwise the original prayer has no way to prevent a religion from being established. The liberal position on this is utterly unworkable.

[Rev. Arthur L. Kirkland]

And the conservative position is the work of ridiculous, gullible, obsolete children whose replacement -- by their betters, thanks to the glorious American culture war -- will be a blessing.

[Sarcastr0]

...Do you understand how group psychology works? Because it seems like you're misunderstanding the events on purpose here.

Either that our you're an alien or something.

[SomeGuy 2]

I'm understanding the events perfectly. Someone chose to pray , other people chose to pray too. Because, allegedly, if a second person prays the state has established a religion, then we have to wait for the field to be cleared or pray from a bunker in an undisclosed location. If we're waiting for the field to be cleared, then we have to do a perimeter check, if we're praying in a bunker then we need security to prevent other else from praying... because, liberals say, two people praying is the state establishing a religion and we can't have that. The amount of bureaucracy and private security details that would go into preventing a second person from praying had the dissent prevailed is mind-boggling, the proposed restrictions are incredibly onerous.

[Sarcastr0]

Because, allegedly, if a second person prays the state has established a religion, then we have to wait for the field to be cleared or pray from a bunker.

You can put up strawmen all day.

I'll come back when you want to engage with my argument, which has more to do with social coercive force than any quantum of people who are praying.

[SomeGuy 2]

Did you read the opinion? Nobody was coerced into anything. The coach prayed alone, under the leftist position a religion was established the instant other people chose to pray too. Both in oral and written advocacy they declined to say how many additional people praying constitutes a banned establishment of religion. Their logic, such as it is, would suggest that it only takes one praying student for the state to have established a religion. If they have some other figure in mind, they declined to say what it is. If anybody was coerced to do anything, the record utterly failed to show it. At most, once litigation started, a few people decided that they "felt coerced" but that's also unworkable. If somebody decides to privately pray and other people decide to privately pray, the initial prayer has no way to know who is going to later decide they "felt coerced." So therefore we're back to the private bunker or security preventing anybody else from praying.

[Sarcastr0]

The coach prayed alone, under the leftist position a religion was established the instant other people chose to pray too.

You know how I explicitly said this was a strawman? And then you went back to that well just now? You should ask yourself why you can't address actual arguments and instead keep knocking down the same argument even after being told you made it up.

The opinion, it turns out, didn't deal with the actual factual record.

And you can't seem to deal with actual human nature and how authority figures doing something, especially after others join them, can make for a coercive expectation.

[bernard11]

that gets us back to private security being the only realistic remedy

That's ridiculous. See my response to Someguy2 above.

[Slocum]

Private in the sense of being done in his private rather than official capacity, not private in the sense of being hidden away from public view. The number of people who see (or join) him is completely irrelevant to the question of whether or not he's acting in his private capacity as a devout religious person vs his official capacity as a school employee. You may reasonably disagree with the judgement of which capacity is involved, but this is not in any way lying.

This is not France -- there's no Laïcité here legally establishing a hard version of secularism. In the U.S., government institutions may not promote religion but nor may they unduly burden it by suppressing expression of religious ideas where expression of secular ideas would be allowed.

I am a non-religious libertarian -- I would never join a 50-yard-line postgame prayer, but nor would I be offended by it.

[Josh R]

I concur there weren't lies about whether the coach was praying privately, but Gorsuch came at least very close to a lie when he wrote (his emphasis)

the District suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law— impermissibly coercive on students

If Gorsuch were correct, then the district would believe it is coercive for a teacher to say grace before lunch in view of the students, something the district rejected.

I think there is enough context to the coach's actions to conclude he wasn't acting privately. But if we assume for the sake of argument he was, perhaps the analysis ought to depend on how many and who join him. Maybe if his players join him it turns a private prayer into a public one because they look to him as the coach. Or even if it remains private, the school can claim it is nonetheless coercive enough to those who don't join in to meet their Pickering burden.

[Slocum]

"perhaps the analysis ought to depend on how many and who join him. "

What if those joining him include opposing players and assorted fans from both sidelines (which I believe may be the case) -- many of whom are not directly affiliated (as students or employees) of the coach's school? Would *that* make it obvious that it could not be considered an official school function?

The idea that additional voluntary participants makes the activity suspect -- isn't that undue burden on religious expression where shared prayer and expressions of faith are integral ('gathering in his name' and all that)?

As for Pickering -- did the district actually seek to end the coach's behavior because it wanted to as opposed to feeling that failing to do so would put the district in legal jeopardy? And is the court actually ruling that the district may not tell the coach to stop praying vs ruling that it need not do so?

[Josh R]

It would not be obvious to me if the crowd was limited to opposing players and fans from both sides. Firstly, some would be employees and students of his school. But even if not, it isn't clear that the gathering could be characterized as private religious conduct where shared prayer are integral. The public venue makes that an open question.

I have no idea what motivated the school. The Court held the school may not prevent the coach from praying.

[Armchair Lawyer]

If a coach says a private prayer on the 50 yard line, that's one thing.

If the City of Minneapolis grants a special waiver for Islamic Mosques to announce calls to prayer via loudspeaker over the public streets, 5 times
a day, daily....well...

All I'm saying is that if a private prayer on the 50 yard line is somehow illegal, I'm not sure how the second isn't.

[Josh R]

A religious accommodation may be required (the Free Exercise Clause), permitted but not required (the play in the joints between the two religion clauses, or always forbidden (the Establishment Clause). So, it is possible that both the call to prayer and the 50-yard line prayer are similarly permitted but not required.

[WuzYoungOnceToo]

It really shouldn't take a Supreme Court dissent to point out that he and the majority are lying when they characterize it as him "privately" praying.

Speaking of being dishonest...how many times was the meaning of "privately" in that context already explained before you chose to ignore it for that comment?

[TwelveInchPianist]

" Some of the VC'ers would at least call out Gorsuch's transparent hackery. He says the coach was engaged in "private prayer" right in the face of Sotomayor's dissent which includes pictures of the crowds gathered around him."

That's the QP: "Whether a public-school employee who says a
brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection..."

Looking at the cert petition and the op below, it's possible that the court only addressed an alternative holding in the case. It'll be interesting to see what happens on remand.

[TwelveInchPianist]

I wonder if Biden will issue a new commission for Jackson, and if not, if somebody will find a way to challenge her appointment.

[Don Nico]

Of course not. Now go back to sleep.

[TwelveInchPianist]

Your mom won't let me.

[bevis the lumberjack]

Yeah I think private in this context means the content of the prayer was only known to him.

It was a little showy to kneel in front of everyone like he did but it’s hard to say he’s “establishing” anything if the content of the prayer isn’t known.

[WuzYoungOnceToo]

Yeah I think private in this context means the content of the prayer was only known to him.

More accurately it means that he was performing the activity solo, regardless of how many people were gathered around him. Even if he'd been audibly speaking the prayer in a tone of voice that didn't constitute speaking loudly enough to be addressing a crowd it would still be "private" in that context. Much like two people speaking to one another in a restaurant are said to be having a "private conversation", even if it can be overheard by the waiter, customers at the next table, etc.

[Dan Schiavetta]

Kind of like a priest praying silently to Jesus at the altar, right?

[bevis the lumberjack]

Sure. Or Allah. Without audible communication who knows?

[MaddogEngineer]

Correct. Now imagine he was praying to Allah, and the school board was trying to messing with him for doing that.

I'll take my answer off-line. (My reaction would be "cool".)

[MaddogEngineer]

Clarification...him praying: "cool". The school board messing with him: "not cool"

[John F. Carr]

You reminded me of Robert Ludlum's comic thriller _The Road to Gandolfo_. A lookalike is recruited to play the part of the missing pope. A public appearance from the balcony, nothing too close. In rehearsal he makes the sign of the cross backwards, like those heretic Orthodox priests.

[WuzYoungOnceToo]

Kind of like a priest praying silently to Jesus at the altar, right?

No, Simple Simon, not right...or even close. First off, priests generally don't pray silently during service, because they're leading their congregation in worship. Secondly...the priest is in fact leading his/her congregation in a worship service, not praying on his own behalf with a bunch of people who just happen to be in the area for some other purpose.

Again...are you really this dumb?

[Josh R]

Yeah I think private in this context means the content of the prayer was only known to him.

I don't see how only him knowing the prayer makes a difference. If he had led kids in prayer but did not disclose the contents ahead of time, wouldn't that be impermissible? And if he quietly said grace before eating his lunch with no kids joining in, wouldn't that be permissible even if everyone knows ahead of time exactly what the contents of his prayer.

More accurately it means that he was performing the activity solo, regardless of how many people were gathered around him

That's a conceivable argument but the context may or may not support it. Does his past prayers leading the kids suggest otherwise? Or his refusal to consider praying in any other location? Or his publicizing it? Obviously, the majority and dissent reached different conclusions. My problem with the decision is given the majority's conclusion, the coach wins under prior doctrine. Instead they chose to significantly change doctrine when there was no need to do so.

[Sarcastr0]

That context doesn't seem to be material to the Establishment Clause.

OTOH, the more natural context of not making prayer a public spectacle makes a lot of sense (and is also one of the things that Jesus explicitly decries in the Bible.)

[bevis the lumberjack]

Yeah he does decry it, but those on the right have their methods of virtue signaling just like those on the left.

Still doesn’t mean the guy was establishing anything.

[Sarcastr0]

When the expectation becomes that the entire team join a prayer this guy leads, that looks a lot like establishing religion as the norm.

[Bob from Ohio]

I sure hope the new justices computer keyboard has "d, e, i, n, s & t" working well. She is going to need them a lot.

[Noscitur a sociis]

Why do you say that? She said at her confirmation hearings that she was an originalist, so I assume she'll be joining a 7-2 majority much of the time.

[Sarcastr0]

Otherwise - perjury!

[Rev. Arthur L. Kirkland]

If her worldly keyboard fails her, won't sweet infant baby Jesus (from Talladega Nights) be sure to assist his faithful handmaiden? She actually believes in miracles, or at least claims to.

[Doug Heffernan]

Protesters outside abortion clinics will be able to carry concealed weapons in every state, but there will be less clinics.

Just as well, because being outside would entail huffing down more power plant emissions.

With more guns, more power plant emissions, and less abortion clinics, what is left for conservatives to wish for? Perhaps all that is left is demolition of the administrative state, but that is only slightly more popular with the base than upper bracket tax cuts.

[WuzYoungOnceToo]

Protesters outside abortion clinics will be able to carry concealed weapons in every state

They already can in most states, and have been for a long time in quite a few of them. What issue(s) have arisen from that, other than the ones that exist only in your fevered imagination?

[Stephen Lathrop]

Conservatives, if any can be found, can wish for a restored Republican Party.

Right wing radicals, the folks you probably had in mind, usually do not know what their politics will be until liberals propose something for them to defeat. Right wingers won the Covid policy war, but they have yet to abolish completely the notion of public health. Lots of work to do there. Contraception is a goad to some kinds of right wing religionists. Voting is still permitted for some. Jim Crow could still be re-enacted. Clean water and clean air remain available locally. There are plenty of targets.

You have a point that right wingers' culture war agenda is in danger of falling off the to-do list. But every issue to do with gender remains available for attack. Never fear, retrogression knows no limits.

[Bob from Ohio]

"restored Republican Party"

I think most conservatives are happy with the current GOP, as compared to the one you like, where your side wins everything.

[Dan Schiavetta]

An honest man who never did a hackish thing in his life.

[WuzYoungOnceToo]

An honest man who never did a hackish thing in his life.

You wouldn't know an honest man if one bit you on your sorry ass.

[Dan Schiavetta]

An honest, conscientious man who never did a hackish thing in his life.

[The Turtle Dove]

I would have gone with "upon the Court's rising."

Hypo -- Tomorrow's session goes long. Roberts ducks out shortly after noon and administers the oath to the new Assoc. J. She takes one of the spouses' chairs from the gallery and sits on the far corner of the court, which is still in session, due to either a Thomas filibuster or Gorsuch launching into a karaoke extended-cut version of the Gypsy Kings' classic "A Mi Manera." Ten Justices, then, all with valid commissions, as Breyer's stated intent to retire doesn't operate by force of law. Roberts, by now halfway through his third hard lemonade, suggests that they revisit their holding in Dobbs. CJ, Kagan, Soto, Breyer and Jackson then improvise a new holding in iambic pentameter. In the confusion, Alito and Thomas vote to retain the old holding, Gorsuch and Kavanagh, after vociferously objecting to the procedures, join them. All eyes then swivel to... the empty chair of a Justice who had stepped out momentarily, and found the door locked when she tried to get back in. Roberts declares the court adjourned.

Quid Juris?

Mr. D.

[Milhouse]

There are only nine places on the court. Until Breyer actually retires, Jackson cannot be a justice no matter what time it is or how many oaths she has sworn.