At SCOTUS, Onward Christian Soldiers!

             The Supreme Court delivered a major victory to religious schools last week [June 21] by forcing the state of Maine to provide tuition assistance to families who want to send their children to private schools that practice religious indoctrination through an explicitly religious curriculum.

            The 6-3 decision in Carson v. Makin invalidated in the name of free exercise of religion a provision in Maine’s state constitution that prohibited government funds to sectarian schools. The ruling, written by ostensible originalists without a single word about the original meaning of the Constitution’s Religion Clauses, flies in the face of the Framers’ view that the Establishment Clause prohibits use of public funds to support religious institutions.

            Indeed, as a member of Virginia’s post-independence state legislature, James Madison authored the famous “Memorial and Remonstrance Against Religious Assessments” in 1785 in opposition to legislation to tax Virginians to provide subsidies for established churches. Madison argued that history showed that governmental establishment of religion actually corrupted the established churches and intruded on the religious liberties of nonbelievers or adherents to other sects.

            Writing for six Republican-appointed justices in last week’s decision, Chief Justice John G. Roberts Jr. concluded that Maine’s insistence on the original meaning of the Establishment Clause amounted to an unconstitutional violation of the second of the two Religion Clauses.

            In a commentary for the American Constitution Society blog, two religion law experts from George Washington Law School, Chip Lupu and Robert Tuttle, aptly captured the meaning of the decision under this headline: “The Dwindling Twilight of the Establishment Clause.” The  Court’s decision, they wrote, “has potentially opened a new world of mandatory government funding of specifically religious activity.”

            “If the government must fund specifically religious activities when it funds analogous secular activity, what is left of the Establishment Clause in the funding context?” they asked rhetorically. The answer, it would seem, is “not much.”

            Ruling on the issue of government funding for religious schools seventy-five years ago, the Supreme Court set out a stricter understanding of the Establishment Clause in a unanimous decision in Everson v. Board of Education (1947). The decision allowed government funding for bus transportation for students attending religious schools, but nothing else.

            “The ‘establishment of religion’ clause of the First Amendment means at least this,” Justice Hugo Black wrote for the Court. “[N]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

            In contrast to the 1947 Court, the current Court is packed with true believer justices, carefully vetted by the Federalist Society as champions of free exercise over establishment clause concerns.  As presidential candidate and as president, Donald Trump promised to repay pro-Trump evangelicals for forgiving him his trespasses by appointing judges and justices who would protect religious liberty to the utmost.

            Trump’s three justices – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – provided the needed votes to fortify previous Roberts Court decisions assuring government assistance to religious schools. Tellingly, two of the Trump justices are observant Catholics and themselves products of Catholic education, where teachers quite possibly told them falsely that the United States was founded as a Christian nation.

            The Maine case arose against in an unusual context. Outside urban areas, the sparsely populated Pine Tree State includes “local school administrative units” with so few students that the district cannot support a public secondary school. Maine’s elected representatives crafted a solution dating from 1981 to provide tuition assistance to any students attending private schools in areas with no public high school, with tuition assistance was available to students attending secular schools, but not religious schools.

            The Maine lawmakers’ decision, Roberts concluded, “promotes stricter separation of church and state than the Constitution requires.” “A state’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

            In his coverage of the decision, the New York Times’ Supreme Court correspondent Adam Liptak aptly observed that expanding religious rights “has been a signature project of the Court led by Chief Justice Roberts.” Liptak listed, without naming them, the series of decisions in that project, including a decision to force the state of Montana to include tuition assistance for students attending religious schools and a decision to force the state of Missouri to provide church-affiliated preschools with funds to upgrade playground surfaces.

            The other decisions include ruling to allow Catholic schools to violate federal anti-discrimination laws in hiring or firing teachers, including those who teach secular subjects. The Court also allowed a huge Christian cross honoring soldiers who died in World War I to remain on public property at a major intersection in suburban Maryland. In another of the cases, the Court allowed a Philadelphia social service agency to violate a local anti-discrimination ordinance by refusing to consider same-sex couples as applicants to take in foster children.

            Dissenting in the Maine case, Justice Sonia Sotomayor criticized the latest decision and its precursors. “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor wrote. “This Court should not have started down this path five years ago,” she added, referring to her dissent in the Missouri case, which she said “revolutionized Free Exercise doctrine.”

            The new decision, Sotomayor could have added, equally “revolutionized” Establishment Clause doctrine. Harking back to Madison, it is a Faustian bargain for religious schools to suck at the government’s fiscal teat by inviting entanglement and by taxing nonbelievers at the expense of their religious liberties.

In Immigration Cases, Justice Denied, Delayed

           The Republican-majority Supreme Court displayed its anti-immigrant bias last week in two separate decisions on the same day that operate to block noncitizens detained in ICE custody from seeking bond hearings for possible release while they seek relief from removal orders and to block noncitizens from seeking classwide relief to enforce immigration law provisions.  

            Both decisions went against the federal circuit court rulings under review, thus emphasizing that the current Supreme Court is far outside the mainstream of American jurisprudence. In the first of the June 13 decisions, Johnson v. Arteaga-Martinez, the Court reversed, in an 8-1 decision by Sotomayor, the Ninth Circuit’s ruling to require bond hearings for noncitizens detained in immigration custody within six months of the detention.

            In his lone dissent, Breyer argued that the outcome of the case should have been controlled by his opinion for a 5-4 Court twenty years earlier, Zadvydas v. Davis (2001). In that case, Breyer led a liberal majority to read immigration law to “implicitly limit an alien’s detention to a period reasonably necessary to bring about the alien’s removal from the United States and to prohibit ‘indefinite detention.’”

            Writing for the 8-1 majority in the new case, Sotomayor led the conservative-dominated Court in narrowly construing immigration law to include no requirement for periodic bond hearings because the applicable provision had “no express statutory reference to bond.” Without access to the justices’ conference on the case, one must assume that the conservative textualists argued long and hard for overturning the Ninth Circuit’s decision, the Court’s own precedent from 2001 notwithstanding.

            The immigrant in the case, a Mexican national Antonio Arteaga-Martinez, had lived gainfully and quietly in the United States since 2012 after fleeing with his family because of threats from street gangs in his native country. An asylum officer who interviewed Arteaga-Martinez determined that he had a reasonable fear of persecution if returned to Mexico. U.S. Immigration and Customs Enforcement (ICE) issued a warrant for his arrest in May 2018 and detained him in an ICE facility.

            Arteaga-Martinez responded four months later by filing a habeas corpus petition in federal court in Harrisburg, Pennsylvania, seeking either a bond hearing or his release. Within that very month, September 2018, the U.S. Court of Appeals for the Third Circuit issued a precedential decision holding that the government must afford a noncitizen a bond hearing within six months of decision. Applying that decision to Arteaga-Martinez’s case, the appeals court granted him a bond hearing and later his release on bond.

            The government appealed that decision to the Supreme Court, which agreed in July 2021 to add the case to the docket for the 2021 term. And one month later the justices added another immigration law case to the docket for the coming term. In the second case, Garland v. Gonzalez, the government was appealing a Ninth Circuit decision that upheld decisions by district court judges in Seattle and San Francisco to similarly require bond hearings for noncitizens within six months of detention.

            In agreeing to hear the second case, the justices added a new issue: specifically, whether the district courts had any jurisdiction whatever under immigration law to grant classwide relief – that is to say, whether the district courts could grant injunctive relief to require the government to allow bond hearings for any and all noncitizens detained for more than six months.

            The new issue amounted to an ominous sign that the Trump-heavy conservative bloc at One First Street was eager to rein in federal judges. The eventual 6-3 decision, written by Alito and divided along conservative-liberal lines, confirmed that fear by holding that immigration law generally precludes district courts from granting classwide relief in immigration cases.

            Alito led the conservative bloc in narrowly reading federal courts’ authority under an immigration law provision, 8 U. S. C. § 1252(f)(1). That provision generally strips district courts of “jurisdiction or authority” to “enjoin or restrain the operation of” certain provisions of the Immigration and Nationality Act, “other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” 

            In dissenting from the legal holding on behalf of her liberal colleagues Breyer and Kagan, Sotomayor argued that the decision was “absurd” and judicially inefficient to boot. The decision, she explained, would require separate remedial orders and lawsuits for family members asserting legally and factually identical claims based on joint immigration applications or proceedings.  She added that there was no conceivable benefit in requiring identical claims to be raised in separate duplicative actions and argued that what she called this “bizarre outcome” was further evidence of the Court's error. 

In effect, the decision would require each and every noncitizen to file their own legal action to try to enforce the recognized right to a bond hearing within six months of detention and to wait for the months or years to secure a published appellate ruling on their claims. Sotomayor called the result “absurd,” but she might also have called it “Kafkaesque” in its mindless idiocy. The decision, she added, would prevent many vulnerable noncitizens of any meaningful opportunity to protect their rights and would have “grave repercussions.”

Sotomayor closed her dissenting opinion by noting in a footnote that four circuit courts had reached a contrary conclusion over the previous decade by holding that §1252(f )(1) poses no bar to the issuance of declaratory relief. She listed those decisions with detailed citations:  Brito v. Garland, 22 F. 4th 240, 250–252 (CA1 2021); Make The Road New York v. Wolf, 962 F. 3d 612, 635 (CADC 2020); Alli v. Decker, 650 F. 3d 1007, 1010–1013 (CA3 2011); Rodriguez v. Hayes, 591 F. 3d 1105, 1119–1120 (CA9 2010).

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SCOTUS: Damn the Precedents, Full Speed Ahead

            The Supreme Court is all set by the end of this month to overrule a major part of the landmark abortion rights decision, Roe v. Wade, notwithstanding the legal doctrine known in Latin as stare decisis. In the meantime, the Republican-packed Court took a whack last week [June 8] at another, fifty-year-old civil rights precedent by gutting the legal remedy for violations of constitutional rights by federal law enforcement agents.

            The 6-3 decision in Egbert v. Boule blocked a suit by a Washington state innkeeper, Robert Boule, against a U.S. Border Patrol agent, Erik Egbert, for shoving Boule to the ground after Boule asked Egbert to leave the premises. Egbert had followed an arriving guest onto the property, with no grounds to suspect the international guest of having entered the country illegally. In his federal court lawsuit, Boule accused Egbert of violating his Fourth Amendment protection against unreasonable search and seizure.

            Boule summoned a Border Patrol supervisor and another agent to the scene to review Egbert’s action. Together, the three of them determined that the international visitor had entered the United States lawfully. To add insult to injury, Egbert decided to get even with Boule by asking the Internal Revenue Service to review Boule’s tax status. Nothing came of it, but Boule included in his lawsuit an allegation that Egbert violated his First Amendment right to freedom of speech by retaliating against him for complaining to Egbert’s supervisor.

Boule naturally thought he had a good Fourth Amendment claim against Egbert based on the Court’s earlier decision in Bivens v. Six Unknown Named Agents of the Bureau of Narcotics (1971) that allowed a private damage suit against federal narcotics agents who wrongfully invaded Bivens’ home and strip-searched him without grounds for the raid. The 6-3 decision in Bivens implied a private right of action against federal law enforcement agents on the ground that state or local law enforcement officers can be held liable under a specific federal law for violating individuals’ constitutional rights.

The Court issued its decision in Bivens before a succession of Republican presidents packed the bench with partisan Republicans, committed more to politics than to law. The trend that started with Nixon reached its peak over the past few years as President Donald J. Trump succeeded, with the help of Senate Republican leader Mitch McConnell, in appointing three rock-ribbed conservatives to the Court, each of them narrowly confirmed by party-line votes in the Senate.

Trump demonstrated his own contempt for precedent by pledging during his presidential campaign to appoint justices who would vote to overrule Roe v. Wade. All three of his appointees – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – acknowledged Roe v. Wade during their confirmation hearings as settled precedent. And yet, according to the leaked draft opinion in the pending abortion case, the three of them joined two other Republican-appointed justices, Samuel Alito and Clarence Thomas, in voting to overrule an important element of the Roe v. Wade decision and to give states much more leeway to regulate abortion procedures and to limit access to abortion.

The pending case, Dobbs v. Jackson Women’s Health Organization, tests a Mississippi law that bans abortions roughly after the sixth week of pregnancy, in contradiction of the Roe v. Wade holding that guarantees a woman’s right to terminate an unwanted pregnancy until the fetus is capable to surviving outside the womb, roughly around the twenty-fourth week of pregnancy.

Mississippi’s Republican-controlled legislature and Republican governor enacted the law with the deliberate plan to give the Supreme Court a clear shot at overruling Roe v. Wade. When the Court heard oral arguments in the case in December, Justice Sonia Sotomayor ominously warned of a likely backlash against the Court if the conservatives defied the public opinion polls that confirm majority support for retaining Roe v. Wade.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor asked Mississippi’s solicitor general, Scott Stewart, during his time at the lectern. “I don’t see how it is possible.”

Sotomayor is likely to lead the dissenters later this month when the conservative majority decide that they are ready to issue Alito’s draft decision in the case. Fittingly, Sotomayor minced no words last week when she led the three liberal justices in dissenting from the majority’s decision to ditch Boule’s Fourth Amendment claim against the overzealous Border Patrol agent Egbert.

The majority’s decision, Sotomayor wrote, “contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers … of an important remedy.” She batted away the make-weight arguments that Thomas included in his majority opinion to distinguish Boule’s lawsuit from the suit that the Court had recognized in Bivens.

“Boule’s claim is materially indistinguishable from the claim brought in Bivens,” Sotomayor wrote, dismissing as irrelevant the supposed national security issues entailed in immigration enforcement at the U.S. border. “Allowing [Boule’s] claim to proceed would not require courts to intrude into ‘the discussion and deliberations that led to the formation’ of any policy or national-security decision or interest,” Sotomayor contended.

The ruling, she warned, would weaken any protection that Americans have from overzealous Border Patrol agents such as Egbert. “CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury,” Sotomayor wrote. The decision, she argued further, “will preclude redress under Bivens for injuries resulting from constitutional violations by CBP's nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border.”

The decision, Sotomayor added, “shrinks Bivens in the core Fourth Amendment law enforcement sphere where it is needed most.” In a final passage, Sotomayor noted with some relief that the Court had not overruled Bivens in its entirety. She also cautioned lower court judges against making too much of the decision. “[T]the lower courts should not read it to render Bivens a dead letter,” she wrote.

 

 

Gun Safety Reforms Could Save Lives

 President Biden spoke for most Americans last week [June 2] when he pleaded with Congress to pass a short list of specific gun safety proposals to try to prevent mass shootings and to limit the number of deaths from any such episodes. Predictably, however, Biden’s plea fell on deaf ears as Republicans in Congress and gun rights advocacy groups warned that he was tampering with the sacrosanct Second Amendment and that the proposed reforms were likely to be ineffective in any event.

The New York Times answered those doubts with a thoroughly documented analysis published three days later (June 5) under this headline: “4 Laws Might Have Saved Lives in 35 Mass Shootings.” Biden’s most specific proposal was to urge Congress to re-institute the federal ban on assault weapons that Congress enacted in 1994 and that Congress allowed to lapse in 2004. Weapons covered by the ban were used in nearly one-third of the 35 mass shootings since the Columbine massacre in 1999, according to the Times’ compilation, including the most recent of the tragedies in Uvalde, Texas.

The Times’ analysis also concluded that three other measures -- universal background checks, stronger gun storage laws, and a ban on high-capacity magazines -- could have changed the course of at least 35 mass shootings that killed, in all, 466 people.

Biden also called in his speech for banning high-capacity magazines, which were used in twenty of the thirty-five mass shootings that the Times analyzed, including the mass shooting at a Buffalo, N.Y., grocery store on May 14 and the Uvalde episode on May 24.

Biden also called for raising the minimum age to purchase assault weapons if Congress declined to impose a ban. The Uvalde shooter, Salvador Ramos, marked his eighteenth birthday by purchasing the AR15 that he used to kill nineteen youngsters and two teachers. Texas’s relatively lax gun laws set the minimum age to purchase an assault rifle at eighteen. Several other states set the minimum age at twenty-one. With the Uvalde episode fresh in mind, the New York legislature raised the minimum age to purchase an assault rifle in the Empire State last week to twenty-one.

In addition to the Uvalde shooting, the Times identified three other episodes perpetrated by attackers who purchased their weapons before the age of 21: the February 2018 shooting at Parkland High School in Florida; the April 2021 shooting at the FedEx Warehouse in Indianapolis; and the May 2022 shooting at the Buffalo grocery store.

Raising the minimum age for purchase of firearms has gained support from experts who study gun violence and developmental psychology. Federal law currently limits the ability of juveniles under age 21 to purchase handguns but allows those age 18 or over to purchase so-called assault rifles. The House of Representatives is expected to pass a Democratic-backed measure this week [week of June 6] to raise the minimum gun-purchasing age to 21 for more weapons, but not all.

A RAND study published in April 2020 noted that firearm homicides and violent crimes disproportionately involve individuals under age 21, both as perpetrators and as victims. On that basis, the study concluded that minimum age laws could, in theory, reduce rates of firearm crime perpetrated by juveniles. Psychologists who study juvenile offenders emphasize that young people develop impulse control only slowly after age eighteen. The RAND study also noted that nearly half of suicides among people aged 16 to 21 involved the use of a firearm.

The Times’ analysis, written by Quoctrung Bui, Alicia Parlapiano, and Margot Sanger-Katz, also concluded that extending background checks to cover private sales could help reduce mass shootings. The Times counted four attackers who purchased a weapon from a private seller in a state where background checks were not required for such sales. The newspaper noted that the House has passed a bill to make background checks more universal and give investigators more time to complete a check.

The newspaper also called for encouraging safe gun storage and punishing people who fail to secure guns from children and criminals. The newspaper counted seven mass shootings perpetrated by attackers who stole a gun, including as one example the May 2018 shooting at a high school in Santa Fe, Texas, that left ten people killed and thirteen others injured.

Biden squarely challenged Senate Republicans to support what he described as sensible steps to reduce gun violence by noting that no gun safety reforms can pass the 50-50 Senate without support from at least ten Republicans. But as long as the Republican Party remains beholden to the National Rifle Association, the needed votes are unlikely to materialize.

Worse than the obstructionism from Senate Republicans is the danger that the Republican-majority Supreme Court is about to create a presumptive constitutional right to carry firearms in public by striking down a New York law that requires an applicant for a gun permit to demonstrate good cause for needing to be armed in public. The case, New York State Rifle and Pistol Association v. Bruen was argued on November 3, 2021; and a majority of the justices appeared to be skeptical of the New York law.

The Court could announce its decision in the New York gun case any day now, presumably before the end of the month. The conservative justices, it appears, are ready to take major steps to reshape American law to suit their political agendas – judging by the draft decision in the Mississippi abortion case. They may decide to aim for the fences in the gun case as well.