SCOTUS Watch: Day 1 (Coach Prayer)

Order List: Nothing really of note. Various opinions are applied to other cases. Some motion to file something redacted is accepted in a case entitled Dicks v. Dicks. A case no one really cares about is granted.  The final "clean-up" order should have more interesting stuff, including some statements on various matters.

And, Thomas uses a case about labeling an anti-gay group a "hate" group as a reminder he wants to re-litigate the "absolute malice" standard for the press. A matter of opinion a strange case to use when there must be some case based on actual objective facts. [Also, even though the state agreed with the correction, for some reason SCOTUS rejected a request to fix an opinion, and no one dissented.  Just a little bit of wtf?]

Coach Prayer:  This is the ideological case with facts made (or framed) for Fox News that four justices waited around for a fifth to make sure they would win.  Roberts apparently wasn't gung ho, though he went along now without comment. Thomas and Alito had brief concurrences.  Gorsuch for the majority (so no comments from sports guy Kavanaugh) and Sotomayor (citing the guns and abortion cases) for the liberals in dissent.  

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys

Scalia got his wish: Lemon v. Kurtzman (secular purpose, no effects for or against religion, and no religious entanglements) is declared overruled. Actually, allegedly, it was overruled while we weren't looking!  Look for a similar conclusion eventually with the administrative law discretion rule of Chevron, a case that has been notable in its absence.  

Sotomayor (without Breyer or Kagan speaking separately in a religious liberty case -- as she notes at the end, not upholding separation of church and state or enforcing coercion rules is not "religious liberty") deals with the majority.  She brings the receipts (photographs) to call bullshit about the lack of coercion or the idea it was purely private speech.  

The Court again appeals to history and tradition, which as noted in this thread is applied without context in basically a fraudulent way.  The dissent basically covers this.  As in the abortion and guns case, history can be useful, but only so much, and only if you tell the whole story.  That is a value of the "reasonable observer" test in endorsement cases.  

So, what is next?  Well, we have a win for "religious liberty" by lying about the facts (perhaps, they could have looked at once of the governmental endorsed Ten Commandments monuments to learn about bearing false witness).  The Establishment Clause was watered down, in schools (where it used to have a bit more bite), while the coercion (making it a bit redundant given the "Free" Exercise Clause) is defined strictly.  And, tossing Lemon makes secular purpose apparently not too important.   

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The Roberts Courts provide various ways for you to come satisfied, even now that it is the Barrett Court.  It's somewhat harder these days. In the First Step sentencing case, Thomas and Gorsuch joined the liberals (Sotomayor opinion).  And, Roberts, Gorsuch and Kavanaugh joined the liberals (Breyer) in another criminal justice opinion, though the others concurred in judgment.  

I will not try to parse these except to note criminal law writers have cited the first as an important ruling for defendants.  Note it was 5-4 and there apparently (says one theory) a chance that Sotomayor had to talk Thomas into joining her over Kavanaugh.  Alito thinks the majority in the other opinion does something major, but you know, Roberts and Kavanaugh went along.  I have my doubts it was that major. 

(Note this portion late in Sotomayor's opinion: "The First Step Act does not require a district court to be persuaded by the nonfrivolous arguments raised by the parties before it, but it does require the court to consider them."  So, it is telling that this is what excites people these days.)

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See ya on Wednesday with four left.