SCOTUS Watch: Day 1

Order List: Doesn't seem like anything that notable. Action on a New York/New Jersey border dispute. Took a couple cases that so far I have not seen much notice of. Didn't act on something that might be a red flag. Thomas/Alito upset they didn't take a criminal case that could have put someone back on death row. 

(The same "Shoop" is involved in the last opinion disposed of today, refusing to allow use of habeas to provide a transfer order to get testing to make a certain claim. The liberals (Breyer) and Gorsuch (separately) dissent on procedural grounds.)

More Low Temperature Opinions:  The first opinion was disposed of in twelve pages (headnotes, majority, dissent) and involved denial of insurance coverage for outpatient dialysis.  Kagan (with Sotomayor) had a brief, but pretty strong dissent ("common sense suggests" etc., finding the majority patently wrong. So, one more Kavanaugh v. Kagan moment.  

The next opinion (Gorsuch with Thomas/Alito with separate dissents, each handled by a snarky footnote by NG) involved the continuing efforts of SCOTUS to clarify what "crime of violence" means.  Prime material for certain criminal justice lawyers/professors.

And, then Breyer for an unanimous Court found a Washington State workers compensation scheme discriminated against the federal government, violating the Supremacy Clause.  Brief opinion.  

Major/Expected: The last opinion, as expected, expanded previous religious funding to schools rules to require Maine to fund discriminatory religious schools as long as they funded secular ones.  The state has an obligated to fund education and used vouchers to deal with thinly populated areas.  Some other state might not have to deal with that issue.  

Justice Breyer had the main dissent, underlining his concern about avoiding religious divisiveness. Justice Sotomayor, not joining the section that highlights that is somewhat less separatist than she (she dissented in an earlier case Breyer/Kagan joined involving playground funding), dissented on her own, basically with "told ya so."  Sotomayor replaced Souter, who filling in on the 1st Cir., supported the same path below. 

A basic thing that Breyer notes is that precedents should be applied to recognize a "play in the joints" that might in various cases allow funding to religious schools, but not require them.  Justice Byron White, who often dissented in Establishment Clause cases, followed that principle all the way back to Sherbert, which required a religious exemption in unemployment cases (he dissented).  See also his dissent in Widmar v. Vincent.  

James Madison before the First Amendment was ratified opposed use of funding to support religious schools, leading the way to the rejection of such usage.  So this is an old battle.  The opinion leaves open the state to merely fund public schools, but it is unclear why it can not fund public education in this fashion.  The "play in the joints" ability to deal with special needs without needing to carry all of the load will likely apply in other contexts.  

The aftermath of this opinion remains to be seen. But, if the funding will require state funding of discriminatory schools (anti-LGBT or whatever), it would seem to be problematic on state or federal grounds.  So, and Sotomayor flags a possible way left opened, if there is a way to meet state rules for public education funding besides this program, I think they have a constitutional compulsion to obtain it.   

(More on this case can be found here.)