I am populating this site with some things I wrote in the past and don’t have saved anywhere convenient.
In 2021, the Supreme Court released an decision that I had some thoughts about, and tried to assemble into an opinion piece to shop around somewhere. I don’t think I ever got around to sending it to any publications. Looking it over now, I’m not happy with it, but here it is anyway.
Anyone who still believes that conservatives in this country believe in “states’ rights” or “federalism” should take a hard look at the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue. This decision combines with the Court’s 2018 Masterpiece Cakeshop decision to form the opening salvo of a new assault on the Tenth Amendment in the name of a skewed vision of religious liberty.
The Tenth Amendment, for those who don’t remember, says that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In layman’s terms, this means that if the U.S. Constitution neither empowers the federal government to do something nor prohibits the states from doing that thing, then the states can do that thing. More broadly, the Tenth Amendment stands for a principle of noninterference by the federal government in state affairs—it’s usually a favorite amendment of staunch conservatives who decry federal overreach (particularly the kind of “overreach” that protects minorities from oppression).
Lately, though (keeping good time with the Executive instruction that the military should take over in states that refuse to shoot protesters) the Supreme Court has apparently made it a new practice to interfere with a state’s right to organize its own government, at least where that government dares to impose any obligations on Christians. The conservative “states’ rights” voices are curiously silent on this point.
Masterpiece Cakeshop, you’ll recall, concerned the rights of the State of Colorado to establish a court with special subject matter jurisdiction. Sure, the Supreme Court and the press didn’t frame it that way—they framed it as about the right to refuse to bake cakes for gay people. But the holding of the case turned on the rights of religious people to an unbiased forum in which cases accusing them of discrimination could be heard, and the Court found that the Colorado Civil Rights Commission had expressed a “hostility to religion” because one of the Commissioners noted in deliberations that “[f]reedom of religion has been been used to justify all kinds of discrimination throughout history . . . . And to me, it is one of the most despicable pieces of rhetoric that people can use[,] to use their religion to hurt others.” (Does this look instead like a defense of religion—that it’s something noble that shouldn’t be used to hurt others? Cool, but the Supreme Court says otherwise, and I’m not here to relitigate that point.)
What’s noteworthy isn’t just the tortured lengths the Supreme Court went to so they could read this statement as hostility to religion, it’s the assault on a State tribunal’s right to reason and reach a conclusion. Imagine, for instance, if every criminal proceeding could be overturned, and the defendant freed, because the judge had raised a gruesome hypothetical at oral argument. (That this might result in a better world is irrelevant.) Indeed, imagine if every Supreme Court case in which a Justice went off the deep end—for instance, if Justice Thomas had been on the winning side in the capital case where he went on at length regarding Warrick Dunn’s football proficiency—were thereby made invalid.
To be sure, Masterpiece Cakeshop does not suggest that the right to be free from commentary applies in these circumstances. But the Colorado Civil Rights Commission is an adjudicatory body—a court, exercising state judicial power. The only difference between it and the federal District Court where the baker sued the Commission is that the Commission’s jurisdiction is limited to appeals of violations of the state civil rights law. The federal judiciary mostly lacks courts with specific subject matter jurisdiction in this sense (the Bankruptcy Courts being a successful exception). But this lack is due to the statutes establishing federal courts and certain constitutional restraints, neither of which limits a state’s discretion on how to allocate its own judicial power. The only conclusion to be drawn is that Masterpiece Cakeshop treats state action differently depending on the way in which a State organizes its judiciary—an unwarranted intrusion by the federal judiciary into the fundamental workings of state government.
This brings us to Espinoza, which is one of the most confusing cases to come before the Court in recent memory. The issue is this: in 2015, the Montana legislature established a tax credit for anyone who donates to a “student scholarship organization,” which can use the donations to award scholarships to children for tuition at private schools. Other parts of the government, including the Department of Revenue (which administered the tax credit), were directed to run the program in accordance with Article X, section 6 of the Montana Constitution, the so-called “no-aid provision,” which prohibits “direct or indirect appropriation[s] or payment[s] . . . to aid [certain institution] controlled in whole or in part by any church, sect, or denomination.” In light of this requirement, the Department of Revenue decided that qualified schools could not include schools described in the no-aid provision—those “owned or controlled in whole or in part by any church, religious sect, or denomination.” The Attorney General of Montana asserted at the time that this was inappropriate, and that the Department of Revenue had misinterpreted the no-aid provision.
All this came to a head when a mother of three children wanted to send her kids to a religious school and decided that the right way to accomplish this goal was to sue the Department of Revenue to invalidate its rule. At trial, the court ruled that the Department of Revenue had interpreted the no-aid provision too broadly and that the rule was invalid; the Montana Supreme Court reversed, holding that the no-aid provision applies broadly. (The issue, not a terribly interesting one, turned on what was meant by “direct or indirect” in the no-aid provision.) The Montana Supreme Court found, however, that the Department of Revenue had overstepped its boundaries, and that the only proper recourse was to strike down the tax credit and scholarship scheme, which otherwise would have violated the no-aid provision. In other words, everything went back to the way it was before the law was enacted, and no schools—religious or otherwise—were entitled to receive scholarships.
The end, right? No, says the Supreme Court. In an opinion issued on Tuesday, Chief Justice Roberts held that the fact that “the State of Montana simply chose to put all private school parents in the same boat by invalidating the scholarship program” is insufficient to eliminate an injury in this case, because “[t]he Montana Legislature created the scholarship program [and] the Legislature never chose to end it.” As the Supreme Court sees things, it could not have been the province of the Montana Supreme Court to interpret the Montana Constitution to invalidate an act of the Montana Legislature, because the Montana Supreme Court’s reasoning flowed from its mistaken belief that had the no-aid provision, as applied to the entirely hypothetical world in which the Montana Supreme Court had ruled differently and allowed the tax credit to stand, would not have violated the Free Exercise Clause of the U.S. Constitution. Because the Montana Supreme Court misunderstood this point, the Chief Justice says, it could not have validly invalidated the tax credit, and the Montana Legislature had a right to have its tax credit evaluated free of this error.
But this transmogrifies a lawsuit between an individual and the Montana Department of Revenue into a battle between the Montana Legislature and the Montana Supreme Court—and further resolves this conflict by asserting the supremacy of the Montana Legislature. The structure of the Montana government that permits the Montana Supreme Court to invalidate an act of the Montana Legislature based on a provision of the Montana Constitution was never before the lower courts, and the Supreme Court is without jurisdiction to consider it. As matters stand now, the Supreme Court has interfered in the operations of state government to declare a victor in a proxy war at best, and an illusory conflict at worst.
Justice Louis Brandeis, writing in New State Ice Company v. Liebmann, famously described the states as “laboratories of democracy,” protected by the Tenth Amendment from interference with their experiments. In keeping with longstanding Supreme Court precedent holding that it is not within the power of the federal courts to enforce the constitutional mandate that guarantees to each state “a republican form of government,” this principle is meant to have particular vitality with respect to a state’s decisions as to how to organize its own government. In 2015, for instance, a majority of the Supreme Court cited the “laboratories of democracy” concept in upholding Arizona’s decision to hand redistricting power from the legislature to an independent commission. Since that time, the era of that respect for the internal working of states has ended, at least where states threaten the freedom to oppress. At the time of their nominations, we were told to take comfort that Justice Gorsuch and Justice Kavanaugh’s principled conservatism would prevent them from interfering with successful experiments in the more liberal states. Instead, where the rights of Christians (and at least so far, only Christians) are concerned, the Supreme Court will rewrite state constitutions and reallocate state political power at will. Yet again, the high-minded rhetoric of “states’ rights” yields to the question of “a state’s right to what?”.
James on Stuff 
Leave a comment