While the Supreme Court imbued the presidency with untold power, hobbled federal agency power and hollowed out the administrative state this term, it was actually amassing power to itself.
Continue reading “Inside The Supreme Court’s Massive Power Grab This Term”Oklahoma Supreme Court Says No To Catholic Charter School—But This May Not Be The End Of The Boundary-Pushing Saga
This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
In Oklahoma, the start of the school year is just six weeks away. But one closely watched school that had planned to open in 2024 is now in limbo: St. Isidore of Seville Catholic Virtual School, a tuition-free, online, K-12 institution.
St. Isidore received a controversial go-ahead from a state school board in 2023. Like all charter schools, it would have been funded with public money, but with more independence than typical public schools. St. Isidore’s would have been the nation’s first religious charter school, raising immediate concerns about its constitutionality.
Oklahoma’s attorney general, Republican Gentner Drummond, soon filed suit against the charter school board, arguing that the school would have violated both the state and federal constitutions. The dispute reached Oklahoma’s Supreme Court in April 2024.
The court rendered its decision on June 25. In a 7-to-1 judgment, the court invalidated the attempt to open St. Isidore, directing the statewide virtual charter school board to rescind its contract. Yet in a vote four days later, the board declined to do so, indicating the school would not accept public funding until July 25, 2025, at the earliest – essentially delaying its opening.
Charter schools are at the heart of the parental choice movement, which pushes for parents to have greater control in selecting where their children attend school, without having to pay private school fees. The country’s almost 8,000 charter schools educate about 3,700,000 students, or 7.4% of U.S. children.
Parent choice advocates may have thought the timing was right to try to open a faith-based charter school. Three recent U.S. Supreme Court cases expanded the boundaries of state aid to faith-based schools and their students, ruling that they cannot be denied generally available aid solely due to their religious status.
As one who teaches and researches legal issues involving religion and education, I believe Drummond v. Oklahoma Statewide Virtual Charter School Board has the potential to further expand the boundaries of aid to faith-based schools and their students – a dramatic change worth watching.
Recent trend
All three of the recent U.S. Supreme Court cases relied on a legal idea I have written about called the “child benefit test.” According to this construct, it is constitutional under some circumstances to provide public funds to students who attend faith-based schools, or to their parents – but not directly to the schools, as would have happened with St. Isidore.
The first of these cases, 2017’s Trinity Lutheran Church of Columbia v. Comer, dealt with a Christian preschool that was denied public grants to improve safety in its playground, which was open to the public when classes were not in session. School administrators sued, arguing that this constituted religious discrimination in violation of the First Amendment’s protections for freedom of religion. The high court agreed, reasoning that denying generally available funding, for which Trinity Lutheran was “otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
Three years later, Espinoza v. Montana Department of Revenue further opened up government aid to students attending faith-based schools. The court ruled that Montana’s tax credit program for parents sending their children to independent schools must apply even if those schools are faith-based.
In 2022, the court extended this perspective in Carson v. Makin. Maine, with its low population density, offers assistance to parents in areas lacking their own public schools to help pay tuition for other schools, as long as they are nonsectarian. The Supreme Court found that this program should also apply to parents without a local public school who wish to send their child to a religious school. The program was unconstitutional, the majority wrote, because it was not neutral toward religion, nor did it afford parents the opportunity to send their children to schools of their choice.
Rethinking church and state?
By expanding the boundaries of permissible aid, these three cases boosted proponents’ hopes for even greater public funding for faith-based schools and their students.
Yet, it is important to keep in mind what likely prompted these changes in the first place: new faces on the Supreme Court. A majority of today’s justices tend to favor the “accommodationist” interpretation of the First Amendment, meaning they largely reject the idea that it demands a “wall of separation” between church and state, so long as the government is not privileging one faith over another.
Nevertheless, the parameters of the “child benefit test” often used to justify greater public funding has been evolving for years. The concept – one that legal writers use to describe the Supreme Court’s arguments, not a term the justices use themselves – first emerged in a 1947 dispute from New Jersey, Everson v. Board of Education. In Everson, the court upheld a state statute that allowed local school boards to transport students to faith-based schools – mostly Roman Catholic ones – reasoning that the students, not the schools themselves, were the primary beneficiaries of state aid.
Back to Oklahoma
In St. Isidore’s case, Oklahoma’s high court primarily relied on the state’s prohibitions against aid to religious institutions. The court feared that enforcing the proposed school’s contract “would create a slippery slope and what the framers’ warned against – the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”
However, by barely acknowledging the trilogy of key Supreme Court cases permitting greater government aid to faith-based schools and their students, I think the panel left itself open to second-guessing and a possible appeal.
Within hours of the court’s ruling, Catholic leaders from the dioceses that would have overseen the school issued a statement saying they would “consider all legal options.” Days later, officials of the Archdiocese of Oklahoma City announced plans to appeal to the U.S. Supreme Court.
During oral arguments at the Oklahoma Supreme Court, Justice Yvonne Kauger asked an attorney for the state charter board, “Are we being used as a test case?” – possibly anticipating an appeal. Although the attorney said no, Kauger aptly responded, “It sure looks like it.”
Given the accommodationist perspective of a majority of justices on today’s U.S. Supreme Court, St. Isidore’s likely appeal bears watching. In the words of the eminent philosopher-baseball player Yogi Berra, “It ain’t over ‘til it’s over.”
This is an updated version of an article originally published on June 7, 2023. This article is republished from The Conversation under a Creative Commons license. Read the original article.
Trump Appoints Fake Elector As Campaign Advisor In Nevada, A State He Still Claims He Won In 2020
Donald Trump named election denier and indicted fake elector Michael McDonald as senior advisor to his Nevada campaign earlier this week, signaling that the battleground state will continue to be an area of Big Lie fixation if the Republican loses the state in November.
Continue reading “Trump Appoints Fake Elector As Campaign Advisor In Nevada, A State He Still Claims He Won In 2020”Times Gonna Times
Whatever else happens in the coming days with the presidential election, the whole saga will permanently affect my understanding of the culture of The New York Times. It is not the first time that in the midst of a presidential contest the Times has deployed and leveraged all its editorial resources to achieve a desired goal. We saw it in 2016 on a couple occasions. Tonight a TPM Reader suggested I look at the front page, telling me …
Continue reading “Times Gonna Times”Eight out of 8 top articles are about whether Joe Biden should drop out, whether he’s doomed to be defeated by Trump, etc. Five out of 10 op-ed articles are about the same topic; of those, 4 are toeing the Times line, one (by the sole nonwhite author today) says that only Trump benefits from forcing Biden out.
Number of articles about any of the Supreme Court’s decisions this term, including the immunity decision: zero. It was literally a one-day story in the Times.
The State-Level Effort To Protect Abortion Marches Forward Through Chaos
Abortion advocates’ ballot initiative in Arizona, to enshrine abortion access in the state’s constitution, is well on its way toward getting on the ballot in the fall. Today, the organizers behind the Arizona for Abortion Access group submitted 823,685 signatures to election officials — more than double the 383,923 needed to get a constitutional amendment question in front of voters.
Continue reading “The State-Level Effort To Protect Abortion Marches Forward Through Chaos”This Week’s Podcast
I don’t normally push people to our podcast. Maybe I should. But if you’re interested in what we think about the crisis at the top of the presidential ticket and, to a lesser degree, the Supreme Court immunity decision, I really recommend listening to this week’s podcast, which we will post soon — probably late this afternoon. There’s a lot going on and there are way more issues we address in the pod than I’ll possibly be able to write about today. So if you have questions about what we think on the numerous questions Democrats are wrestling with at the moment, that’s where to find the answers.
SCOTUS, 18th Century Kings and The Dangers of an Unbound Presidency
This may seem like a minor point. But I thought it’s worth saying because I have seen a minor rearguard argument to this effect: that the SCOTUS immunity decision doesn’t actually change any laws, doesn’t change what a president can and can’t do. It simply removes the possibility in many or most cases for post-presidency prosecution, something which has actually never happened in American history until last year. This is notionally a good point, but in a purely notional way. It’s true as applied to presidents who didn’t need this kind of hammer hanging over them. All of us are constantly through every day abiding by laws even though we’ve never been prosecuted — or at least most of you, maybe some have been prosecuted before — for breaking a criminal law. We report all our income on our taxes; we don’t fraudulently sign documents; we don’t steal from the store. Most of us act that way just because it’s the right thing to do, though most of us have been tempted at the margins. But laws work in complicated ways. Much of our understanding of what is the right thing to do is in fact conditioned by the laws themselves. As we’ve noted before, laws and prosecutions are not only to keep people in line and punish wrongdoers. They are how societies speak to themselves about what is acceptable and what is not.
Continue reading “SCOTUS, 18th Century Kings and The Dangers of an Unbound Presidency”Continuing Thoughts on the Turmoil
Two thoughts on our current predicament. The first is that while people are seizing on this or that bad poll — and there are some — we now have seven polls in which we have before and after data from individual pollsters, before the debate and after. This is the only real way to judge the public opinion of last week’s debate. Putting all those together you have Biden going down one point and Trump remaining unchanged. This data point is certainly not determinative in itself about what should happen next or anything about the campaign. But from what I can tell it is the best systematic and data-driven look at the impact of this event which has consumed the political world and especially the Democratic Party for a week. The slight shift could in fact quite easily be explained simply by non-response bias. By any measure it is very limited.
Continue reading “Continuing Thoughts on the Turmoil”The American Experiment Has Gone Off The Rails
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.
The Jumble Of The Current Moment
The collision of the Supreme Court’s radical end-of-term rulings with President Biden’s catastrophic debate performance is one of those quirks of timing that only history can provide. We would find it implausible in fictional treatments, and in reality, it strains the imagination, too.
But of course they’re not entirely unrelated. Biden’s debate-fail resonates precisely because of the incredibly high stakes of the current moment. If your hair was already on fire at the prospect of Trump II, as it should have been, any weakness in the standard bearer for the Trump opposition is cause for concern and can quickly escalate into alarming.
But not everyone had their hair on fire or appreciated the historic moment before last week’s debate. So as I try to make sense of the jumbled political landscape before us, it helps me to set aside the handwringing, misdirected focus, and lack of proportion offered by those folks now. Already obsessed for the past year with Biden’s age? Setting you aside. Eager to reduce politics to petty infighting, personality clashes, and high school popularity contests? Not paying you much attention. It’s a process of elimination to try to refocus on the core things that really matter.
But I’ll admit that only gets you so far. It’s still a jumble for the moment. Here’s my best effort to make sense of where things stand right now.
Cold Civil War Remains The Best Analogy For America Today
Heritage Foundation President Kevin Roberts, who has hauled the venerable think tank deep into MAGA land, hailed the Supreme Court’s presidential immunity decision using language that is barely veiled authoritarianism: “[W]e are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”
Don’t make us hurt you, remains a recurring theme of Trumpism’s cycle of abuse.
Meanwhile, The Guardian has more on the preparation of the blacklist of government workers the Heritage Foundation is helping to fund.
SCOTUS Deeply Damaged The Trump Prosecutions
Yesterday’s Morning Memo was a long-winded way of saying that our focus should probably shift away from the Trump prosecutions now. They have been been irretrievably pushed past the election, but they have also been severely hamstrung in a way that is unlikely to yield accountability to the law for Trump.
The pathways left by the Supreme Court to prosecute a former president are narrow, contorted, and highly uncertain. Rather the drawing bright lines, articulating clear rules, or setting coherent standards, the court has by its purposeful vagueness retained for itself multiple opportunities to weigh in further on the Trump prosecutions.
That is why viewing the presidential immunity decision only through the prism of executive power misses the aggrandizement of power to the Supreme Court itself. By keeping it vague, the court can write rules in the future that might limit a Democratic president while not committing itself to anything that would limit Trump in a second term.
Trump Sentencing Delayed
It was obvious as soon as the Supreme Court decision came down Monday that not only were the three ongoing prosecutions of Trump now deeply in jeopardy, but so was his conviction in New York state court in the hush-money case. The combination of the court’s expansive view of presidential immunity and its startling evidentiary ruling – that was not an explicit part of the question presented by the court in the Trump case, was never argued before the court, let alone briefed – left the hush-money conviction twisting in the wind.
If nothing else, it gave Trump a new and potentially powerful argument, and Trump seized on it. The same day the ruling came down, he moved to delay his sentencing, which was scheduled for next week. Yesterday, recognizing the changed legal landscape, Manhattan District Attorney Alvin Bragg told the court he would not object to a delay. Judge Juan Merchan subsequently postponed sentencing until September to allow time for the two sides to present him with arguments on immunity and the evidentiary issues the Supreme Court suddenly put into play.
Still Grappling With The Presidential Immunity Decision
Some choice reading to get your head around what just happened:
- TPM’s Kate Riga: The John Roberts Guide To Doing A Coup And Not Getting Caught
- Lisa Needham: SCOTUS gives Trumpian autocrats a map for abusing power
- Quinta Jurecic and Benjamin Wittes: A Decision of Surpassing Recklessness in Dangerous Times
The Historical Perspective
- Kevin Kruse: The Radical Roberts Court
- Ankush Khardori: The Supreme Court Gave Trump a Stunning Gift — and Rewrote the Constitution
- Heather Cox Richardson on what happened on July 2, 1776, to cement the Declaration of Independence’s core notion “that a nation should rest not on the arbitrary rule of a single man and his hand-picked advisors, but on the rule of law.”
Don’t Forget SCOTUS Overturned Chevron
I don’t want to overwhelm you with reading assignments, but a lot has happened in the past week:
- Kim Wehle: The Future of Federal Regulation After SCOTUS Tossed Out Chevron
- WSJ: Supreme Court’s Agency Power Rulings Could Change Regulatory Landscape For Years to Come
- Inside Climate News: What Overturning Chevron Means Means for Climate Change Policy
Tea-Leaf Reading
- WSJ: “The increasing likelihood of a second Trump administration has helped spark a steep selloff in U.S. government bonds, with investors betting policies including tax cuts could drive up deficits and inflation.”
- Politico: “Democratic attorneys generals around the country are already gearing up for the possibility of a second Trump administration by beginning to map out an aggressive legal strategy to fight him again in court — this time with a fresh sense of urgency.”
Biden Debate Freakout Reaches Fever Pitch
President Biden heads into the holiday weekend with Democrats still panicking, a few elected Dems abandoning him but many others keeping their options open, and no clear path forward if Biden is not the nominee. The post-debate freakout probably won’t resolve itself one way or the other until public opinion settles in and polling can assess the net effect of his poor debate performance.
Into that volatile mix, the NYT dropped a new story reporting that Biden’s lapses are increasingly common and worrisome. It was a better reported version of a similar story the WSJ did a month ago.
But that wasn’t the only headline that painted a dire picture for the President:
- WSJ: Inside the Big Money Battle to Salvage the Democratic Ticket.
- NYT: Big Donors Turn on Biden. Quietly.
- WSJ: Democratic Unity Cracks in Wake of Biden’s Debate Performance
- NYT: Biden’s Team Scrambles to Contain First Democratic Defections
- WaPo: Obama shares concerns after shaky debate, offers Biden his advice
‘The Pundit Class Needs To Get A Grip’
Noah Berlatsky: Politics isn’t fantasy football and there’s no One Weird Trick to beat Trump.
See You Monday
Morning Memo is taking off the next couple of days. By the time I see you next week, the 14-year reign of Britain’s Conservative Party may be over, quite a contrast with the ascension of the far right in France.
Do you like Morning Memo? Let us know!
The Supreme Court Term That Fundamentally Changed America
As the dust settles from Trump v. United States, those paying attention look out over the wreckage, contemplating an unbounded future President Trump, a system of checks and balances toppled, a super-executive free to commit crimes with impunity.
Continue reading “The Supreme Court Term That Fundamentally Changed America”