SCOTUS Pre-Squeezes Precedents

Bye Bye Lemon

This term, the Supreme Court’s six conservatives slashed through established precedents like a machete, all while claiming to be upholding long-held judicial principles. The Court’s immunity decision was the most egregious example, of course. But the Loper Bright ruling overturning Chevron deference is particularly galling for Chief Justice Roberts’ dogged insistence that he and his fellow conservatives were deeply committed to stare decisis, even as they gutted a 40-year-old precedent.

In a blistering dissent Justice Kagan called out the majority’s manufactured justification for ignoring a precedent they dislike:

This Court has “avoided deferring under Chevron since 2016” …  because it has been preparing to overrule Chevron since around that time. That kind of self-help on the way to reversing precedent has become almost routine at this Court. Stop applying a decision where one should; “throw some gratuitous criticisms into a couple of opinions”; issue a few separate writings “question[ing the decision’s] premises”; give the whole process a few years . . . and voila!—you have a justification for overruling the decision.

Indeed, this “overruling through enfeeblement” has become so predictable that litigants before the Court have come to anticipate it and refrain from citing applicable precedents in their favor that they expect this Court might overturn.

This degradation of first principles is clear in the dispute over Louisiana’s mandate to display the ten commandments in every classroom. The parties are proceeding as if the seminal First Amendment case Lemon v. Kurtzman has already been overruled, ignoring settled precedent and retreating to higher ground in an effort to protect what little remains of the separation between church and state.

It’s Racism. It’s ALWAYS Racism.

Lemon’s roots lie in the backlash to the Court’s 1954 desegregation ruling in Brown v. Board of Education. To implement Brown’s desegregation mandate, some states began busing Black students to majority-white schools, and vice-versa.

Many white parents revolted, with thousands yanking their kids out of public schools entirely and enrolling them in private Christian schools instead. By 1971, a quarter of white students in Mississippi were in “segregation academies,” and private schools across the country struggled to keep up with the growth. In response, Rhode Island and Pennsylvania passed laws allocating taxpayer dollars to pay part of private school teachers’ salaries. The Pennsylvania legislature also subsidized certain books and other instructional materials.