Gotcha! failure

Aaron Tang, a ConLawProf at U.C. Davis, opines in the very receptive New York Times: “Conservative Hypocrisy Makes Its Case at the Supreme Court.” The gist of the column is in the sub-headline: “Lawyers on the right are advancing arguments they once rejected on principle.”

Two problems with the column are (a) opportunistic arguments are nothing new (there’s a story about circuit-riding lawyer Abe Lincoln arguing a proposition for one client in the morning, its opposite for another client in the afternoon) and (b) progressive lawyers defending the laws in question are also advancing arguments they once rejected on principle.

Keep that in mind, though, and the cases Tang discusses are legitimately interesting. The Montana case seems like a particularly tough one for “conservatives.”

Montana had a “Blaine Amendment,” one of many 19th Century anti-Catholic state constitutional provisions that no public funding may be used directly or indirectly to aid any religious school. But “Montana’s 1972 constitutional convention overwhelmingly re-enacted the no-aid provision in order to protect religious institutions from state interference.”

A relatively recent legislature sought to circumvent the no-aid amendment by providing a (paltry) tax credit for scholarship funds for religious and secular schools, presumably reasoning that a tax credit prevents the money from ever becoming “public funding” subject to the provision.

The Montana Supreme Court reasoned otherwise, but mindful of SCOTUS precedents that states cannot treat religious institutions differently than similarly-situated secular institutions, struck down the whole program, not just the part allowing scholarship funds for religious schools.

I hope SCOTUS agreed to hear the case to say something like this:

  1. No, no, no! We’re not going to sit a Super-Legislature. This case isn’t like our precedents.
  2. The 1972 Constitutional Convention’s anti-entanglement rationale plausibly moots any constitutional infirmity of the bigoted original no-aid provision. (Dictum: events before and after 1972 arguably support Montana’s instinct that public funds come with strings attached, and we’re not going to second-guess the Montana Supreme court that tax credits are public enough to fall under the 1972 ban.)
  3. There is no Federal constitutional right for private schools to get public support in any form, including tax credits.

Some of my favorite Colleges don’t take public aid in any form, and I think they’re the better for it, net. Further, it would not be good for the country for the high court, fortified by two Federalist Society-vetted nominees, to unduly embolden activist conservative litigators just because prior courts have emboldened progressive litigators.

Caveat: I have not read the briefs — an omission that will not be true of any of the Justices.

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Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For Thou art the lover of mankind.

(From A Psalter for Prayer)

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