Protesters at the Supreme Court in March 2020, when the justices were hearing arguments in June Medical Services LLC v. Russo. Robin Bravender/States Newsroom I tell my students in Constitutional Law that there are historical eras in which a Supreme Court majority is determined to change an entire area of constitutional doctrine. Bruce Ledewitz (Capital-Star file) In such a moment, the court will rarely grant review in any case that would hinder that goal. Thus, civil rights claimants during the Warren Court era rarely lost cases at the Supreme Court level. The court just did not grant review in cases in which such parties were not likely to win. We are in such a moment now with regard to religious liberty. Religious parties are just not likely to lose in the Supreme Court. The last few weeks of this past term illustrate this point. Since June 30, religious parties won three important cases, losing only in the attempt to procure emergency relief against COVID-19 restrictions—a unique and probably unrepeatable substantive and procedural context. And even that decision was only 5-4 against the church. In two cases, private religious schools won the right to participate in a state scholarship program […]
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