The Supreme Court's Hottest New Trend Is "Just Making Shit Up"
For years, Joseph Kennedy was a junior varsity football coach at a public high school in Bremerton, Washington, until he insisted on his right to pray with his players at midfield at the end of games. When the school district told him to stop the public version but offered a private space to accommodate him, he refused. More than that, he sued, claiming the district was discriminating against him for his faith. Today, the Court decided in his favor in Kennedy v. Bremerton School District, saying that the Free Speech and Free Exercise Clauses of the First Amendment protect his right to pray without fear of official reprisal.
Conservative legal activists have long engaged in plaintiff shopping—finding a sympathetic person whose claim can push forward a desired change in law. The Pacific Legal Foundation, for example, is at the Supreme Court representing the Sacketts, an Idaho couple whose fight with the government over their homebuilding plans has been recast as an effort to weaken the Environmental Protection Agency’s regulatory power Kennedy, too, has lawyers for the First Liberty Institute, a well-funded, religious-right-oriented organization, in his corner, and former Solicitor General Paul Clement pressing his case at oral argument.
Now, with six sympathetic justices on the Court, the conservative movement has moved beyond plaintiff shopping to fact invention. The opinion in Kennedy, written by Justice Neil Gorsuch, signals to these advocates that they can fudge timelines and fabricate narratives going forward, confident that this Court will uncritically accept them as true. The story before the justices didn’t support their latest assault on the separation between church and state, so they decided to tell their own story instead.
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When Kennedy’s contract expired, instead of reapplying, he became the poster child for the far-right’s campaign to inculcate Christianity into public and civic life. The Court’s conservative majority ate it all up, criticizing the school district for singling out “private religious speech for special disfavor” and characterizing its response as “suppression” and “censorship.” Deciding this case any differently, Gorsuch writes, would, “treat religious expression as second-class speech.”
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https://ballsandstrikes.org/scotus/kennedy-v-bremerton-opinion-recap/
